King of England as also to our selfe by our Letters Patents doe grant and give licence for us and our heires so much as in us lyeth to the said Edmond to dispose and give all his Manours Lands Tenements and Knights fees with their appurtenances and Advowsons of Churches Abbies and Priories and Hospitalls which he holdeth of us in chiefe to whom he pleaseth To have and to hold to him and his heires for us and our heires by the service thereof for ever By which Grant the said Edmond gave all his Lands and Tenements to one William sonne of John Deyncourt and to his heires of his body comming And the said Edmond dyed the last yeere of Edward the second and the said William in the time of Edward the third was summoned among other Barons to the Parliament by vertue of the same gift untill his death which was Anno 3. E. 3. It appeareth by divers offices in the time of King Edward the third that John Handlow in the right of Maud his wife was seized of the Mannour of Holgate Acton Burnell c. for terme of her life remainder to Nicolas Handlow alias Burnell sonne to the said Maud and John by a fine in the Court levied and that John Lovell was next heire of the said Maud and her first-borne sonne by her first husband and afterwards the said Nicolas was summoned among other Lords to the Parliament by reason of the fine aforesaid and not the said John Lovel who was next heire Edward Burnell Baron of Holgate Philip Burnell Baron of Holgate Maud Burnell heire to her brother John Lovell the first husband John Lord Lovell Iohn Lord Lovell John Handlow second husband Nicolas Handlow Baron of Holgate Hugh Handlow alias Burnell Baron of Holgate Thomas de Beauchamp the elder Earle of Warwick by a fine levied 18. E. 3. entailed the Mannour and Castle of Warwicke with divers other possessions to himselfe for terme of his life the remainder whereof to Guy his eldest sonne and to the heires males of his body issuing for want of such heires the remainder to come to Thomes Beauchamp brother to the foresaid Guy and to his heires males of his body issuing c. And afterwards the said Gâ—y died without heires male of his body leaving two daughters and heires living afterward the said Earle dyed and the said Thomas the sonne entred into the Castle and Mannour aforesaid with other the premisses and was Earle of Warwick by reason of the entaile aforesaid notwithstanding that Katharine daughter of Guy and next heire to the said Thomas the elder was living 30. yeers after his death Thomas Beauchampe Earl of Warwick Guy de Beauchampe first son obiit ante patrem 30. E. 3 Katharine lived in 21. R. 2 Elizabeth Tho. de Beauchampe Earle of Warwicke by reason of the entail obiit anno 1. H. 4 Rich. Beauchamp Earl of Warwick obiit 17. H. 6 William Beauchamp de Beauchamp L. of Aberganey obiit 12. H. 4 Richard de Beauchamp Earl of Warwicke obiit 9. H. 5 Richard Earle of Arundell by a fine 21. E. 3. entailed the Castle Towne and Mannor of Arundell with other Lands to him and to his heires Males begotten of the body of Ellenor his wife By vertue of which entaile John Lord Matrovers Earle of Arundell after the decease of Thomas then Earle which died without heire Male although the sisters of the said Thomas possessed divers Lands and honors of the which the said Thomas died seised in Fee simple was Earle of Arundell Richard Earle of Arundell Richard Earle of Arundell obiit anno 21. R. 2 Thomas Earle of Arundell obiit anno 3. H. 5 Elizabeth married to Tho. Mowbray Duke Norfolk Jane Lady of Abergany Married to Lewthall John Arundell Knight Lord Matrovers John Arund Lord Matrovers obiit 6. H. 4 Io. Arund L. Matrovers obiit 9. H. 5 Io. E of Arun. by reason of the entail Thomas Lord Barkley was seised in his demesne as of fee of the Castle of Barkley and Mannour c. and a fine levied in the Kings Court 23 E. 3. of the aforesaid Castle Mannour c. to him for terme of his life remainder to Morrice his sonne and to the heires males of his body issuing with other remainders as aforesaid the which said Morrice had issue Thomas Lord Barkley and Iames Barkley Knight which Iames dyed in the life of his brother leaving Iames his sonne and heire living After the said Thomas Lord Barkley died Anno 5. H. 5. leaving Elizabeth his daughter and heir married to Richard Earle of Warwick after whose death Iames his Nephew on the brothers side entred into the Lands Castles and rem ' aforesaid by virtue of the entaile and was summoned among the Barons to the Parliament as Baron of Barkley 9. H. 5. which Elizabeth died in 1. H. 6. Tho. Lord Barkley Morrice Lo Barkley Tho. Lord Barkley Eliz. married to Rich. Earle of Warwick Sir Ia. Barkley died before his brother Iames Lo. Barkley by reason of the entaile Thomas Lord De la ware died seised in his demesne as of fee taile to himselfe and to the heires males of his body issuing by reason of a fine levied in the time of his ancestors of the Barony De la ware with divers other lands in other counties and died 5. H. 6. without heires of his body and Reignold West Knight of the halfe blood was next heire by reason of the entaile aforesaid and was summoned to the Parliament by the name of Reignold Lord De la ware Knight although Iohn Griffith was heire generall of the aforesaid Thomas De la ware being of the whole blood as appeareth by the genealogie ensuing Iohn Lord Delaware son of Roger. Iohn Lord Delaware Roger Lord Delaware Elisabeth daughter to Adam L. Wels. Iohn Lord De la ware died without issue Thomas Lord Dela ware died without issue Elisabeth daughter to the Lord Mowbray hâ—s second wife Iohn Griffin heire generall to the Lord Delaware Sir Reignold West Lord De la ware by the entail Katharine married to Nicolas Latimer Katharine married to Griffin Iohan married to Tho West Knight John de Vere Earle of Oxford seised in his demesne as of Fee taile to him and his heires Males of his body issuing of the honour and county of Oxford with divers other Lands Anno 18. H. 8. died without heires of his body and his three sisters were his next heires generall but Iohn de Vere his next heire Male as appeareth was Earle of Oxford by reason of the said entaile and none of the three sisters obtained Dignity Richard de Vere Earle of Oxford died 4. H. 5. Iohn de Vere Earle of Oxford deed 1. E. 4. John de Vere Earle of Oxford died without issue 4. H. 8. George de vere Knight Iohn de Vere Earl of Oxfo died without issue 18. H. 8. Eliz. married to Sir Antho. Wingfield Knight Ursula married to Edm. Knightley Esq Dorothy married to Nevill Sir Robert de Vere
of one and twenty yeares he shall be in ward but if the King had made him Knight in the life of his Father he should not have beene in ward after the death of his Father neither for the lands descended or for his marriage though he be within age Cooks 6. part 74. in Druries case Nobility and Lords in reputation onely THere are other Lords in reputation and appellation who neverthelesse are not de jure neither can they enjoy the priviledge of those of the Nobility that are Lords of the Parliament The sonne and heire of a Duke during his fathers life is onely by curtesie of speech and honour called an Earle and the eldest sonne of an Earle a Baron but not so in legall proceedings or in the Kings Courts of Iustice Brook Treason 2. But the King may at his pleasure create them in the life of their Ancestors into any degree of Lords of the Parliament Cook 8. part 16. b. A Duke or other of the Nobilitie of a forraigne Nation doth come into this Realme by the Kings safe conduct in which the Kings said Letters of Conduct he is named Duke according to his Creation yet that appellation maketh him not a Duke c. to sue or to be sued by that name within England but is onely so reputed But if the King of Denmark or other Soveraigne King come into England under safe conduct he during his aboad in England ought to bee stiled by the name of King though hee have not merum imperium out of his owne Kingdome yet he shall retaine honoris titulos Cook 7. part 15. b. sequentia All the younger sonnes of the Kings of England are of the Nobility of England and Earles by their birth without any other Creation and onely Lords in reputation And if an English man be created Earle of the Empire or of other title of honour by the Emperour he shall not beare the title in England and therefore is an Earle onely in reputation A Lord of Ireland and Scotland though he be a Postnatus is not a Lord in England in legall Courts of Iustice though he be commonly called and reputed a Lord. NOBLE VVOMEN ALthough Noble women may not sit in Parliament in respect of their sexe yet they are in the law Peeres of the Realm and all or most of the Prerogatives before mentioned which to Noblemen are belonging doe also appertaine to them Cook 8. part 53. But the opinion of some men hath been that a Countesse Baronesse or other woman of great estate cannot maintaine an action upon the statute de scandalis Magnatum because the statute of 2. R. 2. cap. 5. speaketh but of Prelates Dukes Earles Barons or other Nobles and other great men of the Realme and of the Chancellour Treasurer Clarke of the Privie Seale Steward of the Kings house Iustice of the one Bench or of the other great officers of the Realm by which words they conceive the meaning of the makers of that statute was onely to provide in that case for Lords and not for women of honour Crompton Justice of Peace 45. b. Also if any of the Kings servants within his Check-roll doe conspire the death of any Noble man it is not felony within the compasse of the statute 3. H. 7. cap. 13. Honourable women are of three sorts By creation by Descent or by Marriage King Henry the eighth created Anne Bullen Marchionesse of Pembrook and so may the King create any woman into any title of honour as to his Highnesse shall seem good As the King by by his Letters Patents openly read in the Parliament did create Widow the sole daughter of late Baron of Abergavenny Baronesse De le Spencer Cambden 63. 6. Noble women by descent are those to whom either the lands holden by such dignity do descend as heir and they are said to be honourable by tenure or those whose Ancestors to whom they are heires were seised of an estate descendable unto them in their titles of Dukedomes Earldomes or Baronies or those whose Ancestors were summoned to the Kings Parliament for thereby also an inheritance doth accrue to their posterities Noble women also are those who do take to their husbands any Lord or Peere of the Realme although they of themselves were not of any degree of Nobility Fortescue de laudibus legum Angliae fol. 100. Question and doubt hath been made whether if a man be summoned to the Parliament and afterwards die without issue male the dignity and title of honour may descend to the heire female and many arguments have beene made pro contra in that which at this time â— doe purposely omit because I have before discoursed thereof in the title of Barons in this Treatise Concerning the title of honour descendable to the heire female by reason of a tenure in her Ancestor there need no more doubt to be made than of offices of honour the which doe much import the publike wealth and being of estate of inheritance doe descend to the heire female if there be no heire male as the office of high-Constableship of England challenged in the time of H. 8. by the Duke of Buckingham and judged by the advice and resolution of the Judges as by a note of that case extant whereof my Lord Dyer in his Reports hath a memoriall is most evident Dyer 283. b. Kellaway 6. H. 8. 170. b. which descended to the daughters of Humphrey de Bohun Earle of Hereford and Essex as afore is declared the office of a Lord Steward descended to Blanch daughter of Henry Earle of Lancaster in whose right John of Gaunt her husband enjoyed the same The like may be said of the office of Earle Marshall which descended by an heire female unto the house of Norfolk all which offices are as unfit to be exercised by a woman as it is unfit for a woman to be summoned to the Parliament as Baronesse by writ as before is written And when the title of honour doth descend to a woman if question in Law doe arise betweene the noble woman and any other person whether she be of that degree of noblenesse or no the issue shall be tried by the Record thereof and by the Kings writ it shall be certified and not by a Jury of twelve men even as it should be in case her Ancestors had beene party Cooks 6. part 53. 7. part 15. Although the Lawes of this Realme regularly doe make all the daughters where there are no sonnes equally to inherit Lands and Tenements and to be but one heire to their Ancestor yet it is not so in the descent of dignities and titles of honour for inheritances concerning matters of honour being things in their nature entire paticipating of superiority and eminency are not partable amongst many and therefore must of necessity descend unto one and that is to the eldest daughter sister aunt or cosin female inheritable where there is no heires males that may lawfully challenge the same and so in
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
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
of his Substitution in Latine therefore called Vicecomes as it is to be read at large in Cambden The Earls in recompence of their travell concerning the Officers of the County received a Sallary namely the third peny of the profits of the said County which custome continued a long time after the Conquest and was inserted as a Princely benevolence or gift in their Patents of Creation as by divers ancient Patents thereof may appear which afterwards were turned into pensions for the better maintenance of that honour as appeareth by a Book Case upon the pleading of a Pattent whereby King Henry the sixth Created that worthy Knight Sir John Talbott Earl of Shrewsbury which pension is so annexed to their dignity as that by any means of Alienation it cannot be at any time severed and disjoyned from the same and therefore in respect of such pensions which were the third part of the profits of the County or such other sum given in lieu thereof some men have not without probability thereof imagined quod Comites nominabantur quia in multis fiscu Regii Socii et Comites item participes essent vide Cooks 7 part 34. a. Of the single Earls and not Palatine within the Realm of England there were and have been principally two kindes but every of them subdivided into severall branches for they either take name of a place or hold their title without any place at all Those that take their name of a place are of two kindes for either the same place is a County and this is most usuall as the Earl of Devon-Shire Cornwall Kent c. or else of some other place being no County as a Town Castle Honour or such like of which later sort some are most ancient having their originall even from the Conquerer or shortly after as the Earldome of Richmond in York-Shire Clarence in Suffolk Arundel ni Sussex all which had their originall in the time of the Conquerer by Donation of those Castles and Honors the Earldome of Bath in the time of H. 7. and after in the time of H. 8. erected in the Family where it now remayneth and the Earldome of Bridgewater whereof Giles Dawbery was created in the time of H. 7. Earldomes which have their titles without any place are likewise of two kindes either in respect of office as is the Earl Marshall of England for it is granted in this or the like manner Officium Marescalli Angliae with further words viz. A. B. c. Comitem Marescallum Anglia creamus ordinavimus constituimus c. By which it appeareth that the very Office is an Earldom which title of Earl Marshall of England King Richard 2. gave first to Thomas Newbray Earl of Nottingham whereas before they were simply stiled Marshalls of England Cambden 167. The second sort of Earls by birth and so are all the Sonnes of the Kings of England if they have no other dignity bestowed upon them and therefore it was said that John afterwards King of England in the life of his Father Hen. 2. was called countiscane terrae before he was affied to Alice the daughter of the Earl of Moreton in France though Hollenshed fol. 103. writing of the degrees of people in England saith That the Kings younger Sonnes are but Gentlemen by birth till they have received creation from the King of high estate Earls and all others of the degree of Nobility and honour have Offices of great trust and confidence being for two principall purposes ad consulendum Regi tempore Pacis to Councell the King in time of peace the other ad defendendum Regem Patriam tempore belli to defend the King and Country in time of Warre and therefore Antiquity hath given unto them two Ensignes to resemble both the said duties For the first the head is adorned with a Cap of honour and a Coronet and the body with a Robe in resemblance of Councell Secondly They are girt with a sword in resemblance that they must be faithfull and true to defend the Prince and Country Cooks 7. part 34. a. But to come to the Kings high Councell of Parliament No man ought to presume before he hath received the Kings-Writ of Summons for the rule is ad consilium ne accedas antequam voceris the forme of a writ of Summons to an Earl is as followeth Rex c. Unto his welbeloved Cofin Edward Earl of Oxford greeting Because by the assent and advise of our Councell for certain weighty and urgent businesse concerning us the State and defence of our Kingdom and Church of England we have ordained to be holden a certain Parliament at our Citie of Westminster the 22. day of November next coming and there together with you and with the Prelates the great and noble men of our said Kingdom to have conference and treaty commanding and firmely enjoyning you upon your faith and alleageance whereby you are holden unto us that the dangers and perills imminent of that businesse considered and all excuse set a part you be present the said day in the same place with us and with the Prelates and great and noble men aforesaid to treat and give Councell upon the aforesaid businesse and hereof fail you not as you tender us our honour and the safeguard and defence of our Kingdom and Church aforesaid Witnesse our self at Westminster in the second day of March in the first yeer of our Raign Cromptons Courts tit Parliam 1. which is recited out of the Book of Entries 594. Upon this Writ three things have been observed First A priviledge incident to an Earl or other of degree above him for the Kings doth salute him by the name of his Coâ—in although he peradventure be of no consanguinity to the King Secondly When the King doth summon an Earl or any other Peer of the Realm of the Parliament he doth send his Writ directed to himself particularly and not to the Sheriff of the County as the generall Summons are for Knights and Burgesses for the Parliament Thirdly The Writ is to the Earl of Oxford greeting not naming him Knight though he be a Knight and though that degree be parcell of his name as appeareth 3. Hen. 6. fol. 29. And Priscot chief Justice in the 32. H. 6. 29. That iâ— an Esquire be made Knight he looseth the name of Esquire But if a Knight be made a Nobleman he doth still retain the name of Knight and so ought to be stiled in all Writs And Cooks 4. part fol. 118. a. saith Thâ— if a Baron be created an Earl yet his title of Baroâ— doth continue Bâ—t in Plowdens Book 213. It is agreed That if the Crown of England do descend to a Duke within England his name of Duke is gone for omne â—â— jus tollit minus The increase of Name by the Addition of Honour AFter a Man is created an Earl Viscount or in any other title of honour above them his title become parcell of his name and not an addition
to mention one case which I read in the bookes of the common Law concerning the discent of a title of honor whereof the Ancestor had estate in fee simple There is a maxime in the Law Possessio fratris de feodo simplici facit ' sororem esse heredem the possession of the brother in fee simple doth make his sister to bee his heire But if a man by any of the three names before mentioned be created into a title of dignity to him and to his heires for ever and hee hath issue a sonne and a daughter by one Venter and hath also a sonne by a second wife afterwards the Father dyeth and his eldest sonne entreth into all his Fathers inheritance and also enjoyeth the title and name of dignity which his Father had but dyeth without issue In this case the dignity shal goe and discend unto the younger sonne though hee be but of the halfe blood unto him that last enjoyed that name and title by discent and shall â—ot discend unto his sister of the whole blood and yet in this case shee should only bee her brothers heire of all his fee simple Lands and the reason and cause hereof is because Possessio fratris because the possession of the brother is the maine and sole cause which may give title to her his sister which fayleth in this cause of dignity For it cannot be said that her eldest brother was in possession of his title of honour no more then of his blood For the diguity was inherent to his blood so that neither by his owne Act neither by any act to be done by another did hee gaine any more actuall possession if so it may be termed then by the law did discend unto him and therfore the younger brother may well by the Law make himselfe heire unto his Father of the honour though hee cannot be heire unto his brother so that this word Possessio which is none other then pedis positio a fixing of the foot extendeth only unto such things of which a man may by his entry or other act and doth require actuall possession Cooks 3. part 42. Ratclâ—ffs case And having thus much dilated concerning the creations and other things incident to the degrees of Nobility I cannot with silence pretermit something to declare concerning that sufficiency and ability of estate which the Law doth require to be in every of them according to their severall dignities The Common Law alwayes will that decorum and conveniency be observed considering the charges and expences appertayning to these degrees and dignities being offices of principall service to the King and the Realme both in time of warre and peace as hath beene said hath ordered that each of them have a convenient portion and value of lands of inheritance for the support of their honours which supplyes are as sinewes conjoyned unto the same For in vertue and in riches as Aristotle counselleth all the old Nobility consisted and which two as Ecclesiastes teacheth maketh a good accomplement for saith he Vtilior est sapientia cum divitiis conjuncta Lamberts Perambulation of Kent â—68 Therefore a Knight ought to have 20. l. land by the yeâ—re a Baron 13. Knights fees and a quarter an Earle 20 knights fees and this doth appeare by the Statute of Magna Charta cap 2. For alwayes the fourth part of such Revenues which is by the Law requisite to the dignity shall be paid to the King for reliefe as for example The reliefe of a Knight is five pound which is the fourth part of 20. l. which is the revenue of a Knight see the Statute hereof 1 E. 2. and the reliefe of a Baron is a 100. markes which is the fourth part of his revenues that is to say 400. markes a yeare which doth include 13. Knights fees and a quarter and the reliefe of an Earle is a 100. l. which is the fourth part of 400. l. which is the revenue of an Earle and it appeares by the Records of the Exchequer that the reliefe of a Duke amounteth unto 200. l. and by consequence his revenue ought to be 800. l. per annum and this is the reason in every of our bookes that every of the Nobility is presumed in our law to have sufficient free-hold Ad sustinendum nomen onus and to what value these ancient rents in time of H. 3. Edw. 1. at this day do amount unto every man knoweth not Cooke 7. part 33. And in cases of decay of Nobility and meanes as Senatores Romani rereamoti senata as Senators of Rome were removed from the Senate so sometimes they are not admitted to the upper house in the Parliaments though they keepe the name and title of dignity still Sir Thomas Smith de reipub Angl. 221. And by a Statute made 31. H. 8. ca. 10. The Lords have their places prescribed after this manner following viz. these foure the Lord Chancellour the Lord Treasurer the Lord President of the Councell and the Lord Privie Seale being persons of the degree of a Baron or above and in the same act appointed to sit in the Parliaments and all assemblies or Councell above all duties not being of the blood royall viz. the Kings brother Vncle Nephew and these sixe the Lord High Chamberlaine of England the Lord Marshall and the Lord Admirall of England the Lord Steward of the Kings House and the Lord Chamberlaine of the Houshold by that act to be placed in all assemblies of Councell after the Lord Privy Seale according to their degrees and estates so that if hee bee a Baron then hee is to sit above all Barones or an Earle above all Earles and so likewise the Kings Secretary being a Baron of the Parliament hath a place above all Barones and if hee bee a man of higher degree hee shall sit and bee placed according thereunto Priviledges incident to the Nobility according to the Lawes of England VVHen a Peere of the Realme and Lord of the Parliament is to be arraigned upon any treason or fellony whereof he is indicted and whereupon hee hath pleaded not guilty the King by his Letters Pattents shall assigne some great and sagâ— Lord of the Parliament to bee High Steward of England for the day of his arraignement who before the same day shall make precept to his Sergeant at armes that is appointed to serve him during the time of his Commission to warne to appeare before him 18. or 20. Lords of the Parliament or 12. at the least upon the same day and then at the day appointed when the High Steward shall bee set under the Clothe of State upon the arraignement of the Prisoner and hath caused the Commission to bee read the same Sergeant shall returne his Precepts and thereupon the Lords shall bee called and when they have appeared and set in their places the Constable of the Tower shall bee called to bring his Prisoner into the Court who then shall bring his Prisoner to the Barre and the High
this point is the civill Law Neverthelesse there was a judgment in the time of H. 3. touching the descent of the Earldome of Chester after the death of the Earle who dyed without issue his sisters being his heires which Judgement was that the said Earldome should bee divided amongst the said copartners as other lands and that the eldest should not have it alone 23. H. 3. Fitz. partic 18. But this judgement was holden erroneous even in those times wherein it was given For Bracton a learned Judge who lived in that age thus writeth thereof treating of Partition among Copartners lib. 2. cap. 34 fol. 76 b. De hoc autem quod dicitur quod de feodo militare veniunt in divisione capitalia messuagia inter cohaeredes dividuntur hoc verum est nisi capitale messuagium illud sit caput comitatus propter jus gladii quod dividi non potest vel caput Baeroniae castrum vel aliud aedificium hoc ideo ne sit caput per plures particulas dividetur plura jura Comitat ' Baroniarum deveniant ad nihilum per quod deficiat regnum quod ex Comitatibus Baroniis dicitur esse constitutum Si autem plura sunt aedificia quae sunt capita Baeroniae dividi possunt inter cohaeredes facta electione salvo jure essentiae quia cùm plura sunt ibi jura quodlibet per se poterit integrè observart quod quidem non est in uno ut praedictum est licet à quibusdam dicatur quòd in aliis regionibus aliquando de consuetudine dividatur sed quod nunquam dividi debeat in Anglia videtur nec visum fuit contrarium erit consuetudo regionis observanda ubi haereditas quae petitur personae nascuntur quae petunt unde sic dicatur quòd in regno Angliae aliquando facta fuit partitio hoc fuit injustum It is therefore evident that Baronies and dignities of Honour do by the Lawes of this Realm descend unto the eldest Coapercener and the Iudgement given once to the contrary thereof Bracton doth rightly account to be unjust his reason is notable for in as much as the honour of the Chivalry of the Realme doth chiefly consist in the Nobility reason would not that such dignitie should be divided amongst Coaparceners whereby through multitude of partitions the reputation of Honour in such snccession and so divided might be impaired or the strength of the Realme being drawne into many hands with the decrease of livelihood by partition should be enfeebled in which Resolution Britton the learned Bishop of Hereford who compiled his Booke of the Lawes of the Realme by the commandement and in the name of E. 1. according Britton 187. and therefore howsoever that Judgemâ—nt was given or whensoever it is neverthelesse very evident that it was soone redressed for if it were given upon the death of Renulph the last of that name the Earle of Chester who dyed about 17. H. 3. without issue the Writers of that time doe testifie that the Earledome of Chester came wholly unto Iohn Scot the sonne of David Earle of Huntington and Anguish and of Maud the eldest sister of the said Renulph if it were given upon the death of the said Iohn Scot who dyed without issue about 14. H. 7. yet notwithstanding the said Judgement stood not in force for that the said King assumed the said Earledome into his owne hands upon other satisfaction made to the sisters Coparceners of the said Iohn Scot. Ne tanta hereditas colos deduceretur Matth. Paris Monast S. Albani in Arr. fol. 3. 66. B. tamen vide Vill. fol. 75. et Ioh. Guill 78. For this it is to be observed out of Presidents and to be acknowledged of every dutiful Subject that the King is at liberty to call and advance to honour whom his Highnesse shall in his Princely wisdome thinke most meet and therfore whereas Ralph Lord Cromwell being a Baron by Writ dyed without issue having two sisters and co-heires Elizabeth the eldest married unto Sir Thomas Nevill Knight and Ioane the younger married unto Sir Hunt Burther hee who married the younger sister was called unto the Parliament as Lord Cromwell and not the said Sir Thomas Nevill who had married the eldest sister and Hugh Lupus the first and great Earle of Chester was by the Conquerour his Uncle created Earle of Chester Habemus sibi heredibus adeo libere per gladium sicut ipse Rex tenuit Angliam per Coronam Hugh dyed without issue and the inheritance of his Earledome was divided amongst his foure sisters and the eldest had not the Seigniory entire unto her selfe Reade Mills 74 75. Cookes b. part 53. 7. part 15. If a Woman be Noble by birth or by discent with whomsoever she doth marry though her Husband bee under her degree yet she doth remaine Noble for her Birthright Est Character in delibilis Cook 4. part 118. b. 6. part 53. b. Other Women are enobled by Marriage and the text saith thus viz. Women with the honour of their Husbands and with the kindred of their Husbands we worship them in the Court we decree matters to passe in the name of their Husbands and into the house and sirname of their Husbands wee doe translate them but if afterwards a woman doe marry with a man of baser degree then loseth she her former Dignitie and followeth the condition of her latter Husband Fortescue de laudibus legum Angl. 100. And as concerning the second disparaged Marriage as aforesaid many other bookes of the law doe agree for these bee rules received in those Cases Si mulier nobilis nupserit ignobili desit esse nobilis eadem modo quo quidem Constitut dissolvitur Cookes 6. part 53. B. 4. part 118. It was the Case of Ralph Hayward Esquire who tooke to his wife Anne the widdow of the Lord Powes they brought an Action against the Duke of Suffolke by the name of Ralph Hayward Esquire and the Lady Anne Powes his wife and exception was taken for misnaming her because shee ought to have beene named by the Husbands Name and not otherwise and the exception was by the Court allowed For said they by the Law of God shee is Sub potestate viri and by our Law her Name of Dignitie shall bee changed according to the degree of her Husband notwithstanding the curtesies of the Ladies of Honour and Court Dyer 79. And the like was also in Queene Maries Raigne when the Dutchesse of Suffolke tooke to her Husband Adrian Stoakes Prob. 456. and many other presidents have beene of latter time and herewith agreeth the Civill Law punctually Digest lib. 1. Tit. 9. Lege 8. Eodem de Dignitate Liber 12. Lege 2. In this case of acquired Nobility by Marriage of Question in Law be whereupon an issue is taken betweene the parties that is to say Dutchesse or not Dutchesse Countesse or not Countesse Baronesse or not Baronesse the
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
Kt Iohn de Vere Iohn de vere Earle of Oxford by vertue of the entaile Iohn de Vere William Lord Pagâ—t of Bewdesert was seised in his demesn as of fee of the Baronies of Langden and Hawood and of and in the Mannours of Bewdesert Landen c. And being so seised by fine quinto Mariae entailed the Baronies and Mannours aforesaid to him and his heires males of his body issuing And afterward Anno 5. Eliz. died leaving Henry his sonne next heire male Which Henry entred into the Baronies and land aforesaid by vertue of the foresaid fine and died thereof seised 11. Eliz. leaving Elizabeth his onely daughter and heire After whose death Thomas Paget brother and heire male of the said Henry entred into the Baronies and Mannours aforesaid and was summoned to the Parliament by virtue of the aforesaid fine William Lord Paget of Bewdesert died anno 5. Eliz. Henry Lord Paget dies An. 11. Eliz. Elizabeth his daughter and heire Thomas Lord Paget by force of the entaile after the death of his brother Robert Lord Ogle entred into the Barony of Bothal and Ogle with divers other Mannors and Lands in the County of Northumberland by conveiance which was to himselfe for terme of his life the remainder to the heires males of his body begotten and he took to his wife Dorothy Witherington by whom he had issue Robert Ogle his eldest sonne and Margery his daughter married Gregory Ogle of Chippington And the said Robert the father after the death of the said Dorothy his wife took to his second wife Ioane Ratcliffe by whom he had issue Cutbert his second sonne and after died After whose death Robert the sonne was Lord Ogle from whom the same descended to Cutbert being brother of the halfe blood by vertue of the said entaile and not to the said Margery nor unto her heires being of the whole blood unto the said Robert the sonne Robert Ogle Lord Ogle Dorothy daughter of Henry Withrington first wife Robert Ogle L. Ogle died without issue Margery maried to Ogle of Chippington Cuthbert Ogle of Chippington Joan the daughter of Cuthbert Ratcliff Kni. the second wife Cuthbert Ogle L. Ogle died Margery Ogle married Robert Witherington Thomas Ogle Moreover concerning the second objection it is very â—rue that many ancient Mannours which were anciently holden by Barony as the head or parcell of a Barony are now in the hands of Gentlemen meane and un-noble by blood who neither doe nor may claime any Nobility or honour thereby But the reason that some former gifts made by the Kings Majesties progenitouâ—s the supreme Soveraignes of this Realme to such as they honoured in augmentation and support of their honour and by honourable services should thus come to the hands of mean personages are twofold First for that such Mannours have been alieued by licence unto such persons before spoken whom such possessions alone cannot make noble Secondly and that was usually such Mannours as were holden by Barony have upon divers eâ—cheasons and occasions come to the Crowne by way of revertor or eschete or forfeit by meanes whereof the ancient tenures derived from the Crowne by reason of those lands so comming again to the Crown were extinct and after the said lands were given or conveyed to others reserving other services than those which at the first were due for the same so that it was no marvaile to see that some Mannours anciently holden by Barony or other honourable service should now bee holden in soccage or by other triviall or meane tenure As to that which was thirdly objected that some ancient Barons there are which have aliened and sold away those Castles and Mannours of the which they have and doe beare the name and dignity and yet neverthelesse themselves doe still retaine and keep lawfully their estate dignity and degree of a Barâ—â— and have been and are called to the Parliament such alienation notwithstanding To this I answer That it is true but it proveth nothing against the former resolution And therefore for better satisfaction of this observation it is to be considered that such Barons either be originally Barons by writ or Barons by tenure Barons by writ in this respect now in hand are of two kindes For either in such writ whereby they or their Ancestors were at first summoned they were named onely by their owne names or else there was addition given them of the principall place of their aboad which was done either for distinction sake to sever them from some honourable person of the same surname or else to give them such honourable title by addition of the place which place notwithstanding was not holden by Barony And therefore if such a Baron doe alien away that place which anciently was his seat he may neverthelesse retain his honourable title in respect had of such a place But if a Baron by tenure doe alien away the honourarable Castle or Mannour holden by Barony unto a mean person not capable of honour and that by sufficient licence so to doe and after the alienour which made such alienation be called by writ to the Parliament under the title or as Baron of such Honour Castle or Mannour so aliened he is not any more a Baron by tenure in respect of that place for that he hath aliened that away which he held by Barony but thenceforth after such writ of summons he is become a Baron by writ and may retaine the name of Baron by title of the place as Baron by writ such alienation notwithstanding forasmuch as the writ directed at the pleasure of the Prince doth give unto him that addition of name and dignity And thus much touching the resolution of the said question and satisfaction of the said objections and of Barons by tenure BARONS by writ which is the second kind of Barons mentioned in the former Divisions of BARONS A Baron by writ is he unto whom a writ of summons in the name of the King is directed to come to the Parliament appoinâ—ed at a certaine time and place to be holden and there with his Highnesse the Prelates Nobility and Peeres to treat and advise touching the waighty affairs of the Realme Tâ—e forme of which writ is much to the effect of the writ before mentioned in the title of Earle which kind of writ is as well directed to the Barons by tenure as Baâ—â—â—â— by creation Patent or otherwise But those which 〈◊〉 Barons by tenure nor by Patent and have onely 〈◊〉 writs are therefore called Barons by writ and upâ—◠〈◊〉 of such writ and place taken accordingly in 〈◊〉 ought to enjoy the name dignity and hoâ—â— of a Baron 〈◊〉 â—ouching the antiquity of Barons by writ onely and â—â—eir first institution I finde little or no mention before â—he time of H. 3. And therefore I conceive that either the first of all or at least that the first frequent use of such Barons was had and devised 49. H. 3. in case of necessity and upon a lamentable
signified unto the late Queene upon the Petition oâ— the sister and heire of Gregory late Lord Dacres deceased may appeare Moreover in the same Pedegree of the said Lord Dacres it is expressed that Thomas sometimes Lord Dacres had issue Thomâ—s his eldest son Ralph his second sonne and Humphrey his third sonne Thomas the eldest dyed in the life time of his Father having Issue Ioan his daughter and heire who was marryed unto Sir Richard Fines Knight And after Thomas Lord Dacres her Grandfather and Father unto the said Sir Ralph and Humphrey dyed After whose death Henry 6. by his Letters Patents bearing date at Westminster 7. Novem. Anno 7. regni reciting the said Peâ—egree and Marriage doth by his Lettâ—rs Pattents accept declare and repute the said Richard Fines to be Lord Dacres and one of the Barons of his Realme But afterward in the timâ— of Edw 4. the said Humphrey Dacres after the attaindor of the said Ralph and himselfe by an Act of Parliament which was in 1. Ed. 4. and after the death of the said Ralph and after the reversall of the same Act by another Act 12. Edw. 4. the said Humphrey made challenge unto the said Barony and to divers Lands of the said Thomas his Father whereupon both parties after their title had been considered in Parliament submitted themselves unto the Arbiâ—rement of King Edw. 4. and entred into Bond each â—o other for the performance thereof Whereupon the said King in his award under his Privie seale bearing date at Westminster 8. April Anno regni 13. did award that the said Rich Fines in the right of Ioan his wife and the Heires of his body lawfully begotten should be reputed had named and called Lord Dacres and that the said Richard Fines and the Heires of his body by the said Ioane begotten should keepe have and use the same state and place in every Parliament as the said Thomas Dacres Knight late Lord Dacres had used kept c. that the heires of the body of the said Thomas acres Knight late Lord Dacres lawfully begotten should have and â—old to them their Heites the Mannor of Holbech And furthermore the said King did award on the other part that the said Humphrey Dacres Knight and the Heires males of the said Thomas late Lord Dacres should be reputed had named and called the L. Dacres of Gillesland And that he and the heires males of the said Thomas then late Lord Dacres should have use and keepe the place in Parliament next adioyning beneath the said place which the said Rich Fines Knight Lord Dacres then had and occupied and that the heires of the body of the said Ioan his wife should have and occupie And that the Heires males of the said Thomas Dacres late L. Dacres should have to them to the heires males of their bodies begotten the Mannor of Jothington c. And so note that the name of the ancient Barony namely Gile sland remained unto the Heire male unto whom the land was entailed Moreover this is specially observed if any Baron by writ doe dy having none other issue then Female and that by some speciall entail or other assurance there be an heire male which doth enioy all or agreat part of the lands possessions and inheritances of such Barons deceased the Kings of this Realme have used to call to the Parliament by writ as Baron such here male omitting the Husband or issuâ— male of such heire female and this also appeareth by a notable controversie in the time of Henry 7. betweene Sir Robert Willoughby Lord Brooke and Richard Lord Latimer for the Barony of Latimer which in effect was The said Lord Brooke did challenge the Barony of Latimer as cosen and Heire to Elizabeth his great grandmother who was sister and heire to Iohn Nevill Lord Latimer who died without issue and hereupon exhibited a Petition to Henry 7. in Parliament whereto Richard then Lord Latimer was called to answer because he then enjoyed the said title and dignity The said Richard Lord Latimer by his answer did shew that it was true that after the death of the said Iohn Nevill Lord Latimer dying without issue the said Elizabeth was the sister and next heire and married unto Sir Thomas Willloughby Knight second son of the Lord VVilloughby but Henry 6. for that the said Iohn Nevill was dead without issue and that the next heire was female did therefore call to the Parliament George Nevill Knight second sonne of Ralph Earle of Westmerland to bee Lord Latimer as Cozen and next heire male of the said Iohn Nevillâ— Lord Latimer which George was grandfather of the said Richard Lord Latimer namely Father of Henry Lord Latimer Father of the said Richard In debate of which cause the question now in hand whether a Barony by writ may descend unto the heires females was advisedly considered of by the said King and his Nobility in Parliament and in the end adjudged with the said Richard Lord Latimer which President doth afford us two Iudgements in this point one in the time of Hen. 6. when the writ was directed to the said Sir George Nevill whereby he was summoned as Lord Latimer to the Parliament and as heire Male and not the said Sir Thomas Willoughby Knight husband of the said Eliz. heirâ— male And the second judgement was given in the time of Henry 7. wherby the Barony was adiudged vnto the said Richard Lord Latimer comming of the speciall heire male against the said Lord Brooke descended of the generall heire male But here the President before remembred of the Barony of Dacres may bee obiected to incounteâ— this confusion For there was an heire female married unto Sir Richard Fines who by the declaration of Hen. 6. was Baron of Dacres in the right of his wife and there was also Ralph and Humphrey the heires males before whom the heire female was preferred by the censure of Henry 6. and Edward 4. This obiection is easily answeared For although Hen. 6. through the Princely favour which he bare unto Sir Richard Fynes had declared him to bee Lord Dacres in the right of his wife yet notwithstanding did Ralph Dacres being heire male unto the then Lord Dacres deceased be are also the name of Lord Dacres by that name was attainted in Parliament Wherefore the reason why the heire male could not bee regarded was the said attainder of the said Ralph and Humfrey his brother and therefore when Humphrey 12. Edw. 4. laboured to have the said attainder reversed he submitted himselfe vnto the Arbitrament of the King who to satisfie both Competitors because both had well deserved of him after he had admitted them to his favour he allowed the one to be Lord Dacres the other to be Lord Dacres of Gillesland thus much concerning the second point whether a Barony by writ may discend unto the heire female or not As concerning the third point admitting such discent to bee to the heire female when there
for the same Reason in the Queene being his wife Plouden 23. 1. a. Coâ—kes 8. Repl. 28. A man seised of divers Lands in Fee holden by Knights service some by Prioritie that is by ancient Feofment holden of others and some other parts holden by the same tenure of the King by posteritie the King granteth his Seigniory to the Queene and afterwards the Tenant dyeth the sonne within age in this case the King shall have the Wardship of the Body and have the Prerogative even as the King himselfe should have had 3. E. 3 4. vide etiam Stamford Prerog Reg. cap. 2. The Queene wife unto the King or widdow shall not be amerced if she be non-suited in any Action or otherwise in which cases any other subject of what degree soever shall be amerced for in this case the Queen shall participate the Kings Prerogative Cookes 6. Report 62. But the Queene shall not in all cases have the same Prerogatives that the King shall have in the same case as for Example Petition is all the remedy the Subject hath when the King seizeth his Lands or taketh away his Goods from him having no title by order of Law so to doe contrary to the opinion of some ancient Bookes as you may see Stamfords Prerog cap. 19. But in such suit shall be made to the Queene but actions against other Leiges of the King according as the case shall require for by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason he shall be Defendant or Tenant without pertaking such Prerogatives as doe appertaine to the King 11. H. 4. 64. B. Stamford Prerog cap. 22. in fine Against the King by his Prerogative Nullum tempus occurit Regi but time shall runne against the Queen H. 18. E. 3. 2. a. and aplenarty by sixe mouthes is a good plea in a Quare Imp. brought by Philippa Regina Angliae ibid. fol. 1. et 13. b. Stamford Prerog cap. 18. prope finem In 21. E. 3. 13. b. It is thus to be read note that a protection was sued forth against the Queen in a Writ which she brought and it was allowed though shee be a person exempt Neverthelesse by this short case following may bee observed that the Justices doe not easily suffer any proceedings in Law against the Queene wife or widdow but will hold with their Inmities as much as they may by Law A Writ of dower was brought against Isabel Queene of England mother of the King that then was and the Couâ—t said to the Plaintiffe the Queene is a person of dignitie and excellencie and we are of opinion that she shall not answer to the Writ but it behooveth you to sue to her by Petition and thereupon the Demandant dixit grat and shee prayed the Court to grant a continuance of her Action untill another day so that in the meane time she might sue to speake with the Queen but the Court would not agree to make a Continuanâ—e but said that upon her request they might give day precepart and so it was done for the Queenes Couneell would not agree to a continuance for thereby the Queene should bee accepted as answerable 10. E. 3. 379. The wife of the Kings eldest sonne also hath some Prerogative in regard of the excellencie of her Husband which the wives of other Noblemen have not for by the Statute of 25. E. 3. it is high Treason to violate the wife of the Kings eldest sonne and heire Dutchesses also and Countesses have speciall Honour appertaining to their Estates as kneeling and tasting and such like which things as appertaining more properly to the Heraulds then to this legall discourse I leave unto them By the Statute made 7. Iac. cap. 6. intituled An Act for the Administring the oath of Allegiance and Reformation of Women recusants if any person or persons of or above the age of 18. yeeres and degrees aforesaid must and hereafter shal stand and be presented indicted or convicted for not comming to Church or not receiving the holy Communion or Sacraments of the Lords Supper according to the Lawes and Statutes of this Realme before the Ordinary or other having lawfull power to take such presentment or indictment then 3. of the Privie Counsell of the King his Highnesse his Heires or Successours and no other whereof the Lord Treasurer the Lord Chancellour Lord Privie Seale or principall Secretary to be one upon knowledge shall require such person or persons to take the said Oath but it shall be lawfull to and for every Bishop within his Diocesse to require any Baron or Barons of the age of 18. or above to take the said Oath Also in cases of indictment of Felony or Treason a Baronesse shall have the same tryall by Peeres as doth appeare by the Statute of 20. H. 6. cap. 9. which any other Noble woman of higher degree shall have which priviledge is denyed to all of a lower degree then a Baronesse Ladies in Reputation The wife and widdow and widdow of the sonne and heire of a Duke or Earle in the life of his Father is a Lady by courtesie of speech and honour and taketh place according as in ancient time hath been permitted by the Soveraign Prince and allowance of the Herauld but in legall proceedings they are not to have priviledges nor to be named according to such sirnames of dignity but the King may at his pleasure create such men in the life time of their Ancestors into degrees of Lords of his Parliament and then the Law is otherwise If a Noblewoman of Spaine come into the Realme by safe conduct or otherwise by the King shee be stiled by such her forraign stile of dignity yet in the Kings Courts of Justice she shall not be named by such title though by common speech she be a Lady in reputation An English woman borne doth take to her Husband a Spanish or French Duke though he be made a Denizen yet he shall not beare his title of dignity in legall proceedings A German woman is married to the Earl of Northam or to other the Nobility of England unlesse she be made a Denizen she cannot lawfully claim the priviledges or title of her husband no more then she can to have dower or any jointure from him An English Woman doth take to Husband the Earle of Kildare in Ireland or if a Lord of Scotland though he be a post natus take an English woman to his wife their wives shall not participate their husbands Titles of Dignitie But if the King do create one of his Subjects of Scotland naturalized here by Act of Parliament to be Viscount Rochester within England and after by his Writ of Summons under his Great Seale doe call him to his uper House of his Parliaments and assigne him a place there in his great Councell amongst the Lords and Peeres of
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