this manner A Baron is a dignity of Nobility and Honour next under the Vicount above the Banneret and Valvafor adorned with the title of Lord holding with us the same place as did the Patricii or Senators amongst the Romans The Books of Law do make difference between Dukes Earls Maâ—quesses and Vicounts which are allowed names of dignity and the Baron For they affirm that Baron needs not to be named Lord or Baron by his Writ But the Dukes Marquesses Earls or Vicounts ought to be named by their names of dignity 8. H. 6.10.32 H. 6.3 Cook 8. parts 53. b. a. part Pigot Lambert l. 4.488 Cambden fol. saith that our common Lawyert do not allow a Baron to be one of the degrees of the Nobility Neverthelesse I do take the Books are to be understood of the Barons by Tenure or Barons by Writ only For the title of a Baron by Patent is in his Letters Patents under the great Seal adorned and named by the stile of Status gradus dignitas and therefore as requisit to be named as such dignities are a parcell of the Name of the possâ—ssor as well as the Stile and Title of a Duke Marquesse Earl and Vicount c. And although there may be conceived this difference last mentioned between the Baron by Tenure or Writ and the Baron by Patent yet they being all Members of the higher House of the Parliament they are thereby made equally Noble Honorable and Peers of the Realm as they are Barons only without any other distinction that I have observed and thus much concerning the three degrees of Barons within this Realm may suffice to be said in generall upon this occasion for the better understanding and direction of the rest to be handled The Etymology and Derivation of the Name Baron MAny Wits have laboured to yeeld the Etymologie and signification of this word wherein following their own fantasies there hath been bred much variation of opinion As for Etymology of words I agree with him that saith That it is Levis fallax plerumque ridicula for sapenumero ubi proprietas verborum attenditur sensus veritatis amittitur It may have some use and serue a turn in Schools but it is to light for judgements in Law and Seats of Justice Cook 7. part l. 27. b. Thomas Aquinas setteth down a more certaln rule in vocibus videndum non tam à quo quam ad quid sumitur and words should be taken sensu currenti for use and custome is the best expositor of Laws and words quem penes Arbitrium jus norma loquendi In the Lord Chancellors Speech in the Case of Postnati fol. 61. And forasmuch as the word may aptly import men of strength Bracton as before appeareth not unaptly useth this signification thereof in these words Sunt alii potentes sub Rege qui dicunter Barones boc est Robur belli The Antiquity of the Dignity of Barons and the sundry uses of the Name IT seemeth that the dignity was more ancient then the Name for in the ancient Constitutions Feedall of the Land there is no mention made of the name of Barons howbeit the learned Interpreters do understand that dignity to be comprehended under those which are there called Valuasores Majores and afterward called Capitanii for of the Valuasores there were three kindes Valuasores Majores sive Capitanii which are thought to be the Barons Valuasores minores and valuasini or valuasores minimi The like dignity within this Realm before the Conquest had those which of the English Saxons were called Thanes whereof read Lambert in his Preambulation of Kent Fol. 366. And the Book of Dooms-day remaining in the treasury of the Exchequer Neverthelesse the name of the Baron was not much used within this Realm untill the Norman Conquest and after that the word Baron seemeth to be frequented in this Realm in lieu and place of the word Thane among the English Saxons for as they in generall and large signification did some time use the same to the sence and meaning and to import a Free-man borne of a free parentage or such like so did the Normans use the word Baron and therefore called their free Citizens of their best esteemed Cities and free Burgesses of their best esteemed Towns and Borroughes by the name of Barons And so the Citizens of London Barons of London in divers ancient Monuments of whom also Bracton maketh mention Fol. 272. a. Also there are divers Charters wherein mention is made of such like Barons as the Barons of Warwick in the Record of Doomsday and even to our time the free Burgesses of the five priviledged Ports are called Barons of the Cinque Ports And for that also divers of the nobility of Barons as well spirituall as temporall did in ancient time sit in the Exchequer to determine the difficulties and doubts there arising The Judges of that Court have been from most ancient time called and yet are Barons of the Exchequer Moreover the English Saxons had two kindes of Thanes the like hath been observed as touching Barons for the Kings and Monarchs of this Realm have had their immediate Barons being the Peers of the Realm and in like manner certain other of the Nobility especially Earls which have had jurisdiction Palatine and Earls Marchers whose Countries have confined upon the coasts of the enemy have had under them for their better defence a kinde of Barons As namely under the County Palatine of Chester were these Barons the Barons of Halton Mounthalt Malebanck Shipbrooks Malpase Massa Rinderton Stockport c. The Earldom of Pembrook in Westwales being first erected by Arnulphus Mountgumory that conquered part of that Country And therefore the Earls thereof being an Earl Marcher had also under him his Barons as appeareth by the Parliament Rolles 18. Ed. 1. It hath been therefore a common opinion received that every Earldom in times paâ—â— had under it ten Barons and every Barony ten Knighâ—â— Fees holden of him and that those that had fourteeâ— Knights Fees were usually called and promoted to the dignity of Baron Also Lords and Proprietors of Mannors were in respect of them oftentimes in ancient remembrance cal'd Barons but abasiveth and the Court and their Mannor called thereof Courts Barons oâ— which Glamvile speaketh Fol. 67. l. 8. c. 11. It resteth now for the more explanation of the use oâ— the name of Baron that we call to remembrance thaâ— which hath been before spoken that the custome of ouâ— Countrie is that if a Baron be created an Earl the eldeâ— son of the said Earl in the life of his Father taketh upon him the name and title of the Barony although hâ— want the Priviledges belonging to a Baron The tenor and proper signification of the word Baron BArons honourable are of three kinds by Tenure by Writ by Creation As for Barons by prescription which some men have spoken of they are intended to be all one with the Barons by tenure
Patents doe grant and give licence for us and our heires so much as in us lyeth to the said Edmond to dispose and give all his Manours Lands Tenements and Knights fees with their appurtenances and Advowsons of Churches Abbies and Priories and Hospitalls which he holdeth of us in chiefe to whom he pleaseth To have and to hold to him and his heires for us and our heires by the service thereof for ever By which Grant the said Edmond gave all his Lands and Tenements to one William sonne of John Deyncourt and to his heires of his body comming And the said Edmond dyed the last yeere of Edward the second and the said William in the time of Edward the third was summoned among other Barons to the Parliament by vertue of the same gift untill his death which was Anno 3. E. 3. It appeareth by divers offices in the time of King Edward the third that John Handlow in the right of Maud his wife was seized of the Mannour of Holgate Acton Burnell c. for terme of her life remainder to Nicolas Handlow alias Burnell sonne to the said Maud and John by a fine in the Court levied and that John Lovell was next heire of the said Maud and her first-borne sonne by her first husband and afterwards the said Nicolas was summoned among other Lords to the Parliament by reason of the fine aforesaid and not the said John Lovel who was next heire Edward Burnell Baron of Holgate Philip Burnell Baron of Holgate Maud Burnell heire to her brother John Lovell the first husband John Lord Lovell Iohn Lord Lovell John Handlow second husband Nicolas Handlow Baron of Holgate Hugh Handlow alias Burnell Baron of Holgate Thomas de Beauchamp the elder Earle of Warwick by a fine levied 18. E. 3. entailed the Mannour and Castle of Warwicke with divers other possessions to himselfe for terme of his life the remainder whereof to Guy his eldest sonne and to the heires males of his body issuing for want of such heires the remainder to come to Thomas Beauchamp brother to the foresaid Guy and to his heires males of his body issuing c. And afterwards the said Guy died without heires male of his body leaving two daughters and heires living afterward the said Earle dyed and the said Thomas the sonne entred into the Castle and Mannour aforesaid with other the premisses and was Earle of Warwick by reason of the entaile aforesaid notwithstanding that Katharine daughter of Guy and next heire to the said Thomas the elder was living 30. yeers after his death Thomas Beauchampe Earl of Warwick Guy de Beauchampe first son obiit ante patrem 30. E. 3. Katharine lived in 21. R. 2. Elizabeth Tho. de Beauchampe Earle of Warwicke by reason of the entail obiit anno 1. H. 4. Rich. Beauchamp Earl of Warwick obiit 17. H. 6. William Beauchampde Beauchamp L. of Aberganey obiit 12. H. 4. Richard de Beauchamp Earl of Warwicke obiit 9. H 5. Richard Earle of Arundell by a fine 21. E. 3. entailed the Castle Towne and Mannor of Arundell with other Lands to him and to his heires Males begotten of the body of Ellenor his wife By vertue of which entaile John Lord Matrovers Earle of Arundell after the decease of Thomas then Earle which died without heire Male although the sisters of the said Thomas possessed divers Lands and honors or the which the said Thomas died seised in Fee simple war Earle of Arundell Richard Earle of Arundell Richard Earle of Arundell obiit anno 21. R. 2. Thomas Earle of Arundell obiit anno 3. H. 5. Elizabeth married to Tho. Mowbray Duke Norfolk Married to Lewthall Jane Lady of Abergany John Arundell Knight Lord Matrovers John Arund Lord Matrovers obiit 6. H. 4. Io. Arund L. Matrovers obiit 9. H. 5. Io. E. of Arun. by reason of the entail Thomas Lord Barkley was seised in his demesne as of fee of the Castle of Barkley and Mannour c. and a fine levied in the Kings Court 23 E. 3. of the aforesaid Castle Mannour c. to him for terme of his life remainder to Morrice his sonne and to the heires males of his body issuing with other remainders as aforesaid the which said Morrice had issue Thomas Lord Barkley and Iames Barkley Knight which Iames dyed in the life of his brother leaving Iames his sonne and heire living After the said Thomas Lord Barkley died Anno 5. H. 5. leaving Elizabeth his daughter and heir married to Richard Earle of Warwick after whose death Iames his Nephew on the brothers side entred into the Lands Castles and rem ' aforesaid by virtue of the entaile and was summoned among the Barons to the Parliament as Baron of Barkley 9. H. 5. which Elizabeth died in 1. H. 6. Tho. Lord Barkley Morrice Lo Barkley Tho. Lord Barkley Eliz. married to Rich Earle of Warwick Sir Ia. Barkley died before his brother Iames Lo. Barkley by reason of the entaile Thomas Lord Delaware died seised in his demesne as of fee taile to himselfe and to the heires males of his body issuing by reason of a fine levied in the time of his ancestors of the Barony Delaware with divers other lands in other counties and died 5 H. 6. without heires of his body and Reignold West Knight of the halfe blood was next heire by reason of the entaile aforesaid and was summoned to the Parliament by the name of Reignold Lord Delaware Knight although Iohn Griffith was heire generall of the aforesaid Thomas Delaware being of the whole blood as appeareth by the genealogie ensuing Iohn Lord Delaware son of Roger. Iohn Lord Delaware Elisabeth daughter to Adam L. Wels. Iohn Lord Delaware died without issue Thomas Lord Delaware died without issue Roger Lord Delaware Elisabeth daughter to the Lord Mowbray his second wife Iohn Griffin heire generall to the Lord Delaware Sir Reignold West Lord Delaware by the entail Katharine married to Nicolas Latimer Katharine married to Griffin Iohan married to Tho West Knight John de Vere Earle of Oxford seised in his demesne as of Fee taile to him and his heires Males of his body issuing of the honour and county of Oxford with divers other Lands Anno 18. H. 8. died without heires of his body and his three sisters were his next heires generall but Iohn de Vere his next heire Male as appeareth was Earle of Oxford by reason of the said entaile and none of the three sisters obtained Dignity Richard de Vere Earle of Oxford died 4. H. 5. Iohn de Vere Earle of Oxford died 1. E. 4. John de Vere Earle of Oxford died without issue 4. H. 8. George de Vere Knight Iohn de Vere Earl of Oxfo died without issue 18. H. 8. Eliz. married to Sir Antho Wingfield Knight Vrsula married to Edm. Knightley Esq Dorothy married to Nevill Sir Robert de Vere Kt. Iohn de Vere Iohn de Vere Iohn de Vere Earle of Oxford by vertue of the entaile William Lord Paget of
same Pedegree of the said Lord Dacres it is expressed that Thomas sometimes Lord Dacres had issue Thomas his eldest son Ralph his second sonne and Humphrey his third sonne Thomas the eldest dyed in the life time of his Father having Issue Ioan his daughter and heire who was marryed unto Sir Richard Fines Knight And after Thomas Lord Dacres her Grandfather and Father unto the said Sir Ralph and Humphrey dyed After whose death Henry 6. by his Letters Parents bearing date at Westminster 7. Novem. Anno 7. regni reciting the said Pedegree and Marriage doth by his Letter a Pattents accept declare and repute the said Richard Fines to be Lord Dacres and one of the Barons of his Realme But afterward in the time of Edw 4. the said Humphrey Dacres after the attaindor of the said Ralph and himselfe by an Act of Parliament which was in 1. Ed. 4. and after the death of the said Ralph and after the reversall of the same Act by another Act 12. Edw. 4. the said Humphrey made challenge unto the said Barony and to divers Lands of the said Thomas his Father whereupon both parties after their title had been considered in Parliament submitted themselves unto the Arbitrement of King Edw. 4. and entred into Bond each to other for the performance thereof Wherupon the said King in his award under his Privie seale bearing date at Westminster 8. April Anno regni 13. did award that the said Rich Fines in the right of Ioan his wife and the Heires of his body lawfully begotten should be reputed had named and called Lord Dacres and that the said Richard Fines and the Heires of his body by the said Ioane begotten should keepe have and use the same state and place in every Parliament as the said Thomas Dacres Knight late Lord Dacres had used kept c. that the heires of the body of the said Thomas Dacres Knight late Lord Dacres lawfully begotten should have and hold to them their Heires the Mannor of Holbech And furthermore the said King did award on the other part that the said Humphrey Dacres Knight and the Heires males of the said Thomas late Lord Dacres should be reputed had named and called the L. Dacres of Gillesland And that he and the heires males of the said Thomas then late Lord Dacres should have use and keepe the place in Parliament next adjoyning beneath the said place which the said Rich Fines Knight Lord Dacres then had and occupied and that the heires of the body of the said Ioan his wife should have and occupie And that the Heires males of the said Thomas Dacres late L. Dacres should have to them to the heires males of their bodies begotten the Mannor of Jothington c. And so note that the name of the ancient Barony namely Gilestand remained unto the Heire male unto whom the land was entailed Moreover this is specially observed if any Baron by writ doe dy having none other issue then Female and that by some speciall entail or other assurance there be an heire male which doth enioy all or a great part of the lands possessions and inheritances of such Barons deceased the Kings of this Realme have used to call to the Parliament by writ as Baron such heire male omitting the Husband or issue male of such heire female and this also appeareth by a notable controversie in the time of Henry 7. betweene Sir Robert Willoughby Lord Brooke and Richard Lord Latimer for the Barony of Latimer which in effect was The said Lord Brooke did challenge the Barony of Latimer as cosen and Heire to Elizabeth his great grandmother who was sister and heire to Iohn Nevill Lord Latimer who died without issue and hereupon exhibited a Petition to Henry 7. in Parliament whereto Richard then Lord Latimer was called to answer because he then enioyed the said title and dignity The said Richard Lord Latimer by his answer did shew that it was true that after the death of the said Iohn Nevill Lord Latimer dying without issue the said Elizabeth was the sister and next heire and married unto Sir Thomas Willlonghby Knight second son of the Lord VVilloughby but Henry 6. for that the said Iohn Nevill was dead without issue and that the next heire was female did therefore call to the Parliament George Nevill Knight second son of Ralph Earle of Westmerland to be Lord Latimer as Cozen and next heire male of the said Iohn Nevil Lord Latimer which George was grandfather of the said Richard Lord Latimer namely Father of Henry Lord Latimer Father of the said Richard In debate of which cause the question now in hand whether a Barony by writ may discend unto the heirea semales was advisedly considered of by the said King and his Nobility in Parliament and in the end adjudged with the said Richard Lord Latimer which President doth afford us two Iudgements in this point one in the time of Hen. 6. when the writ was directed to the said Sir George Nevill whereby he was summoned as Lord Latimer to the Parliament and as heire Male and not the said Sir Thomas Willoughby Knight husband of the said Eliza. heire male And the second judgement was given in the time of Henry 7. whereby the Barony was adiudged vnto the said Richard Lord Latimer comming of the speciall heire male against the said Lord Brooke descended of the generall heire male But here the President before remembred of the Barony of Dacres may be objected to incounter this confusion For there was an heire female martied unto Sir Richard Fines who by the declaration of Hen. 6. was Baron of Dacres in the right of his wife and there was also Ralph and Humfrey the heires males before whom the heire female was preferred by the censure of Henry 6. and Edward 4. This objection is easily answered For although Hen. 6. through the Princely favour which hee bare unto Sir Richard Fines had declared him to bee Lord Dacres in the right of his wife yet notwithstanding did Ralph Dacres being heire male unto the then Lord Dacres deceased beare also the name of 〈◊〉 Dacres and by that name was attainted in Parliament Wherefore the reason why the heire male could not bee regarded was the said attainder of the said Ralph and Humfrey his brother and therefore when Humphrey 12. Edw. 4. laboured to have the said attainder reversed he submitted himselfe vnto the Arbitrament of the King who to satisfie both Competitors because both had well deserved of him after he had admitted them to his favour he allowed the one to be Lord Dacres the other to be Lord Dacres of Gillesland thus much concerning the second point whether a Barony by writ may discend unto the heire female or not As concerning the third point admitting such discent to bee to the heire female when there is no heire male at all that may claime the same for then doth this question take place whether the husband of such heire
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 gladis quod dividi non potest vel caput Baroniae 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 aedisicia quae sunt capita Baronia dividi possunt inter cohaeredes facta electione salvo jure essentiae quia cùm plura sunt ibi jura quodlibet per se poterit integrè observare quod quidem non est in uno ut praedictum est licèt à quibusdam dicatur quòd in aliis regionibus aliquando de consuetudine dividatur sed quod nunquam divids 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 Anglia 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 succession 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 Judgement 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 vido 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 creared Earle of Chester Habemus sibi heredibus adeo libere per gladium sicut ipse Rex tenuit Angliam per Corenam 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 curresies 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. 4 5 6. 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 tryall hereof shall not be by Record as in the former case but by a Jury of 12. men and the reason of the diversity is because in this case the Dignity is accrewed unto her by marriage which the
of the Kings eldest Sonne and Heir is crimen lasoe Majestatis high treason or if a man do violate the Wife of the Kings eldest Sonne and Heir it is high treason and see the Statute 20. Hen. 8. cap. 13. And so was the ancient common Law of England and not a new Law made by this Statute Cooks 8. Part. 28.6 But this Statute is a manifestation and declaration or publication of the ancient common Law in this Case By a Statute made in the said 25. yeer of King Ed. 3. It is declared because the people be in ambiguity and doubt of the children born in the parts beyond the Sea out of the Kings Legiance of England should be able to demand any inheritance within the same Legiance or not Whereof a Petition was put into the Parliament late holden at Westminster the 17. yeer of the raign of our Soveraign Lord the King assembled in this Parliament and was not at the same time wholly assented Our Soveraign Lord the King willing that all doubts and ambiguities should be put away and the Law in this case declared and put in a certainty hath charged the said Prelates Earls Barons and other wise men of his Councell assembled in this Parliament to deliberate upon this point who with one assent hath said That the Law of the Crown of England is and alwayes hath been such that Les Enfants du Roy the children of the King of England in whatsoever part they be born in England or elsewhere be able and ought to bear the inheritance after the death of their Ancestors which Law our Soveraign Lord the King the said Prelates Earls Barons and other great men and all the Commons assembled in this Parliament do approve and affirm for ever Note These words in the Statute Les Infants du Roy have briefly set down and in a vulgar manner for loquendum ut vulgus and not in form of exquisite pleading for sentiendum ut docti and therefore ought to be understood largely Cooks 7. part 11.6 and as the Latine word liberi is with the Civilians Bract. lib. 2. cap. 29. hath these words Item descendit jus vero heredi ubicunque nat in fuerit vel in utero matris intra mare vel ultra Nec potest sibi aliquis facere beredem quia solus Deus heredem facit The right doth deseend unto the true Heir wheresoever he shall be born in the Womb of his Mother on this side the Sea or beyond no man can make an Heir unto himself because God only doth make the Heir read the Statute and Cook 7. part 18. a. Where you shall see that though generally the birth-place is observable yet many times Legiance and obedience without any place within the Kings Dominions may make a Subject born for though we see by experience almost in every Parliament Ambassadors Merchants and the Kings souldiers doth shew there in such causes to have their children naturalized or made denixens yet that doth proceed onely of doubt and needlesse scupulosity and ignorance of the Law even as we see men that are doubtfull desire to be resolved as may appear by sundry covenants in bargaining more then necessary And by renuing of Chartes though there be no forfeitures and by suing forth particular pardons when a generall is granted by Parliament Priests and Ministers see to the Parliament for legitimation of their children And in the Articles confirmed by Parliament touching the marriage between Philip Prince of Spain and Queen Mary a speciall proviso was to barre him from being Tenant by the courtesie of the Crown in case he should have issâ—e by her and survive which was superfluous because the Common-Law would have denyed this last point See the Lord Cromwels Speech in the case of the Postnati fol. 36. But note that if an Alien Enemy come into this Realm and his Wife English or stranger be delivered of a childe within England this childe notwithstanding his birth-place is an Alien born for want of allegeance in the Parents Ibidem King Henry did create Edward his eldest Sonne the first Prince of Wales and did give unto him the dignity and Dominion of it to be holden of him and his Heirs Kings of England and after that time the eldest sonne of the King of England hath been Prince of Wales and as incident to the State and dignity of a Prince and might make Laws and Statutes and use jurisdiction and authority as amply as any King of that Nation could do Cooks 7. part 21.6 Vide Mills fol. 312. Plowden 126. For Wales was a Kingdom in ancient time But in a Statute made in the 12. Ed. 1. Wales was united and incorporated into England and made parcell of England in possession And note in Tho. Mylls 112. the devise of the said King was to draw the Welchmen to acknowledge the Kings eldest Son Edward of Carnarvan to be their Prince Also by another Statute made 27. Hen. 8. cap. 24. a generall resumption of many liberties and franchises heretofore taken or granted from the Crown as the authority to pardon Treason murther man-slaughter and fellony power to make Justices in Oyre Justices of assize Justices of peace Goal delivery and such like so that from thenceforth the Kings eldest Sonne hath only the name and stile of Prince of Wales but no other Jurisdiction then at the Kings pleasure is permitted him and granted by his Letters Patents as by the tenour thereof following made by King Henry the eight to Edward his sonne and heir apparent may appear Henry Ireland was before 33. Hen. 8. a Lordship and now is a Kingdom and the King of England was as absolute a Prince and Soveraign when he was Lord of Ireland as now when he is stiled King of the same Cooks 7. part By the grace of God King of England and of France Lord of Ireland c. To all Archbishops Bishops Abbots Priors Dukes Earls Barons Justices Viscounts Governours Ministers and to all our Bailiffs and faithfull Subjects greeting out of the excellency of Royall preheminence like as the beams from the Sunne so doth inferiour honour proceed neither doth the integrity of Royall lustre and brightnesse by the naturall disposition of the light-affording light feel any losse or detriment by such borrowed lights yea the Royall Scepter is also much the more extolled and the Royall Throne exalted by how much more noblenesse preeminences and honours are under the power and command thereof And this worthy consideration allureth and induceth us with desire to the increase of the name and honour of our first begotten and best beloved Sonne Edward in whom we behold and see our selves to be honoured and our Royall House also and our people subject to us hoping by the grace of God by conjecture taken of his gratious future proceedings to be the more honourably strengthned that we may with honour prevent and with aboundant grace prosecute him who in reputation of us is deemed the same
Nobiles non torquentur in quibus plebeij torquerentur nobiles non suspenlantur sed decapitantur and so it is almost growne into a Custome in England by the favour of the Prince for rare is it to have a Nobleman executed in other forme yet Thomas Fines Lord Dacres of the South in 33. H. 8. and Lord Sturton 4. Mar. were hanged Brooke Iury 48. Jn the first yeare of the late Queene Eliz cap. 1. in the Acts of Parliament for the uniformity of Common Prayer c. there is contained this proviso and be it enacted and ordained that all the Lords of Parliament for the third offence above mentioned shall bee tryed by their Peeres and not by any Ecclesiasticall Courts reade the Statute at large At the Common Law it was lawfull for any Nobleman or ignoble to retaine as many Chaplaines as hee would for their Instruction in Religion but by a Statute made 21. Hen. 8. cap. 13. A restraint was made and a certaine number onely allowed to the Nobility and such Chaplaines for their attendance have Immunities as by the Statute at large may appeare viz Every Archbishop and Duke may have sixe Chaplaines whereof every one shall or may purchase Lycence or dispensation and take receive and keepe two Personages or Benefices with cure of Soules and that every Marquesse or Earle may have five Chaplaines whereof every one may purchase Lycence or Dispensation and take receive and keepe two Parsonages or Benefices with cure of Soules and that every Viscount and other Bishop may have foure Chaplaines whereof every one may purchase Lycence and receive have and keepe two Parsonages or Benefices with cure of Soules as aforesaid And that the Chancellour of England for the time being and every Baron and Knight of the Garter may have three Chaplaines whereof every one shall now purchase Lycence and Dispensation and receive have and keepe two Benefices with cure of Soules read the Statute at large And forasmuch as retaining of Chaplaines by Lords of great estates is ordinary and neverthelesse some questions in Law have beene concerning the true understanding of the said Statute J thinke it not impertinent to set downe some subsequent resolutions of the Judges touching such matters If a Bishop be translated to an Archbishop or a Baron to be created to an Earle c. yet within this Act they can have but onely so many Chaplaines as an Archbishop or Earle might have for although he have divers dignities yet he is still but one selfe-same person to whom the Attendance and service â—ould be done so if a Baron be made a Knight of the â—arter or Lord Warden of the Cinque-Ports hee â—all have but three Chaplaines in all sic de simiâ—â—us Also if such an Officer allowed by the Statute to â—â—ve one two or more Chaplaines doe retaine accorâ—ingly and after he is removed from his Office in this â—â—se he cannot be now non-resident or accept of a seâ—ond Benefice if his Compliment were not full â—efore his remaining and yet in that case it behoveth â—â—e Chaplaine to procure a non obstante otherwise â—e may be punished for his non-residency So if an Earle or Baron doe retaine a Chaplaine â—nd before his advancement his Lord is attainted of Treason as it was in the Case of the Earle of â—estmerland after the said Attainder such a Chapâ—aine cannot accept a second Benefice for though his Lord be still living according to nature yet after the Attainder he is a dead Person in the Law and therefore out of the case to have Priviledge for himselfe or for his Chaplaines If a Baron have three Chaplaines and every one of them have two Benifices and after the Baron dyeth yet they shall enjoy those benefices with cure which were lawfully setled in them before but in this case though the said Chaplaine be resident upon one of his Benifices yet now he is become unpunishable for being non-resident upon the other for cessante causa cesâ— effectus the same Law is if a Baron be attainted of treâ—son or Fellony or if any Officer be removed from 〈◊〉 Office Et sic de similibus vide Actons Case Cooke 〈◊〉 part Fol. 117. for all those matters A Baron or others of degree of Honour doe retainâ— such number of Chaplains as are allowed by the Statute and after upon suite and request the said noble persoâ— doth retaine more Chaplaines In this Case they that are first retayned shall onely have priviledge nam qui prior est tempore potior est Iureâ— so if a Lord doe at any time retayne more Chaplaiâ—â— then are allowed by the Common Law the lawfull number onely shall have priviledge and in this case which of them first promoted shall have priviledge and the rest are excluded for in equali Iure inelior est condiâ—â—â— possidentes Jf a Nobleman doe retayne Chaplaines above the number at severall times if any of his first Chaplaiâ—â— die the next that was then retayned shall not succeed for his first retayner was void and therefore in thiâ— Case it doth behove him to have a new retayning after the death of the predecessour and before his advancement nam quod initio non valet in tractu temporis non coâ—valescit If a noble person retaine such a number of Chaplains as is by the Law allowed him but afterward upon some dislike or other cause doe discharge some of them from their attendance or service the Lord in this case cannot retaine others thereby to give them priviledge during the life of them so retained and discharged and the reason thereof is because the first Chaplaines were lawfully retained and by virtue thereof during their lives might purchase dispensations to have advantage according to the statute and therefore if the discharge of their service and attendance might give a liberty to the Lord to retaine others by such meanes the Lords might advance Chaplains without number by which the statute should be defrauded and the said statute must be construed strictly against non-Residents and Pluralities as a thing prejudiciall to the service of God and the ordinary instruction of the people of God These premises are to be read in Cooks 4 part fol. 90. Druries case By the statute of 3. H. 7. cap. 14. it is enacted as followeth viz. Forasmuch as by quarrels made to such as have been in great authority office and of counsell with the King of this Realme hath ensued the destruction of the King and thereby the undoing of this Realme so that it hath appeared evidently when the compassing of the death of such as were the Kings true subjects was laid the destruction of the Prince was imagined thereby and for the most part it hath growne and been occasioned by envie and malice of the Kings owne houshold servants and for that by the lawes of this land if actuall deeds were not there was no remedy for such false compassing imaginations and confederacies had against any Lord or any of the Kings
other parts holden by the same tenure of the King by posteritie the King granteth his Seigniory to the Queene and afterwards the Tenant dyeth the sonne within age in this case the King shall have the Wardship of the Body and have the Prerogative even as the King himselfe should have had 3. E. 3 4. vide etiam Stamford Prerog Reg. cap. 2. The Queene wife unto the King or widdow shall not be amerced if she be non-suited in any Action or otherwise in which cases any other subject of what degree soever shall be amerced for in this case the Queen shall participate the Kings Prerogative Cookes 6. Report 62. But the Queene shall not in all cases have the same Prerogatives that the King shall have in the same case as for Example Petition is all the remedy the Subject hath when the King seizeth his Lands or taketh away his Goods from him having no title by order of Law so to doe contrary to the opinion of some ancient Bookes as you may see Stamfords Prerog cap. 19. But in such suit shall be made to the Queene but actions against other Leiges of the King according as the case shall require for by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason he shall be Defendant or Tenant without pertaking such Prerogatives as doe appertaine to the King 11. H. 4.64 B. Stamford Prerog cap. 22. â—n fine Against the King by his Prerogative Nullum temâ—us occurit Regi but time shall runne against the Queen H. 18. E. 3.2 a. and aplenarty by sixe mouthes is a good plea in a Quare Imp. brought by Philippa Regina Angliae ibid. fol. 1. et 13. b. Stamford Prerog cap. 18. trope finem In 21. E. 3.13 b. It is thus to be read note that a protection was sued forth against the Queen in a Writ which she brought and it was allowed though shee be a person exempt Neverthelesse by this short case following may bee observed that the Justices doe not easily suffer any proceedings in Law against the Queene wife or widdow but will hold with their Inmities as much as they may by Law A Writ of dower was brought against Isabel Queene of England mother of the King that then was and the Court said to the Plaintiffe the Queene is a person of dignitie and excellencie and we are of opinion that she shall not answer to the Writ but it behooveth you to sue to her by Petition and thereupon the Demandant dixit grat and shee prayed the Court to grant a continuance of her Action untill another day so that in the meane time she might sue to speake with the Queen but the Court would not agree to make a Continuance but said that upon her request they might give dâ—â— precepart and so it was done for the Queenes Councel would not agree to a continuance for thereby thâ— Queene should bee accepted as answerable 10. 〈◊〉 3.379 The wife of the Kings eldest sonne also hath somâ— Prerogative in regard of the excellencie of her Husband which the wives of other Noblemen have not foâ— by the Statute of 25. E. 3. it is high Treason to violate the wife of the Kings eldest sonne and heire Dutchesses also and Countesses have speciall Honour appertaining to their Estates as kneeling and tasting and such like which things as appertaining more properly to the Heraulds then to this legall discourse I leave unto them By the Statute made 7. Iac. cap. 6. intituled And Act for the Administring the oath of Allegiance and Reformation of Women recusants if any person or persons of or above the age of 18. yeeres and degrees aforesaid must and hereafter shal stand and be presented indicted or convicted for not comming to Church or not receiving the holy Communion or Sacraments of the Lords Supper according to the Lawes and Statutes of this Realme before the Ordinary or other having lawful power to take such presentment or indictment then 3. of the Privie Counsell of the King his Highnesse his Heires or Successours and no other whereof the Lord Treasurer the Lord Chancellour Lord Privie Seale or principall Secretary to be one upon knowledge shall require such person or persons to take the said Oath but it shall be lawfull to and for every Bishop within his Diocesse to require any Baron or Barons of the age of 18. or above to take the said Oath Also in cases of indictment of Felony or Treason a Baronesse shall have the same tryall by Peeres as doth appeare by the Statute of 20. H. 6. cap. 9. which any other Noble woman of higher degree shall have which priviledge is denyed to all of a lower degree then a Baronesse Ladies in Reputation The wife and widdow and widdow of the sonne and heire of a Duke or Earle in the life of his Father is a Lady by courtesie of speech and honour and taketh place according as in ancient time hath been permitted by the Soveraign Prince and allowance of the Herauld but in legall proceedings they are not to have priviledges nor to be named according to such sirnames of dignity but the King may at his pleasure create such men in the life time of their Ancestors into degrees of Lords of his Parliament and then the Law is otherwise If a Noblewoman of Spaine come into the Realme by safe conduct or otherwise by the King shee be stiled by such her forraign stile of dignity yet in the Kings Courts of Justice she shall not be named by such title though by common speech she be a Lady in reputation An English woman borne doth take to her Husband a Spanish or French Duke though he be made a Denizen yet he shall not beare his title of dignity in legall proceedings A German woman is married to the Earl of Northam or to other the Nobility of England unlesse she be made a Denizen she cannot lawfully claim the priviledges or title of her husband no more then she can to have dower or any jointure from him An English Woman doth take to Husband the Earle of Kildare in Ireland or if a Lord of Scotland though he be a post natus take an English woman to his wife their wives shall not participate their husbands Titles of Dignitie But if the King do create one of his Subjects of Scotland naturalized here by Act of Parliament to be Viscount Rochester within England and after by his Writ of Summons under his Great Seale doe call him to his uper House of his Parliaments and assigne him a place there in his great Councell amongst the Lords and Peeres of the Realme hee is now also a Peere of this Realme and shall be partaker with them in all Priviledges and by consequence his wife widdow and children after him 32. E. 3.35 in le case de Gilbert Humfrevill But if an Englishman by the
Emperour be made Earle of the Empire his wife shall not beare that title of Honour either according to Law or in Reputation All the Daughters of Dukes Marquesses and Earles are by custome of long time used in the Kings Houses or palace named Ladies and have precedencie and place according to the degrees of their parents and so of this custome the Law doth take notice and give allowance for the honour and decencie but neverthelesse in the the Kings Courts of Justice they beare not these titles of Honour no more then the sonnes of such Noble person may doe brothers to such Ladies Finis Nobilitatis A TREATISE OF KNIGHTS AND Matters incident to the Degree of Knighthood according to the Lawes of England THE particular kinde of services by which lands of Inheritance are distinguished be two viz. Knight service and socage vide Littletons Soccage c. 26. In ancient time Tenure by Knights service was called Regale Servitium Cooke in his Preface to his 3. Book fol. 3 a. because it was done to and for the King and the Realme and formi secum servitium as appeareth in Anno 19. Edw. 2. Title Avowry 224.26 ass p. 66.17 H. 4.19 Cookes 7. part 8. a. Calvins case because they which doe hold by soccage ought to doe and performe their services out of the Realme Littleton 35. Et ideo formi secum dicipoterit quia sita capitur foris Hum. Servitiam persolvuntur ratione tenementarum non personarum Bracton fol. 36. And as Knights service land requireth the service of the tenement in warfare and battell abroad so Soccage tenure commandeth his attendance at the plough thâ— one by manhood defending the King or his Lords life and person the other by industry maintaining with rents corne and victuals his estate and family See Lambert Customes of Kent fol. 389. For they did thus order their owne lands and tenements one part they kept and detained in their owne hands and in them stately houses and Castles were erected and made for their habitation and defence of their persons and the Realme also Forrests and Parkes were made there for their pleasures Solace and Delight One other part hereof was given to the Nobles and others of their Chivalty reserving tenure by Knights service The third part was bestowed upon men of meaner condition and quallity with reservation of soccage tenure and in this manner the Dukes and other the Nobles with their menialls and followers dissipate to a great part of their lands viz. to their Gentlemen of quality to hold by Knights service and to others of meaner condition by Soccage tenure Gervasius Tilburiensis a learned man who flourished in the dayes of King Hen. 2. in his Dialogue of the observation of the Kings Exchequer hath in effect as followeth Untill the time saith he of King Hen. 1. the King used not to receive money of their lands but victuals for the provision of their house and towards the payment of their Souldiers wages and such like charges Mony was raised out of the Cities and Castles in which Husbandry and Tillage was not used and exercised But at length when the King being in the parts beyond the Seas needed ready money for and towards the Furniture of the warres and his Subjects and Farmers complained that they were grievously troubled by carriage of Victuals into sundry parts of the Realme farre distant from their dwelling houses the King directed Commissions to certaine discreet persons who having a regard of those Victuals should reduce them into reasonable summes of Money the leavying of which summes they appointed to the Sheriffe taking order withall that he should pay them at the scale or beame that is to say That hee should pay sixe pence over and above every pound weight of money because that they thought that the money in time would waxe so much the worse for the wearing Cambdens Perambulation of Kent fol. 172 173. Vide Littleton libro 2. fol. 26. Note also Gervasius Tilburiensis who lived Anno 1160. Anno 6. Hen. 2. And Cambden fol. 178. It was anciently ordained that all Knights Fees should come unto the eldest Sonne by succession of Heretage whereby hee succeeding his Ancestours in his whole Inheritance might bee the better enabled to maintaine the warres against the Kings Enemies or his Lords And that the Soccage Fee should be partable betweene the Male Children to enable them to encrease into many Families for the better furtherance in and increase of Husbandry See Cookes Preface to the Reader in his Ninth Booke Fol. 2.6 But as nothing is more unconstant then the estate we have in Land and livings if at least I may call that an estate which never standeth even so long since These tenures have been so indifferently mixed and confounded in the hands of each sort that there is not now any note of difference to be gathered by them See Lamberts perambulation of Kent fol. 10. Et quia tale servitium formi secum non semper manet sub eadem quantitate sed quandoque praefat ad plus quandoque ad minus Ideo qualitate Regalis Sencitii quantitate fiat mentio in charta ut tenens vectu tenere possit quid quantum persolvere tentatur Bracton fol. 36. And therefore the certainty of the law in this case is That he that holdeth by a whole and entire Knights see must serve the King or other Lord fortie dayes in the warres well and sufficiently arrayed and furnished at all points and by twenty dayes if he hold but the moitie of a Knights fee and so proportionably vide Littleton fol. 20. Anno 7. E. 3.1333 fol. 246. It was demurred in Judgement whether the 40. dayes should be accounted from the first day of the muster of the Kings Hoast or from the day that the King doth first enter into Scotland but it seemeth that the dayes shall be accounted from the first day that the King doth enter into Scotland because the Service is to bee done out of the Realme And they who hold per regale servitium are not to performe that service unlesse the King doe also go himselfe into the warres in proper person and that by the opinion of Sir William Hall Chiefe Justice of the Court of Common Pleas Term. Trin. Anno. 7. Ed. 3. fol. 246. but see Anno 3. H. 6. Titulo protec 2. In which case it was observed that seeing the protector who was pro Rex went the same was adjudged a Voyage Royall vide Cook 7 part of his reports and in Fitz-â—erbert Natura brevia 28. fol. 83. Also when before the statute De quia emptores terrarum made Anno 18. Ed. 4. the King or other Lord had given Lands to a Knight to hold of him by service in Chivalry to go with the King or with his Lord when the King doth make a Voyage Royall to subdue his Enemies by 40 days well and conveniently arrayed for the Wars In this case the Law hath such regard to the
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 â—â—e 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 â—o Ed. 4.6 H. 6.14 but otherwise it is as â—f a Duke Marquesse Earl or other Title of Honour given by any Forreign King yea though the King by Letters Pattents of â—ife conduct do name him Duke or by any other his forâ—eign Title of Dignity For experience sheweth that Kings joyned in league together by a certain mutuall â—nd as it were a Naturall power of Monarchs according â—o the Law of Nations have denized one anothers subâ—ects and Ambassadors graced with this title of Honour Therefore though a Knight receive his Dignitie of 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 theâ—â— Neighbour Princes to receive Knighthood at theiâ— hands Vide Selden fol. 331. 308. thinking that iâ— was more honourable to take Armes of some other leâ—â— affection might seeme to prevent judgement when thâ— father gave them that honour Thus was our King H. 2. sent unto David King oâ— 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 phraseâ— they used in that age for the making of a knight Vidâ— Camden 174.8 vide Selden fol. 315. And knights in all forraigne Countries have eveâ— 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 Pitzh 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 he 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 see 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 thâ— Father shall be bound to the daughter for so much as thâ— Father received for the Aid And if the Fathers goods bâ— not sufficient his heir shall be charged therwith unto thâ— daughter and this Heir is so incident that although thâ— Lord do confirm unto the Tenant to hold by fealty anâ— certain Rent and release unto him all other services anâ— demands yet he shall have the aid to make his eldeâ—â— 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 therforâ— 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 〈◊〉 judgment and proof to the contrary as Bracton saith Saâ—â—litur presumptioni donec probetur in contrarium And therfore the King who is the Sovereign and Supream Judge of Chivalty 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 â—nd custody both for his Land and for his body vide â—ook 6 part 74 a. And therfore it is provided by the statute of Magâ—â—â—harta Cap. 3. Ita tamen quod si ipse dum infra aetatem fueâ—â—t fiat miles nihil ominus terra remaneat in custodia doâ—inorum suorum So that although
such an heir within age 〈◊〉 made a Knight and therby to this purpose is esteeâ—ed of full age yet the Laws shall remain in the custoâ—â—â— of the Lord till his age of 21. years by the provision 〈◊〉 the said Act. Quere if the son and heir of the Tenant 〈◊〉 the King by Knight-service c. be made Knight in â—aris by the King of France whether he shall be out of â—ardship after the death of his Father or no for therby â—e is a Knight in England Cook 7. par a. 2. E. 4. fo b. tamen â—ide Cooks 6. par 74. b. Mention is only made of Knights â—ade by the King himself or by his Lieutenants in Ireâ—â—nd But when the King doth make an heir apparent withâ—â— age of a Tenant by Knights service a Knight in the â—se time of his Ancestor and after the death of his Anâ—estor the said heir being within age shall in this case be 〈◊〉 of ward and shall pay no value for his marriage neiâ—her shall the Lord have the custody of the Land for in â—hat case by the making of him Knight in the life of his Ancestor he is made of ful age so that when his Ancestor â—yeth no Interest in the body nor in the Land shall inâ—est but the Knight may tender his livery as if he were 〈◊〉 full age and in this case the King shall have primer â—â—ism as if he had bin 21. years old at the time of the deâ—ease of his Ancestor and not otherwise Cooks 8. part fol. 〈◊〉 71. a. for the statute of Magna Charta doth not extend â—nto it For the purpose of it doth extend only when the Heir is in ward infra etatem is made Knight then rema neat torra in Custodia But when the Heir is in ward being Knight in the life of his Ancestor then the Custodâ— cannot remain or continue which had never any inception or essence Also when the Heir after the death of his Ancestouâ— within age is made a Knight if after tender made untâ— him he within Age doth marry else-where yet he shalâ— not pay the Forfeiture of his Marriage For by the making of him Kâ—ight he is out of ward and custody of hiâ— Lord for then he ought to be sui juris and may imploy himself in Feats of Arms for defence of ths Realm and therfore may not be within the Custody or keeping of another but none shall pay any Forfeiture but when after refusall he doth marry himself during the time when he is under the Custody or keeping of his Lord. And this doth appear by the statute of Merton cap. 6. Si maritaverit sine licentia Domini sui ut ei auferat Maritagium suum c. Which Words cannot be understood when he is out of Ward and Custody no more then when he is married after his age of one and twenty years Note hereby may appear that the King may preâ—ent his Grant or other Lords of the double value by Knighthood yet in such a Câ—se presently after the Heir is made Knight after the Death of his Ancestour the Lord may have a Writ de valore Marigii for the single Cooks 6. part 74. and 75. and note Plowden f. 267. Also by the ancient Common-law of this Realm if a Villain be be made a Knight he is immediatly enfranâ—ranchized Olanvile lib. 5. cap. 5. f. 27. and Bracton lib. 4. â—ap 198. b. Or if a Ribauld or man of base Birth and Condition had â—trucken a Knight he should by the ancient Laws have â—ost his hand wherwith he offended Britton 19. in his â—ppeales But in France it was judged antiently that when a â—ord of a villain had Knighted his villain being a Gentleman he became Free and had the Honor lawfully â—ut if another Lord had Knighted him nothing had bin â—rought by it For none could mannue him but the Lord and till Mannumission or till Knighthood had ciâ—ill Freedome for his ground he was not capable of it â—xcept by the King only vide Seldens Titles of Honour fol. 318. It was enacted in Parliament Anno 6. Ioh. Regis in â—ec verba Rex vicecom c. Sciatis quod consensum est cum assensu Archieporum Comit. Baronium omnium fidelium urum Angl. quod Novem milites per totam Angl. invenient decimum militem bene paratum equis Armis â—d defensionem Regni nostri vide Cook before his ninth Book b. There hath ever bin and still is great use of the service of Knights even in civil affairs and concerning matters of Iustice as in a Writ of right which is the highest writ in the law for the trials of titles touching the inheritance of lands the Tenant is at election to have his tryall by a grand assize or else by battle if by the great assize then 〈◊〉 de magna assiza Elegenda shâ—ll be taken out And upon the return of that Writ those four Knights nominated must appear Gladiis cinctis Dyer 79. f. 103. If the Tenant make his election by Battle each parties are to choose their Champions and the Court shall award the Battle and the Champions shall be a mainprise and sworn to perform the Battle at a certain day in the Term and idem dies shall be given to the parties at which day and place a List shall be made in an even and plain ground their Squadrant that is to say every square 60. foot East West North and South and the place or Court for the Justices of the Common Pleas without and upon the Lists furnished with the same Cloths which belong to their Court at Westminster and a Barre there shall be made for the Sergeants at Law and the Robes of the Justices and Sergeants shall be of Scarlet with their Coifes as it was Anno 13. Eliz. and then was made Proclamation with three O. yes c. and the Demandant was first solemnly demanded and did not appear Wherupon the Mainprise of the Champion was demanded to bring forth the Champion of the Demandant who came to the place apparelled with red Sandalls upon his black Armour bare legged from the knee downwards and bare headed and bare Arms to the Elbowes being brought in by a Knight namely by Sir Ierome Bowes who carryed a Red Baston of an Ell long typt with horn and a Yeoman carrying the Target made of double Leather and they were brought in at the North side of the Lists and went about the sides of the Lists and then came towards the Bar before the Justices with their solemn Congies and there was he made to stay on the Southside of the place being the right side of the Court. And after that the other Champion was brought in like manner at the South-side of the lists with like congies by the hands of Sir Henry Cheney Knight and was placed on the Northside of the Barre and two Serjeants being of the counsell of each party in the midst betweene them this done the Demandant was solemnly called
againe and appeared not but made defanit Bucham Serjâ—ant for the Tennant prayed the Court to record the non-suite quod factum fuit and then Dyer chiefe Iustice reciting the Writ and Count and issue joyned upon the battaile and the oath of the Champion to performe it and the prefixion of his day and place did give Iudgement against the Demandant and that the Tennant should have the Land to him and to his heires for ever And the Demandant and his pledges de prosequendo in miserecordia Reginae and afterwards solemne Proclamation was made that the Champions and all other there present which were by estimation four thousand persons might depart in the peace of God the Queen Et sic fecerunt magra clamore vivat Râ—gina vid. Dy. 30. Also if false Iudgement bee given in the county in the Sheriffes Court then the Writ shall be directed unto the same Sheriffe and the writ shall bee thus viz. Henricus c. vic' Lincoln ' saltum si Jo Afec ' tunc inpleno Comitat. tuo recordari fac ' loquar que est in eodem Comitatu tuo per bre ' nostri de recto inter Iohannem a pretend W. B. tenent ' de vno messuagio centum acres terrae câ—m pertinena ' in Com' unde idem Io acqueritur falsum sibi factum suisse Iudicium in eodem recordo illud litter ' coram Iustic ' nostris apud Westm ' tali die sub sigillo tuo et legales milites ejusdem Com' illis qui record ' illi interfuerunt som ' per bonos somonon ' pred' B. quod tunc et ibi anditurae recordum illud et habeas ibi sun ' nostra quatuor militum et hoc bre ' Fitz. H. Nat. br ' et ibid. and these foure must be Knights indeed Also the Iustices upon consideration of the usuall words in every Writ of Venire facias which by precipimus eibi quod venire facias ceram c. 12 tam milites quamalios liberos et legales homines c. Say that these words tam milites were not at the first put into the Writ without effect Plowden fol. â—17 b. For it seemeth that in diâ—bus illis some Knights were returned upon every â—enire facias By the Statute of Magna Charta cap. 12. It is ordained that Assizes of Novell diseisin and Mors. Dancestor should not be taken any where but within the Counties where they happen If a Tennant doe lay an essoyne de malo lecti he may have a Writ out of the Chancery to warrant it by which it shall bee commanded to foure Knights to view him and if they see him sicke then they are to give him day to the end of a yeare and a day Finches booke 87. b. note the Register fol. 117. b. quod corceratur non obligatur nisi sit miles c. juxea fornam statuti Westm 1. cap. 10. Stamfords pleas fol. 40. It is a received opinion that Knights are excused from attendance at Leets Britton 29. and 36. is cited to prove it and by a large understanding of the intent and meaning of the Statute of Marlbr cap. 10. For the ancient Common-law hath such respect unto the degree of knight-hood that they or their eldest sonnes were not compellable to find pledges in the Leet or Law-dayes For the Statute of Marlbr aforesaid was not introductive legis For it was before the Conquest vide the Lord Chancellors speech fol. 77. and the Common-law by this Statute is not alleadged and to that effect vide Finches Booke fol. 132. a. and Bro. tit fol. 39. and to the booke called the Mirrour of Iustice mentioned in the Preface to Cooks ninth part it is said that Knights are excepted and so it appeares that the practise was as well before as immediatly after the making of that Statute of Marlb and interpretation practica a principle way and forme of interpretation of Lawes The Lord Chancellors speech in the case of Post-nati 34. and in Divinity Propter sanctorum est interpretes preceptorum ibidem 66. But a Knight and superiours and inferiours are bound by Law to take notice of the proceedings there For if a man be out-lawed for felony at a Countie Court and one of the same County not knowing of the felony doth receive him hee is accessary 13. 14. Eliz. Dyer 355. a. et Stamford 96. et 41. Eliz. Also when the King doth summon to his Parliament Writs shall bee sent to the Sheriffe to make choice of Knights for every shire in this forme Rex vlc ' c. saltim quia _____ nostri Consilii pro quibusdam arduis urgentibus negotiis nos statum et defensionem regni nostri Anglia Ecclesiae Anglicanae concernen ' quoddam Parliamentum nostrum apud civitatem nostram Westm 12. dâ—e Novembr prox ' futur ' teneri ordinavimus et ibidem prefatis magna tibus Proceribus dom ' regni nostri colloquium habere et tractare tibi precipimus firmiter injungentis quod facta proclamatione in proximo _____ tuo poâ—t receptionem hujus litteris nostris tenen l' die loco praedict ' dâ—os milites gladiis cinctis magis idoneos discret ' com' praedict c. electionem illam in _____ distincte aperte sub sigillo tuo sub sigillis eorum qui electioni illi interfuerint nobis in Cancellaria nostra _____ locum certifices indilate Cromptons Courts 1. b. vide Stat. de An. 23. H. 6. cap. 15. Where amongst other things it is enacted that the Knights of the Shires for Parliaments hereafter to bee chosen shall bee naturall Knights of the same County for the which they shall bee so chosen or otherwise such naturall Esquiers or Gentlemen being of the same County as shall bee able to bee Knights vide Plowden fol. 121. Peeres are by intendment of Law sufficient of Freehold and that is one of the reasons whereof no capias or exigent lyeth against him for debt or trespas but the Law hath not that opinion of the Knights sufficiency of Freehold for bee may bee a Knight Sans terrae therefore 26. H. 8.7 a. Brooke Exigent 72. and then hee is to bee returned of any jury or inquest howsoever hee may bee worthy and sufficient to serve the Common-wealth in Marshall affaires The wives and widdowes of Knights in legall proceedings and in Courts of Iustice have not the titles of Ladies as the wives or widdowes of Noblemen have but that title by the curteous speech of England And if in any action they be not called Ladies for that cause the writ shall not abate for that surplusage Anno 8. H. 6.10 because Dominae is generally as men Domini so women after 14. yeares of age called Dominae Ladies or Dames and which were antiently navigeable women were called Dominae and by our English Poets Dames First Dominae is often for women generally as speciall Honour for that sex not being
out of use with us at this day nor with the French as also amongst the Italians Dominae for them is familiar vide Seldens title of Honour 1. part fol. 53. But if shee bee named Countesse or Baronesse shall abate the writ 14. H. 6.2 And Cookes 6. part des reports 53. b. By the statute of Magna charta cap. 21. Knights are free from cart taking that no Demeasne cart of them shall bee taken By the statute of 1. Iac. cap. 27. It seemeth that Knights may keepe Greyhounds and setting Dogges or Nets to take Pheasants or Partridges in though they cannot dispence 10. l. per annum nor bee worth 200. l. For the expresse words of that statute are that all the Sons of Knights are excepted Observations concerning a Knight Batchelour A Knight Batchelour cannot claime the priviledge that Knights have from cart-taking by Magna charta cap. 21. A Knight Batchelours Sonne cannot keepe a Greyhound because hee is not within the statute of 1. Iac. cap. 27. unlesse hee have 10. l. Lands c. Quars whether the Knight Batchelours addition doe abate any action c. If one bee Knighted in the life time of his Father it frees him of wardship but è contrario of a Knight Batchelour Knights are excused from attendance at Leets but so are not Knights Batchelours Of Esquires ALthough by the Civill Law there bee no Gentlemen of title under Knights but all the rest wont under the name of people yet with us there are in the ranke who have names of preheminence whereby they are in degree above the rest as Esquiers and Gentlemen all which give ensignes or coates of armes and thereby are distingnished from the meaner sort of people in which respect Bartol Tract de Insignis calleth Noble but of a weake Nobility for it hath no further prerogative in it then that it makes them differ from the baser sort of people Of these two sort of Gentlemen with us the Esquire hath the Prerogative priority but it seemes if an Esquire bee named Gentleman or a Gentleman bee named Esquire it is no vice in legall proceedings Brooke additions 44. Esquire seemeth by the Common name wee give him in Latine to have had his originall either for that hee carried the armour of the King Duke or other great personage as wee see not onely in the Scriptures as Saul and Jonathan had their armour bearers but in Poets and other Prophane stories Patroclus was Achilles his armour bearer and Clitus great Alexanders whereupon some write that hee whom wee call Armiger in Latine is a Foot-man that with a speare shield or head peece followeth an armed Knight in battaile or rather as some others suppose It is the Foot-man himselfe armed in the field but howsoever the word bee taken this is sure those men were of good accompt in old time as those who wonne themselves credit out of warre and so their estimation remained unto their posterity And as those were in time before so are these which are in our dayes as descending for the most part from their worthy Ancestours and our bookes of the Common Law doe distinguish them thus that is to say Knight-hood is a dignity but Esquires and Gentlemen are but names of worship An. 14. H. 5. And Brooke in his Abridgement in that case T it nosmer de dignity 33. saith to bee a Knight est Gradus but to bee an Esquire or Gentleman est Status For Gradus continet Statum inse non è contrari vide Thesoal 105. concerning this word worshipfull read in the printed booke Master Seldens title of honour Prima pars fol. 124. sequentia In time past every Knight had two of these waiting upon him they carried his morion and shield and as inseperable Companions they stuck close to him because of the said Knight their Lord they had certaine lands in escuage like as had the Knight himselfe who held them of the King by Knights service The beginning of armes in Europe amongst Christians is supposed from the â—oly warres for the Turke paint them not and so with us aâ—out H. 3. They became more hereditarily established and when the Prince enabled any hee gave them the partiâ—ular of his bearing in Blason Master Seld n in his Preface fol. 5. where you may also see an example in the Raigne of R. 2. But now adayes there are five distinct sorts of these for those whom I have spoken already bee now no more in any request the principall Esquires at this day are accompted those that are elected Esquires for the Princes body The next unto them be Knights eldest Sonnes successively In a third place are reputed younger Sonnes of the eldest Sonnes of Barons and of other Nobles of higher estate and when such Heires Males failes together with them also the title faileth In a fourth ranke are reckoned those unto whom the King himselfe together with the title giveth armes or createth Esquires by putting about their necks a silver Collar of S. S. and in former times upon their heeles a paire of white spurres silvered whereupon at this day in the West part of the Kingdome they are called white spurres and to the first begotten Sonne onely of these doth this title belong In a fift and last place be those ranked and taken for Esquires who have any superiour publike office in the Common-wealth or serve the Prince in any worshipfull calling at the Coronations of Kings and Queenes Knights of the Bath are made men of worth and honourable blood to the end that their Majesties may bee accompanied in their owne honours every of which Knight having two Gentlemen to attend him in that Ceremonie who are ever after enabled by that service to be Esquires during their lives But this name of Esquire which in ancient time was a name of charge and office only first crept in amongst other titles of dignity and worship so farre as ever I could observe In the raigne of R. 2. Camden fol. 176. vide Sir Thomas Smith de republica Anglorum fol. 26. where saith he that the Esquire is no distinct order of the Common-wealth and hereof see the statute of An. 16. R. 2. cap 4. and an ejusdem Regis cap. 2. A Serjeant of the Kitchin in the Kings house may beare the name and addition of Cooke or of Esquire by the opinion of Newton But Ienny said that such officers of the Kings House-hold would be much agreved if they should be named by their trade or occupation Paston peradventure faith in that case the writ may be good because of the Statute Anno 1. H. 5. cap 5. For the Statute is That hee shall be named of the Towne degree state condition or mysterie And when hee was named Cooke hee observed the Statute For hee hath named him by his name of mysterie and yet hee may be in that case an Esquire and a Cooke 14. H. 6. fol. 15. If a man be an Esquire or Gentleman only by office and lose his
for the saving of his tenancy being minded to pay all the arrerages before judgment given against him as by the Law hee ought to doe in this case hee must come in proper person and not by Atturney 15. H. 7.9 b. If a noble man in contempt of any processe which hath beene awarded from out of any the Kings Courts doth make rescous and wilfully doth refuse to obey the said writ and the same his offence doth appeare of record to the Court by the Sheriffs returne there may be and shall be awarded against him a Capias 1 H. 5. Case ult 27 H. 8.22 Cooks 6. part 54. If any Lord doe depart this Realm as Ambassadour or otherwise by the Kings lincence or without licence and doe not returne at the Kings Commandement or upon the Kings writ under his privy Signet the King may seize his lands goods and chattells Dyer 108. b. 17. the Dutchesse of Suffolks case If a Lord arrested upon a Supplicavit for the peace doe wilfully refuse to obey the arrest and make rescous upon his returne shall issue an attachment against the said Lord for his contempt to take his body and this is the way to obtaine peace against any Lord of the Parliament whereas the party could not have an attachment against him if the Subpoena had beene duly served and peaceably accepted although the said Lord had not appeared thereunto Cromptons Justice of Peace 134. If a Lord of the Parliament doth with force and arms detaine a man in prison in his House or elsewhere the remedy is in such cases by himselfe or his friends abroad at liberty to have a writ called de homine replegiando to deliver him but if the Lord to prevent the execution thereof and of malice doe keep or convey away this man so wrongfully imprisoned so privily as that the Sheriffe cannot execute his said writ then will the Court award a Witheram whereby the Sheriffe shall attach and arrest the body of the said Lord and imprison him untill he doe deliver his said prisoner 11 H. 4.15 All Lords are compellable to take the Oath mentioned in the Statute of 3 Jac. 4. vide the Statute 7 Jac. cap. 6. who have authority to minister the said Oath to them Bracton lib. 5. fol. 337.6 H. 3. 351. writing of essoines delivereth this learning that if a Baron that holdeth by Baron tenure have his absence excused by essoine he which casteth such essoine or excuse ought to finde surety that the said essoine is true but in case of common persons it shall rest upon the credit and integrity of the Essoince and so is the use at this day The Statute of magna charta cap. 1 a. is quod liber homo non amercietur pro parvo delicto nisi secundum modum illius delicti pro magno delicto secundum magnitudinem delicti nulla praedictarum miscricordiarum ponatur nisi per Sacramentum proborum legalium hominum de vicinate and accordingly is the Law thereunto at this day But the subsequent words in the said Statute viz. Comites Barones non amercientur nisi per pares suos non nisi secundum modum delicti are not in use for whether the offence be great or small for which they are to be amerced their amercement must be certaine viz. of a Duke ten pound and of any other of the Nobility Also whereas the amercement should be offered per pares the use is to offer them by the Barons of the Exchequer Cooks 8. Rep. 40. Bracton lib. 3. Tractat. 2. cap. 1. fol. 116. b. When a Peere of the Realme is arraigned in Appeale of Fellony he shall not have that priviledge to bee tried by his Peere as he should in case of Inditement but must undergoe the ordinary triall of twelve men Stamford Pleas of the Crowne lib. 3. cap. 1. Brook triall 142. Ferdinando Poulton 188. b. Read the book of Entries title appeale Sect. 7. also in Case of an Inditement the Defendant though a Peere of the Realme may not challenge any of his Triers either peremptorily or upon causes which in like cases permitted to all other common persons The Judgement to be given against any Lord of the Parliament in case of Felony or Treason shall be no other than according to the usuall judgement given against common persons and although the execution be not pursuant but with the losse only of their heads yet that is by the speciall grace of the King and not ex debito as by the examples of Thomas Lord Dacre 33. H. 8. and of the Lord Sturton 2 Mariae may appeare Brook tit Jury 48. By attainder of Treason or Fellony is corruption of blood so that their Children may not be heires unto them nor unto any of their Ancestors And if hee were a noble man before he is by the attainder made ignoble and not only himselfe but also his Children having no regard unto the Nobility which they had by their birth and this corruption is so strong and high that it cannot be saved by the Kings pardon or otherwise than by authority of Parliament Stamford Pleas del Coronae lib. 3. cap. 34. But here it is to bee observed that Nobility is not a thing substantiall but meere accidentall for that may be present or absent without corruption of the Subject whereof it dependeth for experience sheweth that the passage of honourable titles are restrained by exorbitant crimes when as nature in the meane while cannot bee thrust away with a fork Wherefore although the Lawyers doe terme and call that extinguishment of Nobility which hapneth by such hainous offences committed as corruption of blood neverthelesse they use not this manner of phrase and speech as though Nobility were naturally and essentially in the humour of blood more than any other hereditary faculty but because the right of inheritance which is by degree of communication of blood directed is by that meanes determined and ended and also in regard of the hatred and detestation of the crime it is called corruption of blood note in Dyer 16. Eliz. 332. the Lord Charles Howards case If one be made a Knight in a forraigne Kingdome by a forraigne Knight yet he is to be so stiled in this Realme in all legall proceedings but if a man be created by the Emperour an Earle of the Empire or into any other title of dignity he shall not beare this title here in England Cooks 7. part 16.20 E. 46. If there be a Father and Sonne and the Father is seised of lands holden in Capite or otherwise by knightly service the King doth create the same Duke and Earle or of any other degree of Nobility and afterwards the Father dieth his Sonne being within the age of one and twenty yeares he shall be in ward but if the King had made him Knight in the life of his Father he should not have beene in ward after the death of his Father neither for the lands descended
or for his marriage though he be within age Cooks 6. part 74. in Druries case Nobility and Lords in reputation onely THere are other Lords in reputation and appellation who neverthelesse are not de jure neither can they enjoy the priviledge of those of the Nobility that are Lords of the Parliament The sonne and heire of a Duke during his fathers life is onely by curtesie of speech and honour called an Earle and the eldest sonne of an Earle a Baron but not so in legall proceedings or in the Kings Courts of Iustice Brook Treason 2. But the King may at his pleasure create them in the life of their Ancestors into any degree of Lords of the Parliament Cook 8. part 16. b. A Duke or other of the Nobilitie of a forraigne Nation doth come into this Realme by the Kings safe conduct in which the Kings said Letters of Conduct he is named Duke according to his Creation yet that appellation maketh him not a Duke c. to sue or to be sued by that name within England but is onely so reputed But if the King of Denmark or other Soveraigne King come into England under safe conduct he during his aboad in England ought to bee stiled by the name of King though hee have not merum imperium out of his owne Kingdome yet he shall retaine honoris titulos Cook 7. part 15. b. sequentia All the younger sonnes of the Kings of England are of the Nobility of England and Earles by their birth without any other Creation and onely Lords in reputation And if an English man be created Earle of the Empire or of other title of honour by the Emperour he shall not beare the title in England and therefore is an Earle onely in reputation A Lord of Ireland and Scotland though he be a Postnatus is not a Lord in England in legall Courts of Iustice though he be commonly called and reputed a Lord. NOBLE VVOMEN ALthough Noble women may not sit in Parliament in respect of their sexe yet they are in the law Peeres of the Realm and all or most of the Prerogatives before mentioned which to Noblemen are belonging doe also appertaine to them Cook 8. part 53. But the opinion of some men hath been that a Countesse Baronesse or other woman of great estate cannot maintaine an action upon the statute de scandalis Magnatum because the statute of 2. R. 2. cap. 5. speaketh but of Prelates Dukes Earles Barons or other Nobles and other great men of the Realme and of the Chancellour Treasurer Clarke of the Privie Seale Steward of the Kings house Iustice of the one Bench or of the other great officers of the Realm by which words they conceive the meaning of the makers of that statute was onely to provide in that case for Lords and not for women of honour Crompton Justice of Peace 45. b. Also if any of the Kings servants within his Check-roll doe conspire the death of any Noble man it is not felony within the compasse of the statute 3. H. 7. cap. 13. Honourable women are of three sorts By creation by Descent or by Marriage King Henry the eighth created Anne Bullen Marchionesse of Pembrook and so may the King create any woman into any title of honour as to his Highnesse shall seem good As the King by by his Letters Patents openly read in the Parliament did create _____ Widow the sole daughter of _____ late Baron of Abergavenny Baronesse De le Spencer Cambden 63.6 Noble women by descent are those to whom either the lands holden by such dignity do descend as heir and they are said to be honourable by tenure or those whose Ancestors to whom they are heires were seised of an estate descendable unto them in their titles of Dukedomes Earldomes or Baronies or those whose Ancestors were summoned to the Kings Parliament for thereby also an inheritance doth accrue to their posterities Noble women also are those who do take to their husbands any Lord or Peere of the Realme although they of themselves were not of any degree of Nobility Fortescue de laudibus legum Anglia fol. 100. Question and doubt hath been made whether if a man be summoned to the Parliament and afterwards die without issue male the dignity and title of honour may descend to the heire female and many arguments have beene made pro contra in that which at this time I doe purposely omit because I have before discoursed thereof in the title of Barons in this Treatise Concerning the title of honour descendable to the heire female by reason of a tenure in her Ancestor there need no more doubt to be made than of offices of honour the which doe much import the publike wealth and being of estate of inheritance doe descend to the heire female if there be no heire male as the office of high-Constableship of England challenged in the time of H. 8. by the Duke of Buckingham and judged by the advice and resolution of the Judges as by a note of that case extant whereof my Lord Dyer in his Reports hath a memoriall is most evident Dyer 283. b. Kellaway 6. H. 8.170 b. which descended to the daughters of Humphrey de Bohun Earle of Hereford and Essex as afore is declared the office of a Lord Steward descended to Blanch daughter of Henry Earle of Lancaster in whose right John of Gaunt her husband enjoyed the same The like may be said of the office of Earle Marshall which descended by an heire female unto the house of Norfolk all which offices are as unfit to be exercised by a woman as it is unfit for a woman to be summoned to the Parliament as Baronesse by writ as before is written And when the title of honour doth descend to a woman if question in Law doe arise betweene the noble woman and any other person whether she be of that degree of noblenesse or no the issue shall be tried by the Record thereof and by the Kings writ it shall be certified and not by a Jury of twelve men even as it should be in case her Ancestors had beene party Cooks 6. part 53. 7. part 15. Although the Lawes of this Realme regularly doe make all the daughters where there are no sonnes equally to inherit Lands and Tenements and to be but one heire to their Ancestor yet it is not so in the descent of dignities and titles of honour for inheritances concerning matters of honour being things in their nature entire paticipating of superiority and eminency are not partable amongst many and therefore must of necessity descend unto one and that is to the eldest daughter sister aunt or cosin female inheritable where there is no heires males that may lawfully challenge the same and so in this point is the civill Law Neverthelesse there was a Judgment in the time of H. 3. touching the descent of the Earldome of Chester after the death of the Earle who dyed without issue his sisters being his