King of England as also to our selfe by our Letters Patents doe grant and give licence for us and our heires so much as in us lyeth to the said Edmond to dispose and give all his Manours Lands Tenements and Knights fees with their appurtenances and Advowsons of Churches Abbies and Priories and Hospitalls which he holdeth of us in chiefe to whom he pleaseth To have and to hold to him and his heires for us and our heires by the service thereof for ever By which Grant the said Edmond gave all his Lands and Tenements to one William sonne of John Deyncourt and to his heires of his body comming And the said Edmond dyed the last yeere of Edward the second and the said William in the time of Edward the third was summoned among other Barons to the Parliament by vertue of the same gift untill his death which was Anno 3. E. 3. It appeareth by divers offices in the time of King Edward the third that John Handlow in the right of Maud his wife was seized of the Mannour of Holgate Acton Burnell c. for terme of her life remainder to Nicolas Handlow alias Burnell sonne to the said Maud and John by a fine in the Court levied and that John Lovell was next heire of the said Maud and her first-borne sonne by her first husband and afterwards the said Nicolas was summoned among other Lords to the Parliament by reason of the fine aforesaid and not the said John Lovel who was next heire Edward Burnell Baron of Holgate Philip Burnell Baron of Holgate Maud Burnell heire to her brother John Lovell the first husband John Lord Lovell Iohn Lord Lovell John Handlow second husband Nicolas Handlow Baron of Holgate Hugh Handlow alias Burnell Baron of Holgate Thomas de Beauchamp the elder Earle of Warwick by a fine levied 18. E. 3. entailed the Mannour and Castle of Warwicke with divers other possessions to himselfe for terme of his life the remainder whereof to Guy his eldest sonne and to the heires males of his body issuing for want of such heires the remainder to come to Thomes Beauchamp brother to the foresaid Guy and to his heires males of his body issuing c. And afterwards the said Gâ—y died without heires male of his body leaving two daughters and heires living afterward the said Earle dyed and the said Thomas the sonne entred into the Castle and Mannour aforesaid with other the premisses and was Earle of Warwick by reason of the entaile aforesaid notwithstanding that Katharine daughter of Guy and next heire to the said Thomas the elder was living 30. yeers after his death Thomas Beauchampe Earl of Warwick Guy de Beauchampe first son obiit ante patrem 30. E. 3 Katharine lived in 21. R. 2 Elizabeth Tho. de Beauchampe Earle of Warwicke by reason of the entail obiit anno 1. H. 4 Rich. Beauchamp Earl of Warwick obiit 17. H. 6 William Beauchamp de Beauchamp L. of Aberganey obiit 12. H. 4 Richard de Beauchamp Earl of Warwicke obiit 9. H. 5 Richard Earle of Arundell by a fine 21. E. 3. entailed the Castle Towne and Mannor of Arundell with other Lands to him and to his heires Males begotten of the body of Ellenor his wife By vertue of which entaile John Lord Matrovers Earle of Arundell after the decease of Thomas then Earle which died without heire Male although the sisters of the said Thomas possessed divers Lands and honors of the which the said Thomas died seised in Fee simple was Earle of Arundell Richard Earle of Arundell Richard Earle of Arundell obiit anno 21. R. 2 Thomas Earle of Arundell obiit anno 3. H. 5 Elizabeth married to Tho. Mowbray Duke Norfolk Jane Lady of Abergany Married to Lewthall John Arundell Knight Lord Matrovers John Arund Lord Matrovers obiit 6. H. 4 Io. Arund L. Matrovers obiit 9. H. 5 Io. E of Arun. by reason of the entail Thomas Lord Barkley was seised in his demesne as of fee of the Castle of Barkley and Mannour c. and a fine levied in the Kings Court 23 E. 3. of the aforesaid Castle Mannour c. to him for terme of his life remainder to Morrice his sonne and to the heires males of his body issuing with other remainders as aforesaid the which said Morrice had issue Thomas Lord Barkley and Iames Barkley Knight which Iames dyed in the life of his brother leaving Iames his sonne and heire living After the said Thomas Lord Barkley died Anno 5. H. 5. leaving Elizabeth his daughter and heir married to Richard Earle of Warwick after whose death Iames his Nephew on the brothers side entred into the Lands Castles and rem ' aforesaid by virtue of the entaile and was summoned among the Barons to the Parliament as Baron of Barkley 9. H. 5. which Elizabeth died in 1. H. 6. Tho. Lord Barkley Morrice Lo Barkley Tho. Lord Barkley Eliz. married to Rich. Earle of Warwick Sir Ia. Barkley died before his brother Iames Lo. Barkley by reason of the entaile Thomas Lord De la ware died seised in his demesne as of fee taile to himselfe and to the heires males of his body issuing by reason of a fine levied in the time of his ancestors of the Barony De la ware with divers other lands in other counties and died 5. H. 6. without heires of his body and Reignold West Knight of the halfe blood was next heire by reason of the entaile aforesaid and was summoned to the Parliament by the name of Reignold Lord De la ware Knight although Iohn Griffith was heire generall of the aforesaid Thomas De la ware being of the whole blood as appeareth by the genealogie ensuing Iohn Lord Delaware son of Roger. Iohn Lord Delaware Roger Lord Delaware Elisabeth daughter to Adam L. Wels. Iohn Lord De la ware died without issue Thomas Lord Dela ware died without issue Elisabeth daughter to the Lord Mowbray hâ—s second wife Iohn Griffin heire generall to the Lord Delaware Sir Reignold West Lord De la ware by the entail Katharine married to Nicolas Latimer Katharine married to Griffin Iohan married to Tho West Knight John de Vere Earle of Oxford seised in his demesne as of Fee taile to him and his heires Males of his body issuing of the honour and county of Oxford with divers other Lands Anno 18. H. 8. died without heires of his body and his three sisters were his next heires generall but Iohn de Vere his next heire Male as appeareth was Earle of Oxford by reason of the said entaile and none of the three sisters obtained Dignity Richard de Vere Earle of Oxford died 4. H. 5. Iohn de Vere Earle of Oxford deed 1. E. 4. John de Vere Earle of Oxford died without issue 4. H. 8. George de vere Knight Iohn de Vere Earl of Oxfo died without issue 18. H. 8. Eliz. married to Sir Antho. Wingfield Knight Ursula married to Edm. Knightley Esq Dorothy married to Nevill Sir Robert de Vere
Kt Iohn de Vere Iohn de vere Earle of Oxford by vertue of the entaile Iohn de Vere William Lord Pagâ—t of Bewdesert was seised in his demesn as of fee of the Baronies of Langden and Hawood and of and in the Mannours of Bewdesert Landen c. And being so seised by fine quinto Mariae entailed the Baronies and Mannours aforesaid to him and his heires males of his body issuing And afterward Anno 5. Eliz. died leaving Henry his sonne next heire male Which Henry entred into the Baronies and land aforesaid by vertue of the foresaid fine and died thereof seised 11. Eliz. leaving Elizabeth his onely daughter and heire After whose death Thomas Paget brother and heire male of the said Henry entred into the Baronies and Mannours aforesaid and was summoned to the Parliament by virtue of the aforesaid fine William Lord Paget of Bewdesert died anno 5. Eliz. Henry Lord Paget dies An. 11. Eliz. Elizabeth his daughter and heire Thomas Lord Paget by force of the entaile after the death of his brother Robert Lord Ogle entred into the Barony of Bothal and Ogle with divers other Mannors and Lands in the County of Northumberland by conveiance which was to himselfe for terme of his life the remainder to the heires males of his body begotten and he took to his wife Dorothy Witherington by whom he had issue Robert Ogle his eldest sonne and Margery his daughter married Gregory Ogle of Chippington And the said Robert the father after the death of the said Dorothy his wife took to his second wife Ioane Ratcliffe by whom he had issue Cutbert his second sonne and after died After whose death Robert the sonne was Lord Ogle from whom the same descended to Cutbert being brother of the halfe blood by vertue of the said entaile and not to the said Margery nor unto her heires being of the whole blood unto the said Robert the sonne Robert Ogle Lord Ogle Dorothy daughter of Henry Withrington first wife Robert Ogle L. Ogle died without issue Margery maried to Ogle of Chippington Cuthbert Ogle of Chippington Joan the daughter of Cuthbert Ratcliff Kni. the second wife Cuthbert Ogle L. Ogle died Margery Ogle married Robert Witherington Thomas Ogle Moreover concerning the second objection it is very â—rue that many ancient Mannours which were anciently holden by Barony as the head or parcell of a Barony are now in the hands of Gentlemen meane and un-noble by blood who neither doe nor may claime any Nobility or honour thereby But the reason that some former gifts made by the Kings Majesties progenitouâ—s the supreme Soveraignes of this Realme to such as they honoured in augmentation and support of their honour and by honourable services should thus come to the hands of mean personages are twofold First for that such Mannours have been alieued by licence unto such persons before spoken whom such possessions alone cannot make noble Secondly and that was usually such Mannours as were holden by Barony have upon divers eâ—cheasons and occasions come to the Crowne by way of revertor or eschete or forfeit by meanes whereof the ancient tenures derived from the Crowne by reason of those lands so comming again to the Crown were extinct and after the said lands were given or conveyed to others reserving other services than those which at the first were due for the same so that it was no marvaile to see that some Mannours anciently holden by Barony or other honourable service should now bee holden in soccage or by other triviall or meane tenure As to that which was thirdly objected that some ancient Barons there are which have aliened and sold away those Castles and Mannours of the which they have and doe beare the name and dignity and yet neverthelesse themselves doe still retaine and keep lawfully their estate dignity and degree of a Barâ—â— and have been and are called to the Parliament such alienation notwithstanding To this I answer That it is true but it proveth nothing against the former resolution And therefore for better satisfaction of this observation it is to be considered that such Barons either be originally Barons by writ or Barons by tenure Barons by writ in this respect now in hand are of two kindes For either in such writ whereby they or their Ancestors were at first summoned they were named onely by their owne names or else there was addition given them of the principall place of their aboad which was done either for distinction sake to sever them from some honourable person of the same surname or else to give them such honourable title by addition of the place which place notwithstanding was not holden by Barony And therefore if such a Baron doe alien away that place which anciently was his seat he may neverthelesse retain his honourable title in respect had of such a place But if a Baron by tenure doe alien away the honourarable Castle or Mannour holden by Barony unto a mean person not capable of honour and that by sufficient licence so to doe and after the alienour which made such alienation be called by writ to the Parliament under the title or as Baron of such Honour Castle or Mannour so aliened he is not any more a Baron by tenure in respect of that place for that he hath aliened that away which he held by Barony but thenceforth after such writ of summons he is become a Baron by writ and may retaine the name of Baron by title of the place as Baron by writ such alienation notwithstanding forasmuch as the writ directed at the pleasure of the Prince doth give unto him that addition of name and dignity And thus much touching the resolution of the said question and satisfaction of the said objections and of Barons by tenure BARONS by writ which is the second kind of Barons mentioned in the former Divisions of BARONS A Baron by writ is he unto whom a writ of summons in the name of the King is directed to come to the Parliament appoinâ—ed at a certaine time and place to be holden and there with his Highnesse the Prelates Nobility and Peeres to treat and advise touching the waighty affairs of the Realme Tâ—e forme of which writ is much to the effect of the writ before mentioned in the title of Earle which kind of writ is as well directed to the Barons by tenure as Baâ—â—â—â— by creation Patent or otherwise But those which 〈◊〉 Barons by tenure nor by Patent and have onely 〈◊〉 writs are therefore called Barons by writ and upâ—◠〈◊〉 of such writ and place taken accordingly in 〈◊〉 ought to enjoy the name dignity and hoâ—â— of a Baron 〈◊〉 â—ouching the antiquity of Barons by writ onely and â—â—eir first institution I finde little or no mention before â—he time of H. 3. And therefore I conceive that either the first of all or at least that the first frequent use of such Barons was had and devised 49. H. 3. in case of necessity and upon a lamentable
signified unto the late Queene upon the Petition oâ— the sister and heire of Gregory late Lord Dacres deceased may appeare Moreover in the same Pedegree of the said Lord Dacres it is expressed that Thomas sometimes Lord Dacres had issue Thomâ—s his eldest son Ralph his second sonne and Humphrey his third sonne Thomas the eldest dyed in the life time of his Father having Issue Ioan his daughter and heire who was marryed unto Sir Richard Fines Knight And after Thomas Lord Dacres her Grandfather and Father unto the said Sir Ralph and Humphrey dyed After whose death Henry 6. by his Letters Patents bearing date at Westminster 7. Novem. Anno 7. regni reciting the said Peâ—egree and Marriage doth by his Lettâ—rs Pattents accept declare and repute the said Richard Fines to be Lord Dacres and one of the Barons of his Realme But afterward in the timâ— of Edw 4. the said Humphrey Dacres after the attaindor of the said Ralph and himselfe by an Act of Parliament which was in 1. Ed. 4. and after the death of the said Ralph and after the reversall of the same Act by another Act 12. Edw. 4. the said Humphrey made challenge unto the said Barony and to divers Lands of the said Thomas his Father whereupon both parties after their title had been considered in Parliament submitted themselves unto the Arbiâ—rement of King Edw. 4. and entred into Bond each â—o other for the performance thereof Whereupon the said King in his award under his Privie seale bearing date at Westminster 8. April Anno regni 13. did award that the said Rich Fines in the right of Ioan his wife and the Heires of his body lawfully begotten should be reputed had named and called Lord Dacres and that the said Richard Fines and the Heires of his body by the said Ioane begotten should keepe have and use the same state and place in every Parliament as the said Thomas Dacres Knight late Lord Dacres had used kept c. that the heires of the body of the said Thomas acres Knight late Lord Dacres lawfully begotten should have and â—old to them their Heites the Mannor of Holbech And furthermore the said King did award on the other part that the said Humphrey Dacres Knight and the Heires males of the said Thomas late Lord Dacres should be reputed had named and called the L. Dacres of Gillesland And that he and the heires males of the said Thomas then late Lord Dacres should have use and keepe the place in Parliament next adioyning beneath the said place which the said Rich Fines Knight Lord Dacres then had and occupied and that the heires of the body of the said Ioan his wife should have and occupie And that the Heires males of the said Thomas Dacres late L. Dacres should have to them to the heires males of their bodies begotten the Mannor of Jothington c. And so note that the name of the ancient Barony namely Gile sland remained unto the Heire male unto whom the land was entailed Moreover this is specially observed if any Baron by writ doe dy having none other issue then Female and that by some speciall entail or other assurance there be an heire male which doth enioy all or agreat part of the lands possessions and inheritances of such Barons deceased the Kings of this Realme have used to call to the Parliament by writ as Baron such here male omitting the Husband or issuâ— male of such heire female and this also appeareth by a notable controversie in the time of Henry 7. betweene Sir Robert Willoughby Lord Brooke and Richard Lord Latimer for the Barony of Latimer which in effect was The said Lord Brooke did challenge the Barony of Latimer as cosen and Heire to Elizabeth his great grandmother who was sister and heire to Iohn Nevill Lord Latimer who died without issue and hereupon exhibited a Petition to Henry 7. in Parliament whereto Richard then Lord Latimer was called to answer because he then enjoyed the said title and dignity The said Richard Lord Latimer by his answer did shew that it was true that after the death of the said Iohn Nevill Lord Latimer dying without issue the said Elizabeth was the sister and next heire and married unto Sir Thomas Willloughby Knight second son of the Lord VVilloughby but Henry 6. for that the said Iohn Nevill was dead without issue and that the next heire was female did therefore call to the Parliament George Nevill Knight second sonne of Ralph Earle of Westmerland to bee Lord Latimer as Cozen and next heire male of the said Iohn Nevillâ— Lord Latimer which George was grandfather of the said Richard Lord Latimer namely Father of Henry Lord Latimer Father of the said Richard In debate of which cause the question now in hand whether a Barony by writ may descend unto the heires females was advisedly considered of by the said King and his Nobility in Parliament and in the end adjudged with the said Richard Lord Latimer which President doth afford us two Iudgements in this point one in the time of Hen. 6. when the writ was directed to the said Sir George Nevill whereby he was summoned as Lord Latimer to the Parliament and as heire Male and not the said Sir Thomas Willoughby Knight husband of the said Eliz. heirâ— male And the second judgement was given in the time of Henry 7. wherby the Barony was adiudged vnto the said Richard Lord Latimer comming of the speciall heire male against the said Lord Brooke descended of the generall heire male But here the President before remembred of the Barony of Dacres may bee obiected to incounteâ— this confusion For there was an heire female married unto Sir Richard Fines who by the declaration of Hen. 6. was Baron of Dacres in the right of his wife and there was also Ralph and Humphrey the heires males before whom the heire female was preferred by the censure of Henry 6. and Edward 4. This obiection is easily answeared For although Hen. 6. through the Princely favour which he bare unto Sir Richard Fynes had declared him to bee Lord Dacres in the right of his wife yet notwithstanding did Ralph Dacres being heire male unto the then Lord Dacres deceased be are also the name of Lord Dacres by that name was attainted in Parliament Wherefore the reason why the heire male could not bee regarded was the said attainder of the said Ralph and Humfrey his brother and therefore when Humphrey 12. Edw. 4. laboured to have the said attainder reversed he submitted himselfe vnto the Arbitrament of the King who to satisfie both Competitors because both had well deserved of him after he had admitted them to his favour he allowed the one to be Lord Dacres the other to be Lord Dacres of Gillesland thus much concerning the second point whether a Barony by writ may discend unto the heire female or not As concerning the third point admitting such discent to bee to the heire female when there
tryall hereof shall not be by Record as in the former case but by a Jury of 12. men and the reason of the diversity is because in this case the Dignity is accrewed unto her by marriage which the Lawyers tearme matter in fact and not by any record Cookes 6. part 53. a. But a noble Woman by Marriage though she take to her a second Husband a man of meane degree yet shee may keepe two Chaplaines according to the Proviso in the Statute of 21. H. 8. c. 13. for and in respect of the honour which once she had viz. at the time of the retayner and every such Chaplaine may purchase lycense and dispensation Cookes 4. part 117. Cowels Instutions lib. tit 10. 15. but her Chaplaines may not be nonresident afterwards And forasmuch as the retayning of Chaplaines by Ladies of great estates is ordinary and neverthelesse some questions in law have beene concerning the true understanding of the said Statute law I thinke it not impertinent to set downe some subsequent resolutions of the Judges touching such matters Anne Baronesse of Mount Eagle in her Widdowhood did retaine two Chaplaines according to the Statute and one of them had but one Benefice and therefore did obtaine a dispensation with a confirmation from the Queene according to the tenour of the said Statute but before he was presented to his second Benefice the Lady did take to Husband Henry Lord Compton whereby she did forsake her former dignity of Baronesse of Mount-Eagle and afterward the said Chaplain did accept a second Benefice and was therunto admitted and inducted and the Judges have resolved that the Chaplain hath done nothing herein but according to the meaning of the Statute and that the Ladies marriage between his Retainer and acceptance of his second benefice was no Countermand Revocation or determination of that Retainer which the Lady lawfully then did make but that she living he might proceed to the filling up of the qualification Causa origio est materia negoti for though the wife of a Noble-man during the covecture cannot by Law rerain a Chaplain to be quallified according to the statute because by Intendment her Husbands Chaplains are sufficient for that Office yet forasmuch as the Retainer was lawfull then she was widdow that being the principall matter shall enable him to take use and benefice after her marriage for though the husband and wife are but one person in Law yet as the Text is sunt animo duo in carne uno Bracton lib. 5. fol. 363 a. And in this case by the death of the Lord Compton her first Retainer was not determined for without any neer Retainer her said Chaplain may take his second benefice and also for that cause so long as the said Chaplains do attend upon their said Lady in her House they shall not be endammaged for Non-residency Cooks 4. part 117. fol. 90 76. That which remains concerning the further exposition of this statute you may read before in the title of priviledge of Lords So long that the wife of a Duke be called Dutchesse or of an Earl be a Countesse and have the fruition of all the Honours appertaining to that estate with kneeling tasting serving and the rest and so long shall a Barons widow be saluted Lady and a Knights wise also by the courteous Speech of England quandiu Maj. aut viduitas vic durant except she happen to relaps with an Adulterer for as the Laws of this Kingdome do adjudge that a woman shall lose her dower in that case viz. west cap. B. F. N. B. fol. 150. H. Perk. fel. 70. Kitchin 162. b. as Ruto Lands and Tenents so justly so doth the Laws of Gentry and Noblenesse 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 mind hath subjected her self to another If a Lady which is married come through the Forrests he shall not take any thing but a Dutchesse or a Countesse shall have advantage of the statute de Charta Forest 11. Art during the time that she is unmarried Cromptons Court fol. 167 b. Wheras it is contained in the great Charter amongst other things in the Form which followeth no Freeman shall be taken or imprisoned or deseised of his Free-hold or his Liberties or Free-customs or shall be outlawed or banished or in any wise destroyed nor go upon him but by the lawfull judgment of his Peers or by the Law of the Land In which statute is no mention made how women Ladies of great estate because of their Husbands Peers of the Land married or sole that is to say Dutchesse Countesse or Barronesse shall be put to answer or before what Iudges they shall be judged upon an Inditement of Treason or Fellonyes by them committed or done because wherof it is an Ambiguity in the Law of England before whom and by whom such Ladies so endicted shall be put to answer and be judged by our said Soveraign Lord the King willing to put out such Ambiguities and Doubts hath declared by Authority aforesaid that such Ladies so endicted or hereafter to be endicted whether they be married or sole therof shall bee brought in answer and put to answer and judged before such Iudges and Peers of the Realm as Peers of the Realm should be if they were endicted of any Treasons or Fellonyes done or hereafter to be done and in like manner and Form and in none otherwise Anno 2. H. 6. Cap. 9. Which statute was but a Confirmation or Declaration of the common Law vide Cooks 6 part 52. b. This is a Rule in the civill law si filia R. nubat alicui dom vel Comiti dicetur semp Regalis As amongst Noble women there is a difference of degrees so according to their distinct excellentnesse the law doth give speciall Priviledges as followeth By the statute of 25. E. 3. cap. 2. It is High Treason to compose or imagine the death of the Queen or to violate the Kings Companion The Kings Espouse is a sole person exempted by the common law and she may purchase by Fee-simple or Make leases or Grants without the King she may plead and be impleaded which no other married woman can do without her husband Cook 4 part 23. B. Theol. lib 1. cap. 4. 24. E. 3. 63. vide Bracton 363. a. All Acts of Parliaments for any cause which any way may concern the Queen and her Capacity are such statutes wherof the Judges ought to take recognisance as of generall statutes for though the matter do only concern the Capacity of the Queen yet it doth also concern all the subjects of the Realm for every subject hath interest in the King and none of his Subjects who are within his Lawes in divided from the King being his head and Soveraigne so that his businesse and things do touch all the Realme and as all the Realme hath interest in the King so and
Honors Pedigree OR THE SEVERAL FOUNTAINES OF GENTRY Being A Treatise of the distinct degrees of the NOBILITIE of this Kingdome with their Rights and Priviledges according to the Lawes and Customes of England By that Juditious Lawyer Sir JOHN DODOREDGE one of his Majesties Judges of the Kings Bench. LONDON Printed for William Sheares at the Signe of the Bible in St. Pauls Church-yard M. D C. LII THE TABLE The severall Dignities Degrees and Titles treated of in this discourse IMprimis of the King 1 Of the Prince 14 Of Dukes and their Patents 36 Of Marquesses 58 Of Earles and their originall 60 Of Viscounts 90 Of Barons in generall 91 The definition or description of a Baron 92 The Etimology and derivation of the word Baron 94 The antiquity of the dignity of Barons and the sundry uses of the name 95 The tenour and proper signification of the word Baron 99 Of Barons by tenure 99 Of Barons by writ 134 Of Barons by Patent 155 Priviledges incident to the Nobility according to the Law of England 162 Certaine cases wherein a Lord of the Parliament hath no pâ—iviledge 200 Of Nobility and Lords in reputation onely 208 Of Noble Women 210 Of Ladies in reputation 234 Of Knights and matters incident to the degree of Knight-hood according to the Law of England 237 Observations concerning a Knight-Batcâ—elour 277 Of Esquires 278 The definition of Gentry or Civill Nobility 285 Of Yeomen 288 A Treatise concerning the Nobility according to the Laws of ENGLAND AS in mans body for the preservation of the whole divers Functions and Offices of Members are required even so in all well-governed Common-wealths a distinction of persons is necessary And the Policy of this Realm of England for the maintenance and government of the Common-wealth of the same hath made a three-fold division of persons That is to say First The King or Soveraign Monarch under which names also a Soveraign Queen is comprized as declared by the Statute thereof made in the first yeer of Queen Mary Anno 5 Parl. Secondly The Nobility which do comprehend the Prince Dukes Marquesses Earls Viscounts and Barons Spirituall and Temporall Thirdly The Commons by which generall words are understood Knights Esquires Gentlemen Yeomen Artifiâ—ers and Labourers But my purpose at this time being onely to speak of the Nobility and especially so much of them as I finde written in the Books of the common Law and Statutes of this Realm This first I have observed That our Law calleth none Noble under the degree of a Baron and not as men of forraign Countries do use to speak with whom every man of Gentle Birth is counted Noble for we dayly see that both Gentlemen and Knights do serve in the Parliament as Members of the Commonalty vide Lamberts Justice of Peace Lib. 4. Cap. 13. Neither do these words the Nobles the high or great men of the Realm imply the Person and Majesty of the King Dier 155. But with the Civilians the King is reckoned among his Nobles Doct. Ridley fol. 93. The Nobility are known by the generall name of Peers of the Realm or the Barony of England for Dukes Marquesses and Earls and all other of the Nobility do sit together in the Kings great Councell in Parliament as Barons and in right onely of their Baronies And therefore by the gâ—nerall names of Barons of this Realm and for the Baronage thereof we do understand the whole Body of the Nobility The Parliament-Robes of Dukes differing nothing from the Barons but they wear the Guards upon their shoulders three or four fold for although Dukes Marquesses Earls and Viscounts in their Creations are attired with Garments of Silk and Velvet yet in the Parliament they use the same as Barons do made with Scarlet with divers differences of white Furre set with Freinges or Edging on their shoulders for there they sit by reason of their Baronies and according to their dignity take their places Thomas Mills fol. 66. And hence it was that those bloody Civill Warres concerning the liberties granted by the great Charter both in the time of King John and H. 3 his sonne persecuted by all the Nobility of this Realm some few excepted are called in our History The Barons Warres Neither have the Spirituall Lords and Peers of the Parliament any other title to that preeminency but because of their ancient Baronies For although originally all the possessions of Bishops Abbots and Pryors were given and holden in Franckalmayn yet shortly after the Norman Conquest most of their Tenures were altered viz. per Baroniam as appeareth by Matthew Parris Anno 1070. 66. and of that Tenure have continued ever since as you may reade by the Consulations of Claringdon in the Raign of Hen. 2. and in Glanvile and Bracton But the Tenure of all Abbots and Pryors were extinguished by the uniting and conveying them to the Crown by the Statute of dissolution of Monasteries made Anno 31 Hen. 8. Cap. 13. And though the Nobility of England in Titles and by certain Ceremonies may be distinguished yet a Baron is in equipage as unto Nobility and priviledges incident to their diguities with Dukes Marquesses Earls Cooks 6. part 53. And it is in ordinary experience That Dukes and others of any high degree of Nobility in cases criminall are tryed by Barons together with many Earls and Viscounts as their Peers and Peers of the Realm Nobilitas generally signifieth and is derived of the word Nosco to know signifying in common phrase of speech both with the Latines and eke with us English-men a generosity of Blood and Degree and therefore one said vir nobilis idem est quod not us per omniâ— c. A Noble-man is he who is known and the Heroicall vertues of his life talkt of in every mans mouâ—h But especially it is applyed and used to expresse the reward of vertue in honourable measure gâ—neris claritatem And this is not to be omitted That the Law doth prohibite any Subject of this Realm to receive Titles of Honor or dignity of the gift or Dâ—nation of a Fâ—rraigne Prince or King or Emperour for it is a thing greatly touching the Majesty of the King and the State of his Kingdom Est jus Majestatis inter insignia summâ— potestatis It is the right of Majesty and amongst the Ensignes of high power vide Cook 7. part 25. 6. And if that mâ—n shall bring an action and in the Writ is stiled by such forraigne title and name of Honour the defendant may plead in abatement of his Writ That he is no Duke Marquesse Earl or Baron whereupon if the plaintiff or demandant take issue this issue shall not be tryed by Jury but by Records of the Parliament wherein he faileth And if an English man be made Earl of the Empire or of any other forraign Nation created into Honour and the King also do make him into any Title of Honour in England he shall now be named in all his judiciall
their places and then may proceed upon any thing there moved lawfully as lawfull persons for it is not convenient that they who are attainted should be in places of law full Judges And then another question was moved What shall be said of the King himself for he also was attainted by his Predecessour Rich. 3. and after communication had amongst themselves all did agree that the King was a person able and discharged of any former attainder ipso facto That he took upon him to raign and to be King by which it manifestly appeareth that by the Laws of England there can be no inter regnum within the same that presently by descent the next heir in blood is coÌ„pleatly and absolutely King without any essentiall Ceremony or act to be done ex post facto And that Coronation is but a royall ornament and outward solemnization of the descent and of this last matter Read Cooks 7 part fol. 10. 6. and that there followeth Of Dukes THe form of the Patent of Duke of York that now is Rex c. To all Archbishops Bishops Dukes Marquesses Earls Viscounts Barons Justices Governours Knights Ministers And to all Bailiffs and faithfull Subjects greeting Whereas We often times call to minde how many and innumerable gifts and what excellent benefits that great worker of all goodnesse of his only benignity and clemencie hath abundantly bestowed upon Us who by his power hath consociated divers and mighty Lyons in firm peace without any strife but also hath amplified and exalted the bounds and limits of our Government by his unspeakable providence above our progenitors with an indissolvible conjunction of the ancient and famous Kingdoms in the right of blood under our Imperiall Diadem in regard whereof we cannot but most willingly acknowledge our fruitfulnesse and issue plentifully adorned with the gift of Nature which he hath vouchsafed upon us because in truth in the succession of children a mortall man is made as it were immortall Neither unto any mortall men at leastwise unto Princes not acknowledging superiours can any thing happen in worldly cases more pleasant and acceptable then that their children should become notable in all vertues gooodnesse manners and increase of dignity so as they which excell others in noblenesse of bloud and indowments of Nature might not be thought of others to be exceeded Hence it is that that great goodnessâ— of God which is shewed unto us in our fertility to passe in silence or to be thought not to satisfie the Law of Nature whereby we are chiefly provoked to be well affected and liberall to those in whom we behold our blood to begin to florish coveting with great and fatherly affection that the perpetuall memory of our blood with honours and increase of dignity and all praise may be affected Our well-beloved Son Charls Duke of Albany Marquesse of Ormond Count of Rosse and Lord of Ardmannoth Our second begotten son in whom the Royall form and beauty worthy honour and other gifts of vertue do now in the best hopes shine in his tender graces We erect create make and ordain and to him the name stile state title dignity authority and honour of the Duke of York do give and him of that Name with the title state stile honour authority and dignity with other honors to the same belonging and annexed by the girding of the sword cap circlet of gold put upon his head and the delivery of a golden Virge we do really invest to have and to hold the same name and stile state and dignity authority and honour of the Duke of York unto the aforesaid Charles our second begotten son and to his heirs males of his body lawfully begotten for ever And that the aforesaid Charles our second begotten son according to the decencie and state of the said name of Duke of York may more honorably carry himself we have given and granted and by this our present Charter we confirm for us and our heirs unto the aforesaid Duke forty pounds to have and yeerly to receive to the foresaid Duke and his heirs for ever out of the Farms issues profits and other commodities whatsoever comming out of the foresaid County of York by the hands of the Sheriffe of the same County for the time being at the Terms of Easter and Michael the Arch-angel by even portions for that expresse mention of other gifts and grants by us unto the same Duke before time made in these presents made doth not appear notwithstanding These be witnesses the most excellent and most beloved Henry Prince our first begotten son Vlrick Duke of Holst brother of the queen our beloved wife and the Reverend Father in Christ Richard Archbishop of Canterbury Primate and Metropolitan of all England and also our welbeloved and faithfull Councellour the Lord Elesmore and Chancellour of England Thomas Earl of Suffolk Chamberlain of our houshold and also our dear cousin Thomas Earl of Arundel and our well-beloved cousin and Councellour Henry Earl of Northumberland Edward Earl of Worcester Master of our horse George Earl of Cumberland and also our well-beloved cousins Henry Earl of Southampton William Earl of Pembroke and also our well-beloved cousins Charles Earl of Devon Master of our Ordinance Henry Earl of Northampton Warden of the Cinque-Ports John Earl of Marr Robert Viscount Eranborne our principall Secretary and our well-beloved and faithfull Councellour Edward Lord Zuch President of out Councell in the Principality and Marches of Wales and also our wel-beloved and trusty Robert Lord Willoughby of Earsby William Lord Mounteagle Gray Lord Chandois William Lord Compton Francis Lord Norris Robert Lord Sidney our well-beloved and faithfull Councellours William Lord Knowles Treasurer of our houshold Edward Lord Wotton Comptroller of our houshold and our well-beloved and faithfull Councellour Alexander Lord and also our wel-beloved and faithfull Councellors George Dunbarr Lord of Barwick Chancellour of our Exchequer Edward Lord Bruse of Kinlose Master of the Rolls of our Chancery and also our faithfull and well-beloved Thomas Lord Eskine of Bielton Lord Balmermoth and others given by our hand at our Pallace of Westminster the sixth day of January in the second yeer of the Raign of K. James K. Edw. 3. in the 11 year of his Raign by his Charter in Parliament and by authority of Parliament did create Edw. his eldest son the Black-Prince D. of Cornwall not onely in title but cum feodo with the Dutchy of Cornwall as by the tenour of the said Letters Patents exemplified may appear Cookâ— 8 part in the pleading Habend ' et tenend ' eidem duci et ipsius et heraed ' suorum Regum Angliae filiâ—s primâ—gâ—niâ—is et dicti loci dâ—â—ibus in Regno Angliae bereditatoriae successoris To have and to hold to the same Duke and his heirs Kings of England the first begotten sons and Dukes of the same place in the kingdom of England and to hereditary succession so that he that is hereditable must be heir
body who in a moment threatneth to do more then peradventure he after is willing or dareth to do in an age The Menacer layeth open his Name and his grief and standeth in the face of his enemy and discovereth the corrasive of his and doth thereby give a forewarning to his adversary to provide for and defend himself But this secret Canker the Note That if a man do write unto another scandalous words and reports touching a Nobleman and this Letter be signed with his Seal and subscribed with his name yet upon this Letter shewed upon evidence the Nobleman may recover dammages in an action de scanlis magnatum whereof you may see two Presidents in Cromptons Iustice of Peace 85. But if a man do write any matter of defamation to the party himself that is thereby traduced and subscribe and seal the same without other publication done by himself Quaere Libeller concealeth his name hideth himself in a corner and privily stingeth him in fame reputation and credit who then neither knoweth from whom or for what cause he receiveth his blows nor yet hath means therein to defend himself and whether his libelling secret slandering or defaming be against a publike Magistrate or private Person Yet it may tend to the breach of the peace to the raising of quarrels and effusion of bloud and so may be a speciall impediment which all good policy endevoureth to maintain for if it be against a publike Magistrate it is a great scandall and offence to the King his chief Magistrates and the whole Government of the Realm to assign such an Officer to rule and govern others who himself is voyd of government and shall deserve to be impeached with such crimes as he shall be taxed with or shall be imputed unto him by such an infamous Libell and if it be but against a private person yet seeing that a Libell or other note of infamy is intended to defame him to tread his honour and estimation in the dust and root out his reputation and credit from the face of the earth to make him a scorn to his enemies and to be derided and despised of his neighbours it doth greatly kindle the wroth of him and of such as be of his kindred and allies and true friendship and urge them to revenge whereupon do often times ensue grudges quarrels frayes combats and man-slaughter Sometimes the malicious defamer powreth out his venome in writing by a scandalous Book Epigram or Rime either in Meeter or Prose Some other times by songs scoffs jests and taunts and divers times by hanging of pictures of reproach signes of shame or tokens of disgrace neer the place the party thereby traduced doth most converse as the picture of the gallows pillory cucking-stool horns or other such like In which cases the Law hath provided that the party delinquent when he is found out and discovered shall be sharply punished For he may be either indicted for the same offence by the ordinary course of the Common-law or else a Bill may be exhibited against him in the Starre-chamber where he shall be punished according to the quality of his demerits by fine and imprisonment and if it be an exorbitant offence then by pillory losse of his ears whipping c. Or the party grieved may have an action of the case against the offender and recover his dammages And in this case it is not materiall whether the Libel be true or false or the parties scandalized thereby be living or dead or be of good name or evill for though the party be defamed and the Libell true be evill yet our good Laws be provided to punish him and such like evill men by due course of Justice after his offence is presented inquired of tryed and proved to his face before lawfull Magistrats thereunto assigned and he is not to be carped accused and condemned in a corner behinde his back by any other private person who in trudeth himself without warrant to be a Censurer of manners and rather seeketh the discredit of the party then then the reformation of his faults for his secret searching into and sifting into other mens conditions diving into their offences and divulging them to their discredits doth convince the offender to be a man of a lewd disposition to have made shipwrack of his conscience and doth brand him during his life with the name of an infamous Libeller or scandalous backbiter Fardinando Pulton Fol. 16. Cooks 5. part 125. And to conclude this matter concerning the wrong done to the name and dignity of a Nobleman this may be added That it is unlawfull for any person to usurpe the Arms of another Cook to the Reader before his third Book Fol. 8. to A. Yea if a Noblemans Coat Armour or Sword or other Gentlemans bearing Arms at the solemnizing of their Funeralls set up in the Church Chappel or Chancell for the honour of the body defunct be taken down by the covetousnesse of the incumbent there pretending them as offerings due to him or if they be defaced by any other such are to be punished grievously as malefactors and in that case thâ— action shall not be given to the Widdow though she be Executrix or Administratix of her husbands goods for such things as serve for the honour of the party deceased are not to be accompted inter bona Testatoris as the goods of the Testator but the heirs shall have the action as the defender of his Ancestors honour Nam cui injuria ei avervat jus to whom the wrong is done right doth belong but the wrong is offered to the house and bloud and therein especially to the heir qui est totius geniturae splendor of the whole kindred and therefore to him attaineth the right of action in the case Viscounts NExt unto Earls or Counts in order followeth the Vicount this is an ancient name of Office but a new title of honour and by Henry the first brought in who conferred that title upon John Lord Beamont Barons AMongst the Nobles and Honourable Barons have the next place and the last of the Rank It now followeth somewhat to speak in generall of the dignity and degree of a Baron First the definition or description of a Baron Secondly The Etymologie of the name Thirdly The antiquity thereof and the divers uses of the name in former ages Fourthly The divisions and considerations of the severall kindes of Barons And lastly A declaration of the divers and sundry priviledges allowed by the Laws of this Realm unto the Barons and Nobility of the same wherein the vulgar and common person hath no participation The Definition or Description of a Baron IT is a rule in Law that definitions in Jure sunt periculosissimae rarium est enim ut non subverti possunt And therefore I do not often finde any definition or a description of a Baron delivered by writers Neverthelesse in this our Common-wealth of England me thinks that a Baron may be described in a
But this objection is repugnant to the nature of a descent which for the most part doth carry the patrimony descendable by act in law presently upon the death of the Ancestor unto the heire or not at all Wherefore the custome of our countrey and manifold presidents doe prove that this kind of Barony doth descend from the Ancestors to the heire and there needs not any words of heirs in the writ of summons Onely one president there is in a speciall writ sometimes directed to Sir Henry Bromsted in 27. H. 6. wherein he was stiled Lord Veysey wherein there are these words inserted Volumus tamen vos haeredes vestros masculos de corpore vestro legitimè procreatos exeuntes Barones de Veysey existere which is to bee read in Co. 7. part 33. b. Wherefore as it is true that where the heire of any such Baron by writ is called to the Parliament that his descent of honour is thereby established and approved by the gracious judgment of cur sacred Soveraigne so it is also true that if it shall stand with his Highnesse pleasure that such heire shall not be summoned at all for none can come to so high a Councel unlesse he be called then that Nobility is much empaired and in a manner extinguished in the censure of all men for that it had none other originall but by writ of summons from the which in the judgment of the supreme soveraign he is excluded As to the second principall point whether the Barony by writ may descend to the heires females it shall not be amisse likewise to view the reasons of either part and by conflict of argument the truth may the better be discerned Those that maintain the affirmative part do reason after this manner In reason the sexe of the heire female ought no more to bar her of the dignity than the nonage of the heire male ought to bar him although during his nonage he be unable to do the service but as the service of the one is for borne for a time so the sexe of the other may at all times be supplied by the maturity and sufficiency of her husband Offices of honour which do much import the publiquè weale being passed by inheritance do descend to the heire female if there be no nearer heire male As the office of the high Constableship of England which descended to the daughters of Humphrey de Bohun Earle of Hereford and Essex a memoriall whereof is in Dyer 285. but more at large in Keilway 6. H. 8. Also the office of Lord-Steward descended to Blanch daughter to H. Earle of Lancaster the like may be said of the office of Earle Marshall which descended by an heire female unto the house of Norfolk all which offices are unfit to be exercised by a woman as it is unfit for a woman to be summoned to the Parliament as a Baronesse by writ And many noble houses in England do support the dignity of Baronage unto them descended by women They which stand on the negative part of this controversie do encounter their adversaries on this manner viz. The writ of summons to the Parliament whereby the Baron by writ hath his originall is to call that honourable and worthy person so summoned to be one of the number of that right high and honourable Assembly and to be a Judge to sit heare and determine life and member plea and right of land if there shall come occasion likewise to give counsell and advice in the most weighty affaires of the Realme But these things are convenient for the quality of men unfitting and altogether unbeseeming the sexe of women Ergo having respect unto the finall purpose of such writs such inheritances should only descend unto the heire male and not unto the heire female Secondly if it shall be answered that although the heire female to whom such inheritance is descended be unfit in her owne person for the accomplishing of these things yet she may marry with one sufficiently able for her and in her behalf to execute the same this answer will neither satisfie nor salve the inconveniences For admit that such heire female were at full age at the death of her Ancestor unmarried it doth lie in her own choice who shall be her husband so shall the pleasure of the Soveraigne in the choice of his Councell in the great causes of the Realme be subject to the will of his subject in the choice of her husband which were altogether inconvenient Thirdly if such husband shall be called in the right of his wife the writ should make some mention hereof for otherwise it may well be taken that the husband was chosen in his own person and in behalfe of himselfe and not in regard of his wife or such pretended dignity descended unto him But there was never such writ of summons seen wherein the wife was mentioned and if the husband of such wife have been called to the Parliament which is alwayes by generall writ not mentioning his wife he is now made thereby a Baron of himself and in his own right by that writ Having thus heard both sides speak place doth now require to interpose opinion to compound this controversie This question or point is somewhat perplexed by means of difficult presidents for first it is observed that some presidents do prove that Baronies by writs have descended unto heires females whose husbands have beene called to the Parliament whether in regard of themselves or in regard of their wives it matters not But sure it is that the marriage of such Ladies gave them occasion so to be summoned and such husbands aâ—d their posterity have and do lawfully beare the same name of dignity which the Ancestors of such wife did before rightfully beare For by this controversie there is no purpose to call the right of such noble houses into question Howbeit secondly this is to be observed out of the presidents and to be acknowledged of every dutifull subject that the Kings Majesty is neverthelesse at liberty to call to the high Councell of Parliament whom his Highnesse shall in his Princely wisdom think most meet which his Majesties Progenitors have in former ages observed And therefore whereas Radulph Lord Cromwell being a Baron by writ died without issue having two sisters and coheirs Eliz. the eldest married to Sir Tho. Nevill Knight and Joan the younger married Sir Hunt Bourcher he who had married the younger sister was called to the Parliament as L. Cromwell and not the said Sir Tho. Nevill who had married the elder sister 3. It is to be observed that if a Baron by writ die without heire male having his daughter sister or other collaterall heire male that doth or can challenge the lands of the said Baron deceased by any ancient entaile or otherwise the title of such heire female hath bin hereâ—ofore allowed aâ— by the bonourable opinions and relations of the right honourable the late Commissioners in the office of Earle Marshall
this point is the civill Law Neverthelesse there was a judgment in the time of H. 3. touching the descent of the Earldome of Chester after the death of the Earle who dyed without issue his sisters being his heires which Judgement was that the said Earldome should bee divided amongst the said copartners as other lands and that the eldest should not have it alone 23. H. 3. Fitz. partic 18. But this judgement was holden erroneous even in those times wherein it was given For Bracton a learned Judge who lived in that age thus writeth thereof treating of Partition among Copartners lib. 2. cap. 34 fol. 76 b. De hoc autem quod dicitur quod de feodo militare veniunt in divisione capitalia messuagia inter cohaeredes dividuntur hoc verum est nisi capitale messuagium illud sit caput comitatus propter jus gladii quod dividi non potest vel caput Baeroniae castrum vel aliud aedificium hoc ideo ne sit caput per plures particulas dividetur plura jura Comitat ' Baroniarum deveniant ad nihilum per quod deficiat regnum quod ex Comitatibus Baroniis dicitur esse constitutum Si autem plura sunt aedificia quae sunt capita Baeroniae dividi possunt inter cohaeredes facta electione salvo jure essentiae quia cùm plura sunt ibi jura quodlibet per se poterit integrè observart quod quidem non est in uno ut praedictum est licet à quibusdam dicatur quòd in aliis regionibus aliquando de consuetudine dividatur sed quod nunquam dividi debeat in Anglia videtur nec visum fuit contrarium erit consuetudo regionis observanda ubi haereditas quae petitur personae nascuntur quae petunt unde sic dicatur quòd in regno Angliae aliquando facta fuit partitio hoc fuit injustum It is therefore evident that Baronies and dignities of Honour do by the Lawes of this Realm descend unto the eldest Coapercener and the Iudgement given once to the contrary thereof Bracton doth rightly account to be unjust his reason is notable for in as much as the honour of the Chivalry of the Realme doth chiefly consist in the Nobility reason would not that such dignitie should be divided amongst Coaparceners whereby through multitude of partitions the reputation of Honour in such snccession and so divided might be impaired or the strength of the Realme being drawne into many hands with the decrease of livelihood by partition should be enfeebled in which Resolution Britton the learned Bishop of Hereford who compiled his Booke of the Lawes of the Realme by the commandement and in the name of E. 1. according Britton 187. and therefore howsoever that Judgemâ—nt was given or whensoever it is neverthelesse very evident that it was soone redressed for if it were given upon the death of Renulph the last of that name the Earle of Chester who dyed about 17. H. 3. without issue the Writers of that time doe testifie that the Earledome of Chester came wholly unto Iohn Scot the sonne of David Earle of Huntington and Anguish and of Maud the eldest sister of the said Renulph if it were given upon the death of the said Iohn Scot who dyed without issue about 14. H. 7. yet notwithstanding the said Judgement stood not in force for that the said King assumed the said Earledome into his owne hands upon other satisfaction made to the sisters Coparceners of the said Iohn Scot. Ne tanta hereditas colos deduceretur Matth. Paris Monast S. Albani in Arr. fol. 3. 66. B. tamen vide Vill. fol. 75. et Ioh. Guill 78. For this it is to be observed out of Presidents and to be acknowledged of every dutiful Subject that the King is at liberty to call and advance to honour whom his Highnesse shall in his Princely wisdome thinke most meet and therfore whereas Ralph Lord Cromwell being a Baron by Writ dyed without issue having two sisters and co-heires Elizabeth the eldest married unto Sir Thomas Nevill Knight and Ioane the younger married unto Sir Hunt Burther hee who married the younger sister was called unto the Parliament as Lord Cromwell and not the said Sir Thomas Nevill who had married the eldest sister and Hugh Lupus the first and great Earle of Chester was by the Conquerour his Uncle created Earle of Chester Habemus sibi heredibus adeo libere per gladium sicut ipse Rex tenuit Angliam per Coronam Hugh dyed without issue and the inheritance of his Earledome was divided amongst his foure sisters and the eldest had not the Seigniory entire unto her selfe Reade Mills 74 75. Cookes b. part 53. 7. part 15. If a Woman be Noble by birth or by discent with whomsoever she doth marry though her Husband bee under her degree yet she doth remaine Noble for her Birthright Est Character in delibilis Cook 4. part 118. b. 6. part 53. b. Other Women are enobled by Marriage and the text saith thus viz. Women with the honour of their Husbands and with the kindred of their Husbands we worship them in the Court we decree matters to passe in the name of their Husbands and into the house and sirname of their Husbands wee doe translate them but if afterwards a woman doe marry with a man of baser degree then loseth she her former Dignitie and followeth the condition of her latter Husband Fortescue de laudibus legum Angl. 100. And as concerning the second disparaged Marriage as aforesaid many other bookes of the law doe agree for these bee rules received in those Cases Si mulier nobilis nupserit ignobili desit esse nobilis eadem modo quo quidem Constitut dissolvitur Cookes 6. part 53. B. 4. part 118. It was the Case of Ralph Hayward Esquire who tooke to his wife Anne the widdow of the Lord Powes they brought an Action against the Duke of Suffolke by the name of Ralph Hayward Esquire and the Lady Anne Powes his wife and exception was taken for misnaming her because shee ought to have beene named by the Husbands Name and not otherwise and the exception was by the Court allowed For said they by the Law of God shee is Sub potestate viri and by our Law her Name of Dignitie shall bee changed according to the degree of her Husband notwithstanding the curtesies of the Ladies of Honour and Court Dyer 79. And the like was also in Queene Maries Raigne when the Dutchesse of Suffolke tooke to her Husband Adrian Stoakes Prob. 456. and many other presidents have beene of latter time and herewith agreeth the Civill Law punctually Digest lib. 1. Tit. 9. Lege 8. Eodem de Dignitate Liber 12. Lege 2. In this case of acquired Nobility by Marriage of Question in Law be whereupon an issue is taken betweene the parties that is to say Dutchesse or not Dutchesse Countesse or not Countesse Baronesse or not Baronesse the
of dignity and the Entry of Capias alias plures was according to the said originall but in the Exigent and Proclamation and in the Entry of it the Defendant was named according to his degree of Dignity upon a Writ of Errour after judgment doubt was if this might be amended in another Court then where the originall was made and at last it was resolved by all the Court that the Record should be amended by the Cursitor and made according to the Note or Title delivered unto him by the Plaintiffes Attorney Cook 8. part fol. 15. b. It appeareth in our Book of Law that the highest and lowest Dignity are uniuersall For as if a King of a Forreign Nation come into England by leave of the King of this Realm as it ought to be in this case he shall sue and be sued in the name of a King 11. Ed. 3. Test Breccon 473. So shall he sue or be sued by the Name of a Knight whersoever he received that degree of Dignity 20. Ed. 4. 6. H. 6. 14. but otherwise it is as if a Duke Marquesse Earl or other Title of Honour given by any Forreign King yea though the King by Letters Pattents of safe conduct do name him Duke or by any other his forreign Title of Dignity For experience sheweth that Kings joyned in league together by a certain mutuall anâ— as it were a Naturall power of Monarchs according to the Law of Nations have denized one anothers subjects and Ambassadors graced with this title of Honour Therefore though a Knight receive his Dignitie of a Forraigne Prince he is so to be stiled in all Legall proceedings within England Vide Cooke 7. part fol. 16. b. And Kings were wont to send their sonnes to their Neighbour Princes to receive Knighthood at their hands Vide Selden fol. 331. 308. thinking that it was more honourable to take Armes of some other lest affection might seeme to prevent judgement when the father gave them that honour Thus was our King H. 2. sent unto David King of Scots and Malcombe also king there sent unto our H. 2. and our king to the king of Castile to take of them Military or Civill Armes for the tearmes and phrases they used in that age for the making of a knight Vide Camden 174. 8. vide Selden fol. 315. And knights in all forraigne Countries have ever place and precedencie according as they are ancient knights which priviledge is deemed to Noblemen for be they never so ancient in forraigce Countries they shall goe before as Puesneys The degree of knighthood is not onely a Dignitie and honour to the party for so it is termed in Brooke title Additions fol. 44. but honourable for the kingdome and therefore it hath been an ancient Prerogative of the kings of this Realm at their pleasure to compell men of worth to take upon them this degree upon the payment of a Fine as appeareth in Ann. 7. H. 6. 15. Fitzh Abridg. tit Im. 12. and by the Statute a. 1. Ed. 2. de militibus But we see by experience in these daies that none are compelled thereunto and that is the reason wherefore if the Plaintiffe be made knight hanging the Writ it shall abate because hâ— hath changed his name and that by his owne act Vide Cooke 7. part f. 27. b. part 10. b. 1 Ed. 6. cap. 7. contrary And for that cause also by the common Law not only the king but every Lord of a Manor ought to have of every of his tenants a reasonable fine to make his eldest son knight Vide Bracton fol. 36. b. and all lands are subject to these aides except onely ancient Demeasnes and grand and petty serjeantly tenures as the Law hath been anciently delivered Vide Fiszh Nat. bre f. 83. a. and Selden f. 13. where it is also said one that wrote a little after the statute of West the first allowes as a good barre to the avowry for the tenant to plead that the father himself is no knight so that one not knighted cannot claime the aide of his own Tenants Briton de Prises de Avers And it was not at the liberty of the Lord to make more or lesse of his Tenants by the common Law in this case but by the statute at Westminster 1. cap. 35. it is put into certainty viz. forasmuch as before this time reasonable and to make one son knight or to marry his daughter was never put into certainty nor how much should be taken at that time whereby some levyed unreasonable aide and more often then seemed necessary whereby the people were sore grieved And it is therefore provided that from henceforth a whole knights fee be taken but 20. s. and of more more and of lesse lesse after that rate and that none shall levie such aide to make his son knight untill the sonne be 15. yeares of age nor to marry his daughter untill she be of the age of 7. yeares and of that there shall be mention made in the kings Writs formed on the same if any one will demand it and if it happen that the Father after he had leavied any such aid of his Tenants did before he hath marryed 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 Fathers goods be not sufficient his heir shall be charged therwith unto the daughter and this Heir 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 he shall have the aid to make his eldest Son Knight Anno 40. E. 3. f. 22. Finches book 24. but the King was not bound by the statute beforementioned because the King was not named in that statute and therfore by the statute 25. E. 3. cap. 11. The Kings aids were brought to a like value Selden fol. 3. 30. The intention of the Law is that an heir within the age of 21. years is not able to do Knight-service till his full age of 21. years Littleton lib. 2. cap. 4. f. 22. But such a presumption of Law doth give place to a judgment and proof to the contrary as Bracton saith Sabilitur presumptioni donec probetur in contrarium And therfore the King who is the Sovereign and Supream Judge of Chivalry hath dubbed him Knight he by this hath judged him able to do him Knight-service and all men concluded not to say to the contrary therfore such an heir being made Knight either in the life of his Father or afterwards during his minority shall be out of ward and custody both for Lands and for his body or marriage by the ancient common Law by reason also that the Honour of Knight-hood is so great that it is not to be holden under by any yet if the King do create any such an Heir within Age a Duke or Marquesse Earl Count Viscount or Baron by this
he shall be out of ward and custody both for his Land and for his body vide Cook 6 part 74 a. And therfore it is provided by the statute of Magna Charta Cap. 3. Ita tamen quod si ipsâ— dum infra atatem fuerint fiat miles nihil ominus terra remaneat in custodia dominorum suorum So that although such an heir within age be made a Knight and therby to this purpose is esteemed of full age yet the Laws shall remain in the custody of the Lord till his age of 21. years by the provision of the said Act. Quere if the son and heir of the Tenant of the King by Knight-service c. be made Knight in Paris by the King of France whether he shall be out of wardship after the death of his Father or no for therby he is a Knight in England Cook 7. par a. 2. E. 4. fo b. tamen vide Cooks 6. par 74. b. Mention is only made of Knights made by the King himself or by his Lieutenants in Ireland But when the King doth make an heir apparent within age of a Tenant by Knights service a Knight in the life time 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 ful age so that when his Ancestor dyeth no Interest in the body nor in the Land shall invest but the Knight may tender his livery as if he were of full age and in this case the King shall have primer seisin as if he had bin 21. years old at the time of the decease of his Ancestor and not otherwise Cooks 8. part fol. 171. a. for the statute of Magna Charta doth not extend unto it For the purpose of it doth extend only when the Heir is in ward infra etatem is made Knight then remaneat terra in Custodia But when the Heir is in ward being Knight in the life of his Ancestor then the Custody cannot remain or continue which had never any inception or essence Also when the Heir after the death of his Ancestour within age is made a Knight if after tender made unto him he within Age doth marry else-where yet he shall not pay the Forfeiture of his Marriage For by the making of him Knight he is out of ward and custody of his Lord for then he ought to be sui juris and may imploy himself in Feats of Arms for defence of ths Realm and therfore may not be within the Custody or keeping of another but none shall pay any Forfeitute but when after refusall he doth marry himself during the time when he is under the Custody or keeping of his Lord. And this doth appear by the statute of Merton cap. 6. Si maritaverit sine licentia Domini sui ut ei auferat Maritagium suum c. Which Words cannot be understood when he is out of Ward and Custody no more then when he is married after his age of one and twenty years Note hereby may appear that the King may present his Grant or other Lords of the double value by Knighthood yet in such a Case presently after the Heir is made Knight after the Death of his Ancestour the Lord may have a Writ de valore Marigii for the single Cooks 6. part 74. and 75 and note Plowden f. 267. Also by the ancient Common-law of this Realm if a Villain be be made a Knight he is immediatly enfranfranchized Olanvile lib. 5. cap. 5. f. â—7 and Bracton lib. 4. cap. 198. b. Or if a Ribauld or man of base Birth and Condition had strucken a Knight he should by the ancient Laws have lost his hand wherwith he offended Britton 19. in his appeales But in France it was judged antiently that when a Lord of a villain had Knighted his villain being a Gentleman he became Free and had the Honor lawfully but if another Lord had Knighted him nothing had bin wrought by it For none could mannue him but the Lord and till Mannumission or till Knighthood had civill Freedome for his ground he was not capable of it except by the King only vide Seldens Titles of Honour fol. 318. It was enacted in Parliament Anno 6. Ioh. Regis in hec verba Rex vicecom c. Sciatis quod consensum est cum assensu Archieporum Comit. Baronium omnium fidâ—lium urum Angl. quod Novem milites per totam Angl. invenient decimum militem bene paratum equis Armis ad defensionem Regni nostri vide Cook before his ninth Book b. There hath ever bin and still is great use of the service of Knights even in civil affairs and concerning matters of Iustice as in a Writ of right which is the highest writ in the law for the trials of titles touching the inheritance of lands the Tenant is at election to have his tryall by a grand assize or else by battle if by the great assize then Wâ—â—t de magna assiza Elegenda shall be taken out And upon the return of that Writ those four Knighâ—s nominated must appear Gladiis cinctis Dyer 79. f. 103. If the Tenant make his election by Battle each parties are to choose their Champions and the Court shall award the Battle and the Champions shall be a mainprise and sworn to perform the Battle at a certain day in the Term and idem dies shall be given to the parties at which day and place a List shall be made in an even and plain ground their Squadrant that is to say every square 60. foot East West North and South and the place or Court for the Justices of the Common Pleas without and upon the Lists furnished with the same Cloths which belong to their Court at Westminster and a Barre there shall be made for the Sergeants at Law and the Robes of the Justices and Sergeants shall be of Scatlet with their Coifes as it was Anno 13. Eliz. and then was made Proclamation with three O. yes c. and the Demandant was first solemnly demanded and did not appear Wherupon the Mainprise of the Champion was demanded to bring forth the Champion of the Demandant who came to the place apparelled with red Sandalls upon his black Armour bare legged from the knee downwards and bare headed and bare Arms to the Elbowes being brought in by a Knight namely by Sir Ierome Bowes who carryed a Red Baston of an Ell long typt with horn and a Yeoman carrying the Target made of double Leather and they were brought in at the North side of the Lists and went about the sides of the Lists and then came towards the Bar before the Justices with their solemn Congies and there was he made to stay on the Southside of the place being the right side of