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 Socti 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 Marescallâ—â—â— 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 Cosin 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 ordaiâ—ed 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 Cosin 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 That if a Baron be created an Earl yet his title of Baron doth continue But 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 majus tollit minus The increase of Name by the Addition of Honour AFter a Man is created an Earl Viscount or into any other title of honour above them his title is become parcell of his name and not an addition only and in
judiciall proceedings onely by such name and title as he hath received from the King of this Realm whose Subject he is and if by the King of England he be not advanced to Title of Honour then shall he bear the name of his Baptism onely and Surname unlesse he be a Knight 20 Ed. 4.6 Cook 7. part 16. a. A Duke of Spain or of other forraign Nation cometh into England by the Kings safe-Conduct in which also the King doth stile him Duke according to his Creation neverthelesse in all proceedings in the Kings Courts he shall not be stiled by his name of dignity Cook in the last Book before And though the said Noble person be also by the Kings Letters Patents and by his forraign name and title of dignity made Denizen for that is the right name so called because his legitimation is given unto him for if you derive Denizen from Denizee as one born within the Allegiance or Obedience of the King then such a one should be all one with a naturall born Subject wherein a Denizen faileth in many things or if they be naturalized also by the authority of Parliament whereby he seemeth to be in all things made as a Subject born in England yet he shall not be stiled with his forraign title of dignity Cooks 7 part 15. a. And so it is if a Noble man of France c. come into England as Ambassadour and here by lawfull Marriage hath issue a sonne the father dieth the son is by birth a naturall English-man yet he shall not bear the Title of Honour of his father and the cause and reason hereof is Because the title of his Nobility had his originall by a French King and not by any naturall peration which thing is well proved both by authority of Law and experience in these dayes for in the book last mentioned in that leaf is resolved a more stranger case that is albeit that a Postnatus of Scotland or Ireland who is in these dayes a naturall Subject to the King of England or any of his posterity be he the heir of a Noble man of Scotland or of Ireland yet he is none of the Nobility of England But if that Allien or stranger born or Scot be summoned by the Kings Writ to come unto his Parliament and is therein stiled by his forraign stile or by other Title whereunto he is invested withiâ— England by the Kings grant then from thenceforth he is a Peer of this Realm and in all Judiciall and legall proceedings he ought to be so stiled and by no other name 39 Ed. 3.36 And it was the case of Guilbert Humphreyvile Earl of Anger 's in Scotland For it appertaineth to the Royall prerogative of the King to call and to admit any Alien born to have voyce and place in his Parliament at his Parliament at his pleasure although it is put in practice very rarely and seldome time and that for very great and weighty considerations of State And if after such Parliamentary Summons of such a stranger born question do arise and the issue whether he is of that title or no it may well be tryed by the Records which is the onely lawfull tryall in that case Cooks 7. part 15. a 6 part 53. But there is a diversity worthy the observation for the highest and lowest dignities are universall and therefore a Knight in all place soever he received his title of dignity and so ought of right and by Law be named in the Kings Courts 26 Ed. 4.6.39 Ed. 3.36 Also if the Emperour or the King of Denmark or any other forraigne King come into this Realm by safe-Conduct as he ought For a Monarch or an absolute Princâ— though he be in League cannot come into England without License and safe-Conduct of the King of England but any subject to such forraigne King in league may come into this Realm without License Cook 7. part 21.6 In this câ—se he shall sue and be sued by the name of Emperour or King otherwise the writ shall abate There is a notable president cited out of Fleta where treating of the Jurisdiction of the Kings Court of Marshalsey it is said And these things he may lawfully do by Office that is to say the Steward of the Kings Houshold notwithstanding the liberty of any other although in another Kingdom where the offender may be found in the Kings house according to that which happened at Paris held in the 14 yeer of Ed. 1. of one Engleam of Nogent taken in the Houshold of the King of England the King himself being then in Paris with Silver dishes lately stollen at which deed the King of France being present and whereupon the Court of the King of France did claym cognizance of the plea concerning that theft by Jurisdiction of the Court of Paris the matter being diversly debated in the Councell of the King of Frâ—nâ—e at length it was ordered that the King of England should use and enjoy that his Kingly prerogative of his Houshold where being convicted by Sir Robert Fitz. John Knight Steward of the Kings Houshold of the theft by consideration of the same Court was hanged on the Gallows in St Germans fields Cooks 7. part 15.6 And there by the way may also be noted from the reason in the recited Books alleadged the person of a King in another Kings Dominions is not absolutely priviledged but that he may be impleaded for debt or trespasse or condemned for Treason committed within the said Dominions for it is a generall Law of Nations That in what place an offence is committed according to the Law of that place they may be judged without regard of any priviledge neither can a King in another Kingdom challenge any such prerogative of immunity from Laws for a King out of his proper Kingdom hath no merum Imperium absolute power but onely doth retain bonoris titulos dignitatis the Titles of Honour and Dignity so that wâ—ere he hath offended in his own person against the King of the Nation where he is per omnia distringitur etiam quoâ—d personam he may be distrayned even to his own person And the same Law is of Ambassadours ne occasio daretur delinquendi lest occasion of offence be given like as a sanctuary will save a mans life from man-slaughter but not when man-slaughter is committed within the Sanctuary for then he doth wilfully wave the benefit of all priviledges and prerogatives and neverthelesse it bindeth firm that Ambassadours are called Legats because they are chosen as fit men out of many and their persons be sacred both at home and abroad so that no man injuriously may lay violent hands upon them without breach of the Law of Nations and much lesse upon the person of a King in a strange Land Bracton a Judge of this Realm in the Raign of King Hen. 3. in his first Book 8 saith in effect as followeth There is no respect of persons with God because God is no accepter of persons
same Pedegree of the said Lord Dacres it is expressed that Thomas sometimes Lord Dacres had issue Thomas his eldest son Ralph his second sonne and Humphrey his third sonne Thomas the eldest dyed in the life time of his Father having Issue Ioan his daughter and heire who was marryed unto Sir Richard Fines Knight And after Thomas Lord Dacres her Grandfather and Father unto the said Sir Ralph and Humphrey dyed After whose death Henry 6. by his Letters Parents bearing date at Westminster 7. Novem. Anno 7. regni reciting the said Pedegree and Marriage doth by his Letter a Pattents accept declare and repute the said Richard Fines to be Lord Dacres and one of the Barons of his Realme But afterward in the time of Edw 4. the said Humphrey Dacres after the attaindor of the said Ralph and himselfe by an Act of Parliament which was in 1. Ed. 4. and after the death of the said Ralph and after the reversall of the same Act by another Act 12. Edw. 4. the said Humphrey made challenge unto the said Barony and to divers Lands of the said Thomas his Father whereupon both parties after their title had been considered in Parliament submitted themselves unto the Arbitrement of King Edw. 4. and entred into Bond each to other for the performance thereof Wherupon the said King in his award under his Privie seale bearing date at Westminster 8. April Anno regni 13. did award that the said Rich Fines in the right of Ioan his wife and the Heires of his body lawfully begotten should be reputed had named and called Lord Dacres and that the said Richard Fines and the Heires of his body by the said Ioane begotten should keepe have and use the same state and place in every Parliament as the said Thomas Dacres Knight late Lord Dacres had used kept c. that the heires of the body of the said Thomas Dacres Knight late Lord Dacres lawfully begotten should have and hold to them their Heires the Mannor of Holbech And furthermore the said King did award on the other part that the said Humphrey Dacres Knight and the Heires males of the said Thomas late Lord Dacres should be reputed had named and called the L. Dacres of Gillesland And that he and the heires males of the said Thomas then late Lord Dacres should have use and keepe the place in Parliament next adjoyning beneath the said place which the said Rich Fines Knight Lord Dacres then had and occupied and that the heires of the body of the said Ioan his wife should have and occupie And that the Heires males of the said Thomas Dacres late L. Dacres should have to them to the heires males of their bodies begotten the Mannor of Jothington c. And so note that the name of the ancient Barony namely Gilestand remained unto the Heire male unto whom the land was entailed Moreover this is specially observed if any Baron by writ doe dy having none other issue then Female and that by some speciall entail or other assurance there be an heire male which doth enioy all or a great part of the lands possessions and inheritances of such Barons deceased the Kings of this Realme have used to call to the Parliament by writ as Baron such heire male omitting the Husband or issue male of such heire female and this also appeareth by a notable controversie in the time of Henry 7. betweene Sir Robert Willoughby Lord Brooke and Richard Lord Latimer for the Barony of Latimer which in effect was The said Lord Brooke did challenge the Barony of Latimer as cosen and Heire to Elizabeth his great grandmother who was sister and heire to Iohn Nevill Lord Latimer who died without issue and hereupon exhibited a Petition to Henry 7. in Parliament whereto Richard then Lord Latimer was called to answer because he then enioyed the said title and dignity The said Richard Lord Latimer by his answer did shew that it was true that after the death of the said Iohn Nevill Lord Latimer dying without issue the said Elizabeth was the sister and next heire and married unto Sir Thomas Willlonghby Knight second son of the Lord VVilloughby but Henry 6. for that the said Iohn Nevill was dead without issue and that the next heire was female did therefore call to the Parliament George Nevill Knight second son of Ralph Earle of Westmerland to be Lord Latimer as Cozen and next heire male of the said Iohn Nevil Lord Latimer which George was grandfather of the said Richard Lord Latimer namely Father of Henry Lord Latimer Father of the said Richard In debate of which cause the question now in hand whether a Barony by writ may discend unto the heirea semales was advisedly considered of by the said King and his Nobility in Parliament and in the end adjudged with the said Richard Lord Latimer which President doth afford us two Iudgements in this point one in the time of Hen. 6. when the writ was directed to the said Sir George Nevill whereby he was summoned as Lord Latimer to the Parliament and as heire Male and not the said Sir Thomas Willoughby Knight husband of the said Eliza. heire male And the second judgement was given in the time of Henry 7. whereby the Barony was adiudged vnto the said Richard Lord Latimer comming of the speciall heire male against the said Lord Brooke descended of the generall heire male But here the President before remembred of the Barony of Dacres may be objected to incounter this confusion For there was an heire female martied unto Sir Richard Fines who by the declaration of Hen. 6. was Baron of Dacres in the right of his wife and there was also Ralph and Humfrey the heires males before whom the heire female was preferred by the censure of Henry 6. and Edward 4. This objection is easily answered For although Hen. 6. through the Princely favour which hee bare unto Sir Richard Fines had declared him to bee Lord Dacres in the right of his wife yet notwithstanding did Ralph Dacres being heire male unto the then Lord Dacres deceased beare also the name of 〈◊〉 Dacres and by that name was attainted in Parliament Wherefore the reason why the heire male could not bee regarded was the said attainder of the said Ralph and Humfrey his brother and therefore when Humphrey 12. Edw. 4. laboured to have the said attainder reversed he submitted himselfe vnto the Arbitrament of the King who to satisfie both Competitors because both had well deserved of him after he had admitted them to his favour he allowed the one to be Lord Dacres the other to be Lord Dacres of Gillesland thus much concerning the second point whether a Barony by writ may discend unto the heire female or not As concerning the third point admitting such discent to bee to the heire female when there is no heire male at all that may claime the same for then doth this question take place whether the husband of such heire
to answere without feare 〈◊〉 then hee shall cause the Clarke of the Crowne to reâ—â— his endictment unto him and aske him if hee 〈◊〉 guilty or not whereunto when hee hath answerâ— not guilty the Clarke of the Crowne shall aske hâ—â— how he will be tryed and then hee will say by Gâ—â— and his Peeres and then the Kings Sergeants 〈◊〉 Atturney will give evidence against him whereunto when the Prisoner hath made answere thâ— Constable shall bee commanded to retire the Prisonâ— from the Barre to some other place while the Lorâ— doe secretly conferre in the Court together and theâ— the Lords shall rise out of their places and consuâ—â— amongst themselves and what they affirme shall bee done upon their Honour without any oath to be ministred unto them and when they all or the greatest part of them bee agreed they shall returne to their places and sit downe and then the High Steward shall aske of the youngest Lord by himselfe if he that is arraigned bee guilty or not of the offence whereof hee is arraigned and then of the youngeâ—â— next him and so of the residue one by one untill hee have asked them all and every Lord shall answer by himselfe and then the High Steward shall send for the Prisoner againe who shall bee led to the Barre to whom the High Steward shall reherse the verdict of the Peeres and give iudgement accordingly 〈◊〉 Stamford Pleas dol Corona lib. 3. cap. 1. Poulton 188. The antiquity of this kind of triall by the opinion of the last recited Authours is grounded from the Statute of Magna charta so called not in regard of the quantity but in regard of the weight thereof Cooke Epistle to the 8. part fol. 2. c. 29. beginning thus Nullus liber homo c. nec super eum ibimus neâ— super eum mittimus nisi per legale judicium parvu ' â—â—orum But I take it to be more ancient then the â—â—me of Hen. 3. as brought into the Realme with the Conquerour being answerable to the Norman and French Lawes and agreeable with the Customes Fewdall where almost all the controversies arising betweene the Soveraigne and his vassall are tried per judicium Parvu ' suorum And if a Peere of the Realme upon his arraignement of treason doe stand mute or will not answer directly iudgement shall bee given against him as a Traytour convicted and he shall not bee pressed to death and thereby save the forfeiture of his lands for treason is out of the Statute of Westminster the first c. 12 15. E. 4.33 Dyer 205 and 300. But if hee bee arraigned upon an indictement of fellony he may bee mute It appeareth by this Statute of Magna charta that a Peere of the Realme shall be tried by his Peeres onely in case where he is indicted at the Kings suite of treason or fellony for the words of the Statute be We will not passe or sit in judgement upon him but by his Peeres But if an appeale of murder or other fellony be sued by any Common person against a Peere of the Realme hee shall bee tried by Common persons and not by his Peeres Stam. Pleas del Coron lib. 3. cap. 1. Brooke triall 14â— Poulton 188 6. This priviledge hath some restrainâ— as well in regard of the person as in the manner of proceedings As touching the person First the Archbishops and Bishops of this Realme though they bee Lords of the Parliament if they bee impeached of such an offence they shall not be tryed by the Peeres of the Realme but by a jury of Knights and other substantialâ— persons upon their oaths the reasons thereof alleadged is for as much as Archbishops and Bishops cannot passe in like cases upon the triall of any other of the Peeres for that they are prohibited by the Common and Ecclesiasticall Lawes to bee Iudges of life and death and reason would that the other Peeres should not trie them for this triall should bee mutuall for as much as is performed upon their Honours without any oath taken And so by the way you may see the great regard the Law hath to the word of a Peere of the Realme when he speaketh upon his Honour even in a case concerning the life of a man and that of a Peere and therefore ought they much more to keepe their words and promises in smaller matters when they engage their Honours for any fast cause or consideration Crompton Courts 13. Secondly as touching the Persons no temporall Lords but they that are Lords of the Parliament shall have this kind of triall and therefore hereout are excluded the eldest Sonne and Heire apparant of 〈◊〉 Duke in the life of his Father though he be called an Earle and it was the case of Henry Howard Earle of Surrey Sonne and Heir apparant of Thomas Duke of Suffolke in 38. H. 8. which is in Brooks abridgement treason likewise the Son and Heir apparant of an Earl though he be called Lord or Baron And all the younger Sonnes of the Kings are Earles by birth though they have no other creation but shall not be partakers of this or other priviledges incident to the Lords of the Parliament Thirdly those that are Barons of the Nobility of Ireland or of Scotland if upon the like offence committed in England they be apprehended in England they shall not have their triall by Peeres no though they were borne within England for they received their dignity from a King of their Nations But if the King of England at this day do create one of his subjects of Scotland to be Viscount Rochester within England or by ordinary summons under his great Seale doe call him to his upper House of Parliament do assign him a place and to have a voice there in his great Councell amongst the Lords and Peeres of the Realme he shall thereby also be a Peere of the Realme and be partaker with them in all priviledges and thus much concerning the restraint of the said priviledges in respect of the person as touching the manner of proceeding it appeareth by the said statute of Magna charta c. 29. that a Peere of the Realme shall be tried by his Peeres only in case where he is indicted at the Kings suite of treason or fellony for the words of the statute be Nec super cum ibimus But if an appeale of murder or other fellony be sued by any Common person by a Peere of the Realme he shall be tried by Common persons and not by his Peeres Stam. Pleas del Corone lib. 3. cap. 1. Poulton 118. and so was Fines Lord Dacres tried in appeale of murder 33. H. 8. Brooke Abridgement trials 142. The Nobility of this Realme enjoy that priviledge that they are not to be impanelled in any Iury or Inquests to make tryall or Enquiry upon their corporall oathes betweene party and party for they may have their writ for their discharge to the Sheriffe Rex Vic ' Com c. quia barones regni
heires which Judgement was that the said Earldome should bee divided amongst the said copartners as other lands and that the eldest should not have it alone 23. H. 3. Fitz. partic 18. But this judgement was holden erroneous even in those times wherein it was given For Bracton a learned Judge who lived in that age thus writeth thereof treating of Partition among Copartners lib. 2. cap. 34 fol. 76. b. De hoc autem quod dicitur quod de feodo militare veniunt in divisione capitalia messuagia inter cohaeredes dividuntur hoc verum est nisi capitale messuagium illud sit caput comitatus propter jus gladis quod dividi non potest vel caput Baroniae castrum vel aliud aedificium hoc ideo ne sit caput per plures particulas dividetur plura jura Comitat ' Baroniarum deveniant ad nihilum per quod deficiat regnum quod ex Comitatibus Baroniis dicitur esse constitutum Si autem plura sunt aedisicia quae sunt capita Baronia dividi possunt inter cohaeredes facta electione salvo jure essentiae quia cùm plura sunt ibi jura quodlibet per se poterit integrè observare quod quidem non est in uno ut praedictum est licèt à quibusdam dicatur quòd in aliis regionibus aliquando de consuetudine dividatur sed quod nunquam divids debeat in Anglia videtur nec visum fuit contrarium erit consuetudo regionis observanda ubi haereditas quae petitur personae nascuntur quae petunt unde sic dicatur quòd in regno Anglia aliquando facta fuit partitio hoc fuit injustum It is therefore evident that Baronies and dignities of Honour do by the Lawes of this Realm descend unto the eldest Coapercener and the Iudgement given once to the contrary thereof Bracton doth rightly account to be unjust his reason is notable for in as much as the honour of the Chivalry of the Realme doth chiefly consist in the Nobility reason would not that such dignitie should be divided amongst Coaparceners whereby through multitude of partitions the reputation of Honour in such succession and so divided might be impaired or the strength of the Realme being drawne into many hands with the decrease of livelihood by partition should be enfeebled in which Resolution Britton the learned Bishop of Hereford who compiled his Booke of the Lawes of the Realme by the commandement and in the name of E. 1. according Britton 187. and therefore howsoever that Judgement was given or whensoever it is neverthelesse very evident that it was soone redressed for if it were given upon the death of Renulph the last of that name the Earle of Chester who dyed about 17. H. 3. without issue the Writers of that time doe testifie that the Earledome of Chester came wholly unto Iohn Scot the sonne of David Earle of Huntington and Anguish and of Maud the eldest sister of the said Renulph if it were given upon the death of the said Iohn Scot who dyed without issue about 14. H. 7. yet notwithstanding the said Judgement stood not in force for that the said King assumed the said Earledome into his owne hands upon other satisfaction made to the sisters Coparceners of the said Iohn Scot. Ne tanta hereditas colos deduceretur Matth. Paris Monast S. Albani in Arr. fol. 3.66 B. tamen vido Vill. fol. 75. et Ioh. Guill 78. For this it is to be observed out of Presidents and to be acknowledged of every dutiful Subject that the King is at liberty to call and advance to honour whom his Highnesse shall in his Princely wisdome thinke most meet and therfore whereas Ralph Lord Cromwell being a Baron by Writ dyed without issue having two sisters and co-heires Elizabeth the eldest married unto Sir Thomas Nevill Knight and Ioane the younger married unto Sir Hunt Burther hee who married the younger sister was called unto the Parliament as Lord Cromwell and not the said Sir Thomas Nevill who had married the eldest sister and Hugh Lupus the first and great Earle of Chester was by the Conquerour his Uncle creared Earle of Chester Habemus sibi heredibus adeo libere per gladium sicut ipse Rex tenuit Angliam per Corenam Hugh dyed without issue and the inheritance of his Earledome was divided amongst his foure sisters and the eldest had not the Seigniory entire unto her selfe Reade Mills 74 75. Cookes b. part 53. 7. part 15. If a Woman be Noble by birth or by discent with whomsoever she doth marry though her Husband bee under her degree yet she doth remaine Noble for her Birthright Est Character in delibilis Cook 4. part 118. b. 6. part 53. b. Other Women are enobled by Marriage and the text saith thus viz. Women with the honour of their Husbands and with the kindred of their Husbands we worship them in the Court we decree matters to passe in the name of their Husbands and into the house and sirname of their Husbands wee doe translate them but if afterwards a woman doe marry with a man of baser degree then loseth she her former Dignitie and followeth the condition of her latter Husband Fortescue de laudibus legum Angl. 100. And as concerning the second disparaged Marriage as aforesaid many other bookes of the law doe agree for these bee rules received in those Cases Si mulier nobilis nupserit ignobili desit esse nobilis eadem modo quo quidem Constitut dissolvitur Cookes 6. part 53. B. 4. part 118. It was the Case of Ralph Hayward Esquire who tooke to his wife Anne the widdow of the Lord Powes they brought an Action against the Duke of Suffolke by the name of Ralph Hayward Esquire and the Lady Anne Powes his wife and exception was taken for misnaming her because shee ought to have beene named by the Husbands Name and not otherwise and the exception was by the Court allowed For said they by the Law of God shee is Sub potestate viri and by our Law her Name of Dignitie shall bee changed according to the degree of her Husband notwithstanding the curresies of the Ladies of Honour and Court Dyer 79. And the like was also in Queene Maries Raigne when the Dutchesse of Suffolke tooke to her Husband Adrian Stoakes Prob. 4 5 6. and many other presidents have beene of latter time and herewith agreeth the Civill Law punctually Digest lib. 1. Tit. 9. Lege 8. Eodem de Dignitate Liber 12. Lege 2. In this case of acquired Nobility by Marriage of Question in Law be whereupon an issue is taken betweene the parties that is to say Dutchesse or not Dutchesse Countesse or not Countesse Baronesse or not Baronesse the tryall hereof shall not be by Record as in the former case but by a Jury of 12. men and the reason of the diversity is because in this case the Dignity is accrewed unto her by marriage which the
Emperour be made Earle of the Empire his wife shall not beare that title of Honour either according to Law or in Reputation All the Daughters of Dukes Marquesses and Earles are by custome of long time used in the Kings Houses or palace named Ladies and have precedencie and place according to the degrees of their parents and so of this custome the Law doth take notice and give allowance for the honour and decencie but neverthelesse in the the Kings Courts of Justice they beare not these titles of Honour no more then the sonnes of such Noble person may doe brothers to such Ladies Finis Nobilitatis A TREATISE OF KNIGHTS AND Matters incident to the Degree of Knighthood according to the Lawes of England THE particular kinde of services by which lands of Inheritance are distinguished be two viz. Knight service and socage vide Littletons Soccage c. 26. In ancient time Tenure by Knights service was called Regale Servitium Cooke in his Preface to his 3. Book fol. 3 a. because it was done to and for the King and the Realme and formi secum servitium as appeareth in Anno 19. Edw. 2. Title Avowry 224.26 ass p. 66.17 H. 4.19 Cookes 7. part 8. a. Calvins case because they which doe hold by soccage ought to doe and performe their services out of the Realme Littleton 35. Et ideo formi secum dicipoterit quia sita capitur foris Hum. Servitiam persolvuntur ratione tenementarum non personarum Bracton fol. 36. And as Knights service land requireth the service of the tenement in warfare and battell abroad so Soccage tenure commandeth his attendance at the plough thâ— one by manhood defending the King or his Lords life and person the other by industry maintaining with rents corne and victuals his estate and family See Lambert Customes of Kent fol. 389. For they did thus order their owne lands and tenements one part they kept and detained in their owne hands and in them stately houses and Castles were erected and made for their habitation and defence of their persons and the Realme also Forrests and Parkes were made there for their pleasures Solace and Delight One other part hereof was given to the Nobles and others of their Chivalty reserving tenure by Knights service The third part was bestowed upon men of meaner condition and quallity with reservation of soccage tenure and in this manner the Dukes and other the Nobles with their menialls and followers dissipate to a great part of their lands viz. to their Gentlemen of quality to hold by Knights service and to others of meaner condition by Soccage tenure Gervasius Tilburiensis a learned man who flourished in the dayes of King Hen. 2. in his Dialogue of the observation of the Kings Exchequer hath in effect as followeth Untill the time saith he of King Hen. 1. the King used not to receive money of their lands but victuals for the provision of their house and towards the payment of their Souldiers wages and such like charges Mony was raised out of the Cities and Castles in which Husbandry and Tillage was not used and exercised But at length when the King being in the parts beyond the Seas needed ready money for and towards the Furniture of the warres and his Subjects and Farmers complained that they were grievously troubled by carriage of Victuals into sundry parts of the Realme farre distant from their dwelling houses the King directed Commissions to certaine discreet persons who having a regard of those Victuals should reduce them into reasonable summes of Money the leavying of which summes they appointed to the Sheriffe taking order withall that he should pay them at the scale or beame that is to say That hee should pay sixe pence over and above every pound weight of money because that they thought that the money in time would waxe so much the worse for the wearing Cambdens Perambulation of Kent fol. 172 173. Vide Littleton libro 2. fol. 26. Note also Gervasius Tilburiensis who lived Anno 1160. Anno 6. Hen. 2. And Cambden fol. 178. It was anciently ordained that all Knights Fees should come unto the eldest Sonne by succession of Heretage whereby hee succeeding his Ancestours in his whole Inheritance might bee the better enabled to maintaine the warres against the Kings Enemies or his Lords And that the Soccage Fee should be partable betweene the Male Children to enable them to encrease into many Families for the better furtherance in and increase of Husbandry See Cookes Preface to the Reader in his Ninth Booke Fol. 2.6 But as nothing is more unconstant then the estate we have in Land and livings if at least I may call that an estate which never standeth even so long since These tenures have been so indifferently mixed and confounded in the hands of each sort that there is not now any note of difference to be gathered by them See Lamberts perambulation of Kent fol. 10. Et quia tale servitium formi secum non semper manet sub eadem quantitate sed quandoque praefat ad plus quandoque ad minus Ideo qualitate Regalis Sencitii quantitate fiat mentio in charta ut tenens vectu tenere possit quid quantum persolvere tentatur Bracton fol. 36. And therefore the certainty of the law in this case is That he that holdeth by a whole and entire Knights see must serve the King or other Lord fortie dayes in the warres well and sufficiently arrayed and furnished at all points and by twenty dayes if he hold but the moitie of a Knights fee and so proportionably vide Littleton fol. 20. Anno 7. E. 3.1333 fol. 246. It was demurred in Judgement whether the 40. dayes should be accounted from the first day of the muster of the Kings Hoast or from the day that the King doth first enter into Scotland but it seemeth that the dayes shall be accounted from the first day that the King doth enter into Scotland because the Service is to bee done out of the Realme And they who hold per regale servitium are not to performe that service unlesse the King doe also go himselfe into the warres in proper person and that by the opinion of Sir William Hall Chiefe Justice of the Court of Common Pleas Term. Trin. Anno. 7. Ed. 3. fol. 246. but see Anno 3. H. 6. Titulo protec 2. In which case it was observed that seeing the protector who was pro Rex went the same was adjudged a Voyage Royall vide Cook 7 part of his reports and in Fitz-â—erbert Natura brevia 28. fol. 83. Also when before the statute De quia emptores terrarum made Anno 18. Ed. 4. the King or other Lord had given Lands to a Knight to hold of him by service in Chivalry to go with the King or with his Lord when the King doth make a Voyage Royall to subdue his Enemies by 40 days well and conveniently arrayed for the Wars In this case the Law hath such regard to the
dignity of Knighthood that he may find an able person to go in that expedition for him and the Knight is not compellable by his tenure to go in person as do ordinary souldiers who are hired and entertained by prest money or wages Anno 7. Ed. 3.296.600.8 part fol. 49. b. And see Littleton fol. 20. another reason in this case There have bin many varying opinions of Countries of a Knights Fee as you may read in 5. Ed. Cooke 9. part of his Reports fol. 124. where he seemeth to prove that antiquity hath thought that 20. l. in land was sufficient to maintain the degree of a Knight as it appeareth in the ancient Treatise Demodo tenendi Parliamentum tempore Regis Edw. filii Regis Etheldred Which also doth concur with that Act of Parliament made Anno 1. Ed. 2. de militibus by which Act of Parliament Census militis The state of the Knight is measured by 20. l. land a year and not by any certain content of acres and with this doth agree the state of Westmin ca. 36 and Pitz-natum Brâ—v 82. where 20. l. land in socage is put in Equipage with a Knights Fee and this is the most reasonable estimation for one acre may be lesse in value then many others vid. An. 27. E. 3. c. 11. the printed books of the titles of honor 319. M. Selden nata And it is to be observed that the relief of a Knight of all Superiours that are noble is the 4. part of their revenue by the yeer as of a Kt. 5. l. which is the 4. part of 20. l. sic de cet And this doth appear by the statute of Mag. charta ca. 8 as in Cooks 9. report f. 124. b. And because this tenure doth concern service in war the Tenants therfore are named milites a militia For though the word do properly signifie a souldier yet antiquity hath appropriated that name to the chiefest of the military profession vid. Bract. f. 35. b. In our law they are stiled Miles and never Equites yet so that Miles is taken for the selfsame that Chevalier by M. Selden in his Titles of Honour 1. Impression f. 334. Bracton f. 79. maketh mention of Rod-knights that is to say serving horsemen who held their lands with condition that they should serve their Lords on horseback and so by the cutting of a piece of a name as our delight is to speak short this name of Knight remaineth with us Cambden fol. 171. for Armiger scilicet Esquire which is a degree under a Knight was in the Militarie Service Note that he that holdeth by a whole Knights Fee must be with the King by 40. days well and conveniently arrayed for the war Littleton fol. 20. which is to be understood to serve on horseback And in all Nations the name of this dignity is taken of Horses for the Italians calleth them Caveleiri the French-men Chivalers the Germans Roysters our Britains in Wales Morgogh All of Ryding in Latin we call them equites aurati for at their creations beside the sword and girdle guilt spurs were added for a matter of more ornament See the statute of Anno 8. H. 5 C. 3. M. Selden f. 317. and when a Knight doth commit any offence for which he is by the Law to suffer death The use hath bin in the beginning of this punishment to degrade and deprive him publikely of his Honour of Knighthood For it is but life lost or taken away Vide Mills fol. 81. by ungirding his Military girdle by taking away his sword his guilt Spurs cut off with a Hatchet his Gauntlets pluckt off from him and the schochean of his Arms reversed 4. E. 4.20 Cambden 171 b. and of the degradation of a Knight which was Andrew Horkley under E. 2. who was a Scot born by that King created Earl of Carleile vide Selden his Titles of Honour fol. 337. And by the statute made Anno 24. H. 8. cap. 13. intituled An Act of Reformation of apparell It was permitted for Knights to wear in a Collar of Gold named a Collar of 55. Esses And although this dignity of Knighthood had its originall and was given to men of war yet in all successions of Ages and in all Nations the same also is bestowed on men of peace by Sovereign Kings that in severall Functions and places in the Common-weal be of singular desert wherby the service of the Common-weale at home is levelled and made equall with that abroad for as Tully said truly Parva sunt focis Arma risi est Consilium domi He that receiveth the Dignity of a Knight kneeleth down and the King slightly smiteth him upon the shoulder speaking these words unto him therwithall in French So is Chevalier a nome de dieu that is to say Be thou a Knight in the name of God and then afterwards therupon the King saith Avances Chevalier that is arise Sir Knight vide Hooker al. Vocrell his C. 10. fol. also Selden f. 37. who there speaketh of our Earl Marshal of England for making of Knights for a Knight is not made by Letters pattents or by the Kings Writs as are those of greater dignity but by the sword For this Honour is supposed to be given on the sudain and therfore it is commonly done only by the sword withouâ— any pattent but the King may by his Letters Patten's create a Knight Earls in ancient time had power in Knighthood M. Selden title Honors fol. 136. But now neither may the Prince nor any other of the Nobility make a Knight but only the King or his Lieutenant by Commission hereof vide Cook 6. part Dyer reports f. 74. b. No man is born a Knight Selden f. 3.18 as he may be to titles of Honour Causa patet But a Knight may be made so soon as he is baptized as in that book is mentioned excepts Knights Barronets whose posterity doth receive that title by discent with some limitation as in the Kings Books therof may appear Note also in the said Titles of Honour fol. 318 and 313. the first Knight made in England With us in England there are divers sorts of Knights wherof Camden fol. 171. and Mills do write at large but my purpose is only to speak of one order of them amongst the Romanes there was but one Order of them And these were next in degree to the Senators themselves as with us they are to the Barons and they who simply without any addition be called Knights howsoever they are in Order ranked last yet by institution they be first and of greatest antiquity and the other attributes according to the severall inventions of particular Princes And I do not remember that in our Law books I have read any thing concerning the Order of Knights with addition viz. Knight of the Honourable Order of the Garter Knight of the Bath Knight Barronet Knight Banneret But in the statute of 21. H. 8. cap. 13. where it is thus enacted Every Knight of the Garter
Judge DODARIDGE HIS Law of Nobility and Peerage WHEREIN THE ANTIQVITIES TITLES DEGREES and Distinctions Concerning the PEERES and NOBILITY of this Nation are Excellently set forth WITH The Knights Esquires Gentlemen and Yeomen and matters Incident to them according to the Lawes and Customes of ENGLAND LONDON Printed for L. Chapman and are to be so his Shop next doore to the Fountain-Taverne in the Strand 1658. THE TABLE The severall Dignities Degrees and Titles treated of in this discourse IMprimis of the King 1 Of the Prince 14 Of Dukes and their Patents 36 Of Marquesses 58 Of Earles and their originall 60 Of Viscounts 90 Of Barons in generall 91 The definition or description of a Baron 92 The Etimology and derivation of the word Baron 94 The antiquity of the dignity of Barons and the sundry uses of the name 95 The tenour and proper signification of the word Baron 99 Of Barons by tenure 99 Of Barons by writ 134 Of Barons by Patent 155 Priviledges incident to the Nobility according to the Law of England 162 Certaine cases wherein a Lord of the Parliament hath no priviledge 200 Of Nobility and Lords in reputation onely 208 Of Noble Women 210 Of Ladies in reputation 234 Of Knights and matters incident to the degree of Knight-hood according to the Law of England 237 Observations concerning a Knight-Batchelour 277 Of Esquires 278 The definition of Gentry or Civill Nobility 285 Of Yeomen 288 A Treatise concerning the Nobility according to the Laws of ENGLAND AS in mans body for the preservation of the whole divers Functions and Offices of Members are required even so in all well-governed Common-wealths a distinction of persons is necessary And the Policy of this Realm of England for the maintenance and government of the Common-wealth of the same hath made a three-fold division of persons That is to say First The King or Soveraign Monarch under which names also a Soveraign Queen is comprized as declared by the Statute thereof made in the first yeer of Queen Mary Anno 5 Parl. Secondly The Nobility which do comprehend the Prince Dukes Marquesses Earls Viscounts and Barons Spirituall and Temporall Thirdly The Commons by which generall words are understood Knights Esquires Gentlemen Yeomen Artificers and Labourers But my purpose at this time being onely to speak of the Nobility and especially so much of them as I finde written in the Books of the common Law and Statutes of this Realm This first I have observed That our Law calleth none Noble under the degree of a Baron and not as men of forraign Countries do use to speak with whom every man of Gentle Birth is counted Noble for we dayly see that both Gentlemen and Knights do serve in the Parliament as Members of the Commonalty vide Lamberts Justice of Peace Lib. 4. Cap. 13. Neither do these words the Nobles the high or great men of the Realm imply the Person and Majesty of the King Dier 155. But with the Civilians the King is reckoned among his Nobles Doct. Ridley fol. 93. The Nobility are known by the generall name of Peen of the Realm or the Barony of England for Dukes Marquesses and Earls and all other of the Nobility do sit together in the Kings great Councell in Parliament as Barons and in right onely of their Baronies And therefore by the generall names of Barons of this Realm and for the Baronage thereof we do understand the whole Body of the Nobility The Parliament-Robes of Dukes differing nothing from the Barons but they wear the Guards upon their shoulders three or four fold for although Dukes Marquesses Earls and Viscounts in their Creations are attired with Garments of Silk and Velvet yet in the Parliament they use the same as Barons do made with Scarlet with divers differences of white Furre set with Freinges or Edging on their shoulders for there they sit by reason of their Baronies and according to their dignity take their places Thomas Mills fol. 66. And hence it was that those bloody Civill Warres concerning the liberties granted by the great Charter both in the time of King John and H. 3 his sonne persecuted by all the Nobility of this Realm some few excepted are called in our History The Barons Warres Neither have the Spirituall Lords and Peers of the Parliament any other title to that preeminency but because of their ancient Baronies For although originally all the possessions of Bishops Abbots and Pryors were given and holden in Franckalmayn yet shortly after the Norman Conquest most of their Tenures were altered viz. per Baroniam as appeareth by Matthew Parris Anno 1070. 66 and of that Tenure have continued ever since as you may reade by the Consultations of Claringdon in the Raign of Hen. 2. and in Glanvile and Bracton But the Tenure of all Abbots and Pryors were extinguished by the uniting and conveying them to the Crown by the Statute of dissolution of Monasteries made Anno 31 Hen. 8. Cap. 13. And though the Nobility of England in Titles and by certain Ceremonies may be distinguished yet a Baron is in equipage as unto Nobility and priviledges incident to their dignities with Dukes Marquesses Earls Cooks 6. part 53. And it is in ordinary experience That Dukes and others of any high degree of Nobility in cases criminall are tryed by Barons together with many Earls and Viscounts as their Peers and Peers of the Realm Nobilitas generally signifieth and is derived of the word Nosco to know signifying in common phrase of speech both with the Latines and eke with us English-men a generosity of Blood and Degree and therefore one said vir nobilis idem est quod notus per omnia c. A Noble man is he who is known and the Heroicall vertues of his life talkt of in every mans mouth But especially it is applyed and used to expresse the reward of vertue in honorable measure generis claritatem And this is not to be omitted That the Law doth prohibite any Subject of this Realm to receive Titles of Honor or dignity of the gift or Donation of a Forraigne Prince or King or Emperour for it is a thing greatly touching the Majesty of the King and the State of his Kingdom Est jus Majestotis inter insignia summae potestatis It is the right of Majesty and amongst the Ensignes of high power vide Cook 7. part 25.6 And if that man shâ—ll bring an action and in the Writ is stiled by such forraigne title and name of Honour the defendant may plead in abatement of his Writ That he is no Duke Marquesse Earl or Baron whereupon if the plaintiff or demandant take issue this issue shall not be tryed by Jury but by Records of the Parliament wherein he faileth And if an English man be made Earl of the Empire or of any other forraign Nation created into Honour and the King also do make him into any Title of Honour in England he shall now be named in all his
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 Confull 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 castra 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 gelded and cut 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 magnae dignitatis men 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 past 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 retained 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 Knight 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 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 Statute 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 20l of Land holden of the King without mean in soccage 20s and no more and so rata pro rata of the Lands in soccage And for Lands of the tenure of Chevalry according to the quantity of the Fee By another Statute made in the said 25. yeer of Ed. 3. cap. 2. amongst other things it is declared that to compasse or imagine the death
of the Kings eldest Sonne and Heir is crimen lasoe Majestatis high treason or if a man do violate the Wife of the Kings eldest Sonne and Heir it is high treason and see the Statute 20. Hen. 8. cap. 13. And so was the ancient common Law of England and not a new Law made by this Statute Cooks 8. Part. 28.6 But this Statute is a manifestation and declaration or publication of the ancient common Law in this Case By a Statute made in the said 25. yeer of King Ed. 3. It is declared because the people be in ambiguity and doubt of the children born in the parts beyond the Sea out of the Kings Legiance of England should be able to demand any inheritance within the same Legiance or not Whereof a Petition was put into the Parliament late holden at Westminster the 17. yeer of the raign of our Soveraign Lord the King assembled in this Parliament and was not at the same time wholly assented Our Soveraign Lord the King willing that all doubts and ambiguities should be put away and the Law in this case declared and put in a certainty hath charged the said Prelates Earls Barons and other wise men of his Councell assembled in this Parliament to deliberate upon this point who with one assent hath said That the Law of the Crown of England is and alwayes hath been such that Les Enfants du Roy the children of the King of England in whatsoever part they be born in England or elsewhere be able and ought to bear the inheritance after the death of their Ancestors which Law our Soveraign Lord the King the said Prelates Earls Barons and other great men and all the Commons assembled in this Parliament do approve and affirm for ever Note These words in the Statute Les Infants du Roy have briefly set down and in a vulgar manner for loquendum ut vulgus and not in form of exquisite pleading for sentiendum ut docti and therefore ought to be understood largely Cooks 7. part 11.6 and as the Latine word liberi is with the Civilians Bract. lib. 2. cap. 29. hath these words Item descendit jus vero heredi ubicunque nat in fuerit vel in utero matris intra mare vel ultra Nec potest sibi aliquis facere beredem quia solus Deus heredem facit The right doth deseend unto the true Heir wheresoever he shall be born in the Womb of his Mother on this side the Sea or beyond no man can make an Heir unto himself because God only doth make the Heir read the Statute and Cook 7. part 18. a. Where you shall see that though generally the birth-place is observable yet many times Legiance and obedience without any place within the Kings Dominions may make a Subject born for though we see by experience almost in every Parliament Ambassadors Merchants and the Kings souldiers doth shew there in such causes to have their children naturalized or made denixens yet that doth proceed onely of doubt and needlesse scupulosity and ignorance of the Law even as we see men that are doubtfull desire to be resolved as may appear by sundry covenants in bargaining more then necessary And by renuing of Chartes though there be no forfeitures and by suing forth particular pardons when a generall is granted by Parliament Priests and Ministers see to the Parliament for legitimation of their children And in the Articles confirmed by Parliament touching the marriage between Philip Prince of Spain and Queen Mary a speciall proviso was to barre him from being Tenant by the courtesie of the Crown in case he should have issâ—e by her and survive which was superfluous because the Common-Law would have denyed this last point See the Lord Cromwels Speech in the case of the Postnati fol. 36. But note that if an Alien Enemy come into this Realm and his Wife English or stranger be delivered of a childe within England this childe notwithstanding his birth-place is an Alien born for want of allegeance in the Parents Ibidem King Henry did create Edward his eldest Sonne the first Prince of Wales and did give unto him the dignity and Dominion of it to be holden of him and his Heirs Kings of England and after that time the eldest sonne of the King of England hath been Prince of Wales and as incident to the State and dignity of a Prince and might make Laws and Statutes and use jurisdiction and authority as amply as any King of that Nation could do Cooks 7. part 21.6 Vide Mills fol. 312. Plowden 126. For Wales was a Kingdom in ancient time But in a Statute made in the 12. Ed. 1. Wales was united and incorporated into England and made parcell of England in possession And note in Tho. Mylls 112. the devise of the said King was to draw the Welchmen to acknowledge the Kings eldest Son Edward of Carnarvan to be their Prince Also by another Statute made 27. Hen. 8. cap. 24. a generall resumption of many liberties and franchises heretofore taken or granted from the Crown as the authority to pardon Treason murther man-slaughter and fellony power to make Justices in Oyre Justices of assize Justices of peace Goal delivery and such like so that from thenceforth the Kings eldest Sonne hath only the name and stile of Prince of Wales but no other Jurisdiction then at the Kings pleasure is permitted him and granted by his Letters Patents as by the tenour thereof following made by King Henry the eight to Edward his sonne and heir apparent may appear Henry Ireland was before 33. Hen. 8. a Lordship and now is a Kingdom and the King of England was as absolute a Prince and Soveraign when he was Lord of Ireland as now when he is stiled King of the same Cooks 7. part By the grace of God King of England and of France Lord of Ireland c. To all Archbishops Bishops Abbots Priors Dukes Earls Barons Justices Viscounts Governours Ministers and to all our Bailiffs and faithfull Subjects greeting out of the excellency of Royall preheminence like as the beams from the Sunne so doth inferiour honour proceed neither doth the integrity of Royall lustre and brightnesse by the naturall disposition of the light-affording light feel any losse or detriment by such borrowed lights yea the Royall Scepter is also much the more extolled and the Royall Throne exalted by how much more noblenesse preeminences and honours are under the power and command thereof And this worthy consideration allureth and induceth us with desire to the increase of the name and honour of our first begotten and best beloved Sonne Edward in whom we behold and see our selves to be honoured and our Royall House also and our people subject to us hoping by the grace of God by conjecture taken of his gratious future proceedings to be the more honourably strengthned that we may with honour prevent and with aboundant grace prosecute him who in reputation of us is deemed the same
against the said King there were many cruell battells fought to the great effusion of English blood of which rebellions Simon Earl of Leicester was ring-leader for the defence of liberties as they pretended granted by Magna Charta and the Charter of the Forrest which are even to this day the principall grounds of the positive Lawes and are the most ancient statutes in use within this Realme and for defence of other constitutions and ordinances then made at Oxford And after divers fields fought by them at Northampton Rochester Lewis and other places last of all was the catastrophe of that tragedy finished at Evesham where the said Earle of Leicester was slain the King had the victory and the rebellious Barons had the overthrow whereupon presently ensued the Parliament holden at Winchester and aâ—ter at Westminster where such of the Barons as were slaine in the field against the King and such others of them also as were taken captive and were fled were to be attainted and disinherited of their livings wherefore for as much as the number of Barons who had continued faithfull unto the King was small who were the Peeres upon whose tryall then these things were to be accomplished it was holden a necessary policy to supply the number of the diminished Barons and to fill up their rooms in Parliament with other wise and fit men of the best account and livelihood upon summons by writ By reason whereof at those Parliaments were called the Abbots and Priors of the Realme as well those that held not by Barony as others and divers others of the most worthy of the Laity not holding by Barony And these by means thereof were thenceforth Barons by writ But certain of the said Abbots and Priors which held not by Barony and thought it a burthen to their houses got themselves upon petition afterward to be exempt as by divers records thereof remaining in the Chancery may appeare This moreover is to be noted concerning the writ of summons to the Parliament that these writs in forme of their direction are diverse Some directed by speciall name of Barons as Rex c. Edmundo Baroni de Staffort Johanni Baroni de Greystock Johanni Baroni Dudley Some others by the name of the party with addition of the place as Johanni Stronning de Knocking Militi Edmundo Grey de Ruthin Militi Edvardo Grey de Grooby Militi Johanni le Scroop de Masham Militi Willihelmo Zouch de Harrington Militi naming the chiefe Castle or Mannour of such Baron which alway standeth afterward for the head place of the Barony wherefore the said Baron and his heires shall be sirnamed and called and shall continue that name of place although he doe alien away the same as before is said Some others are named in this manner with the title of Lord as Johanni Beauchamp Domino Clinton Henrico Piercy Domino de Poynings To some others the said writ is directed onely by their name without any addition of place or dignity as Willihelmo de Lovell Militi Tho de Scales Militi Willihelmo Devereux Militi See Tho. Mills Nobility Politicall and Civill But the nature quality and condition of these Barons by writ is aptly discovered by the debate of a question often moved among men and spoken of concerning the descent and continuance of a Barony by writ which question for the more orderly disposition thereof I doe divide into these articles or points Question First whether a Barony by writ may descend from the Ancestor to the heire or not Secondly admit such a Barony may descend then whether it do descend to the heire female or not if there be heires male though not so neare as the females Thirdly admit it doe descend to the heires females then whether may the husband of such heire female take upon him the name stile and dignity of such Barony in jure uxoris or not As touching the first question it shall be requisite for the more satisfaction of all men to alledge such principall reasons as are wont to be produced on both parts Those therefore that maintaine the negative part denying that such Barony should descend do strengthen themselves with these or the like arguments viz. Nobility and honour which are given in respect of wisedome counsell and advice being gifts of God to the person of a man cannot extend to any other person or descend from one man to another for it is a rule of the law of reason Quod privilegium personale personam sequitur extinguitur ad personam But such is the dignity of a Baron by writ Therefore it is reason that it should not descend from the Ancestor to the heire Againe if the calling to Parliament by writ bee the efficient instrumentall cause of such Nobility to the Ancestor the not calling of the heire is the losse of that Nobility for if the heire have defects of nature in him as Idiocy Frenzy Leprosie and such like whereby he is unfit for counsell and conversation by what reason should he enjoy that dignity whereof he is either unworthy or uncapable for the effect hath no place where the cause doth faile And hereof they doe conclude that such dignities of Baronies by writ should not descend Of the contrary part the affirmative part is proved thus viz. Honour which is given in respect of the wisdome and vertue of him upon whom it was first bestowed is not onely a due recompence for himselfe while he liveth but also a memorable reward thereof in his Posterity The words of Cicero to this effect are most excellent Hominis boni semper Nobilitati favemus quia utile est reip esse homines dignos majoribus suis quia valere debet apud nos claros hujusmodi senes fuisse ne reip moriretur memoria etiam mortuor honor Therefore this kinde of honour is patrimoniall and hereditary for things which are once granted to a man by the King for his honour are not againe to be returned either to his losse and discharge or to his heires Secondly if the infamy of the Ancestor be a blot to the Posterity as affirmeth the wise man The children complain of an ungodly father because they are reproved for his sake And for that also the Law of the Realme doth corrupt the bloud of the Posterity by and upon the offense of Ancestor reason would also that the honour due to the Ancestour should be likewise honour to the posterity for contraries do carry also their contrary reasons For the determination whereof it is to be noted that diversity of reason hath bred diversity of opinion Some men there are that think that the dignity of a Baron by writ is not descendable from the Ancestor to the heire unlesse the heire be likewise so called by writ to the Parliament and that then it becommeth an inheritance and not before But this objection is repugnant to the nature of a descent which for the most part doth carry the patrimony descendable by
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 see 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 he 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 enioyeth the title and name of dignity which his Father had but dyeth without issue In this case the dignity shal goe and deseend unto the younger sonne though he be but of the halfe blood unto him that last enioyed that name and title by discent and shall not descend 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 faileth 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 dignity 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 descend unto him and therfore the younger brother may well by the Law make himselfe heire unto his Father of the honour though he cannot bee 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 〈◊〉 and doth require actuall possession Cooks 3. part â—â— Ratcliffs case And having thus much dilated concerning the creaâ—â—s and other things incident to the degrees of Noâ—â—ty I cannot with silence pretermit something to â—â—lare concerning that sufficiency and ability of estate â—hich the Law doth require to be in every of them â—â—rding to their severall dignities The Common Law that alwayes will that decorum â—â—ed conveniency be observed considering the charges â—â—d expences appertaining to these degrees and digâ—â—ies being offices of principall service to the King â—â—d the Realme both in time of warre and peace as â—â—th beene said hath ordered that each of them have 〈◊〉 convenient portion and value of lands of inheriâ—â—oâ— for the support of their honours which supâ—â—yes are as sinewer conjoyned unto the same For in â—ertue and in riches as Aristotle counselleth all the â—ld Nobllity consisted and which two as Ecclesiastes â—â—athethâ— maketh a good accomplement for saith he Vâ—ilior est sapientia cum divitiis conjuncta Lamberts Perambulation of Kent 368. Therefore a Knight ought to have 20. l. land by the yeare a Baron 13. Knights fees and a quarter an Earle to knights fees and this doth appeare by the Statute of Magna Charta cap. 2. For alwâ—ies 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. markeâ— yeare which doth include 13. Knights fees anâ— quarter and the reliefe of an Earle is a 100. l. whâ—â—â— is the fourth part of 400. l. which is the revenue of Earle and it appeares by the Records of the Excheqâ—â—â— that the reliefe of a Duke amounteth unto 200. l. 〈◊〉 by consequence his revennue ought to be 800. l. per 〈◊〉 num and this is the reason in every of our bookes thâ— every of the Nobility is presumed in our law 〈◊〉 have sufficient free-hold Ad sustinendum nomen onus and to what value these ancient Rents in tiâ—â— of H. 3. Edw. 1. at this day doe amount unto everâ— man knoweth not Cooke 7. part 33. And in cases of decay of Nobility and meane◠〈◊〉 Senatores Romani rere amotisenata as senators of Roâ— were removed from the Senate so sometimes thâ—â— are not admitted to the upper house in the Parliameâ—â— though they keope the name and title of dignity stiâ—â—â— Sir Thomas Smith de reipub Angl. 221. And by a Sâ—â—tute made 31. H. 8 ca. 10. The Lords have their pâ—â—â—ces prescribed after this manner following viz. theâ—â— foure the Lord Chancellour the Lord Treasurer tâ—â— Lord President of the Councell and the Lord Priâ—â— Seale being persons of the degree of a Baron or 〈◊〉 bove and in the same act appointed to sit in the Pâ—â—liaments and all assemblies or Councell above all doties not being of the blood royall viz. the Kings brother Vnkle Nephew and these sixe the Lord Hiâ—â— 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 bee placed in all assemblies of â—â—â—ncell after the Lord Privy Seale according to 〈◊〉 degrees and estates so that if hee bee a Baron 〈◊〉 he is to sit above all Barons or an Earle aboue 〈◊〉 Earles and so likewise the Kings Secretary beâ—â—â— a Baron of the Parliament hath a place above all â—â—â—ons and if hee bee a man of higher degree hee â—ll sit and be 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 treaâ—â—â— or fellony whereof he is indicted and whereupon â—â—e hath pleaded not guilty the King by his Letters â—â—â—tents shall assigne some great and sage Lord of 〈◊〉 Parliament to bee High Steward of England for 〈◊〉 day of his arraignment who before the same day â—â—all make precept to his Sergeant at armes that is â—â—pointed to serve him during the time of his Comâ—â—ssion to warne to appeare before him 18. or 20. Lords of the Parliament or 12. at the least upon the â—â—me day and then at the day appointed when the â—â—igh Steward shall bee set under the Clothe of State â—pon 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 Hâ—â— Steward shall declare unto the people the cause 〈◊〉 the King hath assembled thither those Lords and 〈◊〉 and perswade him
nostri iâ— Assizis Iuratis seurecognitionibus aliquibus poni non consueverint ut dicunt nisi corum sacramentumadeo sit necessarium quod sine illis veritas inquire non potest Tibi precipimus quod dilectum fidelem nostram A.B. in Assizis Iuratis seu recognitionibus aliquibus non ponas seu poni faciatis contra voluntatem suam sine mandato nostro speciali nisi suam presentia ob aliquam causam specialiter exigatur teste c. But it is a rule in Law vigilantibus non dormientibus subveniuns Iura For if the Sheriffe have not received any such writ and the Sheriffe have returned any Lords in Iuries or in Assizes c. and they thereupon doe appeare they shall be sworne and if they doe not appeare they shall loose their issues 35. H. 6.46 and in such case they must purchase a writ out of the Chancery reciting their priviledge directed to the Iustices before whom such noble persons are so impannelled commanding them to dismisse him or them that were so impannelled out of the said pannell Fitz na br 165. This priviledge hath restraint in two cases first if the Enquiry concerne the King and Common-wealth in any necessary or important degree or busines of the Realme then this priviledge is not allowed nor taketh place and therefore divers Barons of the marches of Wales were impannelled before the Bishop of Ely and after Commissioners of Oyer and Terminer to enquire of a notable out-rage committed by Gilbert de Clare Earle of Gloucester against Humphery de Bohuâ— Earle of Hereford and Essex and his Tennant in Wales the 12th yeare of Ed. 1. where John de Hastings Edmond de Mortimer Theonald de Bordmor and others Barons of the Marches challenged their Priviledges aforesaid and much insisted upon the same but it was afterwards answered by the Courts as by the words in the Recordâ— appeareth Domino quod res ista Dom. Regem Coronam dignitatem suam tangit dictum fuit Dominum Regis Johan de Hastings omnibus aliis magnatibus supra nominatis quod per statu Iure Regni per conservatione dignitatis Coronae pacis suae apponunt manum ad librum ad faciendum id quod eis ex perte Dom. Regis in jungeretur The Barons aforesaid did neverthelesse persist in the Challenge and in the end both the said Earles between whom the said outrage had been perpetrated submitted themselves to the Kings grace and made their Fines Secondly this Priviledge hath no place in case of necessity where the truth of the case cannot otherwise come to light for the words of the Writ in the Register before mentioned are Nifi sua presentiae ob aliquamâ— causam specialiter exigatur c. Register 179. If a Nobleman doe bring an Action of debt upon an Accompt in case where the Party is to be examined which is alwayes intended to be upon Oath upon the truth of his cause by vertue of the Statute of 2. H. 4. cap. 8. Jt shall suffice to examine his Attorney and not himselfe upon Oath 3. H. 6.48 Cooke 6. part 53. And this Priviledge the Law doth give to the Nobility that they are not to be arrested by any Warrant of any Justice of the Peace for the peace or for the good behaviour nor by a supplicavit out of the Chancery so called because it issueth out at the supplication of the partie or from the Kings Bench for such an opinion hath the Law conceived of the peaceable disposition of Noblemen that it hath beene thought enough to take their promise upon Honour in that behalfe Lamb. Instice of Peace lib. 2. cap. 2. Fol. 17. E. 44.24 E. 3.33 subpenae Fitz 20. And as in civill causes the like rule doth the Court of Equity observe in causes of conscience for if the desendant be a Peere of the Realm in the Star-Chamber or Court of Chancery a Subpena shall not be awarded but a Letter from the Lord Chancellor or Lord Keeper in liew thereof and if he doe not appeare no attachment shall go forth against him For in the 14. Yeare of the late Queene Eliz. the Order and rule was declared in the Parliament Chamber and so to be inrolled in the Parliament that attachment is not to be awarded by Common Law custome or president against any Lord of the Parliament Dyer 315. a. and if he doe appeare he may make his Answer to the Bill of complaint upon his Honour onely and is not compelable to be sworne By the Statute 5. Eliz. chap. 1. Jt is enacted that all Knights and Burgesses of the Parliament shall take their Oath for the Supremacy and so shall Citizens and Barons of the Cinque-ports being returned of the Parliament before they enter into the Parliament House which Oath shall be according to the tenour effect and forme of the same Oath verbatim which is and as it is already set forth to be taken in the Statute 1. Eliz. provided alwayes that for so much as the Queenes Majestie is otherwise sufficiently assured of the faith and loyalty of the temporall Lords of her â—igh Court of Parliament Therefore this Act nor any thing therein contayned shall not extend to comâ—ell any temporall person of or above the degree of a â—aron of this Realme to take or Pronounce the Oath â—bovesaid nor to incurre any Penalty limited by this Act for not taking or refusing the same If any Peere of the Realme be sued in the Common Pleas in an Action of debt or trespasse and Processe are awarded against him by Capias or by Exigent then he may sue a Certiorare in the Chancery directed to the Justices of the Common Pleas testifying that he is a Peere of the Realme and the Writ is thus Rex c. Iusticiarijs suis de banco salutem mandamus vobis quasi G. F. miles corum nobis ad sectam alicujus per Actionem personalem in placitatus existat talem processum non alium versus ipsum in actionem predicta scire saciat qualem versus Dominos magnates Comites seu Barones Regni nostri Anglium qui ad Parl. nostra de suminicionem nostra venire debent aut eorum aliquem secundum legem consuetudinem regnum nostri Angl. feri faciendum quia pred G T. vnius Baronum Regnum in pred ad Parliamentum nostri de suminitionem regia venient record hoc vobis mandanus alijs quorum interest innatescimus teste est lan H. N B. fol. 247. For unlesse the Court be judicially certified by the Kings Writ out of the Chancery that the defendant is a Lord of the Parliament Jf a Capias or Exigent issue forth against him no errour neither is it punishable in the Sheriffes his Bayliffes or Officers if they execute the said processe and Arrest the body of the said Noble person for it appertaineth not to them to argue or dispute the Authority of the Court but if the Court be thereof certified in
forme aforesaid they will award a Supersedeas which is in the Booke of Enteries in the Title of Errour Sect. 20. and there are two reasons or causes wherefore no Capias or Exigent lyeth against any Peere the one because of the dignity of their persons the other by Intendment of Law there is none of the Nobility but have sufficient Freehold which the Plaintiffe may extend for their payment or satisfaction but a Capias or Exigent lyeth against a Knight for the Law hath not that opinion of his Freehold as the Court said in 26. H. 8. vide 27. H. 8.22 in Brookes abridgement Exigent 2. 3. Cooko 6. part 52. 54. And if any of the Nobility happen to be so wilfull as not to appeare the Court will compell the Sheriffe to returne great issues against him and so at every default to increase and multiply the issues as lately against the Earle of Lincolne hath been in practice By the Ancient Lawes of this Realme before the comming of William the Conquerour many good Lawes were made for the keeping of the peace amongst others that every man above the Age of 12. yeares should be sworne to the King as you may read more at large in Lamberts perambulation of Kent 21. which we in remembrance thereof doe keep at this day in view of Frank-pledge or leete Court but Noblemen of all sorts are neither bound to attend the Leete nor to take that Oath as appeares by Britton cap. 29. treating of this Court called the Sheriffes Turne Courts of which the Leete seemes to be extracted and agreeable thereunto is the Statute of Marlbridge cap. 10. in these words de turnis vice contra provisum est quod necesse non habeant ubi venire Archiepiscopi Episcopi Abbates Priores Committes Barones vide the Lord Chancellors Speech in the case of Post-nari fol. 78. If a Writ of Error be brought in Parliament upon a Judgement given in the Kings Bench the Lords of the higher House alone without the Commons are to examine the errors vide Jbid. fol. 22. Jn 11. H. 4.2 b. In a case concerning a distresse taken for expences and Fees of the Knights of the Parliament it is agreed for Law that the Baronies and other Lands as are parcell of their ancient Lordships and Baronies but for other Lands they are But there is a question made one which is no Barron but ignoble doe purchase any ancient Barony whether he shall be discharged of such ignoble purchase by reason onely of such his purchase challenge or pretence to have Nobility and place in Parliament as before in this treatise more at large appeareth for as Lands by Villany service doe not make a Villany or Bondman which being free doth purchase the same as Littleton doth teach lib. 2. cap. 12 though by his Tenure he shall be bound to doe such Villanie service so of the other side and that is holden by Barony doth not make the villany peasent or ignoble which purchaseth the same to be noble although the charge of such tenure doe lye upon him in respect of the service of the Realme It is said in our Bookes that a day of grace or by the favour of the Court is not to bee granted to the Plaintiffes in any Suite or Action wherein a Nobleman is defendant 27. H. 8.22 27. E. 3.88 because thereby the Nobleman should be longer delayed then the Ordinary course of the Court is and such Lord is to have expedition of Iustice in respect that he is to attend the Person of the King and the Service of the Common-wealth but if there be no ignoble person party to the Suite the Judges doe and may at their discretions grant upon a motion and prayer a day or more of tryall otherwise then by the strict course of the Law the Plaintiffe may challenge Cambden fol. 169. writing upon the Subject saith where the Noble man is demandant the Tenant may not be essoyned for the delay and causes aforesaid to which J would also subscribe but that the Booke of 3. H. 4 5 6. is otherwise adjudged if I doe misunderstand it there the King brought a Quare Impedit against a Common person and the defendant was essoyned by the rule of the Court Therefore a fortiori he might be essoyned against a Nobleman Jf any Peere of the Realme being a Lord of the parliament be plaintiffe or demandant defendant or Tenant in any Action reall or personall against another whereupon an issue is to be tryed by a Jury the Sheriffe must returne one Knight at the least to be of the Inquest otherwise upon a challenge made the whole Pannell shall be quashed which by the order of the Law is appoynted to be done for Honour and reverence due to the persons of that degree for as the words of the Booke are when a Peere of the Realme is party the Law is otherwise then when the Suite is betweene other persons Fitz. Chall 113.13 E. 3. in a Quar. Impedit against a Bishop adjudged Plowd 117. Dyer 208. b. 27. H 8.22 b. But the Earle of Kent by the name of Reignald Gray Esq brought a Writ of Entry against Sir H. G. Knight 4. Eliz. and the parties did plead to an issue the venire facias was awarded which the Sheriffe did returne served and a Pannell returned according in which pannell there is no Knight named the truth of which Cause was that after the returne made the demandant is published and declared by the Queene and the Heraulds to be Earle of Kent in right and by discent although hee had not beene so reputed or named Earle before and also after that time that is to say at the then last parliament the Tenant is made a Baron by a Writ of parliament and both parties have places and voyces in parliament and then the Iury doe appeare in the Court of Common pleas and the Earle of Kent did challenge the array because no Knight was returned but it was not allowed him by the Court for the â—dmittance of both parties as to the contrary and no default can bee layd to the Sheriffe for he had no notice of the honourable estates of either of the parties the demandant not being then knowne or reputed to bee an Earle by discent or of the Tenants then also being no Baron Dyer 318. How much the Common Law hath alwaies prohibited perpetuities in Lands and Tenements you may see in Corbets Case in the first part of Sir Edward Cookes Booke Fol 84. and in many other Cases in the rest of his Books also Littleton Fol. 145. saith it is a Principle in the Law that every Land of Fee-simple may be charged with a Rent in Fee-simple by one way or other but of the Kings Majesty upon the Creation of any Peere of the Realme Duke Marquesse Earle Vicount or Baron do as the manner is by his Letters Patents give unto such new created Noblemen an Annuity or Rent for the support of his
Councell or any of the Kings great Officers in his houshold as Steward Treasurer Controller and so great inconveniences did ensue because such ungodly demeanours were not straightly punished before that an actuall deed was done For remedy whereof it was by the same statute ordained that the Steward Treasurer or Controller of the Kings house for the time being shall have full authority and power to enquire by twelve sad men and discreet persons of the Check-roll of the Kings honourable houshold if any servant admitted to be his servant sworne and his name put into the Check-roll of the houshold whatsoever he be serving in any manner office or roome reputed had and taken under the estate of a Lord make any confederacies compassings conspiracies imaginations with any person or persons to destroy or murder the King or any Lord of this Realme or any other person sworne to the King Councell Steward Treasurer or Controller of the Kings house that if it be found before the said Steward for the time being by the said-twelve men that any such of the Kings servants as is aforesaid hath confederated compassed conspired or imagined as abovesaid that he so found by the enquiry be put thereupon to answer and the Steward Treasurer or Controller or two of them have power to determine the same matter according to the law and if hee be put in tryall that then he be tryed by other twelve sad men and discreet men of the same houshold and that such misdoers have no challenge but for malice and if such misdoers be found guilty by confession or otherwise that the said offence be adjudged felony and they to have judgment and execution as felons attainted ought to have by the Common law In the statute made in the second yeare of H. 5. cap. 10. authority is given to the Sheriffe and other the Kings Justices for the better suppressing of Riots and Routs c. to raise Posse Comitatus the power of the County and the same liberty doth the Common law give in many other cases Neverthelesse may not the Sheriffe upon such authority command the person of any Nobleman to attend that service but if the Sheriffe upon a Supplicavit against any Nobleman in that case doe returne that he is so puissant that he cannot or dare not arrest him the Sheriffe shall be grievously amerced for such his returne For by the writ under the Great Seale of the King commandement is to all Archbishops Bishops Dukes Earles Vicounts and Barons and to all liege men of the County to be ayding unto him in that which to his office appertaineth And therefore by intendment no person whatsoever can resist the execution of the said writ of the King Also the Sheriffe may by his discretion levie three hundred men if need be to aid him in that behalfe Cromptons Justice 134.3 H. 7.1 Cookes 5. part 71. b. The words of the great Charter of the Forrest in the eleventh Chapter are as followeth Every Archbishop Bishop Earle or Baron comming to us at our commandement and passing by our Forrest it shaâ—â— be lawfull for hini to take one beast or two by the view of the Forrester if he be present or else he shall cause one to blow a Horne for him that he seeme not to steale our Deere This statute doth speake but of Archbishops Bishops Earles and Barons yet if a Duke Marquesse or Viscount which be Lords of Parliament be comming towards the King by his commandement they also shall have the benefit of this article So if the King send to any of the Lords aforesaid to come to his Parliament or send to him by writ of Subpoena to appeare in the Chancery before his Councell or send for him by his missive or by Messenger or Serjeant at Armes in all these cases he shall have the benefit of this statute because they came at the Kings commandement The same Law is if a Scire facias goe out of the Chancery or Kings Bench to a Lord of the Parliament but if such processe goe forth for a Lord to appeare before the Justices of the Common Pleas or before the Barons of the Exchequer and he commeth upon that he shall not have the benefit of the statute for he doth not come unto the King and the words be veniens ad nos and all the processe which are made out of the Chancery and Kings Bench are quòd sit coram nobis and so are the Processe out of the Star-chamber Also Lords which come to visite the new King after the death of his Father though not sent for shall have the priviledge and so note this statute is a warrant dormant to such Lords which is also to be understood as well of their returning homewards as of their comming towards the King Manwood Forrest Lawes cap. 181. Cromp. Courts 167. b. Note this statute doth give licence to kill or hunt in the Kings Parks though the letter of the statute be transientes per forrestam nostram Passing by our Forrest Cromptons Court 168. Note in certain cases the Law doth give priviledge to the Sons or Brethren of Noblemen though themselves be not of that degree Vide 21. H. 8 cap. 13.7 E. 6. cap. 5. CERTAINE CASES WHEREIN A LORD of the Parliament hath no PRIVILEDGE THe King may by his absolute power commit a Nobleman to prison durante beneplacito suo from whence he cannot be discharged by bail or mainprise or by the common writ de homine replegiando And by the same power it is if a Noble person bee committed to prison by the Kings Councell for they are incorporate to his Highnesse and do command as with the Kings mouth And the same law is if a Noble be committed to prison by the absolute commandement of the Kings Judges sitting in their places of Judicature Stamf. lib. 2. cap. 18. fol. 72.1 as you have before when the Prince himself was committed by the chiefe Justice sitting in the Kings Bench and hee was not baileable Also if a Capias and an Exigent may bee awarded by the Iustices out of their ordinary Jurisdiction against such persons upon an Indirement for Felony or Treason as common experience she weth The statutes of Praemunire are 27. E. 3. cap. 1.16 R. 2. cap. 5. upon which statutes an Abbot which was a Lord of the Parliament was impleaded and he did pray priviledge to appeate by an Atrurney and by the rule of the Court he could not because the statute is generall and against it but by speciall writ out of the Chancery he might And so in case where he doth pray to be received For if a Lord of the Parliament holding lands of another in Fee simple doth forbeare or with-hold to doe and pay his services due to his Land lord and that by the space of two yeares whereupon he doth bring a writ of Cessavit which is his remedy given him by the Law thereby to recover the inheritance of the land but the said Lord
for the saving of his tenancy being minded to pay all the arrerages before judgment given against him as by the Law hee ought to doe in this case hee must come in proper person and not by Atturney 15. H. 7.9 b. If a noble man in contempt of any processe which hath beene awarded from out of any the Kings Courts doth make rescous and wilfully doth refuse to obey the said writ and the same his offence doth appeare of record to the Court by the Sheriffs returne there may be and shall be awarded against him a Capias 1 H. 5. Case ult 27 H. 8.22 Cooks 6. part 54. If any Lord doe depart this Realm as Ambassadour or otherwise by the Kings lincence or without licence and doe not returne at the Kings Commandement or upon the Kings writ under his privy Signet the King may seize his lands goods and chattells Dyer 108. b. 17. the Dutchesse of Suffolks case If a Lord arrested upon a Supplicavit for the peace doe wilfully refuse to obey the arrest and make rescous upon his returne shall issue an attachment against the said Lord for his contempt to take his body and this is the way to obtaine peace against any Lord of the Parliament whereas the party could not have an attachment against him if the Subpoena had beene duly served and peaceably accepted although the said Lord had not appeared thereunto Cromptons Justice of Peace 134. If a Lord of the Parliament doth with force and arms detaine a man in prison in his House or elsewhere the remedy is in such cases by himselfe or his friends abroad at liberty to have a writ called de homine replegiando to deliver him but if the Lord to prevent the execution thereof and of malice doe keep or convey away this man so wrongfully imprisoned so privily as that the Sheriffe cannot execute his said writ then will the Court award a Witheram whereby the Sheriffe shall attach and arrest the body of the said Lord and imprison him untill he doe deliver his said prisoner 11 H. 4.15 All Lords are compellable to take the Oath mentioned in the Statute of 3 Jac. 4. vide the Statute 7 Jac. cap. 6. who have authority to minister the said Oath to them Bracton lib. 5. fol. 337.6 H. 3. 351. writing of essoines delivereth this learning that if a Baron that holdeth by Baron tenure have his absence excused by essoine he which casteth such essoine or excuse ought to finde surety that the said essoine is true but in case of common persons it shall rest upon the credit and integrity of the Essoince and so is the use at this day The Statute of magna charta cap. 1 a. is quod liber homo non amercietur pro parvo delicto nisi secundum modum illius delicti pro magno delicto secundum magnitudinem delicti nulla praedictarum miscricordiarum ponatur nisi per Sacramentum proborum legalium hominum de vicinate and accordingly is the Law thereunto at this day But the subsequent words in the said Statute viz. Comites Barones non amercientur nisi per pares suos non nisi secundum modum delicti are not in use for whether the offence be great or small for which they are to be amerced their amercement must be certaine viz. of a Duke ten pound and of any other of the Nobility Also whereas the amercement should be offered per pares the use is to offer them by the Barons of the Exchequer Cooks 8. Rep. 40. Bracton lib. 3. Tractat. 2. cap. 1. fol. 116. b. When a Peere of the Realme is arraigned in Appeale of Fellony he shall not have that priviledge to bee tried by his Peere as he should in case of Inditement but must undergoe the ordinary triall of twelve men Stamford Pleas of the Crowne lib. 3. cap. 1. Brook triall 142. Ferdinando Poulton 188. b. Read the book of Entries title appeale Sect. 7. also in Case of an Inditement the Defendant though a Peere of the Realme may not challenge any of his Triers either peremptorily or upon causes which in like cases permitted to all other common persons The Judgement to be given against any Lord of the Parliament in case of Felony or Treason shall be no other than according to the usuall judgement given against common persons and although the execution be not pursuant but with the losse only of their heads yet that is by the speciall grace of the King and not ex debito as by the examples of Thomas Lord Dacre 33. H. 8. and of the Lord Sturton 2 Mariae may appeare Brook tit Jury 48. By attainder of Treason or Fellony is corruption of blood so that their Children may not be heires unto them nor unto any of their Ancestors And if hee were a noble man before he is by the attainder made ignoble and not only himselfe but also his Children having no regard unto the Nobility which they had by their birth and this corruption is so strong and high that it cannot be saved by the Kings pardon or otherwise than by authority of Parliament Stamford Pleas del Coronae lib. 3. cap. 34. But here it is to bee observed that Nobility is not a thing substantiall but meere accidentall for that may be present or absent without corruption of the Subject whereof it dependeth for experience sheweth that the passage of honourable titles are restrained by exorbitant crimes when as nature in the meane while cannot bee thrust away with a fork Wherefore although the Lawyers doe terme and call that extinguishment of Nobility which hapneth by such hainous offences committed as corruption of blood neverthelesse they use not this manner of phrase and speech as though Nobility were naturally and essentially in the humour of blood more than any other hereditary faculty but because the right of inheritance which is by degree of communication of blood directed is by that meanes determined and ended and also in regard of the hatred and detestation of the crime it is called corruption of blood note in Dyer 16. Eliz. 332. the Lord Charles Howards case If one be made a Knight in a forraigne Kingdome by a forraigne Knight yet he is to be so stiled in this Realme in all legall proceedings but if a man be created by the Emperour an Earle of the Empire or into any other title of dignity he shall not beare this title here in England Cooks 7. part 16.20 E. 46. If there be a Father and Sonne and the Father is seised of lands holden in Capite or otherwise by knightly service the King doth create the same Duke and Earle or of any other degree of Nobility and afterwards the Father dieth his Sonne being within the age of one and twenty yeares he shall be in ward but if the King had made him Knight in the life of his Father he should not have beene in ward after the death of his Father neither for the lands descended
or for his marriage though he be within age Cooks 6. part 74. in Druries case Nobility and Lords in reputation onely THere are other Lords in reputation and appellation who neverthelesse are not de jure neither can they enjoy the priviledge of those of the Nobility that are Lords of the Parliament The sonne and heire of a Duke during his fathers life is onely by curtesie of speech and honour called an Earle and the eldest sonne of an Earle a Baron but not so in legall proceedings or in the Kings Courts of Iustice Brook Treason 2. But the King may at his pleasure create them in the life of their Ancestors into any degree of Lords of the Parliament Cook 8. part 16. b. A Duke or other of the Nobilitie of a forraigne Nation doth come into this Realme by the Kings safe conduct in which the Kings said Letters of Conduct he is named Duke according to his Creation yet that appellation maketh him not a Duke c. to sue or to be sued by that name within England but is onely so reputed But if the King of Denmark or other Soveraigne King come into England under safe conduct he during his aboad in England ought to bee stiled by the name of King though hee have not merum imperium out of his owne Kingdome yet he shall retaine honoris titulos Cook 7. part 15. b. sequentia All the younger sonnes of the Kings of England are of the Nobility of England and Earles by their birth without any other Creation and onely Lords in reputation And if an English man be created Earle of the Empire or of other title of honour by the Emperour he shall not beare the title in England and therefore is an Earle onely in reputation A Lord of Ireland and Scotland though he be a Postnatus is not a Lord in England in legall Courts of Iustice though he be commonly called and reputed a Lord. NOBLE VVOMEN ALthough Noble women may not sit in Parliament in respect of their sexe yet they are in the law Peeres of the Realm and all or most of the Prerogatives before mentioned which to Noblemen are belonging doe also appertaine to them Cook 8. part 53. But the opinion of some men hath been that a Countesse Baronesse or other woman of great estate cannot maintaine an action upon the statute de scandalis Magnatum because the statute of 2. R. 2. cap. 5. speaketh but of Prelates Dukes Earles Barons or other Nobles and other great men of the Realme and of the Chancellour Treasurer Clarke of the Privie Seale Steward of the Kings house Iustice of the one Bench or of the other great officers of the Realm by which words they conceive the meaning of the makers of that statute was onely to provide in that case for Lords and not for women of honour Crompton Justice of Peace 45. b. Also if any of the Kings servants within his Check-roll doe conspire the death of any Noble man it is not felony within the compasse of the statute 3. H. 7. cap. 13. Honourable women are of three sorts By creation by Descent or by Marriage King Henry the eighth created Anne Bullen Marchionesse of Pembrook and so may the King create any woman into any title of honour as to his Highnesse shall seem good As the King by by his Letters Patents openly read in the Parliament did create _____ Widow the sole daughter of _____ late Baron of Abergavenny Baronesse De le Spencer Cambden 63.6 Noble women by descent are those to whom either the lands holden by such dignity do descend as heir and they are said to be honourable by tenure or those whose Ancestors to whom they are heires were seised of an estate descendable unto them in their titles of Dukedomes Earldomes or Baronies or those whose Ancestors were summoned to the Kings Parliament for thereby also an inheritance doth accrue to their posterities Noble women also are those who do take to their husbands any Lord or Peere of the Realme although they of themselves were not of any degree of Nobility Fortescue de laudibus legum Anglia fol. 100. Question and doubt hath been made whether if a man be summoned to the Parliament and afterwards die without issue male the dignity and title of honour may descend to the heire female and many arguments have beene made pro contra in that which at this time I doe purposely omit because I have before discoursed thereof in the title of Barons in this Treatise Concerning the title of honour descendable to the heire female by reason of a tenure in her Ancestor there need no more doubt to be made than of offices of honour the which doe much import the publike wealth and being of estate of inheritance doe descend to the heire female if there be no heire male as the office of high-Constableship of England challenged in the time of H. 8. by the Duke of Buckingham and judged by the advice and resolution of the Judges as by a note of that case extant whereof my Lord Dyer in his Reports hath a memoriall is most evident Dyer 283. b. Kellaway 6. H. 8.170 b. which descended to the daughters of Humphrey de Bohun Earle of Hereford and Essex as afore is declared the office of a Lord Steward descended to Blanch daughter of Henry Earle of Lancaster in whose right John of Gaunt her husband enjoyed the same The like may be said of the office of Earle Marshall which descended by an heire female unto the house of Norfolk all which offices are as unfit to be exercised by a woman as it is unfit for a woman to be summoned to the Parliament as Baronesse by writ as before is written And when the title of honour doth descend to a woman if question in Law doe arise betweene the noble woman and any other person whether she be of that degree of noblenesse or no the issue shall be tried by the Record thereof and by the Kings writ it shall be certified and not by a Jury of twelve men even as it should be in case her Ancestors had beene party Cooks 6. part 53. 7. part 15. Although the Lawes of this Realme regularly doe make all the daughters where there are no sonnes equally to inherit Lands and Tenements and to be but one heire to their Ancestor yet it is not so in the descent of dignities and titles of honour for inheritances concerning matters of honour being things in their nature entire paticipating of superiority and eminency are not partable amongst many and therefore must of necessity descend unto one and that is to the eldest daughter sister aunt or cosin female inheritable where there is no heires males that may lawfully challenge the same and so in this point is the civill Law Neverthelesse there was a Judgment in the time of H. 3. touching the descent of the Earldome of Chester after the death of the Earle who dyed without issue his sisters being his
other parts holden by the same tenure of the King by posteritie the King granteth his Seigniory to the Queene and afterwards the Tenant dyeth the sonne within age in this case the King shall have the Wardship of the Body and have the Prerogative even as the King himselfe should have had 3. E. 3 4. vide etiam Stamford Prerog Reg. cap. 2. The Queene wife unto the King or widdow shall not be amerced if she be non-suited in any Action or otherwise in which cases any other subject of what degree soever shall be amerced for in this case the Queen shall participate the Kings Prerogative Cookes 6. Report 62. But the Queene shall not in all cases have the same Prerogatives that the King shall have in the same case as for Example Petition is all the remedy the Subject hath when the King seizeth his Lands or taketh away his Goods from him having no title by order of Law so to doe contrary to the opinion of some ancient Bookes as you may see Stamfords Prerog cap. 19. But in such suit shall be made to the Queene but actions against other Leiges of the King according as the case shall require for by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason that the Queene may be Plaintiffe and Demandant in actions without the King by the same reason he shall be Defendant or Tenant without pertaking such Prerogatives as doe appertaine to the King 11. H. 4.64 B. Stamford Prerog cap. 22. â—n fine Against the King by his Prerogative Nullum temâ—us occurit Regi but time shall runne against the Queen H. 18. E. 3.2 a. and aplenarty by sixe mouthes is a good plea in a Quare Imp. brought by Philippa Regina Angliae ibid. fol. 1. et 13. b. Stamford Prerog cap. 18. trope finem In 21. E. 3.13 b. It is thus to be read note that a protection was sued forth against the Queen in a Writ which she brought and it was allowed though shee be a person exempt Neverthelesse by this short case following may bee observed that the Justices doe not easily suffer any proceedings in Law against the Queene wife or widdow but will hold with their Inmities as much as they may by Law A Writ of dower was brought against Isabel Queene of England mother of the King that then was and the Court said to the Plaintiffe the Queene is a person of dignitie and excellencie and we are of opinion that she shall not answer to the Writ but it behooveth you to sue to her by Petition and thereupon the Demandant dixit grat and shee prayed the Court to grant a continuance of her Action untill another day so that in the meane time she might sue to speake with the Queen but the Court would not agree to make a Continuance but said that upon her request they might give dâ—â— precepart and so it was done for the Queenes Councel would not agree to a continuance for thereby thâ— Queene should bee accepted as answerable 10. 〈◊〉 3.379 The wife of the Kings eldest sonne also hath somâ— Prerogative in regard of the excellencie of her Husband which the wives of other Noblemen have not foâ— by the Statute of 25. E. 3. it is high Treason to violate the wife of the Kings eldest sonne and heire Dutchesses also and Countesses have speciall Honour appertaining to their Estates as kneeling and tasting and such like which things as appertaining more properly to the Heraulds then to this legall discourse I leave unto them By the Statute made 7. Iac. cap. 6. intituled And Act for the Administring the oath of Allegiance and Reformation of Women recusants if any person or persons of or above the age of 18. yeeres and degrees aforesaid must and hereafter shal stand and be presented indicted or convicted for not comming to Church or not receiving the holy Communion or Sacraments of the Lords Supper according to the Lawes and Statutes of this Realme before the Ordinary or other having lawful power to take such presentment or indictment then 3. of the Privie Counsell of the King his Highnesse his Heires or Successours and no other whereof the Lord Treasurer the Lord Chancellour Lord Privie Seale or principall Secretary to be one upon knowledge shall require such person or persons to take the said Oath but it shall be lawfull to and for every Bishop within his Diocesse to require any Baron or Barons of the age of 18. or above to take the said Oath Also in cases of indictment of Felony or Treason a Baronesse shall have the same tryall by Peeres as doth appeare by the Statute of 20. H. 6. cap. 9. which any other Noble woman of higher degree shall have which priviledge is denyed to all of a lower degree then a Baronesse Ladies in Reputation The wife and widdow and widdow of the sonne and heire of a Duke or Earle in the life of his Father is a Lady by courtesie of speech and honour and taketh place according as in ancient time hath been permitted by the Soveraign Prince and allowance of the Herauld but in legall proceedings they are not to have priviledges nor to be named according to such sirnames of dignity but the King may at his pleasure create such men in the life time of their Ancestors into degrees of Lords of his Parliament and then the Law is otherwise If a Noblewoman of Spaine come into the Realme by safe conduct or otherwise by the King shee be stiled by such her forraign stile of dignity yet in the Kings Courts of Justice she shall not be named by such title though by common speech she be a Lady in reputation An English woman borne doth take to her Husband a Spanish or French Duke though he be made a Denizen yet he shall not beare his title of dignity in legall proceedings A German woman is married to the Earl of Northam or to other the Nobility of England unlesse she be made a Denizen she cannot lawfully claim the priviledges or title of her husband no more then she can to have dower or any jointure from him An English Woman doth take to Husband the Earle of Kildare in Ireland or if a Lord of Scotland though he be a post natus take an English woman to his wife their wives shall not participate their husbands Titles of Dignitie But if the King do create one of his Subjects of Scotland naturalized here by Act of Parliament to be Viscount Rochester within England and after by his Writ of Summons under his Great Seale doe call him to his uper House of his Parliaments and assigne him a place there in his great Councell amongst the Lords and Peeres of the Realme hee is now also a Peere of this Realme and shall be partaker with them in all Priviledges and by consequence his wife widdow and children after him 32. E. 3.35 in le case de Gilbert Humfrevill But if an Englishman by the
where the originall was made and at last it was resolved by all the Court that the Record should be amended by the Cursitor and made according to the Note or Title delivered unto him by the Plaintiffes Attorney Cook 8. part fol. 15. b. It appeareth in our Book of Law that the highest and lowest Dignity are uniuersall For as if a King of a Forreign Nation come into England by leave of the King of this Realm as it ought to be in this case he shall â—â—e and be sued in the name of a King 11. Ed. 3. Test Breccon 473. So shall he sue or be sued by the Name of a Knight whersoever he received that degree of Dignity â—o Ed. 4.6 H. 6.14 but otherwise it is as â—f a Duke Marquesse Earl or other Title of Honour given by any Forreign King yea though the King by Letters Pattents of â—ife conduct do name him Duke or by any other his forâ—eign Title of Dignity For experience sheweth that Kings joyned in league together by a certain mutuall â—nd as it were a Naturall power of Monarchs according â—o the Law of Nations have denized one anothers subâ—ects and Ambassadors graced with this title of Honour Therefore though a Knight receive his Dignitie of Forraigne Prince he is so to be stiled in all Legall proceedings within England Vide Cooke 7. part fol. 16. b. And Kings were wont to send their sonnes to theâ—â— Neighbour Princes to receive Knighthood at theiâ— hands Vide Selden fol. 331. 308. thinking that iâ— was more honourable to take Armes of some other leâ—â— affection might seeme to prevent judgement when thâ— father gave them that honour Thus was our King H. 2. sent unto David King oâ— Scots and Malcombe also king there sent unto our H 2. and our king to the king of Castile to take of them Military or Civill Armes for the tearmes and phraseâ— they used in that age for the making of a knight Vidâ— Camden 174.8 vide Selden fol. 315. And knights in all forraigne Countries have eveâ— place and precedencie according as they are ancient knights which priviledge is deemed to Noblemen for be they never so ancient in forraigce Countries they shall goe before as Puesneys The degree of knighthood is not onely a Dignitie and honour to the party for so it is termed in Brooke title Additions fol. 44. but honourable for the kingdome and therefore it hath been an ancient Prerogative of the kings of this Realm at their pleasure to compell men of worth to take upon them this degree upon the payment of a Fine as appeareth in Ann. 7. H. 6.15 Pitzh Abridg. tit Im. 12. and by the Statute a. 1. Ed. 2. de militibus But we see by experience in these daies that none are compelled thereunto and that is the reason wherefore if the Plaintiffe be made knight hanging the Writ it shall abate because he hath changed his name and that by his owne act Vide Cooke 7. part f. 27. b. part 10. b. 1 Ed. 6. cap. 7. contrary And for that cause also by the common Law not only the king but every Lord of a Manor ought to have of every of his tenants a reasonable fine to make his eldest son knight Vide Bracton fol. 36. b. and all lands are subject to these aides except onely ancient Demeasnes and grand and petty serjeantly tenures as the Law hath been anciently delivered Vide Fiszh Nat. bre f. 83. a. and Selden f. 13. where it is also said one that wrote a little after the statute of West the first allowes as a good barre to the avowry for the tenant to plead that the father himself is no knight so that one not knighted cannot claime the aide of his own Tenants Briton de Prises de Avers And it was not at the liberty of the Lord to make more or lesse of his Tenants by the common Law in this case but by the statute at Westminster 1. cap. 35. it is put into certainty viz. forasmuch as before this time reasonable and to make one son knight or to marry his daughter was never put into certainty nor how much should be taken at that time whereby some levyed unreasonable aide and more often then seemed necessary whereby the people were sore grieved And it is therefore provided that from henceforth a whole knights see be taken but 20. s. and of more more and of lesse lesse after that rate and that none shall levie such aide to make his son knight untill the sonne be 15. yeares of age nor to marry his daughter untill she be of the age of 7. yeares and of that there shall be mention made in the kings Writs formed on the same if any one will demand it and if it happen that the Father after he had leavied any such aid of his Tenants did before he hath marryed his Daughter the Executors of thâ— Father shall be bound to the daughter for so much as thâ— Father received for the Aid And if the Fathers goods bâ— not sufficient his heir shall be charged therwith unto thâ— daughter and this Heir is so incident that although thâ— Lord do confirm unto the Tenant to hold by fealty anâ— certain Rent and release unto him all other services anâ— demands yet he shall have the aid to make his eldeâ—â— Son Knight Anno 40. E. 3. f. 22. Finches book 24. but the King was not bound by the statute beforementioned because the King was not named in that statute and therforâ— by the statute 25. E. 3. cap. 11. The Kings aids were brought to a like value Selden fol. 3.30 The intention of the Law is that an heir within the age of 21. years is not able to do Knight-service till his full age of 21. years Littleton lib. 2. cap 4. f. 22. But such a presumption of Law doth give place to 〈◊〉 judgment and proof to the contrary as Bracton saith Saâ—â—litur presumptioni donec probetur in contrarium And therfore the King who is the Sovereign and Supream Judge of Chivalty hath dubbed him Knight he by this hath judged him able to do him Knight-service and all men concluded not to say to the contrary therfore such an heir being made Knight either in the life of his Father or afterwards during his minority shall be out of ward and custody both for Lands and for his body or marriage by the ancient common Law by reason also that the Honour of Knight-hood is so great that it is not to be holden under by any yet if the King do create any such an Heir within Age a Duke or Marquesse Earl Count Viscount or Baron by this he shall be out of ward â—nd custody both for his Land and for his body vide â—ook 6 part 74 a. And therfore it is provided by the statute of Magâ—â—â—harta Cap. 3. Ita tamen quod si ipse dum infra aetatem fueâ—â—t fiat miles nihil ominus terra remaneat in custodia doâ—inorum suorum So that although
it is no errour Brooke Cron 83. addition 58. So if any deed or obligation be made unto him by the name of yeoman If a Capius goe against A. B. yeoman and if the Sheriffâ— take A. B. Gentleman an action of false imprisonment lyeth against the Sheriffe vide An. 21. E. 4. fol. 71. b. But if a yeoman be indicted and A.B. Gentleman being the same man bee produced it is good Kelway 58. b. Gentlewomen have the same additions vide Dyer 88. IF one be a Gentleman by office and looseth his office then he doth also lose his gentility 28. H. 6.2 Estopel 47. By the Statute of 5. Eliz. cap 4. intituled an act touching divers orders for Artificers Labourers Servants of husbandry and apprentices amongst other things It is enacted that a Gentleman borne c. shall not be compelled to serve in husbandry If any Faulcon be lost and is found it shall be brought to the Sheriffe who must make Proclamation and if the owner come not within foure moneths then if the Finder bee a simple man the Sheriffe may keepe the Hawke making agreement with him that tooke it but if hee be a Gentleman and of estate to have and keepe a Faulcon then the Sheriffe ought to deliver unto him the Faulcon taking of him reasonable costs for the time that hee had him in custody An. 34. E. 3. cap. 22. and anno 37. E. 3. cap. 19. A Commission is made to keepe chrildren into Cathedrall Churches where children be instructed to sing for the furnishing of the Kings Chappell These generall words by construction of Law have a reasonable intendment viz. That such children who be brought up and taught to sing to seeke and sustaine their living by it Those may bee taken for the Kings service and it shall be a good preferment unto them to serve the King in his Chappell but the sonnes of Gentlemen or any other that are taught to sing for their ornament delight or recreation and not thereby to seeke their living may not bee taken against their will or the consent of their Parents and friends and so it was resolved by the two chiefe Iustices and all the Court of Star-chamber anno 43. Eliz. in the case of one Evans who had by colour of such Letters Patents taken the sonne of one Clifton a Gentleman of quality in Norfolke who was taught to sing for his recreation which Evans was for the same offence grievously punished Cook 8. Reports fol. 46. And to the end it may withall appeare what degrees of Nobility and Gentry there were in this Realme before the comming in of the Normans and by what merits men might ascend and bee promoted to the same I will shew you the copie of an English or Saxon antiquity which you may reade in Lamberts Perambulation of Kent fol. 3 64. and Englished thus viz. It was sometimes in the English Lawes that the people and lawes were in reputation then were the wisest of the people worship-worthy in his degree Earle and Chorle Theyne and under Theyne and if a Chorle so thrived that had fully five hides of land of his owne a Church and a Kitchin a Bel-house and a Gate a seat a severall office in the Kings Hall then was hee from thenceforth the Theines right worthy and if a Theyne so thrived that hee served the King on his message on his journey-ward in his houshold if he then had a Theyne which him followed who to the Kings experience had five hides and in the Kings Pallace his Lord had served and thrice with his errand had gone to the King hee might afterwards with his foreoath his Lords part play at need and if a Theyne that hee became an Earle then was hee from henceforth the Theynes right worthy and if a Scholler so thrived through learning that he had degree and served Christ he was thenceforth of dignity and peace so much worthy as thereunto belonged unlesse hee forfeited so that he the use of his degree ne might Mils 73. Nobility Politicall and Civill It is observeable that the Saxons out of all these trades of life which be conversant in gaine admitted to the state of Gentry such onely as increased by honest husbandry or plentifull merchandize of the first of which Cicero affirmeth that there is nothing meeter for a Free borne man and of the other that is prayse-worthy also if at the length being satisfied with gaine as it hath often come from the sea to the haven so it changeth from the havens into lands and possessions and therefore whereas Gervasius Tilburiensis in his observations of the Exchequer accounting it an abasing for a Gentleman to occupy Publicum mercimonium common buying and selling it ought to bee referred to the other two parts of merchandize that is to negotiation which is retayling or keeping of an open shop and to invention which is exercise mercery or some call it to play the Chapman and not to navigation which as you see is the onely laudable part of all buying and selling And againe whereas by the Statute of Magna charta cap 6. and Merton cap. 7. It was a discouragement for a ward in Chivalry which in old time was as much as to say a Gentleman to bee married to the Daughter of a Burgesse I thinke it ought to bee restrained to such onely as professed handy crafts or those baser arts of buying and selling to get their living by But this matter I leave to the Heraulds And in this place it may bee remembred that King Hen. 8. thought it no disparegement unto him when hee tooke Anne Daughter of Thomas Bullen sometimes Major of London to his wife The Statute of Westminster 2. cap. I. which was made Anno 13. E. 1. was procured especially and purposely at the desire of Gentlemen for the preservation of their lands and hereditaments together with their surnames and faculties and therefore one called this Statute Gentiliteum municipale and the Lawyers call it Ius taliatum taliabile The children onely of Gentlemen were wont to bee admitted into the Innes of Court and thereby it came to passe that there was scant any man found within the Realme skilfull and cunning in the Lawes except hee were a Gentleman borne and came of a good house For they more then any kind of men have a speciall care to their Nobility and to the preservation of their honour and same for in those Innes of Court are vertue studied and vices exiled for that for the endowment of vertue and abandoning of vice Knights and Barons with other States and Noblemen of the Realme place their Children in these Innes though they desire not to have them learned in the Lawes nor to live by the practice thereof but onely upon their Fathers allowance vide Fortescue de laudibus Anglorum cap. 49. But the Statute of An. 3. Iac. cap. 4. amongst other things it is enacted that if any Gentleman or Person of high degree shall hereafter goe or passe
all legall proceedings he ought to be stiled by that his dignity In the first yeer of King Edward 3. fol. 151. a Writ of Formedon was brought against Richard son to Allin late Earl of Arundel and did demand the Mannor of C. with the Appurtenants c. The Tenant hy his learned Councell did plead that he is Earl of Arundel and was Earl the same day of the Writ purchased and demanded Judgement of the Writ because he was not named in the same according to his dignity and title of Honour to which the Demandant saith That at day and time when he did purchase the Writ the Tenant wat not known nor taken to be an Earl and it is hard Justice if the Writ should abate without any default in the Plantiffe Neverthelesse Because the truth of the matter so that the Earldom did descend unto him before the Plaintiff commenced his Action and purchased his Writ against him therefore by judgement his Writ was abated although the Tenant was not at that time known or holden to be an Earl But if a Baron be Plantiff or Defendant c. It is not of necessity to name Baron 8. H. 6.10 Yet see a distinction of Barons concerning this matter heer following Fol. 27. b. And so Reynald Gray was reputed an Esquire after the Earldom discended to him till at the last it was published and declaâ—ed by the Queen and by the Heralds that he was Earl of Kent in right and by discent although he was reputed or named Earl before that time Dyer 318. lib. 10. Addition of Name BUt an Addition may be used or omitted at pleasure except in some speciall cases where processes of Utlary lyeth as hereafter followeth the title of Supremum caput ecclesiae Anglicanae which was by Act of Parliament in the 26. yeer of H. 8. c. 1. an 35. H. 8. cap. 3. annexed to the Emperiall Crown of this Realm is no parcell of the Kings by stile but only an addition of the Kings stile so that it may be omitted in the Summons of the Parliament as it was done in the first yeer of Queen Mary or used as it was by the late Queen Elizabeth and by the King that now is at his pleasure and so it is adjudged as you may read in Dyer In the first yeer of Queen Mary Fol. 98. And so is the Law declared by authority of Parliament 1. 2. Phil. Mary cap. 8.256 See in Fox his Book of Martyrs Fol. 217. An argument made by Hiles contrary But between the Majesticall stile of the King and the title of honour appertaining to a Subject this cifference is between grants or purchases made by or to the King and grants or purchases made by or to a Nobleman c. For in that first Case it is necessary that the Name of Kings be expressed otherwise they are voide and of none effect But if a Duke Earl or other of the Nobility do purchase or grant by the Name of Baptism and surname omitting other title of honour it is not void but good enough for it is a rule in the Law That every mans grant shall be construed most strongly against the grantor and must for the benefit of him to whom the grant is made and so ut Res magis valeat quam pereat that the matter may rather be strengthened then void for there is a great diversity in Law between Writs and Grants for if Writs be not formally made they shall be abated which is no greater prejudice then the purchasing another Writ But if a Grant should so Ligerfie be made void then the party hath no remedy to have a new for that cause the Law doth not favour advantages by occasions of Misnomer more then the strict rule of the Law doth require Cooks 6. part 64. b. Et sequentia false Latine shall abate a Writ but not a Grant Ibidem And if an Earl be Plantiff or Demandant and hanging the Writ shall not abate but neverthelesse he shall proceed and count by the name of an Earl according to such title of honour as he did bâ—ar at the time of his action commenced Pasch 13. Edw. 3. brief 259. Pasch 19. Edw. 3. Procedendo 2.32 Hen. 8.39 7. Hen. 6.14 b. Et sequentia 25. Ed. 3.39 22. Rich. 2. brief 9.37 Pasch 24. Edw. 3.14 But if the Plantiff in a quere impedit be made Knight hanging the Writ the Writ shall abate Cooks 7. part 27. b. There is a Statute made in the first yeer of H. 5. c. 5. where in is contained as following Item It is ordained and established that in every Originall Writ of accounts personall Appeals and Indictments in which the Exigent shall be awarded in the Name of the Defendants In such Writs originall Appeals and Indictments addition shall be made of their estate and degree or mistery and the Towns Hamlets or places and the Counties where they were or be conversant and if by Processe upon the said Originall Writs Appeals or Indictments in the which the additions be omitted any Outlaries be pronounced the said Writs and Indictments shall be abated by the execution of the party wherein the said additions are omitted provided alwayes that though the said Writs of additions personall be not according to the Records and deeds by the surplussage of the additions aforesaid That for this cause they are not abated and that the Clerks of the Chancery under whose names such Writs shall go forth written shall not leave out or make omission of the said Additions as is aforesaid upon point to be punished and to make a fine to the King by the discretion of the Chancellor And this Ordinance shall begin to hold place at the suite of the party from the least of Saint Michael next ensuing forwards Although the addition of estate degree and mystery to be added unto names be written in the Statute first and before the additions of place and Counties yet it hath been used alwayes after the making of the said Statute to place the additions of estate degree and mistery after the places and County in every Writ Appeals and Indictments against common persons But the use is otherwise in Appeals and Indictments of Treason or Fellony against Dukes Marquesses and Earls for their names of degrees are in such Cases put before the Additions of places and Counties as Charles Earl of Westmerland late of Bramspeth in the County of Durism Thelowell lib. 6. cap. 14. Names of dignity as Dukes Earls Barons Knights Serjant at Law c. Be contained within this word degree for gradus continet statum in se non è contrario degree doth contain state in it self and not of the contrary for the state of a man as Gentleman Esquire Yeoman Widdow single-Woman c. And the art or craft of a man is his mystery by Brook chief Justice in the Common-Pleas in abridgement of the Case of 14. Hen. 6. fol. 15. titul nosve dignitat 33. See in