or imagine the death of the Kings eldest Sonne and Heir is crimen laesoe Majestatis high treason or if a man do violate the Wife of the Kings eldest Sonne and Heir it is high treason and see the Statute 20. Hen. 8. cap. 13. And so was the ancient common Law of England and not a new Law made by this Statute Cooks 8. Part. 28. 6. But this Statute is a manifestation and declaration or publication of the ancient common Law in this Case By a Statute made in the said 25. yeer of King Ed. 3. It is declared because the people be in ambiguity and doubt of the children born in the parts beyond the Sea out of the Kings Legiance of England should be able to demand any inheritance within the same Legiance or not Whereof a Petition was put into the Parliament late holden at Westminster the 17. yeer of the raign of our Soveraign Lord the King assembled in this Parliament and was not at the same time wholly assented Our Soveraign Lord the King willing that all doubts and ambiguities should be put away and the Law in this case declared and put iâ— a certainty hath charged the said Prelates Earls Barons and other wise men of his Councâ—ll assembled in this 〈◊〉 to deliberate upon this point who with one asseur hath said That the Law of the Crown of England is anâ— alwayes hath been such that Les Enfants du Roy the children of the King of England in whatsoeâ—eâ— part they be born in England or elsewhere be able and ought to bear the inheritance after the death of their Ancestors which Law our Soveraign Lord the King the said Prelates Earls Barons and other great mâ—n and all the Câ—â—amons assembled in this Parliament do approve and affirm for ever Note These words in the Statute Les Infants du Roy have briefly set down and in a vulgar manner for loquendum ut vulgus and not in form of exquisite pleading for sentiendum ut docti and therefore ought to be understood largely Cooks 7. part 11. 6. and as the Latine word liberi is with the Civilians Bract. lib. 2. cap. 29. hath these words Item descendit jus vero beredi ubicunque natus fuerit vel in utero matris intra mare vel ultra Nec potest sibi aliquis facere heredem quia solus Deus heredem facit The right doth descend unto the true Heir wheresoever he shall be born in the Womb of his Mother on this side the Sea or beyond no man can make an Heir unto himself because God only doth make the Heir read the Statute and Cook 7. part 18. a. Where you shall see that though generally the birth place is observable yet many times Legiance and obedience without any place within the Kings Dominions may make a Subject born for though we see by experience almost in every Parliament Ambassadors Merchants and the Kings souldiers doth shew there in such causes to have their children naturalized or made denizens yet that doth proceed onely of doubt and needlesse scâ—pulosity and ignorance of the Law even as we see men that are doubtfull desire to be resolved as may appear by sundry covenants in bargaining more then necessary And by renuing of Chartes though there be no forfeitures and by suing forth particular pardons when a generall is granted by Parliament Priests and Ministers sue to the Parliament for legitimation of their children And in the Articles confirmed by Parliament touching the marriage between Philip Prince of Spain and Queen Mary a speciall proviso was to barre him from being Tenant by the courtesie of the Crown in case he should have issue by her and survive which was superfluous because the Common-Law would have denyed this last point See the Lord Cromwels Speech in the case of the Postnati fol. 36 But note that if an Alien Enemy come into this Realm and his Wife Engiish or stranger be delivered of a childe within England this childe notwithstanding his birth-place is an Alien born for want of allegeance in the Parents Ibidem King Henry did create Edward his eldest Sonne the first Prince of Wales and did give unto him the dignity and Dominion of it to be holden of him and his Heirs Kings of England and after that time the eldest sonne of the King of England hath been Prince of Wales and as incident to the State and dignity of a Prince and might make Laws and Statutes and use jurisdiction and authority as amply as any King of that Nation could do Plowden Cooks 7. part 21. 6. Vide Mills fol. 312. 126. For Wales was a Kingdom in ancient time But in a Statute made in the 12. Ed. 1. Wales was united and incorporated into England and made parcell of England in possession And note in Tho. Mylls 112. the devise of the said King was to draw the Welchmen to acknowledge the Kings eldest Son Edward of Carnarvan to be their Prince Also by another Statute made 27. Hen. 8. cap. 24. a generall resumption of many liberties and franchises heretofore taken or granted from the Crown as the authority to pardon Treason murther man-slaughter and fellony power to make Justices in Oyre Justices of assize Justices of peace Goal delivery and such like so that from thenceforth the Kings eldest Sonne hath only the name and stile of Prince of Wales but no other Jurisdiction then at the Kings pleasure is permitted him and granted by his Letters Patents as by the tenour thereof following made by King Henry the eight to Edward his sonne and heir apparent may appear Henry By the grace of God King of Ireland was before 33. Hen. 8. a Lordship and now is a Kingdom and the King of England was as absolute a Prince and Soveraign when he was Lord of Ireland as now when he is stiled King of the same Cooks 7. part England and of France Lord of Ireland c. To all Archbishops Bishops Abbots Priors Dukes Earls Barons Justices Viscounts Governours Ministers and to all our Bailiffs and faithfull Subjects greeting out of the excellency of Royall preheminence like as the beams from the Sunne so doth inferiour honour proceed neither doth the integrity of Royall lustre and brightnesse by the naturall disposition of the light-affording light feel any losse or detriment by such borrowed lights yea the Royall Scepter is also much the more extolled and the Royall Throne exalted by how much more noblenesse preeminences and honours are under the power and command thereof And this worthy consideration allureth and induceth us with desire to the increase of the name and honour of our first begotten and best beloved Sonne Edward in whom we behold and see our selves to be honoured and our Royall House also and our people subject to us hoping by the grace of God by conjecture taken of his gratious future proceedings to be the more honourably strengthned that we may with honour prevent and with aboundant grace prosecute him who in reputation
titul nosve dignitot 33. See in Cooks 8. parts 156. John Stile is bound by obligation to W. B. the obliger is afterwards made into a title of honour or a Knight the Bond is forfeited W. B. by his Atturney draweth a note or title for an originall according to the Defendants degree although it vary from the specialty as it ought to be made by the Statute but the Cursitor mistaking did make the originall onely according to such addition as was specified in the obligation omitting his degree of dignity and the entry of the Capias alias plures was according to the said Originall bnt in the Exigent and Proclamation and in the Entry of it the Defendant was named according to his degree of dignity upon a Writ of Errour after judgement doubt was if this might be amended in another Court then where the originall was made Injuries done to the name and honour of a Nobleman IN the second yeer of Richard 2. in the first Chapter It was inacted that counterfeiters of false news and of horrible and false lyes of Prelates Dukes Earls Barons and other Nobles and great men of the Realm and also of the Chancellor Treasurer Clerk of the Privy Seal Steward of the Kings House Justices of the one Bench or of the other and of other great officers of the Realm of things which by the said Prelates Lords Nobles and Officers aforesaid were never spoken touched nor thought in great slander of the said Prelates Lords Nobles and Officers whereby debates and discords might arise betwixt the said Lords and Commons which God forbid and whereof great perill and mischief might come to all the Realm and quick subversion and destruction of the said Realm if due remedy be not provided It is straightly defended upon grievous pain for to eschew the said dammages and perils that from henceforth none be so hardy to finde say or tell any false news lyes or other false reports of Prelates Lords and of other Officers aforesaid whereof discord or any slander might arise within the said Realm and he that doth the same shall incurre and have the pain ordained thereof by the Statute of Westminster in the first Chapter 33. which will that he be taken and imprisoned till he have found him of whom the word shall be moved And further By another Statute made in 22. Richard 2. cap. 11. It was moreover enacted That when the said offender is taken and imprisoned and cannot finde him that spake the words then he shall be punished by the advise of the Councell And to the intent that such evill disposed persons which by their lewd speeches and slanderous words or reports do endeavour to break or disquiet the peace of the Realm might the sooner be inquired found out and punished by a Statute made Anno 2. Phil. Mary It was further established That the Justices of Peace in every Shire City or Town Corporate within the limits of their severall Commissions shall have full power to examine hear and determine the causes aforesaid in the said two Acts of Edward the first and Richard the second specified and to put the said two Statutes and every branch in them contained in due execution that condigne punishment be not deferred from such offenders and besides the afore mentioned penalties assigned to be inflicted upon transgressors by the aforesaid Statutes every Nobleman and great Officer of the Realm against whom any scandalous words false news or lyes be spoken may prosecute against the offender an action de scandalis magnatum and recover dammages against him and in like sort may every inferiour person for any such like words of infamy against him persue an action upon his cause against the offender and recover his dammages And if any person shall exhibite a Bill into the Starrechamber against a Nobleman or other and amongst other things charge him with murther piracy robbery or other fellony or to be a procurator thereof or accessary thereunto or with any other offence which is not examinable in the said Court the defendant in the said Bill may prosecute against the complanant therein an action upon the cause and recover his dammages for his Bill was exhibited of malice by the complainant to remain of record in the said Court to the infamy and slander of the defendant and not punish him for the said offences suggested in the said Bill by a course of Justice seeing the Court of Starre-chamber hath no authority to inquire of or punish the same offence but if the complainant did suggest in his Bill of complainant any matter against the defendant which is examinable in the said Court then no action upon the case is maintainable against him by the defendant therefore though the matter surmised be meerly false for it is done in course of Justice sub judice lis est whether the matters suggested be true or false untill they be proved And in former ages speeches tending to the reproach of others were so odious that King Edgar Le. 4. ordained that his tongue should be cut out which did speak any infamous or slanderous words of another Dyer 285. and in Kelway 13. Henry 7. 27. Cooks 4. part 14. Book 2. Richard 3. 9. 6. In which Book you may read at large where the Lord Beauchampe did sue an action upon the Statute of the 2. Rich. 2. cap. 5. de scandalis magnatum against Sir Richard Crafts because he did sue a Writ of forging of false deeds against the said Lord Beauchampe and the defendant doth justifie the said slander by the use of the said Writ c. And the demurrer was good and out of the intendment of the Common Laws or Statute Laws concerning slanderers for no punishment hath been at any time appointed for suits in Law though the matter be false and for vexation only other then amerciaments or fine to the King and therefore the plantiff is sufficiently discharged against the said Lord Beauchampe not only for the time that the suite is depending but after the action tryed or otherwise ended yea though the Plantiff were non-suited or by other means it went against him for if actions of revenge upon the event it would terrifie and discharge many who have just cause to complain for fear of infinite vexations for the event and successe of suits and matters in action is uncertain Cooks 6. part 40. a. There is another foul puddle that ariseth from the same corrupt quagmire and distilleth out of a heart likewise infected with malice and envy but is divised and practised by another mean then the former which is by libelling secret slandering and defaming of another for this privy backbiter doth not by words impeach his adversary in so manifest and turbulent manner as the collerick menacer in his fury doth seeming to sit quietly in his Study he doth more deeply pinch him and infixeth a more durable wound into his fame and credit then the other boysterous fellow doth in his
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
Land-lord and that by the space of two yeares whereupon he doth bring a writ of Cessavit which is his remedy given him by the Law thereby to recover the inheritance of the land but the said Lord for the saving of his tenancy being minded to pay all the arrerages before judgment given against him as by the Law hee ought to doe in this case hee must come in proper person and not by Atturney 15. H. 7. 9. b. If a noble man in contempt of any processe which hath beene awarded from out of any the Kings Courts doth make rescous and wilfully doth refuse to obey the said writ and the same his offence doth appeare of record to the Court by the Sheriffs returne there may be and shall be awarded against him a Capias 1 H. 5. Case ult 27 H. 8. 22. Cooks 6. part 54. If any Lord doe depart this Realm as Ambassadour or otherwise by the Kings licence or without licence and doe not returne at the Kings Commandement or upon the Kings writ under his privy Signet the King may seize his lands goods and chattells Dyer 108. b. 17. the Dutchesse of Suffolks case If a Lord arrested upon a Supplicavit for the peace doe wilfully refuse to obey the arrest and make rescous upon his returne shall issue an attachment against the said Lord for his contempt to take his body and this is the way to obtaine peace against any Lord of the Parliament whereas the party could not have an attachment against him if the Subpoena had beene duly served and peaceably accepted although the said Lord had not appeared thereunto Cromptons Justice of Peace 134. If a Lord of the Parliament doth with force and arms detaine a man in prison in his House or elsewhere the remedy is in such cases by himselfe or his friends abroad at liberty to have a writ called de homine replegiando to deliver him but if the Lord to prevent the execution thereof and of malice doe keep or convey away this man so wrongfully imprisoned so privily as that the Sheriffe cannot execute his said writ then will the Court award a Witheram whereby the Sheriffe shall attach and arrest the body of the said Lord and imprison him untill he doe deliver his said prisoner 11 H. 4. 15. All Lords are compellable to take the Oath mentioned in the Statute of 3 Jac. 4. vide the Statute 7 Jac. cap. 6. who have authority to minister the said Oath to them Bracton lib. 5. fol. 337. 6. H. 3. 351. writing of essoines delivereth this learning that if a Baron that holdeth by Baron tenure have his absence excused by essoine he which casteth such essoine or excuse ought to finde surety that the said essoine is true but in case of common persons it shall rest upon the credit and integrity of the Essoinee and so is the use at this day The Statute of magna charta cap. 1â— is quod liber homo non amercietur pro parvo delicto nisi secundum modum illius delicti pro magno delicto secundum magnitudinem delicti nulla praedictarum misericordiarum ponatur nisi per Sacramentum proborum legalium hominum de vicinate and accordingly is the Law thereunto at this day But the subsequent words in the said Statute viz. Comites Barones non amercientur nisi per pares suos non nisi secundum modum delicti are not in use for whether the offence be great or small for which they are to be amerced their amercement must be certaine viz. of a Duke ten pound and of any other of the Nobility Also whereas the amercement should be offered per pares the use is to offer them by the Barons of the Exchequer Cooks 8. Rep. 40. Bracton lib. 3. Tractat. 2. cap. 1. fol. 116. b. When a Peere of the Realme is arraigned in Appeale of Fellony he shall not have that priviledge to bee tried by his Peere as he should in case of Inditement but must undergoe the ordinary triall of twelve men Stamford Pleas of the Crowne lib. 3. cap. 1. Brook triall 142. Ferdinando Poulton 188. b. Read the book of Entries title appeale Sect. 7. also in Case of an Inditement the Defendant though a Peere of the Realme may not challenge any of his Triers either peremptorily or upon causes which in like cases permitted to all other common persons The Judgement to be given against any Lord of the Parliament in case of Felony or Treason shall be no other than according to the usuall judgement given against common persons and although the execution be not pursuant but with the losse only of their heads yet that is by the speciall grace of the King and not ex debito as by the examples of Thomas Lord Dacre 33. H. 8. and of the Lord Sturton 2 Mariae may appeare Brook tit Jury 48. By attainder of Treason or Fellony is corruption of blood so that their Children may not be heires unto them nor unto any of their Ancestors And if hee were a noble man before he is by the attainder made ignoble and not only himselfe but also his Children having no regard unto the Nobility which they had by their birth and this corruption is so strong and high that it cannot be saved by the Kings pardon or otherwise than by authority of Parliament Stamford Pleas del Coronae lib. 3. cap. 34. But here it is to bee observed that Nobility is not a thing substantiall but meere accidentall for that may be present or absent without corruption of the Subject whereof it dependeth for experience sheweth that the passage of honourable titles are restrained by exorbitant crimes when as nature in the meane while cannot bee thrust away with a fork Wherefore although the Lawyers doe terme and call that extinguishment of Nobility which hapneth by such hainous offences committed as corruption of blood neverthelesse they use not this manner of phrase and speech as though Nobility were naturally and essentially in the humour of blood more than any other hereditary faculty but because the right of inheritance which is by degree of communication of blood directed is by that meanes determined and ended and also in regard of the hatred and detestation of the crime it is called corruption of blood note in Dyer 16. Eliz. 332. the Lord Charles Howards case If one be made a Knight in a forraigne Kingdome by a forraigne Knight yet he is to be so stiled in this Realme in all legall proceedings but if a man be created by the Emperour an Earle of the Empire or into any other title of dignity he shall not beare this title here in England Cooks 7. part 16. 20. E. 46. If there be a Father and Sonne and the Father is seised of lands holden in Capite or otherwise by knightly service the King doth create the same Duke and Earle or of any other degree of Nobility and afterwards the Father dieth his Sonne being within the age
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
is no accepter of persons for as unto the Lord he that is greater is as the lesser and he that doth govern as the servant but with men there is a difference of persons viz. The King and under him Dukes Counts Barons Vavasors and Knights Counts so called because they take their name from the County or from the word society who may also be tearmed Consull of Counselling For Kings do associate such men unto them to govern the people of God ordaining them into great honour power and name when they do gird them with swords that is to say ringis gladiorum with the Belts of their swords ringis so called * quasi renes girans circundans for that they compasse the Reins of such that they may keep them from incest and luxury because luxurious and incestuous persons are abominable unto God upon this cause were the stations and encamping of Arms called in the ancient language of Rome casâ—â—â— even of the word Castrare to geld since that they ought to be castrata vel castra In that place ought a good Generall to foresee that Venus delights be as it were gâ—lded and 〈◊〉 off from the Army vide Sir John Ferne his Book intituled The glory of generosity The sword also doth signifie the defence of the Kingdome and Countrey There be other Potents under the King which are called Barons that is to say robor belli the strength of Warre There be others which are called Vavasors viri magnâ— dignitatis â—en of great dignity for Vavasor cannot better be said to be any thing than Vas sortitum ad valetudinem a vessel chosen for valour or as men standing with their Generall ad valuas Regni and this is enough if not too much in generall spoken of the Nobility of England now follow I a more particular discourse of them according to their severall degrees The Prince THe Kings eldest Sonne and Heir apparant is stiled Prince Quasi primum locum capiens post Regem the first next the King To him it was permitted by the Statute of 24. Hen. 8. cap. 13. To wear Silk of the colour of Purple and Cloth of Gold of Tissue in his apparell or upon his horse but by another Statute made in the fourth yeer of King James Chap. 25. all Laws and Statutes concerning apparell are taken away And by the Statute of 34. Hen. 3. cap. 2. Taking shall not be from henceforth made by others then by the Purveyors of the King of the Queen and of the Prince their eldest Sonne and that if any other mans Purveyor make such taking it shall be done of them as those which do without warrant and the deed judged as a thing done against the peace and the Law of the Land and such as do not in manner aforesaid shall be duly punished To eschew maintenance and nourish peace and amity in all parts of the Realm many Statutes have been made in the Raign of Hen. 4. prohibiting the giving of signes or Liveries to any but to their menialls Neverthelesse by the Statute of 2. Hen. 4. cap. 21. It is provided that the Prince may give his honourable Liveries of signes to the Lords or to his meniall Gentlemen and that the said Lords may wear the same as they wear the Kings Livery and that the menialls of the Prince may also wear the same as the Kings menialls But afterwards by occasion of divers other Statutes of latter times made by sundry other Kings for the suppressing of that enormity of maintenance and of the generall words in them that priviledge of the Prince was abridged or rather taken away therefore the Statute of 12. Ed. 4. was made as followeth Item Our Soveraign Lord the King considering that the Prince the first begotten Sonne to the King of England hath been at their liberties to give their Liveries and signes at their pleasure and that divers Statutes against givers and takers of Liveries and signes as well in the time of his noble raign as in the time of his progenitors and predecessors hath been made and that by force of the said Statutes his dear beloved first begotten sonne Edward Prince of Wales Duke of Cornwall and Earl of Chester is as well as any other person restrained to give any such Liveries and signes as our Soveraign Lord the King willing that his first begotten sonne the Prince be at his liberty in receiving any person and giving his signes and Liveries in as large form as any Prince first begotten sonne of any of his Noble Progenitors and predecessors in time pasâ— have been hath ordained and established by authority of the said Parliament that the Prince shall be at his liberty to retain and give his honourable Livery and signe at his pleasure and that the persons so â—â—â—â—ined or to whom such Liveries or signes be or shall be given may be retained and received and wear the same Livery and sign without trouble impediment or impeachment pain contempt or forfeiture or any penalty contained in any of the said Statutes or in any thing in them comprised notwithstanding Nor that the said Statutes in any manner shall extend to any retaining to be made by the said Prince in giving taking or retaining of any Livery or signe of the Prince By the Statute 21. Hen. 8. cap 13. The Prince may retain as many Chaplains as he will though all others of the Nobility other then those of the Kings bloud be restrained to a certain number and they or any of them may purchase licence or dispensation and take receive and keep personages or benefices with cure of souls By order of the common Law a King might have a reasonable ayde of all his Tenents as well of those that did hold of his highnesse by Knights service as of those that did hold their Land in soccage That is to make his eldest Sonne But first note that the ayde is not to be recovered before the Sonne be of the age of 15. yeers or before the Daughter accomplish the age of 7. yeers Fitz Harbert Nat. brevium Knight and for the Marriage of his eldest Daughter and the summe of money was not in certainty but at the Kings pleasure till by the Statute made in the 25. of Ed. 3. cap. 11. by which is enacted as followeth Item It is assented that reasonable aid to make the Kings first Sonne Knight and to marry his eldest Daughter shall be demanded and levied after the forme of the Stature thereof made and not in other manner that is to say of every Knights Fee holden of the King without mean rate 20s and no more and of every 20â— of Land holden of the King without mean in soccagâ— 20s and no more and so rata pro rata of the Lands in soccage And for Lands of the â—enure of Chevalry according to the quantity of the Fee By another Statute made in the said 25. yeer of Ed. 3. cap. 2. amongst other things it is declared that to compasse
of us is deemed the same person with us Wherefore by the Councell and consent of the Prelats Dukes Earls Viscounts and Barons of our Kingdom being in our present Parliament we have made and created and by these presents make and create him the said Edward Prince of Wales and Earl of Chester and to the same Edward we give and grant and by this Charter have confirmed the Name Stile Title State Dignity and the honour of the said Principality that he may therein in governing rule and in ruling direct and defend We by a Garland upon his head by a Ring of Gold upon his Finger and a Virge of Gold have according to the manner invested him to have and to hold to him and to his Heirs the Kings of England for ever Wherefore we will and straightly command for us and our Heirs that Edward our Sonne aforesaid shall have the Name Stile Title State Dignity and honour of the Principality of Wales and of the County of Chester aforesaid unto him and his Heirs the Kings of England aforesaid for ever These being witnesses the Reverend Father John Cardinall and Archbishop of Canterbury Primate of all England our Chancellor and William Archbishop of York Primate of England Thomas Bishop of London John Bishop of Lincolne and William Bishop of Norwich our most welbeloved Cousins Richard Duke of York Humpbry Duke of Buckingham our welbeloved Cousin Richard Earl of Warwick Richard Earl of Salisbury John Earl of Wiltshire and our welbeloved and faithfull Cousins Ralph Cromwell Chamberlain of our House William Falconbridge and John Sturton Knights Dated at Our Palace at Westminster â—he fifteenth day of March and in the yeer of Our Raign â—hirty two And here by the way may be observed that in ancient time and in the time of the English Saxon Kings the use was as well in penning the Acts of Parliament as of the Kings Letters Patents when any lands franchises or hereditaments did passe from the King of any estate of inheritance as also in their creations of any Man unto honour and dignity the conclusion was with the signe of the Crosse in forme aforesaid that is his Testibus c. But long time that forme hath been discontinued so that at this day and for many yeares past all the Kings Patents for lands franchizes and hâ—reditaments doe conclude with teste me ipso neverthelesse in all creations of honour and dignity by Letters Patents the ancient forme of concluding with his testihus is used at this day Cookes 8. part 19. And it hath been resolved by the Judges that all Acts of Parliament and Statutes which doe concerne the Prince who is the first begotten son of the King and heire apparant to the Crowne for the time being Perpetuis futuris temporibus in all succession of ages and times be such Acts whereof the Judges and all the Realme must take conusance as of generall Statutes for every subject hath interest in the King and none of his subjects who is within his Lawes be divided from him being his head and Soveraign so that the businesse and things of the King doth touch all the Realme and namely when it doth concerne the Prince the first begotten sonne of the King and Heire apparant to the Crowne Corruscat enim Princeps radlis Regâ—s Patrâ— sii censetnr und persona cum ipso For the Prince shineth with the beames of the King his Father and is holden to be one person with him Cookes 8. part 28. Although the Prince by expresse words hath no priviledge by the great Charter of the Forrest 9 H. 3. cap. 11. for hunting in the Kings Forrests or Parks passing by them and sent for by the Kings commandment yet by construction the Prince is to take benefit and advantage thereby as well as Bishops Earls or Barons who are expressed Crompt Courts des Justices de Forrests 167. In the Parliament 31. H. 8. c. 10. an Act concerning the placing of the Kings children and Lords in the Parliament and other assemblies were amongst other things made as followeth First it is enacted by the authority aforesaid that no person or persons of what degree estate or condition whatsoever he or they be except only the Kings children shall at any time hereafter attempt or presume to sit or have place at any side of the cloth of state in the Parliament chamber neither of the one hand of the Kings Highnesse or of the other whether the Kings Majesty be there personally present or not The Prince shall not find pledges for the prosecution of any Action and therefore shall be amerced more then the King should be or the Queen his wife Vide Cooks 8. part 61. b. Of the most noble and excellent Prince that now is it is truly said that he is omni nomine numine magnus by destiny name providence of God the greatest before Cook to the Reader before his 8. Book the last leaf Neverthelesse as he is a distinct person by nature from the King so is he distinct by the Law viz. a Subject and holdeth his principalities and seigniories of the King neither shall he have all those Prerogatives which the King shal have for example when the King seizeth his Subjects lands or taketh away his goods from him having no title by order of the Law so to do In this case the Subject is to sue to his Soveraign Lord by way of Petition onely for other remedy hath he not but suit by Petition can be to none other then to the King for no such suit shall be made to the Prince but Actions as the case requireth as against a Subject Stamf. praerog ca. 22. And in token of subjection the Prince doth not upon his Posie of his Arms disdain the old Saxon word Ichdien I serve as Lambert doth mention in his Book of Perambulation of Rent 364. And there is a case that Gascoin chief Justice of Engl in the time of H. 4. did commit the Prince who would have taken a prisoner from the Bar in the Kings Bench and the Prince did humbly obey and did go at his command in which the King did greatly rejoyce that hee had such a Judge who durst minister justice upon his son and also that hee had a son so gracious as to obey Court de Banco Regis 79. Crompton A question was moved to the Justices in the first yeer of H. 7. what order should be in that present parliament for the anulling and making void certain attainders for so much as divers who were returned of that Parliamet did stand attainted of treason and all the Justices resolved That so many of the Knights of the shires or Citizens or Burgesses as stood then attainted of treason should depart out of the Parliament house at the reversall of the Act of Parliament for their attainders But â—s soon as the Act of Parliament was reversed and annuld that they and every of them that is to say Lords and Commons should come into
apparant of the King of England and of such a King who is heir unto the said Prince Edward And such a first begotten son and heir apparant to the Crown shall inherit the said Dukedom in the life of the said King his father with manner of limitation of estate was short excellent and curious varying from the ordinary Rules of the Common Law touching the framing of any estate of inheritance in fee-simple or fee-tail And neverthelesse by the authority of Parliament a speciall fee-simple iâ— in that onely case made as by judgment may appear in the Book aforesaid and the case thereof fol. 27. and 21 E. 3. 41. b. And ever since that creation the said Dukedom of Cornwall hath been the peculiar inheritance of the Kings eldest son ad supportandum nomen onus bonoris to support the name and weight of that his honourable estate during the king his fathers life so that he is ever Duxnatus non creatus a Duke born not created and the said Duke the very first day of his nativity is presumed and taken to be of full and perfect age so that he may sue that day for his livery of the said Dukedom and ought of right to obtain the same as well as if he had been full 21 yeers of age And the said Black-Prince was the first Duke in England after the Conquest for though Bracton who made his Book in H. 3. saith Et sunt sub regâ—duces as before appeareth yet that place is to be understood of the ancient kings who were before the conquest for in Mag. Charta which was made in Anno 9 H. 3. we finde not the name of Duke amongst the Peers and Nobles there mentioned For seeing the Norman Kings themselves were Dukes of Normandy for a great while they adorned none with this honour of Duke And the eldest son of every King after this creation was Duke of Cornwall and so allowed As for example Henry of Munmouth eldest son of H. 4. and Henry of Winsoâ— eldest son of H. 5. and Edw. of Westminster the first son of Ed. 4. and Arthur of Winchester first son of H. 7. and Edward of Hampton first son of H. 8. but Richard of Burdeaux who was the first son of the Black-Prince was not Duke of Cornwall by force of the said creation for albeit after the death of his father he was heir apparant to the Crown yet because he was not the first begotten son of a King of England for his father dyed in the life time of king Ed. 3. the said Richard was not within the limitation of the grant and creation by authority of Parliament made in the 11 yeer of king Edward above mentioned And therefore to supply that defect in the 5. yeer of Ed. 3. he was created Duke of Cornwall by a speciall Charter Elizabeth eldest daughter to king Edw. 4. was not Dutches of Cornwal for she was the first begotten daughter of king Edw. 4. but the limitation is to the first begotten son Henry the 8. was not in the life of his father king H. 7. after the death of his eldest Brother Arthur Duke of Cornwall by force of the said creation for albeit he was sole heir apparant to the king yet he was not his eldest begotten son Cooks 8 part 29. b. and 30. a. And the opinion of Stamford a learned Judge hath been that he shall have within his Dukedom of Cornwall the kings Prerogatives because it is not severed from the Crown after the form as it is given for none shall be inheritour thereof but the kings of the Realm For example whereas by the Common Law if a man hold divers Mannors or other lands and toâ—ements of severall Lords all by knights service some part by priority and ancient Feoffment and other lands by posterity and by a latter Feoffment and the Tenant so seized dyeth his son and heir within age In this case the custody of Wardship of the body and his marriage may not be divided among all the Lords but one of them onely shall have right unto it because the body of a man is intire and the Law doth say That the Lord of whom some part of those lands be holden by priority and by the same tenure of Chivalry shall have it except the king be any of the Lords for them though the Tenant did purchase that land last yet after his death the king shall bee preâ—erred before all or any other the Lords of whom the Tenant did hold by priority And so shall the Duke of Cornwall in the same case have the same Prerogative if his Tenant dye holding of him but by posterity of Feoffment for any tenure of his Dutchie of Cornwall although the said Duke is not seized of any particular estate whereof the reversion remaineth in the king for the Prince is seized in fee of his Dukedom as before is said Iohn of Gaunt the fourth son of king Edward 3. did take to wife Blanch who was daughter and heir to Henry Duke of Lancaster who had issue Henry afterwards king of England so that the said Dutchy of Lancaster did come unto the said Henry by discent from the part of his mother and being a subject he was to observe the Common Law of the Land in all things concerning his Dutchie For if he would depart in Fee with any part thereof hee must make livery and seizen or if hee had made a Lease for life reserving rent with a reentery for default of payment and the rent happen to be behind the Duke might not enter unlesse hee doe make a demand or if he had aliened any part thereof whilest he was with age hee might defeat the purchaser for that cause and if hee would grant a reversion of any estate for life or yeares in being there must also be Attornment or else the grant doth not take effect But after that hee had deposed King Richard the second and had assumed upon him the Royall estate and so had conjoyned his naturall bodie in the bodie Politique of the King of this Realme and so was become King Then the possessions of the Duchie of Lancaster were in him as King and not as Duke For the name of Duke being not so great as the name of a King was drowned by the name of King and by the State Royall in him who was Duke for the King cannot bee a Duke within his owne Realme but out of his Realme hee may And likewise the name of the Duchie and all the Franchizes Liberties and Jurisdictions of the same when they were in the hands of him who had the Crowne and Jurisdiction Royall were gone by thâ— Common Law and extinct for the greater doth distinguish the lesse and after those times the possessions of the Dutchie of LANCASTER would not passe from King Henry the fourth but by his Letters Patents under the great Seal of England without livery of seifin and without Attornment and if he make a Lease for life being Duke
reserving a rent with reentry for default of payment and after his assumption of the Crown the rent happen to be unpaid he might re-enter without demand for the King is not bound to do such personall Ceremonies as the Subjects are by the Law compelled to do Therfore to have the said Dutchy to be still a Dutchy with the liberties to the same as it was before and to alter the order degree of the lands of the Dutchy from the Crown the said King H. 4. made a Charter by authority of Parliament which is intituled Charta Regis Henrici quarti de seperatione ducatus Lancastria a corona authoritate Parliamenti anno Regni sui primo The Charter of Henry the fourth for the separation of the Dutchy of Laucaster from the Crowne by the authority of Parliament in the first yeâ—r of his raign of the said King as by the tenure thereof may appear And so by authority of Parliament the said Dutchy withall the Franchises and liberties were disjoyned from the Crown and from the Ministers and Officers of the Crown and from the receit of the revenues of the Crown and from the order to passe by conveyance which the said Law did require in the possessions of the Crown But although the possessions of the Dutchy by force of the said Statute stood divided from the Crown and ought to be demeaned and ordered and passe as they ought before Henry the fourth was King yet there is no clause set down in the said Charter which doth make the person of the king who hath the Dutchy in any other degree then it was before but things concerning his person shall in the same estate as they were before seperations Insomuch as if the Law before the Charter by the authority of Parliament adjudged the person of the King alwayes of full age having regard unto his gifts as well of the lands which he doth inherit in his naturall body as in that he doth inherit in the right of his Crown or politique body it shall be so adjudged for the Dutchy land after the said Statute for the Statute doth go and reach unto the estate condition and order of the lands of the Dutchy but doth not extend to the person of the king who hath the lands in points touching his person neither doth it diminish or alter the preheminences which the Law doth give or attribute to the person of the King For if king Henry 4. after the said Act had made a 〈◊〉 or other grant of parcell of the Dutchy by the 〈◊〉 of H. Duke of Lancaster onely it had been void for it should have been made in the name of Henry 4. king of England And thus stood the Dutchy of Lancaster severed from the Crown all the raign of H. 5. and H. 6. being politiquely made for the upholding of the Dutchy of Lancaster their true and ancient inheritance howsoever the right heir uuto the Crown might in future time obtain his right thereunto as it happened in king Edward 4. his time But after king Edward 4. obtained his right unto the Crown of England and was in his remitter he in Parliament attainted H. 6. and appropriated unity and annexed the said Dutchy again unto the Crown of England as by the Statute thereof made in the first yeer of his Raign may appear By which Statute three things were ordained 1. First the County Palatine of Lancaster was again established 2. Secondly he did vest it in the body politique of the kings of this Realm 3. Thirdly he did divide it from the order of the Crown-lands and in this force it did continue untill the time of H. 7. who forthwith being descended from the house of Lancaster did separate it onely in order and government from the Crown and so continueth at this day and all that is before spoken concerning the Duke and the Dukedom of Lancaster appeareth in Plowden 212. and that which there followeth Before I write further concerning the Nobility I should set down the form of the Kings Letters Patents of their Creations and the manner of solemnity used in the admittance and investry of Marquesses Earls Viscounts and Barons according to their severall degrees But I do willingly omit so to do partly because in effect the same may appear by that before recited Patent for the Creation of a Duke altering onely such things which of right ought to be altered and partly because their Patents are not onely extant and of Record but also because all those things are to be read in a printed English Book of this subject judicially made by Tho. Mills being a matter also proper to the Colledge and Corporation of Heralds and not unto the drift of my discourse and I will briefly set down some other things observable concerning each of them Of Marquesses A Marquesse that is if we consider the very nature of the word is a Governour of the Marches and hath the next place of honour after a Duke This title came to us but of late dayes and was not bestowed upon any one before the time of King Rich. 2. who made Robert Vere Marquesse of Dublin and then it became with us to be a title of honour for before time those that governed the Marches were called commonly Lords Marchers and not Marquesses After the Normans had conquered this land it was carefully observed by them as a matter of much moment and a point of speciall policie to place upon she confines and borders of the Britains or Welsh c. not then subdued men of much valour not onely sufficiently able to incouuter the inrodes and invasions of the enemy but also willing to make on-set of them and inlarge the Conquest these men thus placed were of high bloud credit and conntenance among their country-men the Normans and in whose faith and power the Conqueror reposed speciall confidence and trust and therefore in their territories given unto them to hold their tenures were devised to be very speciall and of great importance and their honours inriched with the name and priviledges of Earls of Chester and for the North border of Wales created to be a County Palatine and the Barons of the middle Poâ—t of the South Marches were adorned in a manner with a Palatine Jurisdiction having a Court of Chancery and Writs only among themselvs pleadable to thâ— inteâ—t that their attendance might not thence be driven for the prosecution of controversies and quarrells in the Law and as for the other part of the South Marches they seemed sufficiently fenced with the River of Severn and the Sea Of Earls FIrst It is to be observed that originally within this Kingdome Earldomes of Counties in the ancient English Saxon Government were not onely Dignities of Honour but also Offices of justice for that they did further the administration of justice in the Counties whereof they were Earls or Aldermen They had likewise their Deputies under them the Sheriff an Officer yet in being and retayning the name
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
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
to mention one case which I read in the bookes of the common Law concerning the discent of a title of honor whereof the Ancestor had estate in fee simple There is a maxime in the Law Possessio fratris de feodo simplici facit ' sororem esse heredem the possession of the brother in fee simple doth make his sister to bee his heire But if a man by any of the three names before mentioned be created into a title of dignity to him and to his heires for ever and hee hath issue a sonne and a daughter by one Venter and hath also a sonne by a second wife afterwards the Father dyeth and his eldest sonne entreth into all his Fathers inheritance and also enjoyeth the title and name of dignity which his Father had but dyeth without issue In this case the dignity shal goe and discend unto the younger sonne though hee be but of the halfe blood unto him that last enjoyed that name and title by discent and shall â—ot discend unto his sister of the whole blood and yet in this case shee should only bee her brothers heire of all his fee simple Lands and the reason and cause hereof is because Possessio fratris because the possession of the brother is the maine and sole cause which may give title to her his sister which fayleth in this cause of dignity For it cannot be said that her eldest brother was in possession of his title of honour no more then of his blood For the diguity was inherent to his blood so that neither by his owne Act neither by any act to be done by another did hee gaine any more actuall possession if so it may be termed then by the law did discend unto him and therfore the younger brother may well by the Law make himselfe heire unto his Father of the honour though hee cannot be heire unto his brother so that this word Possessio which is none other then pedis positio a fixing of the foot extendeth only unto such things of which a man may by his entry or other act and doth require actuall possession Cooks 3. part 42. Ratclâ—ffs case And having thus much dilated concerning the creations and other things incident to the degrees of Nobility I cannot with silence pretermit something to declare concerning that sufficiency and ability of estate which the Law doth require to be in every of them according to their severall dignities The Common Law alwayes will that decorum and conveniency be observed considering the charges and expences appertayning to these degrees and dignities being offices of principall service to the King and the Realme both in time of warre and peace as hath beene said hath ordered that each of them have a convenient portion and value of lands of inheritance for the support of their honours which supplyes are as sinewes conjoyned unto the same For in vertue and in riches as Aristotle counselleth all the old Nobility consisted and which two as Ecclesiastes teacheth maketh a good accomplement for saith he Vtilior est sapientia cum divitiis conjuncta Lamberts Perambulation of Kent â—68 Therefore a Knight ought to have 20. l. land by the yeâ—re a Baron 13. Knights fees and a quarter an Earle 20 knights fees and this doth appeare by the Statute of Magna Charta cap 2. For alwayes the fourth part of such Revenues which is by the Law requisite to the dignity shall be paid to the King for reliefe as for example The reliefe of a Knight is five pound which is the fourth part of 20. l. which is the revenue of a Knight see the Statute hereof 1 E. 2. and the reliefe of a Baron is a 100. markes which is the fourth part of his revenues that is to say 400. markes a yeare which doth include 13. Knights fees and a quarter and the reliefe of an Earle is a 100. l. which is the fourth part of 400. l. which is the revenue of an Earle and it appeares by the Records of the Exchequer that the reliefe of a Duke amounteth unto 200. l. and by consequence his revenue ought to be 800. l. per annum and this is the reason in every of our bookes that every of the Nobility is presumed in our law to have sufficient free-hold Ad sustinendum nomen onus and to what value these ancient rents in time of H. 3. Edw. 1. at this day do amount unto every man knoweth not Cooke 7. part 33. And in cases of decay of Nobility and meanes as Senatores Romani rereamoti senata as Senators of Rome were removed from the Senate so sometimes they are not admitted to the upper house in the Parliaments though they keepe the name and title of dignity still Sir Thomas Smith de reipub Angl. 221. And by a Statute made 31. H. 8. ca. 10. The Lords have their places prescribed after this manner following viz. these foure the Lord Chancellour the Lord Treasurer the Lord President of the Councell and the Lord Privie Seale being persons of the degree of a Baron or above and in the same act appointed to sit in the Parliaments and all assemblies or Councell above all duties not being of the blood royall viz. the Kings brother Vncle Nephew and these sixe the Lord High Chamberlaine of England the Lord Marshall and the Lord Admirall of England the Lord Steward of the Kings House and the Lord Chamberlaine of the Houshold by that act to be placed in all assemblies of Councell after the Lord Privy Seale according to their degrees and estates so that if hee bee a Baron then hee is to sit above all Barones or an Earle above all Earles and so likewise the Kings Secretary being a Baron of the Parliament hath a place above all Barones and if hee bee a man of higher degree hee shall sit and bee placed according thereunto Priviledges incident to the Nobility according to the Lawes of England VVHen a Peere of the Realme and Lord of the Parliament is to be arraigned upon any treason or fellony whereof he is indicted and whereupon hee hath pleaded not guilty the King by his Letters Pattents shall assigne some great and sagâ— Lord of the Parliament to bee High Steward of England for the day of his arraignement who before the same day shall make precept to his Sergeant at armes that is appointed to serve him during the time of his Commission to warne to appeare before him 18. or 20. Lords of the Parliament or 12. at the least upon the same day and then at the day appointed when the High Steward shall bee set under the Clothe of State upon the arraignement of the Prisoner and hath caused the Commission to bee read the same Sergeant shall returne his Precepts and thereupon the Lords shall bee called and when they have appeared and set in their places the Constable of the Tower shall bee called to bring his Prisoner into the Court who then shall bring his Prisoner to the Barre and the High
Steward shall declare unto the people the cause why the King hath assembled thither those Lords and him and perswade him to answere without feare and then hee shall cause the Clarke of the Crowne to read his endictement unto him and aske him if hee bee guilty or not whereunto when hee hath answered not guilty the Clarke of the Crowne shall aske him how hee will bee tryed and then hee will say by God and his Peeres and then the Kings Sergeants and Attourney will give evidence against him whereunto when the Prisoner hath made answere the Constable shall bee commanded to retire the Prisoner from the Barre to some other place while the Lords doe secretly conferre in the Court together and then the Lords shall rise out of their places and consult amongst themselves and what they affirme shall bee done upon their Honour without any oath to bee ministred unto them and when they all or the greatest part of them bee agreed they shall returne to their places and sit downe and then the High Steward shall aske of the youngest Lord by himselfe if he that is arraigned bee guilty or not of the offence whereof hee is arraigned and then of the youngest next him and so of the residue one by one untill hee have asked them all and every Lord shall answere by himselfe and then the High Steward shall send for the Prisoner againe who shall bee led to the Barre to whom the High Steward shall reherse the verdict of the Peeres and give judgement accordingly Stamford Pleas del Coronae lib. 3. cap. 1. Poulton 188. The antiquity of this kind of triall by the opinion of the last recited Authours is grounded from the Statute of Magna charta so called not in regard of the quantity but in regard of the waight thereof Cooke Epistle to the 8. part fol. 2. c. 29. beginning thus Nullus liber homo c. nec supereum ibimus nec super eum mittemus nisi per legale judicium parvu ' suorum But I take it to bee more ancient then the time of Hen. 3. as brought into the Realme with the Conquerour being answerable to the Norman and French Lawes and agreeable with the Customes Fewdall where almost all the controversies arising betweene the Soveraigne and his vassall are tried per judicium Parvu ' suorum And if a Peere of the Realme upon his arraignement of treason doe stand mute or will not answere directly judgement shall bee given against him as a Traytour convicted and hee shall not bee pressed to death and thereby save the forfeiture of his lands for treason is out of the Statute of Westminster the first c. 12. 15. E. 4. 33. Dyer 205. and 300. But if hee bee arraigned upon an indictement of fellony hee may bee mute Iâ— appeareth by this Statute of Magna charta that a Peere of the Realme shall bee tried by his Peeres onely in case where hee is indicted at the Kings suite of treason or fellony for the words of the Statute bee Wee will not passe or sit in judgement upon him but by his Peeres But if an Appeale of murder or other fellony bee sued by any Common person against a Peere of the Realme hee shall bee tried by Common persons and not by his Peeres Stam. Pleas del Coron lib. 3. cap. 1. Brooke triall 142. Poulton 188. 6. This Priviledge hath some restraints as well in regard of the person as in the manner of proceedings As touching the person First the Archbishops and Bishops of this Realme though they bee Lords of the Parliament if they bee impeached of such an offence they shall not bee tried by the Peeres of the Realme but by a jury of Knights and other substantiall persons upon their oaths the reason thereof alleadged is for as much as Archbishops and Bishops cannot passe in like cases upon the triall of any other of the Peeres for that they are prchibited by the Common and Ecclesiasticall Lawes to bee Judges of life and death and reason would that the other Peeres should not trie them for this triall should bee mutuall for as much as is performed upon their Honours without any oath taken And so by the way you may see the great regard the Law hath to the word of a Peere of the Realme when hee speaketh upon his Honour even in a case concerning the life of a man and that of a Peere and therefore ought they much more to keepe their words and promises in smaller matters when they engate their Honours for any fast cause or consideration Crompton Courts 13. Secondly as touching the Persons no temporall Lords but they that are Lords of the Parliament shall have this kind of triall and therefore hereout are excluded the eldest Sonne and Heire apparant of a Duke in the life of his Father though he bee called an Earle and it was the case of Henry Howard Earle of Surrey Sonne and Heir apparent of Thomas Duke of Suffolke in 38. H. 8. which is in Brooks abridgement treason likewise the Son and Heir apparant of an Earl though he be called Lord or Baron And all the younger Sonnes of the Kings are Earles by birth though they have no other creation but shall not be partakers of this or other priviledges incident to the Lords of the Parliament Thirdly those that are Barons of the Nobility of Ireland or of Scotland if upon the like offence committed in England they be apprehended in England they shall not have their triall by Peeres no though they were borne within England for they received their dignity from a King of their Nations But if the King of England at this day do create one of his subjects of Scotland to be Viscount Roâ—hester within England or by ordinary summons under his great Seale doe call him to his upper House of Parliament do assign him a place and to have a voice there in his great Councell amongst the Lords and Peeres of the Realme he shall thereby also be a Peere of the Realme and be partaker with them in all priviledges and thus much concerning the restraint of the said priviledges in respect of the person as touching the manner of proceeding it appeareth by the said statute of Magna charta c 29. that a Peere of the Realme shall be tried by his Peeres only in case where he is indicted at the Kings suite of treason of fellony for the words of the statute be Nec super eum ibimus But if an appeale of murder or other fellony be sued by any Common person by a Peere of the Realme he shall be tried by Common persons and not by his Peeres Stam. Pleas del Corone lib. 3. cap. 1. Pâ—ulton 118. and so was Fines Lord Dacres tried in aâ—peale of murder 33. H. 8. Brooke Abridgement trials 142. The Nobility of this Realme enjoy that priviledge that they are not to be impanelled in any Iury or Inquests to mâ—ke tryall or Enquiry upon their corporall oathes betweene party and party for
they may have their writ for their discharge to the Sheriffe Rex Vic ' Com' c. quia barones regni nostri in Assizis Iuratis seurecognitionibus aliquibus poni non consueverâ—nt ut dicunt nisi eorum sacramentum adeo sit necessarium quod sine illis varitas inquire non pâ—test Tibi precipimus quod dilectum fedâ—lem nostram A. B. in Assizis Iuratis seu recognitiâ—nibus aliquibus non ponas seu poni faciat is contra voluntatem suam sine mandato nastro speciali nisi suam presentia ob aliquam causam specialiter exigatur teste c. But it is a rule in Law vigilantibus non dormientibus subveâ—iunâ— Iura For if the Sheriffe have not received any such writ and the Sheriffe have returned any Lords in Iuries or in Assizes c. and they thereupon doe appeare they shall be sworne and if they doe not appeare they shall loose their issues 35. H. 6. 46. and in such case they must purchase a writ out of the Chancery reciting their priviledge directed to the Iustices before whom such noble persons are so impannelled commanding them to dismisse him or them that were so impannelled out of the said pannell Fitz. na br 165. This priviledge hath restraint in two cases first if the Enquiry concerne the King and Common-wealth in any necessary or important degree or busines of the Realme then this priviledge is not allowed nor taketh place and therefore divers Barons of the marches of Wales were impannelled before the Bishop of Ely and after Commissioners of Oyer and Terminer to enquire of a notable out-rage committed by Gilbert de Clare Earle of Gloucester against Humphery de Bohâ—n Earle of Hereford and Essex and his Tennant in Wales the 12th yeare of Ed. 1. where John de Hastings Edmond de Mortimer Theonald de Bordmor and others Barons of the Marches challenged their Priviledges aforesaid and much insisted upon the same but it was afterwards answered by the Courts as by the words in the Records appeareth Domino quod res ista Dom. Regem Coronam dignitatem suam tangit dictum fuâ—â— Dominum Regis Johâ—n de Hastings omnibus aliis magnatibus sâ—pra nominatis quod per statu Iure Regni per conservatione dignitatis Coronae pacis suae apponunt manum â—d librum adfaciendum idquod eis ex perte Dom. Regis in jungeretur The Baronâ— aforesaid did neverthelesse persist in the Challenge and in the end both the said Earles between whom the said outrage had been perpetrated submitted themselves to the Kings grace and madâ— their Fines Secondly this Priviledge hath no place in case of necessity where the truth of the case cannot otherwise come to light for the words of the Writ in the Register before mentioned are Nisi sua presentiae ob aliquam causam specialiter exigatur c. Register 179. If a Nobleman doe bring an Action of debt upon an Accompt in case where the Party is to be examined which is alwayes intended to be upon Oath upon the truth of his cause by vertue of the Statute of 2. H. 4. cap. 8. â—t shall suffice to examine his Artorney and not himselfe upon Oath 3. H. 6. 48. Cooke 6. part 53. And this Priviledge the Law doth give to the Nobility that they are not to be arrested by any Warrant oâ— any Justice of the Peace for the peace or for the gooâ— behaviour nor by a supplicavit out of the Chanceâ—y â—â— called because it issueth out at the supplication of the partie or from the Kings Bench for such an opinion hath the Law conceived of the peaceable disposition of Noblemen that it hath beene thought enough to take their promise upon Honour in that behalfe Lamb. Iustice of Peace lib. 2. cap. â— Fol. 17. E. 44. 24. E. 3. 33. subpenae Fitz 20. And as in civill causes the like rule doth the Court of Equity observe in causes of conscience for if the defendant be a Peere of the Realm in the Star-Chamber or Court of Chancery a Subpena shall not be awarded but a Letter from the Lord Chancellor or Lord Keeper in liew thereof and if he doe not appeare no attachment shall go forth against him For in the 14. Yeare of the late Queene Eliz. the Order and rule was declared in the Parliament Chamber and so to be inrolled in the Parliament that attachment is not to be awarded by Common Law custome or president against any Lord of the Parliament Dyâ—r 315. â— and if he doe appeare he may make his Answer to the Bâ—ll of complaint upon his Honour onely and is not compelable to be sworne By the Statute 5. Eliz. chap. 1. â—t is enacted that all Knights and Burgesses of the Parliament shall take their Oath for the Supremacy and so shall Cittizens and Barons of the Cinque-ports being returned of the Parliament before they enter into the Parliament House which Oath shall be according to the tenour effect and forme of the same Oath â—erbatim which is and as it is already set forth to be taken in the Statute 1. Eliz. provided alwayes that for so much as the Queenes Majestie is otherwise sufficiently assured of the faith and loyalty of the temporall Lords of her high Court of Parliament Therefore this Act nor a any thing therein contayned shall not extend to compell any temporall person of or above the degree of a Baron of this Realme to take or Pronounce the Oath abovesaid nor to incurre any Penalty limited by this Act for not taking or refusing the same If any Peere of the Realme be sued in the Common Pleas in an Action of debt or trespasse and Processe are awarded against him by Capiaâ— or by Exigent then he may sue a Certiâ—rare in the Chancery directed to the Justices of the Common Pleas testifying that he is a Peere of the Realme and the Writ is thus Rex c. Iusticiariâ—s suis de banco salutem mandamuâ— vobis quasi G. F. miles corum nobis ad sectam alicujus per Actionem personalem in placitatus existat talem processum non alium versus ipsum in actionem predicta scire faciat qualem versus Dominos magnates Comites seu Barones Regni nostri Anglium qui ad Parl. nostra de suâ—inicionem nostra venire debent aut eorum aliquem secundum legem consuetudinem regnum nostri Anglfieri faciendum quia pred G T. vnius Baronum Regnum in pred ad Parliamentum nostri de suminiâ—ionem regia venient record hoc vobis mandaâ—us alijs quorum interest inâ—atescimus teste est Fitz. H. N B fol. 247. For unlesse the Court be judicially certified by the Kings Writ out of the Chancery that the defendant is a Lord of the Parliament Jf a Capias or Exigent issue forâ— against him no errour neither is it punishable in the Sheriffes his Bayliffes or Officers if they execute the said processe and Arrest the body of the said
Noble person for it appertaineth not to them to argue or dispute the Authority of the Court but if the Court â—e thereof certified in forme aforesaid they will award a Supersedeas which is in the Booke of Enteries in the Title of Errour Sect. 20. and there are two reasons or causes wherefore no Capias or Exigent lyeth against any Peere the one because of the dignity of their persons the other by Intendment of Law there is none of the Nobility but have sufficient Freehold which the Plâ—intiffe may extend for their payment or satisfaction but a Capias oâ— Exigent lyeth against a Knight for the Law hath not that opinion of his Freehold as the Court said in 26. H. 8. vide 27. H. 8. 22. in Brookes abridgement Exigent 2. 3. Cooko 6. part 52. 54. And if any of the Nobility happen to be so wilfull as not to appeare the Court will compell the Sheriffe to returne great issues against him and so at every default to increase and multiply the issâ—es as lately against the Earle of Lincolne hath been in practice By the Ancient Lawes of this Realme before the comming of William the Conquerour many good Lawes were made for the keeping of the peace amongst others that every man above the Age of 12. yeares should bâ— swâ—rne to the King as you may read more at large iâ— Lamberts perambulation of Kent 21. which we in remembrance thereof doe keep at this day in view of Frank pledge or leete Court but Noblemen of all sorts are neither bound to attend the Leete nor to take that Oath as appeares by Britton cap. 29. treating of this Court called the Sheriffes Turne Courts of which the Leete seemes to be extracted and agreeable thereunto is the Statute of Marlbridge cap. 10. in these words de turnis vice contra provisum est quod necesse non habeant ubi venire Archiepiscopi Episcopi Abbates Priores Committes Barones vide the Lord Chancellors Speech in the case of Post-nati fol. 78. If a Writ of Error be brought in Parliament upon a Judgement given in the Kings Bench the Lords of the higher House alone without the Commons are to examine the errors vide Jbid. fol. 22. Jn 11. H. 4. 2. b. In a case concerning a distresse taken for expences and Fees of the Knights of the Parliament it is agreed for Law that the Baronies and other Lands as are parcell of their ancient Lordships and Baronies but for other Lands they are But there is a question made one which is no Barron but ignoble doe purchase any ancient Barony whether he shall be discharged of such ignoble purchase by reason onely of such his purchase challenge or pretence to have Nobility and place in Parliament as before in this treatise more at large appeareth for as Lands by Villany service doe not make a Villany or Bondman which being free doth purchase the same as Littleton doth teach lib. 2. cap. 12 though by his Tenure he shall be bound to doe such Villanie service so of the other side and that is holden by Barony doth not make the villany peasent or ignoble which purchaseth the same to be noble although the charge of such tenure doe lye upon him in respect of the service of the Realme It is said in our Bookes that a day of grace or by the favour of the Court is not to bee granted to the Plaintiffes in any Suite or Action wherein a Nobleman is defendant 27. H. 8. 22. 27. E. 3. 88. because thereby the Nobleman should be longer delayed then the Ordinaty course of the Court is and such Lord is to have expedition of Iustice in respect that he is to attend the Person of the King and the Service of the Common-wealth but if there be no ignoble person party to the Suite the Judges doe and may at their discretions grant upon a motion and prayer a day or more of tryall otherwise then by the strict course of the Law the Plaintisse may challenge Cambden fol. 169. writing upon the Subâ—ect saith where the Noble man is demandant the Tenant may not be essoyned for the delay and causes aforesaid to which â— would also subscribe but that the Booke of 3. H. 4 5 6. is otherwise adjudged if I doe misunderstand it there the King brought a Oâ—â—re Impedit against a Common person and the defendant was essoyned by the rule of the Court Therefore a fortiori he might be essoyned against a Nobleman Jf any Peere of the Realme being a Lord of the parliamant be plaintiffe or demandant defendant or Tenant in any Action reall or personall against another whereupon an issue is to be tryed by a Jury the Sheriffe must returne one Knight at the least to be of the Inquest otherwise upon a challenge made the whole Pannell shall be quashed which by the order of the Law is appoynted to be done for Honour and reverence due to the persons of that degree for as the words of the Booke are when a Peere of the Realme is party the Law is otherwise then when the Suite is betweene other persons Fitz. Chall 113. 13. E. â— in a Quar. Impedit against a Bishop adjudged Plowd 117. Dyer 208. b. 27. H 8. 22. b. But the Earle of Kent by the name of Reignald Gray Esq brought a Writ of Entry against Sir H. G. Knight 4. Eliz. and the parties did plead to an issue the venire facias was awarded which the Sheriffe did returne ferved and a Pannell returned according in which pannell there is no Knight named the truth of which Cause was that after the returne made the demandant is published and declared by the Queene and the Heraulds to be Earle of Kent in right and by discent although hee had not beene so reputed or named Earle before and also after that time that is to say at the then last parliament the Tenant is made a Baron by a Writ of parliament and both parties have places and voyces in parliament and then the Iury doe appeare in the Court of Common pleas and the Earle of Kâ—nt did challenge the array because no Knight was returned but it was not allowed him by the Court for the admittance of both parties as to the contrary and no default can bee layd to the Sheriffe for he had no notice of the honourable estates of either of the parties the demandant not being then knowne or reputed to bee an Earle by discent or of the Tenants then also being no Baâ—on Dyer 318. How much the Common Law hath alwaies prohibited perpetuities in Lands and Tenements you may see in Corbets Case in the first part of Sir Edward Cookes Booke Fol. 84. and in many other Cases in the rest of his Books also Littleton Fol. 145. saith it is a Principle in the Law that every Land of Fee-simple may be charged with a Rent in Fee-simple by one way or other but of the Kings Majesty upon the Creation of any Peere of the Realme Duke
Marquesse Earle Vicount or Baron do as the manner is by his Letters Parents give unto such new created Noblemen an Annuity or Rent for the support of his degree which they call creation Money this is so annexed unto the Dignity that by no grant assurance or any manner of Alienation it can be given from the same but is still incident and a support of the same Creation Dyer fol. 2. c. Jn all Cases wherein Suite of Law a Baron or Peere of the Realme is to be amerced other then a Duke his amercement is no â—esseâ—â—â—a 100. s. 9 E. 4. 9. 21. E. 4. 77. 38. E. 3. 31. 9. Hâ— 6. 21. but the amercement of a Duke is 10. l. 19. E. 4. 9. â— H. 6. 7. although the Statute of Magna Charta Chap. 14. be in the negative viz. Comites at Barones non â— merciantur nisi per pures suos et non nisi secundum modum delicti and yet the usage hath reduced it into a certainty also by the same Statute it appeareth that such amercements should be afferred per pures suos but for that it were troublesome to assemble Barons for so small a matter such amercements in times past hath beene afferred by the Barons of the Exchequer who sometimes were Barons of the Realme as is before in this Treatise mentioned and hereof writeth Bracton Lib. 3. Tract 2. chap. Fol. 116. viz. Comitet vero vel Barones non sunt amerciandi nisi per paces suos secundum modum delicti hoc per Barones de Scacario vel coram ipso Rege Vid. Cooke 8. part 39. sequentiae this Section is to be omitted because it is more fitly to be written hereafter If a Plaintiffe recover against a Peere of the Realme in an Action of debt or trespasse upon such a Plea pleaded by him or other default in him so that a Fine thereby doth grow to the King and thereupon a Capias per Fine issueth out against him this shall not prejudice that Nobleman so as the Plaintiffe may thereby take advantage by prayer that he shall abide in Execution for the Plaintiffe neither without his prayer not though he doe pray it by the opinion of Brian Justice 14. H. 7. 21. VVhereas by a Statute made 32. H. 8. Cap. 16. Jt is enacted that the Subjects of the Realme shall not keepe in their Families or Houses above the number of Foure Strangers borne neverthelesse by a proviso in the said Act every Lord of the Parliament hath his priviledge allowed unto him to keepe in his Family the number of six Strangers borne any thing in that Act to the contrary notwithstanding By the Statute of 24. H. 8. Cap. 13. a. A Priviledge was granted to the Nobility according to their degrees concerning their Apparell but because by a Statute made in the first Yeare of the King that now is Chap. 25. all Lawes and Statutes made concerning Apparell are taken away I leave further to speake of that matter 1. Jac. cap. 25. By the Statute of 5. R. 2. cap. 12. The King our Soveraigne Lord of his Royall Majesty defendeth the passe utterly of all manner of people aswell Clarkes as others in every Port and other Towne and place upon the Coasts of the Sea upon the paine of forfeiture of all their goods except onely the Lords and other great men of the Realme and true and Noble Merchants and the Kings Souldiers and every person then is before excepted which after publication of this Ordinance made shall passe out of the said Realme without the Kings speciall Lycence which Lycence the King willeth and commandeth that it be not from henceforth made but in one of the Ports vnder written that is to say London Sandwich Dover Southampton Plimouth Dartmouth Bristoll Yarmouth St. Buttolphe Kingstone upon Hull Newcastle upon Tine and the other parts and passages towards Ireland and the Iles pertaining to England shall forfeit towards the King as much as he hath in goods as afore is said but because this Statute is also taken away by a late Act of Parliament made in the fourth yeare of King James cap. 1. J doe not set downe this for one of the Priviledges appertaining to the Nobility at this day But Phillip Earle of Arundel Sonne of Thomas Duke of Norffolke was taken upon the Sea passing into France about the 30. yeare of the late Queene and was fined in the Star-chamber to a great summe because he did not take Shipping at one of the Ports mentioned Cromptons Courts 31. Whereas by the Statute of 2. H. 2. Parl. 2. cap. 1. Jt is ordained that the Justices of Peace in every County named of the Cuâ—rum should be resident in the Shieres wherein they are Justices there is a Proviso whereby the Lord and Peeres of the Realme named in such Commission are excepted By the Statute of 1. E. 6. cap. 12. amongst other things it is enacted that in all and every case and Cases where any of the Kings Subjects shall and may upon his Prayer have the Priviledge of his Clergie as a Clarke Convict that may make purgation in all those Cases and every of them and also in every Case and Cases of Fellony wherein the priviledge and benefit of Clergie is taken away by this Statute wilfull malice and poysoning of malice prepensed onely excepted the Lord and Lords of the Parliament and Peere and Peeres of the Realme having place and voyce in Parliament shall by vertue of this Act of Common grace upon his and their Requests and Prayer alleadging that he is a Lord or Peere of the Realme claiming the benefit of this Act though hee cannot reade without burning of the Hand losse of Inheritance or corruption of his blood bee adjudged deemed taken and used for the first time onely to all Jnstructions intents and purposes as a Clarke Convict which may make purgation without any further or other benefit of the Clergy to any such Lord or Peere from thenceforth at any time after for any cause to bee allowed adjudged or admitred any Law Custome Statute or any thing to the contrary notwithstanding By this Statute a Lord of the Parliament shall have the priviledge of his Clergy where a common person shall not viz. for the breaking of a house by day or night for robbing of any in the high way and in all other cases excepted in the Statute of 1. E. 6. 12. saving in wilfull murder and poysoning But in all other cases wherein Clergy is taken away by any Statute made since the said Statute of 1. E. 6. he is in the same Degree that a common and inferior person is but the Court will not give him the benefit of this Statute if he doe not require it Jf the Lord of the Parliament doth confesse his offence upon his Arraignment or doth abjure or is ourlâ—wed for Fellony it seemes that in those cases he may have the benefit of this Statute viz. his Clergy for that by the Statute of 18.
and for that by the lawes of this land if actuall deeds were not there was no remedy for such false compassing imaginations and confederacies had against any Lord or any of the Kings Councell or any of the Kings great Officers in his houshold as Steward Treasurer Controller and so great inconveniences did ensue because such ungodly demeanours were not straightly punished before that an actuall deed was done For remedy whereof it was by the same statute ordained that the Steward Treasurer or Controller of the Kings house for the time being shall have full authority and power to enquire by twelve sad men and discreet persons of the Check-roll of the Kings honourable houshold if any servant admitted to be his servant sworne and his name put into the Check-roll of the houshold whatsoever he be serving in any manner office or roome reputed had and taken under the estate of a Lord make any confederacies compassings conspiracies imaginations with any person or persons to destroy or murder the King or any Lord of this Realme or any other person sworne to the King Councell Steward Treasurer or Controller of the Kings house that if it be found before the said Steward for the time being by the said twelve men that any such of the Kings servants as is aforesaid hath confederated compassed conspired or imagined as abovesaid that he so found by the enquiry be put thereupon to answer and the Steward Treasurer or Controller or two of them have power to determine the same matter according to the law and if hee be put in tryall that then he be tryed by other twelve sad men and discreet men of the same houshold and that such misdoers have no challenge but for malice and if such misdoers be found guilty by confession or otherwise that the said offence be adjudged felony and they to have judgment and execution as felons attainted ought to have by the Common law In the statute made in the second yeare of H. 5. cap. 10. authority is given to the Sheriffe and other the Kings Justices for the better suppressing of Riots and Routs c. to raise Posse Comitatus the power of the County and the same liberty doth the Common law give in many other cases Neverthelesse may not the Sheriffe upon such authority command the person of any Nobleman to attend that service but if the Sheriffe upon a Supplicavit against any Nobleman in that case doe returne that he is so puissant that he cannot or dare not arrest him the Sheriffe shall be grievously amerced for such his returne For by the writ under the Great Seale of the King commandement is to all Archbishops Bishopsi Dukes Earles Vicounts and Barons and to all liege men of the County to be ayding unto him in that which to his office appertaineth And therefore by intendment no person whatsoever can resist the execution of the said writ of the King Also the Sheriffe may by his discretion levie three hundred men if need be to aid him in that behalfe Cromptons Justice 134. 3. H. 7. 1. Cookes 5. part 71. b. The words of the great Charter of the Forrest in the eleventh Chapter are as followeth Every Archbishop Bishop Earle or Baron comming to us at our commandement and passing by our Forrest it shall be lawfull for him to take one beast or two by the view of the Forrester if he be present or else he shall cause one to blow a Horne for him that he seeme not to steale our Deere This statute doth speake but of Archbishops Bishops Earles and Barons yet if a Duke Marquesse or Viscount which be Lords of Parliament be comming towards the King by his commandement they also shall have the benefit of this article So if the King send to any of the Lords aforesaid to come to his Parliament or send to him by writ of Subpoena to appeare in the Chancery before his Councell or send for him by his missive or by Messenger or Serjeant at Armes in all these cases he shall have the benefit of this statute because they came at the Kings commandement The same Law is if a Scire facias goe out of the Chancery or Kings Bench to a Lord of the Parliament but if such processe goe forth for a Lord to appeare before the Justices of the Common Pleas or before the Barons of the Exchequer and he commeth upon that he shall not have the benefit of the statute for he doth not come unto the King and the words be veniens ad nos and all the processe which are made out of the Chancery and Kings Bench are quòd sit coram nobis and so are the Processe out of the Star-chamber Also Lords which come to visite the new King after the death of his Father though not sent for shall have the priviledge and so note this statute is a warrant dormant to such Lords which is also to be understood as well of their returning homewards as of their comming towards the King Manwood Forrest Lawes cap. 181. Cromp Courts 167. b. Note this statute doth give licence to kill or hunt in the Kings Parks though the letter of the statute be transientes per forrestam nostram Passing by our Forrest Cromptons Court 168. Note in certain cases the Law doth give priviledge to the Sons or Brethren of Noblemen though themselves be not of that degree Vide 21. H. 8. cap. 13. 7. E. 6. cap. 5. CERTAINE CASES WHEREIN A LORD of the Parliament hath no PRIVILEDGE THe King may by his absolute power commit a Nobleman to prison durante beneplacito suo from whence he cannot be discharged by bail or mainprise or by the common writ de homine replegiando And by the same power it is if a Noble person bee committed to prison by the Kings Councell for they are incorporate to his Highnesse and do command as with the Kings mouth And the same law is if a Noble be committed to prison by the absolute commandement of the Kings Judges sitting in their places of Judicature Stamf. lib. 2. cap. 18. fol. 72. 1. as you have before when the Prince himself was committed by the chiefe Justice sitting in the Kings Bench and hee was not baileable Also if a Capias and an Exigent may bee awarded by the Iustices out of their ordinary Jurisdiction against such persons upon an Inditement for Felony or Treason as common experience sheweth The statutes of Praemunire are 27. E. 3. cap. 1. 16. R. 2. cap. 5. upon which statutes an Abbot which was a Lord of the Parliament was impleaded and he did pray priviledge to appeare by an Atturney and by the rule of the Court he could not because the statute is generall and against it but by speciall writ out of the Chancery he might And so in case where he doth pray to be received For if a Lord of the Parliament holding lands of another in Fee simple doth forbeare or with-hold to doe and pay his services due to his
of one and twenty yeares he shall be in ward but if the King had made him Knight in the life of his Father he should not have beene in ward after the death of his Father neither for the lands descended or for his marriage though he be within age Cooks 6. part 74. in Druries case Nobility and Lords in reputation onely THere are other Lords in reputation and appellation who neverthelesse are not de jure neither can they enjoy the priviledge of those of the Nobility that are Lords of the Parliament The sonne and heire of a Duke during his fathers life is onely by curtesie of speech and honour called an Earle and the eldest sonne of an Earle a Baron but not so in legall proceedings or in the Kings Courts of Iustice Brook Treason 2. But the King may at his pleasure create them in the life of their Ancestors into any degree of Lords of the Parliament Cook 8. part 16. b. A Duke or other of the Nobilitie of a forraigne Nation doth come into this Realme by the Kings safe conduct in which the Kings said Letters of Conduct he is named Duke according to his Creation yet that appellation maketh him not a Duke c. to sue or to be sued by that name within England but is onely so reputed But if the King of Denmark or other Soveraigne King come into England under safe conduct he during his aboad in England ought to bee stiled by the name of King though hee have not merum imperium out of his owne Kingdome yet he shall retaine honoris titulos Cook 7. part 15. b. sequentia All the younger sonnes of the Kings of England are of the Nobility of England and Earles by their birth without any other Creation and onely Lords in reputation And if an English man be created Earle of the Empire or of other title of honour by the Emperour he shall not beare the title in England and therefore is an Earle onely in reputation A Lord of Ireland and Scotland though he be a Postnatus is not a Lord in England in legall Courts of Iustice though he be commonly called and reputed a Lord. NOBLE VVOMEN ALthough Noble women may not sit in Parliament in respect of their sexe yet they are in the law Peeres of the Realm and all or most of the Prerogatives before mentioned which to Noblemen are belonging doe also appertaine to them Cook 8. part 53. But the opinion of some men hath been that a Countesse Baronesse or other woman of great estate cannot maintaine an action upon the statute de scandalis Magnatum because the statute of 2. R. 2. cap. 5. speaketh but of Prelates Dukes Earles Barons or other Nobles and other great men of the Realme and of the Chancellour Treasurer Clarke of the Privie Seale Steward of the Kings house Iustice of the one Bench or of the other great officers of the Realm by which words they conceive the meaning of the makers of that statute was onely to provide in that case for Lords and not for women of honour Crompton Justice of Peace 45. b. Also if any of the Kings servants within his Check-roll doe conspire the death of any Noble man it is not felony within the compasse of the statute 3. H. 7. cap. 13. Honourable women are of three sorts By creation by Descent or by Marriage King Henry the eighth created Anne Bullen Marchionesse of Pembrook and so may the King create any woman into any title of honour as to his Highnesse shall seem good As the King by by his Letters Patents openly read in the Parliament did create Widow the sole daughter of late Baron of Abergavenny Baronesse De le Spencer Cambden 63. 6. Noble women by descent are those to whom either the lands holden by such dignity do descend as heir and they are said to be honourable by tenure or those whose Ancestors to whom they are heires were seised of an estate descendable unto them in their titles of Dukedomes Earldomes or Baronies or those whose Ancestors were summoned to the Kings Parliament for thereby also an inheritance doth accrue to their posterities Noble women also are those who do take to their husbands any Lord or Peere of the Realme although they of themselves were not of any degree of Nobility Fortescue de laudibus legum Angliae fol. 100. Question and doubt hath been made whether if a man be summoned to the Parliament and afterwards die without issue male the dignity and title of honour may descend to the heire female and many arguments have beene made pro contra in that which at this time â— doe purposely omit because I have before discoursed thereof in the title of Barons in this Treatise Concerning the title of honour descendable to the heire female by reason of a tenure in her Ancestor there need no more doubt to be made than of offices of honour the which doe much import the publike wealth and being of estate of inheritance doe descend to the heire female if there be no heire male as the office of high-Constableship of England challenged in the time of H. 8. by the Duke of Buckingham and judged by the advice and resolution of the Judges as by a note of that case extant whereof my Lord Dyer in his Reports hath a memoriall is most evident Dyer 283. b. Kellaway 6. H. 8. 170. b. which descended to the daughters of Humphrey de Bohun Earle of Hereford and Essex as afore is declared the office of a Lord Steward descended to Blanch daughter of Henry Earle of Lancaster in whose right John of Gaunt her husband enjoyed the same The like may be said of the office of Earle Marshall which descended by an heire female unto the house of Norfolk all which offices are as unfit to be exercised by a woman as it is unfit for a woman to be summoned to the Parliament as Baronesse by writ as before is written And when the title of honour doth descend to a woman if question in Law doe arise betweene the noble woman and any other person whether she be of that degree of noblenesse or no the issue shall be tried by the Record thereof and by the Kings writ it shall be certified and not by a Jury of twelve men even as it should be in case her Ancestors had beene party Cooks 6. part 53. 7. part 15. Although the Lawes of this Realme regularly doe make all the daughters where there are no sonnes equally to inherit Lands and Tenements and to be but one heire to their Ancestor yet it is not so in the descent of dignities and titles of honour for inheritances concerning matters of honour being things in their nature entire paticipating of superiority and eminency are not partable amongst many and therefore must of necessity descend unto one and that is to the eldest daughter sister aunt or cosin female inheritable where there is no heires males that may lawfully challenge the same and so in
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
for the same Reason in the Queene being his wife Plouden 23. 1. a. Coâ—kes 8. Repl. 28. A man seised of divers Lands in Fee holden by Knights service some by Prioritie that is by ancient Feofment holden of others and some other parts holden by the same tenure of the King by posteritie the King granteth his Seigniory to the Queene and afterwards the Tenant dyeth the sonne within age in this case the King shall have the Wardship of the Body and have the Prerogative even as the King himselfe should have had 3. E. 3 4. vide etiam Stamford Prerog Reg. cap. 2. The Queene wife unto the King or widdow shall not be amerced if she be non-suited in any Action or otherwise in which cases any other subject of what degree soever shall be amerced for in this case the Queen shall participate the Kings Prerogative Cookes 6. Report 62. But the Queene shall not in all cases have the same Prerogatives that the King shall have in the same case as for Example Petition is all the remedy the Subject hath when the King seizeth his Lands or taketh away his Goods from him having no title by order of Law so to doe contrary to the opinion of some ancient Bookes as you may see Stamfords Prerog cap. 19. But in such suit shall be made to the Queene but actions against other Leiges of the King according as the case shall require for by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason he shall be Defendant or Tenant without pertaking such Prerogatives as doe appertaine to the King 11. H. 4. 64. B. Stamford Prerog cap. 22. in fine Against the King by his Prerogative Nullum tempus occurit Regi but time shall runne against the Queen H. 18. E. 3. 2. a. and aplenarty by sixe mouthes is a good plea in a Quare Imp. brought by Philippa Regina Angliae ibid. fol. 1. et 13. b. Stamford Prerog cap. 18. prope finem In 21. E. 3. 13. b. It is thus to be read note that a protection was sued forth against the Queen in a Writ which she brought and it was allowed though shee be a person exempt Neverthelesse by this short case following may bee observed that the Justices doe not easily suffer any proceedings in Law against the Queene wife or widdow but will hold with their Inmities as much as they may by Law A Writ of dower was brought against Isabel Queene of England mother of the King that then was and the Couâ—t said to the Plaintiffe the Queene is a person of dignitie and excellencie and we are of opinion that she shall not answer to the Writ but it behooveth you to sue to her by Petition and thereupon the Demandant dixit grat and shee prayed the Court to grant a continuance of her Action untill another day so that in the meane time she might sue to speake with the Queen but the Court would not agree to make a Continuanâ—e but said that upon her request they might give day precepart and so it was done for the Queenes Couneell would not agree to a continuance for thereby the Queene should bee accepted as answerable 10. E. 3. 379. The wife of the Kings eldest sonne also hath some Prerogative in regard of the excellencie of her Husband which the wives of other Noblemen have not for by the Statute of 25. E. 3. it is high Treason to violate the wife of the Kings eldest sonne and heire Dutchesses also and Countesses have speciall Honour appertaining to their Estates as kneeling and tasting and such like which things as appertaining more properly to the Heraulds then to this legall discourse I leave unto them By the Statute made 7. Iac. cap. 6. intituled An Act for the Administring the oath of Allegiance and Reformation of Women recusants if any person or persons of or above the age of 18. yeeres and degrees aforesaid must and hereafter shal stand and be presented indicted or convicted for not comming to Church or not receiving the holy Communion or Sacraments of the Lords Supper according to the Lawes and Statutes of this Realme before the Ordinary or other having lawfull power to take such presentment or indictment then 3. of the Privie Counsell of the King his Highnesse his Heires or Successours and no other whereof the Lord Treasurer the Lord Chancellour Lord Privie Seale or principall Secretary to be one upon knowledge shall require such person or persons to take the said Oath but it shall be lawfull to and for every Bishop within his Diocesse to require any Baron or Barons of the age of 18. or above to take the said Oath Also in cases of indictment of Felony or Treason a Baronesse shall have the same tryall by Peeres as doth appeare by the Statute of 20. H. 6. cap. 9. which any other Noble woman of higher degree shall have which priviledge is denyed to all of a lower degree then a Baronesse Ladies in Reputation The wife and widdow and widdow of the sonne and heire of a Duke or Earle in the life of his Father is a Lady by courtesie of speech and honour and taketh place according as in ancient time hath been permitted by the Soveraign Prince and allowance of the Herauld but in legall proceedings they are not to have priviledges nor to be named according to such sirnames of dignity but the King may at his pleasure create such men in the life time of their Ancestors into degrees of Lords of his Parliament and then the Law is otherwise If a Noblewoman of Spaine come into the Realme by safe conduct or otherwise by the King shee be stiled by such her forraign stile of dignity yet in the Kings Courts of Justice she shall not be named by such title though by common speech she be a Lady in reputation An English woman borne doth take to her Husband a Spanish or French Duke though he be made a Denizen yet he shall not beare his title of dignity in legall proceedings A German woman is married to the Earl of Northam or to other the Nobility of England unlesse she be made a Denizen she cannot lawfully claim the priviledges or title of her husband no more then she can to have dower or any jointure from him An English Woman doth take to Husband the Earle of Kildare in Ireland or if a Lord of Scotland though he be a post natus take an English woman to his wife their wives shall not participate their husbands Titles of Dignitie But if the King do create one of his Subjects of Scotland naturalized here by Act of Parliament to be Viscount Rochester within England and after by his Writ of Summons under his Great Seale doe call him to his uper House of his Parliaments and assigne him a place there in his great Councell amongst the Lords and Peeres of
the Realme hee is now also a Peere of this Realme and shall be partaker with them in all Priviledges and by consequence his wife widdow and children after him 32. E. 3. 35. in le case de Gilbert Humfrevill But if an Englishman by the Emperour be made Earle of the Empire his wife shall not beare that title of Honour either according to Law or in Reputation All the Daughters of Dukes Marquesses and Earles are by custome of long time used in the Kings Houses or palace named Ladies and have precedencie and place according to the degrees of their parents and so of this custome the Law doth take notice and give allowance for the honour and decencie but neverthelesse in the the Kings Courts of Justice they beare not these titles of Honour no more then the sonnes of such Noble person may doe brothers to such Ladies Finis Nob. litatis A TREATISE OF KNIGHTS AND Matters incident to the Degree of Knighthood according to the Lawes of England THE particular kinde of services by which lands of Inheritance are distinguished be two viz. Knight service and socage vide Littletons Soccage c. 26. In ncient time Tenure by Knights service was called Regale Servitium Cooke in his Preface to his 3. Book fol. 3 a. because it was done to and for the King and the Realme and formi secum servitium as appeareth in Anno 19. Edw. 2. Title Avowry 224. 26. ass p. 66. 17. H. 4. 19. Cookes 7. part 8. a. Calvins case because they which doe hold by soccage ought to doe and performe their services out of the Realme Littleton 35. Et ideo formi secum dicipoterit quia sita capitur foris Hum. Servitiam persolvuntur ratione tenementarum non personarum Bracton fol. 36. And as Knights service land requireth the service of the tenement in warfare and battell abroad so Soccage tenure commandeth his-attendance at the plough the one by manhood defending the King or his Lords life and person the other by industry maintaining with rents corne and victuals his estate and family See Lambert Customes of Kent fol. 389. For they did thus order their owne lands and tenements one part they kept and detained in their owne hands and in them stately houses and Castles were erected and made for their habitation and defence of their persons and the Realme also Forrests and Parkes were made there for their pleasures Solace and Delight One other part hereof was given to the Nobles and others of their Chivalty reserving tenure by Knights service The third part was bestowed upon men of meaner condition and quallity with reservation of soccage tenure and in this manner the Dukes and other the Nobles with their menialls and followers dissipate to a great part of their lands viz. to their Gentlemen of quality to hold by Knights service and to others of meaner condition by Soccage tenure Gervasius Tilburiensis a learned man who flourished in the dayes of King Hen. 2. in his Dialogue of the observation of the Kings Exchequer hath in effect as followeth Untill the time saith he of King Hen. 1. the King used not to receive money of their lands but victuals for the provision of their house and towards the payment of their Souldiers wages and such like charges Mony was raised out of the Cities and Castles in which Husbandry and Tillage was not used and exercised But at length when the King being in the parts beyond the Seas needed ready money for and towards the Furniture of the warres and his Subjects and Farmers complained that they were grievously troubled by carriage of Victuals into sundry parts of the Realme farre distant from their dwelling houses the King directed Commissions ro certaine discreet persons who having a regard of those Victuals should reduce them into reasonable summes of Money the leavying of which summes they appointed to the Sheriffe taking order withall that he should pay them at the scale or beame that is to say That hee should pay sixe pence over and above every pound weight of money because that they thought that the money in time would waxe so much the worse for the wearing Cambdens Perambulation of Kent fol. 172 173. Vide Littleton libro 2. fol. 26. Note also Gervasius Tilburiensis who lived Anno 11 60. Anno 6. Hen. 2. And Cambden fol. 178. It was anciently ordained that all Knights Fees should come unto the eldest Sonne by succession of Heretage whereby hee succeeding his Ancestours in his whole Inheritance might bee the better enabled to maintaine the warres against the Kings Enemies or his Lords And that the Soccage Fee should be partable betweene the Male Children to enable them to encrease into many Families for the better furtherance in and increase of Husbandry See Cookes Preface to the Reader in his Ninth Booke Fol. 2. 6. But as nothing is more unconstant then the estate we have in Land and livings if at least I may call that an estate which never standeth even so long since These tenures have been so indifferently mixed and confounded in the hands of each sort that there is not now any note of difference to be gathered by them See Lamberts perambulation of Kent fol. 10. Et quia tale servitium formi secum non semper manet sub eadem quantitate sed quandoque praefat ad plus quandoque ad mâ—nus Ideo qualitate Regalis Sencitii quantitate fiat mentio in charta ut tenens vectu tenere possit quid quantum persolvere tentatur Bracton fol. 36. And therefore the certainty of the law in this case is That he that holdeth by a whole and entire Knights fee must serve the King or other Lord fortie dayes in the warres well and sufficiently arrayed and furnished at all points and by twenty dayes if he hold but the moitie of a Knights fee and so proportionably vide Littleton fol. 20. Aâ—no 7. E. 3. 1333. fol. 246. It was demurred in Judgement whether the 40. dayes should be accounted from the first day of the muster of the Kings Hoast or from the day that the King doth first enter into Scotland but it seemeth that the dayes shall be accounted from the first day that the King doth enter into Scotland because the Service is to bee done out of the Realme And they who hold per regale servitium are not to performe that service unlesse the King doe also go himselfe into the warres in proper person and that by the opinion of Sir William Hall Chiese Justice of the Court of â—ommon Pieas Term. Trin. Anno. 7. Ed. 3. fol. 246. but see Anno 3. H. 6. Titulo protec 2. In which case it was observed that seeing the protector who was pro Rex went the same was adjudged a Voyage Royall vide Cook 7 part of his reports and in Fitz-â—erbert Natura brevia 28. fol. 83. Also when before the statute De quia emptores terrarum made Anno 18. Ed. 4. the King or other Lord had given
Lands to a Knight to hold of him by service in Chivalry to go with the King or with his Lord when the King doth make a Voyage Royall to subdue his Enemies by 40 days well and conveniently arrayed for the Wars In this case the Law hath such regard to the dignity of Knighthood that he â—ay find an able person to go in that expedition for him and the Knight is not compellable by his tenure to go in person as do ordinary souldiers who are hired and entertained by prest money or wages Anno 7. Ed. 3. 296. 600. 8. part fol. 49. b. And see Littleton fol. 20. another reason in this case There have bin many vaâ—rying opinions of Countries of a Knights Fee as you may read in 5. Ed. Cooke 9. part of his Reports fol. 124. where he seemeth to prove that antiquity hath thought that 20. l. in land was sufficient to maintain the degree of a Knight as it appeareth in the ancient Treatise De modo tenendi Parliamentum tempore Regis Edw. filii Regis Etheldred Which also doth concur with that Act of Parliament made Anno 1. Ed. 2. de militibus by which Act of Parliament Census militis The state of the Knight is measured by 20. l. land a year and not by any certain content of acres and with this doth agree the state of Westmin ca. 36 and Fitz-natum Brev. 82. where 20. l. land in socage is put in Equipage with a Knights Fee and this is the most reasonable estimation for one acre may be lesse in value then many others vid. An. 27. E. 3. c. 11. the printed books of the titles of honor 319. M. Selden nata And it is to be observed that the relief of a Knight of all Superiours that are noble is the 4. part of their revenue by the yeer as of a Kt. 5. l. which is the 4. part of 20. l. sic de cet And this doth appear by the statute of Mag. charta ca. 8 as in Cooks 9. report f. 124. b. And because this tenure doth concern service in war the Tenants therfore are named milites a militia For though the word do properly signifie a souldier yet antiquity hath appropriated that name to the chiefest of the military profession vid. Bract. f. 35. b. In our law they are stiled Miles and never Equites yet so that Miles is taken for the selfsame that Chevalier by M. Selden in his Titles of Honour 1. Impression f. 334. Bracton f. â—9 maketh mention of Râ—d-knights that is to say serving horsemen who held their lands with condition that they should serve their Lords on horseback and so by the cutting of a piece of a name as our delight is to speak short this name of Knight remaineth with us Cambden fol. 171. for Armiger scilicet Esquire which is a degree under a Knight was in the Militarie Service Note that he that holdeth by a whole Knights Fee must bâ— with the King by 40. days well and conveniently arrayed for the war Littleton fol. 20. which is to be understood to serve on horseback And in all Nations the name of this dignity is taken of Horses for the Italians calleth them Caveleiri the French-men Chivalers the Germans Roysters our Britains in Wales Morgogh All of Ryding in Latin we call them equites aurati for at their creations beside the sword and girdle guilt spurs were added for a matter of more ornament See the statute of Anno 8. H. 5 C. 3. M. Selden f. 317. and when a Knight doth commit any offence for which he is by the Law to suffer death The use hath bin in the beginning of this punishment to degrade and deprive him publikely of his Honour of Knighthood For it is but life lost or taken away Vide Mills fol. 81. by ungirding his Military girdle by taking away his sword his guilt Spurs cut off with a Hatchet his Gauntlets pluckt off from him and the schochean of his Arms reversed 4. E. 4. 20 Cambden 171 b. and of the degradation of a Knight which was Andrem Horkley under E. 2. who was a Scot born by that King created Earl of Carleile vide Selden his Titles of Honour fol. 337. And by the statute made Anno 24. H. 8. cap. 13. intituled An Act of Reformation of apparell It was permitted for Knights to wear in a Collar of Gold named a Collar of 55. Esses And although this dignity of Knighthood had its originall and was given to men of war yet in all successions of Ages and in all Nations the same also is bestowed on men of peace by Sovereign Kings that in severall Functions and places in the Common-weal be of singular desert wherby the service of the Common-weale at home is levelled and made equall with that abroad for as Tully said truly Parva sunt focis Arma risi est Consilium domi He that receiveth the Dignity of a Knight kneeleth down and the King slightly smiteth him upon the shoulder speaking these words unto him therwithall in French So is Chevalier a nome de dieu that is to say Be thou a Knight in the name of God and then afterwards therupon the King saith Avances Chevalier that is arise Sir Knight vide Hooker al. Vocrell his C. 10. fol. also Selden f. 37. who there speaketh of our Earl Marshal of England for making of Knights for a Knight is not made by Letters pattents or by the Kings Writs as are those of greater dignity but by the sword For this Honour is supposed to be given on the sudain and therfore it is commonly done only by the sword without any pattent but the King may by his Letters Pattenâ—s create a Knight Earls in ancient time had power in Knighthood M. Selden title Honors fol. 136. But now neither may the Prince nor any other of the Nobility make a Knight but only the King or his Lieutenant by Commission hereof vide Cook 6. part Dyer reports f. 74. b. No man is born a Knight Selden f. 3. 18 as he may be to titles of Honour Causa patet But a Knight may be made so soon as he is baptized as in that book is mentioned excepts Knights Barronets whose posterity doth receive that title by discent with some limitation as in the Kings Books therof may appear Note also in the said Titles of Honour fol. 318. and 313. the first Knight made in England With us in England there are divers sorts of Knights wherof Camden fol. 171. and Mills do write at large but my purpose is only to speak of one order of them amongst the Romanes there was but one Order of them And these were next in degree to the Senators themselves as with us they are to the Barons and they who simply without any addition be called Knights howsoever they are in Order ranked last yet by institution they be first and of greatest antiquity and the other attributes according to the severall inventions of particular Princes And I do not
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
Labourer Long 5. E. 4 33. 14. H. 6. fol. 15 a. Dyer If a Gentleman bee bound an aprentice to a Merchant or else c. he hath not thereby lost his degree of Gentry Estopell 47. But if a Recovery be had against a Gentleman by the name of yeoman in which case no addition is necessary then it is no errour Brooke Cron 83. addition 58. So if any deed or obligation be made unto him by the name of yeoman If a Capias goe against A. B. yeoman and if the Sheriffe take A. B. Gentleman an action of false imprisonment lyeth against the Sheriffe vide An. 21. E. 4. fol. 71. b. But if a yeoman be indicted and A. B. Gentleman being the same man bee produced it is good Kelway 58. b. Gentlewomen have the same additions vide Dyer 88. IF one be a Gentleman by office and looseth his office then he doth also lose his gentility 28. H. 6. 2. Estopel 47. By the Statute of 5. Eliz. cap. 4. intituled an act touching divers orders for Artificers Labourers Servants of husbandry and apprentices amongst other things It is enacted that a Gentleman borne c. shall not be compelled to serve in husbandry If any Faulcon be lost and is found it shall be brought to the Sheriffe who must make Proclamation and if the owner come not within foure moneths then if the Finder bee a simple man the Sheriffe may keepe the Hawke making agreement with him that tooke it but if hee be a Gentleman and of estate to have and keepe a Faulcon then the Sheriffe ought to deliver unto him the Faulcon taking of him reasonable costs for the time that hee had him in custody An. 34. E. 3. cap. 22. and anno 37. E. 3. cap. 19. A Commission is made to keepe chrildren into Cathedrall Churches where children be instructed to sing for the furnishing of the Kings Chappell These generall words by construction of Law have a reasonable intendment viz. That such children who be brought up and taught to sing to seeke and sustaine their living by it Those may bee taken for the Kings service and it shall be a good preferment unto them to serve the King in his Chappell but the sonnes of Gentlemen or any other that are taught to sing for their ornament delight or recreation and not thereby to seeke their living may not bee taken against their will or the consent of their Parents and friends and so it was resolved by the two chiefe Iustices and all the Court of Star-chamber anno 43. Eliz. in the case of one Evans who had by colour of such Letters Patents taken the sonne of one Clifton a Gentleman of quality in Norfolke who was taught to sing for his recreation which Evans was for the same offence grievously punished Cook 8. Reports fol. 46. And to the end it may withall appeare what degrees of Nobility and Gentry there were in this Realme before the comming in of the Normans and by what merits men might ascend and bee promoted to the same I will shew you the copie of an English or Saxon antiquity which you may reade in Lamberts Perambulation of Kent fol. 3 64. and Englished thus viz. It was sometimes in the English Lawes that the people and lawes were in reputation then were the wisest of the people worship-worthy in his degree Earle and Chorle Theyâ—â—e and under Theyne and if a Chorle so thrived that had fully five hides of land of his owne a Church and a Kitchin a Bel-house and a Gate a seat a severall office in the Kings Hall then was hee from thenceforth the Theines right worthy and if a Theyne so thrived that hee served the King on his message on his journey-ward in his houshold if he then had a Theyne which him followed who to the Kings experience had five hides and in the Kings Pallace his Lord had served and thrice with his errand had gone to the King hee might afterwards with his foreoath his Lords part play at need and if a Theyne that hee became an Earle then was hee from henceforth the Theynes right worthy and if a Scholler so thrived through learning that he had degree and served Christ he was thenceforth of dignity and peace so much worthy as thereunto belonged unlesse hee forfeited so that he the use of his degree ne might Mils 73. Nobility Politicall and Civill It is observeable that the Saxons out of all these trades of life which be conversant in gaine admitted to the state of Gentry such onely as increased by honest husbandry or plentifull merchandize of the first of which Cicero affirmeth that there is nothing meeter for a Free borne man and of the other that is prayse-worthy also if at the length being satisfied with gaine as it hath often come from the sea to the haven so it changeth from the havens into lands and possessions and therefore whereas Gervasius Tilburiensis in his observations of the Exchequer accounting it an abasing for a Gentleman to occupy Publicum mercimonium common buying and selling it ought to bee referred to the other two parts of merchandize that is to negotiation which is retayling or keeping of an open shop and to invention which is exercise mercery or some call it to play the Chapman and not to navigation which as you see is the onely laudable part of all buying and selling And againe whereas by the Statute of Magna charta cap 6. and Merton cap. 7. It was a discouragement for a ward in Chivalry which in old time was as much as to say a Gentleman to bee married to the Daughter of a Burgesse I thinke it ought to bee restrained to such onely as professed handy crafts or those baser arts of buying and selling to get their living by But this matter I leave to the Heraulds And in this place it may bee remembred that King Hen. 8. thought it no disparegement unto him when hee tooke Anne Daughter of Thomas Bullen sometimes Major of London to his wife The Statute of Westminster 2. cap. 1. which was made Anno 13. E. 1. was procured especially and purposely at the desire of Gentlemen for the preservation of their lands and hereditaments together with their surnames and faculties and therefore one called this Statute Gentiliteum municipale and the Lawyers call it Ius taliatum taliabile The children onely of Gentlemen were wont to bee admitted into the Innes of Court and thereby it came to passe that there was scant any man found within the Realme skilfull and cunning in the Lawes except hee were a Gentleman borne and came of a good house For they more then any kind of men have a speciall care to their Nobility and to the preservation of their honour and fame for in those Innes of Court are vertue studied and vices exiled for that for the endowment of vertue and abandoning of vice Knights and Barons with other States and Noblemen of the Realme place their Children in these Innes though they desire
not to have them learned in the Lawes nor to live by the practice thereof but onely upon their Fathers allowance vide Fortescue de landibus Anglorum cap. 49. But the Statute of An. 3 Iac. cap. 4. amongst other things it is enacted that if any Gentleman or Person of high degree shall hereafter goe or passe voluntarily out of this Realme to serve any forraine Prince State or Potentate before that hee or they shall become bounden with two sureties as shall bee allowed of the Officers by that act limited to take the said bond unto the King his Heires and Successours in the summe of twenty pounds of currant English money at the least with condition to the effect following hee shall bee a felon viz. That if the within Bounden c. shall not at any time then after bee reconciled to the Pope or Sea of Rome nor shall enter into or consent unto any practise plot or conspiracy whatsoever against the Kings Majesty his Heires and Successours or any of his or their estate or estates Realmes and Dominions but shall within convenient time after knowledge thereof had revealed and disclosed to the Kings Majesty his Heires and Successours or some of the Lords of his or their Privy Counsell all such practises plots and conspiracies and that then the said obligation to bee void c. Of Yeomen THe Yeomanry or Common people for they bee called of the Saxon word Zemen which doth signifie Common who have some lands of their owne to live upon for a carve of land or Plow land was in antient times of the yearely value of five Nobles and this was the living of a sober man or Yeoman Cookes 9. part fol. 124. b. But in our Lawes they are called Legales homâ—nes a word very familiar in writs and inquests and by divers Statutes it hath beene enacted that none should passe in any inquest unlesse they had fourty shillings freehold in yearely revenues which maketh if the most value were taken to the proportion of moneyes above six pounds of our currant money at this present Sir Thomas Smith fol 30. and by the Statute of 27. Eliz. cap. 6. Iurours must have 4. l. in lands In the end of the Statute 23. H. 6. cap. 15. concerning the election of Knights for the Parliament it is expressely provided that no man shall bee such Knight which standeth in the degree of a Yeoman It appeareth in Lamberts perambulation of Kent that this Saxon word Telphinorman was given to the Theine or Gentleman because his life was valued at twelve hundred shillings and in those dayes the lives of all sorts of men were rated at certaine summes of money Telphinorman to the Chorle or Yeoman because the price of his head was taxed at two hundred shillings which thing if it were expressely set forth in sundry old Lawes yet extant might well enough bee found in the Etimologie of the words themselves the one called a Twelve hund as if it were a twelfe hundred And in this estate they please themselves and joy exceedingly insomuch as a man may find sundry Yeomen although otherwise comparable for wealth with many of the Gentle sort that will not yet for that change their condition nor desire to bee apparelled with the title of Gentry Lamberts estaâ—e of Kent names the Yeomanry of Kent when a Yeoman of 1000. l. yearely revenues and refâ—sed any other superiour title but these are now no more heard of c. By the Common Law as may appeare in An. 1. E. 2. De militibus in An. 7. H. 6. 15. men that had lands of the yearely value of 28. l. were compâ—llable at the Kings pleasure to take upon them the order of Knight-hood and upon summons there came a Yeoman who might dispend 100. markes per annum and the Court was in doubt how they might put him of and at last hee was wayved in because hee did come the second day An. 7. H. 6. fol. 15. a. By this sort of men the triall of causes in the Countrey proceedeth ordinarily for of them there are greater number in England then in any other place and they also of a more plentifull livelyhood and therefore it cometh that men of this Countrey are more apt and fit to discerne in doubtfull causes of great examinations and trials then are men wholly given to moyling in the ground to whom the ruralâ— exercise engendreth rudenesse of wit and mind and many Franklins and Yeomen there are so neere adjoyning as you may make a Iury with little difficulty For there bee many of them which bee able to spend 100. l. a yeare vide Fortescue de landibus Anglorum c. As in ancient time the Senatours of Rome never elected a Censor and as with us in conserving of Nobility respect is had unto the Revenues by which their dignity and Nobility may bee supported and maintained Cookes 7. part 33. b. so the wisedome of this Realme hath of ancient provided that none shall passe upon Iuries for the trials of any matters reall or personall or upon any criminall cause but such as besides their moveables have lands of estate for life at the least to a competent value least for need and poverty such Iurours might easily bee corrupted and suborned Fortescue 56. b. And in all cases and causes the Law hath conceived a better opinion of those that have lands and tenements or otherwise are of worth in moveable goods presuming that such will commit or omit nothing that any way may bee prejudiciall to their estimations or which may endanger their estates then hath Labourers Artificers Retaylers or such like of whom Tully saith Nihil proficiunt in se admâ—dum mentiuntur and by divers Statutes certaine immunities are given to men of quality which are deemed to the vulgar sort of people read hereof amongst other in An. 1. Iac. cap. 127. By the Statute of 2. H. 4. cap. 21. amongst other things it is enacted that no Yeoman should take or weare any livery of any Lord upon paine of imprisonment and to make fine and ransome at the Kings will FINIS
proceedings onely by such name and title as he hath received from the King of this Realm whose Subject he is and if by the King of England he be not advanced to Title of Honour then shall he bear the name of his Baptism onely and Surname unlesse he be a Knight 20 Ed. 4. 6. Cook 7. part 16. a. A Duke of Spain or of other forraign Nation cometh into England by the Kings safe-Conduct in which also the King doth stile him Duke according to his Creation neverthelesse in all proceedings in the Kings Courts he shall not be stiled by his name of dignity Cook in the last Book before And though the said Noble person be also by the Kings Letters Patents and by his forraign name and title of dignity made Denizen for that is the right name so called because his legitimation is given unto him for if you derive Denizen from Denizee as one born within the Allegiance or Obedience of the King then such a one should be all one with a naturall born Subject wherein a Denizen faileth in many things or if they be naturalized also by the authority of Parliament whereby he seemeth to be in all things made as a Subject born in England yet he shall not be stiled with his forraign title of dignity Cooks 7 part 15. a. And so it is if a Noble man of France â— come into England as Ambassadour and here by lawfull Marriage hath issue a sonne the father dieth the son is by birth a naturall English-man yet he shall not bear the Title of Honour of his father and the cause and reason hereof is Because the title of his Nobility had his originall by a French King and not by any naturall peration which thing is well proved both by authority of Law and experience in these dayes for in the book last mentioned in that leaf is resolved a more stranger case that is albeit that a Postnatus of Scotland or Ireland who is in these dayes a naturall Subject to the King of England or any of his posterity be he the heir of a Noble man of Scotland or of Ireland yet he is none of the Nobility of England But if that Allien or stranger born or Scot be summoned by the Kings Writ to come unto his Parliament and is therein stiled by his forraign stile or by other Title whereunto he is invested within England by the Kings grant then from thenceforth he is a Peer of this Realm and in all Judiciall and legall proceedings he ought to be so stiled and by no other name 39 Ed. 3. 36. And it was the case of Guilbert Humphreyvile Earl of Anger 's in Scotland For it appertaineth to the Royall prerogative of the King to call and to admit any Alien born to have voyce and place in his Parliament at his Parliament at his pleasure although it is put in practice very rarely and seldome time and that for very great and weighty considerations of State And if after such Parliamentary Summons of such a stranger born question do arise and the issue whether he is of that title or no it may well be tryed by the Records which is the onely lawfull tryall in that case Cooks 7. part 15. a 6 part 53. But there is a diversity worthy the observation for the highest and lowest dignities are universall and therefore a Knight in all place soever he received his title of dignity and so ought of right and by Law be named in the Kings Courts 26 Ed. 4. 6. 39. Ed. 3. 36. Also if the Emperour or the King of Denmark or any other forraigne King come into this Realm by safe-Conduct as he ought For a Monarch or an absolute Prince though he be in League cannot come into England without License and safe-Conduct of the King of England but any subject to such forraigne King in league may come into this Realm without License Cook 7. part 21. 6. in this case he shall sue and be sued by the name of Emperour or King other wise the writ shall abate There is a notable president cited out of Fleta where treating of the Jurisdiction of the Kings Court of Marshalsey it is said And these things he may lawfully do by Office that is to say the Steward of the Kings Houshold notwithstanding the liberty of any other although in another Kingdom where the offender may be found in the Kings house according to that which happened â—t Paris held in the 14 yeer of Ed. 1. of one Engleam of Nogent taken in the Houshold of the King of England the King himself being then in Paris with Silver dishes lately stollen at which deed the King of France being present and whereupon the Court of the King of France did claym cognizance of the plea concerning that theft by Jurisdiction of the Court of Paris the matter being diversly debated in the Councell of the King of France at length it was ordered that the King of England should use and enjoy that his Kingly prerogative of his Houshold where being convicted by Sir Robert Fitz-John Knight Steward of the Kings Houshold of the theft by consideration of the same Court was hanged on the Gallows in St Germans fields Cooks 7. part 15. 6. And there by the way may also be noted from the reason in the recited Books alleadged the person of a King in another Kings Dominions is not absolutely priviledged but that he may be impleaded for debt or trespasse or condemned for Treason committed within the said Dominions for it is a generall Law of Nations That in what place an offence is committed according to the Law of that place they may be judged without regard of any priviledge neither can a King in another Kingdom challenge any such prerogative of immunity from Laws for a King out of his proper Kingdom hath no merum Imperium absolute power but onely doth retain â—onoris titulos dignitatis the Titles of Honour and Dignity so that where he hath offended in his own person against the King of the Nation where he is per omnia distringitur etiam quoad personam he may be distrayned even to his own person And the same Law is of Ambassadours ne occasio daretur dolinquendi lest occasion of offence be given like as a sanctuary will save a mans life from man-slaughter but not when man-slaughter is committed within the Sanctuary for then he doth wilfully wave the benefit of all priviledges and prerogatives and neverthelesse it bindeth firm that Ambassadours are called Legats because they are chosen as fit men out of many and their persons be sacred both at home and abroad so that no man injuriously may lay violent hands upon them without breach of the Law of Nations and much lesse upon the person of a King in a strange Land Bracton a Judge of this Realm in the Raign of King Hen. 3. in his first Book 8 saith in effect as followeth There is no respect of persons with God because God
Eliz. cap. 18. he nor any other need to make his purgation but shall be forthwith delivered out of prison by the Justices sed quare Poulton 202. b. By the Jmperiall Constitutions Nobiles non torquentur in quibus plebeij torquerentur nobiles non suspendantur sed decapitantur and so it is almost growne into a Custome in England by the favour of the Prince for rare is it to have a Nobleman executed in other forme yet Thomas Fines Lord Dacres of the South in 33. H. 8. and Lord Sturton 4. Mar. were hanged Brooke Iury 48. Jn the first yeare of the late Queene Eliz cap. 1. in the Acts of Parliament for the uniformity of Common Prayer c. there is contained this proviso and be it enacted and ordained that all the Lords of Parliament for the third offence above mentioned shall bee tryed by their Peeres and not by any Ecclesiasticall Courts reade the Statute at large At the Common Law it was lawfull for any Nobleman or ignoble to retaine as many Chaplaines as hee would for their Instruction in Religion but by a Statute made 21. Hen. 8. cap. 13. A restraint was made and a certaine number onely allowed to the Nobility and such Chaplaines for their attendance have Immunities as by the Statute at large may appeare viz Every Archbishop and Duke may have sixe Chaplaines whereof every one shall or may purchase Lycence or dispensation and take receive and keepe two Persoâ—ages or Benefices with cure of Soules and that every Marquesse or Earle may have five Chaplaines whereof every one may purchase Lycence or Dispensation and take receive and keepe two Parsonages or Benefices with cure of Soules and that every Viscount and other Bishop may have foure Chaplaines whereof every one may purchase Lycence and receive have and keepe two Parsonages of Benefices with cure of Soules as aforesaid And that the Chancellour of England for the time being and every Baron and Knight of the Garter may have three Chaplaines whereof every one shall now purchase Lycence and Dispensation and receive have and keepe two Benefices with cure of Soules read the Statute at large And forasmuch as retaining of Chaplaines by Lords of great estates is ordinary and neverthelesse some questions in Law have beene concerning the true understanding of the said Statute J thinke it not impertinent to set downe some subsequent resolutions of the Judges touching such matters If a Bishop be translated to an Archbishop or a Baron to be created to an Earle c. yet within this Act they can have but onely so many Chaplaines as an Archbishop or Earle might have for although he have divers dignities yet he is still but one selfesame person to whom the Attendance and service should be done so if a Baron be made a Knight of the Garter or Lord Warden of the Cinque-Ports hee shall have but three Chaplaines in all sic de similibus Also if such an Officer allowed by the Statute to have one two or more Chaplaines doe retaine accordingly and after he is removed from his Office in this case he cannot be now non-resident or accept of a second Benefice if his Compliment were not full before his remaining and yet in that case it behoveth the Chaplaine to procure a non obstante otherwise he may be punished for his non-residency So if an Earle or Baron doe retaine a Chaplaine and before his advancement his Lord is attainted of Treason as it was in the Case of the Earle of Westmerland after the said Attainder such a Chaplaine cannot accept a second Benefice for though his Lord be still living according to nature yet after the Attainder he is a dead Person in the Law and therefore out of the case to have Priviledge for himselfe or for his Chaplaines If a Baron have three Chaplaines and every one of them have two Benifices and after the Baron dyeth yet they shall enjoy those benefices with cute which were lawfully setled in them before but in this case though the said Chaplaine be resident upon one of his Benifices yet now he is become unpunishable for being non-resident upon the other for cessante causa cessat effectus the same Law is if a Baron be attainted of treason or Fellony or if any Officer be removed from his Office Et sic de similibus vide Actons Case Cooke 4. part Fol. 117. for all those matters A Baron or others of degree of Honour doe retaine such number of Chaplains as are allowed by the Statute and after upon suite and request the said noble person doth retaine more Chaplaines In this Case they that are first retayned shall onely have priviledge nam qui prior est tempore potior est Iure so if a Lord doe at any time retayne more Chaplains then are allowed by the Common Law the lawfull number onely shall have priviledge and in this case which of them first promoted shall have priviledge and the rest are excluded for in equali Iure melior est conditio possidentes Jf a Nobleman doe retayne Chaplaines above the number at severall times if any of his first Chaplains die the next that was then retayned shall not succeed for his first retayner was void and therefore in this Case it doth behove him to have a new retayning after the death of the predecessour and before his advancement nam quod initio non valet in tractu temporis non convalâ—scit If a noble person retaine such a number of Chaplains as is by the Law allowed him but afterward upon some dislike or other cause doe discharge some of them from their attendance or service the Lord in this case cannot retaine others thereby to give them priviledge during the life of them so retained and discharged and the reason thereof is because the first Chaplaines were lawfully retained and by virtue thereof during their lives might purchase dispensations to have advantage according to the statute and therefore if the discharge of their service and attendance might give a liberty to the Lord to retaine others by such meanes the Lords might advance Chaplains without number by which the statute should be defrauded and the said statute must be construed strictly against non-Residents and Pluralities as a thing prejudiciall to the service of God and the ordinary instruction of the people of God These premises are to be read in Cooks 4 part fol. 90. Druries case By the statute of 3. H. 7. cap. 14. it is enacted as followeth viz. Forasmuch as by quarrels made to such as have been in great authority office and of counsell with the King of this Realme hath ensued the destruction of the King and thereby the undoing of this Realme so that it hath appeared evidently when the compassing of the death of such as were the Kings true subjects was laid the destruction of the Prince was imagined thereby and for the most part it hath growne and been occasioned by envie and malice of the Kings owne houshold-servants