Parliament by Writ as Baron such Heir Male omitting the Husband of the Issue of such Heir Female And this also appeareth by a notable Controversie in the time of Henry the Seventh between Sir Robert Willoughby Lord Brook and Richard Lord Lattimer for the Barony of Lattimer which in effect was The said Lord Brook did challenge the Barony of Lattimer as Coâ—in and Heir of Elizabeth his Great-grandmother who was Sister and Heir of Iohn Nevill Lord Lattimer who died without Issue And hereupon exhibited a Petition to Henry the Seventh in Parliament whereunto Richard Lord Lattimer was called to answer because he then enjoyed the said Title and Dignity The said Richard Lord Lattimer did by his Answer shew That after the death of the said Iohn Nevill Lord Lattimer without Issue the said Elizabeth was his Sister and next Heir and married unto Thomas Willoughby Knight second Son of the Lord Willoughby But Henry the Sixth for that the said Iohn Nevill Lord Lattimer was dead without Issue and that the next Heir was Female did therefore call to the Parliament George Nevill Knight second Son of Henry Earl of Westmoreland to be Lord Lattimer as Cosin and next Heir Male of the said Iohn Nevill Lord Lattimer which George was Grandfather of the said Richard Lord Lattimer Father of the said Richard In debate of which cause the Question now in hand namely Whether a Barony by Writ may descend to the Heirs Female was advisedly considered of by the King and his Nobility in Parliament and in the end adjudged with the said Richard Lord Lattimer which President doth afford us two Judgments in this point And in the time of Henry the Sixth when the Writ was directed to the said Sir George Nevill Knight whereby he was summoned as Lord Lattimer to the Parliament and as Heir Male and not the said Thomas Willoughby Knight husband of the said Elizabeth Heir Female And the second Judgment was given in the time of Henry the Seventh whereby the said Barony was adjudged to the said Richard Lord Lattimer coming out of the special Heir Male against the Lord Brook descended of the general Heir Male. But here in this President before remembred of the Barony of Dacres may be objected to encounter this Conclusion for there was an Heir Female married unto Sir Richard Fines who by the Declaration of King Henry the Sixth was Baron of Dacres in right of his wife And there was also Ralph and Humphrey the Heirs Males before whom the Heir Female was preferred by the censure of Henry the Sixth and Edward the Fourth This Objection is easily answered for although Henry the Sixth through the Princely favour which he bore unto Sir Richard Fines had declared him to be Lord Dacres in right of his wife yet notwithstanding did Ralph Dacres being Heir Male then unto the Lord Dacres and by that name was attainted in Parliament Anno primo Hen. 4. Wherefore the reason why the Heir Male could not be regarded was the said Attainder of the said Raâ—ph and Humphrey his brother and therefore when Humphrey in the 12 th of Edward the Fourth laboured to have the said Attainder Reversed he submitted himself to the Arbitrement of the King who to satisfie both Competitors both having deserved of him after he had admitted them to his favour he allowed one to be Lord Dacres and the other to be the Lord Dacres of Gillesland And thus much concerning the second Point Whether a Barony by Writ may descend unto the Heir Female The third Point As concerning the third Point admitting such Descent to be to the Heir Female when there is no Heir Male that may claim the same for then doth this Question take place Whether the husband of such an Heir Female shall enjoy the Dignity in right of his wife or no Wherein we are to rest upon a Resolution had and given to this special Question which was in this manner In the time of Henry the Eighth when Mr. Winby took upon him the style of Lord Talbois in right of his wife having no Issue by her The said King assisted both by Civil and Temporal Lawyers gave Sentence That no husband of a Baroness in her right should use that Style and Dignity until he had by her a Child whereby she should become Tenant by Courtesie unto her Inheritance The special Reasons that occasioned this Sentence were two First It should be convenient for her husband this day to be a Baron and a Peer of the Realm and to morrow by the death of his wife to become none and without the default of the party Secondly If he had Issue by wife and were entituled to be Tenant by the Courtesie of England of his wives Lands if he shall not also bear the Style and Dignity of his Wives Barony then should the Son after the death of his mother dying in the life time of his father be a Baron and Lord without Land for so the father should have the Land as Tenant by Courtesie and the Son the Lordship without Land And thus much said concerning the Nature Quality and Estate of a Baron by Writ and for the Resolution of the several points and Articles of the Question proposed may suffice CHAP. XII Barons by Patent which is the third kind of Barons mentioned in the former Division of Barons THere is also a fourth means of Creation viz. by Act of Parliament but the first two mentioned and this other by Patent is most usual for the Honour of the King for thereby the Donation doth proceed from his Majesty only as from the Fountain of Honour But when the Creation is by Parliament the King ever is one and may be said to be Donor A Baron therefore by Creation by reason of Letters Patents is that noble Person whom the King or any of his Progenitors Kings of this Realm have created Baron by such their Letters Patents began in the Reign of King Richard the Second This kind of Dignity of a Baron shall be of such continuance in Descent or otherwise as shall be limited in the Habendum in such Letters Patents contained for it may be but for the life of him to whom it is given or for term vanter vie as some hold Opinion in the 32 of Hen. 6. for cujus est dare est disponere It may be in special in our general Tayl and this kind of Tayl was usual before the Statute made decimo tertio of Edw. 1. by which Estate Tayl of Lands and Tenements was created as appeareth by the Patent whereby Hubert de Burgo was made Earl of Kent in the time of Henry the Third by these words Habendum sibi haeredibus suis de corpore Margaretae uxoris sui sorors Alexandri Regis Scotiae procreatis pro defectu talis exitus remanere in directis haeredibus dicti Huberti And that Estates intayl are at this Day of Titles of Honour by the said Statute of Westminster the second Question If a
â— Erasmus is now maried to Mary daughter of Hugh Hare Baron of Coleâ—â—â— in Ireland 〈◊〉 the Lady Lucy Mountague daughter of Hen Earle oâ—â—â—â—chester L d 〈◊〉 Coll Robert Werden of Chester Comptroler to his Royall Highness Iames Duke of York and first Leiutenant and Major of his Guards first maried to Iane daughter of Edw Barnham of Cock hall in Kent Esq r and now to Margaret daughter and heyre of Will Towse of Bassingburn hall in Essex Esq. Humphrey Weld of Lulworth Castle in Dorsetshire Esq r Governor of his Ma â—ys Isle and Castles of Portland and Sandes foot lineally desended from Edricke Sylvaticus alias Wildâ— a Saxon of great renowne in the reignes of K. Herold and Will the Conquerorâ—whose father Alfrick was brother to Edricke of Stratton Duke of Merciaâ— wch sd. Humprey is now Maried to Clara daughter of the Rt. honble Thâ—â— Ld. Arundel of Warden Court of the Empire Colâ— Thomas Sackevile of Selscombe in Sussex a Person of great Loyalty being one that served his late maty in all his expeditions and was one of the Captaines of his life guards in the begining of the late warrs He is now maried to Margaret daughter of 〈◊〉 Henry Compton of Brambletye in Sussex K â— of the Bath and Uncle to the late Earle of Northampton Phillip Doughty of Eashere in the County of Surrey Esq descended from an English Saxon family of ye. Dohags who were here Sealed before the Conguest Skynner Byde Esqr. eldest sonn of Sr. Thomas Byde of Ware Park in the County of Hertford Knight now maried to Anne daughter of Tho Austen of Hoxton in Middlesex Esqr. Captaine Iohn Huitson of Clâ—asbey in the County of York one of the Captaines of the Couldstrem Regiment of foot guards to his maty King Charles the second now maried to Martha daughter of Sr. William-Cooper of Ratling Court in Kent Baronet Thomas Tomlins of St. Leonards Bromley in Midd. sx Esq r first maried to Ann daughter of Captaine Will Goodladd of Lee in Essex 2dly to Eliz daughter of Ric Swinglehurst of London Merchant 3dly to Eliz daughter of Reynolds of East Grenwich in Kent Esq r now to Susanna daughter of Geo Cranmer of Canterbury in Kent afore sd Merchant Nicholas Barbon of London M.D. one of the Colledge of Phisitians of the S â— Citty now maried to Margaret daughter of Iohn Hayes of Hadley in Midd sx Esqr. Beaumont Dixie of Bosworth in the County of Leicester Esqsr. sonn and heyre of Sr. Wolstan Dixie of Bosworth aforesaid Bart. now maried to Mary sister and heyre to Sr. William Willoughby of Willoughby in Nottinghamshire Bart. deceased Richard Winwood of Ditton Park and Quainton in the County of Bucks Esqsrâ— sonn and heyre of the Rt. honble Sr. Ralph Winwood Knightâ— Embassador Ledger to â—he States of the united Provinces and principall secretary of state to King Iames. Edward Peck of Samford Hall in the County of Essex sergeant 〈◊〉 Law to his maty King Charles the 2â— sonn and heyre of Will Peck of Metâ—â—â—â—old in the County of Norfolk Esqsr. and intermâ—ried w â— Graâ—e one of the daugâ—â—â—ers â—â—d CoheyrÌ„s of Will Green of East Barnet in Hartfordshire Esqs â— William Peck of Samford hall in the County of Essex Esqs â— sonn and â—eyre of Edw. Peck sergeant at Law and is now maried to Gartrude sole daughter and heyre of Sr. Willâ— Grâ—en of Mitcham in the County of Surry Bart. Iustinian Pagit of Grais Inn in Com Middz Esqss. Cristos Brâ—ium et Recordorum Banco Regis Ioseph Micklethwaite of Swyne in Holderness in the County of York ' Esqs s William Mountagu Esqss. son heyre to the honble William Mountagu Lord cheife Baron of his matys Court of Exchequer maried to Ann Sole daughâ—â—â—â— heyre of Ric Evelyn of Woodcot in the County of Surreyâ— Esqss. Thomas Robinson of the Inner Temple Londoâ— Esqss. cheife Prothonotary of his matys Court of Comon Pleas. Francis Diue of Bromham in the County of Bedford Esq son heirè of Sr Lewis Diue of the said place Kt. now maried to Theophila Daughter of the Right Reverend Father in God Iohn Hackett late Lord Bishop of Litchfeild and Couentry Owen Feltham of Greys Inn in ye. County of Middlesex Esq r now maried to Mary one of ye. Daughters Coheires of Alexander Portree of Barnstaâ—le in Devonshire Esqâ— Francis Wythens of Eltham in the County of Kent Esq one of ye. society of the Middle Temple London Iames Hoare of Edmonton in the County of Middlesex Esq and one of the society of ye. Middle Temple London Thomas Foley of Kidderminster in Worcestersh Esq eldest son of Thomas Foley of Witley Court in Worcestersh Esq now maried to Elizabeth Daughter of Edward Ash of Halsted in the County of Kent Esq. Paul Foley of Stoakâ— Court in the County of Hereford Esq. second sonn of Tho Foley of Witley Court in Worcester shire now maried to Mary daughter of Iohn Lane of ye. Citty of London Esq. Phillip Foley of Prestwood in the County of Stafford Esq third son of Tho Foley of Witley Court in Worcestershire Esq now maried to Penelope daughter of the Rt. honble Wm. Ld. Pagett Baron of Beaâ—desert Tollemach Duke of Lincolns Inn in Middlesex Esq Exigenter for London ct. in the Court of Common pleas sonn heyre of Dr. Edward Duke of HoningtoÌ„ in Suffolk by Eliz his wife onely daughter of Robert 2d son of Sr. Lionel Tollemach of Bently Helmingham in the Sd. County â—ar â— linealy descended in a direct male line from ye. antient family of the Dukes of Brampton Shadingfeild in the Sd. Counâ—y of late Barts Thomaâ— Walker of yâ— Inner Temple London Esqs s som time Comptroller of yâ— S â— society son of Thomas Walker of Warwicâ—shire Esqss. who is descended from an antient family of that name in Leicestershire wch Sd. Tho the bearer hereof is now maried to Elizabeth daughter Coheyâ—e of Hoo Games of Newton in Brecknockshir Esqs â— of wch Sd. familys see more in the body of thâ— Book Sâ—ction chapter Iohn Bennet of â—bington in the County of Cambridge Esqss. Iohn Lewkenor of West Deane in Sussex Esqs s son and heyre of Sr. Iohn Lewkenor Kt. of yâ— Bath deceased by Ann daughter and Coheyre of George Myn of Myn in Shropshir Esqs s decended from the antient family of the Lewkeâ—ors Thomas Coxe M.D. Physitian in ordinary to his maty King Charles the 2d. William Thompson of the Middle Temple London Esq noâ— maried to Mary Sole daughter of Iohn Stephens of Broadway in Worcestershire Gent. William Atwood of Bromfeild in Essex and Grais Inn in Middlesex Esq son and heyre of Iohn Atwood Esq desceased by Elizabeth daughter and Coheyre of Patrick Young Esq son of Sr. Peter Young K â— Abnoner and privy Councellor of Scotland to King Iames. Thomaâ— Plott Esq secretary to his Highness the Great Duke of Tuscany descended of the family of the Plotts of Sparsholt in Berkshire Iohn Warner of
Adversaries in this manner viz. The Writ of Summons to the Parliament whereby the Baron by Writ hath his Original is to call that Honourable and Worthy Person so summoned to the number of that Right High and Honourable Assembly and to be a Judge to sit hear and determine Life and Member Plea and right of Land if there shall come occasion likewise to give Counsel and Advise in the most mighty Affairs of the Realm But these things are convenient for the quality and condition of men unfitting and altogether unbeseeming the Sex of women Ergo having respect unto the scope and final purpose of such Writs such Inheritances should only descend unto the Heir Female The Second Argument contra Secondly If it shall be answered That although the Heir Female to whom such Inheritance is descended be unfit in her own 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 an Heir Female were at full Age at the death of her Ancestor unmarried for it doth lye in her own choice then whom shall be her Husband The Third Argument contra Thirdly If such Husband shall be called by the right of his Wife the Writ shall make some mention thereof for otherwise it may well be taken that the Husband was chosen in his own person and in behalf of himself and not in regard of his wife or such pretended Dignity descended unto him But there was never such a Writ of Summons seen wherein the wife was mentioned And if the husband of such a wife have been called to the Parliament which is always by General Writ not mentioning his wife he is thereby made a Baron of himself by virtue of the said Writ Having thus heard both sides to dispute place it doth now require to interpose Opinion to compound the Controversie This point in queâ—tion is somewhat perplexed by means of difficult Presidents For first it is observed That some Presidents do prove that Baronies by Writ have descended unto Heirs Female whose husbands have been called to Parliament whether in regard of themselves or in respect of their wives right it maketh no matter but since it is that the marriage of such Ladies gave that occasion to be summoned and such husbands and their Poâ—â—erity have and do lawfully bear the same Title of Dignity which the Ancestors of such a wife did before rightfully bear For by this Controversie theâ—e 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 dutiful Subject That the King's Majesty is nevertheless at liberty to call to his High Council of Parliament whom he shall in his Princely Wisdom think fit which by his Majestie 's Noble Progenitors have in former Ages likewise observed And therefore whereas Ralph Lord Cromwell being a Baron by Writ died without Issue having two Sisters and Coheirs Elizabeth the eldest who married Sir Thomas Nevile Knight and Ioan the younger who married Sir Humphrey Butcher Knight who was called to Parliament as Lord Cromwell and not the said Sir Thomas Thirdly It is to be observed That if a Baron by Writ die without Heir Male having his Daughter Sister or other Collateral Heir Male that can challenge the Land of the said Baron deceased by any ancient entail or otherwise the Title of such an Heir Female hath heretofore been allowed as by the honourable Opinions and Relations of the Right Honourable the late Commissioners in the Office of Earl-Marshal signified unto the late Queen upon Petition of the Sister and Heir of Gregory Lord Dacres deceased may appear Moreover in the same Pedigree of the Lord Dacres it was expressed That Thomas sometimes Lord Dacres had issue Thomas his eldest Son Ralph his Second and Humphrey his third Thomas the eldest died in the life of his Father having issue Ioan Daughter and Heir who was married to Sir Richard Fines Knight and after Thomas Lord Dacres his Grandfather and Father to the said Ralph and Humphrey died after whose death Henry the Sixth by his Letters Patents bearing date at Westminster the Seventh of November in the Seventh year of his Reign reciting the said Pedigree and Marriage doth by his said Letters Patents accept declare and repute the said Richard Fines to be Lord Dacres and one of the Barons of the Realm But afterwards in the time of Edward the Fourth the said Humphrey Dacres after the attainder of the said Ralph and himself by an Act of Parliament which was the first of Edward the Fourth And after the death of the said Ralph and the Reversal of the said Act by another Act in the Twelfth of Edward the Fourth the said Humphrey made challenge unto the said Barony and unto divers Lands of the said Thomas his Father whereupon both parties after their Title had been considered of in Parliament submitted themselves to the Arbitrement of King Edward the Fourth and entred into Bond each to other for the performance thereof whereupon the said King in his Award under his Privy Seal bearing date at Westminster the Eighth of April Anno Regni sui decimo tertio did Award that the said Richard Fines in the right of Ioan his wife and the Heirs of his body by the said Ioan begotten should keep have and use the same Seat and Place in every Parliament as the said Thomas Dacres Knight Lord Dacres had used and kept and that the Heirs of the body of the said Thomas Dacres Knight then late Lord Dacres begotten should have and hold to them and to their Heirs the Mannor of Holbeach And further That the said King Edward did Award on the other part that the said Humphrey Dacres Knight and the Heirs Males of the said Thomas late Lord Dacres should be reputed had named and called the Lord Dacres of Gillesland and that he and the Heirs Males of the body of the said Thomas then late Lord Dacres should have use and keep the place in Parliament next adjoyning beneath the said place which the said Richard Fines Knight Lord Dacres then had and occupied And that the Heirs of the body of the said Ioan his wife shall have and enjoy and that the Heirs Males of the said Thomas Dacres late Lord Dacres should have to them and the Heirs Males of their bodies begotten the Mannor of Iothington c. And so note that the name of the ancient Barony namely Gillesland remained unto the Heir Male to whom the Land was entailed Moreover this is specially observed If any Baron by Writ do die having no other Issue than Female and that by some special entail or other assurance there be an Heir Male which doth enjoy all or great part of the Lands Possessions and Inheritances of such Baron deceased the Kings have used to call to the
Cooke of Kingsthorp in Northampton shire Gent â— Sr. Thomas Player of Hackney in Middlesex Knight Chamberlaine of the Citty of London Sr. Iohn Berkenhead Knight Master of Requests to his Majesty and Master of the Faculties and one of the members of the Honourable house of Comons Sr William Drake of Amersham in the County of Bucks Knight now maried to Elizabeth daughter of the honble â— â— Mountâ—gu Lord cheife Baron of his matys Court of Exchequer Sr William Pargiter of Greetworth in Northampton shire Knight a samily of good Antiquity whose Ancestors have been their Seated for many Generations Sr. William Waller of Winchester in Hantshire K descended from Richard Waller of Groombridg in Kent Esqr. who at the battle of Agencourt took Ioâ— Duke of Orleanse Prisoner and brought him to Groombridg whâ—re he remained a Prisoner 24 yeares and in memory of the Action it hath bin ever since allowed to the family to beare hanging on their Antient Crest the Armes of the said Duke Sr William Hustler of Acklam in Cleaveland in The County of York Kt Sr. Joseph Sheldon of the Citty oâ— London Kt. Alderman Lord Mâ—j therof Anno 〈◊〉 Sr. Robt. Hanson of the Citty of Londoâ— Knight and Alderman Lord Major thereof Anno 1673 Sr. Iohn Maynard of Gunnersbury in the Parish of Ealing in the County of Midlesex Knight sergeant at Law to his Majesty King Charles the second S â— Iohn Shortâ—r of the Citty of London Kt. and Alderman now maried to Ezabeâ— daughter of Iohn Birkhead of Ristwhait 〈◊〉 yâ— parish of Crostwhait in Cumberland Gen â— Robert Peyton of East Barnet in ye. County of 〈◊〉 Kt. descended of ye. Antient Family of ye. Peytonâ— Cambridgshire noâ— Maried to Iane Daughter and 〈◊〉 heyrs of Lionell Robison of Couton in York shire Esq. Sr. Edward Lowe of new Sarum in Wiltshire Kt. one of the Masters of the High Honourable Court of Chancery Sr. Iohn Iames of Wiâ—â—borow in Kâ—nt Kt. dâ—scended of ye. â—ntiâ—â—â— And Sâ—râ—ading Family of ye. Iamâ—â—is Who Transplâ—nted Themseluâ—s out of Cleâ—â— in Germaâ—y into England About ye◠〈◊〉 of yâ—â—â—igne of K. 〈…〉 Family Sâ—◠〈◊〉 in Tâ—â— Body of yâ— Book Sâ—ction Chap 1 Thâ— Sâ—S Ioâ—n is â—â—w Maried to Mâ—â—y dâ—ughtâ—r of Sr. Robert Kiâ—â—eâ—râ—w of Haâ—worth in Middleâ—â—â— Kt. desâ—â—ed 〈◊〉 Câ—â—mâ—erâ—â—n to yâ— Late Queen Mother 〈◊〉 Hon Sr. Robert Bâ—oth of Salford in Lâ—â—câ—shire K â— â— chife Iustice of 〈◊〉 Matâ—s Court of Comâ—n pleas in Ireland one of his Ma â—â—â— most Hon priâ—â—â—â—â—ncell for yâ— S d Kingdome Grandchild heyre of Humfry â—ooth of Salford 〈◊〉 Gâ—n whose Châ—ritable works 〈…〉 his name of w â— see more in â—â—â—dy of yâ— Bocke sâ—e 3 chapt. 1â— The Sd. Sâ—r. Robert was first maried to mary â—â—â—ghter heyre of Spencer Poâ—ts of Chalgraye in Bedfordshire Esq 〈…〉 to Susanna Daughter of Sr. 〈…〉 of Dean in East Kent Kt. Aâ—â—soâ— Dâ—ceased Sr. Charles Pitfeild of Hâ—xton in the Parish of St. Leonard â—horditch in Middlesex Kt. Descended of the Antient family of the Pitfeilds of â—umâ—nâ—sâ—ry in Dâ—rsâ—tshireâ— is now maried to Winefrid one of the Daughters and coeheyrs of Iohn Adderley of Cotton in Stafordshire Esâ— Sr. Thomas Middleton of Stansted Mount Fichit in ye. County of Essex Kt. now maried to Mary ye. Relict of Thomas Style Esq Eldest Son of Sr. Thomas Style of Waâ—ering bury in yeâ— County of Kent Bar â— and only Daughter of Sr. Stephen Langham of the Citty of London Kt. Sr. Francis Theobald of Barking hall in Suffolk Kt. a great Lover of Lerning fautor of Lerned men in Soemuch that Dr. Castle in his Polygâ—oâ— Lexicon makes This mention of him yt. he is harum Linguarum Callentissimus Sr. Robt. Hardinge late of Kings-Newton in the Parish of Melborne in Darby-shire Nâ—w of Grais Inn in Middle â— Kt. his matys Attorney of all his Forests c. from Trent Northward's a great sufferer for there matys King Charles the first second Hee Maried Anna eldest daughr. of Sr. Richard Sprignell of Hâ—gate in Middlesex Bar â— Deceased Sr. Io. Kirke of East Ham in Esex Kt. one of the Band of Gentleman Pentioners to his matyâ— King Charles the 2d. which sd. Sr. Io. and his family hath been very actiue for the Servi c â— of there King and Country in particular at Canade in America Sr. Thomas Marshe of Darkes in the Parish of South Mimms in Com Middlesex Knight Sr. William Beversham of Holbrookhall in Suffolk Knight one of the Masters oâ— the High and Honourable Court of Chancery And it was anciently ordained That all Knights Fees should come unto the eldest Son by succession of Heritage whereby he succeeding his Ancestor in the whole Inheritance might be the better able to maintain War against the King's Enemies or his Lords and that the Soccage of Freehold be partable between the Male Children to enable them to encrease into many Families for the better encrease of Husbandry But as nothing is more unconstant than the Estates we have in Lands and Livings even so long since these Tenures have been so indifferently mixt and confounded in the hands of each sort that there is not now any note of difference to be gathered by them Lambert Peramb of Kent 10. Et quia tale servitium forinsecum non semper manet sub eadem quantitate sed quandoque praestatur ad plus quandoque ad minus ideo eo quantitate Regalis servitii qualitate fiat mentio in charta ut tenens certum tenere possit quid quantum persolvere teneatur And therefore the certainty of the Law in this case is That he that holdeth by a whole and entire Knight's Fee must serve the King or his other Lord forty days in the Wars well and sufficiently arrayed and furnished at all points and by twenty days if he hold by a moiety of a Knights Fee and so proportionable And in the Seventh of Edw. 3. 246. it was demurred in Judgment Whether Forty days shall be accounted from the first day that the King did first enter into Scotland but it seemeth that the days shall be accompted from the first day that the King doth enter into Scotland because the Service is to be done out of the Realm And they that hold per Regale servitium are not to perform that Service unless the King do also go himself into the Wars in proper Person by the Opinion of Sir VVilliam Earle Chief Justice of the Common Pleas Irium Sept. Edw. 3. 246. but vide 3 Hen. 6. tit Protection 2. in which Case it was observed That seeing the Protector who was Prorex went the same was adjudged a Voyage Royal. Also before the Statute de quia emptores terrarum which was made decimo octavo Edw. 1. the King or other Lord had given Lands to a Knight to hold of him by Service and Chivalry scil to go with the King or with his Lord when the King doth make a Voyage Royal to subdue
to the party for so it is termed in Brook's Title Additions 44. but an Honour to the Kingdom And therefore it hath been an ancient Prerogative of the Kings of this Realm at their pleasure to compel men of worth to take upon them that Degree upon payment of a Fine But we see by Experience in these days that none are compelled thereunto and that is the reason wherefore if the Plaintiff be Knighted having the Writ it shall abate because he hath changed his name and that by his own Act. And for that cause also by the Common Law not only the King but every Lord of a Mannor ought to have of every of his Tenants a reasonable Aid to make his eldest Son a Knight And all Lands are subject to these Aids except only ancient Demesne and grand and petty Serjeanty-Tenures as the Law hath â—een anciently delivered And in Io. Shelden 131. where also it is said one that wrote a little after the Statute of Westminster the first allows as a good barr to the Avowry for the Tenant to plead that the Father himself is no Knight so that one not Knighted cannot claim this Ayd of his Tenants Briâ—an cap. de prices de avers And it was at the liberty of the Lord to make more or less of his Tenants by the Common Law in this Case but by the Statute of Westminster the first Chap. 35. it is put in contrary viz. forasmuch as before this time reasonable Aid to make ones Son Knight or to marry his Daughter was never put in certain nor how much should be taken nor at what time whereby some levied unreasonable Aid and more often than seemed necessary whereby the people were sore grieved It is provided that from henceforth of a whole Knight's Fee there be taken but Twenty shillings and of Twenty pounds in Land holden in Soccage Twenty shillings and of more more and of less less after that rate And that none shall levy such Aid to make his Son a Knight until his Son be of fifteen years old nor to marry his Daughter until she be of the Age of seven years And of that there shall be mention made in the King's Writs formed on the same when any will demand it And if it happen that the Father after he hath levied such Aid of his Tenants die before he hath married his Daughter the Executors of the Father shall be bound to the Daughter for so much as the Father received for the Aid And if the Father's Goods be not sufficient his Heir shall be charged therewith unto the Daugher And this Aid is so incident that although the Lord do confirm unto the Tenant to hold by Fealty and certain Rent and release unto him all other Services and Demands yet shall he have the Aid to make his eldest Son a Knight But the King was not bound by the Statute aforementioned because the King was not named in the Statute Therefore by the Statute 25 Edw. 3. chap. 11. the King's Aid were brought to a like value The intention of the Law is That an Heir until the Age of One and twenty years is not able to do Knights Service But such a presumption of Law doth give place to a Judgment of proof to the contrary as Bracton saith Sâ—abitur presumptioni donec probetur in contrarium And therefore when the King who is the Sovereign Judge of all Chivalry hath dubbed him a Knight he by this hath adjudged him able to do him Knight's Service and all men are concluded to say the contrary to it And therefore such an Heir being made a Knight either in the life time of his Father or afterwards during his minority shall be out of Ward and Custody both for his Land and Body and marriage by the Award of the ancient Common Law By reason also that the Honour of Knighthood is so great that it is not to be holden under by any yet if the King do create such an Heir within Age a Duke Marquess Earl Viscount or â—aron by this he shall not be out of Ward and Custody both for his Land and Body And therefore it is propounded by the Statute of Magna Charta chap. 3. Ita tamen quod si ipse dum infra aetatem fuerit fiat miles nihilominus terra remaneat in Custodia Dominorum suorum So that although such an Heir within Age be made Knight and thereby to this purpose is esteemed as of full Age yet the Land shall remain in Custody of the Lord till his Age of One and twenty years by the purview of the said Act. Question If the Son and Heir of the Tenant of the King by Knights Service c. be made Knight in Paris by the French King whether he shall be out of Wardship after the death of his Father or no for thereby he is a Knight in England Coke's seventh part b. 2 Edw. 4. fol. tamen vide in Coke's sixth part 74. b. mention is only made of Knights made by the King himself or by his Lieutenant in Ireland But when the King doth make an Heir apparent within Age of a Tenant by Knights Service a Knight in the life of his Ancestor and after the death of his Ancestor the said Heir being within Age shall in this Case be out of Ward and shall pay no value for his marriage neither shall the Lord have the Custody of the Land for in that Case by the making of him Knight in the life of his Ancestor he is made of full Age so that when his Ancestor dieth no interest either in the Body or in the Land shall invest in the Lord but the Knight may tender his Livery as if he were of full Age And in that case the King shall have primier Seisin as if he had been One and twenty years of Age at the time of the death of his Ancestor and not otherwise For the Statute of Magna Charta doth not extend unto it for the purview of it doth extend only when the Heir in Ward infra aetatem is made Knight then remanet terra in Custodia c. But when the Heir is made Knight in the life of his Ancestor then the Custody cannot remain which never had any inception or essence Also when the Heir after the death of his Ancestor within Age is made Knight if after tender made to him he within Age do marry elsewhere yet he shall not pay the forfeiture of his marriage for by the making him Knight he is out of Ward and Custody of his Lord for then he ought to be sui Iuris and may imploy himself in feats of Arms for defence of the Realm c. and therefore may not be within the Custody of another and none shall pay any forfeiture but when after any refusal he doth marry himself during the time when he is under the custody and keeping of his Lord And this doth appear by the Statute of Merton chap. 6. Si se mariturierit sine licentia
slighted unless he be sufficiently qualified by Birth Parts or other generous Accomplishments or are Knights of the Field who are never abridged of their merited Honour being acquired according to the original Institution of that Degree amongst all Nations And we see our Parliament men our Sheriffs Justices of the Peace and the Honourable Commanders and Captains of Cavalry and Infantry for the most Esquires at their first Election By the Statute 23 Hen. 6. cap. 15. the Knights of the Shires shall be notable Knights or else notable Esquires or Gentlemen born in the same Counties for which they are chosen See the Statute for the preservation of the Game 22 and 23 Car. 2. by which and many other Statutes they are equally priviledged with Knights and other persons of higher Degree To represent therefore an Esquire as now defined is no easie task but according to the ancient Rule I take him for a Foot-Commander The Atchievement of an Esquire differs from the Knight Batchelors only in the Helmet as you may here observe I shall also give you other Examples of Esquires and amongst the rest the Atchievement of my Honoured Friend Robert Logan vulgarly written Login Son and Heir to Iohn Logan Lord of the Mannor of Idbury in Oxfordshire who was of the ancient House of Restalridge in Scotland unfortunately ruined for their Loyalty to Mary Queen of Scots He succeeded his Father at Idbury was High Sheriff of the County a man eminent for his Virtue and Learning amongst whose prayers this Manuscript was found exemplar in his life for Charity and Conversation THE DEFINITION OR DESCRIPTION OF THE GENTRY OR Civil Nobility OF ENGLAND CHAP. XXVI GEntleman Generosus seemeth to be made of two words the one French Gentil honestus vel honesta parente natus the other Saxon Man as if you would say a man well born And under this name are all comprized that are above Yeomen and Artificers so that Nobles are truly called Gentlemen By the Course and Custome of England Nobility is either Major or Minor Major contains all Titles and Degrees from Knighthood upwards Minor all from Barons downwards Mr. William Mainstone Alias Mayneston of ye. Citty of London Merchant Lineally descended from Thomas Mainston of Vrchinfield in Herefordshire Gent Temps Edw ye. 3d. now Maried to Penelope Daughteâ— To Sr Thomas Iones of Shrewsbury in yeâ— County of Salop Kt. one of ye. Iustices of his mat ys Court of K-Bench Iohn Bourne of More feilds in the parish of St. Leonards Shoreditch in Middz Dr. in Phisicksâ— non maried to Eleanor daughter of George Shyres of Wakefield in Yorkshir Batcheâ—â—â— in Divinity Iohn Rowe of ye. Citty of Bristoll Gent. Lineally descended from ye. antient family of ye. Rowes of Windley hill in Derbyshire Which Said Iohn is now maried to Lucy Sister Coheyre of Anâ—thony Hungerford Son heyre of Anthony HuÌ„gerford of ye. Lea in Wiltshire Esq Mr. Peter Vandeput of the Citty of London Merchant Iohn Btome of Sevenoke in Kent Gent. Ricâ—ard Btome of Chobham in the Parish of Westham in Essâ—â—â— Gent. Richard Whitworth of Adbaston in the County of Stafford Gentleman Mr. Iohn Vanheck of ye. Citty of London Merchant descended of a Dutchfamily of that name This Câ—atâ— Armourâ—â— borne by the Stanleys of Devonshire and is Engraven at the Charge of Mr. Edward Stanley of Bamstable in the Sdâ— County agreat Lover of Heraldry and Promoter of Publique Vndertakeings Nicholas Eyre of London Gent Descended from a Antient Family of that name Iohn Farrington of ye. Citty of London Merchant descended of ye. Farringtons of Verdon near Faringtonheath in Lancashire a Family of good Account and Antiquity Iohn Gregorie of St. Margarets Westminster in Middlesex Gentleman son of Leiutenant Collonell William Gregorie of East Stockwith in Lincolnshire Esq a great sufferer for his maty in ye. Late Vnhappy warrs Mr. Thomas Shaw of the Citty of London Merchant now Maried to Deborah daughter of Roger Reeva Late Cittizen of London Râ—lph Marshall GenÌ„t Secretary to thâ— R â— honble William Earle of Craven desâ—nâ—ded from ye. family of ye. Marshalls of yorkshire Franâ—is Lunde of Parsons Green in ye. Parish of FuÌ„tham in Middlesex GenÌ„t descended frâ—m the Family of Lunde in ye. County of Yorkeâ— â—â—chard Stratford of Hawling and nether Geâ—◠〈◊〉 Glocestershire Gen t descended from theâ— Ancient family of ye. Straâ—fords of Farmcâ—â—â—n the Said County Thomas Glover of Raine Hill in Lancashireâ— Gent. now Maried to Rebecca daughter of Ninian Buther Staplehurst in Kent Gent. But if a Gentleman be sued by addition of Husbandman he may say he is a Gentleman and demand Judgment of the Writ without saying and not Husbandman For a Gentleman may be a Husbandman but he shall be sued by his Addition most worthy For a Gentleman of what Estate soever he be although he go to plough and common labour for his maintenance yet he is a Gentleman and shall not be named in legal Proceedings Yeoman Husbandman or Labourer If a Gentleman be bound an Apprentice to a Merchant or other Trade he hath not thereby lost his Degree of Gentility But if a Recovery be had against a Gentleman by the name of a Yeoman in which case no Action is necessary then it is no Error So if any Deed or Obligation be made to him by the name of Yeoman If a Capias go against A. B. Yeoman and if the Sheriff take A. B. Gentleman an Action of false imprisonment lieth against the Sheriff But if A. B. Yeoman be Indicted and A. B. Gentleman be produced being the same man intended it is good If a man be a Gentleman by Office only and loseth the same then doth he also lose his Gentility By the Statute 5 Eliz. chap. 4. intituled An Act touching Orders for Artificers Labourers Servants of Husbandry and Apprentices amongst other things it is declared That a Gentleman born c. shall not be compelled to serve in Husbandry If any Falcon be lost and is found it shall be brought to the Sheriff who must make Proclamation and if the owner come not within four Months then if the â—inder be a simple man the Sheriff may keep the Hawk making agreement with him that took him But if he be a Gentleman and of Estate to have and keep a Falcon then the Sheriff ought to deliver to him the said Falcon taking of him reasonable costs for the time that he had him in Custody A Commission is made to take Children into Cathedral Churches c. one in anothers places where Children are instructed to sing for the furnishing of the King's Chappel These general words by construction of Law have a reasonable intendment viz. That such Children who be brought up and taught to sing to get their living by it those may be taken for the King's Service in his Chappel and it shall be a good preferment to them but the Sons of Gentlemen or any other that are taught to sing for their Ornament or Recreation and not
of Vice which was most detestable unto them And Marcus Tullius studying to restrain the Vice of Youth by Law ordained eight several punishments which he called Damnum Vincula Verbera Talio Ignominia Exilium Mors Servitus The Ensigns of Honour which the Romans used to beâ—tow in token of Dignity were Chains of Gold gilt Spurs and Launces but principally Crowns of different forms which at first were made of Bays in token of Mirth and Victory but afterwards they were made of Gold The chief Crowns were Military with which their Consuls and chief Commanders in their Triumphs were crowned The next was by them called Corona Muralis and was given to him that was first seen upon the Wall of an Enemies Town and this Crown was wrought with certain Battlements like a Wall and made of Gold Corona Castrensis made of Gold with points like Towers and this was given for a Reward to him that could break the Wall of an Enemy and enter the Town or Castle Corona Navalis made of Gold garnished with Forecastles and given to him that first boarded an Enemies Ship Corona Oleaginea made of Gold given to them that repulsed an Enemy or were Victorious in the Olympian Games Corona Ovalis made of Gold given to them that entred a Town taken with little Resistance or yielded upon Composition Corona Obsidionalis given to a General Leader that had saved his Army in Distress and this Crown was made of the Grass growing where the Army was beseiged Corona Civica made of Oaken Boughs and was given to him that saved a Citizen from the Enemy Corona Haederalis which was given to Poets Corona Populea which was given to young men that were industrious and inclined to Vertue Aristotle makes four kinds of Civil Nobility viz. Divitiarum Generis Virtutis Disciplinae Sir Iohn Ferne defines Civil Nobility to be an Excellency of Dignity and Fame placed in any Kingdom or People through the Vertues there shewed forth to the profit of that Kingdom Which made Diogenes to tearm Nobleness of Blood a Vail of Lewdness a Cloak of Sloth and a Vizard of Cowardise Civil Nobility may be refined into a triple Division first by Blood secondly by Merit and thirdly by Blood and Merit which last without doubt is the most honourable and of greatest esteem For certainly the Honour gained lives in his Family and doth perpetuate his Vertues to Posterity whilst the glory that those by descents of Blood shine in is but the reflection of their Ancestors For all will judge the raiser of a Family more honourable than him that succeeded him not adding to that Honour by any Merit of his own So that it is the best honour the Son can do his deceased Father or Relation to imitate his Vertues If any person be advanced by lawful Commission of his Prince to any Place Dignity or publick Administration be it either Ecclesiastical Military or Civil so that the said Office comprehends in it Dignitatem vel dignitatis titulum he ought to be received into the Degree of Gentility And a Man may be ennobled by Letters Patents from his Prince though he have not the Superiour Titles added and may have a Coat of Arms given him Of Gentry and bearing of Arms. NOah had three Sons who were saved with him in the Ark from the Deluge viz. Sem Cham and Iapheth and between these three he divided the World Sem his eldest Son he made Prince of Asia Cham his second Prince of Affrica and Iapheth his third Prince of Europe Of these three issued divers Emperors and Rulers whereof at this day we have ten Degrees of which Six are called Noble as a Gentleman Esquire Knight Baronet Baron and Viscount and four others are called excellent as an Earl Marquis Duke and Prince There are Nine sundry Callings of Gentlemen 1. The' first is a Gentleman of Ancestry which must needs be a Gentleman of Blood 2. The second is a Gentleman of Blood and not of Ancestry as when he is the second degree descended from the first 3. The third is a Gentleman of Coat Armour and not of Blood as when he weareth the Kings Devise given him by a Herald If he have Issue to the third Descent that Issue is a Gentleman of Blood 4. The fourth also is a Gentleman of Coat Armour and not of Blood as when the King giveth a Lordship to him and his heirs for ever then he may by vertue thereof bear the Coat of the Lord 's making the Herald approving thereof But if any of the Blood of that Lordship be yet remaining he cannot bear the same 5. The fifth is a Christian man that in the Service of God and his Prince kills a Heathen Gentleman he shall bear his Arms of what degree soever a Knight Banneret excepted and use his Atchievement without any difference saving only the word of the same miscreant Gentleman If he also have Issue to the fifth Degree they are Gentiles of Blood Note that no Christian may bear another Christians Coat nor a Pagan a Pagans Coat on the Condition abovesaid But if an English man in the Field when the Banner Royal is displayed do put to flight any Gentleman which is an Enemy to his Prince from his Banner of Arms the English Souldier may honour his own Coat in the Sinister Quarter with the proper Coat of the Gentleman that he so put to flight Also in Challenge of Combat the Victor shall not bear the Coat of the Vanquished yet indeed the Vanquished shall lose his own Coat But if he marry a Gentlewoman of Coat-Armour by the Courtesie of England he may bear hers 6. If the King do make a Yeoman a Knight he is then a Gentleman of Blood 7. The Seventh is when a Yeoman's Son is advanced to Spiritual Dignity he is then a Gentleman but not of Blood but if he be a Doctor of the Civil Law he is then a Gentleman of Blood 8. The Eighth is called a Gentleman untryal as brought up in an Abby and serving in good calling and also is of kind to the Abbots 9. The Ninth is called a Gentleman Apocrifate such a one as serving the Prince as a Page groweth by diligence of Service to be Steward or Clerk of the Kitchin and is without Badge of his own except when the Prince by the Herald endoweth him with some Conisance c. Aristotle in his Politicks reciteth four kinds of Nobility that is Nobleness of Riches Nobleness of Lineage Nobleness of Vertue and Nobleness of Science amongst which those of Vertue and Lineage are of chief estimation being such from whence the others do proceed As some write Nobility began to be advanced shortly after Noah's Flood For when possessions were given by the consent of the people who had all things in common and were of equal degree they gave them to such whom they admired for their Vertues and from whom they received a common benefit The Law of Arms which is chiefly directed by the
time but by a Statute made the Twelfth of Edward the First Wales was incorporated and united to England and became part thereof Also by another Statute made 27 Hen. 8. c. 24. a general resumption of many Liberties and Franchises heretofore granted or taken from the Crown as the Authority to pardon Treasons Murder Manslaughter and Felony also power to make Justices in Oyer Justices of Assize Justices of the Peace Goal deliveries and such like so that from thenceforth the King 's eldest Son hath only the Name and Style of Prince of Wales but no other Jurisdiction than at the King's pleasure is permitted and granted him by his Letters Patents as by the tenor thereof here following made by King Henry the Eighth to Edward his Son and Heir apparent may appear HENRY by the Grace of God King of England and of France Lord of Ireland c. To all Archbishops Bishops Abbots Priors Dukes Earls Barons Iustices Viscounts Governors Ministers and to all our Bayliffs and faithful Subjects Greeting Out of the Excellency of Royal Preheminence like leaves from the Sun so do inferior humours proceed neither doth the integrity of Royal Lustre and Brightness by the natural disposition of the Light affording Light feel any loss or detriment by such borrowed Lights yea the Royal Scepter is also much the more extolled and the Royal Throne exalted by how much the more Nobleness Preheminencies and Honours are under the power and command thereof And this worthy Consideration allureth and induceth us with desire to increase the Name and Honour of our Firstbegotten and best Beloved Son Edward in whom we behold and see our self to be honoured and our Royal House also and our people subject to us hoping by the grace of God by conjecture taken of his gracious future proceedings to be the more honourably strengthened that we may with honour prevent and with abundant grace prosecute him who in reputation of us is deemed the same with us Wherefore by the counsel and consent of the Prelates Dukes Earls Viscounts and Barons of our Kingdom being in our present Parliament We have made and created and by these Presents do make and create him the said Edward Prince of Wales and Earl of Chester And unto the same Edward do give and grant and by this Charter have confirmed the Name Style Title State Dignity and Honour of the said Principality and Connty that he may therein in Governing Rule and in Ruling direct and defend we say by a Garland upon his Head by a Ring of Gold upon his Finger and a Verge of Gold have according to the manner invested him to have and to hold to him and his Heirs the Kings of England for ever Wherefore we will and command for us and our Heirs that Edward our Son aforesaid shall have the Name Style 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 for ever These being Witnesses the Reverend Father John Cardinal and Archbishop of Canterbury Primate of England our Chancellor and William Archbishop of York Primate of England Thomas Bishop of London John Bishop of Lincoln William Bishop of Norwich our most well beloved Cosins Richard Earl of Warwick Richard Earl of Salisbury John Earl of Wiltshire and our well beloved and faithful Ralph Cromwel Chamberlain of our House William Falconbridge and John Stourton Knights Dated at our Palace at Westminster the 15th day of March and in the year of our Reign 32. 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 pennings of the Acts of Parliament as of the King's Letters Patents when any Lands Franchises or Hereditaments did pass from the King of any Estate of Inheritance as also in the Creations of any man unto Honour and Dignity the Conclusion was with the sign of the Cross in form aforesaid his testibus c. But long since that form hath been discontinued so that at this day and many years past the King's Patents for Lands Franchises and Hereditaments do conclude with Teste me ipso Nevertheless in all Creations of Honour and Dignity of Letters Patents the ancient form of concluding His testibus is used at this day And it hath been resolved by the Judges of all Acts of Parliament and Statutes which do concern the Prince who is the Firstbegotten Son of the King and Heir apparent to the Crown for the time being perpetuis futuris temporibus be such Acts whereof the Judges and all the Realm must take Cognizance as of General Statutes For every Subject hath interest in the King and none of his Subjects who are within his Laws be divided from him being he is Head and Sovereign so that the business and things of the King do concern all the Realm and namely when it doth concern the Prince the Firstbegotten Son of the King and Heir apparent to the Crown Although the Prince by express words hath no priviledge by the Great Charter of the Forestâ— 9 Hen. 3. cap. 11. for hunting in the King's Forests or Parks passing by them and sent for by the King's Command yet the Prince is to take the benefit and advantage thereby as well as the Earls Bishops or Barons who are expressed Crompton's Courts des Iustices de Forest 167. In the Parliament 31 Hen. 8. cap. 10. an Act concerning the placing of King's Children and Lords in the Parliament and other Assemblies was amongst other things made as followeth That no person or persons of what degree estate or condition soever his or they be of except only the King's Children shall at any time hereafter attempt to sit or have place on any side of the Cloth of Estate in the Parliament Chamber whether his Majesty be there personally present or absent The Prince shall not find Pledges for the prosecution of any Action and therefore shall not be amerced no more than the King or Queen should be The Prince is a distinct person from the King he is a Subject and holdeth his Principalities and Seigniories of the King and subject to the Law of the Land as a Subject And in token of the Prince's subjection he doth not upon his Posie in his Arms disdain the old Saxon words Ich Dieu I serve And there is a Case that Glascoine Chief Justice of England in the time of Henry the Fourth did commit the Prince who would have taken a Prisoner from their Bar in the King's Bench And the Prince did humbly submit himself and go at his Command And this did much rejoyce the King to see that he had a Judge so bold to administer Justice upon his Son and that he had a Son so gracious as to obey his Laws The Exercises befitting Princes whilst they are young are Chivalry and Feats of Arms and to adjoyn therewith the knowledge of the Law and God For it is the Duty and
Authority of Parliament made in the Eleventh of King Edward aforesaid and therefore to supply that defect in the Fifth of Edward the Third he was created Duke of Cornwall by special Charter Elizabeth eldest Daughter of King Edward the Fourth was not a Dutchess of Cornwall although she was the Firstbegotten Daughter of Edward the Fourth for the Limitation is to the First-begotten Son Henry the Eighth was not in the life of his Father King Henry the Seventh after the death of his eldest Brother Arthur Duke of Cornwall by force of the said Creation for although he was sole Heir apparent yet he was not his eldest begotten Son And the Opinion of Stamford a Learned Judge hath been That he shall have within his Dukedom of Cornwall the King's Prerogative because it is not severed from the Crown after the form as it is given for none shall be Inheritor thereof but the King 's of the Realm For example whereas by Common Law if a man hold divers Mannors or other Lands or Tenements of divers Lords all by Knights Service some part by Priority and ancient Feoffment and other Land by Posterity and a later Feoffment and the Tenant so seized dieth and his Son and Heir within Age in this case the custody and wardship of the Body and his marriage may not be divided amongst all the Lords but one of them only shall have right unto it because the Body of a man is intire And therefore the Law doth say That the Lord of whom some part of those Lands are 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 be preferred before any of the other Lords of whom the Tenant did hold the Priority And so shall the Duke of Cornwall in the same Case have the Prerogative if his Tenant die holding of him but by posterity of Feoffment for any Tenure of his Dutchy of Cornwall although the same 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 beforesaid Iohn of Gaunt the fourth Son of King Edward the Third took to Wife Blanch Daughter and Heir of Henry Duke of Lancaster who had Issue Henry King of England so that the said Dutchy of Lancaster did come unto the said Henry by descent from the party of his Mother and being a Subject he was to observe the Common Law of the Realm in all things concerning his Dutchy For if he would depart in Fee with any thereof he must have made Livery and Seisin or if he had made a Lease for life reserving Rent with a Re-entry for default of payment and the Rent happen to be behind the Duke might not enter without making his Demand or if he had alienated any part thereof whilst he was within Age he might defeat the Purchaser for that Cause and if he would grant a Reversion of an Estate for life or years in being there must also be Attornment or else the Grant doth not take effect But after that he had deposed King Richard the Second and did assume the Royal Estate and so had conjoyned his Natural Body in the Body Politick of the King of this Realm and so was become King then the possession of the Dutchy of Lancaster was in him as King but not as Duke which degree of Dignity was swallowed up in that of the King for the lesser must always give place to the greater And likewise the Name of the Dutchy and the Franchises Liberties and Jurisdictions thereof when in the King's Hands were by the Common Law extinct and after that time the possessions of the Dutchy of Lancaster could not pass from Henry the Fourth by Livery of Seisin but by his Letters Patents under the Great Seal without Livery of Seisin and with Attornment And if he make a Lease for Life being Duke reserving a Rent with a Re-entry for default of payment and after his Assumption of the Crown his Rent happen to be unpaid he might Re-enter without Demand for the King is not bound to such personal Ceremonies as his Subjects are Therefore to have the said Dutchy to be still a Dutchy with the Liberties to the same as it was beâ—ore and to alter the order and degree of the Lands of the Dutchy from the Crown the said King Henry the Fourth made a Charter by Authority of Parliament which is entituled Charta Regis Hen. 4. de separatione Lancastriae à corona authoritate Parliamenti Anno Regni sui primo as by the Tenor thereof may appear And so by Authority of that Parliament the said Dutchy with all the Franchises and Liberties was meerly resigned from the Crown and from the Ministers and Officers thereof and from the Order to pass by such Conveyance which the Law did require in the possessions of the Crown But now the possessions of the Dutchy by force of the said Statute stood divided from the Crown and ought to be demeaned and ordered and pass as they did before Henry the Fourth was King yet there is no Clause in the Charter which doth make the person of the King who hath the Dutchy in any other Degree than it was before But things concerning his pleasure shall be in the same estate as they were before such separation insomuch as if the Law before the Charter by Authority of Parliament adjudged the person of the King always of full Age having regard unto his Gifts as well of the Lands which he doth inherit in the right of his Crown or Body Politick it shall be so adjudged for the Dutchy Land after the said Statute for the Statute doth go and reach unto the Estate Order and Condition of the Lands of the Dutchy but doth not extend unto the person of the King who hath the Lands in points touching his person Neither doth that distinguish or alter the preheminences which the Law doth give to the person of the King For if King Henry the Fourth after the said Act had made a Lease or other Grant of parcel of the Dutchy by the Name of Henry Duke of Lancaster only it had been void for it should have been made in the Name of Henry the Fourth King of England And thus stood the Dutchy of Lancaster severed from the Crown all the Reign of Henry the Fourth Henry the Fifth and Henry the Sixth being politickly made for the upholding of the Dutchy of Lancaster their true and ancient Inheritance however the right Heir to the Crown might in future time obtain his right thereunto as it happened in King Edward the Fourth's time but after the said King Edward obtained his right unto the Crown in Parliament he attainted Henry the Sixth and appropriated and annexed the said Dutchy again to the Crown as by the Statute thereof made in the first of the King's Reign
Baron which always stands afterwards for the head place of the Barony whereof the said Baron and his Heirs shall be surnamed and called and shall continue that name of place although he do alien away the same as aforesaid Some others are named with the Title of Lord as Sir Hugh Bramsteed by Writ of the 27 th of Henry the Sixth was styled Lord Veysey Iohan. Beauchamp Domino de Beauchamp Iohanni Domino de Clynton To some others the Writ is directed only by their Name without any addition of place or dignity as William de Lovell Mil. William Devereux Mil. c. But the Nature Quality and Addition of those Barons by Writ is aptly discovered by the debate of a Question moved often amongst men and spoken of concerning the continuance and descent of a Barony by Writ which Question for the more orderly disposition thereof I shall divide into these Heads or Points Question First Whether a Barony by Writ may descend from the Ancestor to the Heir or not Secondly Admit such a Barony may descend then Whether it doth descend to the Heirs although not so near as the Heir Female Thirdly Admit it doth descend to the Heirs Female then Whether may the Husband of such an Heir Female take upon him the Name Style and Dignity of such a Barony in right of his Wife or no Those therefore that maintain the Negative that such a Barony shall not descend do strengthen themselves with these or the like Arguments viz. The first Argument Whether a Barony by Writ may descend Nobility and Honour which are given in respect of Wisdom Connsel and Advise cannot extend to any other person or descend from one man to another for it is a Rule in Law That Privilegium personae personam sequitur extinguitur cum persona But such is the Dignity of a Baron therefore it is reason that it should not descend from the Ancestor to the Heir The second Argument Again If the calling of the Parliament by Writ be the sufficient instrumental cause of such Nobility to the Ancestor the not calling of the Heir is a loss of that Nobility For if the Heir have defects of Nature in him as Idiotsie Frensie Leprosie or the like whereby he is become unfit for Counsels and Conversations for what reason should he enjoy that Dignity whereof he is either unworthy or uncapable for the effect hath no place where the cause faileth and hereof they conclude that such Dignities of Baronies by Writ should not descend If on the contrary part the Affirmation is thus proved Honour which is given in respect of Wisdom and Vertue of him on whom it was first bestowed is not only a due recompence for himself whilst he lived but also a memorable Reward thereof to Posterity The words of Cicero to this effect are most excellent Homines bonos semper nobilitate favimus quia utile republicae est nobiles esse homines dignos majoribus suis quia valere debet apud nos claros hujusmodi senes fuisse è republica moveretur memoria mortucrum Honor. Therefore this kind of Honour is Patrimonial and Hereditary for things which are once granted unto a man by the King for his Honour are not again to be returned to his loss and disgrace or to his Heirs The second Argument Secondly If the Infamy of the Father be a blot to the Posterity as the Wiseman Solomon affirmeth The Children complain for an ungodly Father they are reproved for his sake and for that also the Law of the Realm doth corrupt the blood of the Posterity by and upon the Offence of the Ancestor Reason would also be that the Honour of the Ancestor should be likewise Honour to the Posterity for contraries do also carry their contrary Reason For the determination whereof 't is to be noted that diversity of Reason hath bred diversity of Opinion Some there are that do speak That the Dignity of a Baron by Writ is not discendable from the Ancestor unto the Heir unless the Heir be likewise called by Writ to Parliament and that then it becometh an Inheritance and not before But this Assertion is repugnant to the nature of Descent which for the most part doth carry a Patrimony descendable by act of Law presently upon the death of the Ancestor unto the Heir not at all Wherefore the Custom of the Country and the manifest Presidents do prove that this kind of Baronies doth descend from the Ancestor to the Heir and there needeth not any word of Heir in the Writ of Summons only one President there is in a special Writ sometime directed to Sir Henry Bromfleet in the 27 th of Henry the Sixth wherein he was styled Lord Veysey and wherein there are these words inserted Volumus tamen vos haeredes vestros de corpore vestro ligitime enatos Barones de Veysey existentes Wherefore it is very true that when the Heir of any such Baron by Writ is called to the Parliament that his Descent of Honour is thereby established and approved of by the gracious Judgment of our Sacred Sovereign So it is also true that if it shall stand with his Majesties pleasure that such an Heir shall not be summoned at all then that Nobility is much impaired and in a manner extinguished in the censure of all men for that it hath no other original but by a Writ of Summons from the which by the Judgment of the Supream Sovereign he is excluded As to the second principal point Whether the Barony by Writ may descend to the Heir Female it shall not be amiss likewise to shew the Reasons on either part that by conflict of Argument the truth may the better be discovered Those that maintain the Affirmative part do say That in reason the Sex of the Heir Female ought no more to barr her Dignity than the Nonage of the Heir Male ought to barr him though during his Nonage he be unable to do the Service But as the Service of the one is for time forborn so the Sex of the other may at all times be supplied by the maturity of her Husbands Offices of Honour which do much import the Commonweal being passed by Inheritance do descend to the Heir Female as the Office of the High Constableship of England which descended unto the Daughter of Hum. de Bohun Earl of Hereford and Essex Also the Office of the Lord Steward descended to Blanch Daughter of Henry Earl of Lancaster The like may be said of the Office of Earl-Marshal which descended by an Heir Female to the House of Norfolk All which Offices are as unsit to be exercised by a woman as for a Woman to be summoned by Writ to the Parliâ—ment as a Baroness c. Many Noble Houses also in England do support and lawfully bear the Dignity of a Baronage unto them descended by a Woman The first Argument contra They which stand of the Negative part in this Controversie do encounter their
Nobleman and his Progenitors have for a long time been called to Parliament and be a Baron either by Tenure or Writ and have had in regard thereof a place certain in Parliament if afterwards the said Nobleman should be created a Baron of that Barony and by the same name by Letters Patents whether shall he and his Heirs retain his old place in Parliament which he had according to his former Dignity or whether shall he lose his old place and take a new one according to the time of his Creation Answer The Case of the Lord Delaware lately erected a Resolution somewhat answerable to this Question Thomas Delaware in the third of Edward the Sixth being in some displeasure with William West his Heir and Nephew who was Father to Thomas late Lord Delaware and Grandfather to Henry Lord Delaware that Nevis procured by Act of Parliament by which the said William West was during his natural life only clearly disabled to claim demand or have any manner of Right Title or Interest by Descent Remainder or otherwise in or to the Mannors Lands Tenements or Hereditaments Title and Dignity of Thomas Lord Delaware his Uncle c. After the said Thomas Delaware died and the said William West was in the time of Queen Mary attainted of Treason by Verdict but pardoned by the said Queen and afterwards by Parliament in the time of Queen Elixabeth was restored and in the fourth year of her Reign was created Lord Delaware by Patent and took place in Parliament accordingly for that by the said Act of Parliament of Edward the Sixth he was excluded to challenge the former ancient Barony and after he died Now whether Thomas Delaware should take his place according to the ancient Barony by Writ or according to his Father's Creation by Patent was the Question The Opinions of the late Queens Council being his Majestie 's Attorney General and Solicitor were That the acceptance of the new Creation by the said William West could not extinguish the ancient Dignity for that he had not the ancient Dignity in him at that time of his Creation but the Dignity was by the Act of Parliament 3 Edw. 6. in the ballance of suspence or consideration of Law and he thereby utterly disabled to have the same during his life only so as other acceptance could not extinguish that Dignity which he then had not nor could not conclude his Heir who was not disabled by the Parliament 3 Edw. 6. to claim the ancient Barony which Opinion of theirs was seen and allowed by the then Chief Justice of England and Lord Chief Baron and so signified to the Lord Keeper But this to be noted by the Reasons made for the said Resolution though if the said Sir William West had been Baron and entituled and in possession of the ancient Dignity when he accepted the ancient Creation the Law perchance might have been otherwise but that remains as yet unresolved Nevertheless the Rule is Eodem modo quo quid constituitur dissolvitur But by a Grant which is but a matter of Fact a man cannot transfer his Title of Honour And thus much concerning the Degrees of Barons within this Realm upon this occasion for the better understanding and direction of that which followeth to be handled And in this place I think it not impertinent to mention one Case which I met with in our Books of Common Law concerning the Descent of a Title of Honour whereof the Ancestor had Estate in Feesimple there is a Maxim in the Law Possessio fratris in feodo facit sororemesse haeredem But if a man by any of the three means aforesaid be created into a Title of Dignity to him and his Heirs for ever and so have Issue by one wife a Son and a Daughter and hath also a Son by a second wife afterwards the Father dieth and his eldest Son entreth into all his Father's Inheritances and also enjoyeth the Titles and Dignities which his Father had but dieth without Issue In this Case the Dignity shall descend upon the younger Son though he be but of the half blood to him that last enjoyed that Name and Title of descent and shall not descend to his Sister of the whole blood And yet in this case he shall only be her Brother's Heir of all his Feesimple Lands and the reason thereof is because possessio fratris is the name and sole cause which may give Title to her his Sister which faileth in this case of Dignity for it cannot be said that her elder brother was in possession of his Title of Honour no more than of his blood so as neither by his own act nor any act to be done by any other did gain more actual possession if so it may be termed then by the Law did descend to him and therefore the younger brother may well by the Law make himself Heir unto his Father of the Honour that he cannot be heir unto his brother So that this word Possession which is no other than pedis positio extendeth only unto such things of which a man may by hâ—s entry or other act be possessed and doth require actual possession Coke's third part 92. Having thus much treated concerning the Creations and other things incident to the degrees of Nobility I cannot omit some things concerning the sufficiency and ability of Estate which the Law doth require to be in every of them according to their several Dignities The Common Law which always will decorum and conveniency be observed considering the Charges and Dignities appertaining to these Degrees and Dignities being Offices of principal Service to the King and Realm both in War and Peace hath ordered that each of them ought to have a convenient Portion and Inheritance in Land to support the said Dignity which Supplies are as Sinews conjoyned in the same For in Vertue and Riches as Aristotle confesseth all the old Nobility consisted and which two Properties maketh a good Complement for utilior est sapientia cum divitiis conjuncta Therefore a Knight's Fee which he ought to have is Twenty pounds Land by the year a Baron's thirteen Knights Fees and a quarter and an Earl's twenty Knights Fees For always the fourth part of each Revenues which is by the Law held requisite for the Dignity shall be paid to the King for the Relief As for Example the Relief of a Knight is five pounds which is the one fourth of his Revenue according to the Statute of the first of Edward the Second The Relief of a Baron is One hundred Marks which is also the fourth part of his Revenue And the Relief of an Earl is One hundred pounds alâ—o the fourth part of his Revenue And it appears by the Records of the Exchequer that the Relief of a Duke amounteth unto Three hundred pounds And this is the reason in our Books that every of the Nobility is presumed in the Law to have sufficient Freehold ad sustinendum nomen onus And to what value
those ancient Fees in the time of Henry the Third and Edward the Fourth at this day do amount unto most men are not unskilful in Coke's seventh part 33. And in Cases of Decay of Ability and Estate as Senatores Romani amoti Senatu so sometimes they are not admitted to the Upper House of Parliament though they still keep their Title and Dignity Sir Thomas Smith de Republica Aâ—glorum 22. and by the Statute made 31 Hen. 8. cap. 10. the Lords have their places prescribed after this manner as followeth viz. These four the Lord Chancellor the Lord Treasurer the Lord President of the Council and the Lord Privy Seal being Persons of the Degree of a Baron or above are in the same Act appointed to sit in Parliament and in all Assemblies and Councils above all Dukes not being of the Blood Royal viz. the King's Uncle Brother and Nephew And these six viz. the Lord Great Chamberlain of England the Lord High Constable of England the Lord Marshal of England the Lord Admiral of England the Lord High Steward of his Majesties Houshold and the Lord Chamberlain also of his Mâ—jesties Houshold by that Act are to be placed in all Assemblies of Council after the Lord Privy Seal according to their Degrees So that if he be a Baron than he is to sit above all Barons or if an Earl above all Earls And so likewise the King's Secretaries being Barons or Earls have place above all Barons or Earls PRIVILEDGES Incident to the NOBILITY According to the Laws of England CHAP. XIII WHEN a Peer of the Realm and Lord of the Parliament is to be Arraigned upon any Trespass or Felony whereof he is indicted and whereupon he hath pleaded Not Guilty the King by his Letters Patens shall assign some great and sage Lord of the Parliament to be High Steward of England for the day of his Arraignment who before the said day shall make a Precept to his Serjeant at Arms that is appointed to serve him during the time of his Commission to warn to appear before him Eighteen or Twenty Lords of the Parliament or Twelve at the least upon the same day And then at the time appointed when the High Steward shall be set under the Cloth of Estate upon the Arraignment of the Prisoner and having caused the Commission to be read the same Serjeant shall return his Precept and thereupon the Lords shall be called and when they have appeared and are set in their places the Conâ—â—able of the Tower shall be called to bring his Prisoner to the Barr and the High Steward shall declare to the Prisoner the cause why the King hath assembled thither those Lords and himself and perswade him to answer without fear and then he shall call the Clerk of the Crown to read his Indictment unto him and to ask him if he be Guilty or not whereunto when he hath answered Not Guilty the Clerk of the Crown shall ask him How he will be tryed and then he will say By God and his Peers Then the King's Serjeant and Attorney will give Evidence against him whereunto when the Prisoner hath made answer the Constable shall be commanded to receive the Prisoner from the Barr to some other place whilst the Lords do secretly confer together in the Court and then the Lords shall rise out of their places and consult amongst themselves and what they affirm shall be done upon their Honour without any Oath to be ministred upon them And when all or the greatest part of them shall be agreed they shall retire to their places and sit down Then the High Steward shall ask of the youngest Lord by himself if he that is Arraigned be Guilty or not of the Offence whereof he is Arraigned and then the youngest next him and so of the residue one by one until he hath asked them all and every Lord shall answer by himself And then the Steward shall send for the Prisoner again who shall be led to the Barr to whom the High Steward shall rehearse the Verdict of the Peers and give Judgment accordingly The Antiquity and Original of this kind of Tryal by the opinion of several Authors is grounded from the Statute of Magna Charta so called not in respect of the quantity but of the weight of it Coke to the Reader before his eight part fol. 2. cap. 29. beginning thus Millus liber homo c. nec super eum ibimus nec super eum mittemus nisi per legale judicium parium suorum But I take it to be more ancient than the time of Henry the Third as brought into the Realm with the Conqueror being answerable to the Norman and French Laws and agreeable with the Custom Feudale where almost all Controversies arising between the Sovereign and the Vassal are tryed per Iudicium parium suorum And if a Peer of the Realm upon his Arraignment of Treason do stand mute or will not answer directly Judgment shall be given against him as a Traytor Convict and he shall not be prest to death and thereby save the forfeiture of his Lands for Treason is out of the Statute of Westminster 1. chap. 12. 15. Ed. 4. 33. Dyer 205. But if he be Arraigned upon Indictment of Felony he may be mute This priviledge hath some restraint as well in regard of the person as in the manner of proceeding As touching the person first the Archbishops and Bishops of this Realm although they be Lords of the Parliament if they be impeached of such offence they shall not be tryed by the Peers of the Realm but by a Jury of Knights and other substantial Persons upon their Oaths the reason thereof alledged is so much as Archbishops and Bishops cannot pass in the like cases upon Peers for that they are prohibited by the Common and Ecclesiastical Laws to be judged of Life and Blood Reason would that the other Peers should not try them for this Tryal should be mutual forasmuch as it is performed upon their Honours without any Oath taken And so by the way you may see the great respect the Law hath to a Peer of the Realm when he speaketh upon his Honour even in a case concerning the life of a man and that of a Peer and therefore ought they much more to keep their Words and Promises in smaller matters when they engage their Honour for any just cause or consideration Secondly as touching these persons no Temporal Lords but they that are Lords of the Parliament shall have this kind of Tryal and therefore out of this are excluded the eldest Son and Heir apparent of a Duke in the life of his Father though he be called an Earl And it was the case of Henry Howard Earl of Surrey Son and Heir apparent to Thomas Duke of Norfolk in 38 Hen. 8. which is in Brook's Abridgment Treason 2. Likewise the Son and Heir apparent of an Earl though he be called a Lord. And all the younger Sons of Kings are Earls
to prejudice him touching his Mothers Inheritance who also did not offend or contrariwise especially in case where the Mother was seized of an Estate in Feesimple either in Lands or Tenements or Title of Honour And this was the case if I be not mistaken of Philip late Earl of Arundel notwithstanding the Attainder of Thomas Duke of Norfolk his Father for he had that Earldom in right of his Mother But they do agree That if the Lands or Tenements or a Title of Honour be given to a man and to his wife in tayl who hath Issue The Father is attainted of Treason and executed though this forfeiture of the Husband shall be no barr to the Wife concerning her interest by Survivorship yet their Issue is barred by the Statute 26 Hen. 8. cap. 13. and his Blood corrupted For in that case the Heir must necessarily make himself Heir as well of the Body of the one as of the other And yet the words of the Statute 32 Hen. 8. cap. 28. are That no Fine Feofâ—ment or other Act or Acts hereafter to be made or suffered by the Husband only of any Mannors Lands Tenements or Hereditaments being the Inheritance or Freehold of his Wife during the Coverture between them shall in any wise be or make any discontinuance or be prejudicial to the said Wife or to her Heirs or to such as shall have right title or interest to the same by the death of such Wife or Wives but the same Wife or her Heirs and such other to whom such right shall appertain after her decease shall or may then lawfully enter into all such Mannors Lands Tenements and Hereditaments according to their Rights and Titles therein For there is Adversity taken and agreed for Law between a discontinuance which doth imply a wrong and a lawful Baron which doth imply a right And therefore if Land be given to the Husband and the Wife and to the Heirs of their Bodies begotten and the Husband levies a Fine with Proclamation or do commit High Treason and dieth and the Wife before or after Entry dieth the Issue is barred and the Comisee for the King hath right unto the Lands because the Issue cannot claim as Heir unto both And with this doth agree Dyer 351. b. adjudged vide 5 Hen. 7. 32. Cott's Assize Coke's eighth part 27. where it is resolved That the Statute 32 Hen. 8. doth extend only unto Discontinuances although the Act hath general words or be prejudicial to the Wife or her Heirs c. but the conclusion if she shall lawfully enter c. according to their right and title therein which they cannot do when they be barred and have no right title and interest And this Statute doth give advantage unto the Wife c. so long as she hath right but it doth not extend to take away a future barr Although the Statute doth give Entry without limitation of any time nevertheless the Entry must attend upon the right and therefore if the Wife be seized in Feesimple and her Husband levy a Fine with Proclamation unto another and dieth now the Wife may enter by force of the Statute for as yet that Fine is not any barr unto her but her right doth remain which she may continue by Entry but if she do surcease her time and the five years do pass without Entry c. now by force of the Fine with Proclamation and five years past after the death of her Husband she is barred of her right and by consequence she cannot enter And the Statute doth speak of Fine only and not of Fine with Proclamation If there be Father and Son and the Father be seized of Lands holden in Capite or otherwise by Knight's Service the King doth create the Son Duke Earl or other Degree of Nobility and afterwards the Father dieth his Son being within the Age of One and twenty years he shall be no Ward but if the King had made him Knight in the life of his Father he should not have been in Ward after the death of his Father neither for the Lands descended nor for his Marriage though he be within Age. NOBILITY AND LORDS IN REPUTATION ONLY CHAP. XIV THERE are also other Lords in Reputation and Appellation who nevertheless are not de jure neither can they enjoy the priviledges of those of the Nobility that are Lords of the Parliament The Son and Heir of a Duke during his Father's life is only in courtesie of Speech and Honour called an Earl and the eldest Son of a Marquiss or an Earl a Lord but not so in legal proceedings or in the King's Courts of Judicature But the King may at his pleasure create them in the life of their Ancestors into any Degree of Lords of the Parliament And according to the German Custom all the younger Sons of Dukes and Marquisses are called Lords but by courtesie only which Title descends not to their Heirs A Duke or other of the Nobility of a Foreign Nation doth come into this Land by the King 's safe Conduct in which said Letters of safe Conduct he is named a Duke according to his Creation yet that Appellation maketh him not a Duke c. to sue or be sued by that name within this Realm but is only so by Reputation But if the King of Denmark or other Sovereign King come into England under safe Conduct he during his abode here ought to be styled by the name of King and to retain his Honour although not his Regal Command and Power And in this case may be observed by the way That no Sovereign King may enter into this Realm without licence though he be in League All the younger Sons of the Kings of England are of the Nobility of England and Earls by their Birth without any other Creation And if an Englishman be created Earl of the Empire or some other Title of Honour by the Emperor or other Monarch he shall not bear that Dignity in England but is only an Earl in Reputation A Lord or Peer of Scotland or Ireland is not of the Nobility or Peerage of England in all Courts of Justice although he is commonly reputed a Lord and hath priviledge as a Peer OF THE QUEEN CONSORT AND OF NOBLE WOMEN CHAP. XV. A QUEEN so called from the Sâ—xon word Cuningine as the King from Cuning by variation of Gender only as was their manner signifieth Power and Knowledge and thereby denotes the Sovereignty due unto them which they enjoyed in those days and do now in most Nations being capable of the Royal Diadem by the common right of Inheritance for want of Heirs Male But in France by the Salique Law the Sex is excluded from their Inheritance by which they debarred the English Title to their Crown There are three kinds of persons capable of the Title and Dignity of Queen amongst us and each of them different in Power and Priviledge The first is a Queen Sovereign to whom the Crown descends by Birth-right
then Countess of Killimeak in Ireland The Lady Dudley Dutchess of 〈…〉 The celebrated Beauties Barbara Villiers Dutchess of Cleaveland and Countess of Southampton and Louyse Rene Angelique de Carwell Dutchess of Portsmouth Countess of Petersfield c. Of Titles by Descent and Marriage there are Examples enough so that I need not trouble the Reader with any repetition I shall only set down some few general Observations not sufficiently discoursed of If a King's Daughter marry a Duke or an Earl illa â—emper dicitur Regalis by Law and Courtesie Noble women by descent Birthright or Creation remain Noble although they marry Husbands under that degree Also any Daughter of an Earl or Viscount that continues a Virgin or marrieth an Esquire yet she retaineth the Honour that sprung from her Parents and shall take place accordingly and be saluted by the Title of Lady If a Gentleman Knight or Peer marry a wife of ignoble Parents she shall enjoy the Title Name and Dignity of her Husband not only during his life but when she is a widow or afterwards married to an Ignoble person but this is by the Courtesie and not by the Law of the Realm Whereas on the contrary let a woman of Blood and Coat-Armour marry a Yeoman or Churle that is Ignoble and hath no Coat-Armour his Condition in point of Honour is in no respect advanced and she shall retain the Honour State and Dignity she was born unto Yet if she have iâ—â—ue by that Yeoman or Ignoble person she being an Heiress that Issue shall have liberty to bear her Coat but Sir Iohn Fern saith only for life and that on a Lozenge Shield with a difference of a Cinquefoil If a French Spanish or other woman Alien be married to a Peer of the Realm or to a Gentleman and be not denizened she is debarred all Priviledges and Titles due to her Husband nor can she claim any Dower or Joynture from him by the Laws of England Yet in some things our Laws are wonderful kind to the Female Sex especially procreandi causa As thus if a man and his wife separate for some fraud or private loathing of the Marriage Bed or the like and so continue for some years after which time the woman bringeth forth a Child which though got by another man and her Husband in all that time not having enjoyed her yet if he live in the Kingdom he must Father the Child and if before that time he had no Child that shall inherit his Lands if entailed or left without Will Also if a Wife be with Child when her Husband dieth and she marry another man before her delivery the latter Husband must own the Child which must be his Heir at Law if he were childless The Wives Dignities and Lands descend to her Heirs not to her Husband yet to encourage him to play the man the Courtesie of England is such that as the Wife hath the third part of his Estate in Lands for her Joynture during her life if a Widow so the Husband if he get his Wife with Child and that Child be heard to cry he shall enjoy all her Lands during his life The Wife can make no contract whatsoever that shall stand good in Law to the detriment of her Husband without his consent nor can she make a Will or dispose of what she hath whilst she is a Feme Covert â—he cannot be produced as a witness for or against her Husband nor shall she be accessory to his felonious acts although she receive the Goods or conceive the Fact if she be not personally an Actor therein Female Children are also by Law capable to give their consent to marriage at Seven years old and the Lord 's eldest Daughter is to have aid of his Tenants to marry her at that age though she may dissent from this Contract when she comes to Twelve but if at that Age she doth not dissent she is bound for life she may then make a Will and dispose of Goods and Chattels by it At Nine years of Age she is Dowable at Fourteen she might receive her Lands into her Hands and was then out of Wardship if she were Fourteen at the death of her Ancestor otherwise she was in Wardship till she accomplished Sixteen years and then she was free At One and twenty she is enabled to contract or alienate her Lands by Will or otherwise If there be no Son the Lands as well as Goods are equally divided amongst the Daughters who are Coheirs In ancient times Women amongst the Romans were thought worthy of enjoying peculiar favours and respect And out of their great love and honour to the Mother of Marcus Coriolanus for diverting his fury which he threatned the Citizens to their ruin for their ingratitude towards him the Citizens granted the Roman Dames the priviledge of wearing the Segmenta Aurea or Bordures of Gold and purple on their Garments They were also permitted to wear gold Ear-rings to have place on the way and in memorial of the said preservation there was erected a Temple dedicated to the Female Fortune Anne of Britain wife to Charles the Eighth of France as an ornamental Honour to several deserving Ladies instead of the Military Belt and Collar bestowed on them a Cordon or Lace and admonishing them to live chastly and devoutly and to put the greater esteem thereon the surrounded her Escocheon of Arms with the like Cordon from which Example it is now become the Custome for unmarried women to bear their Arms in form of a Lozenge which are commonly adorned with such a Cordon Ioseph Micheli Marquez for the further Honour of the Female Sex gives an Example of the Noble women of Tortosa in Aragon whom he calls Cavalleros or Knights For saith he Don Raymond last Earl of Barcellona who by right of his wife Petronilla sole Daughter and Heir to King Ramiro the Monk joyned his Principality to the Kingdom of Aragon having in the year 1149. taken from the Moors the City of Tortosa who in a few months after laid siege to the said City and reduced the Inhabitants to so great a strait that their intentions were of surrendring it up to the Moors but the women hearing thereof for the diverting their ruin put on mens Apparel and by a resolute Sally forced the Moors to raise the Seige And the Earl in acknowledgment of his thanks for this their Noble Act as a reward of Honour instituted an Order not much unlike a Military Order into which were admitted only those brave women and their Descendants The Badge which he assigned them was something like a Fryer's Capouch but of a crimson colour which they wore upon their Head-clothes Amongst the priviledges which this Earl granted them they were to be freed from all Taxes to have precedency of men in publick Meetings and that all the Iewels and Apparel of their deceased Husbands should be their own although of never so great value And these women having thus purchased this
Honour deported themselves after the manner of Military Knights of those days To look further back ancient Histories do take notice of the Amazons of old whose Fame in Arms is sufficiently known Although Noble women may not sit in Parliament in respect of their Sex yet they are in Law Peers of the Realm and all or most of the prerogatives before mentioned which to the Noblemen are belonging do appertain unto them But the Opinion of some men have been That a Countess Baronness and other women of great Estate cannot maintain an Action upon the Statute de Scandalis magnatum because the Statute 2 Rich. 2. speaketh but of Prelates Dukes Earls Barons and of the Chancellor Treasurer Privy Seal Steward of the King's Houshold and other Nobles great Officers of the Realm by which words they conceive that the meanings of the Makers of that Statute was only to provide in that case for Noblemen and not for Noble women Also if any of the King's Servants within the Check-Roll do conspire the death of any Noble woman it is not Felony within the compass of the Statute 3 Hen. 7. 18. Honourable women as before noted are of three sorts by Creation by Descent and by Marriage And the King may create any woman into any Title of Honour at his pleasure and the King by his Letters Patents openly read in Parliament without any other Investure did create Mary Fane Widow the sole Daughter of Baron of Aburgaveny Baronness de le Spencer Noble women by Descent are either those to whom the Lands holden by such Dignity do descend as Heir and they are said to be Honourable by Tenure or by whose worthy Ancestors to whom they were Heirs was seized of an Estate descendable to them in their Titles of Dukedoms Earldoms or Baronies or those whose Ancestors were summoned to Parliament for hereby also Inheritance doth accrew to their Posterities Noble women are also those who do take to their Husbands any Lord or Peer of the Realm although they themselves were not of any degree of Nobility Question and doubt hath been made Whether if a man be summoned to Parliament and afterwards die without Issue Male the Dignity and Title of Honour may descend to the Heir Female And many Arguments have been pro contra in that case which at this time I purposely omit because I have before discoursed thereof in the Chapter of Barons Concerning the Title of Honour descendable to the Heir Female by reason of a Tenure of her Ancestors there needs no more doubt to be made than of Offices of Honour the which do much support the publick wealth and being of Estate of Inheritance do descend to the Heir Female if there be no nearer Heir Male As the Office of High Constableship of England challenged in the time of Henry the Eighth by the Duke of Buckingham and adjudged by the Advise and Resolution of the Judges as by a note of that Case extant whereof Dyer in his Reports hath a memorial 205. b. Kelway the Sixth of Henry the Eighth 170. b. which descended to the Daughter of Humphrey de Bohune Earl of Hereford and Essex as before is declared The Office of the Lord Steward descended to Blaunch Daughter of Henry Earl of Lancaster in whose right Iohn of Gaunt her Husband enjoyed the same The like may be said of the Office of Earl-Marshal which descended by an Heir Female unto the House of Norfolk All which Offices are as unfit to be exercised by a Woman as for a Woman of Honour to be summoned to the Parliament And when a Title of Honour doth descend to a Woman if question in Law do arise between the said Noble woman and any other person whether she be of that Degree of Nobleness or no the Issue shall be tried by the Record thereof and by the King 's Writ it shall be certified and not by a Jury of twelve Men even as it should have been in case her Ancestor had been party Although the Laws of the Realm regularly do make all the Daughters where there are no Sons equally to inherit Lands and Tenements and to be but one Heir to their Ancestor yet it is not so in the descent of Dignity and Titles of Honour for Inheritances concerning matter of Honour being things in their nature participating 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 and inheritable where there is no Heirs Males that may lawfully challenge the same And so in this point is the Civil Law Nevertheless there was a Judgment in the time of Henry the Third touching the descent of the Earldom of Chester after the death of the Earl who died without Issue his Sisters being his Heirs which Judgment was That the said Earldom should be divided amongst the said Copartners as the other Lands and that the eldest should not have it alone But this Judgment was holden Erroneous even in those times wherein it was given For Bracton a Learned Judge who lived in that Age writeth thereof treating of partition between Copartners lib. 2. Case 24. by which it is evident That Baronies and Dignities of Honour do by the Laws of this Realm descend unto the eldest Copartner and the Judgment given once to the contrary thereof Bracton doth rightly account to be unjust His Reason is notable Forasmuch as the Honour of the Chivalry of this Realm doth chiefly consist in the Nobility Reason would not that such Dignity should be divided amongst Copartners whereby through multitude of partitions the reputation of Honour in such Succession and so divided might be impaired or the strenght of the Realm being drawn into many hands with decrease of livelyhood by such partition should be infeebled In which Resolution Britton the Learned Bishop of Hereford who compiled his Book of the Laws of this Realm by the Commandment and in the Name of Edward the First accordeth Britton 187. And therefore howsoever the Judgment was given or whensoever it is nevertheless very evident that it was soon redressed For if it were given upon the death of Ralph the last of that Name Earl of Chester who died about the Seventh of Henry the Third without Issue the Writers of that time do testifie that the Earldom of Chester came wholly unto Iohn Scott the Son of David Earl of Huntington and Auguish and Maud the eldest Sisters of the said Ralph if it were given upon the death of the said Iohn Scott who died about the Four and twentieth of Henry the Third without Issue yet notwithstanding the said Judgment stood in force for that the said King assumed the Earldom into his own Hands upon other satisfaction made to the said Sisters Copartners of the said Iohn Scottâ— Ne tanta haereditas inter colos deduceretur Matth. Paris Monaster Sancti Allane in Crompton fol. 366. b. Nevertheless you may read in this Treatise of
Heraldry written by Iohn Guillim about fol. 18. That Sisters are allowed no differences of Badges in their Coat-Armour by reason that by them the name of the House cannot be preserved but are admitted to the Inheritance equally and are adjudged but one Heir to all intents and purposes whatsoever And the knowledge of this point in these days is worthy to be enquired into for this is to be observed out of Presidents and to be acknowledged of every dutiful Subject that the King can advance to Honour whom he pleaseth And therefore whereas Radulph Cromwell being a Baron by Writ died without Issue having two Sisters and Coheirs Elizabeth the eldest married unto Sir Thomas Nevill Knight and Ioan the younger married to Sir Humphrey Bowcher who was called to Parliament as Lord Cromwell and not the said Sir Thomas Nevill who married the eldest Sister And Hugh Lupus the first and greatest Earl of Chester Habendum sibi haeredibus adeo libere per gladium sicut iple Rex tenuit Angliam per tenorem Hugh died without Issue and the Inheritance of his Earldom was divided amongst his four Sisters and the eldest had not the Seigniory entire unto herself If a Woman be Noble by Birth or Descent with whomsoever she doth marry although her Husband be under her Degree yet she doth remain Noble for Birth-right est Character indelebilis Other Women are enobled by Marriage and the Text saith thus viz. Women ennobled with the Honour of their Husbands and with the Kindred of their Husbands we worship them in the Court we decree matters to pass in the Names of their Husbands and into the House and Surname of their Husbands do we translate them But if afterwards a Woman do marry with a Man of a baser Degree then she loseth her former Dignity and followeth the condition of her latter Husband And concerning the second disparaged Marriage as aforesaid many other Books of the Law do agree for these be Rules conceived in those Cases Si mulier nobilis nupserit ignobili desinit esse nobilis eodem modo quo quid constituitur dissolvitur It was the Case of Ralph Howard Esq who took to Wife Anne the widow of the Lord Powes they brought an Action against the Duke of Suffolk by the Name of Ralph Howard Esq and the Lady Anne Powes his Wife and exception was taken for mis-naming of her because she ought to have been named of her Husband's Name and not otherwise and the Exception was by the Court allowed For said they by the Law of God she is Sub potestate viri and by our Law her Name of Dignity shall be changed according to the Degrees of her Husband notwithstanding the Courtesie of the Ladies of Honour and Court Dyer 79. And the like is also in Queen Maries Reign when the Dutchess of Suffolk took to her Husband Adrian Brook Title Brief 54. 6. And many other Presidents have been of later times And herewith agreeth the Civil Law Digest lib. 1. title q. lege 1. In this Case of acquired Nobility by marriage if question in Law be whereupon an Issue is taken between the Parties that is to say Dutchesses are not Dutchesses Countesses are not Countesses and Baronesses are not Baronesses the Trial whereof shall not be by Record as in the former Case but by a Jury of Twelve men and the reason of the diversity is because in this Case the Dignity is accrued unto her by her Marriage which the Lawyers term Matter in Fact and not by any Record But a Noble Woman by marriage though she take to her second Husband a man of mean Degree yet she may keep two Chaplains according to the Proviso in the Statute of 11. Hen. 8. Case 13. for and in respect of the Honour which once she had viz. at the time of the Retainer And every such Chaplain may purchase Licence and Dispensation c. And Chaplains may not be Non-residents afterwards And forasmuch as the retaining of Chaplains by Ladies of great Estate is ordinary and nevertheless some questions in Law have been concerning the true understanding of the said Statute Law I think it not impertinent to set down subsequent Resolutions of the Judges touching such matters So long as the Wife of a Duke is called Dutchess or of an Earl a Countess and have the fruition of the Honour appertaining to their Estate with kneeling tasting serving so long shall a Baron's Widow be saluted Lady as is also a Knight's Wife by the courtesie of England quamdiâ— matrimonium aut viduitas uxoris durant except she happen to clope with an Adulterer for as the Laws of this Kingdom do adjudge that a Woman shall lose her Dowry in that as unto Lands Tenements and Justice so doth the Laws of Gentry and Nobleness give Sentence against such a Woman advanced to Titles of Dignity by the Husband to be unworthy to enjoy the same when she putting her Husband out of her mind subjects her self unto another If a Lady which is married come through the Forest she shall not take any thing but a Dutchess Marchioness or Countess shall have advantage of the Statute de Charta Forest. 12 Artic. during the time that she is unmarried This is a Rule in the Civil Law Si filia Regis nubat alicui Duci vel Comiti ducetur tamen semper regalis As amongst Noble Women there is a difference of Degrees so according to their distinct Excellencies the Law doth give special priviledges as followeth By the Statute 25 Edw. 3. cap. 1. it is High Treason to compass or imagine the death of the Queen or to violate the King's Companion The King's Response is a sole person except by the Common Law and she may purchase in Feesimple or make Leases or Grants with the King she may plead and be impleaded which no other married Woman can do without her Husband All Acts of Parliament for any cause which any way may concern the Queen are such Statutes whereof the Judges ought to take Recognizances as of general Statutes though the matter doth 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 within his Laws are divided from the King who is Head and Sovereign so that his business concerns all the Realm and as the Realm hath interest in the King so and for the same Reason is the Queen being his Wife A man seized of divers Lands in Fee holden by Knight's Service some by Priority that is by ancient Feoffment holden of others and some other part holden of the King in posteriority the King granteth his Seigniory to the Queen during her life and afterwards the Tenant dieth his Son within Age in this case he shall have the Wardship of the Body and have the Prerogative even as the King himself should have had The Queen Consort or Dowager shall not be amerced if she be Nonsuited
of Requests to his Majesty 460 April 2. 1652. William Curtius Esq 461 Oct. 19. 1657. Sir Arthur Slingsby of 〈…〉 in Kent 462 〈◊〉 1658. Thomas Orby of 〈…〉 in Lincolnshire Esq 463 Thomas Bond of 〈◊〉 in 〈◊〉 Esq 464 Aug. Arthur Marigny Carpentier Esq 465 1660. Sir Anthony de Merces Extinct 466 May 29. Sir Iohn Evelyn of 〈◊〉 in 〈◊〉 Kt. 467 30. Sir Gualter de Read 468 Feb. 11. Iohn Osborn of Chicksands in Bedfordshire Esq 469 Iune 7. Sir Orlando Bridgman of Great Leaver in Lancashire Kt. late Lord Keeper of the Great Seal of England 470 Sir Ieffrey Palmer of Carleton in Northamptonshire Kt. his Majesties Attorney General 471 Sir Heneage Finch of Raunston in Bucks Kt. now Lord Daventry and Lord Chancellor of the Great Seal of England 472 Sir Iohn Langham of Catsbrook in Northamptonshire Kt. 473 9. Humphrey Winch of Hanmes in Bedfordshire Esq 474 Sir Robert Abdy of Albins in Essex Kt. 475 Thomas Draper of Sunninghill-Park in Berkshire Esq 476 11. Henry Wright of Dagenham in Essex Esq 477 Iune 12. Ionathan Keate of the Hoo in Hartfordshire Esq 478 Sir Hugh Speake of Hasilbury in VViltshire Esq 479 13. Nicholas Gould of the City of London Esq 480 Sir Thomas Adams Kt. Alderman of London 481 Richard Atkins of Clapham in Surrey Esq 482 14. Thomas Allen of the City of London Esq 483 Henry North of Milden-hall in Suffolk Esq 484 15. Sir William Wiseman of Rivenham in Essex Kt. 485 18. Thomas Cullum of Hastede in Suffolk Esq 486 20. Thomas Darcy of St. Cleres-hall in St. Oliths in Essex Esq 487 George Grubham How of Cold-Barwick in Wiltshire Esq 488 21. Iohn Cutts of Childerley in Cambridgshire Esq Extinct 489 Solomon Swale of Swale-hall in Yorkshire Esq 490 VVilliam Humble of the City of London Esq 491 22. Henry Stapleton of Miton in Yorkshire Esq 492 Gervase Elwes of Stoke near Clare in Suffolk Esq 493 Robert Cordell of Melford in Suffolk Esq 494 Sir Iohn Robinson Kt. Lieutenant of the Tower of London 495 Sir Iohn Abdy of Moores in Essex Kt. 496 25. Sir Robert Hilliard of Patrington in Yorkshire Kt. 497 Iacob Astley of Hill-Morton in VVarwickshire Esq 498 Sir VVilliam Bowyer of Denham in Bucks Kt. 499 Thomas Stanley of Alderley in Cheshire Esq 500 26. Iohn Shuckborough of Shuckborough in Warwickshire Esq 501 27. VVilliam Wray of Ashby in Lincolnshire Esq 502 Nicholas Steward of Hartley Manduit in Hantshire Esq 503 Iune 27. 1660. George Warburton of Areley in Cheshire Esq 504 Sir Francis Holles of Winterburne St. Martin in Dorsetshire Kt. Son and Heir to Denzill Lord Holles 505 28. Oliver St. Iohn of Woodford in Northamptonshire Esq 506 29. Ralph De la Vall of Seyton De la Vall in Northumberland Esq 507 30. Andreas Henley of Henley in Somersetshire Esq 508 Thomas Ellis of Wyham in Lincolnshire Esq 509 Iuly 2. Iohn Covert of Slaugham in Sussex Esq 510 Peter Lear of London Gent. 511 Maurice Berkley of Bruton Esq 512 3. Henry Hudson of Melton-Mowbray in Leicestershire Esq 513 Thomas Herbert of Tinterne in Monmouthshire Esq 514 4. Thomas Middleton of Chirk in Denbighshire Esq 515 6. Verney Noell of Kirkby in Leicestershire Esq 516 7. George Buswell of Clipston in Northamptonshire Esq 517 10. Robert Auâ—ten of Bexley in Kent Esq 518 12. Robert Hales of Bekesburne in Kent Esq 519 13. Sir William Boothby of Bradley-Ash in Derbyshire Kt. 520 14. Wolstan Dixey of Market-Bosworth in Leicestershire Esq 521 16. Iohn Bright of Badsworth in Yorkshire Esq 522 Iohn Warner of Parham in Esq 523 17. Sir Iob Harby of Aldenham in Hartfordshire Kt. 524 18. Samuel Morland of Southamstede-Banester in Berkshire Esq 525 19. Sir Thomas Hewit of Pishobury in Hartfordshire Kt. 526 Edward Honywood of Evington in Kent Esq 527 Basil Dixwell of Bromehouse in Kent Esq 528 22. Richard Brown of London Ald. 529 23. Henry Vernon of Hodnet in Shropshire Esq 530 Sir Iohn Awbrey of Llantrilhed in Glamorganshere Kt. 531 William Thomas of Fowington in Essex Esq 532 25. Thomas Scâ—ater of Cambridge in Cambridgshire Esq 533 Henry Conway of Botritham in Flintshire Esq 534 26. Edward Green of Sonpford in Essex Esq 535 28. Iohn Stapeley of Patcham in Sussex Esq 536 30. Metcalf Robinson of Newby in Yorkshire Esq 537 31. Marmaduke Gresham of Limpsfield in Sussex Esq 538 Aug. 1. William Dudley of Clopton in Northamptonshire Esq 539 2. Hugh Smithson of Stanwick in Yorkshire Esq 540 3. Sir Roger Mostin of Mostiâ— in Flintshire Kt. 541 4. William Willoughby of Willoughby in Nottinghamshire Esq 542 6. Anthony Oldfield of Spalding in Lincolnshire Esq 543 10. Peter Leicester of Tabley in Cheshire Esq 544 11. Sir William Wheeler of the City of Westminster Kt. 545 16. Iohn Newton of Barscote in Glocestershire Esq 546 Thomas Lee of Hartwell in Bucks Esq 547 Thomas Smith of Hatherton in Cheshire Esq 548 17. Sir Ralph Ashton of Middleton in Lancashire Esq 549 Iohn Rous of Henham in Suffolk Esq 550 22. Henry Massingbeard of Bratostshall in Lincolnshire Esq 551 28. Iohn Hales of Coventry in Warwickshire Esq 552 30. Ralph Bovey of Hill-fields in Warwickshire Esq 553 Iohn Knightley of Offchurch in Warwickshire Esq 554 31. Sir Iohn Drake of Ash in Devonshire Kt. 555 Sept. 5. Oliver St. George of Carickermrick in the County of Trim in Ireland Esq 556 11. Sir Iohn Bowyer of Knipersley in Staffordshire Kt. 557 13. Sir William Wild Kt. Recorder of the City of London 558 19. Ioseph Ash of Twittenham in Middlesex Esq 559 22. Iohn How of Compton in Glocestershire Esq 560 26. Iohn Swimburne of Chap-Heton in Northumberland Esq 561 Oct. 12. Iohn Trott of Laverstoke in Hantshire Esq 562 13. Humphrey Miller of Oxenheath in Kent Esq 563 15. Sir Iohn Lewes of Ledston in Yorkshire Kt. 564 16. Iohn Beale of Mâ—idston in Kent Esq 565 Sir Richard Franklin of Moore-Park in Hartfordshire Kt. 566 Nov. 8. William Russel of Langhorne in Caermarthenshire Esq 567 9. Thomas Boothby of Friday-hill in the Parish of Chingford in Essex Esq 568 William Backhouse of London Esq Extinct 569 12. Sir Iohn Cutler of London Kt. 570 16. Giles Mottet of Leigh in Esq 571 21. Henry Gifford of Burstall in Leicestershire Esq 572 Sir Thomas Foot of London Kt. and Alderman 573 22. Thomas Manwaring of Overpever in Cheshire Esq 574 Thomas Benet of Baberham in Cambridgshire Esq 575 29. Iohn Wroth of Blenden-hall in Kent Esq 576 Dec. 3. George Wynne of Nostell in Yorkshire Esq 577 4. Heneage Featherstou of Blakesware in Hartfordshire Esq 578 Humphrey Monnox of Wotton in Bedfordshire Esq 579 10. Iohn Peyton of Dodington in the Isle of Ely in Cambridgshire Esq 580 11. Edmond Anderson of Broughton in Lincolnshire Esq 581 Iohn Fagg of Wiston in Sussex Esq 582 18. Matthew Herbert of Bromfield in Shropshire Esq 583 19. Edward Ward of Bexley in Norfolk Esq 584 22. Iohn Keyt of Ebrington in Glocestershire Esq 585 William Killegrew of Arwynick in Cornwal
Domini sui ei conferet maritagium suum c. which words cannot be understood when he is out of Ward and Custody no more than when he is married after the Age of One and twenty years Note hereby that the King may prevent his Grantee or other Lords of the double value by Knighthood Yet in such case presently after the Heir is made a Knight after the death of his Ancestor the Lord may have a Writ de valore maritagii for the single Also by the ancient Common Law of this Realm if a Villain be made a Knight he is immediately infranchised And if a Ribald or a man of base birth and condition had struck a Knight by the ancient Law he should have lost his hand wherewith he offended But in France it was anciently adjudged that when the Lord of a Villain had Knighted his Villain being a Gentleman he became free and had his Honour lawâ—ully but if another Lord had Knighted him nothing had been wrought by it for none could manumit him but his Lord and till Manumission or Knighthood he had civil freedom for his ground but was not capable of it except by the King only It was enacted by Parliament in the sixth year of the Reign of King Iohn in haec verba Rex Vicecom c. Sciatis quod consensum est cum assensu Archiepiscoporum Comitum Baronum omnium fidelium nostrorum Angliae quod novem Milites per totam Angliam invenient decuriam Militum bene paratorum aequis armis ad defensionem Regni nostri There hath ever been and still is great use of the Services of Knights even in Civil Affairs and concerning matters of Justice as in a Writ of Right which is the highest Writ in Law for trial of Titles touching the Inheritance of Lands the Tenant is at his Election to have his Trial by great Assize or else by Battel if by the great Assize the Writ De magna Assiza eligenda shall be thus viz. Rex Vicecomiti salutem c. Summone as per bonos summonitores quatuor legales Milites de Comitatu tuo quod sint coram Iusticiariis nostris ad primam Assizam cum in partes illas venerint ad eligendum super sacramentum suum 12 de militibus de visum de N. qui melius sciant velint dicere veritatem adfaciendam recognitionem magnae assurae inter A. petent B. tenent de uno messuagio cum pertinentiis in N. unde idem B. qui tenens est posuit secum magnam Ass. nostram petit recognitionem fieri utrum eorum habent jus in messuagium praed B. qui tunc sit ibi auditurus illam electionem habeas ibi nomina praed milit ad hoc breve c. And upon the Return of this Writ those four Knights must appear gladiis cuncti Dier 79. fol. 103. If the Tenant make his Election by Battel each parties are to choose their Champions and the Court shall award the Battel and the Champions shall be at Mainprize and sworn to perform the Battel 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 there quadrant that is to say every way sixty foot square and the Place or Court for the Justices of the Common Pleas without and upon the Lists furnished with the same Clothes which belong to their Court at Westminster and a Barr shall be there made for the Serjeants at Law and the Robes of the Justices and Serjeants shall be of Scarlet with their Coifs on as it was the Thirteenth of Eliz. and then was made Proclamation with three O Yes And the Demandant first was solemnly demanded and did not appear whereupon the Manuperors of the Champion were demanded to bring forth the Champion of the Demandant who came into the place apparelled with red Sandals upon his black Armour bare legged from the Knee downwards and bare headed and bare Arms to the Elbows being brought in by a Knight namely Sir Ierom Bowes who carried a red Battoon of an ell long tipped 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 until they came to the midst of the Lists and then came towards the Barr before the Justices with three solemn Congies and there was he made to stand on the South side of the place being the right side of the Court And after that the other Champion was brought in in like manner at the South side of the Lists with like Congies by the hands of Sir Henry Chequie Kt. c. and was placed on the North side of the Barr and two Serjeants being of the Counsel of each part in the midst between them This done the Demandant was solemnly called again and appeared not but made default Bowham Serjeant for the Tenant prayed the Court to record the Nonsuit quod factum fuit And then Dyer Chief Justice reciting the Writ and Content and Issue joyned upon the Battel and the other of the Champions to perform it and the prefiction of this day and place did give final Judgment against the Demandant and that the Tenant should have the Land to him and to his Heirs for ever and the Demandant and his Pledges de prosequendo in misericordia Reginae And afterwards solemn Proclamation was made that the Champions and all others there present which were by estimation above Four thousand persons might depart every man in the peace of God and the Queen sic fecerunt cum magno clamore vivat Regina Also if false Judgment be given in the Country which is the Sheriffs Court then the Writ shall be thus Henricus c. Vicecomiti Lincoln salutem Si A. fecerit c. tum in pleno Comitatu tuo per breve nostrum de recto inter Iohannem L. petentem Will B. tenentem de uno messuagio centum acris terrae cum pertinentiis in C. unde idem I. L. queritur falsum sibi factum fuisse Iudicium in eodem Record illud habeas coram Iusticiariis Iuris apud Westminsterium tali die sub sigillo tuo per quatuor legales Milites ejusdem comitatus illos qui Recordo illi interfuerunt summoneas per bonos summonitores praedictum B. quod tunc sit ibi auditurus Recordum illud habeas ibi sua nomina quatuor militum hoc breve Fitz. Nat. Brev. itidem E. And those four must be Knights indeed Also the Justices upon consideration of the usual words in every Writ of Venire Facias Coram c. Duodecim tum Milites quam alios liberos legales homines c. say that these words tum Milites were not at the first put into the Writ without effect Plowden 117. b. For it seemeth that in diebus
illis some Knights were returned upon every Venire Facias By the Statute of Magna Charta cap. 12. It is ordained that Assizes of Novel Disseison and Mortdancester should not be taken any where but within the Countries where they happen by the Justices of Assize and the Knights of the Shire vide Westminster 2. chap. 30. And by the Seven and twentieth of Edward the First chap. 30. de finibus levandis amongst other things it is enacted That for the utility of the Realm and the more assured conservation of the Peace the Justices assigned to take Assizes in all Shires where they take Assizes as it is ordained immediately after the Assizes taken in the Shires shall remain both together if they be Lay and if one of them be a Clerk then one of the most discreet Knights of the Shire being associated unto him that is a Lay-man by our Writ shall deliver the Goals of the Shires as well within the Liberties as without of all manner of Prisoners after the form of the Goal Delivery of those Shires beâ—ore time used Also in the Statute of Westminster 21. cap. 38. de non ponendis in Assizis Iuratis it is provided that the said Statute shall not extend to Grand Assizes in which it behoveth many times Knights to pass not resident in the County for the scarcity of Knights so that they have Lands in the Shire And by the Law Knights having Land may be returned upon Juries in ordinary Trials between party and party as other Freeholders may be And therefore in a Challenge to the great Assize under Edward the Third one was challenged pur ceo qu'il fait abaner or as the Abridgment hath it a Baronet but it was not allowed and the Reason is given Car s'il soit à Baner ne tient pas per Baronie il serra en l'assise Of the double parity of England that is of Barons and all Dignities above them being Peers of the Realm and all other under them are Peers amongst themselves for notwithstanding that Dignity of Knighthood they are reckoned amongst the Commons And we daily see that Knights do serve in Parliament as Members of the Commonalty Nevertheless the Sheriff in his discretion will not impannel Knights but in special and great Causes As in Cases of Indictments of a Peer of the Realm they are to be enquired and found by Knights and Esquires though their Trial shall be only by their Peers And in 38 Hen. 8. Henry Howard Earl of Surrey Son and Heir apparent of Thomas Duke of Norfolk was attainted of High Treason and was tried also by Knights Esquires and Gentlemen and not by Lords or Peers of the Realm because he was not of that Dignity by Creation Since the use of making every Earl first a Baron of some place which began as most Writers treat about the time of Henry the Eighth it hath been a Custome to style their Heirs apparent Lords and Barons with the Title of their Father's Barony when Viscounts or Baron's Heirs apparent are only styled Esquires but this is only a piece of Civility and of meer fashion yet it is allowed of in Heraldry with whom the Rule is That the eldest Son of every one of a created Degree is as of the next Degree under him which may be applied to Dukes Earls and the like But in Legal Proceedings they enjoy no such matter nor have by their being Heirs Apparent any Prerogative of the greater Nobillty And in case where a Peer of the Realm is party Plaintiff or Defendant in any Action or Suit if the Sheriff do not return one Knight at the least to be of the Jury the said Noble Person may Challenge and for that only cause quash the whole pannel By the Statute of Carlisle 15 Edw. 2. it was enacted That he who levied a Fine should appear in proper person to the intent that his Age Idiocy or other defect might be discovered by the Judges Nevertheless upon Impotency whereby he cannot come in Court two or one of the Justices by the consent of the rest of the Justices shall go unto him and take his Recognizance and if but one of them go he shall take a Knight with him and shall certifie it in the Bench of Record to the intent that all things incident to the fine be examined by them and then the fine may be levied But after this good Statute a worse Custom and Use hath come in place For by a Dedimus potestatem out of Chancery to one Knight and to a Justice of the Peace of the County in such cases is procured and directed to a Knight and two others who perhaps be neither Knights nor Justices but perhaps men of small estimation and unto two or three of them without saying Quorum the Knight shall be one and two of them without the Knight have taken the Recognizance of the Fine ibid. 101. b. But great prejudice this practise of omitting the interposing of the usual Service of Knights in this behalf hath been to many and scandalous to the Law of the Land they sometimes taking Recognizances of a Fine from a Feme Covert as if she were sole and many times acknowledged by Justices If a Tenant do lay an Essoin de morbo lecti he may have a Writ out of the Chancery to warrant it by which it shall be commanded to four Knights to view him and if they see him sick then they are to give him day to the end of a year and a day Note the Register fol. 177. b. Quod Coronator non elegatur nisi sit miles in c. juxta formam Statuti Westm. 1. cap. 10. It is a received Opinion that Knights are excused from attendance at Leets and Britton 29. 36. is cited to prove it And by a large understanding of the intent and meaning of the Statute of Marlbridge chap. 10. For the ancient Common Law had such respect to the Degree of Knighthood that they nor their eldest Sons were compelled to find Pledges in the Leet or Law-days for the Statute of Marlbridge aforesaid was not Introductiva novae Legis for it was before the Conquest And the Common Law is not by this Statute abridged And by the Book called the Mirror of Iustice mentioned in the Preface to Coke's ninth part it is said that Knights are excepted And so it appears that the practice was as well before as immediately after the making of that Statute of Marlbridge and Interpretatio Practica is a principal way and form of Interpretation of Laws The Lord Chancellor's Speech in the Case of Postnati fol. 58. And in Divinity Praxis sanctorum est interpretatio praeceptorum ibid. 66. But a Knight and all Superiors and Inferiors are bound by Law to attend the County or Sheriffs Court wherein he dwelleth and at his peril to take notice of the proceedings thereof For if a Man be Outlawed of Felony at a County Court and one of the same County not