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
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
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
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
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
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
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
remember that in our Law books I have read any thing concerning the Order of Knights with addition viz. Knight of the Honourable Order of the Garter Knight of the Bath Knight Barronet Knight Banneret But in the statute of 21. H. 8. cap. 13. where it is thus enacted Every Knight of the Garter may have three Chaplains wherof every one may purchase license or dispensation and receive have and keep two Benefices with tare of souls and they of this Order wherof I have now writ are called Knights of the sput and Butcher Knights And so it is used in the statute of 13. R 2. cap. 1. and in the statute of 3. Ed. 4. cap. 5. Hereof see Cambden 176. and M. Seldens Title of Honours fol. 336. Between Doctors of the Civill law and Knights have â—ver bin question for precedency and Serjeants at law since either of them have obtained credit in the Common-wealth as may appear by the comparison that Tully maketh between Mucius Maurena a Knight of Rome and Publius Sulpicius a Lawyer either of them standing for the Consulship In his Eloquent Oration mâ—de for Murena and many Disputes of Bardell and Bardus arguing the Case to and fro which although it be yet disputable in forreign Countries where the civill law is in credit yet here amongst us in England it is without controversie and so the precedency thereof is undoubtedly in the Knight and Sergeant at law in regard of their Callings But if they both are of equall degree of knighthood or a Serjeant at law not Knight then it goeth otherwise as by Knighthood by Seigniority and by Serieantship by the Kings Writ and degree allowed thereupon Dr. Ridley 95. and so Selden his Titles of Honour fol. 55. touching part of this Discourse not all The opinion of some men hath lately bin that Knights Lieutenants that is to say such as have beene Ambassadours to forraigne Princes or Judges within the Realm may and ought to have during their lives precedencie above men of their owne rankes after these their Offices expired and many of them doe stand strongly hereupon sub judice lis est not determined by judgement but admitting it to be so by way of Argument in that case yet all the Heraulds doe utterly deny that priviledge to the Maior of London and Aldermen or Justice of the peace who have their limited Jurisdiction of Magistracie confined within the compasse of their owne walls and divisions But touching the former they are generall Magistrates throughout the Realme and their imployment concerneth the whole Common-weale and having the publike Justice of Honour of the whole estate committed unto them do more meritoriously draw from thence a greater respect of honour according to the generallitie of their administrations and imployments which an inferiour and more confined Magistrate may have The name of a Knight is the name of Dignity and a degree as is the name of a Duke Earle c. But in all actions he shall be named Knight otherwise the Writ shall abate See Thetwall lib. 3. cap. 3. A Knight also must be named by the name of Baptisme and by his sirname as Sir Ierome Bowes Knight but those of degree honourable who are made by pattent may be named onely by their Christian name and by their title of honour as Iohn Earle of Clare and that for two causes first because of their solemne creations it is notorious et nomen dicitur a noscendo Secondly there is but one of that title of honour within England and therefore it is certaine what person he is but otherwise of Knights as it is certainely knowne in Anno 8. Edw. 4. 24. a. And Priscot Chiefe Justice saith in 32. H. 6. fol. 26. b. that if an Esquire be made a Knight hee loseth his name of Esquire but albeit a Knight may be made a Nobleman or of any high degree he still retaineth the name of Knight and so ought to be stiled in the making of all Writs See Milles fol. 81. Also if a man do recover in an action by the name of Iohn Stibes Esquire and afterwards he is made a Knight he must sue out his Scire facias by the name of Knight Vide Long. anno 5. Ed. 4. fol. 19. And this name shall not dye with him for if hee were bound by an Obligation by the name of Gentleman or Esquire and afterwards is made Knight and dyeth the Plaintiffe in the Action to be brought against his Executors must name him Knight otherwise the Writ shall abate Vide anno 7. H. 4. 7. 6. 26. Ed. 3. fol. 64. a. Thomas Ormond was attainted by Parliament by the name of Thomas Ormond Knight whereas hee was no Knight he shall not forfeit any thing by that attainder because it cannot be intended the same person for this word Knight is parcell of his name 21. E. 4. fol. 17. a. If a Grant be made to H. Knight when he is no knight it is a void Grant But if it be a Feofment in Fee with livery of seisin the livery it maketh good Vide Brock titulo Grants 50. Anno 4. H. 6. If the Plaintiffe or Demandant do in his Writ name the Defendant or Tenant Esquire when he is a Knight the Writ shall not only abate but also the Plaintiffe or Demandant may not have another writ by Iournier account Finches book 59. Vide Cooks b. part de les Reports 1. b. But by the statute Anno 1. Ed. 6. cap. 7. It is amongst other things Enacted that albeit any person or persons being Justices of Assise Justices of Goal delivery or Justices of the Peace within any of the Kings Dominions or being in any other of the Kings Commissions whatsoever shall fortune to be made or created Duke Arch-Bishop Earl Marquesse Viscount Baron Bishop Knight Justice of the one Bench or on the other or Sergeant at Law or Sheriffe yet notwithstanding he and they shall remain Justices and Commissioners and have full power and Authority to execute the same in like manner and Form as he or they might or ought to have done before the same By the statute of Anno 5. H. 5. cap. 5. It is enacted as followeth That every Writ originall of accounts personall appeals and Indâ—ctments shall be made with the addition of their Estates and Degrees c and a little after it is provided That if the said Writs of accounts personall be not according as the record and deed by the surplusage of the additions aforesaid that for this cause they are not Iohn a Stile Gent. is bound by obligation to one A. B. the Obliger is afterwards made Knight the Bond is forfeited A. B. by his Attorney draweth a note or title for an originall Writ according to the defendants degree though it vary from the originall specially as it ought to be made by the statute But the Curfitor mistaking did make the originall only according to such addition as was specified in the Obligation omitting his degree
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
Anno 8. H. 6. 10. because Dominae is generally aâ— 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 aâ—num 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 châ—rta 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. Quaere whether the Knight Batchelours addition doe abate any action c. If one hee Knighted in the life time of his Father it frees him of wardship but e 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 went 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 in se non e 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 holy warres for the Turke paint them not and so with us about H. 3. They became more hereditarily established and when the Prince enabled any hee gave them the particuler of his bearing in Blason Master Seldâ—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 saith 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
their places and then may proceed upon any thing there moved lawfully as lawfull persons for it is not convenient that they who are attainted should be in places of law full Judges And then another question was moved What shall be said of the King himself for he also was attainted by his Predecessour Rich. 3. and after communication had amongst themselves all did agree that the King was a person able and discharged of any former attainder ipso facto That he took upon him to raign and to be King by which it manifestly appeareth that by the Laws of England there can be no inter regnum within the same that presently by descent the next heir in blood is coÌ„pleatly and absolutely King without any essentiall Ceremony or act to be done ex post facto And that Coronation is but a royall ornament and outward solemnization of the descent and of this last matter Read Cooks 7 part fol. 10. 6. and that there followeth Of Dukes THe form of the Patent of Duke of York that now is Rex c. To all Archbishops Bishops Dukes Marquesses Earls Viscounts Barons Justices Governours Knights Ministers And to all Bailiffs and faithfull Subjects greeting Whereas We often times call to minde how many and innumerable gifts and what excellent benefits that great worker of all goodnesse of his only benignity and clemencie hath abundantly bestowed upon Us who by his power hath consociated divers and mighty Lyons in firm peace without any strife but also hath amplified and exalted the bounds and limits of our Government by his unspeakable providence above our progenitors with an indissolvible conjunction of the ancient and famous Kingdoms in the right of blood under our Imperiall Diadem in regard whereof we cannot but most willingly acknowledge our fruitfulnesse and issue plentifully adorned with the gift of Nature which he hath vouchsafed upon us because in truth in the succession of children a mortall man is made as it were immortall Neither unto any mortall men at leastwise unto Princes not acknowledging superiours can any thing happen in worldly cases more pleasant and acceptable then that their children should become notable in all vertues gooodnesse manners and increase of dignity so as they which excell others in noblenesse of bloud and indowments of Nature might not be thought of others to be exceeded Hence it is that that great goodnessâ— of God which is shewed unto us in our fertility to passe in silence or to be thought not to satisfie the Law of Nature whereby we are chiefly provoked to be well affected and liberall to those in whom we behold our blood to begin to florish coveting with great and fatherly affection that the perpetuall memory of our blood with honours and increase of dignity and all praise may be affected Our well-beloved Son Charls Duke of Albany Marquesse of Ormond Count of Rosse and Lord of Ardmannoth Our second begotten son in whom the Royall form and beauty worthy honour and other gifts of vertue do now in the best hopes shine in his tender graces We erect create make and ordain and to him the name stile state title dignity authority and honour of the Duke of York do give and him of that Name with the title state stile honour authority and dignity with other honors to the same belonging and annexed by the girding of the sword cap circlet of gold put upon his head and the delivery of a golden Virge we do really invest to have and to hold the same name and stile state and dignity authority and honour of the Duke of York unto the aforesaid Charles our second begotten son and to his heirs males of his body lawfully begotten for ever And that the aforesaid Charles our second begotten son according to the decencie and state of the said name of Duke of York may more honorably carry himself we have given and granted and by this our present Charter we confirm for us and our heirs unto the aforesaid Duke forty pounds to have and yeerly to receive to the foresaid Duke and his heirs for ever out of the Farms issues profits and other commodities whatsoever comming out of the foresaid County of York by the hands of the Sheriffe of the same County for the time being at the Terms of Easter and Michael the Arch-angel by even portions for that expresse mention of other gifts and grants by us unto the same Duke before time made in these presents made doth not appear notwithstanding These be witnesses the most excellent and most beloved Henry Prince our first begotten son Vlrick Duke of Holst brother of the queen our beloved wife and the Reverend Father in Christ Richard Archbishop of Canterbury Primate and Metropolitan of all England and also our welbeloved and faithfull Councellour the Lord Elesmore and Chancellour of England Thomas Earl of Suffolk Chamberlain of our houshold and also our dear cousin Thomas Earl of Arundel and our well-beloved cousin and Councellour Henry Earl of Northumberland Edward Earl of Worcester Master of our horse George Earl of Cumberland and also our well-beloved cousins Henry Earl of Southampton William Earl of Pembroke and also our well-beloved cousins Charles Earl of Devon Master of our Ordinance Henry Earl of Northampton Warden of the Cinque-Ports John Earl of Marr Robert Viscount Eranborne our principall Secretary and our well-beloved and faithfull Councellour Edward Lord Zuch President of out Councell in the Principality and Marches of Wales and also our wel-beloved and trusty Robert Lord Willoughby of Earsby William Lord Mounteagle Gray Lord Chandois William Lord Compton Francis Lord Norris Robert Lord Sidney our well-beloved and faithfull Councellours William Lord Knowles Treasurer of our houshold Edward Lord Wotton Comptroller of our houshold and our well-beloved and faithfull Councellour Alexander Lord and also our wel-beloved and faithfull Councellors George Dunbarr Lord of Barwick Chancellour of our Exchequer Edward Lord Bruse of Kinlose Master of the Rolls of our Chancery and also our faithfull and well-beloved Thomas Lord Eskine of Bielton Lord Balmermoth and others given by our hand at our Pallace of Westminster the sixth day of January in the second yeer of the Raign of K. James K. Edw. 3. in the 11 year of his Raign by his Charter in Parliament and by authority of Parliament did create Edw. his eldest son the Black-Prince D. of Cornwall not onely in title but cum feodo with the Dutchy of Cornwall as by the tenour of the said Letters Patents exemplified may appear Cookâ— 8 part in the pleading Habend ' et tenend ' eidem duci et ipsius et heraed ' suorum Regum Angliae filiâ—s primâ—gâ—niâ—is et dicti loci dâ—â—ibus in Regno Angliae bereditatoriae successoris To have and to hold to the same Duke and his heirs Kings of England the first begotten sons and Dukes of the same place in the kingdom of England and to hereditary succession so that he that is hereditable must be heir