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A28196 A treatise of the nobilitie of the realme collected out of the body of the common law, with mention of such statutes as are incident hereunto, upon a debate of the Barony of Aburgavenny : with a table of the heads contained in this treatise.; Magazine of honour Bird, William, 17th cent. 1642 (1642) Wing B2956; ESTC R18509 58,218 162

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Being arraigned of felony in an Appeale he shall not be tried by his Peeres as in case of Inditement in which case he may not challenge any of the Triers either peremptorily or upon causes which is permitted to all other common persons The Iudgment is the vsuall Iudgement given against common persons and though the King pardon all but the losse of his head that is of speciall grace not ex debito By Attainder the blood is corrupted and he and his posterity made ignoble Stam. lib. 3. cap. 34. and cannot be restored by the Kings pardon but onely by authoritie of Parliament And note that Nobility is not a thing substantiall but meerely accidentall present or absent without corruption of his subject for experience shewes that honourable titles are restrained by exorbitant crimes when the nature in the meane while cannot be thrust out with a forke wherefore though we tearme extinguishment of Nobility in cases of Attainder yet this phrase is not vsed as though Nobility were essentially in the homour of the blood more then any other hereditary faculty But because the right of inheritance which descends by communication of blood is by that meanes determined and also in regard of the detestation of the crime it is called corruption of blood 16. Eliz. Dyer 332. The Lord Charles Flowards case if one be made a Knight by a forraign King he is so to be stiled in all legall proceedings in this Realme But if he be created by the Emperour an Earle it is other wise Coke 7.16 If the King Create the son a Duke c. and the father dies he within age shal be in ward but if he had bin made a Knight in his f●●hers life he should not be in ward neither for the lands descended nor marriage Coke 74. Drueries Case though he be within age Nobilitie and Lords in reputation onely THere be other Lords in reputation and appellation who neverthelesse are not Iure neither can they enjoy the priviledges of those of the Nobilitie of the Parliament viz. The Sonne and heire of a Duke during the life of his father is onely by curtesie called an Earle and the eldest sonne of an Ea. a Baron but not in legall proceedings Br. Treason 2. Coke 8-16 But the King may create them in the life of their Auncestors Lords of the Parliament A Duke or other of the Nobilitie of a forraign Nation being named Duke in Letters of safe conduct that makes him not Duke to be sued by that name in England but a forraigne King ought so to be stiled though he hath not merum imperium out of his owne Kingdome Cok 7.15 c All the younger Sonnes of the King of England are Earles by birth without other creation and onely Lords by reputation A Lord of Ireland or Scotland though he be post-natus is but onely Lord in reputation Noble Women ALthough Noble Women may not sit in Parliament in respect of their Sexes yet are they in Law Peeres of the Realme and may challenge all Coke 8.53 or most of the former Priviledges But the opinions of some have been Crompt Iust de peace 85. that they cannot maintaine any Action upon the Statute of 2. R. 2. cap. 2. de Scand Magnat because the Statute speakes onely of other Sexes If any of the Kings servants within in the Checkroll conspire the death of any Noble woman that is not felony within the Statute of 3. H. 7.13 Honourable women of three sorts By Creation Descent Marriage H. 8. Created Anne Bullen Marchionesse of Pembrooke King James Created the Lady Compton Wife to Sir Thomas Compton Countesse of Buckingham in the life of her said Husband without any addition of honour to him And formerly by Patents openly read in Parliament without any other investure did Create Mary sole Daughter and heire of the late Baron of Aburgauen Camden 63.6 Baronesse de le Spenser Noble Women by Descent are those to whom lands holden by such Dignitie doe descend or whose Ancestors were seized of an estate descendable in their Titles of Dukedomes c. or those whose Ancestors were summoned to the Parliament by this an Inheritance doth accrue to their posteritie They who take to Husband any Peere of the Realme though they themselves were not noble Fortescue fol. 100. Question hath bin made whether the Dignitie of one sūmoned to the Parliament dying without issue male may descend to the female but this may appeare by the former Treatise Concerning the title of Honour descendable to the Heire female it is cleere that such offices being of estate of inheritance doe descend as the office of the high Constableship of England challenged tempore H. 3. by the Duke of Buckingham was adjudged to descend to the Daughter of Humfrey Bohun Earle of Hereford So the office of Earle Marshall descended to the house of Norfolke all which offices are as unfit to be exercised by their sexes as unfit for them to be summoned to the Parliament And if such Title come in competition the issue shall bee tried by record and certified by the Kings Writ and not by Jury Coke 6.5 3.7 part 15. Though all Daughters be Coperceners and make but one Heire yet in descent of Dignities it is otherwise for they bee things entire participating of superioritie therefore descendable onely to the eldest And so is the Civill Law yet there was a Judgement tempore H. 3. touching the descent of the Earledome of Chester Obijt 17. H. 3. the Earle dying without issue leaving his Sisters his Heires The Judgement was that it should be divided equally among Coperceners But this Judgement was held erroneous in that very age Vide Bract. li. 2. cap. 34 fol. 76. hoc fuit injustum c. His reasons are because the honour of Chivalrie chiefly consisting in the Nobilitie may not be divided for by multitude of partitions the reputation of Honours in such succession must bee impaired and the strength of the Realme being drawne into many hands by such partition much infeebled In which resolution Britton by commandment and in the name of E. 1. accorded fol. 187. The former Judgement was given about 17. H. 3. And the Writers of that time testifie that it came holy unto Iohn Scot Son of David Earle of Huntington and Anguish and Maude the eldest Sister of the said Randolph if it were given upon the death of John Scot who died without issue about 24. H. 3. yet it stood in force because the King assumed the Earledome to himselfe upon other satisfaction to the coperceners Mat. Par. 366. tamen vide Mills 75. Guillem 28. Hugh Lupus the first Earle of Chester was by the Conquerour his vncle created into that dignitie Mills 74.75 Coke 35.7 part 15. habend fibi c. adeo libere per gladium sicut Rex ipse tenuit Angliam per Coronam c. he died without issue and the Earldome divided among his 4. sisters If she be noble
upon paine of forfeiture of all their goods except Lo. and other great men and true and notable Merchants and the Kings souldiers and all others shall forfeit c. But because the Statute is abrogated by 4. Iacobi c. 2. I do not set this down for one of the priviledges at this day But Philip Earle of Arundell Son of Thomas Duke of Norfolke Cromptons Iurisd 31. was taken upon the Sea passing into France about 30. Eliz. and was fined in the Starre chamber because he tooke not sh●pping at one of the Ports mentioned in that Statute In the Priviledge before mentioned of his Clergie it shall be allowed him for breaking a house by day or night for robbing upon the high-way and in all other cases excepted in the Stat. of 1. E. 6.12 saving in wilfull murder and poysoning But in all other cases wherein Clergie is taken away he is in the same degree with a common person but the Court will not give him the benefit of this Statute if he requireth not the same If a Lord doth confesse his offence upon arraignment or abjure or is outlawed for felony in these cases it seemeth he may have the benefit of this Statute viz. his Clergie for that by the Statute of 18. Eliz. cap. 81. hee nor any other need to make purgation Stat. 18. Eliz. cap. 18. but shall bee forthwith delivered out of prison by the Justice Sed quaere Bolton 202. by the Imperiall constitution Nobiles non torquentur in casibus in quibus plebei torquentur nec suspenduntur sed decapitantur Which forme by favour of the Prince is allowed in England Iurisd Br. 48. Yet Thomas Fines Lord Dacres of the South in the 37. H. 8. and the Lord Sturton 4. Mar. were hanged By the Staute of 1. Eliz. cap. 1. for uniformitie of Common prayer 1. Eliz cap. 1. there is a proviso that the Baron shall bee tried per Pares and not by any Ecclesiasticall Courts read the Statute at large At the Common law it was lawfull for any to retaine as many Chaplains as he would but by the Statute of 21. H. 8 13. a restraint was made viz. to every Archbishop and Duke sixe Chaplains with dispensation to keepe two Benefices with Cure to every Marquesse or Earle five with the like priviledge To the Lord Chancellour every Baron and Knight of the Garter three with the same priviledge If a Bishop bee made an Archbishop or a Baron an Earle yet can they have but Chaplains as Archbishop or Earle because though there be divers Dignities yet the service is to be done but to one person so if he be removed from his Office in this case he cannot be Non-resident without he procure a non obstante So if a Baron retaine a Chaplaine and before he is advanced his Lord is attainted Cooke rep 4.117 Actons Case as the Earle of Westmerland was hee cannot accept a second Benefice Those that are first retained shall onely have priviledge in case c. By the Statute of 2. H. 5.8 that gives authoritie to the Sheriffe to raise Posse Comitat. Neverthelesse may he not command the person of a Nobleman to attend that service but if the Sheriff upon a supplicavit against him returne that he is so puissant that he dare not arrest him the Sheriffe shall be grievously amerced for such returne for the Writ is to all Archbishops Bishops Dukes Earles c. and to all liege men of the County to to be ayding to him therefore by intendment none will resist the execution The words of Charta de forest cap. 11. are every Archbishop Bishop Earle or Baron comming to us at our commandment and passing by our forrests may take one beast or two by the view of the forester if he be present or else he shall cause one to blow an horne that he seeme not to steale our Deare In this Stat. though a Duke Marquesse or Viscount being Lord of the Parliament being commanded c. shall have the same priviledge so if the King send for him letters missive Messenger or Sergeant at arms or by writ of Sub-paena to appear in Chanc. they shall have the benefit of this Statute because they came at the Kings commandement so in case of Scire facias out of the Chancery or D. R. But if such Processe goe out of the C. B. to appeare before the Iustices or the Barons of the Exchequer he shall not have the benefit of the Statute because the Statute is Veniens ad nos and in those Courts they are Quod coram nobis c. So of the Starre-chamber Also Lords that come to visit the new King though not sent for shall have the priviledge and so note this Statute is a Warrant dormant and is to be vnderstood of their returning homeward Manwood cap. 13. Crompton Iuris Nota. D. 167. note the Statute doth give licence to kill or hunt in the Kings Parkes though the Letter bee Transiens per forrestam nostram Note that in certaine Cases the Law doth give priviledge to the sonnes or brethren of Noblemen though they bee not of that degree Stat. 21. H. 8.13 c. 7. E. 6. cap. 5. Certaine Cases wherein he hath no Priviledges IF the King commit a Baron to prison Durante bene placito he cannot be discharged by Bayle or mainprise or by the common Writ De homine replegiando And by the same power it is if a noble person bee committed by the Kings Councell for they are incorporated to his Highnesse and doe command as with the Kings mouth and the same law is if a Nobleman be committed to prison by the absolute Commandment of the Kings Judges sitting in their place of Judicature Stam. lib 2. cap 18. fol. 72. Stamf. lib. 2. cap. 18. fol. 72. as you have before when the Prince himselfe by the chiefe Justice sitting in the Kings Bench and was not bay leable Also a Capias and an Exigent may be awarded upon an Indictment of a felony This Statute of Praemunire cap. 1.16 R 2. cap. 1. upon which Statute an Abbot which was Lord of the Parliament being impleaded did pray priviledge to appeare by attorney Et per Curiam could not for a Cessavit lyeth against him Upon contempt of Peeres a Capias may bee awarded 1. H. 5. ult 27. H. 8.22 If he depart the Realme as Embassadour c. and returne not at the Kings commandement the King may seize his lands and goods Dyer 108.176 The Dutches of Suffolkes case if he imprison any man in his house whereupon there is a writ De homine replegiando if he convey him from the Sheriffe the Court will award a Withernam to arrest 11. H. 4.15 and imprison him till he deliver the prisoner All Lords are compellable to take the oath mentioned in the Statute 3. Iacobi and see the Statute of 7. Iacobi 3. Iac. ca. 4. 7 Ia. cap. 6. who hav eauthoritie to administer it unto them