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 lawfull 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 goodnesse 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 sâ—cond 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 cousin 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 our Councell in the Principality and Marches of Wales and also ouâ— 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 out 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 Cooks 8 part in the pleading Habend ' et tenend ' eidem duci et ipsius et heraed ' suorum Regum Angliae siliis primogenitis et dicti loci ducibus in Regno Augliae hereditatoria successoris To have and to bold 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 apparant of the King of England
Patents doe grant and give licence for us and our heires so much as in us lyeth to the said Edmond to dispose and give all his Manours Lands Tenements and Knights fees with their appurtenances and Advowsons of Churches Abbies and Priories and Hospitalls which he holdeth of us in chiefe to whom he pleaseth To have and to hold to him and his heires for us and our heires by the service thereof for ever By which Grant the said Edmond gave all his Lands and Tenements to one William sonne of John Deyncourt and to his heires of his body comming And the said Edmond dyed the last yeere of Edward the second and the said William in the time of Edward the third was summoned among other Barons to the Parliament by vertue of the same gift untill his death which was Anno 3. E. 3. It appeareth by divers offices in the time of King Edward the third that John Handlow in the right of Maud his wife was seized of the Mannour of Holgate Acton Burnell c. for terme of her life remainder to Nicolas Handlow alias Burnell sonne to the said Maud and John by a fine in the Court levied and that John Lovell was next heire of the said Maud and her first-borne sonne by her first husband and afterwards the said Nicolas was summoned among other Lords to the Parliament by reason of the fine aforesaid and not the said John Lovel who was next heire Edward Burnell Baron of Holgate Philip Burnell Baron of Holgate Maud Burnell heire to her brother John Lovell the first husband John Lord Lovell Iohn Lord Lovell John Handlow second husband Nicolas Handlow Baron of Holgate Hugh Handlow alias Burnell Baron of Holgate Thomas de Beauchamp the elder Earle of Warwick by a fine levied 18. E. 3. entailed the Mannour and Castle of Warwicke with divers other possessions to himselfe for terme of his life the remainder whereof to Guy his eldest sonne and to the heires males of his body issuing for want of such heires the remainder to come to Thomas Beauchamp brother to the foresaid Guy and to his heires males of his body issuing c. And afterwards the said Guy died without heires male of his body leaving two daughters and heires living afterward the said Earle dyed and the said Thomas the sonne entred into the Castle and Mannour aforesaid with other the premisses and was Earle of Warwick by reason of the entaile aforesaid notwithstanding that Katharine daughter of Guy and next heire to the said Thomas the elder was living 30. yeers after his death Thomas Beauchampe Earl of Warwick Guy de Beauchampe first son obiit ante patrem 30. E. 3. Katharine lived in 21. R. 2. Elizabeth Tho. de Beauchampe Earle of Warwicke by reason of the entail obiit anno 1. H. 4. Rich. Beauchamp Earl of Warwick obiit 17. H. 6. William Beauchampde Beauchamp L. of Aberganey obiit 12. H. 4. Richard de Beauchamp Earl of Warwicke obiit 9. H 5. Richard Earle of Arundell by a fine 21. E. 3. entailed the Castle Towne and Mannor of Arundell with other Lands to him and to his heires Males begotten of the body of Ellenor his wife By vertue of which entaile John Lord Matrovers Earle of Arundell after the decease of Thomas then Earle which died without heire Male although the sisters of the said Thomas possessed divers Lands and honors or the which the said Thomas died seised in Fee simple war Earle of Arundell Richard Earle of Arundell Richard Earle of Arundell obiit anno 21. R. 2. Thomas Earle of Arundell obiit anno 3. H. 5. Elizabeth married to Tho. Mowbray Duke Norfolk Married to Lewthall Jane Lady of Abergany John Arundell Knight Lord Matrovers John Arund Lord Matrovers obiit 6. H. 4. Io. Arund L. Matrovers obiit 9. H. 5. Io. E. of Arun. by reason of the entail Thomas Lord Barkley was seised in his demesne as of fee of the Castle of Barkley and Mannour c. and a fine levied in the Kings Court 23 E. 3. of the aforesaid Castle Mannour c. to him for terme of his life remainder to Morrice his sonne and to the heires males of his body issuing with other remainders as aforesaid the which said Morrice had issue Thomas Lord Barkley and Iames Barkley Knight which Iames dyed in the life of his brother leaving Iames his sonne and heire living After the said Thomas Lord Barkley died Anno 5. H. 5. leaving Elizabeth his daughter and heir married to Richard Earle of Warwick after whose death Iames his Nephew on the brothers side entred into the Lands Castles and rem ' aforesaid by virtue of the entaile and was summoned among the Barons to the Parliament as Baron of Barkley 9. H. 5. which Elizabeth died in 1. H. 6. Tho. Lord Barkley Morrice Lo Barkley Tho. Lord Barkley Eliz. married to Rich Earle of Warwick Sir Ia. Barkley died before his brother Iames Lo. Barkley by reason of the entaile Thomas Lord Delaware died seised in his demesne as of fee taile to himselfe and to the heires males of his body issuing by reason of a fine levied in the time of his ancestors of the Barony Delaware with divers other lands in other counties and died 5 H. 6. without heires of his body and Reignold West Knight of the halfe blood was next heire by reason of the entaile aforesaid and was summoned to the Parliament by the name of Reignold Lord Delaware Knight although Iohn Griffith was heire generall of the aforesaid Thomas Delaware being of the whole blood as appeareth by the genealogie ensuing Iohn Lord Delaware son of Roger. Iohn Lord Delaware Elisabeth daughter to Adam L. Wels. Iohn Lord Delaware died without issue Thomas Lord Delaware died without issue Roger Lord Delaware Elisabeth daughter to the Lord Mowbray his second wife Iohn Griffin heire generall to the Lord Delaware Sir Reignold West Lord Delaware by the entail Katharine married to Nicolas Latimer Katharine married to Griffin Iohan married to Tho West Knight John de Vere Earle of Oxford seised in his demesne as of Fee taile to him and his heires Males of his body issuing of the honour and county of Oxford with divers other Lands Anno 18. H. 8. died without heires of his body and his three sisters were his next heires generall but Iohn de Vere his next heire Male as appeareth was Earle of Oxford by reason of the said entaile and none of the three sisters obtained Dignity Richard de Vere Earle of Oxford died 4. H. 5. Iohn de Vere Earle of Oxford died 1. E. 4. John de Vere Earle of Oxford died without issue 4. H. 8. George de Vere Knight Iohn de Vere Earl of Oxfo died without issue 18. H. 8. Eliz. married to Sir Antho Wingfield Knight Vrsula married to Edm. Knightley Esq Dorothy married to Nevill Sir Robert de Vere Kt. Iohn de Vere Iohn de Vere Iohn de Vere Earle of Oxford by vertue of the entaile William Lord Paget of
same Pedegree of the said Lord Dacres it is expressed that Thomas sometimes Lord Dacres had issue Thomas his eldest son Ralph his second sonne and Humphrey his third sonne Thomas the eldest dyed in the life time of his Father having Issue Ioan his daughter and heire who was marryed unto Sir Richard Fines Knight And after Thomas Lord Dacres her Grandfather and Father unto the said Sir Ralph and Humphrey dyed After whose death Henry 6. by his Letters Parents bearing date at Westminster 7. Novem. Anno 7. regni reciting the said Pedegree and Marriage doth by his Letter a Pattents accept declare and repute the said Richard Fines to be Lord Dacres and one of the Barons of his Realme But afterward in the time of Edw 4. the said Humphrey Dacres after the attaindor of the said Ralph and himselfe by an Act of Parliament which was in 1. Ed. 4. and after the death of the said Ralph and after the reversall of the same Act by another Act 12. Edw. 4. the said Humphrey made challenge unto the said Barony and to divers Lands of the said Thomas his Father whereupon both parties after their title had been considered in Parliament submitted themselves unto the Arbitrement of King Edw. 4. and entred into Bond each to other for the performance thereof Wherupon the said King in his award under his Privie seale bearing date at Westminster 8. April Anno regni 13. did award that the said Rich Fines in the right of Ioan his wife and the Heires of his body lawfully begotten should be reputed had named and called Lord Dacres and that the said Richard Fines and the Heires of his body by the said Ioane begotten should keepe have and use the same state and place in every Parliament as the said Thomas Dacres Knight late Lord Dacres had used kept c. that the heires of the body of the said Thomas Dacres Knight late Lord Dacres lawfully begotten should have and hold to them their Heires the Mannor of Holbech And furthermore the said King did award on the other part that the said Humphrey Dacres Knight and the Heires males of the said Thomas late Lord Dacres should be reputed had named and called the L. Dacres of Gillesland And that he and the heires males of the said Thomas then late Lord Dacres should have use and keepe the place in Parliament next adjoyning beneath the said place which the said Rich Fines Knight Lord Dacres then had and occupied and that the heires of the body of the said Ioan his wife should have and occupie And that the Heires males of the said Thomas Dacres late L. Dacres should have to them to the heires males of their bodies begotten the Mannor of Jothington c. And so note that the name of the ancient Barony namely Gilestand remained unto the Heire male unto whom the land was entailed Moreover this is specially observed if any Baron by writ doe dy having none other issue then Female and that by some speciall entail or other assurance there be an heire male which doth enioy all or a great part of the lands possessions and inheritances of such Barons deceased the Kings of this Realme have used to call to the Parliament by writ as Baron such heire male omitting the Husband or issue male of such heire female and this also appeareth by a notable controversie in the time of Henry 7. betweene Sir Robert Willoughby Lord Brooke and Richard Lord Latimer for the Barony of Latimer which in effect was The said Lord Brooke did challenge the Barony of Latimer as cosen and Heire to Elizabeth his great grandmother who was sister and heire to Iohn Nevill Lord Latimer who died without issue and hereupon exhibited a Petition to Henry 7. in Parliament whereto Richard then Lord Latimer was called to answer because he then enioyed the said title and dignity The said Richard Lord Latimer by his answer did shew that it was true that after the death of the said Iohn Nevill Lord Latimer dying without issue the said Elizabeth was the sister and next heire and married unto Sir Thomas Willlonghby Knight second son of the Lord VVilloughby but Henry 6. for that the said Iohn Nevill was dead without issue and that the next heire was female did therefore call to the Parliament George Nevill Knight second son of Ralph Earle of Westmerland to be Lord Latimer as Cozen and next heire male of the said Iohn Nevil Lord Latimer which George was grandfather of the said Richard Lord Latimer namely Father of Henry Lord Latimer Father of the said Richard In debate of which cause the question now in hand whether a Barony by writ may discend unto the heirea semales was advisedly considered of by the said King and his Nobility in Parliament and in the end adjudged with the said Richard Lord Latimer which President doth afford us two Iudgements in this point one in the time of Hen. 6. when the writ was directed to the said Sir George Nevill whereby he was summoned as Lord Latimer to the Parliament and as heire Male and not the said Sir Thomas Willoughby Knight husband of the said Eliza. heire male And the second judgement was given in the time of Henry 7. whereby the Barony was adiudged vnto the said Richard Lord Latimer comming of the speciall heire male against the said Lord Brooke descended of the generall heire male But here the President before remembred of the Barony of Dacres may be objected to incounter this confusion For there was an heire female martied unto Sir Richard Fines who by the declaration of Hen. 6. was Baron of Dacres in the right of his wife and there was also Ralph and Humfrey the heires males before whom the heire female was preferred by the censure of Henry 6. and Edward 4. This objection is easily answered For although Hen. 6. through the Princely favour which hee bare unto Sir Richard Fines had declared him to bee Lord Dacres in the right of his wife yet notwithstanding did Ralph Dacres being heire male unto the then Lord Dacres deceased beare also the name of 〈◊〉 Dacres and by that name was attainted in Parliament Wherefore the reason why the heire male could not bee regarded was the said attainder of the said Ralph and Humfrey his brother and therefore when Humphrey 12. Edw. 4. laboured to have the said attainder reversed he submitted himselfe vnto the Arbitrament of the King who to satisfie both Competitors because both had well deserved of him after he had admitted them to his favour he allowed the one to be Lord Dacres the other to be Lord Dacres of Gillesland thus much concerning the second point whether a Barony by writ may discend unto the heire female or not As concerning the third point admitting such discent to bee to the heire female when there is no heire male at all that may claime the same for then doth this question take place whether the husband of such heire
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 Confull 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 castra 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 gelded and cut 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 magnae dignitatis men 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 past 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 retained 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 Knight 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 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 Statute 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 20l of Land holden of the King without mean in soccage 20s and no more and so rata pro rata of the Lands in soccage And for Lands of the tenure 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 or imagine the death
peradventure he after is willing or dareth to do in an age The Menacer layeth open his Name and his grief and standeth in the face of his enemy and discovereth the corrasive of his and doth thereby give a forewarning to his adversary to provide for and defend himself Note That if a man do write unto another scandalous words and reports touching a Nobleman and this Letter be signed with his Seal and subscribed with his name yet upon this Letter shewed upon evidence the Nobleman may recover dammages in an action de scanlis magnatum whereof you may see two Presidents in Cromptons Iustice of Peace 85. But this secret Canker the Libeller concealeth his name hideth himself in a corner and privily stingeth him in fame reputation and credit who then neither knoweth from whom or for what cause he receiveth his blows nor yet hath means therein to defend himself and whether his libelling secret slandering or defaming be against a publike Magistrate or private Person Yet it may tend to the breach of the peace to the raising of quarrels and effusion of bloud But if a man do write any matter of defamation to the party himself that is thereby traduced and subscribe and seal the same without other publication done by himself Quaere and so may be a speciall impediment which all good policy endevoureth to maintain for if it be against a publike Magistrate it is a great scandall and offence to the King his chief Magistrates and the whole Government of the Realm to assign such an Officer to rule and govern others who himself is voyd of government and shall deserve to be impeached with such crimes as he shall be taxed with or shall be imputed unto him by such an infamous Libell and if it be but against a private person yet seeing that a Libell or other note of infamy is intended to defame him to tread his honour and estimation in the dust and root out his reputation and credit from the face of the earth to make him a scorn to his enemies and to be derided and despised of his neighbours it doth greatly kindle the wroth of him and of such as be of his kindred and allies and true friendship and urge them to revenge whereupon do often times ensue grudges quarrels frayes combats and man-slaughter Sometimes the malicious defamer powreth out his venome in writing by a scandalous Book Epigram or Rime either in Meeter or Prose Some other times by songs scoffs jests and taunts and divers times by hanging of pictures of reproach signes of shame or tokens of disgrace neer the place the party thereby traduced doth most converse as the picture of the gallows pillory cucking-stool horns or other such like In which cases the Law hath provided that the party delinquent when he is found out and discovered shall be sharply punished For he may be either indicted for the same offence by the ordinary course of the Common-law or else a Bill may be exhibited against him in the Starre-chamber where he shall be punished according to the quality of his demerits by sine and imprisonment and if it be an exorbitant offence then by pillory losse of his ears whipping c. Or the party grieved may have an action of the case against the offender and recover his dammages And in this case it is not materiall whether the Libel be true or false or the parties scandalized thereby be living or dead or be of good name or evill for though the party be defamed and the Libell true be evill yet our good Laws be provided to punish him and such like evill men by due course of Justice after his offence is presented inquired of tryed and proved to his face before lawfull Magistrats thereunto assigned and he is not to be carped accused and condemned in a corner behinde his back by any other private person who in trudeth himself without warrant to be a Censurer of manners and rather seeketh the discredit of the party then then the reformation of his faults for his secret searching into and sifting into other mens conditions diving into their offences and divulging them to their discredits doth convince the offender to be a man of a lewd disposition to have made shipwrack of his conscience and doth brand him during his life with the name of an infamous Libeller or scandalous backbiter Fardinando Pulton Fol. 16. Cooks 5. part 125. And to conclude this matter concerning the wrong done to the name and dignity of a Nobleman this may be added That it is unlawfull for any person to usurpe the Arms of another Cook to the Reader before his third Book Fol. 8. to A. Yea if a Noblemans Coat Armour or Sword or other Gentlemans bearing Arms at the solemnizing of their Funeralls set up in the Church Chappel or Chancell for the honour of the body defunct be taken down by the covetousnesse of the incumbent there pretending them as offerings due to him or if they be defaced by any other such are to be punished grievously as malefactors and in that case the action shall not be given to the Widdow though she be Executrix or Administratix of her husbands goods for such things as serve for the honour of the party deceased are not to be accompted inter bona Testatoris as the goods of the Testator but the heirs shall have the action as the defender of his Ancestors honour Nam cui injuria ei avervat jus to whom the wrong is done right doth belong but the wrong is offered to the house and bloud and therein especially to the heir qui est totius geniturae splendor of the whole kindred and therefore to him attaineth the right of action in the case Viscounts NExt unto Earls or Counts in order followeth the Vicount this is an ancient name of Offiee but a new title of honour and by Henry the first brought in who conferred that title upon John Lord Beamont Barons A Mongst the Nobles and Honourable Barons have the next place and the last of the Rank It now followeth somewhat to speak in generall of the dignity and degree of a Baron First the definition or description of a Baron Secondly The Etymologie of the name Thirdly The antiquity thereof and the divers uses of the name in former ages Fourthly The divisions and considerations of the severall kindes of Barons And lastly A declaration of the divers and sundry priviledges allowed by the Laws of this Realm unto the Barons and Nobility of the same wherein the vulgar and common person hath no participation The Definition or Description of a Baron IT is a rule in Law that definitions in Jure sunt periculosissimae rarium est enim ur non subverti possunt And therefore I do not often finde any definition or a description of a Baron delivered by writers Neverthelesse in this our Common-wealth of England me thinks that a Baron may be described in a generalty answerable to every kinde thereof in
to answere without feare 〈◊〉 then hee shall cause the Clarke of the Crowne to reâ—â— his endictment unto him and aske him if hee 〈◊〉 guilty or not whereunto when hee hath answerâ— not guilty the Clarke of the Crowne shall aske hâ—â— how he will be tryed and then hee will say by Gâ—â— and his Peeres and then the Kings Sergeants 〈◊〉 Atturney will give evidence against him whereunto when the Prisoner hath made answere thâ— Constable shall bee commanded to retire the Prisonâ— from the Barre to some other place while the Lorâ— doe secretly conferre in the Court together and theâ— the Lords shall rise out of their places and consuâ—â— amongst themselves and what they affirme shall bee done upon their Honour without any oath to be 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 youngeâ—â— next him and so of the residue one by one untill hee have asked them all and every Lord shall answer 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 iudgement accordingly 〈◊〉 Stamford Pleas dol Corona 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 weight thereof Cooke Epistle to the 8. part fol. 2. c. 29. beginning thus Nullus liber homo c. nec super eum ibimus neâ— super eum mittimus nisi per legale judicium parvu ' â—â—orum But I take it to be more ancient then the â—â—me 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 answer directly iudgement shall bee given against him as a Traytour convicted and he 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 he may bee mute It appeareth by this Statute of Magna charta that a Peere of the Realme shall be tried by his Peeres onely in case where he is indicted at the Kings suite of treason or fellony for the words of the Statute be We will not passe or sit in judgement upon him but by his Peeres But if an appeale of murder or other fellony be 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 14â— Poulton 188 6. This priviledge hath some restrainâ— 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 be tryed by the Peeres of the Realme but by a jury of Knights and other substantialâ— persons upon their oaths the reasons 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 prohibited by the Common and Ecclesiasticall Lawes to bee Iudges 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 he 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 engage 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 〈◊〉 Duke in the life of his Father though he be called an Earle and it was the case of Henry Howard Earle of Surrey Sonne and Heir apparant 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 Rochester 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 or fellony for the words of the statute be Nec super cum 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. Poulton 118. and so was Fines Lord Dacres tried in appeale 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 make tryall or Enquiry upon their corporall oathes betweene party and party for they may have their writ for their discharge to the Sheriffe Rex Vic ' Com c. quia barones regni
Nobiles non torquentur in quibus plebeij torquerentur nobiles non suspenlantur sed decapitantur and so it is almost growne into a Custome in England by the favour of the Prince for rare is it to have a Nobleman executed in other forme yet Thomas Fines Lord Dacres of the South in 33. H. 8. and Lord Sturton 4. Mar. were hanged Brooke Iury 48. Jn the first yeare of the late Queene Eliz cap. 1. in the Acts of Parliament for the uniformity of Common Prayer c. there is contained this proviso and be it enacted and ordained that all the Lords of Parliament for the third offence above mentioned shall bee tryed by their Peeres and not by any Ecclesiasticall Courts reade the Statute at large At the Common Law it was lawfull for any Nobleman or ignoble to retaine as many Chaplaines as hee would for their Instruction in Religion but by a Statute made 21. Hen. 8. cap. 13. A restraint was made and a certaine number onely allowed to the Nobility and such Chaplaines for their attendance have Immunities as by the Statute at large may appeare viz Every Archbishop and Duke may have sixe Chaplaines whereof every one shall or may purchase Lycence or dispensation and take receive and keepe two Personages or Benefices with cure of Soules and that every Marquesse or Earle may have five Chaplaines whereof every one may purchase Lycence or Dispensation and take receive and keepe two Parsonages or Benefices with cure of Soules and that every Viscount and other Bishop may have foure Chaplaines whereof every one may purchase Lycence and receive have and keepe two Parsonages or Benefices with cure of Soules as aforesaid And that the Chancellour of England for the time being and every Baron and Knight of the Garter may have three Chaplaines whereof every one shall now purchase Lycence and Dispensation and receive have and keepe two Benefices with cure of Soules read the Statute at large And forasmuch as retaining of Chaplaines by Lords of great estates is ordinary and neverthelesse some questions in Law have beene concerning the true understanding of the said Statute J thinke it not impertinent to set downe some subsequent resolutions of the Judges touching such matters If a Bishop be translated to an Archbishop or a Baron to be created to an Earle c. yet within this Act they can have but onely so many Chaplaines as an Archbishop or Earle might have for although he have divers dignities yet he is still but one selfe-same person to whom the Attendance and service â—ould be done so if a Baron be made a Knight of the â—arter or Lord Warden of the Cinque-Ports hee â—all have but three Chaplaines in all sic de simiâ—â—us Also if such an Officer allowed by the Statute to â—â—ve one two or more Chaplaines doe retaine accorâ—ingly and after he is removed from his Office in this â—â—se he cannot be now non-resident or accept of a seâ—ond Benefice if his Compliment were not full â—efore his remaining and yet in that case it behoveth â—â—e Chaplaine to procure a non obstante otherwise â—e may be punished for his non-residency So if an Earle or Baron doe retaine a Chaplaine â—nd before his advancement his Lord is attainted of Treason as it was in the Case of the Earle of â—estmerland after the said Attainder such a Chapâ—aine cannot accept a second Benefice for though his Lord be still living according to nature yet after the Attainder he is a dead Person in the Law and therefore out of the case to have Priviledge for himselfe or for his Chaplaines If a Baron have three Chaplaines and every one of them have two Benifices and after the Baron dyeth yet they shall enjoy those benefices with cure which were lawfully setled in them before but in this case though the said Chaplaine be resident upon one of his Benifices yet now he is become unpunishable for being non-resident upon the other for cessante causa cesâ— effectus the same Law is if a Baron be attainted of treâ—son or Fellony or if any Officer be removed from 〈◊〉 Office Et sic de similibus vide Actons Case Cooke 〈◊〉 part Fol. 117. for all those matters A Baron or others of degree of Honour doe retainâ— such number of Chaplains as are allowed by the Statute and after upon suite and request the said noble persoâ— doth retaine more Chaplaines In this Case they that are first retayned shall onely have priviledge nam qui prior est tempore potior est Iureâ— so if a Lord doe at any time retayne more Chaplaiâ—â— then are allowed by the Common Law the lawfull number onely shall have priviledge and in this case which of them first promoted shall have priviledge and the rest are excluded for in equali Iure inelior est condiâ—â—â— possidentes Jf a Nobleman doe retayne Chaplaines above the number at severall times if any of his first Chaplaiâ—â— die the next that was then retayned shall not succeed for his first retayner was void and therefore in thiâ— Case it doth behove him to have a new retayning after the death of the predecessour and before his advancement nam quod initio non valet in tractu temporis non coâ—valescit If a noble person retaine such a number of Chaplains as is by the Law allowed him but afterward upon some dislike or other cause doe discharge some of them from their attendance or service the Lord in this case cannot retaine others thereby to give them priviledge during the life of them so retained and discharged and the reason thereof is because the first Chaplaines were lawfully retained and by virtue thereof during their lives might purchase dispensations to have advantage according to the statute and therefore if the discharge of their service and attendance might give a liberty to the Lord to retaine others by such meanes the Lords might advance Chaplains without number by which the statute should be defrauded and the said statute must be construed strictly against non-Residents and Pluralities as a thing prejudiciall to the service of God and the ordinary instruction of the people of God These premises are to be read in Cooks 4 part fol. 90. Druries case By the statute of 3. H. 7. cap. 14. it is enacted as followeth viz. Forasmuch as by quarrels made to such as have been in great authority office and of counsell with the King of this Realme hath ensued the destruction of the King and thereby the undoing of this Realme so that it hath appeared evidently when the compassing of the death of such as were the Kings true subjects was laid the destruction of the Prince was imagined thereby and for the most part it hath growne and been occasioned by envie and malice of the Kings owne houshold servants 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 Bishops 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 shaâ—â— be lawfull for hini 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 Indirement for Felony or Treason as common experience she weth 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 appeate by an Atrurney 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 Land lord and that by the space of two yeares whereupon he doth bring a writ of Cessavit which is his remedy given him by the Law thereby to recover the inheritance of the land but the said Lord
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 Anglia 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 I 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 this point is the civill Law Neverthelesse there was a Judgment in the time of H. 3. touching the descent of the Earldome of Chester after the death of the Earle who dyed without issue his sisters being his
other parts holden by the same tenure of the King by posteritie the King granteth his Seigniory to the Queene and afterwards the Tenant dyeth the sonne within age in this case the King shall have the Wardship of the Body and have the Prerogative even as the King himselfe should have had 3. E. 3 4. vide etiam Stamford Prerog Reg. cap. 2. The Queene wife unto the King or widdow shall not be amerced if she be non-suited in any Action or otherwise in which cases any other subject of what degree soever shall be amerced for in this case the Queen shall participate the Kings Prerogative Cookes 6. Report 62. But the Queene shall not in all cases have the same Prerogatives that the King shall have in the same case as for Example Petition is all the remedy the Subject hath when the King seizeth his Lands or taketh away his Goods from him having no title by order of Law so to doe contrary to the opinion of some ancient Bookes as you may see Stamfords Prerog cap. 19. But in such suit shall be made to the Queene but actions against other Leiges of the King according as the case shall require for by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason he shall be Defendant or Tenant without pertaking such Prerogatives as doe appertaine to the King 11. H. 4.64 B. Stamford Prerog cap. 22. â—n fine Against the King by his Prerogative Nullum temâ—us occurit Regi but time shall runne against the Queen H. 18. E. 3.2 a. and aplenarty by sixe mouthes is a good plea in a Quare Imp. brought by Philippa Regina Angliae ibid. fol. 1. et 13. b. Stamford Prerog cap. 18. trope finem In 21. E. 3.13 b. It is thus to be read note that a protection was sued forth against the Queen in a Writ which she brought and it was allowed though shee be a person exempt Neverthelesse by this short case following may bee observed that the Justices doe not easily suffer any proceedings in Law against the Queene wife or widdow but will hold with their Inmities as much as they may by Law A Writ of dower was brought against Isabel Queene of England mother of the King that then was and the Court said to the Plaintiffe the Queene is a person of dignitie and excellencie and we are of opinion that she shall not answer to the Writ but it behooveth you to sue to her by Petition and thereupon the Demandant dixit grat and shee prayed the Court to grant a continuance of her Action untill another day so that in the meane time she might sue to speake with the Queen but the Court would not agree to make a Continuance but said that upon her request they might give dâ—â— precepart and so it was done for the Queenes Councel would not agree to a continuance for thereby thâ— Queene should bee accepted as answerable 10. 〈◊〉 3.379 The wife of the Kings eldest sonne also hath somâ— Prerogative in regard of the excellencie of her Husband which the wives of other Noblemen have not foâ— by the Statute of 25. E. 3. it is high Treason to violate the wife of the Kings eldest sonne and heire Dutchesses also and Countesses have speciall Honour appertaining to their Estates as kneeling and tasting and such like which things as appertaining more properly to the Heraulds then to this legall discourse I leave unto them By the Statute made 7. Iac. cap. 6. intituled And Act for the Administring the oath of Allegiance and Reformation of Women recusants if any person or persons of or above the age of 18. yeeres and degrees aforesaid must and hereafter shal stand and be presented indicted or convicted for not comming to Church or not receiving the holy Communion or Sacraments of the Lords Supper according to the Lawes and Statutes of this Realme before the Ordinary or other having lawful power to take such presentment or indictment then 3. of the Privie Counsell of the King his Highnesse his Heires or Successours and no other whereof the Lord Treasurer the Lord Chancellour Lord Privie Seale or principall Secretary to be one upon knowledge shall require such person or persons to take the said Oath but it shall be lawfull to and for every Bishop within his Diocesse to require any Baron or Barons of the age of 18. or above to take the said Oath Also in cases of indictment of Felony or Treason a Baronesse shall have the same tryall by Peeres as doth appeare by the Statute of 20. H. 6. cap. 9. which any other Noble woman of higher degree shall have which priviledge is denyed to all of a lower degree then a Baronesse Ladies in Reputation The wife and widdow and widdow of the sonne and heire of a Duke or Earle in the life of his Father is a Lady by courtesie of speech and honour and taketh place according as in ancient time hath been permitted by the Soveraign Prince and allowance of the Herauld but in legall proceedings they are not to have priviledges nor to be named according to such sirnames of dignity but the King may at his pleasure create such men in the life time of their Ancestors into degrees of Lords of his Parliament and then the Law is otherwise If a Noblewoman of Spaine come into the Realme by safe conduct or otherwise by the King shee be stiled by such her forraign stile of dignity yet in the Kings Courts of Justice she shall not be named by such title though by common speech she be a Lady in reputation An English woman borne doth take to her Husband a Spanish or French Duke though he be made a Denizen yet he shall not beare his title of dignity in legall proceedings A German woman is married to the Earl of Northam or to other the Nobility of England unlesse she be made a Denizen she cannot lawfully claim the priviledges or title of her husband no more then she can to have dower or any jointure from him An English Woman doth take to Husband the Earle of Kildare in Ireland or if a Lord of Scotland though he be a post natus take an English woman to his wife their wives shall not participate their husbands Titles of Dignitie But if the King do create one of his Subjects of Scotland naturalized here by Act of Parliament to be Viscount Rochester within England and after by his Writ of Summons under his Great Seale doe call him to his uper House of his Parliaments and assigne him a place there in his great Councell amongst the Lords and Peeres of the Realme hee is now also a Peere of this Realme and shall be partaker with them in all Priviledges and by consequence his wife widdow and children after him 32. E. 3.35 in le case de Gilbert Humfrevill But if an Englishman by the
of the Kings eldest Sonne and Heir is crimen lasoe Majestatis high treason or if a man do violate the Wife of the Kings eldest Sonne and Heir it is high treason and see the Statute 20. Hen. 8. cap. 13. And so was the ancient common Law of England and not a new Law made by this Statute Cooks 8. Part. 28.6 But this Statute is a manifestation and declaration or publication of the ancient common Law in this Case By a Statute made in the said 25. yeer of King Ed. 3. It is declared because the people be in ambiguity and doubt of the children born in the parts beyond the Sea out of the Kings Legiance of England should be able to demand any inheritance within the same Legiance or not Whereof a Petition was put into the Parliament late holden at Westminster the 17. yeer of the raign of our Soveraign Lord the King assembled in this Parliament and was not at the same time wholly assented Our Soveraign Lord the King willing that all doubts and ambiguities should be put away and the Law in this case declared and put in a certainty hath charged the said Prelates Earls Barons and other wise men of his Councell assembled in this Parliament to deliberate upon this point who with one assent hath said That the Law of the Crown of England is and alwayes hath been such that Les Enfants du Roy the children of the King of England in whatsoever part they be born in England or elsewhere be able and ought to bear the inheritance after the death of their Ancestors which Law our Soveraign Lord the King the said Prelates Earls Barons and other great men and all the Commons assembled in this Parliament do approve and affirm for ever Note These words in the Statute Les Infants du Roy have briefly set down and in a vulgar manner for loquendum ut vulgus and not in form of exquisite pleading for sentiendum ut docti and therefore ought to be understood largely Cooks 7. part 11.6 and as the Latine word liberi is with the Civilians Bract. lib. 2. cap. 29. hath these words Item descendit jus vero heredi ubicunque nat in fuerit vel in utero matris intra mare vel ultra Nec potest sibi aliquis facere beredem quia solus Deus heredem facit The right doth deseend unto the true Heir wheresoever he shall be born in the Womb of his Mother on this side the Sea or beyond no man can make an Heir unto himself because God only doth make the Heir read the Statute and Cook 7. part 18. a. Where you shall see that though generally the birth-place is observable yet many times Legiance and obedience without any place within the Kings Dominions may make a Subject born for though we see by experience almost in every Parliament Ambassadors Merchants and the Kings souldiers doth shew there in such causes to have their children naturalized or made denixens yet that doth proceed onely of doubt and needlesse scupulosity and ignorance of the Law even as we see men that are doubtfull desire to be resolved as may appear by sundry covenants in bargaining more then necessary And by renuing of Chartes though there be no forfeitures and by suing forth particular pardons when a generall is granted by Parliament Priests and Ministers see to the Parliament for legitimation of their children And in the Articles confirmed by Parliament touching the marriage between Philip Prince of Spain and Queen Mary a speciall proviso was to barre him from being Tenant by the courtesie of the Crown in case he should have issâ—e by her and survive which was superfluous because the Common-Law would have denyed this last point See the Lord Cromwels Speech in the case of the Postnati fol. 36. But note that if an Alien Enemy come into this Realm and his Wife English or stranger be delivered of a childe within England this childe notwithstanding his birth-place is an Alien born for want of allegeance in the Parents Ibidem King Henry did create Edward his eldest Sonne the first Prince of Wales and did give unto him the dignity and Dominion of it to be holden of him and his Heirs Kings of England and after that time the eldest sonne of the King of England hath been Prince of Wales and as incident to the State and dignity of a Prince and might make Laws and Statutes and use jurisdiction and authority as amply as any King of that Nation could do Cooks 7. part 21.6 Vide Mills fol. 312. Plowden 126. For Wales was a Kingdom in ancient time But in a Statute made in the 12. Ed. 1. Wales was united and incorporated into England and made parcell of England in possession And note in Tho. Mylls 112. the devise of the said King was to draw the Welchmen to acknowledge the Kings eldest Son Edward of Carnarvan to be their Prince Also by another Statute made 27. Hen. 8. cap. 24. a generall resumption of many liberties and franchises heretofore taken or granted from the Crown as the authority to pardon Treason murther man-slaughter and fellony power to make Justices in Oyre Justices of assize Justices of peace Goal delivery and such like so that from thenceforth the Kings eldest Sonne hath only the name and stile of Prince of Wales but no other Jurisdiction then at the Kings pleasure is permitted him and granted by his Letters Patents as by the tenour thereof following made by King Henry the eight to Edward his sonne and heir apparent may appear Henry Ireland was before 33. Hen. 8. a Lordship and now is a Kingdom and the King of England was as absolute a Prince and Soveraign when he was Lord of Ireland as now when he is stiled King of the same Cooks 7. part By the grace of God King of England and of France Lord of Ireland c. To all Archbishops Bishops Abbots Priors Dukes Earls Barons Justices Viscounts Governours Ministers and to all our Bailiffs and faithfull Subjects greeting out of the excellency of Royall preheminence like as the beams from the Sunne so doth inferiour honour proceed neither doth the integrity of Royall lustre and brightnesse by the naturall disposition of the light-affording light feel any losse or detriment by such borrowed lights yea the Royall Scepter is also much the more extolled and the Royall Throne exalted by how much more noblenesse preeminences and honours are under the power and command thereof And this worthy consideration allureth and induceth us with desire to the increase of the name and honour of our first begotten and best beloved Sonne Edward in whom we behold and see our selves to be honoured and our Royall House also and our people subject to us hoping by the grace of God by conjecture taken of his gratious future proceedings to be the more honourably strengthned that we may with honour prevent and with aboundant grace prosecute him who in reputation of us is deemed the same
person with us Wherefore by the Councell and consent of the Prelats Dukes Earls Viscounts and Barons of our Kingdom being in our present Parliament we have made and created and by these presents make and create him the said Edward Prince of Wales and Earl of Chester and to the same Edward we give and grant and by this Charter have confirmed the Name Stile Title State Dignity and the honour of the said Principality that he may therein in governing rule and in ruling direct and defend We by a Garland upon his head by a Ring of Gold upon his Finger and a Virge of Gold have according to the manner invested him to have and to hold to him and to his Heirs the Kings of England for ever Wherefore we will and straightly command for us and our Heirs that Edward our Sonne aforesaid shall have the Name Stile Title State Dignity and honour of the Principality of Wales and of the County of Chester aforesaid unto him and his Heirs the Kings of England aforesaid for ever These being witnesses the Reverend Father John Cardinall and Archbishop of Canterbury Primate of all England our Chancellor and William Archbishop of York Primate of England Thomas Bishop of London John Bishop of Lincolne and William Bishop of Norwich our most welbeloved Cousins Richard Duke of York Humphry Duke of Buckingham our welbeloved Cousin Richard Earl of Warwick Richard Earl of Salisbury John Earl of Wiltshire and our welbeloved and faithfull Cousins Ralph Cromwell Chamberlain of our House William Falconbridge and John Sturton Knights Dated at Our Palace at Westminster the fifteenth day of March and in the yeer of Our Raign thirty two And here by the way may be observed that in ancient time and in the time of the English Saxon Kings the use was as well in penning the Acts of Parliament as of the Kings Letters Patents when any lands franchises or hereditaments did passe from the King of any estate of inheritance as also in their creations of any Man unto honour and dignity the conclusion was with the signe of the Crosse in forme aforesaid that is his Testibus c. But long time that forme hath been discontinued so that at this day and for many yeares past all the Kings Patents for lands franchizes and hereditaments doe conclude with teste me ipso neverthelesse in all creations of honour and dignity by Letters Patents the ancient forme of concluding with his testibus is used at this day Cookes 8. part 19. And it hath been resolved by the Judges that all Acts of Parliament and Statutes whien doe concerne the Prince who is the first begotten son of the King and heire apparant to the Crowne for the time being Perpetuis futuris temporibus in all succession of ages and times be such Acts whereof the Judges and all the Realme must take conusance as of generall Statutes for every subject hath interest in the King and none of his subjects who is within his Lawes be divided from him being his head and Soveraigne so that the businesse and things of the King doth touch all the Realme and namely when it doth concerne the Prince the first begotten sonne of the King and Heire apparant to the Crowne Corruscat enim Princeps radiis Regis Patris sui censetur una persona cum ipso For the Prince shineth with the beames of the King his Father and is holden to be one person with him Cookes 8. part 28. Although the Prince by expresse words hath no priviledge by the great Charter of the Forrest 9 H. 3. cap. 11. for hunting in the Kings Forrests or Parks passing by them and sent for by the Kings commandment yet by construction the Prince is to take benefit and advantage thereby as well as Bishops Earls or Barons who are expressed Crompt Courts des Justices de Forrests 167. In the Parliament 31 H. 8. c. 10. an Act concerning the placing of the Kings children and Lords in the Parliament and other assemblies were amongst other things made as followeth First it is enacted by the authority aforesaid that no person or persons of what degree estate or condition whatsoever he or they be except only the Kings children shall at any time hereafter attempt or presume to sit or have place at any side of the cloth of state in the Parliament chamber neither of the one hand of the Kings Highnesse or of the other whether the Kings Majesty be there personally present or not The Prince shall not find pledges for the prosecution of any Action and therefore shall be amerced more then the King should be or the Queen his wife Vide Cooks 8. part 61. b. Of the most noble and excellent Prince that now is it is truly said that he is omni nomine numine magnus by destiny name providence of God the greatest before Cook to the Reader before his 8. Book the last leaf Neverthelesse as he is a distinct person by nature from the King so is he distinct by the Law viz. a Subject and holdeth his principalities and seigniories of the King neither shall he have all those Prerogatives which the King shal have for example when the King seizeth his Subjects lands or taketh away his goods from him having no title by order of the Law so to do In this case the Subject is to sue to his Soveraign Lord by way of Petition onely for other remedy hath he not but suit by Petition can be to none other then to the King for no such suit shall be made to the Prince but Actions as the case requireth as against a Subject Stamf. praerog ca. 22. And in token of subjection the Prince doth not upon his Posie of his Arms disdain the old Saxon word Ich dien I serve as Lambert doth mention in his Book of Perambulation of Rent 364. And there is a case that Gascoin chief Justice of Engl in the time of H. 4. did commit the Prince who would have taken a prisoner from the Bar in the Kings Bench and the Prince did humbly obey and did go at his command in which the King did greatly rejoyce that hee had such a Judge who durst minister justice upon his son and also that hee had a son so gracious as to obey Court de Banco Regis 79. Crompton A question was moved to the Justices in the first yeer of H. 7. what order should be in that present parliament for the anulling and making void certain attainders for so much as divers who were returned of that Parliamēt did stand attainted of treason and all the Justices resolved That so many of the Knights of the shires or Citizens or Burgesses as stood then attainted of treason should depart out of the Parliament house at the reversall of the Act of Parliament for their attainders But as soon as the Act of Parliament was reversed and annuld that they and every of them that is to say Lords and Commons should come into their places and
and of such a King who is heir unto the said Prince Edward And such a first begotten son and heir apparant to the Crown shall inherit the said Dukedom in the life of the said King his father with manner of limitation of estate was short excellent and curious varying from the ordinary Rules of the Common Law touching the framing of any estate of inheritance in fee-simple or fee-tail And neverthelesse by the authority of Parliament a speciall fee-simple is in that onely case made as by judgment may appear in the Book aforesaid and the case thereof fol. 27. and 21 E. 3.41 b. And ever since that creation the said Dukedom of Cornwall hath been the peculiar inheritance of the Kings eldest son ad supportandum nomen on us bonoris to support the name and weight of that his honourable estate during the king his fathers life so that he is ever Duxnatus non creatus a Duke born not created and the said Duke the very first day of his nativity is presumed and taken to be of full and perfect age so that he may sue that day for his livery of the said Dukedom and ought of right to obtain the same as well as if he had been full 21 yeers of age And the said Black-Prince was the first Duke in England after the Conquest for though Bracton who made his Book in H. 3. saith Et sunt sub rege duces as before appeareth yet that place is to be understood of the ancient kings who were before the conquest for in Mag. Charta which was made in Anno 9 H. 3. we finde not the name of Duke amongst the Peers and Nobles there mentioned For seeing the Norman Kings themselves were Dukes of Normandy for a great while they adorned none with this honour of Duke And the eldest son of every King after this creation was Duke of Cornwall and so allowed As for example Henry of Munmouth eldest son of H. 4. and Henry of Winsor eldest son of H. 5. and Edw. of Westminster the first son of Ed. 4. and Arthur of Winchester first son of H. 7. and Edward of Hampton first son of H. 8. but Richard of Burdeaux who was the first son of the Black-Prince was not Duke of Cornwall by force of the said creation for albeit after the death of his father he was heir apparant to the Crown yet because he was not the first begotten son of a King of England for his father dyed in the life time of king Ed. 3. the said Richard was not within the limitation of the grant and creation by authority of Parliament made in the 11 yeer of king Edward above mentioned And therefore to supply that defect in the 5. yeer of Ed. 3. he was created Duke of Cornwall by a speciall Charter Elizabeth eldest daughter to king Edw. 4. was not Durches of Cornwal for she was the first begotten daughter of king Edw. 4. but the limitation is to the first begotten son Henry the 8. was not in the life of his father king H. 7. after the death of his eldest Brother Arthur Duke of Cornwall by force of the said creation for albeit he was sole heir apparant to the king yet he was not his eldest begotten son Cooks 8 part 29. b. and 30. a. And the opinion of Stamford a learned Judge hath been that he shall have within his Dukedom of Cornwall the kings Prerogatives because it is not severed from the Crown after the form as it is given for none shall be inheritour thereof but the kings of the Realm For example whereas by the Common Law if a man hold divers Mannors or other lands and tenements of severall Lords all by knâ—â—hts service somâ— part by priority and ancient Feoffment and other lands by posterity and by a latter Feoffment and the Tenant so seized dyeth his son and heir within age In this case the custody of Wardshâ—p of the body and his marriage may not be divided among all the Lords but one of them onely shall have right unto it because the body of a man is intire and the Law doth say That the Lord of whom some part of those lands be holden by priority and by the same tenure of Chivalry shall have it except the king be any of the Lords for then though the Tenant did purchase that land last yet after his death the king shall bee preferred before all or any other the Lords of whom the Tenant did hold by priority And so shall the Duke of Cornwall in the same case have the same Prerogative if his Tenant dye holding of him but by posterity of Feoffment for any tenure of his Dutchie of Cornwall although the said Duke is not seized of any particular estate whereof the reversion remaineth in the king for the Prince is seized in fee of his Dukedom as before is said Iohn of Gaunt the fourth son of king Edward 3. did take to wife Blanch who was daughter and heir to Henry Duke of Lancaster who had issue Henry afterwards king of England so that the said Dutchy of Lancaster did come unto the said Henry by discent from the part of his mother and being a subject he was to observe the Common Law of the Land in all things concerning his Dutchie For if he would depart in Fee with any part thereof hee must make livery and seizen or if hee had made a Lease for life reserving rent with a reentery for default of payment and the rent happen to be behind the Duke might not enter unlesse hee doe make a demand or if he had aliened any part thereof whilest he was with age hee might defeat the purchaser for that cause and if hee would grant a reversion of any estate for life or yeares in being there must also be Attornment or else the grant doth not take effect But after that hee had deposed King Richard the second and had assumed upon him the Royall estate and so had conjoyned his naturall bodie in the bodie Politique of the King of this Realme and so was become King Then the possessions of the Duchie of Lancaster were in him as King and not as Duke For the name of Duke being not so great as the name of a King was drowned by the name of King and by the State Royall in him who was Duke for the King cannot bee a Duke within â—â—s owne Realme but out of his Realme hee may And likewise the name of the Duchie and all the Franchizes Liberties and Jurisdictions of the same when they were in the hands of him who had the Crowne and Jurisdiction Royall were gone by the Common Law and extinct for the greater doth distinguish the lesse and after those times the possessions of the Dutchie of LANCASTER would not passe from King Henry the fourth but by his Letters Patents under the great Seal of England without livery of seisin and without Attornment and if he make a Lease for life being Duke reserving a rent with reentry for
or thoâ—â— whose Ancestors time out of minde have been called to the Parliament by Writ for otherwise there are hardly such to be sound as are Barons by prescription only BARONS by Tenure BArons by tenure are those which doe hold any Honour Castle or Mannour as the head of their Barony per Baroniam which is Grand Serjeanty And these Barons by tenure are of two sorts Barons spirituall by tenure and Barons temporall by tenure Of Barons spirituall by tenure sufficient is said before in the first leafe of this Treatise whereunto this may be added That it appeareth by all ancient Writers of our Lawes as Britton Glanvile Bracton and the rest that the Archbishops and Bishops of the Realme in the ancient Saxons dayes as well during the time that this Realme was divided into divers Kingdomes as also after the uniting of them into one Monarchy were called to the Parliament or Assembly of States or wise men not so much in respect of their tenure for in those dayes all their tenures were by franck almoigne but especially for that the lawes and counsels of men are then most currant and commendable and have a more blessed issue and successe when they are grounded upon the feare of God the root and beginning of all true wisdome and therefore our wise and religious Ancestors called to their generall Councell or Witten Agmore or Court of Wisdome as they called it those chiefe and principall persons of the Clergy which by their place and profession by their gravities learning and wisdome might best advise what was the law of Gods acceptable will and pleasure that they might frame their humane lawes answerable or at least noâ— contrary and repugnant thereunto As touching the temporall Barons by the tenure mention is made of them in the Books of the Law Records and ancient Monuments of the Realme these are the words of Glanvile Mortuo enim aliquo capitals Barâ—ne suo statim Baroniam in manusua retinet Rex donec haeres garantum suum fecerit de relivio licet haeres ipse plenam habuerit atatem Which reliefe of Barons for the Barony by tenure was at that time uncertain and rentable at the pleasure of the King Of which also he writeth thus Dicitur autem rationabile relivium alicujus juxta consuetudinem regni de feodo unius Militis centum solidos de socenglo verò quantum valet census illiut saccagii per unum annum De Baronis verò nihil certum statutum est quia juxta voluntatem misericordiam Domini Regis solent Baronli capitâ—â—es de reliviis suis Domino Regi satisfacere lib. 9. cap. 4. But such uncertainty was brought to certainty by the statute of Magna Charta cap. 2. so here we have speech of the Barony Temporall by tenure and of the reliefe due for the same In tertio H. 3. there was argued an ancient Prerogative belonging to the Crowne and usuall even from the Conquest unto these times authentickly written in these words and so reported by Fitzherbert Quod si aliquis Baro Domini Regis tenent de Rege obiisset non haberet haeredes nisi filias primogenitae filiae maritatae sunt in vita Patris Dominus Rex daret postnatam siliam quae remaneret in haereditate patris alicui milit ' suor ' cum tota haereditate Patris sui de qua obiissâ—t seisitus ita quòd alia filiae nihil recuperent versus postnatam filiam in vita sua Et omnes Reges habuerunt hanc dignitatem à conquestu Also Bracton lib. 5. fol. 351. fol. 357. doth make expresse mention of Barons temporall by tenure It shall be needlesse here againe to remember the former alledged assertion of Bracton that the head of a Barony descending unto daughters should not be divided by partition which argueth likewise the tenure by Barony But let us descend to other authorities that is to say to the Book-case in 48. E. 3. fol. 30. Sir Ralph Everden his case by which case of law is most evidently proved that there are Barons by tenure and in regard of such their tenure ought to bâ— summoned to Parliament And to this purpose you may read a private statute in the eleventh yeere of Henry the sixth mentioned also in Cambden concerning the Earldome of Arundell and also another statute to the same purpose made 27. H. 6. for the finall determination of a controversie between William Earl of Arundell and Thomas Earl of Devonshire for place and preheminence in Parliament I would wish that those who deny that there were or are any Barons by tenure should consider advisedly the statute of Westminster the 2d. cap. 41. where the Fees of the Eatle Marshall and Lord Chamberlain are expressed which are to be taken by them upon the homage done of every Baron by tenure whether the Baron holdeth by whole Barony or by lesse But ere I proceed further there ariseth a question here to be considered the resolution whereof may give great light and in a manner determine the matter in hand The Question therefore is this Question If a Baron by tenure alien and grant away the Honour Castle and Mannour holden by Barony whether shall such alience or grantee take upon him the state title and dignity of a Baron or no and what shall become of such a dignity of Baronage after such alienation or grant made They which do deny that there are any such Baronies by tenure do use these as their chief and principall motives and reasons First if there be any Baronies by tenure then the alience or grantee of such Honour Castle or Mannour so holden must hold by the same tenure that his feoffor or grantor before held But that was by Barony Therefore such alience or grantee must hold by Barony And if such grant or alienation be made to persons base vulgar or ignoble they then should by such tenure be made noble which were marvellous absurd and full of inconveniency for Non Dominus domo sed domus Domino honestatur see Tho. Mills Peroration fol 3. Secondly it is very evident and manifest that many ancient Mannours which in old time were holden per Baroniam and were the Head of Baronies are now in the tenures of mean Gentlemen and others who neither doe or may challenge unto themselves in any respect thereof any Nobility without the great and high displeasure of the Kings most excellent Majesty who is the fountain of all Nobility within his Dominions Thirdly some ancient Barons there are which have aliened and sold away those Castles and Mannours of the which they have and beare the name and dignity of Baronage and yet themselves doe still retain and lawfully keep their estate dignity and degree of Baron and have been and usually are such alienation notwithstanding summoned neverthelesse to the Parliament and they do take and hold their ancient place according The Answer For the better answere to be made to these objections being of all
act in law presently upon the death of the Ancestor unto the heire or not at all Wherefore the custome of our countrey and manifold presidents doe prove that this kind of Barony doth descend from the Ancestors to the heire and there needs not any words of heirs in the writ of summons Onely one president there is in a speciall writ sometimes directed to Sir Henry Bromsted in 27. H. 6. wherein he was stiled Lord Veysey wherein there are these words inserted Volumus tamen vos haeredes vestros masculos de corpore vestro legitimè procreatos excuntes Barones de Veysey existere which is to bee read in Co. 7. part 33. b. Wherefore as it is true that where the heire of any such Baron by writ is called to the Parliament that his descent of honour is thereby established and approved by the gracious judgment of our sacred Soveraigne so it is also true that if it shall stand with his Highnesse pleasure that such heire shall not be summoned at all for none can come to so high a Councel unlesse he be called then that Nobility is much empaired and in a manner extinguished in the censure of all men for that it had none other originall but by writ of summons from the which in the judgment of the supreme soveraign he is excluded As to the second principall point whether the Barony by writ may descend to the heires females it shall not be amisse likewise to view the reasons of either part and by conflict of argument the truth may the better be discerned Those that maintain the affirmative part do reason after this manner In reason the sexe of the heire female ought no more to bar her of the dignity than the nonage of the heire male ought to bar him although during his nonage he be unable to do the service but as the service of the one is forborne for a time so the sexe of the other may at all times be supplied by the maturity and sufficiency of her husband Offices of honour which do much import the publique weale being passed by inheritance do descend to the heire female if there be no nearer heire male As the office of the high Constableship of England which descended to the daughters of Humphrey de Bohun Earle of Hereford and Essex a memoriall whereof is in Dyer 285. but more at large in Keilway 6. H. 8. Also the office of Lord-Steward descended to Blanch daughter to H. Earle of Lancaster 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 unfit to be exercised by a woman as it is unfit for a woman to be summoned to the Parliament as a Baronesse by writ And many noble houses in England do support the dignity of Baronage unto them descended by women They which stand on the negative part of this controversie do encounter their adversaries on this manner viz. The writ of summons to the Parliament whereby the Baron by writ hath his originall is to call that honourable and worthy person so summoned to be one of the number of that right high and honourable Assembly and to be a Judge to sit heare and determine life and member plea and right of land if there shall come occasion likewise to give counsell and advice in the most weighty affaires of the Realme But these things are convenient for the quality of men unfitting and altogether unbeseeming the sexe of women Ergo having respect unto the finall purpose of such writs such inheritances should only descend unto the heire male and not unto the heire female Secondly if it shall be answered that although the heire female to whom such inheritance is descended be unfit in her owne person for the accomplishing of these things yet she may marry with one sufficiently able for her and in her behalf to execute the same this answer will neither satisfie nor salve the inconveniences For admit that such heire female were at full age at the death of her Ancestor unmarried it doth lie in her own choice who shall be her husband so shall the pleasure of the Soveraigne in the choice of his Councell in the great causes of the Realme be subject to the will of his subject in the choice of her husband which were altogether inconvenient Thirdly if such husband shall be called in the right of his wife the writ should make some mention hereof for otherwise it may well be taken that the husband was chosen in his own person and in behalfe of himselfe and not in regard of his wife or such pretended dignity descended unto him But there was never such writ of summons seen wherein the wife was mentioned and if the husband of such wife have been called to the Parliament which is alwayes by generally writ not mentioning his wife he is now made thereby a Baron of himself and in his own right by that writ Having thus heard both sides speak place doth now require to interpose opinion to compound this controversie This question or point is somewhat perplexed by means of difficult presidents for first it is observed that some presidents do prove that Baronies by writs have descended unto heires females whose husbands have beene called to the Parliament whether in regard of themselves or in regard of their wives it matten not But sure it is that the marriage of such Ladies gave them occasion so to be summoned and such husbands and their posterity have and do lawfully beare the same name of dignity which the Ancestors of such wife did before rightfully beare For by this controversie there is no purpose to call the right of such noble houses into question Howbeit secondly this is to be observed out of the presidents and to be acknowledged of every dutifull subject that the Kings Majesty is neverthelesse at liberty to call to the high Councell of Parliament whom his Highnesse shall in his Princely wisdom think most meet which his Majesties Progenitors have in former ages observed And therefore whereas Radulph Lord Cromwell being a Baron by writ died without issue having two sisters and coheirs Eliz. the eldest married to Sir Tho. Nevill Knight and Joan the younger married Sir Hunt Bourcher he who had married the younger sister was called to the Parliament as L. Cromwell and not the said Sir Tho. Nevill who had married the elder sister 3. It is to be observed that if a Baron by writ die without heire male having his daughter sister or other collaterall heire male that doth or can challenge the lands of the said Baron deceased by any ancient entaile or otherwise the title of such heire female hath bin heretofore allowed as by the honourable opinions and relations of the right honourable the late Commissioners in the office of Earle Marshall signified unto the late Queene upon the Petition of the sister and heire of Gregory late Lord Dacres deceased may appeare Moreover in the
female shall enioy the dignitie in the right of his wife or no wherein wee are to rest upon a resolution had and given in this speciall question which was in this manner In the time of Hen. 8. when Mr. Winbie tooke upon him the stile of Lord Talboys in the right of his wife having none issue by her the said King assisted both by Civill and Temporall Lawyers gave sentence that no husband of Baronesse in her right should use the stile and dignitie untill he had by her a Child whereby he should become Tenant by the courtesie unto her inheritance The speciall reasons that occasioned this sentence were two First it should be inconvenient for her husband this day to bee a Baron and Peere of the Realme and to morrow by the death of his wife so become none and that without the death of the partie Secondly if he had issue by his wife and were inâ—â—taled to be Tenant by the curtesie of England of the wives land if he shall not also beare the stile and dignity of her Barony then should his sonne after the death of his mother dying in the life time of his father be Baron and Lord without land for so the Father should have the land as Tenant by the curtesie and the sonne the Lordship without Land And thus much said concerning the nature quality and estate of a Baron by writ and for resolution of the severall points and Articles of the question proposed may suffice Barons by Batent which is the third kind of Barons mentioned in the former division of Barons THere is also a fourth meanes of creation by act of Parliament but the first a mentiond and this by Patent are most for the honour of the King for thereby the donation doth proceed from his highnes onely as from the fountaine of all honour and dignity but when the creation is by Parliament every one may bee said donator Cookes 8. part 19. A Baron by creation by reason of Letters Parents is that Noble person whom the Kings Maâ—esty or any of his progenitors Kings of the Realm have created Barons by such their Letters Patents But this manner of creating Barons by Patent began in the Raign of R. 2. who created first Iohn Beauchamp of Holt Baron of Kidderminster by his Letters Patents 8. October anno 11. But Mils saith in 30. H. 6. this was brought in This kind of dignity of Baron shall bee of such countenance in discent or otherwise as shall bee limited in the Habendi in such Letters Patents contained for it may be but for the life of him to whom it is giâ—en or for teâ—â—e de anter vie of some other mans life as some hold opinion in 9. H. 6.29 for Cuius est dare eiâ—â—est disponere it may be in speciall a genetall taile and this kind of estate tayle was usuall before the Statute made 13. E. 1. by which estate taile in Lands and Tenements was created as appeareth by the Patent whereby Hubert de Burgo was made Earle of Kent in the time of H. 3. by these words Habend ' sibi hered ' suis decorpore Margaretae uxoris suae sâ—roris Alexandri Regis Scotiae procreatis pro defectu talis exitus remanere rectis heredibus dicti Huberti and that estates in taile are at this day titles of honour by the Statute of Westm 2. vide Nevils case Cooks 7. part 33. For the better explanation of this kind of dignity the resolution also of certaine questions shall be very requisite Question If a Nobleman and his Progenitors have for a long time been called to the Parliament and be a Baron either by tenure or writ have had in regard thereof a place cortaine in Parliament if afterwards the same Nobleman should be created a Baron of that Barony and by the same name by Letters Patents whether shall hee and his heires retaine his old place in Parliament which hee had according to the former dignity or whether shall be lose his old place and take a new place according to the time of his creation onely Answer The case of the Lord Delaware received a resolution somewhat answerable to this question Cook 11. â—art the Lord de â—a wares case Tho. Lord Delaware 3. E. 6. being in some displeasure with William West his Nephew and heire who was Father to the now Lord De la ware procured â—n Act of Parliament by the which the said Will West was during his naturall life only clearly disabled to clayme demand or have any manner of right title or interest by discent revenue or otherwise in or to the mannor lands tenements or hereditaments title and dignity of Thomas Lord De la ware his Vnkle After the said Thomas De la ware dyed and the said VVilliam West was in the time of the late Queene Elizabeth restored and afterwards in the 8. yeare of her Raigne was created Lord De la ware by Patent and had place in Parliament according to his creation by Patent for that by the said Act of Parliament in the time of E. 6. hee was excluded to challenge the former ancient Barony and after hee dyed whether the new Lord Delaware should take his place to the ancient Barony by writ or according to his Fathers creation by Patent was the question the opinion of the late Queenes Counsell being Her Majesties Atturney Generall and Sollicitor were that the acceptance of the new creation by the said William West could not distinguish the ancient dignity in him at the time of his creation but ahe dignity was at that time by the Act of Parliament 3. Ed. 6. in obeysance suspence or consideration of Law and he thereby utterly disabled to have the same during his life onely so as other acceptance could not extinguish that dignity which he then had not nor could not conclude his heire who was not disabled by the said act of 3. Ed. 6. to claime the ancient Barony which opinion of theirs was seene and allowed by the resolution of the chiefe Iustice of England and Lord chiefe Baron and so signified unto the Lord Keeper but this is to be noted by the reasons made for the said resolution that if the said William VVest had beene Baron and intituled or in possession of the ancient dignity when hee accepted the said creation the Law perchance might have been otherwise but that remaineth as yet unresolved neverthelesse the rule codem mado quo quid constuitur dissolvitur but by grant which is made a matter in fact a man cannot transferre his ritle of honour Cooke 7. parâ— And thus much concerning the three degrees of Barons within this Realme may suffice to be said in generall upon this occasion for the better understanding and direction of that which followeth to be handled And in this place I thinke it not impertinent to mention one case which I read in the bookes of the common Law concerning the discent of a title of honour whereof the
Ancestor had estate in fee simple There is a maxime in the Law Possessio fratris de feodo simplici facit ' sororem esse heredem the possession of the brother in see simple doth make his sister to bee his heire But if a man by any of the three names before mentioned be created into a title of dignity to him and to his heires for ever and he hath issue a sonne and a daughter by one Venter and hath also a sonne by a second wife afterwards the Father dyeth and his eldest sonne entreth into all his Fathers inheritance and also enioyeth the title and name of dignity which his Father had but dyeth without issue In this case the dignity shal goe and deseend unto the younger sonne though he be but of the halfe blood unto him that last enioyed that name and title by discent and shall not descend unto his sister of the whole blood and yet in this case shee should only bee her brothers heire of all his fee simple Lands and the reason and cause hereof is because Possessio fratris because the possession of the brother is the maine and sole cause which may give title to her his sister which faileth in this cause of dignity For it cannot be said that her eldest brother was in possession of his title of honour no more then of his blood For the dignity was inherent to his blood so that neither by his owne Act neither by any act to be done by another did hee gaine any more actuall possession if so it may be termed then by the law did descend unto him and therfore the younger brother may well by the Law make himselfe heire unto his Father of the honour though he cannot bee heire unto his brother so that this word Possessio which is none other then pedis positio a fixing of the foot extendeth only unto such things of which a man may by his entry or other 〈◊〉 and doth require actuall possession Cooks 3. part â—â— Ratcliffs case And having thus much dilated concerning the creaâ—â—s and other things incident to the degrees of Noâ—â—ty I cannot with silence pretermit something to â—â—lare concerning that sufficiency and ability of estate â—hich the Law doth require to be in every of them â—â—rding to their severall dignities The Common Law that alwayes will that decorum â—â—ed conveniency be observed considering the charges â—â—d expences appertaining to these degrees and digâ—â—ies being offices of principall service to the King â—â—d the Realme both in time of warre and peace as â—â—th beene said hath ordered that each of them have 〈◊〉 convenient portion and value of lands of inheriâ—â—oâ— for the support of their honours which supâ—â—yes are as sinewer conjoyned unto the same For in â—ertue and in riches as Aristotle counselleth all the â—ld Nobllity consisted and which two as Ecclesiastes â—â—athethâ— maketh a good accomplement for saith he Vâ—ilior est sapientia cum divitiis conjuncta Lamberts Perambulation of Kent 368. Therefore a Knight ought to have 20. l. land by the yeare a Baron 13. Knights fees and a quarter an Earle to knights fees and this doth appeare by the Statute of Magna Charta cap. 2. For alwâ—ies the fourth part of such Revenues which is by the Law requisite to the dignity shall be paid to the King for reliefe as for example The reliefe of a Knight is five pound which is the fourth part of 20. l. which is the revenue of a Knight see the Statute hereof 1 E. 2. and the reliefe of a Baron is a 100. markes which is the fourth part of his revenues that is to say 400. markeâ— yeare which doth include 13. Knights fees anâ— quarter and the reliefe of an Earle is a 100. l. whâ—â—â— is the fourth part of 400. l. which is the revenue of Earle and it appeares by the Records of the Excheqâ—â—â— that the reliefe of a Duke amounteth unto 200. l. 〈◊〉 by consequence his revennue ought to be 800. l. per 〈◊〉 num and this is the reason in every of our bookes thâ— every of the Nobility is presumed in our law 〈◊〉 have sufficient free-hold Ad sustinendum nomen onus and to what value these ancient Rents in tiâ—â— of H. 3. Edw. 1. at this day doe amount unto everâ— man knoweth not Cooke 7. part 33. And in cases of decay of Nobility and meane◠〈◊〉 Senatores Romani rere amotisenata as senators of Roâ— were removed from the Senate so sometimes thâ—â— are not admitted to the upper house in the Parliameâ—â— though they keope the name and title of dignity stiâ—â—â— Sir Thomas Smith de reipub Angl. 221. And by a Sâ—â—tute made 31. H. 8 ca. 10. The Lords have their pâ—â—â—ces prescribed after this manner following viz. theâ—â— foure the Lord Chancellour the Lord Treasurer tâ—â— Lord President of the Councell and the Lord Priâ—â— Seale being persons of the degree of a Baron or 〈◊〉 bove and in the same act appointed to sit in the Pâ—â—liaments and all assemblies or Councell above all doties not being of the blood royall viz. the Kings brother Vnkle Nephew and these sixe the Lord Hiâ—â— Chamberlaine of England the Lord Marshall and the Lord Admirall of England the Lord Steward of the Kings House and the Lord Chamberlaine of the Houshold by that act to bee placed in all assemblies of â—â—â—ncell after the Lord Privy Seale according to 〈◊〉 degrees and estates so that if hee bee a Baron 〈◊〉 he is to sit above all Barons or an Earle aboue 〈◊〉 Earles and so likewise the Kings Secretary beâ—â—â— a Baron of the Parliament hath a place above all â—â—â—ons and if hee bee a man of higher degree hee â—ll sit and be placed according thereunto Priviledges incident to the Nobility according to the Lawes of England VVHen a Peere of the Realme and Lord of the Parliament is to be arraigned upon any treaâ—â—â— or fellony whereof he is indicted and whereupon â—â—e hath pleaded not guilty the King by his Letters â—â—â—tents shall assigne some great and sage Lord of 〈◊〉 Parliament to bee High Steward of England for 〈◊〉 day of his arraignment who before the same day â—â—all make precept to his Sergeant at armes that is â—â—pointed to serve him during the time of his Comâ—â—ssion to warne to appeare before him 18. or 20. Lords of the Parliament or 12. at the least upon the â—â—me day and then at the day appointed when the â—â—igh Steward shall bee set under the Clothe of State â—pon the arraignement of the Prisoner and hath caused the Commission to bee read the same Sergeant shall returne his Precepts and thereupon the Lords shall bee called and when they have appeared and set in their places the Constable of the Tower shall bee called to bring his Prisoner into the Court who then shall bring his Prisoner to the Barre and the Hâ—â— Steward shall declare unto the people the cause 〈◊〉 the King hath assembled thither those Lords and 〈◊〉 and perswade him
forme aforesaid they will award a Supersedeas which is in the Booke of Enteries in the Title of Errour Sect. 20. and there are two reasons or causes wherefore no Capias or Exigent lyeth against any Peere the one because of the dignity of their persons the other by Intendment of Law there is none of the Nobility but have sufficient Freehold which the Plaintiffe may extend for their payment or satisfaction but a Capias or Exigent lyeth against a Knight for the Law hath not that opinion of his Freehold as the Court said in 26. H. 8. vide 27. H. 8.22 in Brookes abridgement Exigent 2. 3. Cooko 6. part 52. 54. And if any of the Nobility happen to be so wilfull as not to appeare the Court will compell the Sheriffe to returne great issues against him and so at every default to increase and multiply the issues as lately against the Earle of Lincolne hath been in practice By the Ancient Lawes of this Realme before the comming of William the Conquerour many good Lawes were made for the keeping of the peace amongst others that every man above the Age of 12. yeares should be sworne to the King as you may read more at large in Lamberts perambulation of Kent 21. which we in remembrance thereof doe keep at this day in view of Frank-pledge or leete Court but Noblemen of all sorts are neither bound to attend the Leete nor to take that Oath as appeares by Britton cap. 29. treating of this Court called the Sheriffes Turne Courts of which the Leete seemes to be extracted and agreeable thereunto is the Statute of Marlbridge cap. 10. in these words de turnis vice contra provisum est quod necesse non habeant ubi venire Archiepiscopi Episcopi Abbates Priores Committes Barones vide the Lord Chancellors Speech in the case of Post-nari fol. 78. If a Writ of Error be brought in Parliament upon a Judgement given in the Kings Bench the Lords of the higher House alone without the Commons are to examine the errors vide Jbid. fol. 22. Jn 11. H. 4.2 b. In a case concerning a distresse taken for expences and Fees of the Knights of the Parliament it is agreed for Law that the Baronies and other Lands as are parcell of their ancient Lordships and Baronies but for other Lands they are But there is a question made one which is no Barron but ignoble doe purchase any ancient Barony whether he shall be discharged of such ignoble purchase by reason onely of such his purchase challenge or pretence to have Nobility and place in Parliament as before in this treatise more at large appeareth for as Lands by Villany service doe not make a Villany or Bondman which being free doth purchase the same as Littleton doth teach lib. 2. cap. 12 though by his Tenure he shall be bound to doe such Villanie service so of the other side and that is holden by Barony doth not make the villany peasent or ignoble which purchaseth the same to be noble although the charge of such tenure doe lye upon him in respect of the service of the Realme It is said in our Bookes that a day of grace or by the favour of the Court is not to bee granted to the Plaintiffes in any Suite or Action wherein a Nobleman is defendant 27. H. 8.22 27. E. 3.88 because thereby the Nobleman should be longer delayed then the Ordinary course of the Court is and such Lord is to have expedition of Iustice in respect that he is to attend the Person of the King and the Service of the Common-wealth but if there be no ignoble person party to the Suite the Judges doe and may at their discretions grant upon a motion and prayer a day or more of tryall otherwise then by the strict course of the Law the Plaintiffe may challenge Cambden fol. 169. writing upon the Subject saith where the Noble man is demandant the Tenant may not be essoyned for the delay and causes aforesaid to which J would also subscribe but that the Booke of 3. H. 4 5 6. is otherwise adjudged if I doe misunderstand it there the King brought a Quare Impedit against a Common person and the defendant was essoyned by the rule of the Court Therefore a fortiori he might be essoyned against a Nobleman Jf any Peere of the Realme being a Lord of the parliament be plaintiffe or demandant defendant or Tenant in any Action reall or personall against another whereupon an issue is to be tryed by a Jury the Sheriffe must returne one Knight at the least to be of the Inquest otherwise upon a challenge made the whole Pannell shall be quashed which by the order of the Law is appoynted to be done for Honour and reverence due to the persons of that degree for as the words of the Booke are when a Peere of the Realme is party the Law is otherwise then when the Suite is betweene other persons Fitz. Chall 113.13 E. 3. in a Quar. Impedit against a Bishop adjudged Plowd 117. Dyer 208. b. 27. H 8.22 b. But the Earle of Kent by the name of Reignald Gray Esq brought a Writ of Entry against Sir H. G. Knight 4. Eliz. and the parties did plead to an issue the venire facias was awarded which the Sheriffe did returne served and a Pannell returned according in which pannell there is no Knight named the truth of which Cause was that after the returne made the demandant is published and declared by the Queene and the Heraulds to be Earle of Kent in right and by discent although hee had not beene so reputed or named Earle before and also after that time that is to say at the then last parliament the Tenant is made a Baron by a Writ of parliament and both parties have places and voyces in parliament and then the Iury doe appeare in the Court of Common pleas and the Earle of Kent did challenge the array because no Knight was returned but it was not allowed him by the Court for the â—dmittance of both parties as to the contrary and no default can bee layd to the Sheriffe for he had no notice of the honourable estates of either of the parties the demandant not being then knowne or reputed to bee an Earle by discent or of the Tenants then also being no Baron Dyer 318. How much the Common Law hath alwaies prohibited perpetuities in Lands and Tenements you may see in Corbets Case in the first part of Sir Edward Cookes Booke Fol 84. and in many other Cases in the rest of his Books also Littleton Fol. 145. saith it is a Principle in the Law that every Land of Fee-simple may be charged with a Rent in Fee-simple by one way or other but of the Kings Majesty upon the Creation of any Peere of the Realme Duke Marquesse Earle Vicount or Baron do as the manner is by his Letters Patents give unto such new created Noblemen an Annuity or Rent for the support of his
degree which they call creation Money this is so annexed unto the Dignity that by no grant assurance or any manner of Alienation it can be given from the same but is still incident and a support of the same Creation Dyer fol. 21. c. Jn all Cases wherein Suite of Law a Baron or Peere of the Realme is to be amerced other then a Duke his amercement is no lesse tâ—e 12 100. s 9 E. 4.9 21. E. 4.77 38. E. 3.31 9. H. 6.21 but the amercement of a Duke is 10. l. 19. E. 4.9 1 H. 6.7 although the Statute of Magna Charta Chap. 14. be in the negative viz. Comites at Barones non amerciantur nisi per pures suos et non nisi secundum modum delicti and yet the usage hath â—educed it into a certainty also by the same Statute it â—ppeareth that such amercements should be afferred per â—ures suos but for that it were troublesome to assemble â—arons for so small a matter such amercements in times â—ast hath beene afferred by the Barons of the Exchequer who sometimes were Barons of the Realme as is beâ—ore in this Treatise mentioned and hereof writeth Bracton Lib. 3. Tract 2. chap. Fol. 116. viz. Comites â—iero vel Barones non sunt amerciandi nisi per paces suos secundum modum delicti hoc per Barones de Scacario vel coram ipso Rege Vid. Cooke 8. part 39. sequentiae this Section is to be omitted because it is more fitly to be written hereafter If a Plaintiffe recover against a Peere of the Realme in an Action of debt or trespasse upon such a Plea pleaded by him or other default in him so that a Fine thereby doth grow to the King and thereupon on a Capias per Fine issueth out against him this shall not prejudice that Nobleman so as the Plaintiffe may thereby take advantage by prayer that he shall abide in Execution for the Plaintiffe neither without his prayer nor though he doe pray it by the opinion of Brian Justice 14. H. 7.21 VVhereas by a Statute made 32. H. 8. Cap. 16. Jt is enacted that the Subjects of the Realme shall not keepe in their Families or Houses above the number of Foure Strangers borne neverthelesse by a proviso in the said Act every Lord of the Parliament hath his priviledge allowed unto him to keepe in his Family the number of six Strangers borne any thing in that Act to the contrary notwithstanding By the Statute of 24. H. 8. Cap. 13. a. A Priviledge was granted to the Nobility according to their degrees concerning their Apparell but because by a Statute made in the first Yeare of the King that now is Chap. 25. all Lawes and Statutes made concerning Apparell are taken away I leave further to speake of that matter 1. Jac. cap. 25. By the Statute of 5. R. 2. cap. 12. The King our Soveraigne Lord of his Royall Majesty defendeth the passe utterly of all manner of people aswell Clarkes as others in every Port and other Towne and place upon the Coasts of the Sea upon the paine of forfeiture of all their goods except onely the Lords and other great men of the Realme and true and Noble Merchants and the Kings Souldiers and every person then is before excepted which after publication of this Ordinance made shall passe out of the said Realme without the Kings speciall Lycence which Lycence the King willeth and commandeth that it be not from henceforth made but in one of the Ports vnder written that is to say London Sandwich Dover Southampton Plimouth Dartmouth Bristoll Yarmouth St. Buttolphe Kingstone upon Hull Newcastle upon Tine and the other parts and passages towards Ireland and the Iles pertaining to England shall forfeit towards the King as much as he hath in goods as afore is said but because this Statute is also taken away by a â—â—te Act of Parliament made in the fourth yeare of King James cap. 1. J doe not set downe this for â—ne of the Priviledges appertaining to the Nobility 〈◊〉 this day But Phillip Earle of Arundel Sonne of Thomas Duke of Norffolke was taken upon the Sea passing inâ—o France about the 30. yeare of the late Queene â—nd was fined in the Star-chamber to a great summe because he did not take Shipping at one of the Ports mentioned Cromptons Courts 31. Whereas by the Statute of 2. H. 2. Parl. 2. cap. 1. Jt is ordained that the Justices of Peace in every County named of the Cuorum should be resident in the Shieres wherein they are Justices there is a Proviso whereby the Lord and Peeres of the Realme named in such Commission are excepted By the Statute of 1. E. 6. cap. 12. amongst other things it is enacted that in all and every case and Cases where any of the Kings Subjects shall and may upon his Prayer have the Priviledge of his Clergie as a Clarke Convict that may make purgation in all those Cases and every of them and also in every Case and Cases of Fellony wherein the priviledge and benefit of Clergie is taken away by this Statute wilfull malice and poysoning of malice prepensed onely excepted the Lord and Lords of the Parliament and Peere and Peeres of the Realme having place and voyce in Parliament shall by vertue of this Act of Common grace upon his and their Requests and Prayer alleadging that he is a Lord or Peere of the Realme claiming the benefit of this Act though hee cannot reade without burning of the Hand losse of Inheritance or corruption of his blood bee adjudged deemed taken and used for the first time onely to all Jnstructions intents and purposes as a Clarke Convict which may make purgation without any further or other benefit of the Clergy to any such Lord or Peere from thenceforth at any time after for any cause to bee allowed adjudged or admitted any Law Custome Statute or any thing to the contrary notwithstanding By this Statute a Lord of the Parliament shall have the priviledge of his Clergy where a common person shall not viz. for the breaking of a house by day or night for robbing of any in the high way and in all other cases excepted in the Statute of 1. E. 6.12 saving in wilfull murder and poysoning But in all other cases wherein Clergy is taken away by any Statute made since the said Statute of 1. E. 6. he is in the same Degree that a common and inferior person is but the Court will not give him the benefit of this Statute if he doe not require it Jf the Lord of the Parliament doth confesse his offence upon his Arraignment or doth abjure or is outlawed for Fellony it seemes that in those cases he may have the benefit of this Statute viz. his Clergy for that by the Statute of 18. Eliz. cap. 18. he nor any other need to make his purgation but shall be forthwith delivered out of prison by the Justices sed quaere Poulton 202. b. By the Jmperiall Constitutions
for the saving of his tenancy being minded to pay all the arrerages before judgment given against him as by the Law hee ought to doe in this case hee must come in proper person and not by Atturney 15. H. 7.9 b. If a noble man in contempt of any processe which hath beene awarded from out of any the Kings Courts doth make rescous and wilfully doth refuse to obey the said writ and the same his offence doth appeare of record to the Court by the Sheriffs returne there may be and shall be awarded against him a Capias 1 H. 5. Case ult 27 H. 8.22 Cooks 6. part 54. If any Lord doe depart this Realm as Ambassadour or otherwise by the Kings lincence or without licence and doe not returne at the Kings Commandement or upon the Kings writ under his privy Signet the King may seize his lands goods and chattells Dyer 108. b. 17. the Dutchesse of Suffolks case If a Lord arrested upon a Supplicavit for the peace doe wilfully refuse to obey the arrest and make rescous upon his returne shall issue an attachment against the said Lord for his contempt to take his body and this is the way to obtaine peace against any Lord of the Parliament whereas the party could not have an attachment against him if the Subpoena had beene duly served and peaceably accepted although the said Lord had not appeared thereunto Cromptons Justice of Peace 134. If a Lord of the Parliament doth with force and arms detaine a man in prison in his House or elsewhere the remedy is in such cases by himselfe or his friends abroad at liberty to have a writ called de homine replegiando to deliver him but if the Lord to prevent the execution thereof and of malice doe keep or convey away this man so wrongfully imprisoned so privily as that the Sheriffe cannot execute his said writ then will the Court award a Witheram whereby the Sheriffe shall attach and arrest the body of the said Lord and imprison him untill he doe deliver his said prisoner 11 H. 4.15 All Lords are compellable to take the Oath mentioned in the Statute of 3 Jac. 4. vide the Statute 7 Jac. cap. 6. who have authority to minister the said Oath to them Bracton lib. 5. fol. 337.6 H. 3. 351. writing of essoines delivereth this learning that if a Baron that holdeth by Baron tenure have his absence excused by essoine he which casteth such essoine or excuse ought to finde surety that the said essoine is true but in case of common persons it shall rest upon the credit and integrity of the Essoince and so is the use at this day The Statute of magna charta cap. 1 a. is quod liber homo non amercietur pro parvo delicto nisi secundum modum illius delicti pro magno delicto secundum magnitudinem delicti nulla praedictarum miscricordiarum ponatur nisi per Sacramentum proborum legalium hominum de vicinate and accordingly is the Law thereunto at this day But the subsequent words in the said Statute viz. Comites Barones non amercientur nisi per pares suos non nisi secundum modum delicti are not in use for whether the offence be great or small for which they are to be amerced their amercement must be certaine viz. of a Duke ten pound and of any other of the Nobility Also whereas the amercement should be offered per pares the use is to offer them by the Barons of the Exchequer Cooks 8. Rep. 40. Bracton lib. 3. Tractat. 2. cap. 1. fol. 116. b. When a Peere of the Realme is arraigned in Appeale of Fellony he shall not have that priviledge to bee tried by his Peere as he should in case of Inditement but must undergoe the ordinary triall of twelve men Stamford Pleas of the Crowne lib. 3. cap. 1. Brook triall 142. Ferdinando Poulton 188. b. Read the book of Entries title appeale Sect. 7. also in Case of an Inditement the Defendant though a Peere of the Realme may not challenge any of his Triers either peremptorily or upon causes which in like cases permitted to all other common persons The Judgement to be given against any Lord of the Parliament in case of Felony or Treason shall be no other than according to the usuall judgement given against common persons and although the execution be not pursuant but with the losse only of their heads yet that is by the speciall grace of the King and not ex debito as by the examples of Thomas Lord Dacre 33. H. 8. and of the Lord Sturton 2 Mariae may appeare Brook tit Jury 48. By attainder of Treason or Fellony is corruption of blood so that their Children may not be heires unto them nor unto any of their Ancestors And if hee were a noble man before he is by the attainder made ignoble and not only himselfe but also his Children having no regard unto the Nobility which they had by their birth and this corruption is so strong and high that it cannot be saved by the Kings pardon or otherwise than by authority of Parliament Stamford Pleas del Coronae lib. 3. cap. 34. But here it is to bee observed that Nobility is not a thing substantiall but meere accidentall for that may be present or absent without corruption of the Subject whereof it dependeth for experience sheweth that the passage of honourable titles are restrained by exorbitant crimes when as nature in the meane while cannot bee thrust away with a fork Wherefore although the Lawyers doe terme and call that extinguishment of Nobility which hapneth by such hainous offences committed as corruption of blood neverthelesse they use not this manner of phrase and speech as though Nobility were naturally and essentially in the humour of blood more than any other hereditary faculty but because the right of inheritance which is by degree of communication of blood directed is by that meanes determined and ended and also in regard of the hatred and detestation of the crime it is called corruption of blood note in Dyer 16. Eliz. 332. the Lord Charles Howards case If one be made a Knight in a forraigne Kingdome by a forraigne Knight yet he is to be so stiled in this Realme in all legall proceedings but if a man be created by the Emperour an Earle of the Empire or into any other title of dignity he shall not beare this title here in England Cooks 7. part 16.20 E. 46. If there be a Father and Sonne and the Father is seised of lands holden in Capite or otherwise by knightly service the King doth create the same Duke and Earle or of any other degree of Nobility and afterwards the Father dieth his Sonne being within the age 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
Lawyers tearme matter in fact and not by any record Cookes 6. part 53. a. But a noble Woman by Marriage though she take to her a second Husband a man of meane degree yet shee may keepe two Chaplaines according to the Proviso in the Statute of 21. H. 8. c. 13. for and in respect of the honour which once she had viz. at the time of the retayner and every such Chaplaine may purchase ly cense and dispensation Cookes 4. part 117. Cowels Instutions lib. tit 10.15 but her Chaplaines may not be nonresident afterwards And forasmuch as the retayning of Chaplaines by Ladies of great estates is ordinary and neverthelesse some questions in law have beene concerning the true understanding of the said Statute law I thinke it not impertinent to set downe some subsequent resolutions of the Judges touching such matters Anne Baronesse of Mount Eagle in her Widdowhood did retaine two Chaplaines according to the Statute and one of them had but one Benefice and therefore did obtaine a dispensation with a confirmation from the Queene according to the tenour of the said Statute but before he was presented to his second Benefice the Lady did take to Husband Henry Lord Compton whereby she did forsake her former dignity of Baronesse of Mount-Eagle and afterward the said Chaplain did accept a second Benefice and was therunto admitted and inducted and the Judges have resolved that the Chaplain hath done nothing herein but according to the meaning of the Statute and that the Ladies marriage between his Retainer and acceptance of his second benefice was no Countermand Revocation or determination of that Retainer which the Lady lawfully then did make but that she living he might proceed to the filling up of the qualification Causa origio est materia negoti for though the wife of a Noble-man during the covecture cannot by Law rerain a Chaplain to be quallified according to the statute because by Intendment her Husbands Chaplains are sufficient for that Office yet forasmuch as the Retainer was lawfull then she was widdow that being the principall matter shall enable him to take use and benefice after her marriage for though the husband and wife are but one person in Law yet as the Text is sunt animo duo in carne uno Bracton lib. 5. fol. 363 a. And in this case by the death of the Lord Compton her first Retainer was not determined for without any neer Retainer her said Chaplain may take his second benefice and also for that cause so long as the said Chaplains do attend upon their said Lady in her House they shall not be endammaged for Non-residency Cooks 4. part 117. fol. 90. 76. That which remains concerning the further exposition of this statute you may read before in the title of priviledge of Lords So long that the wise of a Duke be called Dutchesse or of an Earl be a Countesse and have the fruition of all the Honours appertaining to that estate with kneeling tasting serving and the rest and so long shall a Barons widow be saluted Lady and a Knights wise also by the courteous Speech of England quandiu Maj. aut viduitâ— vic durant except she happen to relaps with an Adulterer for as the Laws of this Kingdome do adjudge that 〈◊〉 woman shall lose her dower in that case viz. west cap. B. F.N.B. fol. 150. H. Perk. fel. 70. Kitchin 162. b. as Ruâ—oâ— Lands and Tenents so justly so doth the Laws of Gentry and Noblenesse give sentence against such a womaâ— advanced to Titles of Dignity by the husband to be unworthy to enjoy the same when she putting her husband out of mind hath subjected her self to another If a Lady which is married come through the Forrests he shall not take any thing but a Dutchesse or 〈◊〉 Countesse shall have advantage of the statute de Charâ—â— Porest 11. Art during the time that she is unmarried Cromptons Court fol. 167 b. Wheras it is contained in the great Charter amongâ—â— other things in the Form which followeth no Freemaâ— shall be taken or imprisoned or deseised of his Free-hoâ—â— or his Liberties or Free-customs or shall be outlawed oâ— banished or in any wise destroyed nor go upon him bâ—â— by the lawfull judgment of his Peers or by the Law oâ— the Land In which statute is no mention made how women Ladies of great estate because of their Husbands Peers of the Land married or sole that is to say Duchesse Countesse or Barronesse shall be put to answer oâ— before what Iudges they shall be judged upon an Inditement of Treason or Fellonyes by them committed oâ— done because wherof it is an Ambiguity in the Law oâ— England before whom and by whom such Ladies so endicted shall be put to answer and be judged by our said Soveraign Lord the King willing to put out such Ambiguities and Doubts hath declared by Authority aforesaid that such Ladies so endicted or hereafter to be endicted whether they be married or sole therof shall bee brought in answer and put to answer and judged before such Iudges and Peers of the Realm as Peers of the Realm should be if they were endicted of any Treasons or Fellonyes done or hereafter to be done and in like manner and Form and in none otherwise Anno 2. H. 6. Cap. 9. Which statute was but a Confirmation or Declaration of the common Law vide Cooks 6 part 52. b. This is a Rule in the civill law si filia R. nubat alicui dom vel Comiti dicetur semp Regalis As amongst Noble women there is a difference of degrees so according to their distinct excellentnesse the law doth give speciall Priviledges as followeth By the statute of 25. E. 3. cap. 2. It is High Treason to compose or imagine the death of the Queen or to violate the Kings Companion The Kings Espouse is a sole person exempted by the common law and she may purchase by Fee-simple or Make leases or Grants without the King she may plead and be impleaded which no other married woman can do without her husband Cook 4 part 23. B. Theol. lib. 1 a. cap. 4.24 E. 3.63 vide Bracton 363. a. All Acts of Parliaments for any cause which any way may concern the Queen and her Capacity are such statutes wherof the Judges ought to take recognisance as of generall statutes for though the matter do only concern the Capacity of the Queen yet it doth also concern all the subjects of the Realm for every subject hath interest in the King and none of his Subjects who are within hiâ— Lawes is divided from the King being his head and Soveraigne so that his businesse and things do touch all the Realme and as all the Realme hath interest in the King so and for the same Reason in the Queene being his wife Plouden 23.1 a. Cookes 8. Repl. 28. A man seised of divers Lands in Fee holden by Knights service some by Prioritie that is by ancient Feofment holden of others and some
Emperour be made Earle of the Empire his wife shall not beare that title of Honour either according to Law or in Reputation All the Daughters of Dukes Marquesses and Earles are by custome of long time used in the Kings Houses or palace named Ladies and have precedencie and place according to the degrees of their parents and so of this custome the Law doth take notice and give allowance for the honour and decencie but neverthelesse in the the Kings Courts of Justice they beare not these titles of Honour no more then the sonnes of such Noble person may doe brothers to such Ladies Finis Nobilitatis A TREATISE OF KNIGHTS AND Matters incident to the Degree of Knighthood according to the Lawes of England THE particular kinde of services by which lands of Inheritance are distinguished be two viz. Knight service and socage vide Littletons Soccage c. 26. In ancient time Tenure by Knights service was called Regale Servitium Cooke in his Preface to his 3. Book fol. 3 a. because it was done to and for the King and the Realme and formi secum servitium as appeareth in Anno 19. Edw. 2. Title Avowry 224.26 ass p. 66.17 H. 4.19 Cookes 7. part 8. a. Calvins case because they which doe hold by soccage ought to doe and performe their services out of the Realme Littleton 35. Et ideo formi secum dicipoterit quia sita capitur foris Hum. Servitiam persolvuntur ratione tenementarum non personarum Bracton fol. 36. And as Knights service land requireth the service of the tenement in warfare and battell abroad so Soccage tenure commandeth his attendance at the plough thâ— one by manhood defending the King or his Lords life and person the other by industry maintaining with rents corne and victuals his estate and family See Lambert Customes of Kent fol. 389. For they did thus order their owne lands and tenements one part they kept and detained in their owne hands and in them stately houses and Castles were erected and made for their habitation and defence of their persons and the Realme also Forrests and Parkes were made there for their pleasures Solace and Delight One other part hereof was given to the Nobles and others of their Chivalty reserving tenure by Knights service The third part was bestowed upon men of meaner condition and quallity with reservation of soccage tenure and in this manner the Dukes and other the Nobles with their menialls and followers dissipate to a great part of their lands viz. to their Gentlemen of quality to hold by Knights service and to others of meaner condition by Soccage tenure Gervasius Tilburiensis a learned man who flourished in the dayes of King Hen. 2. in his Dialogue of the observation of the Kings Exchequer hath in effect as followeth Untill the time saith he of King Hen. 1. the King used not to receive money of their lands but victuals for the provision of their house and towards the payment of their Souldiers wages and such like charges Mony was raised out of the Cities and Castles in which Husbandry and Tillage was not used and exercised But at length when the King being in the parts beyond the Seas needed ready money for and towards the Furniture of the warres and his Subjects and Farmers complained that they were grievously troubled by carriage of Victuals into sundry parts of the Realme farre distant from their dwelling houses the King directed Commissions to certaine discreet persons who having a regard of those Victuals should reduce them into reasonable summes of Money the leavying of which summes they appointed to the Sheriffe taking order withall that he should pay them at the scale or beame that is to say That hee should pay sixe pence over and above every pound weight of money because that they thought that the money in time would waxe so much the worse for the wearing Cambdens Perambulation of Kent fol. 172 173. Vide Littleton libro 2. fol. 26. Note also Gervasius Tilburiensis who lived Anno 1160. Anno 6. Hen. 2. And Cambden fol. 178. It was anciently ordained that all Knights Fees should come unto the eldest Sonne by succession of Heretage whereby hee succeeding his Ancestours in his whole Inheritance might bee the better enabled to maintaine the warres against the Kings Enemies or his Lords And that the Soccage Fee should be partable betweene the Male Children to enable them to encrease into many Families for the better furtherance in and increase of Husbandry See Cookes Preface to the Reader in his Ninth Booke Fol. 2.6 But as nothing is more unconstant then the estate we have in Land and livings if at least I may call that an estate which never standeth even so long since These tenures have been so indifferently mixed and confounded in the hands of each sort that there is not now any note of difference to be gathered by them See Lamberts perambulation of Kent fol. 10. Et quia tale servitium formi secum non semper manet sub eadem quantitate sed quandoque praefat ad plus quandoque ad minus Ideo qualitate Regalis Sencitii quantitate fiat mentio in charta ut tenens vectu tenere possit quid quantum persolvere tentatur Bracton fol. 36. And therefore the certainty of the law in this case is That he that holdeth by a whole and entire Knights see must serve the King or other Lord fortie dayes in the warres well and sufficiently arrayed and furnished at all points and by twenty dayes if he hold but the moitie of a Knights fee and so proportionably vide Littleton fol. 20. Anno 7. E. 3.1333 fol. 246. It was demurred in Judgement whether the 40. dayes should be accounted from the first day of the muster of the Kings Hoast or from the day that the King doth first enter into Scotland but it seemeth that the dayes shall be accounted from the first day that the King doth enter into Scotland because the Service is to bee done out of the Realme And they who hold per regale servitium are not to performe that service unlesse the King doe also go himselfe into the warres in proper person and that by the opinion of Sir William Hall Chiefe Justice of the Court of Common Pleas Term. Trin. Anno. 7. Ed. 3. fol. 246. but see Anno 3. H. 6. Titulo protec 2. In which case it was observed that seeing the protector who was pro Rex went the same was adjudged a Voyage Royall vide Cook 7 part of his reports and in Fitz-â—erbert Natura brevia 28. fol. 83. Also when before the statute De quia emptores terrarum made Anno 18. Ed. 4. the King or other Lord had given Lands to a Knight to hold of him by service in Chivalry to go with the King or with his Lord when the King doth make a Voyage Royall to subdue his Enemies by 40 days well and conveniently arrayed for the Wars In this case the Law hath such regard to the
such an heir within age 〈◊〉 made a Knight and therby to this purpose is esteeâ—ed of full age yet the Laws shall remain in the custoâ—â—â— of the Lord till his age of 21. years by the provision 〈◊〉 the said Act. Quere if the son and heir of the Tenant 〈◊〉 the King by Knight-service c. be made Knight in â—aris by the King of France whether he shall be out of â—ardship after the death of his Father or no for therby â—e is a Knight in England Cook 7. par a. 2. E. 4. fo b. tamen â—ide Cooks 6. par 74. b. Mention is only made of Knights â—ade by the King himself or by his Lieutenants in Ireâ—â—nd But when the King doth make an heir apparent withâ—â— age of a Tenant by Knights service a Knight in the â—se time of his Ancestor and after the death of his Anâ—estor the said heir being within age shall in this case be 〈◊〉 of ward and shall pay no value for his marriage neiâ—her shall the Lord have the custody of the Land for in â—hat case by the making of him Knight in the life of his Ancestor he is made of ful age so that when his Ancestor â—yeth no Interest in the body nor in the Land shall inâ—est but the Knight may tender his livery as if he were 〈◊〉 full age and in this case the King shall have primer â—â—ism as if he had bin 21. years old at the time of the deâ—ease of his Ancestor and not otherwise Cooks 8. part fol. 〈◊〉 71. a. for the statute of Magna Charta doth not extend â—nto it For the purpose of it doth extend only when the Heir is in ward infra etatem is made Knight then rema neat torra in Custodia But when the Heir is in ward being Knight in the life of his Ancestor then the Custodâ— cannot remain or continue which had never any inception or essence Also when the Heir after the death of his Ancestouâ— within age is made a Knight if after tender made untâ— him he within Age doth marry else-where yet he shalâ— not pay the Forfeiture of his Marriage For by the making of him Kâ—ight he is out of ward and custody of hiâ— Lord for then he ought to be sui juris and may imploy himself in Feats of Arms for defence of ths Realm and therfore may not be within the Custody or keeping of another but none shall pay any Forfeiture but when after refusall he doth marry himself during the time when he is under the Custody or keeping of his Lord. And this doth appear by the statute of Merton cap. 6. Si maritaverit sine licentia Domini sui ut ei auferat Maritagium suum c. Which Words cannot be understood when he is out of Ward and Custody no more then when he is married after his age of one and twenty years Note hereby may appear that the King may preâ—ent his Grant or other Lords of the double value by Knighthood yet in such a Câ—se presently after the Heir is made Knight after the Death of his Ancestour the Lord may have a Writ de valore Marigii for the single Cooks 6. part 74. and 75. and note Plowden f. 267. Also by the ancient Common-law of this Realm if a Villain be be made a Knight he is immediatly enfranâ—ranchized Olanvile lib. 5. cap. 5. f. 27. and Bracton lib. 4. â—ap 198. b. Or if a Ribauld or man of base Birth and Condition had â—trucken a Knight he should by the ancient Laws have â—ost his hand wherwith he offended Britton 19. in his â—ppeales But in France it was judged antiently that when a â—ord of a villain had Knighted his villain being a Gentleman he became Free and had the Honor lawfully â—ut if another Lord had Knighted him nothing had bin â—rought by it For none could mannue him but the Lord and till Mannumission or till Knighthood had ciâ—ill Freedome for his ground he was not capable of it â—xcept by the King only vide Seldens Titles of Honour fol. 318. It was enacted in Parliament Anno 6. Ioh. Regis in â—ec verba Rex vicecom c. Sciatis quod consensum est cum assensu Archieporum Comit. Baronium omnium fidelium urum Angl. quod Novem milites per totam Angl. invenient decimum militem bene paratum equis Armis â—d defensionem Regni nostri vide Cook before his ninth Book b. There hath ever bin and still is great use of the service of Knights even in civil affairs and concerning matters of Iustice as in a Writ of right which is the highest writ in the law for the trials of titles touching the inheritance of lands the Tenant is at election to have his tryall by a grand assize or else by battle if by the great assize then 〈◊〉 de magna assiza Elegenda shâ—ll be taken out And upon the return of that Writ those four Knights nominated must appear Gladiis cinctis Dyer 79. f. 103. If the Tenant make his election by Battle each parties are to choose their Champions and the Court shall award the Battle and the Champions shall be a mainprise and sworn to perform the Battle at a certain day in the Term and idem dies shall be given to the parties at which day and place a List shall be made in an even and plain ground their Squadrant that is to say every square 60. foot East West North and South and the place or Court for the Justices of the Common Pleas without and upon the Lists furnished with the same Cloths which belong to their Court at Westminster and a Barre there shall be made for the Sergeants at Law and the Robes of the Justices and Sergeants shall be of Scarlet with their Coifes as it was Anno 13. Eliz. and then was made Proclamation with three O. yes c. and the Demandant was first solemnly demanded and did not appear Wherupon the Mainprise of the Champion was demanded to bring forth the Champion of the Demandant who came to the place apparelled with red Sandalls upon his black Armour bare legged from the knee downwards and bare headed and bare Arms to the Elbowes being brought in by a Knight namely by Sir Ierome Bowes who carryed a Red Baston of an Ell long typt with horn and a Yeoman carrying the Target made of double Leather and they were brought in at the North side of the Lists and went about the sides of the Lists and then came towards the Bar before the Justices with their solemn Congies and there was he made to stay on the Southside of the place being the right side of the Court. And after that the other Champion was brought in like manner at the South-side of the lists with like congies by the hands of Sir Henry Cheney Knight and was placed on the Northside of the Barre and two Serjeants being of the counsell of each party in the midst betweene them this done the Demandant was solemnly called
out of use with us at this day nor with the French as also amongst the Italians Dominae for them is familiar vide Seldens title of Honour 1. part fol. 53. But if shee bee named Countesse or Baronesse shall abate the writ 14. H. 6.2 And Cookes 6. part des reports 53. b. By the statute of Magna charta cap. 21. Knights are free from cart taking that no Demeasne cart of them shall bee taken By the statute of 1. Iac. cap. 27. It seemeth that Knights may keepe Greyhounds and setting Dogges or Nets to take Pheasants or Partridges in though they cannot dispence 10. l. per annum nor bee worth 200. l. For the expresse words of that statute are that all the Sons of Knights are excepted Observations concerning a Knight Batchelour A Knight Batchelour cannot claime the priviledge that Knights have from cart-taking by Magna charta cap. 21. A Knight Batchelours Sonne cannot keepe a Greyhound because hee is not within the statute of 1. Iac. cap. 27. unlesse hee have 10. l. Lands c. Quars whether the Knight Batchelours addition doe abate any action c. If one bee Knighted in the life time of his Father it frees him of wardship but è contrario of a Knight Batchelour Knights are excused from attendance at Leets but so are not Knights Batchelours Of Esquires ALthough by the Civill Law there bee no Gentlemen of title under Knights but all the rest wont under the name of people yet with us there are in the ranke who have names of preheminence whereby they are in degree above the rest as Esquiers and Gentlemen all which give ensignes or coates of armes and thereby are distingnished from the meaner sort of people in which respect Bartol Tract de Insignis calleth Noble but of a weake Nobility for it hath no further prerogative in it then that it makes them differ from the baser sort of people Of these two sort of Gentlemen with us the Esquire hath the Prerogative priority but it seemes if an Esquire bee named Gentleman or a Gentleman bee named Esquire it is no vice in legall proceedings Brooke additions 44. Esquire seemeth by the Common name wee give him in Latine to have had his originall either for that hee carried the armour of the King Duke or other great personage as wee see not onely in the Scriptures as Saul and Jonathan had their armour bearers but in Poets and other Prophane stories Patroclus was Achilles his armour bearer and Clitus great Alexanders whereupon some write that hee whom wee call Armiger in Latine is a Foot-man that with a speare shield or head peece followeth an armed Knight in battaile or rather as some others suppose It is the Foot-man himselfe armed in the field but howsoever the word bee taken this is sure those men were of good accompt in old time as those who wonne themselves credit out of warre and so their estimation remained unto their posterity And as those were in time before so are these which are in our dayes as descending for the most part from their worthy Ancestours and our bookes of the Common Law doe distinguish them thus that is to say Knight-hood is a dignity but Esquires and Gentlemen are but names of worship An. 14. H. 5. And Brooke in his Abridgement in that case T it nosmer de dignity 33. saith to bee a Knight est Gradus but to bee an Esquire or Gentleman est Status For Gradus continet Statum inse non è contrari vide Thesoal 105. concerning this word worshipfull read in the printed booke Master Seldens title of honour Prima pars fol. 124. sequentia In time past every Knight had two of these waiting upon him they carried his morion and shield and as inseperable Companions they stuck close to him because of the said Knight their Lord they had certaine lands in escuage like as had the Knight himselfe who held them of the King by Knights service The beginning of armes in Europe amongst Christians is supposed from the â—oly warres for the Turke paint them not and so with us aâ—out H. 3. They became more hereditarily established and when the Prince enabled any hee gave them the partiâ—ular of his bearing in Blason Master Seld n in his Preface fol. 5. where you may also see an example in the Raigne of R. 2. But now adayes there are five distinct sorts of these for those whom I have spoken already bee now no more in any request the principall Esquires at this day are accompted those that are elected Esquires for the Princes body The next unto them be Knights eldest Sonnes successively In a third place are reputed younger Sonnes of the eldest Sonnes of Barons and of other Nobles of higher estate and when such Heires Males failes together with them also the title faileth In a fourth ranke are reckoned those unto whom the King himselfe together with the title giveth armes or createth Esquires by putting about their necks a silver Collar of S. S. and in former times upon their heeles a paire of white spurres silvered whereupon at this day in the West part of the Kingdome they are called white spurres and to the first begotten Sonne onely of these doth this title belong In a fift and last place be those ranked and taken for Esquires who have any superiour publike office in the Common-wealth or serve the Prince in any worshipfull calling at the Coronations of Kings and Queenes Knights of the Bath are made men of worth and honourable blood to the end that their Majesties may bee accompanied in their owne honours every of which Knight having two Gentlemen to attend him in that Ceremonie who are ever after enabled by that service to be Esquires during their lives But this name of Esquire which in ancient time was a name of charge and office only first crept in amongst other titles of dignity and worship so farre as ever I could observe In the raigne of R. 2. Camden fol. 176. vide Sir Thomas Smith de republica Anglorum fol. 26. where saith he that the Esquire is no distinct order of the Common-wealth and hereof see the statute of An. 16. R. 2. cap 4. and an ejusdem Regis cap. 2. A Serjeant of the Kitchin in the Kings house may beare the name and addition of Cooke or of Esquire by the opinion of Newton But Ienny said that such officers of the Kings House-hold would be much agreved if they should be named by their trade or occupation Paston peradventure faith in that case the writ may be good because of the Statute Anno 1. H. 5. cap 5. For the Statute is That hee shall be named of the Towne degree state condition or mysterie And when hee was named Cooke hee observed the Statute For hee hath named him by his name of mysterie and yet hee may be in that case an Esquire and a Cooke 14. H. 6. fol. 15. If a man be an Esquire or Gentleman only by office and lose his
it is no errour Brooke Cron 83. addition 58. So if any deed or obligation be made unto him by the name of yeoman If a Capius goe against A. B. yeoman and if the Sheriffâ— take A. B. Gentleman an action of false imprisonment lyeth against the Sheriffe vide An. 21. E. 4. fol. 71. b. But if a yeoman be indicted and A.B. Gentleman being the same man bee produced it is good Kelway 58. b. Gentlewomen have the same additions vide Dyer 88. IF one be a Gentleman by office and looseth his office then he doth also lose his gentility 28. H. 6.2 Estopel 47. By the Statute of 5. Eliz. cap 4. intituled an act touching divers orders for Artificers Labourers Servants of husbandry and apprentices amongst other things It is enacted that a Gentleman borne c. shall not be compelled to serve in husbandry If any Faulcon be lost and is found it shall be brought to the Sheriffe who must make Proclamation and if the owner come not within foure moneths then if the Finder bee a simple man the Sheriffe may keepe the Hawke making agreement with him that tooke it but if hee be a Gentleman and of estate to have and keepe a Faulcon then the Sheriffe ought to deliver unto him the Faulcon taking of him reasonable costs for the time that hee had him in custody An. 34. E. 3. cap. 22. and anno 37. E. 3. cap. 19. A Commission is made to keepe chrildren into Cathedrall Churches where children be instructed to sing for the furnishing of the Kings Chappell These generall words by construction of Law have a reasonable intendment viz. That such children who be brought up and taught to sing to seeke and sustaine their living by it Those may bee taken for the Kings service and it shall be a good preferment unto them to serve the King in his Chappell but the sonnes of Gentlemen or any other that are taught to sing for their ornament delight or recreation and not thereby to seeke their living may not bee taken against their will or the consent of their Parents and friends and so it was resolved by the two chiefe Iustices and all the Court of Star-chamber anno 43. Eliz. in the case of one Evans who had by colour of such Letters Patents taken the sonne of one Clifton a Gentleman of quality in Norfolke who was taught to sing for his recreation which Evans was for the same offence grievously punished Cook 8. Reports fol. 46. And to the end it may withall appeare what degrees of Nobility and Gentry there were in this Realme before the comming in of the Normans and by what merits men might ascend and bee promoted to the same I will shew you the copie of an English or Saxon antiquity which you may reade in Lamberts Perambulation of Kent fol. 3 64. and Englished thus viz. It was sometimes in the English Lawes that the people and lawes were in reputation then were the wisest of the people worship-worthy in his degree Earle and Chorle Theyne and under Theyne and if a Chorle so thrived that had fully five hides of land of his owne a Church and a Kitchin a Bel-house and a Gate a seat a severall office in the Kings Hall then was hee from thenceforth the Theines right worthy and if a Theyne so thrived that hee served the King on his message on his journey-ward in his houshold if he then had a Theyne which him followed who to the Kings experience had five hides and in the Kings Pallace his Lord had served and thrice with his errand had gone to the King hee might afterwards with his foreoath his Lords part play at need and if a Theyne that hee became an Earle then was hee from henceforth the Theynes right worthy and if a Scholler so thrived through learning that he had degree and served Christ he was thenceforth of dignity and peace so much worthy as thereunto belonged unlesse hee forfeited so that he the use of his degree ne might Mils 73. Nobility Politicall and Civill It is observeable that the Saxons out of all these trades of life which be conversant in gaine admitted to the state of Gentry such onely as increased by honest husbandry or plentifull merchandize of the first of which Cicero affirmeth that there is nothing meeter for a Free borne man and of the other that is prayse-worthy also if at the length being satisfied with gaine as it hath often come from the sea to the haven so it changeth from the havens into lands and possessions and therefore whereas Gervasius Tilburiensis in his observations of the Exchequer accounting it an abasing for a Gentleman to occupy Publicum mercimonium common buying and selling it ought to bee referred to the other two parts of merchandize that is to negotiation which is retayling or keeping of an open shop and to invention which is exercise mercery or some call it to play the Chapman and not to navigation which as you see is the onely laudable part of all buying and selling And againe whereas by the Statute of Magna charta cap 6. and Merton cap. 7. It was a discouragement for a ward in Chivalry which in old time was as much as to say a Gentleman to bee married to the Daughter of a Burgesse I thinke it ought to bee restrained to such onely as professed handy crafts or those baser arts of buying and selling to get their living by But this matter I leave to the Heraulds And in this place it may bee remembred that King Hen. 8. thought it no disparegement unto him when hee tooke Anne Daughter of Thomas Bullen sometimes Major of London to his wife The Statute of Westminster 2. cap. I. which was made Anno 13. E. 1. was procured especially and purposely at the desire of Gentlemen for the preservation of their lands and hereditaments together with their surnames and faculties and therefore one called this Statute Gentiliteum municipale and the Lawyers call it Ius taliatum taliabile The children onely of Gentlemen were wont to bee admitted into the Innes of Court and thereby it came to passe that there was scant any man found within the Realme skilfull and cunning in the Lawes except hee were a Gentleman borne and came of a good house For they more then any kind of men have a speciall care to their Nobility and to the preservation of their honour and same for in those Innes of Court are vertue studied and vices exiled for that for the endowment of vertue and abandoning of vice Knights and Barons with other States and Noblemen of the Realme place their Children in these Innes though they desire not to have them learned in the Lawes nor to live by the practice thereof but onely upon their Fathers allowance vide Fortescue de laudibus Anglorum cap. 49. But the Statute of An. 3. Iac. cap. 4. amongst other things it is enacted that if any Gentleman or Person of high degree shall hereafter goe or passe
voluntarily out of this Realme to ferve any forraine Prince State or Potentate before that hee or they shall become bounden with two sureties as shall bee allowed of the Officers by that act limited to take the said bond unto the King his Heires and Successours in the summe of twenty pounds of currant English money at the least with condition to the effect following hee shall bee a felon viz. That if the within Bounden c. shall not at any time then after bee reconciled to the Pope or Sea of Rome not shall enter into or consent unto any practise plot or conspiracy whatsoever against the Kings Majesty his Heires and Successours or any of his or their estate or estates Realmes and Dominions but shall within convenient time after knowledge thereof had revealed and disclosed to the Kings Majesty his Heires and Successours or some of the Lords of his or their Privy Counsell all such practises plots and conspiracies and that then the said obligation to bee void c. Of Yeomen THe Yeomanry or Common people for they bee called of the Saxon word Zemen which doth signifie Common who have some lands of their owne to live upon for a carve of land or Plow land was in antient times of the yearely value of five Nobles and this was the living of a sober man or Yeoman Cookes 9. part fol. 124. b. But in our Lawes they are called Legales homines a word very familiar in writs and inquests and by divers Statutes it hath beene enacted that none should passe in any inquest unlesse they had fourty shillings freehold in yearely revenues which maketh if the most value were taken to the proportion of moneyes above six pounds of our currant money at this present Sir Thomas Smith fol. 30. and by the Statute of 27. Eliz. cap. 6. Iurours must have 4. l. in lands In the end of the Statute 23. H. 6. cap. 15. concerning the election of Knights for the Parliament it is expressely provided that no man shall bee such Knight which standeth in the degree of a Yeoman It appeareth in Lamberts perambulation of Kent that this Saxon word Telphinorman was given to the Theine or Gentleman because his life was valued at twelve hundred shillings and in those dayes the lives of all sorts of men were rated at certaine summes of money Telphinorman to the Chorle or Yeoman because the price of his head was taxed at two hundred shillings which thing if it were expressely set forth in sundry old Lawes yet extant might well enough bee found in the Etimologie of the words themselves the one called a Twelve hund as if it were a twelfe hundred And in this estate they please themselves and joy exceedingly insomuch as a man may find sundry Yeomen although otherwise comparable for wealth with many of the Gentle sort that will not yet for that change their condition nor desire to bee apparelled with the title of Gentry Lamberts estate of Kent names the Yeomanry of Kent when a Yeoman of 10000. l. yearely revenues and refused any other superiour title but these are now no more heard of c. By the Common Law as may appeare in An. 1. E. 2. De militibus in An. 7. H. 6.15 men that had lands of the yearely value of 28. l. were compellable at the Kings pleasure to take upon them the order of Knight-hood and upon summons there came a Yeoman who might dispend 100. markes per annum and the Court was in doubt how they might put him of and at last hee was wayved in because hee did come the second day An. 7. H. 6. fol. 15. a. By this sort of men the triall of causes in the Countrey proceedeth ordinarily for of them there are greater number in England then in any other place and they also of a more plentifull lively hood and therefore it cometh that men of this Countrey are more apt and fit to discerne in doubtfull causes of great examinations and trialls then are men wholly given to moyling in the ground to whom the rurall exercise engendreth rudenesse of wit and mind and many Franklins and Yeomen there are so neere adjoyning as you may make a Iury with little difficulty For there bee many of them which bee able to spend 100. l. a yeare vide Fortescue de landibus Anglorum c. As in ancient time the Senatours of Rome never elected a Censor and as with us in conserving of Nobility respect is had unto the Revenues by which their dignity and Nobility may bee supported and maintained Cookes 7. part 33. b. so the wisedome of this Realme hath of ancient provided that none shall passe upon Iuries for the trials of any matters reall or personall or upon any criminall cause but such as besides their moveables have lands of estate for life at the least to a competent value least for need and poverty such Iurours might easily bee corrupted 〈◊〉 suborned Fortescue 56. b. And in all cases and causes the Lâ—w 〈…〉 â—â—â—ved a better opinion of those that have 〈…〉 â—â—nements or otherwise are of worth in troveaâ—â— goods presuming that such will commit or omit nothing that any way may bee prejudiciall to their estimations or which may endanger their estates then hath Labourers Artificers Retaylers or such like of whom Tully saith Nihil proficiunt in so adâ—â—â—â—â—â—â—â—iuntur and by divers Statutes certaine immunities are given to men of quality which are deemed to the vulgar sort of people read hereof amongst other in An. 1. Iac. cap. 127. By the Statute of 2. H. 4. cap. 21. amongst other things it is enacted that no Yeoman should take or weare any livery of any Lord upon paine of imprisonment and to make fine and ransome at the Kings will FINIS