their places and then may proceed upon any thing there moved lawfully as lawfull persons for it is not convenient that they who are attainted should be in places of law full Judges And then another question was moved What shall be said of the King himself for he also was attainted by his Predecessour Rich. 3. and after communication had amongst themselves all did agree that the King was a person able and discharged of any former attainder ipso facto That he took upon him to raign and to be King by which it manifestly appeareth that by the Laws of England there can be no inter regnum within the same that presently by descent the next heir in blood is coÌ„pleatly and absolutely King without any essentiall Ceremony or act to be done ex post facto And that Coronation is but a royall ornament and outward solemnization of the descent and of this last matter Read Cooks 7 part fol. 10. 6. and that there followeth Of Dukes THe form of the Patent of Duke of York that now is Rex c. To all Archbishops Bishops Dukes Marquesses Earls Viscounts Barons Justices Governours Knights Ministers And to all Bailiffs and faithfull Subjects greeting Whereas We often times call to minde how many and innumerable gifts and what excellent benefits that great worker of all goodnesse of his only benignity and clemencie hath abundantly bestowed upon Us who by his power hath consociated divers and mighty Lyons in firm peace without any strife but also hath amplified and exalted the bounds and limits of our Government by his unspeakable providence above our progenitors with an indissolvible conjunction of the ancient and famous Kingdoms in the right of blood under our Imperiall Diadem in regard whereof we cannot but most willingly acknowledge our fruitfulnesse and issue plentifully adorned with the gift of Nature which he hath vouchsafed upon us because in truth in the succession of children a mortall man is made as it were immortall Neither unto any mortall men at leastwise unto Princes not acknowledging superiours can any thing happen in worldly cases more pleasant and acceptable then that their children should become notable in all vertues gooodnesse manners and increase of dignity so as they which excell others in noblenesse of bloud and indowments of Nature might not be thought of others to be exceeded Hence it is that that great goodnessâ— of God which is shewed unto us in our fertility to passe in silence or to be thought not to satisfie the Law of Nature whereby we are chiefly provoked to be well affected and liberall to those in whom we behold our blood to begin to florish coveting with great and fatherly affection that the perpetuall memory of our blood with honours and increase of dignity and all praise may be affected Our well-beloved Son Charls Duke of Albany Marquesse of Ormond Count of Rosse and Lord of Ardmannoth Our second begotten son in whom the Royall form and beauty worthy honour and other gifts of vertue do now in the best hopes shine in his tender graces We erect create make and ordain and to him the name stile state title dignity authority and honour of the Duke of York do give and him of that Name with the title state stile honour authority and dignity with other honors to the same belonging and annexed by the girding of the sword cap circlet of gold put upon his head and the delivery of a golden Virge we do really invest to have and to hold the same name and stile state and dignity authority and honour of the Duke of York unto the aforesaid Charles our second begotten son and to his heirs males of his body lawfully begotten for ever And that the aforesaid Charles our second begotten son according to the decencie and state of the said name of Duke of York may more honorably carry himself we have given and granted and by this our present Charter we confirm for us and our heirs unto the aforesaid Duke forty pounds to have and yeerly to receive to the foresaid Duke and his heirs for ever out of the Farms issues profits and other commodities whatsoever comming out of the foresaid County of York by the hands of the Sheriffe of the same County for the time being at the Terms of Easter and Michael the Arch-angel by even portions for that expresse mention of other gifts and grants by us unto the same Duke before time made in these presents made doth not appear notwithstanding These be witnesses the most excellent and most beloved Henry Prince our first begotten son Vlrick Duke of Holst brother of the queen our beloved wife and the Reverend Father in Christ Richard Archbishop of Canterbury Primate and Metropolitan of all England and also our welbeloved and faithfull Councellour the Lord Elesmore and Chancellour of England Thomas Earl of Suffolk Chamberlain of our houshold and also our dear cousin Thomas Earl of Arundel and our well-beloved cousin and Councellour Henry Earl of Northumberland Edward Earl of Worcester Master of our horse George Earl of Cumberland and also our well-beloved cousins Henry Earl of Southampton William Earl of Pembroke and also our well-beloved cousins Charles Earl of Devon Master of our Ordinance Henry Earl of Northampton Warden of the Cinque-Ports John Earl of Marr Robert Viscount Eranborne our principall Secretary and our well-beloved and faithfull Councellour Edward Lord Zuch President of out Councell in the Principality and Marches of Wales and also our wel-beloved and trusty Robert Lord Willoughby of Earsby William Lord Mounteagle Gray Lord Chandois William Lord Compton Francis Lord Norris Robert Lord Sidney our well-beloved and faithfull Councellours William Lord Knowles Treasurer of our houshold Edward Lord Wotton Comptroller of our houshold and our well-beloved and faithfull Councellour Alexander Lord and also our wel-beloved and faithfull Councellors George Dunbarr Lord of Barwick Chancellour of our Exchequer Edward Lord Bruse of Kinlose Master of the Rolls of our Chancery and also our faithfull and well-beloved Thomas Lord Eskine of Bielton Lord Balmermoth and others given by our hand at our Pallace of Westminster the sixth day of January in the second yeer of the Raign of K. James K. Edw. 3. in the 11 year of his Raign by his Charter in Parliament and by authority of Parliament did create Edw. his eldest son the Black-Prince D. of Cornwall not onely in title but cum feodo with the Dutchy of Cornwall as by the tenour of the said Letters Patents exemplified may appear Cookâ— 8 part in the pleading Habend ' et tenend ' eidem duci et ipsius et heraed ' suorum Regum Angliae filiâ—s primâ—gâ—niâ—is et dicti loci dâ—â—ibus in Regno Angliae bereditatoriae successoris To have and to hold to the same Duke and his heirs Kings of England the first begotten sons and Dukes of the same place in the kingdom of England and to hereditary succession so that he that is hereditable must be heir
is no accepter of persons for as unto the Lord he that is greater is as the lesser and he that doth govern as the servant but with men there is a difference of persons viz. The King and under him Dukes Counts Barons Vavasors and Knights Counts so called because they take their name from the County or from the word society who may also be tearmed Consull of Counselling For Kings do associate such men unto them to govern the people of God ordaining them into great honour power and name when they do gird them with swords that is to say ringis gladiorum with the Belts of their swords ringis so called * quasi renes girans circundans for that they compasse the Reins of such that they may keep them from incest and luxury because luxurious and incestuous persons are abominable unto God upon this cause were the stations and encamping of Arms called in the ancient language of Rome casâ—â—â— even of the word Castrare to geld since that they ought to be castrata vel castra In that place ought a good Generall to foresee that Venus delights be as it were gâ—lded and 〈◊〉 off from the Army vide Sir John Ferne his Book intituled The glory of generosity The sword also doth signifie the defence of the Kingdome and Countrey There be other Potents under the King which are called Barons that is to say robor belli the strength of Warre There be others which are called Vavasors viri magnâ— dignitatis â—en of great dignity for Vavasor cannot better be said to be any thing than Vas sortitum ad valetudinem a vessel chosen for valour or as men standing with their Generall ad valuas Regni and this is enough if not too much in generall spoken of the Nobility of England now follow I a more particular discourse of them according to their severall degrees The Prince THe Kings eldest Sonne and Heir apparant is stiled Prince Quasi primum locum capiens post Regem the first next the King To him it was permitted by the Statute of 24. Hen. 8. cap. 13. To wear Silk of the colour of Purple and Cloth of Gold of Tissue in his apparell or upon his horse but by another Statute made in the fourth yeer of King James Chap. 25. all Laws and Statutes concerning apparell are taken away And by the Statute of 34. Hen. 3. cap. 2. Taking shall not be from henceforth made by others then by the Purveyors of the King of the Queen and of the Prince their eldest Sonne and that if any other mans Purveyor make such taking it shall be done of them as those which do without warrant and the deed judged as a thing done against the peace and the Law of the Land and such as do not in manner aforesaid shall be duly punished To eschew maintenance and nourish peace and amity in all parts of the Realm many Statutes have been made in the Raign of Hen. 4. prohibiting the giving of signes or Liveries to any but to their menialls Neverthelesse by the Statute of 2. Hen. 4. cap. 21. It is provided that the Prince may give his honourable Liveries of signes to the Lords or to his meniall Gentlemen and that the said Lords may wear the same as they wear the Kings Livery and that the menialls of the Prince may also wear the same as the Kings menialls But afterwards by occasion of divers other Statutes of latter times made by sundry other Kings for the suppressing of that enormity of maintenance and of the generall words in them that priviledge of the Prince was abridged or rather taken away therefore the Statute of 12. Ed. 4. was made as followeth Item Our Soveraign Lord the King considering that the Prince the first begotten Sonne to the King of England hath been at their liberties to give their Liveries and signes at their pleasure and that divers Statutes against givers and takers of Liveries and signes as well in the time of his noble raign as in the time of his progenitors and predecessors hath been made and that by force of the said Statutes his dear beloved first begotten sonne Edward Prince of Wales Duke of Cornwall and Earl of Chester is as well as any other person restrained to give any such Liveries and signes as our Soveraign Lord the King willing that his first begotten sonne the Prince be at his liberty in receiving any person and giving his signes and Liveries in as large form as any Prince first begotten sonne of any of his Noble Progenitors and predecessors in time pasâ— have been hath ordained and established by authority of the said Parliament that the Prince shall be at his liberty to retain and give his honourable Livery and signe at his pleasure and that the persons so â—â—â—â—ined or to whom such Liveries or signes be or shall be given may be retained and received and wear the same Livery and sign without trouble impediment or impeachment pain contempt or forfeiture or any penalty contained in any of the said Statutes or in any thing in them comprised notwithstanding Nor that the said Statutes in any manner shall extend to any retaining to be made by the said Prince in giving taking or retaining of any Livery or signe of the Prince By the Statute 21. Hen. 8. cap 13. The Prince may retain as many Chaplains as he will though all others of the Nobility other then those of the Kings bloud be restrained to a certain number and they or any of them may purchase licence or dispensation and take receive and keep personages or benefices with cure of souls By order of the common Law a King might have a reasonable ayde of all his Tenents as well of those that did hold of his highnesse by Knights service as of those that did hold their Land in soccage That is to make his eldest Sonne But first note that the ayde is not to be recovered before the Sonne be of the age of 15. yeers or before the Daughter accomplish the age of 7. yeers Fitz Harbert Nat. brevium Knight and for the Marriage of his eldest Daughter and the summe of money was not in certainty but at the Kings pleasure till by the Statute made in the 25. of Ed. 3. cap. 11. by which is enacted as followeth Item It is assented that reasonable aid to make the Kings first Sonne Knight and to marry his eldest Daughter shall be demanded and levied after the forme of the Stature thereof made and not in other manner that is to say of every Knights Fee holden of the King without mean rate 20s and no more and of every 20â— of Land holden of the King without mean in soccagâ— 20s and no more and so rata pro rata of the Lands in soccage And for Lands of the â—enure of Chevalry according to the quantity of the Fee By another Statute made in the said 25. yeer of Ed. 3. cap. 2. amongst other things it is declared that to compasse
Steward shall declare unto the people the cause why the King hath assembled thither those Lords and him and perswade him to answere without feare and then hee shall cause the Clarke of the Crowne to read his endictement unto him and aske him if hee bee guilty or not whereunto when hee hath answered not guilty the Clarke of the Crowne shall aske him how hee will bee tryed and then hee will say by God and his Peeres and then the Kings Sergeants and Attourney will give evidence against him whereunto when the Prisoner hath made answere the Constable shall bee commanded to retire the Prisoner from the Barre to some other place while the Lords doe secretly conferre in the Court together and then the Lords shall rise out of their places and consult amongst themselves and what they affirme shall bee done upon their Honour without any oath to bee ministred unto them and when they all or the greatest part of them bee agreed they shall returne to their places and sit downe and then the High Steward shall aske of the youngest Lord by himselfe if he that is arraigned bee guilty or not of the offence whereof hee is arraigned and then of the youngest next him and so of the residue one by one untill hee have asked them all and every Lord shall answere by himselfe and then the High Steward shall send for the Prisoner againe who shall bee led to the Barre to whom the High Steward shall reherse the verdict of the Peeres and give judgement accordingly Stamford Pleas del Coronae lib. 3. cap. 1. Poulton 188. The antiquity of this kind of triall by the opinion of the last recited Authours is grounded from the Statute of Magna charta so called not in regard of the quantity but in regard of the waight thereof Cooke Epistle to the 8. part fol. 2. c. 29. beginning thus Nullus liber homo c. nec supereum ibimus nec super eum mittemus nisi per legale judicium parvu ' suorum But I take it to bee more ancient then the time of Hen. 3. as brought into the Realme with the Conquerour being answerable to the Norman and French Lawes and agreeable with the Customes Fewdall where almost all the controversies arising betweene the Soveraigne and his vassall are tried per judicium Parvu ' suorum And if a Peere of the Realme upon his arraignement of treason doe stand mute or will not answere directly judgement shall bee given against him as a Traytour convicted and hee shall not bee pressed to death and thereby save the forfeiture of his lands for treason is out of the Statute of Westminster the first c. 12. 15. E. 4. 33. Dyer 205. and 300. But if hee bee arraigned upon an indictement of fellony hee may bee mute Iâ— appeareth by this Statute of Magna charta that a Peere of the Realme shall bee tried by his Peeres onely in case where hee is indicted at the Kings suite of treason or fellony for the words of the Statute bee Wee will not passe or sit in judgement upon him but by his Peeres But if an Appeale of murder or other fellony bee sued by any Common person against a Peere of the Realme hee shall bee tried by Common persons and not by his Peeres Stam. Pleas del Coron lib. 3. cap. 1. Brooke triall 142. Poulton 188. 6. This Priviledge hath some restraints as well in regard of the person as in the manner of proceedings As touching the person First the Archbishops and Bishops of this Realme though they bee Lords of the Parliament if they bee impeached of such an offence they shall not bee tried by the Peeres of the Realme but by a jury of Knights and other substantiall persons upon their oaths the reason thereof alleadged is for as much as Archbishops and Bishops cannot passe in like cases upon the triall of any other of the Peeres for that they are prchibited by the Common and Ecclesiasticall Lawes to bee Judges of life and death and reason would that the other Peeres should not trie them for this triall should bee mutuall for as much as is performed upon their Honours without any oath taken And so by the way you may see the great regard the Law hath to the word of a Peere of the Realme when hee speaketh upon his Honour even in a case concerning the life of a man and that of a Peere and therefore ought they much more to keepe their words and promises in smaller matters when they engate their Honours for any fast cause or consideration Crompton Courts 13. Secondly as touching the Persons no temporall Lords but they that are Lords of the Parliament shall have this kind of triall and therefore hereout are excluded the eldest Sonne and Heire apparant of a Duke in the life of his Father though he bee called an Earle and it was the case of Henry Howard Earle of Surrey Sonne and Heir apparent of Thomas Duke of Suffolke in 38. H. 8. which is in Brooks abridgement treason likewise the Son and Heir apparant of an Earl though he be called Lord or Baron And all the younger Sonnes of the Kings are Earles by birth though they have no other creation but shall not be partakers of this or other priviledges incident to the Lords of the Parliament Thirdly those that are Barons of the Nobility of Ireland or of Scotland if upon the like offence committed in England they be apprehended in England they shall not have their triall by Peeres no though they were borne within England for they received their dignity from a King of their Nations But if the King of England at this day do create one of his subjects of Scotland to be Viscount Roâ—hester within England or by ordinary summons under his great Seale doe call him to his upper House of Parliament do assign him a place and to have a voice there in his great Councell amongst the Lords and Peeres of the Realme he shall thereby also be a Peere of the Realme and be partaker with them in all priviledges and thus much concerning the restraint of the said priviledges in respect of the person as touching the manner of proceeding it appeareth by the said statute of Magna charta c 29. that a Peere of the Realme shall be tried by his Peeres only in case where he is indicted at the Kings suite of treason of fellony for the words of the statute be Nec super eum ibimus But if an appeale of murder or other fellony be sued by any Common person by a Peere of the Realme he shall be tried by Common persons and not by his Peeres Stam. Pleas del Corone lib. 3. cap. 1. Pâ—ulton 118. and so was Fines Lord Dacres tried in aâ—peale of murder 33. H. 8. Brooke Abridgement trials 142. The Nobility of this Realme enjoy that priviledge that they are not to be impanelled in any Iury or Inquests to mâ—ke tryall or Enquiry upon their corporall oathes betweene party and party for
and for that by the lawes of this land if actuall deeds were not there was no remedy for such false compassing imaginations and confederacies had against any Lord or any of the Kings Councell or any of the Kings great Officers in his houshold as Steward Treasurer Controller and so great inconveniences did ensue because such ungodly demeanours were not straightly punished before that an actuall deed was done For remedy whereof it was by the same statute ordained that the Steward Treasurer or Controller of the Kings house for the time being shall have full authority and power to enquire by twelve sad men and discreet persons of the Check-roll of the Kings honourable houshold if any servant admitted to be his servant sworne and his name put into the Check-roll of the houshold whatsoever he be serving in any manner office or roome reputed had and taken under the estate of a Lord make any confederacies compassings conspiracies imaginations with any person or persons to destroy or murder the King or any Lord of this Realme or any other person sworne to the King Councell Steward Treasurer or Controller of the Kings house that if it be found before the said Steward for the time being by the said twelve men that any such of the Kings servants as is aforesaid hath confederated compassed conspired or imagined as abovesaid that he so found by the enquiry be put thereupon to answer and the Steward Treasurer or Controller or two of them have power to determine the same matter according to the law and if hee be put in tryall that then he be tryed by other twelve sad men and discreet men of the same houshold and that such misdoers have no challenge but for malice and if such misdoers be found guilty by confession or otherwise that the said offence be adjudged felony and they to have judgment and execution as felons attainted ought to have by the Common law In the statute made in the second yeare of H. 5. cap. 10. authority is given to the Sheriffe and other the Kings Justices for the better suppressing of Riots and Routs c. to raise Posse Comitatus the power of the County and the same liberty doth the Common law give in many other cases Neverthelesse may not the Sheriffe upon such authority command the person of any Nobleman to attend that service but if the Sheriffe upon a Supplicavit against any Nobleman in that case doe returne that he is so puissant that he cannot or dare not arrest him the Sheriffe shall be grievously amerced for such his returne For by the writ under the Great Seale of the King commandement is to all Archbishops Bishopsi Dukes Earles Vicounts and Barons and to all liege men of the County to be ayding unto him in that which to his office appertaineth And therefore by intendment no person whatsoever can resist the execution of the said writ of the King Also the Sheriffe may by his discretion levie three hundred men if need be to aid him in that behalfe Cromptons Justice 134. 3. H. 7. 1. Cookes 5. part 71. b. The words of the great Charter of the Forrest in the eleventh Chapter are as followeth Every Archbishop Bishop Earle or Baron comming to us at our commandement and passing by our Forrest it shall be lawfull for him to take one beast or two by the view of the Forrester if he be present or else he shall cause one to blow a Horne for him that he seeme not to steale our Deere This statute doth speake but of Archbishops Bishops Earles and Barons yet if a Duke Marquesse or Viscount which be Lords of Parliament be comming towards the King by his commandement they also shall have the benefit of this article So if the King send to any of the Lords aforesaid to come to his Parliament or send to him by writ of Subpoena to appeare in the Chancery before his Councell or send for him by his missive or by Messenger or Serjeant at Armes in all these cases he shall have the benefit of this statute because they came at the Kings commandement The same Law is if a Scire facias goe out of the Chancery or Kings Bench to a Lord of the Parliament but if such processe goe forth for a Lord to appeare before the Justices of the Common Pleas or before the Barons of the Exchequer and he commeth upon that he shall not have the benefit of the statute for he doth not come unto the King and the words be veniens ad nos and all the processe which are made out of the Chancery and Kings Bench are quòd sit coram nobis and so are the Processe out of the Star-chamber Also Lords which come to visite the new King after the death of his Father though not sent for shall have the priviledge and so note this statute is a warrant dormant to such Lords which is also to be understood as well of their returning homewards as of their comming towards the King Manwood Forrest Lawes cap. 181. Cromp Courts 167. b. Note this statute doth give licence to kill or hunt in the Kings Parks though the letter of the statute be transientes per forrestam nostram Passing by our Forrest Cromptons Court 168. Note in certain cases the Law doth give priviledge to the Sons or Brethren of Noblemen though themselves be not of that degree Vide 21. H. 8. cap. 13. 7. E. 6. cap. 5. CERTAINE CASES WHEREIN A LORD of the Parliament hath no PRIVILEDGE THe King may by his absolute power commit a Nobleman to prison durante beneplacito suo from whence he cannot be discharged by bail or mainprise or by the common writ de homine replegiando And by the same power it is if a Noble person bee committed to prison by the Kings Councell for they are incorporate to his Highnesse and do command as with the Kings mouth And the same law is if a Noble be committed to prison by the absolute commandement of the Kings Judges sitting in their places of Judicature Stamf. lib. 2. cap. 18. fol. 72. 1. as you have before when the Prince himself was committed by the chiefe Justice sitting in the Kings Bench and hee was not baileable Also if a Capias and an Exigent may bee awarded by the Iustices out of their ordinary Jurisdiction against such persons upon an Inditement for Felony or Treason as common experience sheweth The statutes of Praemunire are 27. E. 3. cap. 1. 16. R. 2. cap. 5. upon which statutes an Abbot which was a Lord of the Parliament was impleaded and he did pray priviledge to appeare by an Atturney and by the rule of the Court he could not because the statute is generall and against it but by speciall writ out of the Chancery he might And so in case where he doth pray to be received For if a Lord of the Parliament holding lands of another in Fee simple doth forbeare or with-hold to doe and pay his services due to his
of one and twenty yeares he shall be in ward but if the King had made him Knight in the life of his Father he should not have beene in ward after the death of his Father neither for the lands descended or for his marriage though he be within age Cooks 6. part 74. in Druries case Nobility and Lords in reputation onely THere are other Lords in reputation and appellation who neverthelesse are not de jure neither can they enjoy the priviledge of those of the Nobility that are Lords of the Parliament The sonne and heire of a Duke during his fathers life is onely by curtesie of speech and honour called an Earle and the eldest sonne of an Earle a Baron but not so in legall proceedings or in the Kings Courts of Iustice Brook Treason 2. But the King may at his pleasure create them in the life of their Ancestors into any degree of Lords of the Parliament Cook 8. part 16. b. A Duke or other of the Nobilitie of a forraigne Nation doth come into this Realme by the Kings safe conduct in which the Kings said Letters of Conduct he is named Duke according to his Creation yet that appellation maketh him not a Duke c. to sue or to be sued by that name within England but is onely so reputed But if the King of Denmark or other Soveraigne King come into England under safe conduct he during his aboad in England ought to bee stiled by the name of King though hee have not merum imperium out of his owne Kingdome yet he shall retaine honoris titulos Cook 7. part 15. b. sequentia All the younger sonnes of the Kings of England are of the Nobility of England and Earles by their birth without any other Creation and onely Lords in reputation And if an English man be created Earle of the Empire or of other title of honour by the Emperour he shall not beare the title in England and therefore is an Earle onely in reputation A Lord of Ireland and Scotland though he be a Postnatus is not a Lord in England in legall Courts of Iustice though he be commonly called and reputed a Lord. NOBLE VVOMEN ALthough Noble women may not sit in Parliament in respect of their sexe yet they are in the law Peeres of the Realm and all or most of the Prerogatives before mentioned which to Noblemen are belonging doe also appertaine to them Cook 8. part 53. But the opinion of some men hath been that a Countesse Baronesse or other woman of great estate cannot maintaine an action upon the statute de scandalis Magnatum because the statute of 2. R. 2. cap. 5. speaketh but of Prelates Dukes Earles Barons or other Nobles and other great men of the Realme and of the Chancellour Treasurer Clarke of the Privie Seale Steward of the Kings house Iustice of the one Bench or of the other great officers of the Realm by which words they conceive the meaning of the makers of that statute was onely to provide in that case for Lords and not for women of honour Crompton Justice of Peace 45. b. Also if any of the Kings servants within his Check-roll doe conspire the death of any Noble man it is not felony within the compasse of the statute 3. H. 7. cap. 13. Honourable women are of three sorts By creation by Descent or by Marriage King Henry the eighth created Anne Bullen Marchionesse of Pembrook and so may the King create any woman into any title of honour as to his Highnesse shall seem good As the King by by his Letters Patents openly read in the Parliament did create Widow the sole daughter of late Baron of Abergavenny Baronesse De le Spencer Cambden 63. 6. Noble women by descent are those to whom either the lands holden by such dignity do descend as heir and they are said to be honourable by tenure or those whose Ancestors to whom they are heires were seised of an estate descendable unto them in their titles of Dukedomes Earldomes or Baronies or those whose Ancestors were summoned to the Kings Parliament for thereby also an inheritance doth accrue to their posterities Noble women also are those who do take to their husbands any Lord or Peere of the Realme although they of themselves were not of any degree of Nobility Fortescue de laudibus legum Angliae fol. 100. Question and doubt hath been made whether if a man be summoned to the Parliament and afterwards die without issue male the dignity and title of honour may descend to the heire female and many arguments have beene made pro contra in that which at this time â— doe purposely omit because I have before discoursed thereof in the title of Barons in this Treatise Concerning the title of honour descendable to the heire female by reason of a tenure in her Ancestor there need no more doubt to be made than of offices of honour the which doe much import the publike wealth and being of estate of inheritance doe descend to the heire female if there be no heire male as the office of high-Constableship of England challenged in the time of H. 8. by the Duke of Buckingham and judged by the advice and resolution of the Judges as by a note of that case extant whereof my Lord Dyer in his Reports hath a memoriall is most evident Dyer 283. b. Kellaway 6. H. 8. 170. b. which descended to the daughters of Humphrey de Bohun Earle of Hereford and Essex as afore is declared the office of a Lord Steward descended to Blanch daughter of Henry Earle of Lancaster in whose right John of Gaunt her husband enjoyed the same The like may be said of the office of Earle Marshall which descended by an heire female unto the house of Norfolk all which offices are as unfit to be exercised by a woman as it is unfit for a woman to be summoned to the Parliament as Baronesse by writ as before is written And when the title of honour doth descend to a woman if question in Law doe arise betweene the noble woman and any other person whether she be of that degree of noblenesse or no the issue shall be tried by the Record thereof and by the Kings writ it shall be certified and not by a Jury of twelve men even as it should be in case her Ancestors had beene party Cooks 6. part 53. 7. part 15. Although the Lawes of this Realme regularly doe make all the daughters where there are no sonnes equally to inherit Lands and Tenements and to be but one heire to their Ancestor yet it is not so in the descent of dignities and titles of honour for inheritances concerning matters of honour being things in their nature entire paticipating of superiority and eminency are not partable amongst many and therefore must of necessity descend unto one and that is to the eldest daughter sister aunt or cosin female inheritable where there is no heires males that may lawfully challenge the same and so in
titul nosve dignitot 33. See in Cooks 8. parts 156. John Stile is bound by obligation to W. B. the obliger is afterwards made into a title of honour or a Knight the Bond is forfeited W. B. by his Atturney draweth a note or title for an originall according to the Defendants degree although it vary from the specialty as it ought to be made by the Statute but the Cursitor mistaking did make the originall onely according to such addition as was specified in the obligation omitting his degree of dignity and the entry of the Capias alias plures was according to the said Originall bnt in the Exigent and Proclamation and in the Entry of it the Defendant was named according to his degree of dignity upon a Writ of Errour after judgement doubt was if this might be amended in another Court then where the originall was made Injuries done to the name and honour of a Nobleman IN the second yeer of Richard 2. in the first Chapter It was inacted that counterfeiters of false news and of horrible and false lyes of Prelates Dukes Earls Barons and other Nobles and great men of the Realm and also of the Chancellor Treasurer Clerk of the Privy Seal Steward of the Kings House Justices of the one Bench or of the other and of other great officers of the Realm of things which by the said Prelates Lords Nobles and Officers aforesaid were never spoken touched nor thought in great slander of the said Prelates Lords Nobles and Officers whereby debates and discords might arise betwixt the said Lords and Commons which God forbid and whereof great perill and mischief might come to all the Realm and quick subversion and destruction of the said Realm if due remedy be not provided It is straightly defended upon grievous pain for to eschew the said dammages and perils that from henceforth none be so hardy to finde say or tell any false news lyes or other false reports of Prelates Lords and of other Officers aforesaid whereof discord or any slander might arise within the said Realm and he that doth the same shall incurre and have the pain ordained thereof by the Statute of Westminster in the first Chapter 33. which will that he be taken and imprisoned till he have found him of whom the word shall be moved And further By another Statute made in 22. Richard 2. cap. 11. It was moreover enacted That when the said offender is taken and imprisoned and cannot finde him that spake the words then he shall be punished by the advise of the Councell And to the intent that such evill disposed persons which by their lewd speeches and slanderous words or reports do endeavour to break or disquiet the peace of the Realm might the sooner be inquired found out and punished by a Statute made Anno 2. Phil. Mary It was further established That the Justices of Peace in every Shire City or Town Corporate within the limits of their severall Commissions shall have full power to examine hear and determine the causes aforesaid in the said two Acts of Edward the first and Richard the second specified and to put the said two Statutes and every branch in them contained in due execution that condigne punishment be not deferred from such offenders and besides the afore mentioned penalties assigned to be inflicted upon transgressors by the aforesaid Statutes every Nobleman and great Officer of the Realm against whom any scandalous words false news or lyes be spoken may prosecute against the offender an action de scandalis magnatum and recover dammages against him and in like sort may every inferiour person for any such like words of infamy against him persue an action upon his cause against the offender and recover his dammages And if any person shall exhibite a Bill into the Starrechamber against a Nobleman or other and amongst other things charge him with murther piracy robbery or other fellony or to be a procurator thereof or accessary thereunto or with any other offence which is not examinable in the said Court the defendant in the said Bill may prosecute against the complanant therein an action upon the cause and recover his dammages for his Bill was exhibited of malice by the complainant to remain of record in the said Court to the infamy and slander of the defendant and not punish him for the said offences suggested in the said Bill by a course of Justice seeing the Court of Starre-chamber hath no authority to inquire of or punish the same offence but if the complainant did suggest in his Bill of complainant any matter against the defendant which is examinable in the said Court then no action upon the case is maintainable against him by the defendant therefore though the matter surmised be meerly false for it is done in course of Justice sub judice lis est whether the matters suggested be true or false untill they be proved And in former ages speeches tending to the reproach of others were so odious that King Edgar Le. 4. ordained that his tongue should be cut out which did speak any infamous or slanderous words of another Dyer 285. and in Kelway 13. Henry 7. 27. Cooks 4. part 14. Book 2. Richard 3. 9. 6. In which Book you may read at large where the Lord Beauchampe did sue an action upon the Statute of the 2. Rich. 2. cap. 5. de scandalis magnatum against Sir Richard Crafts because he did sue a Writ of forging of false deeds against the said Lord Beauchampe and the defendant doth justifie the said slander by the use of the said Writ c. And the demurrer was good and out of the intendment of the Common Laws or Statute Laws concerning slanderers for no punishment hath been at any time appointed for suits in Law though the matter be false and for vexation only other then amerciaments or fine to the King and therefore the plantiff is sufficiently discharged against the said Lord Beauchampe not only for the time that the suite is depending but after the action tryed or otherwise ended yea though the Plantiff were non-suited or by other means it went against him for if actions of revenge upon the event it would terrifie and discharge many who have just cause to complain for fear of infinite vexations for the event and successe of suits and matters in action is uncertain Cooks 6. part 40. a. There is another foul puddle that ariseth from the same corrupt quagmire and distilleth out of a heart likewise infected with malice and envy but is divised and practised by another mean then the former which is by libelling secret slandering and defaming of another for this privy backbiter doth not by words impeach his adversary in so manifest and turbulent manner as the collerick menacer in his fury doth seeming to sit quietly in his Study he doth more deeply pinch him and infixeth a more durable wound into his fame and credit then the other boysterous fellow doth in his
generalty answerable to every kinde thereof in this manner A Baron is a dignity of Nobility and Honour next under the Vicount above the Banneret and Valvasor adorned with the title of Lord holding with us the same place as did the Patricii or Senators amongst the Romans The Books of Law do make difference between Dukes Earls Marquesses and Vicounts which are allowed names of dignity and the Baron For they affirm that Baron needs not to be named Lord or Baron by his Writ But the Dukes Marquesses Earls or Vicounts ought to be named by their names of dignity 8. H. 6. 10. 32. H. 6. 3. Cook 8. parts 53. b. a. part Pigot Lambert l. 4. 488. Cambden fol. saith that our common Lawyers do not allow a Baron to be one of the degrees of the Nobility Neverthelesse I do take the Books are to be understood of the Barons by Tenure or Barons by Writ only For the title of a Baron by Patent is in his Letters Patents under the great Seal adorned and named by the stile of Status gradus dignitas and therefore as requisit to be named as such dignities are a parcell of the Name of the possâ—ssor as well as the Stile and Title of a Duke Maâ—quesse Earl and Vicount c. And although there may be conceived this difference last mentioned between the Baron by Tenure or Writ and the Baron by Patent yet they being all Members of the higher House of the Parliament they are thereby made equally Noble Honorable and Peers of the Realm as they are Barons only without any other distinction that I have observed and thus much concerning the three degrees of Barons within this Realm may suffice to be said in generall upon this occasion for the better understanding and direction of the rest to be handled The Etymology and Derivation of the Name Baron MAny Wits have laboured to yeeld the Etymologie and signification of this word wherein following their own fantasies there hath been bred much variation of opinion As for Etymology of words I agree with him that saith That it is Levis fallax plerumque ridicula for saepenumero ubi proprietas verborum attenditur sensus veritatis amittitur It may have some use and serue a turn in Schools but it is to light for judgements in Law and Seats of Justice Cook 7. part l. 27. b. Thomas Aquinas setteth down a more certain rule in vocibus videndum noâ— tam à quo quam ad quid sumitur and words should be taken sensu currenti for use and custome is the best expositor of Laws and words quem penes Arbitrium jus norma loquendi In the Lord Chancellors Speech in the Case of Postnati fol. 61. And forasmuch as the word may aptly import men of strength Bracton as before appeareth not unaptly useth this signification thereof in these words Sunt alii potentes sub Rege quidicuntâ—r Barones boc est Robur belli The Antiquity of the Dignity of Barons and the sundry uses of the Name IT seemeth that the dignity was more ancient then the Name for in the ancient Constitutions Feodall of the Land there is no mention made of the name of Barons howbeit the learned Interpreters do understand that dignity to be comprehended under those which are there called Valuasores Majores and afterward called Capitanii for of the Valuasores there were three kindes Valuasores Majores Gve Capitanii which are thought to be the Barons Valuasores minores and valuasini or valuasores minimi The like dignity within this Realm before the Conquest had those which of the English Saxons were called Tbanes whereof read Lambert in his Preambulation of Kent Fol. 366. And the Book of Dooms-day remaining in the treasury of the Exchequer Neverthelesse the name of the Baron was not much used within this Realm untill the Norman Conquest and after that the word Baron seemeth to be frequented in this Realm in lieu and place of the word Tbane among the English Saxons for as they in generall and large signification did some time use the same to the sence and meaning and to import a Free-man borne of a free parentage or such like so did the Normans use the word Baron and therefore called their free Citizens of their best esteemed Cities and free Burgesses of their best esteemed Towns and Borroughes by the name of Barons And so the Citizens of London Barons of London in divers ancient Monuments of whom also Bracton maketh mention Fol. 272. a. Also there are divers Charters wherein mention is made of such like Barons as the Barons of Worwick in the Record of Doomsday and even to our time the free Burgesses of the five priviledged Ports are called Barons of the Cinque Ports And for that also divers of the nobility of Barons as well spirituall as temporall did in ancient time sit in the Exchequer to determine the difficulties and doubts there arising The Judges of that Court have been from most ancient time called and yet are Barons of the Exchequer Moreover the English Saxons had two kindes of Tbanes the like hath been observed as touching Barons for the Kings and Monarchs of this Realm have had their immediate Barons being the Peers of the Realm and in like manner certain other of the Nobility especially Earls which have had jurisdiction Palatine and Earls Marchers whose Countries have confined upon the coasts of the enemy have had under them for their better defence a kinde of Barons As namely under the County Palatine of Chester were these Barons the Barons of Halton Mounthalt Malebanck Shipbrooks Malpase Massa Rinderton Stockport c. The Earldom of Pembrook in Westwales being first erected by Arnulpâ—us Mountgumory that conquered part of that Country And therefore the Earls thereof being an Earl Marcher had also under him his Barons as appeareth by the Parliament Rolles 18. Ed. 1. It hath been therefore a common opinion received that every Earldom in times past had under it ten Barons and every Barony ten Knights Fees holden of him and that those that had fourteen Knights Fees were usually called and promoted to the dignity of Baron Also Lords and Proprietors of Mannors were in respect of them oftentimes in ancient remembrance cal'd Barons but abasiveth and the Courts and their Mannor called thereof Courts Barons of which Glamvile speaketh Fol. 67. l. 8. c. 11. It resteth now for the more explanation of the use of the name of Baron that we call to remembrance that which hath been before spoken that the custome of our Countrie is that if a Baron be created an Earl the eldest son of the said Earl in the life of his Father taketh upon him the name and title of the Barony although he want the Priviledges belonging to a Baron The tenor and proper signification of the word Baron BArons honourable are of three kinds by Tenure by Writ by Creation As for Barons by prescription which some men have spoken of they are intended
Kt Iohn de Vere Iohn de vere Earle of Oxford by vertue of the entaile Iohn de Vere William Lord Pagâ—t of Bewdesert was seised in his demesn as of fee of the Baronies of Langden and Hawood and of and in the Mannours of Bewdesert Landen c. And being so seised by fine quinto Mariae entailed the Baronies and Mannours aforesaid to him and his heires males of his body issuing And afterward Anno 5. Eliz. died leaving Henry his sonne next heire male Which Henry entred into the Baronies and land aforesaid by vertue of the foresaid fine and died thereof seised 11. Eliz. leaving Elizabeth his onely daughter and heire After whose death Thomas Paget brother and heire male of the said Henry entred into the Baronies and Mannours aforesaid and was summoned to the Parliament by virtue of the aforesaid fine William Lord Paget of Bewdesert died anno 5. Eliz. Henry Lord Paget dies An. 11. Eliz. Elizabeth his daughter and heire Thomas Lord Paget by force of the entaile after the death of his brother Robert Lord Ogle entred into the Barony of Bothal and Ogle with divers other Mannors and Lands in the County of Northumberland by conveiance which was to himselfe for terme of his life the remainder to the heires males of his body begotten and he took to his wife Dorothy Witherington by whom he had issue Robert Ogle his eldest sonne and Margery his daughter married Gregory Ogle of Chippington And the said Robert the father after the death of the said Dorothy his wife took to his second wife Ioane Ratcliffe by whom he had issue Cutbert his second sonne and after died After whose death Robert the sonne was Lord Ogle from whom the same descended to Cutbert being brother of the halfe blood by vertue of the said entaile and not to the said Margery nor unto her heires being of the whole blood unto the said Robert the sonne Robert Ogle Lord Ogle Dorothy daughter of Henry Withrington first wife Robert Ogle L. Ogle died without issue Margery maried to Ogle of Chippington Cuthbert Ogle of Chippington Joan the daughter of Cuthbert Ratcliff Kni. the second wife Cuthbert Ogle L. Ogle died Margery Ogle married Robert Witherington Thomas Ogle Moreover concerning the second objection it is very â—rue that many ancient Mannours which were anciently holden by Barony as the head or parcell of a Barony are now in the hands of Gentlemen meane and un-noble by blood who neither doe nor may claime any Nobility or honour thereby But the reason that some former gifts made by the Kings Majesties progenitouâ—s the supreme Soveraignes of this Realme to such as they honoured in augmentation and support of their honour and by honourable services should thus come to the hands of mean personages are twofold First for that such Mannours have been alieued by licence unto such persons before spoken whom such possessions alone cannot make noble Secondly and that was usually such Mannours as were holden by Barony have upon divers eâ—cheasons and occasions come to the Crowne by way of revertor or eschete or forfeit by meanes whereof the ancient tenures derived from the Crowne by reason of those lands so comming again to the Crown were extinct and after the said lands were given or conveyed to others reserving other services than those which at the first were due for the same so that it was no marvaile to see that some Mannours anciently holden by Barony or other honourable service should now bee holden in soccage or by other triviall or meane tenure As to that which was thirdly objected that some ancient Barons there are which have aliened and sold away those Castles and Mannours of the which they have and doe beare the name and dignity and yet neverthelesse themselves doe still retaine and keep lawfully their estate dignity and degree of a Barâ—â— and have been and are called to the Parliament such alienation notwithstanding To this I answer That it is true but it proveth nothing against the former resolution And therefore for better satisfaction of this observation it is to be considered that such Barons either be originally Barons by writ or Barons by tenure Barons by writ in this respect now in hand are of two kindes For either in such writ whereby they or their Ancestors were at first summoned they were named onely by their owne names or else there was addition given them of the principall place of their aboad which was done either for distinction sake to sever them from some honourable person of the same surname or else to give them such honourable title by addition of the place which place notwithstanding was not holden by Barony And therefore if such a Baron doe alien away that place which anciently was his seat he may neverthelesse retain his honourable title in respect had of such a place But if a Baron by tenure doe alien away the honourarable Castle or Mannour holden by Barony unto a mean person not capable of honour and that by sufficient licence so to doe and after the alienour which made such alienation be called by writ to the Parliament under the title or as Baron of such Honour Castle or Mannour so aliened he is not any more a Baron by tenure in respect of that place for that he hath aliened that away which he held by Barony but thenceforth after such writ of summons he is become a Baron by writ and may retaine the name of Baron by title of the place as Baron by writ such alienation notwithstanding forasmuch as the writ directed at the pleasure of the Prince doth give unto him that addition of name and dignity And thus much touching the resolution of the said question and satisfaction of the said objections and of Barons by tenure BARONS by writ which is the second kind of Barons mentioned in the former Divisions of BARONS A Baron by writ is he unto whom a writ of summons in the name of the King is directed to come to the Parliament appoinâ—ed at a certaine time and place to be holden and there with his Highnesse the Prelates Nobility and Peeres to treat and advise touching the waighty affairs of the Realme Tâ—e forme of which writ is much to the effect of the writ before mentioned in the title of Earle which kind of writ is as well directed to the Barons by tenure as Baâ—â—â—â— by creation Patent or otherwise But those which 〈◊〉 Barons by tenure nor by Patent and have onely 〈◊〉 writs are therefore called Barons by writ and upâ—◠〈◊〉 of such writ and place taken accordingly in 〈◊〉 ought to enjoy the name dignity and hoâ—â— of a Baron 〈◊〉 â—ouching the antiquity of Barons by writ onely and â—â—eir first institution I finde little or no mention before â—he time of H. 3. And therefore I conceive that either the first of all or at least that the first frequent use of such Barons was had and devised 49. H. 3. in case of necessity and upon a lamentable