King of England as also to our selfe by our Letters Patents doe grant and give licence for us and our heires so much as in us lyeth to the said Edmond to dispose and give all his Manours Lands Tenements and Knights fees with their appurtenances and Advowsons of Churches Abbies and Priories and Hospitalls which he holdeth of us in chiefe to whom he pleaseth To have and to hold to him and his heires for us and our heires by the service thereof for ever By which Grant the said Edmond gave all his Lands and Tenements to one William sonne of John Deyncourt and to his heires of his body comming And the said Edmond dyed the last yeere of Edward the second and the said William in the time of Edward the third was summoned among other Barons to the Parliament by vertue of the same gift untill his death which was Anno 3. E. 3. It appeareth by divers offices in the time of King Edward the third that John Handlow in the right of Maud his wife was seized of the Mannour of Holgate Acton Burnell c. for terme of her life remainder to Nicolas Handlow alias Burnell sonne to the said Maud and John by a fine in the Court levied and that John Lovell was next heire of the said Maud and her first-borne sonne by her first husband and afterwards the said Nicolas was summoned among other Lords to the Parliament by reason of the fine aforesaid and not the said John Lovel who was next heire Edward Burnell Baron of Holgate Philip Burnell Baron of Holgate Maud Burnell heire to her brother John Lovell the first husband John Lord Lovell Iohn Lord Lovell John Handlow second husband Nicolas Handlow Baron of Holgate Hugh Handlow alias Burnell Baron of Holgate Thomas de Beauchamp the elder Earle of Warwick by a fine levied 18. E. 3. entailed the Mannour and Castle of Warwicke with divers other possessions to himselfe for terme of his life the remainder whereof to Guy his eldest sonne and to the heires males of his body issuing for want of such heires the remainder to come to Thomes Beauchamp brother to the foresaid Guy and to his heires males of his body issuing c. And afterwards the said Gâ—y died without heires male of his body leaving two daughters and heires living afterward the said Earle dyed and the said Thomas the sonne entred into the Castle and Mannour aforesaid with other the premisses and was Earle of Warwick by reason of the entaile aforesaid notwithstanding that Katharine daughter of Guy and next heire to the said Thomas the elder was living 30. yeers after his death Thomas Beauchampe Earl of Warwick Guy de Beauchampe first son obiit ante patrem 30. E. 3 Katharine lived in 21. R. 2 Elizabeth Tho. de Beauchampe Earle of Warwicke by reason of the entail obiit anno 1. H. 4 Rich. Beauchamp Earl of Warwick obiit 17. H. 6 William Beauchamp de Beauchamp L. of Aberganey obiit 12. H. 4 Richard de Beauchamp Earl of Warwicke obiit 9. H. 5 Richard Earle of Arundell by a fine 21. E. 3. entailed the Castle Towne and Mannor of Arundell with other Lands to him and to his heires Males begotten of the body of Ellenor his wife By vertue of which entaile John Lord Matrovers Earle of Arundell after the decease of Thomas then Earle which died without heire Male although the sisters of the said Thomas possessed divers Lands and honors of the which the said Thomas died seised in Fee simple was Earle of Arundell Richard Earle of Arundell Richard Earle of Arundell obiit anno 21. R. 2 Thomas Earle of Arundell obiit anno 3. H. 5 Elizabeth married to Tho. Mowbray Duke Norfolk Jane Lady of Abergany Married to Lewthall John Arundell Knight Lord Matrovers John Arund Lord Matrovers obiit 6. H. 4 Io. Arund L. Matrovers obiit 9. H. 5 Io. E of Arun. by reason of the entail Thomas Lord Barkley was seised in his demesne as of fee of the Castle of Barkley and Mannour c. and a fine levied in the Kings Court 23 E. 3. of the aforesaid Castle Mannour c. to him for terme of his life remainder to Morrice his sonne and to the heires males of his body issuing with other remainders as aforesaid the which said Morrice had issue Thomas Lord Barkley and Iames Barkley Knight which Iames dyed in the life of his brother leaving Iames his sonne and heire living After the said Thomas Lord Barkley died Anno 5. H. 5. leaving Elizabeth his daughter and heir married to Richard Earle of Warwick after whose death Iames his Nephew on the brothers side entred into the Lands Castles and rem ' aforesaid by virtue of the entaile and was summoned among the Barons to the Parliament as Baron of Barkley 9. H. 5. which Elizabeth died in 1. H. 6. Tho. Lord Barkley Morrice Lo Barkley Tho. Lord Barkley Eliz. married to Rich. Earle of Warwick Sir Ia. Barkley died before his brother Iames Lo. Barkley by reason of the entaile Thomas Lord De la ware died seised in his demesne as of fee taile to himselfe and to the heires males of his body issuing by reason of a fine levied in the time of his ancestors of the Barony De la ware with divers other lands in other counties and died 5. H. 6. without heires of his body and Reignold West Knight of the halfe blood was next heire by reason of the entaile aforesaid and was summoned to the Parliament by the name of Reignold Lord De la ware Knight although Iohn Griffith was heire generall of the aforesaid Thomas De la ware being of the whole blood as appeareth by the genealogie ensuing Iohn Lord Delaware son of Roger. Iohn Lord Delaware Roger Lord Delaware Elisabeth daughter to Adam L. Wels. Iohn Lord De la ware died without issue Thomas Lord Dela ware died without issue Elisabeth daughter to the Lord Mowbray hâ—s second wife Iohn Griffin heire generall to the Lord Delaware Sir Reignold West Lord De la ware by the entail Katharine married to Nicolas Latimer Katharine married to Griffin Iohan married to Tho West Knight John de Vere Earle of Oxford seised in his demesne as of Fee taile to him and his heires Males of his body issuing of the honour and county of Oxford with divers other Lands Anno 18. H. 8. died without heires of his body and his three sisters were his next heires generall but Iohn de Vere his next heire Male as appeareth was Earle of Oxford by reason of the said entaile and none of the three sisters obtained Dignity Richard de Vere Earle of Oxford died 4. H. 5. Iohn de Vere Earle of Oxford deed 1. E. 4. John de Vere Earle of Oxford died without issue 4. H. 8. George de vere Knight Iohn de Vere Earl of Oxfo died without issue 18. H. 8. Eliz. married to Sir Antho. Wingfield Knight Ursula married to Edm. Knightley Esq Dorothy married to Nevill Sir Robert de Vere
signified unto the late Queene upon the Petition oâ— the sister and heire of Gregory late Lord Dacres deceased may appeare Moreover in the same Pedegree of the said Lord Dacres it is expressed that Thomas sometimes Lord Dacres had issue Thomâ—s his eldest son Ralph his second sonne and Humphrey his third sonne Thomas the eldest dyed in the life time of his Father having Issue Ioan his daughter and heire who was marryed unto Sir Richard Fines Knight And after Thomas Lord Dacres her Grandfather and Father unto the said Sir Ralph and Humphrey dyed After whose death Henry 6. by his Letters Patents bearing date at Westminster 7. Novem. Anno 7. regni reciting the said Peâ—egree and Marriage doth by his Lettâ—rs Pattents accept declare and repute the said Richard Fines to be Lord Dacres and one of the Barons of his Realme But afterward in the timâ— of Edw 4. the said Humphrey Dacres after the attaindor of the said Ralph and himselfe by an Act of Parliament which was in 1. Ed. 4. and after the death of the said Ralph and after the reversall of the same Act by another Act 12. Edw. 4. the said Humphrey made challenge unto the said Barony and to divers Lands of the said Thomas his Father whereupon both parties after their title had been considered in Parliament submitted themselves unto the Arbiâ—rement of King Edw. 4. and entred into Bond each â—o other for the performance thereof Whereupon the said King in his award under his Privie seale bearing date at Westminster 8. April Anno regni 13. did award that the said Rich Fines in the right of Ioan his wife and the Heires of his body lawfully begotten should be reputed had named and called Lord Dacres and that the said Richard Fines and the Heires of his body by the said Ioane begotten should keepe have and use the same state and place in every Parliament as the said Thomas Dacres Knight late Lord Dacres had used kept c. that the heires of the body of the said Thomas acres Knight late Lord Dacres lawfully begotten should have and â—old to them their Heites the Mannor of Holbech And furthermore the said King did award on the other part that the said Humphrey Dacres Knight and the Heires males of the said Thomas late Lord Dacres should be reputed had named and called the L. Dacres of Gillesland And that he and the heires males of the said Thomas then late Lord Dacres should have use and keepe the place in Parliament next adioyning beneath the said place which the said Rich Fines Knight Lord Dacres then had and occupied and that the heires of the body of the said Ioan his wife should have and occupie And that the Heires males of the said Thomas Dacres late L. Dacres should have to them to the heires males of their bodies begotten the Mannor of Jothington c. And so note that the name of the ancient Barony namely Gile sland remained unto the Heire male unto whom the land was entailed Moreover this is specially observed if any Baron by writ doe dy having none other issue then Female and that by some speciall entail or other assurance there be an heire male which doth enioy all or agreat part of the lands possessions and inheritances of such Barons deceased the Kings of this Realme have used to call to the Parliament by writ as Baron such here male omitting the Husband or issuâ— male of such heire female and this also appeareth by a notable controversie in the time of Henry 7. betweene Sir Robert Willoughby Lord Brooke and Richard Lord Latimer for the Barony of Latimer which in effect was The said Lord Brooke did challenge the Barony of Latimer as cosen and Heire to Elizabeth his great grandmother who was sister and heire to Iohn Nevill Lord Latimer who died without issue and hereupon exhibited a Petition to Henry 7. in Parliament whereto Richard then Lord Latimer was called to answer because he then enjoyed the said title and dignity The said Richard Lord Latimer by his answer did shew that it was true that after the death of the said Iohn Nevill Lord Latimer dying without issue the said Elizabeth was the sister and next heire and married unto Sir Thomas Willloughby Knight second son of the Lord VVilloughby but Henry 6. for that the said Iohn Nevill was dead without issue and that the next heire was female did therefore call to the Parliament George Nevill Knight second sonne of Ralph Earle of Westmerland to bee Lord Latimer as Cozen and next heire male of the said Iohn Nevillâ— Lord Latimer which George was grandfather of the said Richard Lord Latimer namely Father of Henry Lord Latimer Father of the said Richard In debate of which cause the question now in hand whether a Barony by writ may descend unto the heires females was advisedly considered of by the said King and his Nobility in Parliament and in the end adjudged with the said Richard Lord Latimer which President doth afford us two Iudgements in this point one in the time of Hen. 6. when the writ was directed to the said Sir George Nevill whereby he was summoned as Lord Latimer to the Parliament and as heire Male and not the said Sir Thomas Willoughby Knight husband of the said Eliz. heirâ— male And the second judgement was given in the time of Henry 7. wherby the Barony was adiudged vnto the said Richard Lord Latimer comming of the speciall heire male against the said Lord Brooke descended of the generall heire male But here the President before remembred of the Barony of Dacres may bee obiected to incounteâ— this confusion For there was an heire female married unto Sir Richard Fines who by the declaration of Hen. 6. was Baron of Dacres in the right of his wife and there was also Ralph and Humphrey the heires males before whom the heire female was preferred by the censure of Henry 6. and Edward 4. This obiection is easily answeared For although Hen. 6. through the Princely favour which he bare unto Sir Richard Fynes had declared him to bee Lord Dacres in the right of his wife yet notwithstanding did Ralph Dacres being heire male unto the then Lord Dacres deceased be are also the name of Lord Dacres by that name was attainted in Parliament Wherefore the reason why the heire male could not bee regarded was the said attainder of the said Ralph and Humfrey his brother and therefore when Humphrey 12. Edw. 4. laboured to have the said attainder reversed he submitted himselfe vnto the Arbitrament of the King who to satisfie both Competitors because both had well deserved of him after he had admitted them to his favour he allowed the one to be Lord Dacres the other to be Lord Dacres of Gillesland thus much concerning the second point whether a Barony by writ may discend unto the heire female or not As concerning the third point admitting such discent to bee to the heire female when there
apparant of the King of England and of such a King who is heir unto the said Prince Edward And such a first begotten son and heir apparant to the Crown shall inherit the said Dukedom in the life of the said King his father with manner of limitation of estate was short excellent and curious varying from the ordinary Rules of the Common Law touching the framing of any estate of inheritance in fee-simple or fee-tail And neverthelesse by the authority of Parliament a speciall fee-simple iâ— in that onely case made as by judgment may appear in the Book aforesaid and the case thereof fol. 27. and 21 E. 3. 41. b. And ever since that creation the said Dukedom of Cornwall hath been the peculiar inheritance of the Kings eldest son ad supportandum nomen onus bonoris to support the name and weight of that his honourable estate during the king his fathers life so that he is ever Duxnatus non creatus a Duke born not created and the said Duke the very first day of his nativity is presumed and taken to be of full and perfect age so that he may sue that day for his livery of the said Dukedom and ought of right to obtain the same as well as if he had been full 21 yeers of age And the said Black-Prince was the first Duke in England after the Conquest for though Bracton who made his Book in H. 3. saith Et sunt sub regâ—duces as before appeareth yet that place is to be understood of the ancient kings who were before the conquest for in Mag. Charta which was made in Anno 9 H. 3. we finde not the name of Duke amongst the Peers and Nobles there mentioned For seeing the Norman Kings themselves were Dukes of Normandy for a great while they adorned none with this honour of Duke And the eldest son of every King after this creation was Duke of Cornwall and so allowed As for example Henry of Munmouth eldest son of H. 4. and Henry of Winsoâ— eldest son of H. 5. and Edw. of Westminster the first son of Ed. 4. and Arthur of Winchester first son of H. 7. and Edward of Hampton first son of H. 8. but Richard of Burdeaux who was the first son of the Black-Prince was not Duke of Cornwall by force of the said creation for albeit after the death of his father he was heir apparant to the Crown yet because he was not the first begotten son of a King of England for his father dyed in the life time of king Ed. 3. the said Richard was not within the limitation of the grant and creation by authority of Parliament made in the 11 yeer of king Edward above mentioned And therefore to supply that defect in the 5. yeer of Ed. 3. he was created Duke of Cornwall by a speciall Charter Elizabeth eldest daughter to king Edw. 4. was not Dutches of Cornwal for she was the first begotten daughter of king Edw. 4. but the limitation is to the first begotten son Henry the 8. was not in the life of his father king H. 7. after the death of his eldest Brother Arthur Duke of Cornwall by force of the said creation for albeit he was sole heir apparant to the king yet he was not his eldest begotten son Cooks 8 part 29. b. and 30. a. And the opinion of Stamford a learned Judge hath been that he shall have within his Dukedom of Cornwall the kings Prerogatives because it is not severed from the Crown after the form as it is given for none shall be inheritour thereof but the kings of the Realm For example whereas by the Common Law if a man hold divers Mannors or other lands and toâ—ements of severall Lords all by knights service some part by priority and ancient Feoffment and other lands by posterity and by a latter Feoffment and the Tenant so seized dyeth his son and heir within age In this case the custody of Wardship of the body and his marriage may not be divided among all the Lords but one of them onely shall have right unto it because the body of a man is intire and the Law doth say That the Lord of whom some part of those lands be holden by priority and by the same tenure of Chivalry shall have it except the king be any of the Lords for them though the Tenant did purchase that land last yet after his death the king shall bee preâ—erred before all or any other the Lords of whom the Tenant did hold by priority And so shall the Duke of Cornwall in the same case have the same Prerogative if his Tenant dye holding of him but by posterity of Feoffment for any tenure of his Dutchie of Cornwall although the said Duke is not seized of any particular estate whereof the reversion remaineth in the king for the Prince is seized in fee of his Dukedom as before is said Iohn of Gaunt the fourth son of king Edward 3. did take to wife Blanch who was daughter and heir to Henry Duke of Lancaster who had issue Henry afterwards king of England so that the said Dutchy of Lancaster did come unto the said Henry by discent from the part of his mother and being a subject he was to observe the Common Law of the Land in all things concerning his Dutchie For if he would depart in Fee with any part thereof hee must make livery and seizen or if hee had made a Lease for life reserving rent with a reentery for default of payment and the rent happen to be behind the Duke might not enter unlesse hee doe make a demand or if he had aliened any part thereof whilest he was with age hee might defeat the purchaser for that cause and if hee would grant a reversion of any estate for life or yeares in being there must also be Attornment or else the grant doth not take effect But after that hee had deposed King Richard the second and had assumed upon him the Royall estate and so had conjoyned his naturall bodie in the bodie Politique of the King of this Realme and so was become King Then the possessions of the Duchie of Lancaster were in him as King and not as Duke For the name of Duke being not so great as the name of a King was drowned by the name of King and by the State Royall in him who was Duke for the King cannot bee a Duke within his owne Realme but out of his Realme hee may And likewise the name of the Duchie and all the Franchizes Liberties and Jurisdictions of the same when they were in the hands of him who had the Crowne and Jurisdiction Royall were gone by thâ— Common Law and extinct for the greater doth distinguish the lesse and after those times the possessions of the Dutchie of LANCASTER would not passe from King Henry the fourth but by his Letters Patents under the great Seal of England without livery of seifin and without Attornment and if he make a Lease for life being Duke
of one and twenty yeares he shall be in ward but if the King had made him Knight in the life of his Father he should not have beene in ward after the death of his Father neither for the lands descended or for his marriage though he be within age Cooks 6. part 74. in Druries case Nobility and Lords in reputation onely THere are other Lords in reputation and appellation who neverthelesse are not de jure neither can they enjoy the priviledge of those of the Nobility that are Lords of the Parliament The sonne and heire of a Duke during his fathers life is onely by curtesie of speech and honour called an Earle and the eldest sonne of an Earle a Baron but not so in legall proceedings or in the Kings Courts of Iustice Brook Treason 2. But the King may at his pleasure create them in the life of their Ancestors into any degree of Lords of the Parliament Cook 8. part 16. b. A Duke or other of the Nobilitie of a forraigne Nation doth come into this Realme by the Kings safe conduct in which the Kings said Letters of Conduct he is named Duke according to his Creation yet that appellation maketh him not a Duke c. to sue or to be sued by that name within England but is onely so reputed But if the King of Denmark or other Soveraigne King come into England under safe conduct he during his aboad in England ought to bee stiled by the name of King though hee have not merum imperium out of his owne Kingdome yet he shall retaine honoris titulos Cook 7. part 15. b. sequentia All the younger sonnes of the Kings of England are of the Nobility of England and Earles by their birth without any other Creation and onely Lords in reputation And if an English man be created Earle of the Empire or of other title of honour by the Emperour he shall not beare the title in England and therefore is an Earle onely in reputation A Lord of Ireland and Scotland though he be a Postnatus is not a Lord in England in legall Courts of Iustice though he be commonly called and reputed a Lord. NOBLE VVOMEN ALthough Noble women may not sit in Parliament in respect of their sexe yet they are in the law Peeres of the Realm and all or most of the Prerogatives before mentioned which to Noblemen are belonging doe also appertaine to them Cook 8. part 53. But the opinion of some men hath been that a Countesse Baronesse or other woman of great estate cannot maintaine an action upon the statute de scandalis Magnatum because the statute of 2. R. 2. cap. 5. speaketh but of Prelates Dukes Earles Barons or other Nobles and other great men of the Realme and of the Chancellour Treasurer Clarke of the Privie Seale Steward of the Kings house Iustice of the one Bench or of the other great officers of the Realm by which words they conceive the meaning of the makers of that statute was onely to provide in that case for Lords and not for women of honour Crompton Justice of Peace 45. b. Also if any of the Kings servants within his Check-roll doe conspire the death of any Noble man it is not felony within the compasse of the statute 3. H. 7. cap. 13. Honourable women are of three sorts By creation by Descent or by Marriage King Henry the eighth created Anne Bullen Marchionesse of Pembrook and so may the King create any woman into any title of honour as to his Highnesse shall seem good As the King by by his Letters Patents openly read in the Parliament did create Widow the sole daughter of late Baron of Abergavenny Baronesse De le Spencer Cambden 63. 6. Noble women by descent are those to whom either the lands holden by such dignity do descend as heir and they are said to be honourable by tenure or those whose Ancestors to whom they are heires were seised of an estate descendable unto them in their titles of Dukedomes Earldomes or Baronies or those whose Ancestors were summoned to the Kings Parliament for thereby also an inheritance doth accrue to their posterities Noble women also are those who do take to their husbands any Lord or Peere of the Realme although they of themselves were not of any degree of Nobility Fortescue de laudibus legum Angliae fol. 100. Question and doubt hath been made whether if a man be summoned to the Parliament and afterwards die without issue male the dignity and title of honour may descend to the heire female and many arguments have beene made pro contra in that which at this time â— doe purposely omit because I have before discoursed thereof in the title of Barons in this Treatise Concerning the title of honour descendable to the heire female by reason of a tenure in her Ancestor there need no more doubt to be made than of offices of honour the which doe much import the publike wealth and being of estate of inheritance doe descend to the heire female if there be no heire male as the office of high-Constableship of England challenged in the time of H. 8. by the Duke of Buckingham and judged by the advice and resolution of the Judges as by a note of that case extant whereof my Lord Dyer in his Reports hath a memoriall is most evident Dyer 283. b. Kellaway 6. H. 8. 170. b. which descended to the daughters of Humphrey de Bohun Earle of Hereford and Essex as afore is declared the office of a Lord Steward descended to Blanch daughter of Henry Earle of Lancaster in whose right John of Gaunt her husband enjoyed the same The like may be said of the office of Earle Marshall which descended by an heire female unto the house of Norfolk all which offices are as unfit to be exercised by a woman as it is unfit for a woman to be summoned to the Parliament as Baronesse by writ as before is written And when the title of honour doth descend to a woman if question in Law doe arise betweene the noble woman and any other person whether she be of that degree of noblenesse or no the issue shall be tried by the Record thereof and by the Kings writ it shall be certified and not by a Jury of twelve men even as it should be in case her Ancestors had beene party Cooks 6. part 53. 7. part 15. Although the Lawes of this Realme regularly doe make all the daughters where there are no sonnes equally to inherit Lands and Tenements and to be but one heire to their Ancestor yet it is not so in the descent of dignities and titles of honour for inheritances concerning matters of honour being things in their nature entire paticipating of superiority and eminency are not partable amongst many and therefore must of necessity descend unto one and that is to the eldest daughter sister aunt or cosin female inheritable where there is no heires males that may lawfully challenge the same and so in
this point is the civill Law Neverthelesse there was a judgment in the time of H. 3. touching the descent of the Earldome of Chester after the death of the Earle who dyed without issue his sisters being his heires which Judgement was that the said Earldome should bee divided amongst the said copartners as other lands and that the eldest should not have it alone 23. H. 3. Fitz. partic 18. But this judgement was holden erroneous even in those times wherein it was given For Bracton a learned Judge who lived in that age thus writeth thereof treating of Partition among Copartners lib. 2. cap. 34 fol. 76 b. De hoc autem quod dicitur quod de feodo militare veniunt in divisione capitalia messuagia inter cohaeredes dividuntur hoc verum est nisi capitale messuagium illud sit caput comitatus propter jus gladii quod dividi non potest vel caput Baeroniae castrum vel aliud aedificium hoc ideo ne sit caput per plures particulas dividetur plura jura Comitat ' Baroniarum deveniant ad nihilum per quod deficiat regnum quod ex Comitatibus Baroniis dicitur esse constitutum Si autem plura sunt aedificia quae sunt capita Baeroniae dividi possunt inter cohaeredes facta electione salvo jure essentiae quia cùm plura sunt ibi jura quodlibet per se poterit integrè observart quod quidem non est in uno ut praedictum est licet à quibusdam dicatur quòd in aliis regionibus aliquando de consuetudine dividatur sed quod nunquam dividi debeat in Anglia videtur nec visum fuit contrarium erit consuetudo regionis observanda ubi haereditas quae petitur personae nascuntur quae petunt unde sic dicatur quòd in regno Angliae aliquando facta fuit partitio hoc fuit injustum It is therefore evident that Baronies and dignities of Honour do by the Lawes of this Realm descend unto the eldest Coapercener and the Iudgement given once to the contrary thereof Bracton doth rightly account to be unjust his reason is notable for in as much as the honour of the Chivalry of the Realme doth chiefly consist in the Nobility reason would not that such dignitie should be divided amongst Coaparceners whereby through multitude of partitions the reputation of Honour in such snccession and so divided might be impaired or the strength of the Realme being drawne into many hands with the decrease of livelihood by partition should be enfeebled in which Resolution Britton the learned Bishop of Hereford who compiled his Booke of the Lawes of the Realme by the commandement and in the name of E. 1. according Britton 187. and therefore howsoever that Judgemâ—nt was given or whensoever it is neverthelesse very evident that it was soone redressed for if it were given upon the death of Renulph the last of that name the Earle of Chester who dyed about 17. H. 3. without issue the Writers of that time doe testifie that the Earledome of Chester came wholly unto Iohn Scot the sonne of David Earle of Huntington and Anguish and of Maud the eldest sister of the said Renulph if it were given upon the death of the said Iohn Scot who dyed without issue about 14. H. 7. yet notwithstanding the said Judgement stood not in force for that the said King assumed the said Earledome into his owne hands upon other satisfaction made to the sisters Coparceners of the said Iohn Scot. Ne tanta hereditas colos deduceretur Matth. Paris Monast S. Albani in Arr. fol. 3. 66. B. tamen vide Vill. fol. 75. et Ioh. Guill 78. For this it is to be observed out of Presidents and to be acknowledged of every dutiful Subject that the King is at liberty to call and advance to honour whom his Highnesse shall in his Princely wisdome thinke most meet and therfore whereas Ralph Lord Cromwell being a Baron by Writ dyed without issue having two sisters and co-heires Elizabeth the eldest married unto Sir Thomas Nevill Knight and Ioane the younger married unto Sir Hunt Burther hee who married the younger sister was called unto the Parliament as Lord Cromwell and not the said Sir Thomas Nevill who had married the eldest sister and Hugh Lupus the first and great Earle of Chester was by the Conquerour his Uncle created Earle of Chester Habemus sibi heredibus adeo libere per gladium sicut ipse Rex tenuit Angliam per Coronam Hugh dyed without issue and the inheritance of his Earledome was divided amongst his foure sisters and the eldest had not the Seigniory entire unto her selfe Reade Mills 74 75. Cookes b. part 53. 7. part 15. If a Woman be Noble by birth or by discent with whomsoever she doth marry though her Husband bee under her degree yet she doth remaine Noble for her Birthright Est Character in delibilis Cook 4. part 118. b. 6. part 53. b. Other Women are enobled by Marriage and the text saith thus viz. Women with the honour of their Husbands and with the kindred of their Husbands we worship them in the Court we decree matters to passe in the name of their Husbands and into the house and sirname of their Husbands wee doe translate them but if afterwards a woman doe marry with a man of baser degree then loseth she her former Dignitie and followeth the condition of her latter Husband Fortescue de laudibus legum Angl. 100. And as concerning the second disparaged Marriage as aforesaid many other bookes of the law doe agree for these bee rules received in those Cases Si mulier nobilis nupserit ignobili desit esse nobilis eadem modo quo quidem Constitut dissolvitur Cookes 6. part 53. B. 4. part 118. It was the Case of Ralph Hayward Esquire who tooke to his wife Anne the widdow of the Lord Powes they brought an Action against the Duke of Suffolke by the name of Ralph Hayward Esquire and the Lady Anne Powes his wife and exception was taken for misnaming her because shee ought to have beene named by the Husbands Name and not otherwise and the exception was by the Court allowed For said they by the Law of God shee is Sub potestate viri and by our Law her Name of Dignitie shall bee changed according to the degree of her Husband notwithstanding the curtesies of the Ladies of Honour and Court Dyer 79. And the like was also in Queene Maries Raigne when the Dutchesse of Suffolke tooke to her Husband Adrian Stoakes Prob. 456. and many other presidents have beene of latter time and herewith agreeth the Civill Law punctually Digest lib. 1. Tit. 9. Lege 8. Eodem de Dignitate Liber 12. Lege 2. In this case of acquired Nobility by Marriage of Question in Law be whereupon an issue is taken betweene the parties that is to say Dutchesse or not Dutchesse Countesse or not Countesse Baronesse or not Baronesse the
of dignity and the Entry of Capias alias plures was according to the said originall but in the Exigent and Proclamation and in the Entry of it the Defendant was named according to his degree of Dignity upon a Writ of Errour after judgment doubt was if this might be amended in another Court then where the originall was made and at last it was resolved by all the Court that the Record should be amended by the Cursitor and made according to the Note or Title delivered unto him by the Plaintiffes Attorney Cook 8. part fol. 15. b. It appeareth in our Book of Law that the highest and lowest Dignity are uniuersall For as if a King of a Forreign Nation come into England by leave of the King of this Realm as it ought to be in this case he shall sue and be sued in the name of a King 11. Ed. 3. Test Breccon 473. So shall he sue or be sued by the Name of a Knight whersoever he received that degree of Dignity 20. Ed. 4. 6. H. 6. 14. but otherwise it is as if a Duke Marquesse Earl or other Title of Honour given by any Forreign King yea though the King by Letters Pattents of safe conduct do name him Duke or by any other his forreign Title of Dignity For experience sheweth that Kings joyned in league together by a certain mutuall anâ— as it were a Naturall power of Monarchs according to the Law of Nations have denized one anothers subjects and Ambassadors graced with this title of Honour Therefore though a Knight receive his Dignitie of a Forraigne Prince he is so to be stiled in all Legall proceedings within England Vide Cooke 7. part fol. 16. b. And Kings were wont to send their sonnes to their Neighbour Princes to receive Knighthood at their hands Vide Selden fol. 331. 308. thinking that it was more honourable to take Armes of some other lest affection might seeme to prevent judgement when the father gave them that honour Thus was our King H. 2. sent unto David King of Scots and Malcombe also king there sent unto our H. 2. and our king to the king of Castile to take of them Military or Civill Armes for the tearmes and phrases they used in that age for the making of a knight Vide Camden 174. 8. vide Selden fol. 315. And knights in all forraigne Countries have ever place and precedencie according as they are ancient knights which priviledge is deemed to Noblemen for be they never so ancient in forraigce Countries they shall goe before as Puesneys The degree of knighthood is not onely a Dignitie and honour to the party for so it is termed in Brooke title Additions fol. 44. but honourable for the kingdome and therefore it hath been an ancient Prerogative of the kings of this Realm at their pleasure to compell men of worth to take upon them this degree upon the payment of a Fine as appeareth in Ann. 7. H. 6. 15. Fitzh Abridg. tit Im. 12. and by the Statute a. 1. Ed. 2. de militibus But we see by experience in these daies that none are compelled thereunto and that is the reason wherefore if the Plaintiffe be made knight hanging the Writ it shall abate because hâ— hath changed his name and that by his owne act Vide Cooke 7. part f. 27. b. part 10. b. 1 Ed. 6. cap. 7. contrary And for that cause also by the common Law not only the king but every Lord of a Manor ought to have of every of his tenants a reasonable fine to make his eldest son knight Vide Bracton fol. 36. b. and all lands are subject to these aides except onely ancient Demeasnes and grand and petty serjeantly tenures as the Law hath been anciently delivered Vide Fiszh Nat. bre f. 83. a. and Selden f. 13. where it is also said one that wrote a little after the statute of West the first allowes as a good barre to the avowry for the tenant to plead that the father himself is no knight so that one not knighted cannot claime the aide of his own Tenants Briton de Prises de Avers And it was not at the liberty of the Lord to make more or lesse of his Tenants by the common Law in this case but by the statute at Westminster 1. cap. 35. it is put into certainty viz. forasmuch as before this time reasonable and to make one son knight or to marry his daughter was never put into certainty nor how much should be taken at that time whereby some levyed unreasonable aide and more often then seemed necessary whereby the people were sore grieved And it is therefore provided that from henceforth a whole knights fee be taken but 20. s. and of more more and of lesse lesse after that rate and that none shall levie such aide to make his son knight untill the sonne be 15. yeares of age nor to marry his daughter untill she be of the age of 7. yeares and of that there shall be mention made in the kings Writs formed on the same if any one will demand it and if it happen that the Father after he had leavied any such aid of his Tenants did before he hath marryed his Daughter the Executors of the Father shall be bound to the daughter for so much as the Father received for the Aid And if the Fathers goods be not sufficient his heir shall be charged therwith unto the daughter and this Heir is so incident that although the Lord do confirm unto the Tenant to hold by fealty and certain Rent and release unto him all other services and demands yet he shall have the aid to make his eldest Son Knight Anno 40. E. 3. f. 22. Finches book 24. but the King was not bound by the statute beforementioned because the King was not named in that statute and therfore by the statute 25. E. 3. cap. 11. The Kings aids were brought to a like value Selden fol. 3. 30. The intention of the Law is that an heir within the age of 21. years is not able to do Knight-service till his full age of 21. years Littleton lib. 2. cap. 4. f. 22. But such a presumption of Law doth give place to a judgment and proof to the contrary as Bracton saith Sabilitur presumptioni donec probetur in contrarium And therfore the King who is the Sovereign and Supream Judge of Chivalry hath dubbed him Knight he by this hath judged him able to do him Knight-service and all men concluded not to say to the contrary therfore such an heir being made Knight either in the life of his Father or afterwards during his minority shall be out of ward and custody both for Lands and for his body or marriage by the ancient common Law by reason also that the Honour of Knight-hood is so great that it is not to be holden under by any yet if the King do create any such an Heir within Age a Duke or Marquesse Earl Count Viscount or Baron by this
he shall be out of ward and custody both for his Land and for his body vide Cook 6 part 74 a. And therfore it is provided by the statute of Magna Charta Cap. 3. Ita tamen quod si ipsâ— dum infra atatem fuerint fiat miles nihil ominus terra remaneat in custodia dominorum suorum So that although such an heir within age be made a Knight and therby to this purpose is esteemed of full age yet the Laws shall remain in the custody of the Lord till his age of 21. years by the provision of the said Act. Quere if the son and heir of the Tenant of the King by Knight-service c. be made Knight in Paris by the King of France whether he shall be out of wardship after the death of his Father or no for therby he is a Knight in England Cook 7. par a. 2. E. 4. fo b. tamen vide Cooks 6. par 74. b. Mention is only made of Knights made by the King himself or by his Lieutenants in Ireland But when the King doth make an heir apparent within age of a Tenant by Knights service a Knight in the life time of his Ancestor and after the death of his Ancestor the said heir being within age shall in this case be out of ward and shall pay no value for his marriage neither shall the Lord have the custody of the Land for in that case by the making of him Knight in the life of his Ancestor he is made of ful age so that when his Ancestor dyeth no Interest in the body nor in the Land shall invest but the Knight may tender his livery as if he were of full age and in this case the King shall have primer seisin as if he had bin 21. years old at the time of the decease of his Ancestor and not otherwise Cooks 8. part fol. 171. a. for the statute of Magna Charta doth not extend unto it For the purpose of it doth extend only when the Heir is in ward infra etatem is made Knight then remaneat terra in Custodia But when the Heir is in ward being Knight in the life of his Ancestor then the Custody cannot remain or continue which had never any inception or essence Also when the Heir after the death of his Ancestour within age is made a Knight if after tender made unto him he within Age doth marry else-where yet he shall not pay the Forfeiture of his Marriage For by the making of him Knight he is out of ward and custody of his Lord for then he ought to be sui juris and may imploy himself in Feats of Arms for defence of ths Realm and therfore may not be within the Custody or keeping of another but none shall pay any Forfeitute but when after refusall he doth marry himself during the time when he is under the Custody or keeping of his Lord. And this doth appear by the statute of Merton cap. 6. Si maritaverit sine licentia Domini sui ut ei auferat Maritagium suum c. Which Words cannot be understood when he is out of Ward and Custody no more then when he is married after his age of one and twenty years Note hereby may appear that the King may present his Grant or other Lords of the double value by Knighthood yet in such a Case presently after the Heir is made Knight after the Death of his Ancestour the Lord may have a Writ de valore Marigii for the single Cooks 6. part 74. and 75 and note Plowden f. 267. Also by the ancient Common-law of this Realm if a Villain be be made a Knight he is immediatly enfranfranchized Olanvile lib. 5. cap. 5. f. â—7 and Bracton lib. 4. cap. 198. b. Or if a Ribauld or man of base Birth and Condition had strucken a Knight he should by the ancient Laws have lost his hand wherwith he offended Britton 19. in his appeales But in France it was judged antiently that when a Lord of a villain had Knighted his villain being a Gentleman he became Free and had the Honor lawfully but if another Lord had Knighted him nothing had bin wrought by it For none could mannue him but the Lord and till Mannumission or till Knighthood had civill Freedome for his ground he was not capable of it except by the King only vide Seldens Titles of Honour fol. 318. It was enacted in Parliament Anno 6. Ioh. Regis in hec verba Rex vicecom c. Sciatis quod consensum est cum assensu Archieporum Comit. Baronium omnium fidâ—lium urum Angl. quod Novem milites per totam Angl. invenient decimum militem bene paratum equis Armis ad defensionem Regni nostri vide Cook before his ninth Book b. There hath ever bin and still is great use of the service of Knights even in civil affairs and concerning matters of Iustice as in a Writ of right which is the highest writ in the law for the trials of titles touching the inheritance of lands the Tenant is at election to have his tryall by a grand assize or else by battle if by the great assize then Wâ—â—t de magna assiza Elegenda shall be taken out And upon the return of that Writ those four Knighâ—s nominated must appear Gladiis cinctis Dyer 79. f. 103. If the Tenant make his election by Battle each parties are to choose their Champions and the Court shall award the Battle and the Champions shall be a mainprise and sworn to perform the Battle at a certain day in the Term and idem dies shall be given to the parties at which day and place a List shall be made in an even and plain ground their Squadrant that is to say every square 60. foot East West North and South and the place or Court for the Justices of the Common Pleas without and upon the Lists furnished with the same Cloths which belong to their Court at Westminster and a Barre there shall be made for the Sergeants at Law and the Robes of the Justices and Sergeants shall be of Scatlet with their Coifes as it was Anno 13. Eliz. and then was made Proclamation with three O. yes c. and the Demandant was first solemnly demanded and did not appear Wherupon the Mainprise of the Champion was demanded to bring forth the Champion of the Demandant who came to the place apparelled with red Sandalls upon his black Armour bare legged from the knee downwards and bare headed and bare Arms to the Elbowes being brought in by a Knight namely by Sir Ierome Bowes who carryed a Red Baston of an Ell long typt with horn and a Yeoman carrying the Target made of double Leather and they were brought in at the North side of the Lists and went about the sides of the Lists and then came towards the Bar before the Justices with their solemn Congies and there was he made to stay on the Southside of the place being the right side of
is no accepter of persons for as unto the Lord he that is greater is as the lesser and he that doth govern as the servant but with men there is a difference of persons viz. The King and under him Dukes Counts Barons Vavasors and Knights Counts so called because they take their name from the County or from the word society who may also be tearmed Consull of Counselling For Kings do associate such men unto them to govern the people of God ordaining them into great honour power and name when they do gird them with swords that is to say ringis gladiorum with the Belts of their swords ringis so called * quasi renes girans circundans for that they compasse the Reins of such that they may keep them from incest and luxury because luxurious and incestuous persons are abominable unto God upon this cause were the stations and encamping of Arms called in the ancient language of Rome casâ—â—â— even of the word Castrare to geld since that they ought to be castrata vel castra In that place ought a good Generall to foresee that Venus delights be as it were gâ—lded and 〈◊〉 off from the Army vide Sir John Ferne his Book intituled The glory of generosity The sword also doth signifie the defence of the Kingdome and Countrey There be other Potents under the King which are called Barons that is to say robor belli the strength of Warre There be others which are called Vavasors viri magnâ— dignitatis â—en of great dignity for Vavasor cannot better be said to be any thing than Vas sortitum ad valetudinem a vessel chosen for valour or as men standing with their Generall ad valuas Regni and this is enough if not too much in generall spoken of the Nobility of England now follow I a more particular discourse of them according to their severall degrees The Prince THe Kings eldest Sonne and Heir apparant is stiled Prince Quasi primum locum capiens post Regem the first next the King To him it was permitted by the Statute of 24. Hen. 8. cap. 13. To wear Silk of the colour of Purple and Cloth of Gold of Tissue in his apparell or upon his horse but by another Statute made in the fourth yeer of King James Chap. 25. all Laws and Statutes concerning apparell are taken away And by the Statute of 34. Hen. 3. cap. 2. Taking shall not be from henceforth made by others then by the Purveyors of the King of the Queen and of the Prince their eldest Sonne and that if any other mans Purveyor make such taking it shall be done of them as those which do without warrant and the deed judged as a thing done against the peace and the Law of the Land and such as do not in manner aforesaid shall be duly punished To eschew maintenance and nourish peace and amity in all parts of the Realm many Statutes have been made in the Raign of Hen. 4. prohibiting the giving of signes or Liveries to any but to their menialls Neverthelesse by the Statute of 2. Hen. 4. cap. 21. It is provided that the Prince may give his honourable Liveries of signes to the Lords or to his meniall Gentlemen and that the said Lords may wear the same as they wear the Kings Livery and that the menialls of the Prince may also wear the same as the Kings menialls But afterwards by occasion of divers other Statutes of latter times made by sundry other Kings for the suppressing of that enormity of maintenance and of the generall words in them that priviledge of the Prince was abridged or rather taken away therefore the Statute of 12. Ed. 4. was made as followeth Item Our Soveraign Lord the King considering that the Prince the first begotten Sonne to the King of England hath been at their liberties to give their Liveries and signes at their pleasure and that divers Statutes against givers and takers of Liveries and signes as well in the time of his noble raign as in the time of his progenitors and predecessors hath been made and that by force of the said Statutes his dear beloved first begotten sonne Edward Prince of Wales Duke of Cornwall and Earl of Chester is as well as any other person restrained to give any such Liveries and signes as our Soveraign Lord the King willing that his first begotten sonne the Prince be at his liberty in receiving any person and giving his signes and Liveries in as large form as any Prince first begotten sonne of any of his Noble Progenitors and predecessors in time pasâ— have been hath ordained and established by authority of the said Parliament that the Prince shall be at his liberty to retain and give his honourable Livery and signe at his pleasure and that the persons so â—â—â—â—ined or to whom such Liveries or signes be or shall be given may be retained and received and wear the same Livery and sign without trouble impediment or impeachment pain contempt or forfeiture or any penalty contained in any of the said Statutes or in any thing in them comprised notwithstanding Nor that the said Statutes in any manner shall extend to any retaining to be made by the said Prince in giving taking or retaining of any Livery or signe of the Prince By the Statute 21. Hen. 8. cap 13. The Prince may retain as many Chaplains as he will though all others of the Nobility other then those of the Kings bloud be restrained to a certain number and they or any of them may purchase licence or dispensation and take receive and keep personages or benefices with cure of souls By order of the common Law a King might have a reasonable ayde of all his Tenents as well of those that did hold of his highnesse by Knights service as of those that did hold their Land in soccage That is to make his eldest Sonne But first note that the ayde is not to be recovered before the Sonne be of the age of 15. yeers or before the Daughter accomplish the age of 7. yeers Fitz Harbert Nat. brevium Knight and for the Marriage of his eldest Daughter and the summe of money was not in certainty but at the Kings pleasure till by the Statute made in the 25. of Ed. 3. cap. 11. by which is enacted as followeth Item It is assented that reasonable aid to make the Kings first Sonne Knight and to marry his eldest Daughter shall be demanded and levied after the forme of the Stature thereof made and not in other manner that is to say of every Knights Fee holden of the King without mean rate 20s and no more and of every 20â— of Land holden of the King without mean in soccagâ— 20s and no more and so rata pro rata of the Lands in soccage And for Lands of the â—enure of Chevalry according to the quantity of the Fee By another Statute made in the said 25. yeer of Ed. 3. cap. 2. amongst other things it is declared that to compasse
their places and then may proceed upon any thing there moved lawfully as lawfull persons for it is not convenient that they who are attainted should be in places of law full Judges And then another question was moved What shall be said of the King himself for he also was attainted by his Predecessour Rich. 3. and after communication had amongst themselves all did agree that the King was a person able and discharged of any former attainder ipso facto That he took upon him to raign and to be King by which it manifestly appeareth that by the Laws of England there can be no inter regnum within the same that presently by descent the next heir in blood is coÌ„pleatly and absolutely King without any essentiall Ceremony or act to be done ex post facto And that Coronation is but a royall ornament and outward solemnization of the descent and of this last matter Read Cooks 7 part fol. 10. 6. and that there followeth Of Dukes THe form of the Patent of Duke of York that now is Rex c. To all Archbishops Bishops Dukes Marquesses Earls Viscounts Barons Justices Governours Knights Ministers And to all Bailiffs and faithfull Subjects greeting Whereas We often times call to minde how many and innumerable gifts and what excellent benefits that great worker of all goodnesse of his only benignity and clemencie hath abundantly bestowed upon Us who by his power hath consociated divers and mighty Lyons in firm peace without any strife but also hath amplified and exalted the bounds and limits of our Government by his unspeakable providence above our progenitors with an indissolvible conjunction of the ancient and famous Kingdoms in the right of blood under our Imperiall Diadem in regard whereof we cannot but most willingly acknowledge our fruitfulnesse and issue plentifully adorned with the gift of Nature which he hath vouchsafed upon us because in truth in the succession of children a mortall man is made as it were immortall Neither unto any mortall men at leastwise unto Princes not acknowledging superiours can any thing happen in worldly cases more pleasant and acceptable then that their children should become notable in all vertues gooodnesse manners and increase of dignity so as they which excell others in noblenesse of bloud and indowments of Nature might not be thought of others to be exceeded Hence it is that that great goodnessâ— of God which is shewed unto us in our fertility to passe in silence or to be thought not to satisfie the Law of Nature whereby we are chiefly provoked to be well affected and liberall to those in whom we behold our blood to begin to florish coveting with great and fatherly affection that the perpetuall memory of our blood with honours and increase of dignity and all praise may be affected Our well-beloved Son Charls Duke of Albany Marquesse of Ormond Count of Rosse and Lord of Ardmannoth Our second begotten son in whom the Royall form and beauty worthy honour and other gifts of vertue do now in the best hopes shine in his tender graces We erect create make and ordain and to him the name stile state title dignity authority and honour of the Duke of York do give and him of that Name with the title state stile honour authority and dignity with other honors to the same belonging and annexed by the girding of the sword cap circlet of gold put upon his head and the delivery of a golden Virge we do really invest to have and to hold the same name and stile state and dignity authority and honour of the Duke of York unto the aforesaid Charles our second begotten son and to his heirs males of his body lawfully begotten for ever And that the aforesaid Charles our second begotten son according to the decencie and state of the said name of Duke of York may more honorably carry himself we have given and granted and by this our present Charter we confirm for us and our heirs unto the aforesaid Duke forty pounds to have and yeerly to receive to the foresaid Duke and his heirs for ever out of the Farms issues profits and other commodities whatsoever comming out of the foresaid County of York by the hands of the Sheriffe of the same County for the time being at the Terms of Easter and Michael the Arch-angel by even portions for that expresse mention of other gifts and grants by us unto the same Duke before time made in these presents made doth not appear notwithstanding These be witnesses the most excellent and most beloved Henry Prince our first begotten son Vlrick Duke of Holst brother of the queen our beloved wife and the Reverend Father in Christ Richard Archbishop of Canterbury Primate and Metropolitan of all England and also our welbeloved and faithfull Councellour the Lord Elesmore and Chancellour of England Thomas Earl of Suffolk Chamberlain of our houshold and also our dear cousin Thomas Earl of Arundel and our well-beloved cousin and Councellour Henry Earl of Northumberland Edward Earl of Worcester Master of our horse George Earl of Cumberland and also our well-beloved cousins Henry Earl of Southampton William Earl of Pembroke and also our well-beloved cousins Charles Earl of Devon Master of our Ordinance Henry Earl of Northampton Warden of the Cinque-Ports John Earl of Marr Robert Viscount Eranborne our principall Secretary and our well-beloved and faithfull Councellour Edward Lord Zuch President of out Councell in the Principality and Marches of Wales and also our wel-beloved and trusty Robert Lord Willoughby of Earsby William Lord Mounteagle Gray Lord Chandois William Lord Compton Francis Lord Norris Robert Lord Sidney our well-beloved and faithfull Councellours William Lord Knowles Treasurer of our houshold Edward Lord Wotton Comptroller of our houshold and our well-beloved and faithfull Councellour Alexander Lord and also our wel-beloved and faithfull Councellors George Dunbarr Lord of Barwick Chancellour of our Exchequer Edward Lord Bruse of Kinlose Master of the Rolls of our Chancery and also our faithfull and well-beloved Thomas Lord Eskine of Bielton Lord Balmermoth and others given by our hand at our Pallace of Westminster the sixth day of January in the second yeer of the Raign of K. James K. Edw. 3. in the 11 year of his Raign by his Charter in Parliament and by authority of Parliament did create Edw. his eldest son the Black-Prince D. of Cornwall not onely in title but cum feodo with the Dutchy of Cornwall as by the tenour of the said Letters Patents exemplified may appear Cookâ— 8 part in the pleading Habend ' et tenend ' eidem duci et ipsius et heraed ' suorum Regum Angliae filiâ—s primâ—gâ—niâ—is et dicti loci dâ—â—ibus in Regno Angliae bereditatoriae successoris To have and to hold to the same Duke and his heirs Kings of England the first begotten sons and Dukes of the same place in the kingdom of England and to hereditary succession so that he that is hereditable must be heir
generalty answerable to every kinde thereof in this manner A Baron is a dignity of Nobility and Honour next under the Vicount above the Banneret and Valvasor adorned with the title of Lord holding with us the same place as did the Patricii or Senators amongst the Romans The Books of Law do make difference between Dukes Earls Marquesses and Vicounts which are allowed names of dignity and the Baron For they affirm that Baron needs not to be named Lord or Baron by his Writ But the Dukes Marquesses Earls or Vicounts ought to be named by their names of dignity 8. H. 6. 10. 32. H. 6. 3. Cook 8. parts 53. b. a. part Pigot Lambert l. 4. 488. Cambden fol. saith that our common Lawyers do not allow a Baron to be one of the degrees of the Nobility Neverthelesse I do take the Books are to be understood of the Barons by Tenure or Barons by Writ only For the title of a Baron by Patent is in his Letters Patents under the great Seal adorned and named by the stile of Status gradus dignitas and therefore as requisit to be named as such dignities are a parcell of the Name of the possâ—ssor as well as the Stile and Title of a Duke Maâ—quesse Earl and Vicount c. And although there may be conceived this difference last mentioned between the Baron by Tenure or Writ and the Baron by Patent yet they being all Members of the higher House of the Parliament they are thereby made equally Noble Honorable and Peers of the Realm as they are Barons only without any other distinction that I have observed and thus much concerning the three degrees of Barons within this Realm may suffice to be said in generall upon this occasion for the better understanding and direction of the rest to be handled The Etymology and Derivation of the Name Baron MAny Wits have laboured to yeeld the Etymologie and signification of this word wherein following their own fantasies there hath been bred much variation of opinion As for Etymology of words I agree with him that saith That it is Levis fallax plerumque ridicula for saepenumero ubi proprietas verborum attenditur sensus veritatis amittitur It may have some use and serue a turn in Schools but it is to light for judgements in Law and Seats of Justice Cook 7. part l. 27. b. Thomas Aquinas setteth down a more certain rule in vocibus videndum noâ— tam à quo quam ad quid sumitur and words should be taken sensu currenti for use and custome is the best expositor of Laws and words quem penes Arbitrium jus norma loquendi In the Lord Chancellors Speech in the Case of Postnati fol. 61. And forasmuch as the word may aptly import men of strength Bracton as before appeareth not unaptly useth this signification thereof in these words Sunt alii potentes sub Rege quidicuntâ—r Barones boc est Robur belli The Antiquity of the Dignity of Barons and the sundry uses of the Name IT seemeth that the dignity was more ancient then the Name for in the ancient Constitutions Feodall of the Land there is no mention made of the name of Barons howbeit the learned Interpreters do understand that dignity to be comprehended under those which are there called Valuasores Majores and afterward called Capitanii for of the Valuasores there were three kindes Valuasores Majores Gve Capitanii which are thought to be the Barons Valuasores minores and valuasini or valuasores minimi The like dignity within this Realm before the Conquest had those which of the English Saxons were called Tbanes whereof read Lambert in his Preambulation of Kent Fol. 366. And the Book of Dooms-day remaining in the treasury of the Exchequer Neverthelesse the name of the Baron was not much used within this Realm untill the Norman Conquest and after that the word Baron seemeth to be frequented in this Realm in lieu and place of the word Tbane among the English Saxons for as they in generall and large signification did some time use the same to the sence and meaning and to import a Free-man borne of a free parentage or such like so did the Normans use the word Baron and therefore called their free Citizens of their best esteemed Cities and free Burgesses of their best esteemed Towns and Borroughes by the name of Barons And so the Citizens of London Barons of London in divers ancient Monuments of whom also Bracton maketh mention Fol. 272. a. Also there are divers Charters wherein mention is made of such like Barons as the Barons of Worwick in the Record of Doomsday and even to our time the free Burgesses of the five priviledged Ports are called Barons of the Cinque Ports And for that also divers of the nobility of Barons as well spirituall as temporall did in ancient time sit in the Exchequer to determine the difficulties and doubts there arising The Judges of that Court have been from most ancient time called and yet are Barons of the Exchequer Moreover the English Saxons had two kindes of Tbanes the like hath been observed as touching Barons for the Kings and Monarchs of this Realm have had their immediate Barons being the Peers of the Realm and in like manner certain other of the Nobility especially Earls which have had jurisdiction Palatine and Earls Marchers whose Countries have confined upon the coasts of the enemy have had under them for their better defence a kinde of Barons As namely under the County Palatine of Chester were these Barons the Barons of Halton Mounthalt Malebanck Shipbrooks Malpase Massa Rinderton Stockport c. The Earldom of Pembrook in Westwales being first erected by Arnulpâ—us Mountgumory that conquered part of that Country And therefore the Earls thereof being an Earl Marcher had also under him his Barons as appeareth by the Parliament Rolles 18. Ed. 1. It hath been therefore a common opinion received that every Earldom in times past had under it ten Barons and every Barony ten Knights Fees holden of him and that those that had fourteen Knights Fees were usually called and promoted to the dignity of Baron Also Lords and Proprietors of Mannors were in respect of them oftentimes in ancient remembrance cal'd Barons but abasiveth and the Courts and their Mannor called thereof Courts Barons of which Glamvile speaketh Fol. 67. l. 8. c. 11. It resteth now for the more explanation of the use of the name of Baron that we call to remembrance that which hath been before spoken that the custome of our Countrie is that if a Baron be created an Earl the eldest son of the said Earl in the life of his Father taketh upon him the name and title of the Barony although he want the Priviledges belonging to a Baron The tenor and proper signification of the word Baron BArons honourable are of three kinds by Tenure by Writ by Creation As for Barons by prescription which some men have spoken of they are intended
answere to be made to these objections being of all others the most materiall and of moment used in this behalf it shall be convenient for the more easie unfolding the state of this question to exhibite certain necessary and requisite propositions and upon them to draw true and infallible conclusions and then to prove them by authority of Law consent and time and manifold presidents which done the answere will be easily made as I conceive to every of the foresaid objections First therefore if a Baron by tenure which holdeth any Castle Honour or Mannour per Baroniam do alien or give the same either he doth it without any licence obtained from his Majesty so to do or else by some certain licence in that behalf obtained If he doe it without licence then the conclusion is certain by the lawes of this Realme the Barony Castle Honour and Mannour so aliened without licence or consent is forfeited and the same Honour Castle or Mannour so holden by Barony and so aliened is to be seised into the Kings hands for the said forfeiture and such dignity and estate no longer to be borne and continue but to be resumed and extinguished in the Crowne from whence it was derived Read hereof in Stamfords Prerogative cap. 7. But nota in Cook 2. part 80. b. The reason thereof is notable if we call to remembrance that which was formerly alledged out of Bracton That Baronies are the strength of the Realme and suffer no division they suffer also no alienation without the consent or licence of the soveraign Monarch for so should the Realme be enfeebled and base persons enabled without desert of vertue or prowesse For where the thing so aliened is an Honour or head of the Barony it differs much from the ordinary tenure in capite whereof if the Tenant make alienation without licence hee is onely to pay fine by the statute 1. E. 3. cap. 12. whereof also before the making of the statute there was diversity of opinion at the Common Law after the statute of Magna Charta But let me cite some authorities for the proofe of these allegations Glanvile the most ancient Writer of the Lawes of this Realme now extant hath these words Notandum autem quòd nec Episcopus nec Abbas quia eorum Baroniae sunt de eleemosyna Regis Antecessoris ejus non possunt de Dominicis suis aliquam partem dare ad remanentiam sine assensu confirmatione Domini Regis lib. 7. cap. 1. in fine statut Westm. cap. 42. In Edward the thirds time certaine land being parcell of the Barony of Brember was aliened by William de Bruse the Baron thereof without licence of the King and in the argument of a cause concerning the same Greene one of the Judges delivereth this for law That parcell of a Barony or Earldome held of the King in chiefe cannot be aliened or dismembred without his licence and if it be it shall bee seised into the Kings hands as forfeit and the King shall be seised thereof in his own right again In 46. E. 3. it was found by office that William Bishop of Chester had leased unto one John Peston for his life a Mannour which was parcell of the Mannour of the said Bishopricke without licence and it was resolved by the Judges and other of the Kings Councell that the same was forfeit but by meditation of the said Councell the Bishop submitted himselfe to the King and made a fine and severall Scire facias issued out against them that had received the maine profits to answer unto the King thereof And thus much concerning alienation of Baronies without licence But on the other part if a Baron by tenure which holdeth any Honour Castle or Mannour by Barony do grant or alien the same by licence I must again distinguish For either such alienation is made for the continuance of his Barony Honours Lands and Tenements in his owne name blood issue male Or else the same alienation is made for mony or other recompence or otherwise to a meere stranger and hereof ensueth this second conclusion or assertion That if such alienation be made for the continuance of the Barony in his name and blood or issue male as many have made the like then have the issues male together with the Barony be it Castle Honour or Mannour so holden held also and lawfully enjoyed the name stile title and dignity of a Baron and thereof have the heires generall or next heires female been excluded and debarred And for the proof of this assertion there may manifold presidents be produced wherof certain have happened almost in every age for 300 yeers space namely so long in effect as there have bin observations thereof of which some certain doe ensue William de Ferrariis Comes Derby obiit Anno 30. H. 3 Margareta Comitissa Derby Domina de Grooby Robertus de Ferrariìs Comes Derby Johannes de Ferariis Dom. de Charley Will. de Ferrar. Dom de Grooby ex dono Matris William de Ferrariis Dominus de Grooby It appeareth by an office found after the death of William de Ferrariis Lord of Grooby 23. H. 6. that Margaret Lady of Grooby gave to William Ferrars her second sonne and to the heires of his body the Mannour of Grooby c. By vertue of which gift the said William Ferrars and his heires were ever after Barons of Grooby Robert Walleron Baron of Kilpeck died in 1. Ed. 1. without heires of his body and Robert Walleron sonne of William brother of the said Robert was his next heire yet notwithstanding the said Robert dâ—ing gave to Allen Plagenet sonne of Alice his sister the Castle Mannour and Lordship of Kilpeck with the appurtenances To have unto the said Allen and to the heires of his body comming as appeareth by his office c. By vertue of which gift the said Allen was Baron of Kilpeck and summoned among other Barons to the Parliament and he died 27. E. 1. Walleron Baron of Kilpecke Robert Walleron Baron of Kilpec obiit sine exitu 5. E. 1 William Walleron Robert Walleron the next heir Alice married to Plagenet Allen Plagenet Baron of Kilpecke coron dono Edmond Deynecourt Baron of Blasteny obiit An. 20. E. 2 Edmond DeynCourt Isabel his next heire John Deincourt William Deyncourt BaroÌ„ of Blaxronry by reason of the entaile obiit 38. E. 3 William Deyncourt ante patrem William Deyncourt Baron of Blackney John Deincourt The King to all Christian people sendeth greeting c. Know ye that whereas lately for that our well-beloved and faithfull subject Edmond Deyncourt pondered and considered that both his Sirname and also his Armes after his death in the person of Isabell daughter of Edmond Deyncourt his heire apparent should be blotted out of memory most earnestly he desired that his Sirname and Armes after his death for ever might be had in remembrance To whose request for the worthy service as well to our father Edward late
Kt Iohn de Vere Iohn de vere Earle of Oxford by vertue of the entaile Iohn de Vere William Lord Pagâ—t of Bewdesert was seised in his demesn as of fee of the Baronies of Langden and Hawood and of and in the Mannours of Bewdesert Landen c. And being so seised by fine quinto Mariae entailed the Baronies and Mannours aforesaid to him and his heires males of his body issuing And afterward Anno 5. Eliz. died leaving Henry his sonne next heire male Which Henry entred into the Baronies and land aforesaid by vertue of the foresaid fine and died thereof seised 11. Eliz. leaving Elizabeth his onely daughter and heire After whose death Thomas Paget brother and heire male of the said Henry entred into the Baronies and Mannours aforesaid and was summoned to the Parliament by virtue of the aforesaid fine William Lord Paget of Bewdesert died anno 5. Eliz. Henry Lord Paget dies An. 11. Eliz. Elizabeth his daughter and heire Thomas Lord Paget by force of the entaile after the death of his brother Robert Lord Ogle entred into the Barony of Bothal and Ogle with divers other Mannors and Lands in the County of Northumberland by conveiance which was to himselfe for terme of his life the remainder to the heires males of his body begotten and he took to his wife Dorothy Witherington by whom he had issue Robert Ogle his eldest sonne and Margery his daughter married Gregory Ogle of Chippington And the said Robert the father after the death of the said Dorothy his wife took to his second wife Ioane Ratcliffe by whom he had issue Cutbert his second sonne and after died After whose death Robert the sonne was Lord Ogle from whom the same descended to Cutbert being brother of the halfe blood by vertue of the said entaile and not to the said Margery nor unto her heires being of the whole blood unto the said Robert the sonne Robert Ogle Lord Ogle Dorothy daughter of Henry Withrington first wife Robert Ogle L. Ogle died without issue Margery maried to Ogle of Chippington Cuthbert Ogle of Chippington Joan the daughter of Cuthbert Ratcliff Kni. the second wife Cuthbert Ogle L. Ogle died Margery Ogle married Robert Witherington Thomas Ogle Moreover concerning the second objection it is very â—rue that many ancient Mannours which were anciently holden by Barony as the head or parcell of a Barony are now in the hands of Gentlemen meane and un-noble by blood who neither doe nor may claime any Nobility or honour thereby But the reason that some former gifts made by the Kings Majesties progenitouâ—s the supreme Soveraignes of this Realme to such as they honoured in augmentation and support of their honour and by honourable services should thus come to the hands of mean personages are twofold First for that such Mannours have been alieued by licence unto such persons before spoken whom such possessions alone cannot make noble Secondly and that was usually such Mannours as were holden by Barony have upon divers eâ—cheasons and occasions come to the Crowne by way of revertor or eschete or forfeit by meanes whereof the ancient tenures derived from the Crowne by reason of those lands so comming again to the Crown were extinct and after the said lands were given or conveyed to others reserving other services than those which at the first were due for the same so that it was no marvaile to see that some Mannours anciently holden by Barony or other honourable service should now bee holden in soccage or by other triviall or meane tenure As to that which was thirdly objected that some ancient Barons there are which have aliened and sold away those Castles and Mannours of the which they have and doe beare the name and dignity and yet neverthelesse themselves doe still retaine and keep lawfully their estate dignity and degree of a Barâ—â— and have been and are called to the Parliament such alienation notwithstanding To this I answer That it is true but it proveth nothing against the former resolution And therefore for better satisfaction of this observation it is to be considered that such Barons either be originally Barons by writ or Barons by tenure Barons by writ in this respect now in hand are of two kindes For either in such writ whereby they or their Ancestors were at first summoned they were named onely by their owne names or else there was addition given them of the principall place of their aboad which was done either for distinction sake to sever them from some honourable person of the same surname or else to give them such honourable title by addition of the place which place notwithstanding was not holden by Barony And therefore if such a Baron doe alien away that place which anciently was his seat he may neverthelesse retain his honourable title in respect had of such a place But if a Baron by tenure doe alien away the honourarable Castle or Mannour holden by Barony unto a mean person not capable of honour and that by sufficient licence so to doe and after the alienour which made such alienation be called by writ to the Parliament under the title or as Baron of such Honour Castle or Mannour so aliened he is not any more a Baron by tenure in respect of that place for that he hath aliened that away which he held by Barony but thenceforth after such writ of summons he is become a Baron by writ and may retaine the name of Baron by title of the place as Baron by writ such alienation notwithstanding forasmuch as the writ directed at the pleasure of the Prince doth give unto him that addition of name and dignity And thus much touching the resolution of the said question and satisfaction of the said objections and of Barons by tenure BARONS by writ which is the second kind of Barons mentioned in the former Divisions of BARONS A Baron by writ is he unto whom a writ of summons in the name of the King is directed to come to the Parliament appoinâ—ed at a certaine time and place to be holden and there with his Highnesse the Prelates Nobility and Peeres to treat and advise touching the waighty affairs of the Realme Tâ—e forme of which writ is much to the effect of the writ before mentioned in the title of Earle which kind of writ is as well directed to the Barons by tenure as Baâ—â—â—â— by creation Patent or otherwise But those which 〈◊〉 Barons by tenure nor by Patent and have onely 〈◊〉 writs are therefore called Barons by writ and upâ—◠〈◊〉 of such writ and place taken accordingly in 〈◊〉 ought to enjoy the name dignity and hoâ—â— of a Baron 〈◊〉 â—ouching the antiquity of Barons by writ onely and â—â—eir first institution I finde little or no mention before â—he time of H. 3. And therefore I conceive that either the first of all or at least that the first frequent use of such Barons was had and devised 49. H. 3. in case of necessity and upon a lamentable
is no heire male at all that may claime the same for then doth this question take place whether the husband of such heire female shall enioy the dignitie in the right of his wife or no wherein wee are to rest upon a resolution had and given in this speciall question which was in this manner In the time of Hen. 8. when Mr. Winbie tooke upon him the stile of Lord Talboys in the right of his wife having none issue by her the said King assisted both by Civill and Temporall Lawyers gave sentence that no husband of Baronesse in her right should use the stile and dignitie untill he had by her a Child whereby he should become Tenant by the courtesie unto her inheritance The speciall reasons that occasioned this sentence were two First it should be inconvenient for her husband this day to bee a Baron and Peere of the Realme and to morrow by the death of his wife to become none and that without the death of the partie Secondly if he had issue by his wife and were intituled to be Tenant by the curtesie of England of the wives land if hee shall not also beare the stile and dignitie of her Barony then should his sonne after the death of his mother dying in the life time of his father bee Baron and Lord without land for so the Father should have the land as Tenant by the curtesie and the sonne the Lordship without Land And thus much said concerning the nature quality and estate of a Baron by writ and for resolution of the severall points and Articles of the question proposed may suffice Barons by Patent which is the third kind of Barons mentioned in the former division of Barons THere is also a fourth meanes of creation by act of Parliament but the first 2. mentiond and this by Patent are most for the honour of the King for thereby the donation doth proceed from his highnes onely as from the fountaine of all honour and dignity but when the creation is by Parliament every one may bee said donator Cookes 8. part 19. A Baron by creation by reason of Letters Patents is that Noble person whom the Kings Maiesty or any of his progenitors Kings of the Realme have created Barons by such their Letters Patents But this manner of creating Barons by Patent began in the Raign of R. 2. who created first Iohn Beauchamp of Holt Baron of Kidderminster by his Letters Patents 8. October anno 11. But Mils saith in 30. H. 6. this was brought in This kind of dignity of Baron shall bee of such countenance in discent or otherwise as shall beelimited in the Habendi in such Letters Patents contained for it may be but for the life of him to whom it is given or for terme de anter vie of some other mans life as some hold opinion in 9. H. 6. 29. for Cujus est dare eius est dispoâ—ere it may be in speciall a generall tayle and this kind of estate tayle was usuall before the Statute made 13. E. 1. by which estate tayle in Lands and Tenements was created as appeareth by the Patent whereby Hubert de Burgo was made Earle of Kent in the time of H. 3. by these words Habend sibi hered suis de corpore Maâ—gaâ—etaeuxoris suâ— sororis Alexandri Regis Scotiâ— procreatis pro defectu talis exitus remaâ—ere rectis heredâ—bus dicti Huberti and that estates in tayle are at this day titles of honour by the Statute of Westm 2. vide Nevils case Cooks 7. part 33. For the better explanation of this kind of dignity the resolution also of certaine questions shall be very requisite Question If a Nobleman and his Progenitors have for a long time been called to the Parliament and be a Baron either by tenure or writ have had in regard thereof a place certaine in Parliament if afterwards the same Nobleman should be created a Baron of that Barony and by the same name by Letters Patents whether shall hee and his heires retaine his old place in Parliament which hee had according to the former dignity or whether shall he lose â—is old place and take a new place according to the time of his creation onely Answer The case of the Lord Delaware received a resolution Coo 11. part â—â—e Lord de la wares case somewhat answerable to this question Tho. Lord Delaware 3. â— 6. being in some displeasure with William West his Nephew and heire who was Father to the now Lord De la ware procured an Act of Paâ—liament by the which the said Wâ—ll West was during his naturall life only clearly disabled to clayme demand or have any manner of right title or interest by discent â—evenue or otherwise in or to the mannor lands tenements or hereditaments title and dignity of Thomas Lord De la wâ—re his Vncle Afâ—er the said Thomas De la ware dyed and the said VVilliam West was in the time of the late Queene Elizabeth restored and afterwards in the 8. yeare of her Raigne was â—teated Lord De la ware by Patent and had place in Parliament according to his creation by Patent for that by the said Act of Parliament in the time of E. 6. hee was excluded to challenge the former ancient Baâ—ony and after hee dyed whether the new Lord Dela ware should take his place to the ancient Barony by writ or according to his Fathers creation by Patent was the question the opinion of the late Queenes Counsell being Her Majesties Atturney Generall and Solicitor were that the acceptance of the new creation by the said William West could not distinguish the ancient dignity in him at the time of his creation but the dignity was at that time by the Act of Parlâ—ament 3. E. 6. in obeyance suspence or consideration of Law and hee thereby utterly disabled to have the same during his life only so as other acceptance could not extinguish that dignity which hee then had not nor could not conclude his hâ—ire who was not disabled by the said Act of 3. E. 6. to clayme the ancient Barony which opinion of theirs was seene and allowed by the resolution of the chiefe Iustice of England and Lord chiefe Baron and so signified unto the Lord Keeper but this is to bee noted by the reasons made for the said resolution that if the said William West had beene Baron and intituled or in possession of the ancient dignity when hee accepted the said creation the Law perchance might have been otherwise but that remayneth as yet unresolved neverthelesse the rule eodem mod quo quid constuitur dissolvitur but by grant which is made a matter in fact a man cannot transferre his title of honour Cook 7. part And thus much concerning the three degrees of Barons within this Realme may suffice to be said in geneâ—all upon this occasion for the better understanding and direction of that which followeth to be handled And in this place I thinke it not impertinent
Steward shall declare unto the people the cause why the King hath assembled thither those Lords and him and perswade him to answere without feare and then hee shall cause the Clarke of the Crowne to read his endictement unto him and aske him if hee bee guilty or not whereunto when hee hath answered not guilty the Clarke of the Crowne shall aske him how hee will bee tryed and then hee will say by God and his Peeres and then the Kings Sergeants and Attourney will give evidence against him whereunto when the Prisoner hath made answere the Constable shall bee commanded to retire the Prisoner from the Barre to some other place while the Lords doe secretly conferre in the Court together and then the Lords shall rise out of their places and consult amongst themselves and what they affirme shall bee done upon their Honour without any oath to bee 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 youngest next him and so of the residue one by one untill hee have asked them all and every Lord shall answere 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 judgement accordingly Stamford Pleas del Coronae 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 waight thereof Cooke Epistle to the 8. part fol. 2. c. 29. beginning thus Nullus liber homo c. nec supereum ibimus nec super eum mittemus nisi per legale judicium parvu ' suorum But I take it to bee more ancient then the time 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 answere directly judgement shall bee given against him as a Traytour convicted and hee 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 hee may bee mute Iâ— appeareth by this Statute of Magna charta that a Peere of the Realme shall bee tried by his Peeres onely in case where hee is indicted at the Kings suite of treason or fellony for the words of the Statute bee Wee will not passe or sit in judgement upon him but by his Peeres But if an Appeale of murder or other fellony bee 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 142. Poulton 188. 6. This Priviledge hath some restraints 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 bee tried by the Peeres of the Realme but by a jury of Knights and other substantiall persons upon their oaths the reason 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 prchibited by the Common and Ecclesiasticall Lawes to bee Judges 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 hee 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 engate 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 a Duke in the life of his Father though he bee called an Earle and it was the case of Henry Howard Earle of Surrey Sonne and Heir apparent 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 Roâ—hester 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 of fellony for the words of the statute be Nec super eum 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. Pâ—ulton 118. and so was Fines Lord Dacres tried in aâ—peale 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 mâ—ke tryall or Enquiry upon their corporall oathes betweene party and party for
Eliz. cap. 18. he nor any other need to make his purgation but shall be forthwith delivered out of prison by the Justices sed quare Poulton 202. b. By the Jmperiall Constitutions Nobiles non torquentur in quibus plebeij torquerentur nobiles non suspendantur sed decapitantur and so it is almost growne into a Custome in England by the favour of the Prince for rare is it to have a Nobleman executed in other forme yet Thomas Fines Lord Dacres of the South in 33. H. 8. and Lord Sturton 4. Mar. were hanged Brooke Iury 48. Jn the first yeare of the late Queene Eliz cap. 1. in the Acts of Parliament for the uniformity of Common Prayer c. there is contained this proviso and be it enacted and ordained that all the Lords of Parliament for the third offence above mentioned shall bee tryed by their Peeres and not by any Ecclesiasticall Courts reade the Statute at large At the Common Law it was lawfull for any Nobleman or ignoble to retaine as many Chaplaines as hee would for their Instruction in Religion but by a Statute made 21. Hen. 8. cap. 13. A restraint was made and a certaine number onely allowed to the Nobility and such Chaplaines for their attendance have Immunities as by the Statute at large may appeare viz Every Archbishop and Duke may have sixe Chaplaines whereof every one shall or may purchase Lycence or dispensation and take receive and keepe two Persoâ—ages or Benefices with cure of Soules and that every Marquesse or Earle may have five Chaplaines whereof every one may purchase Lycence or Dispensation and take receive and keepe two Parsonages or Benefices with cure of Soules and that every Viscount and other Bishop may have foure Chaplaines whereof every one may purchase Lycence and receive have and keepe two Parsonages of Benefices with cure of Soules as aforesaid And that the Chancellour of England for the time being and every Baron and Knight of the Garter may have three Chaplaines whereof every one shall now purchase Lycence and Dispensation and receive have and keepe two Benefices with cure of Soules read the Statute at large And forasmuch as retaining of Chaplaines by Lords of great estates is ordinary and neverthelesse some questions in Law have beene concerning the true understanding of the said Statute J thinke it not impertinent to set downe some subsequent resolutions of the Judges touching such matters If a Bishop be translated to an Archbishop or a Baron to be created to an Earle c. yet within this Act they can have but onely so many Chaplaines as an Archbishop or Earle might have for although he have divers dignities yet he is still but one selfesame person to whom the Attendance and service should be done so if a Baron be made a Knight of the Garter or Lord Warden of the Cinque-Ports hee shall have but three Chaplaines in all sic de similibus Also if such an Officer allowed by the Statute to have one two or more Chaplaines doe retaine accordingly and after he is removed from his Office in this case he cannot be now non-resident or accept of a second Benefice if his Compliment were not full before his remaining and yet in that case it behoveth the Chaplaine to procure a non obstante otherwise he may be punished for his non-residency So if an Earle or Baron doe retaine a Chaplaine and before his advancement his Lord is attainted of Treason as it was in the Case of the Earle of Westmerland after the said Attainder such a Chaplaine cannot accept a second Benefice for though his Lord be still living according to nature yet after the Attainder he is a dead Person in the Law and therefore out of the case to have Priviledge for himselfe or for his Chaplaines If a Baron have three Chaplaines and every one of them have two Benifices and after the Baron dyeth yet they shall enjoy those benefices with cute which were lawfully setled in them before but in this case though the said Chaplaine be resident upon one of his Benifices yet now he is become unpunishable for being non-resident upon the other for cessante causa cessat effectus the same Law is if a Baron be attainted of treason or Fellony or if any Officer be removed from his Office Et sic de similibus vide Actons Case Cooke 4. part Fol. 117. for all those matters A Baron or others of degree of Honour doe retaine such number of Chaplains as are allowed by the Statute and after upon suite and request the said noble person doth retaine more Chaplaines In this Case they that are first retayned shall onely have priviledge nam qui prior est tempore potior est Iure so if a Lord doe at any time retayne more Chaplains then are allowed by the Common Law the lawfull number onely shall have priviledge and in this case which of them first promoted shall have priviledge and the rest are excluded for in equali Iure melior est conditio possidentes Jf a Nobleman doe retayne Chaplaines above the number at severall times if any of his first Chaplains die the next that was then retayned shall not succeed for his first retayner was void and therefore in this Case it doth behove him to have a new retayning after the death of the predecessour and before his advancement nam quod initio non valet in tractu temporis non convalâ—scit If a noble person retaine such a number of Chaplains as is by the Law allowed him but afterward upon some dislike or other cause doe discharge some of them from their attendance or service the Lord in this case cannot retaine others thereby to give them priviledge during the life of them so retained and discharged and the reason thereof is because the first Chaplaines were lawfully retained and by virtue thereof during their lives might purchase dispensations to have advantage according to the statute and therefore if the discharge of their service and attendance might give a liberty to the Lord to retaine others by such meanes the Lords might advance Chaplains without number by which the statute should be defrauded and the said statute must be construed strictly against non-Residents and Pluralities as a thing prejudiciall to the service of God and the ordinary instruction of the people of God These premises are to be read in Cooks 4 part fol. 90. Druries case By the statute of 3. H. 7. cap. 14. it is enacted as followeth viz. Forasmuch as by quarrels made to such as have been in great authority office and of counsell with the King of this Realme hath ensued the destruction of the King and thereby the undoing of this Realme so that it hath appeared evidently when the compassing of the death of such as were the Kings true subjects was laid the destruction of the Prince was imagined thereby and for the most part it hath growne and been occasioned by envie and malice of the Kings owne houshold-servants
the Realme hee is now also a Peere of this Realme and shall be partaker with them in all Priviledges and by consequence his wife widdow and children after him 32. E. 3. 35. in le case de Gilbert Humfrevill But if an Englishman by the Emperour be made Earle of the Empire his wife shall not beare that title of Honour either according to Law or in Reputation All the Daughters of Dukes Marquesses and Earles are by custome of long time used in the Kings Houses or palace named Ladies and have precedencie and place according to the degrees of their parents and so of this custome the Law doth take notice and give allowance for the honour and decencie but neverthelesse in the the Kings Courts of Justice they beare not these titles of Honour no more then the sonnes of such Noble person may doe brothers to such Ladies Finis Nob. litatis 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 ncient 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 the 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 ro 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 11 60. 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 mâ—nus 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 fee 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. Aâ—no 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 Chiese Justice of the Court of â—ommon Pieas 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 â—ay find an able person to go in that expedition for him and the Knight is not compellable by his tenure to go in person as do ordinary souldiers who are hired and entertained by prest money or wages Anno 7. Ed. 3. 296. 600. 8. part fol. 49. b. And see Littleton fol. 20. another reason in this case There have bin many vaâ—rying opinions of Countries of a Knights Fee as you may read in 5. Ed. Cooke 9. part of his Reports fol. 124. where he seemeth to prove that antiquity hath thought that 20. l. in land was sufficient to maintain the degree of a Knight as it appeareth in the ancient Treatise De modo tenendi Parliamentum tempore Regis Edw. filii Regis Etheldred Which also doth concur with that Act of Parliament made Anno 1. Ed. 2. de militibus by which Act of Parliament Census militis The state of the Knight is measured by 20. l. land a year and not by any certain content of acres and with this doth agree the state of Westmin ca. 36 and Fitz-natum Brev. 82. where 20. l. land in socage is put in Equipage with a Knights Fee and this is the most reasonable estimation for one acre may be lesse in value then many others vid. An. 27. E. 3. c. 11. the printed books of the titles of honor 319. M. Selden nata And it is to be observed that the relief of a Knight of all Superiours that are noble is the 4. part of their revenue by the yeer as of a Kt. 5. l. which is the 4. part of 20. l. sic de cet And this doth appear by the statute of Mag. charta ca. 8 as in Cooks 9. report f. 124. b. And because this tenure doth concern service in war the Tenants therfore are named milites a militia For though the word do properly signifie a souldier yet antiquity hath appropriated that name to the chiefest of the military profession vid. Bract. f. 35. b. In our law they are stiled Miles and never Equites yet so that Miles is taken for the selfsame that Chevalier by M. Selden in his Titles of Honour 1. Impression f. 334. Bracton f. â—9 maketh mention of Râ—d-knights that is to say serving horsemen who held their lands with condition that they should serve their Lords on horseback and so by the cutting of a piece of a name as our delight is to speak short this name of Knight remaineth with us Cambden fol. 171. for Armiger scilicet Esquire which is a degree under a Knight was in the Militarie Service Note that he that holdeth by a whole Knights Fee must bâ— with the King by 40. days well and conveniently arrayed for the war Littleton fol. 20. which is to be understood to serve on horseback And in all Nations the name of this dignity is taken of Horses for the Italians calleth them Caveleiri the French-men Chivalers the Germans Roysters our Britains in Wales Morgogh All of Ryding in Latin we call them equites aurati for at their creations beside the sword and girdle guilt spurs were added for a matter of more ornament See the statute of Anno 8. H. 5 C. 3. M. Selden f. 317. and when a Knight doth commit any offence for which he is by the Law to suffer death The use hath bin in the beginning of this punishment to degrade and deprive him publikely of his Honour of Knighthood For it is but life lost or taken away Vide Mills fol. 81. by ungirding his Military girdle by taking away his sword his guilt Spurs cut off with a Hatchet his Gauntlets pluckt off from him and the schochean of his Arms reversed 4. E. 4. 20 Cambden 171 b. and of the degradation of a Knight which was Andrem Horkley under E. 2. who was a Scot born by that King created Earl of Carleile vide Selden his Titles of Honour fol. 337. And by the statute made Anno 24. H. 8. cap. 13. intituled An Act of Reformation of apparell It was permitted for Knights to wear in a Collar of Gold named a Collar of 55. Esses And although this dignity of Knighthood had its originall and was given to men of war yet in all successions of Ages and in all Nations the same also is bestowed on men of peace by Sovereign Kings that in severall Functions and places in the Common-weal be of singular desert wherby the service of the Common-weale at home is levelled and made equall with that abroad for as Tully said truly Parva sunt focis Arma risi est Consilium domi He that receiveth the Dignity of a Knight kneeleth down and the King slightly smiteth him upon the shoulder speaking these words unto him therwithall in French So is Chevalier a nome de dieu that is to say Be thou a Knight in the name of God and then afterwards therupon the King saith Avances Chevalier that is arise Sir Knight vide Hooker al. Vocrell his C. 10. fol. also Selden f. 37. who there speaketh of our Earl Marshal of England for making of Knights for a Knight is not made by Letters pattents or by the Kings Writs as are those of greater dignity but by the sword For this Honour is supposed to be given on the sudain and therfore it is commonly done only by the sword without any pattent but the King may by his Letters Pattenâ—s create a Knight Earls in ancient time had power in Knighthood M. Selden title Honors fol. 136. But now neither may the Prince nor any other of the Nobility make a Knight but only the King or his Lieutenant by Commission hereof vide Cook 6. part Dyer reports f. 74. b. No man is born a Knight Selden f. 3. 18 as he may be to titles of Honour Causa patet But a Knight may be made so soon as he is baptized as in that book is mentioned excepts Knights Barronets whose posterity doth receive that title by discent with some limitation as in the Kings Books therof may appear Note also in the said Titles of Honour fol. 318. and 313. the first Knight made in England With us in England there are divers sorts of Knights wherof Camden fol. 171. and Mills do write at large but my purpose is only to speak of one order of them amongst the Romanes there was but one Order of them And these were next in degree to the Senators themselves as with us they are to the Barons and they who simply without any addition be called Knights howsoever they are in Order ranked last yet by institution they be first and of greatest antiquity and the other attributes according to the severall inventions of particular Princes And I do not
the Court. And after that the other Champion was brought in like manner at the South-side of the lists with like congies by the hands of Sir Henry Cheney Knight and was placed on the Northside of the Barre and two Serjeants being of the counsell of each party in the midst betweene them this done the Demandant was solemnly called againe and appeared not but made default Burham Serjeant for the Tennant prayed the Court to record the non-suite quod factum fuit and then Dyer chiefe Iustice reciting the Writ and Count and issue joyned upon the battaile and the oath of the Champion to performe it and the prefixion of his day and place did give Iudgement against the Demandant and that the Tennant should have the Land to him and to his heires for ever And the Demandant and his pledges de prosequendo in miserecordia Reginae and afterwards solemne Proclamation was made that the Champions and all other there present which were by estimation four thousand persons might depart in the peace of God the Queen Et sic fecerunt magna clamore vivat Râ—gina vid. Dy. 30. Also if false Iudgement bee given in the county in the Sheriffes Court then the Writ shall be directed unto the same Sheriffe and the writ shall bee thus viz. Henricus c. vic Lincoln ' saltum si Jo Afec ' tunc in pleno Comitat. tuo recordari fac ' loquar que est in eodem Comitatu tuo per bre ' nostri de rectâ— inter Iohannem a pretend W. B. tenent ' de vno messuagio centum acres terrae cum pertinend in Com unde idem Io acqueritur falsum sibi factum fuisse Iudicium in eodem recordo illud litter ' coram Iustic ' nostris apud Westm ' tali die sub figillo tuo et legales milites ejusdâ—m Com' illis qui record ' illi interfâ—enunâ— som ' per bonos somonon ' pred ' B. quod tunc et ibi auditurae recordum illud et habeas ibi sun ' nostra quatuor militum et hoc â—re ' Fitz. H. Nat. bâ— ' et ibid and these foure must be Knights indeed Also the Iustices upon consideration of the usuall words in every Writ of Venire facias which by precipimus tibi quod venire facias câ—ram c. 12. tam milites quamalios liberos et legales homines c. Say that these words tam milites were not at the first put into the Writ without effect Plowden fol. 117. b. For it seemeth that in diebus illis some Knights were returned upon every Venire facias By the Statute of Magra Charta cap. 12. It is ordained that Assizes of Novell diseisin and Mort. Dancestor should not be taken any where but within the Connties where they happen If a Tennant doe lay an essoyne de malo lecti he may have a Writ out of the Chancery to warrant it by which it shall bee commanded to foure Knights to view him and if they see himsicke then they are to give him day to the end of a yeare and a day Finches booke 87. b. note the Register fol. 117. b. quod corceraiur non obligatur nisi sit miles c. juxta fornam statuti Westm 1. cap. 10. Stamfords pleas fol. 40. It is a received opinion that Knights are excused from attendance at Leets Britton â—9 and 36. is cited to p rove it and by a large understanding of the intent and meaning of the Statute of Marlbr cap. 10. For the ancient Common-law hath such respect unto the degree of knight-hood that they or their eldest sonnes were not compellable to find pledges in the Leet or Law-dayes For the Statute of Marlbr aforesaid was not introductive legis For it was before the Conquest vide the Lord Chancellors speech fol. 77. and the Common-law by this Statute is not alleadged and to that effect vide Finches Booke fol. 132. a. and Bro. tit fol. 39. and to the booke called the Mirrour of Iustice mentioned in the Preface to Cooks uinth part it is said that Knights are excepted and so it appeares that the practise was as well before as immediatly after the making of that Statute of Marlb and interpretation practica a ptinciple way and forme of interpretation of Lawes The Lord Chancellors speech in the case of Post-nati 34. and in Divinity Propter sanctorum est interpretes preceptorum â—bidem 66. But a Knight and superiours and inferiours are bound by Law to take notice of the proceedings there For if a man be out-lawed for felony at a Countie Court and one of the same County not knowing of the felony doth receive him hee is accessary 13. 14. Eliz. Dyer 355. a. et Stamford 96. et 41. Eliz. Also when the King doth summon to his Parliament Writs shall bee sent to the Sheriffe to make choice of Knights for every shire in this forme Rex vic' c. saltim quia nostri Consilii pro quibusdam arduis urgentihus negotiis nos statum et defensionem regni nostri Angliâ— Ecclesiae Anglicanae concernen ' quoddam Parliamentum nostrum apud civitatem nostram Westm 12. die Novembr prox futur ' teneri ordinavimus et ibidem prefatis magnatibus Proceribus dom ' regni nostrâ— colloquium habere et tractare tibi precipimus fiâ—miter iujungentis quod facta proclamatione in proximâ— tuo poâ—t receptionem hujus litteris nostris tenen â—â— die loco praedict ' dâ—os milites gladiâ— cinctis magis idoneos discret ' com' praedict ' c. electionem illam in distâ—ncte aperte sub sigillo tuo sub sigillis â—orum qui electioni illi interfuerint nobis in Cancellaria nostra locum certisices indilate Cromptons Courts 1. b. vide Stat. de Aâ— 23. H 6. cap. 15. Where amongst other things it is enacted that the Knights of the Shires for Parliaments hereafter to bee chosen shall bee naturall Knights of the same County for the which they shall bee so chosen or otherwise such naturall Esquiers or Gentlemen being of the same County as shall bee able to bee Knights vide Plowden fol. 121. Peeres are by intendment of Law sufficient of Freehold and that is one of the reasons whereof no capias or exigent lyeth against him for debt or trespaâ— but the Law hâ—th not that opinion of the Knights sufficiency of Freehold for â—ee may bee a Knight Sans terrae therefore 26. H. 8. 7. a. Brooke Exigent 72. and then hee is to bee returned of any jury or inquest howsoever hee may bee worthy and sufficient to serve the Common-wealth in Marshall affaires The wives and widdowes of Knights in legall proceedings and in Courts of Iustice have not the titles of Ladies as the wives or widdowes of Noblemen have but that title by the curteous speech of England And if in any action they be not called Ladies for that cause the writ shall not abate for that surplusage
Anno 8. H. 6. 10. because Dominae is generally aâ— men Domini so women after 14. yeares of age called Dominae Ladies or Dames and which were antiently navigeable women were called Dominae and by our English Poets Dames First Dominae is often for women generally as speciall Honour for that sex not being out of use with us at this day nor with the French as also amongst the Italians Dominae for them is familiar vide Seldens title of Honour 1. part fol. 53. But if shee bee named Countesse or Baronesse shall abate the writ 14. H. 6. 2. And Cookes 6. part des reports 53. b. By the statute of Magna charta cap. 21. Knights are free from cart taking that no Demeasne cart of them shall bee taken By the statute of 1. Iac. cap. 27. It seemeth that Knights may keepe Greyhounds and setting Dogges or Nets to take Pheasants or Partridges in though they cannot dispence 10. l. per aâ—num nor bee worth 200. l. For the expresse words of that statute are that all the Sons of Knights are excepted Observations concerning a Knight Batchelour A Knight Batchelour cannot claime the priviledge that Knights have from cart-taking by Magna châ—rta cap. 21. A Knight Batchelours Sonne cannot keepe a Greyhound because hee is not within the statute of 1. Iac. cap. 27. unlesse hee have 10. l. Lands c. Quaere whether the Knight Batchelours addition doe abate any action c. If one hee Knighted in the life time of his Father it frees him of wardship but e contrario of a Knight Batchelour Knights are excused from attendance at Leets but so are not Knights Batchelours Of Esquires ALthough by the Civill Law there bee no Gentlemen of title under Knights but all the rest went under the name of people yet with us there are in the ranke who have names of preheminence whereby they are in degree above the rest as Esquiers and Gentlemen all which give ensignes or coates of armes and thereby are distingnished from the meaner sort of people in which respect Bartol Tract de Insignis calleth Noble but of a weake Nobility for it hath no further prerogative in it then that it makes them differ from the baser sort of people Of these two sort of Gentlemen with us the Esquire hath the Prerogative priority but it seemes if an Esquire bee named Gentleman or a Gentleman bee named Esquire it is no vice in legall proceedings Brooke additions 44. Esquire seemeth by the Common name wee give him in Latine to have had his originall either for that hee carried the armour of the King Duke or other great personage as wee see not onely in the Scriptures as Saul and Jonathan had their armour bearers but in Poets and other Prophane stories Patroclus was Achilles his armour bearer and Clitus great Alexanders whereupon some write that hee whom wee call Armiger in Latine is a Foot-man that with a speare shield or head peece followeth an armed Knight in battaile or rather as some others suppose It is the Foot-man himselfe armed in the field but howsoever the word bee taken this is sure those men were of good accompt in old time as those who wonne themselves credit out of warre and so their estimation remained unto their posterity And as those were in time before so are these which are in our dayes as descending for the most part from their worthy Ancestours and our bookes of the Common Law doe distinguish them thus that is to say Knight-hood is a dignity but Esquires and Gentlemen are but names of worship An. 14. H. 5. And Brooke in his Abridgement in that case T it nosmer de dignity 33. saith to bee a Knight est Gradus but to bee an Esquire or Gentleman est Status For Gradus continet Statum in se non e contrari vide Thesoal 105. concerning this word worshipfull read in the printed booke Master Seldens title of honour Prima pars fol. 124. sequentia In time past every Knight had two of these waiting upon him they carried his morion and shield and as inseperable Companions they stuck close to him because of the said Knight their Lord they had certaine lands in escuage like as had the Knight himselfe who held them of the King by Knights service The beginning of armes in Europe amongst Christians is supposed from the holy warres for the Turke paint them not and so with us about H. 3. They became more hereditarily established and when the Prince enabled any hee gave them the particuler of his bearing in Blason Master Seldâ—n in his Preface fol. 5. where you may also see an example in the Raigne of R. 2. But now adayes there are five distinct sorts of these for those whom I have spoken already bee now no more in any request the principall Esquires at this day are accompted those that are elected Esquires for the Princes body The next unto them be Knights eldest Sonnes successively In a third place are reputed younger Sonnes of the eldest Sonnes of Barons and of other Nobles of higher estate and when such Heires Males failes together with them also the title faileth In a fourth ranke are reckoned those unto whom the King himselfe together with the title giveth armes or createth Esquires by putting about their necks a silver Collar of S. S. and in former times upon their heeles a paire of white spurres silvered whereupon at this day in the West part of the Kingdome they are called white spurres and to the first begotten Sonne onely of these doth this title belong In a fift and last place be those ranked and taken for Esquires who have any superiour publike office in the Common-wealth or serve the Prince in any worshipfull calling at the Coronations of Kings and Queenes Knights of the Bath are made men of worth and honourable blood to the end that their Majesties may bee accompanied in their owne honours every of which Knight having two Gentlemen to attend him in that Ceremonie who are ever after enabled by that service to be Esquires during their lives But this name of Esquire which in ancient time was a name of charge and office only first crept in amongst other titles of dignity and worship so farre as ever I could observe In the raigne of R. 2. Camden fol. 176. vide Sir Thomas Smith de republica Anglorum fol. 26. where saith he that the Esquire is no distinct order of the Common-wealth and hereof see the statute of An. 16. R. 2. cap 4. and an ejusdem Regis cap. 2. A Serjeant of the Kitchin in the Kings house may beare the name and addition of Cooke or of Esquire by the opinion of Newton But Ienny said that such officers of the Kings House-hold would be much agreved if they should be named by their trade or occupation Paston peradventure saith in that case the writ may be good because of the Statute Anno 1. H. 5. cap 5. For the Statute is That hee shall be named