Being arraigned of felony in an Appeale he shall not be tried by his Peeres as in case of Inditement in which case he may not challenge any of the Triers either peremptorily or upon causes which is permitted to all other common persons The Iudgment is the vsuall Iudgement given against common persons and though the King pardon all but the losse of his head that is of speciall grace not ex debito By Attainder the blood is corrupted and he and his posterity made ignoble Stam. lib. 3. cap. 34. and cannot be restored by the Kings pardon but onely by authoritie of Parliament And note that Nobility is not a thing substantiall but meerely accidentall present or absent without corruption of his subject for experience shewes that honourable titles are restrained by exorbitant crimes when the nature in the meane while cannot be thrust out with a forke wherefore though we tearme extinguishment of Nobility in cases of Attainder yet this phrase is not vsed as though Nobility were essentially in the homour of the blood more then any other hereditary faculty But because the right of inheritance which descends by communication of blood is by that meanes determined and also in regard of the detestation of the crime it is called corruption of blood 16. Eliz. Dyer 332. The Lord Charles Flowards case if one be made a Knight by a forraign King he is so to be stiled in all legall proceedings in this Realme But if he be created by the Emperour an Earle it is other wise Coke 7.16 If the King Create the son a Duke c. and the father dies he within age shal be in ward but if he had bin made a Knight in his fâ—â—hers life he should not be in ward neither for the lands descended nor marriage Coke 74. Drueries Case though he be within age Nobilitie and Lords in reputation onely THere be other Lords in reputation and appellation who neverthelesse are not Iure neither can they enjoy the priviledges of those of the Nobilitie of the Parliament viz. The Sonne and heire of a Duke during the life of his father is onely by curtesie called an Earle and the eldest sonne of an Ea. a Baron but not in legall proceedings Br. Treason 2. Coke 8-16 But the King may create them in the life of their Auncestors Lords of the Parliament A Duke or other of the Nobilitie of a forraign Nation being named Duke in Letters of safe conduct that makes him not Duke to be sued by that name in England but a forraigne King ought so to be stiled though he hath not merum imperium out of his owne Kingdome Cok 7.15 c All the younger Sonnes of the King of England are Earles by birth without other creation and onely Lords by reputation A Lord of Ireland or Scotland though he be post-natus is but onely Lord in reputation Noble Women ALthough Noble Women may not sit in Parliament in respect of their Sexes yet are they in Law Peeres of the Realme and may challenge all Coke 8.53 or most of the former Priviledges But the opinions of some have been Crompt Iust de peace 85. that they cannot maintaine any Action upon the Statute of 2. R. 2. cap. 2. de Scand Magnat because the Statute speakes onely of other Sexes If any of the Kings servants within in the Checkroll conspire the death of any Noble woman that is not felony within the Statute of 3. H. 7.13 Honourable women of three sorts By Creation Descent Marriage H. 8. Created Anne Bullen Marchionesse of Pembrooke King James Created the Lady Compton Wife to Sir Thomas Compton Countesse of Buckingham in the life of her said Husband without any addition of honour to him And formerly by Patents openly read in Parliament without any other investure did Create Mary sole Daughter and heire of the late Baron of Aburgauen Camden 63.6 Baronesse de le Spenser Noble Women by Descent are those to whom lands holden by such Dignitie doe descend or whose Ancestors were seized of an estate descendable in their Titles of Dukedomes c. or those whose Ancestors were summoned to the Parliament by this an Inheritance doth accrue to their posteritie They who take to Husband any Peere of the Realme though they themselves were not noble Fortescue fol. 100. Question hath bin made whether the Dignitie of one suÌ„moned to the Parliament dying without issue male may descend to the female but this may appeare by the former Treatise Concerning the title of Honour descendable to the Heire female it is cleere that such offices being of estate of inheritance doe descend as the office of the high Constableship of England challenged tempore H. 3. by the Duke of Buckingham was adjudged to descend to the Daughter of Humfrey Bohun Earle of Hereford So the office of Earle Marshall descended to the house of Norfolke all which offices are as unfit to be exercised by their sexes as unfit for them to be summoned to the Parliament And if such Title come in competition the issue shall bee tried by record and certified by the Kings Writ and not by Jury Coke 6.5 3.7 part 15. Though all Daughters be Coperceners and make but one Heire yet in descent of Dignities it is otherwise for they bee things entire participating of superioritie therefore descendable onely to the eldest And so is the Civill Law yet there was a Judgement tempore H. 3. touching the descent of the Earledome of Chester Obijt 17. H. 3. the Earle dying without issue leaving his Sisters his Heires The Judgement was that it should be divided equally among Coperceners But this Judgement was held erroneous in that very age Vide Bract. li. 2. cap. 34 fol. 76. hoc fuit injustum c. His reasons are because the honour of Chivalrie chiefly consisting in the Nobilitie may not be divided for by multitude of partitions the reputation of Honours in such succession must bee impaired and the strength of the Realme being drawne into many hands by such partition much infeebled In which resolution Britton by commandment and in the name of E. 1. accorded fol. 187. The former Judgement was given about 17. H. 3. And the Writers of that time testifie that it came holy unto Iohn Scot Son of David Earle of Huntington and Anguish and Maude the eldest Sister of the said Randolph if it were given upon the death of John Scot who died without issue about 24. H. 3. yet it stood in force because the King assumed the Earledome to himselfe upon other satisfaction to the coperceners Mat. Par. 366. tamen vide Mills 75. Guillem 28. Hugh Lupus the first Earle of Chester was by the Conquerour his vncle created into that dignitie Mills 74.75 Coke 35.7 part 15. habend fibi c. adeo libere per gladium sicut Rex ipse tenuit Angliam per Coronam c. he died without issue and the Earldome divided among his 4. sisters If she be noble
by birth though she marry vnder her degree she remaines noble but those innobled by marriage and after marry with a man of meaner degree utterly lose her former dignitie Fortescue 100. Cooke 6.33.4.118 It was the case of Ra. Howard Esquire husband of the widow of the Lord Powes against the Dutches of Suffolke the Writ naming her Ladie Anne Powes Dyer 79. so also in Qu. Maryes times when the Dutches of Suffolke married Stokes bre Bro. 146. digest lib. 1. Tit. 9. for the dignity accruing by marriage is but in fait and not by any record Coke 6.53 Coke 4.117 Cawells instit lib. 1. Tit. 10.15 So long shall a Dukes wife be called Dutches and an Earles Countesse and enjoy all honours appertaining to that estate with tasting kneeling serving c. And a Baronesse and Knights wife saluted Lady Quamdiu matrimonium aut viduitas vxoris durant except she elope for as then every woman shall lose her dower so being advanced by titles of dignitie by that husband by such elopement loseth them If a Ladie which is married come through the forrest shee hath no priviledge by the Statute but a Dutchesse or Countesse during the time she is vnmarried may Crompt Juris dict 167. Such Ladies whether they be married or sole upon Indictment shall be tried per Peeres by the Statute of 20. H. 6. cap. 9. it being a declaration of the common law Coke 6.52 By the Civill Law Si filia Regis nubat alicui Domino vel Comit. dicetur tamen semper Regalis Among Noble women there is difference of degrees and according to their qualities the law gives speciall priviledges as followeth by the Stat. of 25. of E. 3 2. it is high Treason to compasse or imagine the death of the Queene or to violate the Kings companion The Kings Spouse is a sole person in law to purchase c. plead and be impleaded Coke 4.23.6 Theboal lib. 1. cap. 4 24 E. 3.3.8 Bract. 363. And of such acts of Parliament as concerne her the Iudges ought to take notice Coment 231. a Coke 8.28 In some cases she shall have Prerogative as the King himselfe See the case of Wardship 5. E. 3.4 Stamf. prerog cap. 2. The Qu. Wife to the King or widow shall not be amerced if she be non-suited whereas all other subjects shall for she shall participate with the Kings prerogative Coke 8.62 but not in all cases for the subject shall not sue to her by Petition as to the King 11. H. 4 67. Stamf. prerog cap. 22. Against the King Nullum tempus occurrit otherwise of the Queene 18. E. 3.2 Philippa Regina Angl. Ibid. fol. 1. 13. Stam. prerog 18. In 21. E. 3.6 A Protection was allowed against the Queene In a Writ of dower against Isabel Qu. of England mother to the then King the Iudges were of opinion that shee was not to answer to any Writ but said they to the plaintife it behoveth you to go to her by Petition to whom the Demandant Dixit graits and prayed the court for a continuance of the action vntill shee might speake with the Queene But they nor the Queenes Councell would agree that the Qu. should be accepted as answerable 10. E 3.379 The Wife of the Kings eldest Son hath some prerogative not communicable to the Wives of other Noblemen for by the Statute of 25. E. 3. It is high Treason to violate her Dutchesses also and Countesses have speciall honour appertaining to their estates as kneeling and tasting which things I leave to the Heraulds The Statute of 7. Iac. cap. 6. intituled an Act for the administring the oath of Allegiance requireth those of 18. yeares or above to take the said oath The title is for administration of the Oath c. and reformation of married women Recusants Ladyes in Reputation THe Wife or Widow of the sonne and heire of a Duke or Earle in the life of his Father is a Lady by Curtesie and taketh place according to the antient time as they have beene permitted by their Soveraigne Prince and allowance of the Herauld But in legall proceedings they are not to have such Priviledge If a Noblewoman of Spaine come into England by a safe conduct or c. And so stiled in the said Letters yet is shee but a Lady in reputation And English woman borne taketh to Husband a Spanish or French Duke though hee be made Denizen yet shall she not beare the title of Dignitie in legall proceedings A German woman is married to the Marquesse of Northampton or c. unlesse she be made Denizen shee cannot claime the priviledge or title of her Husband no more then shee can claime Dower or Joynture An English woman doth take the Earle of Kildare in Ireland to her Husband or if a Lord in Scotland though hee be post natus c. their wives shall not aprticipate their Husbands Dignities But if the King Create one of his Subjects naturalized by Parliament to be Viscount Rochester within England and after summon him to the Parliament by Writ and assigne him place there by this is he made Peere of the Realme and partakes with them of all Priviledges and by consequence his Wife Widow and Children after him E. of Angus in Scotland 34. E. 3.35 Gilbert Humfrevils case But if an English man be made by the Emperour Earle of the Empire his Wife shall not beare that title either according to law or reputation All Daughters of Dukes Marquesses and Earles are by custome long used in the Kings Palace to be named Ladies and to have precedencie according to the degrees of their parents and of this custome the Law taketh notice But neverthelesse in the Kings Courts of Justice they beare not this title of Honour no more then the Sons of such noble personages Brothers to such Ladyes may doe The Hypothesis or particular Question WHether the Dignitie of Aburgavenny Sit conjuncta feodo and such as ought to descend to the speciall Heire male seized of the Castle bearing the head of that Barony and of the lands that make that Honour Or whether the Dignitie Name and Stile to be Baron of Aburgaven ought to descend to the generall Heire male who is not interessed in the said Castle or honour For the more orderly proceeding herein to avoid confusion and that every thing appeare concerning his question in his proper person There shall be shewed First that the Barony is a Barony by by tenure a very antient Honour and no Barony by Writ onely whereof will ensue by the former Declaration in the treatise of Barony That the dignitie and name de jure ought to go and descend with the Castle and Honour so holden as long as the same shall or may continue in the name blood and line of such as are nobly descended and may support the same There shall be Proved Secondly That the said Barony of Aburgav and the name title and dignitie of Lord and Barony of Aburg de facto
priviledges which I find mentioned in the Lawes of this Realme purposely omitting such as either the Civill Common or the lawes of forraigne Countries doe afford referring them to a fit place in an intended Treatise of Nobilitie Priviledge First therefore it is a priviledge that the Peeres and Nobilitie of the Parliament doe enjoy namely to bee tried in the cases of Treason Felony Mag. Char. 29 10. E. 4.6.20 H. 6. cap. 9 and such like by their Peeres The antiquitie and originall of this kind of triall hath as some men doe thinke his ground from the Statute of Magna Charta cap. 29. beginning that Nullus liber homo in these words Nec super eum ibimus nec super eum mittimus nisi per legale judicium Parium suorum But I take it to be more antient Triall by Peeres Where allowable De consuet feudorum as brought into this Realme with the Conquerour being answerable to the Norman and French lawes and agreeable with the customes severall where almost all controversies arising betweene the Soveraigne and his Peeres are tried per judicium Parium suorum This Triall in antient time was very oft had in Parliament as may bee collected by the Statute of 15. E. 3. cap. 6. 15. E. 3. cap. 6. 1. H. 4.1 13 H. 8.11 But neverthelesse the same may as well be performed by Commission under the Lord Steward of Eng. the forme manner and Solemnitie wherof is expressed in the bookes of Law This priviledge hath some restraint as well in regard of the person The restraint of the praviledge as in the manner of proceedings As touching the person First the Archbishops of this Realme although they bee Lords of the Parliament if they bee impeached of such assent as aforesaid shall not be tried by the Peeres of this Realme but by a Jury of other substantiall persons upon their oathes the reason thereof as I can conceive as before remembred 27. H. 8. Br. Inquest 100 Triall 142. Fine 2. Stamf. 153 namely for as much as the Archbishops and Bishops cannot passe in the like cases upon the tryall of any other of the Peeres for that they are prohibited by the Ecclesiasticall lawes to bee judges of life and blood reason would that the other Peeres should not trie them for this triall should be mutuall forasmuch as it is performed upon their Honour without any oath taken Secondly as touching the person 38. H. 6. Br. Treason none but Lords of the Laytie being Lords of the Parliament 38. H 8. Case Leo. Grey en leâ— Con. shall have this kind of Triall And therefore hereout are excluded the eldest Sonne and heire apparent of a Duke in the life of his Father though he be called Earle beare that title Likewise the eldest Sonne and Heire apparent of an Earle though he be onely a Lord or Baron or beare such Title Those that are Barons and of the Nobility of Ireland 19 20. Eliz 36.6 if upon the like offence committed in Engl. if they chance to be apprehended in Engl. they shall not be tried herein by their Peeres For the Lords of the Parliament of England are not their Peeres but the Lords of the Parliament in Ireland And thus much concerning the Restraints of the said priviledges in respect of the person As touching the manner of Proceeding the Nobilitie of this Realme doe injoy the priviledge of triall by their Peeres in Course of Inditement onely 33. H 8. Br. Iurors 48. Triall 142. 10 E. 3.6 Stam 152. which is a kind of proceeding ex officio between the Qu. highnesse and them But in any case of Appeale of felony which is in the suite of the subject they shall not have the same but shall be tried by a Jury of 12. men upon their oathes And thus much concerning this priviledge at this place and upon this occasion may suffice Likewise this priviledge the Nobility of this Realme doe enjoy PrivilegiuÌ„ secundum 48. E. 3.30 48. Assis 6. 35 H. 6.46 22. H. 8.22 Reg. 1 79. 15 Eliz. 315. That they are not so to be inpannelled in any Jury or inquest to make triall or inquiry upon their corporall oathes between partie and partie And if they be impannelled contrary thereunto they may have a writ out of the Chancery repeating this priviledge directed to the Iustices before whom such noble personages are impannelled commanding them to dissmisse him or them that were so impannelled out of the said Pannell This priviledge hath restraint in two cases Restraint 1. first if he inquire concerning the King and CoÌ„mon-wealth in any necessary and important Decrees as businesse of this Realme then this priviledge is not allowed nor taketh place And therefore divers Barons of the Marches of Wales were impaÌ„nelled before the Bishop of Ely and other Commissioners of Oyer and Terminer to inquire of notable outrage committed by Gilbeâ—t de Clare Earle of Gloucester against Humfrey de Bohun Earle of Pereford and Essex and his suits in Wales in the 20. yeere of E. 1. where Iohn de Hastings Edmond de Mortimer Theobald de Verdune and other of the Barons of the Marchâ—s of Wales challenged their priviledges aforesaid and much insisted upon the same but it was afterwards answered by the Court as by the words of the appeareth 20 E. 1. Rel. 14. Camera Scar. Eo quod res ist a dominum Regem coronam dignitatem suos tangit deinde fuit ex parte domini Regis IohaÌ„nt Hastings omnibus alijs magnat supranominat quod pro statu jure regnt Pro conservatione dignitatis Coronae pacis suae opponant manum ad librum ad faciend c. quod eis ex parte Domini Regis injungentur c. The Barons aforesaid neverthelesse did persist in their Challenge and in the end both the said Earle betweene whom the said outrage had heene perpetrated submitted themselves to the Kings grace and made their Fines Secondly Restraint 2 this priviledge hath no place in case of necessitie where the truth can no otherwise come to light for the Writ is Regist 179. Quia Barones in Assissis jurat c. poni non consuêrunt ut dicunt nisi eorum Sacrament adeo sit necessarium quod sine illis verit as in qua non possit tibi praecepimus c. In many Cases the Protestation of honour shall satisfie in Noblemen Privileg 3. Bract. l. 5. cap. 9. fol. 352.8.3.1 H. 4.1.13 H. 8.1 3 H. 6.48 Cooke 6.53 as in triall of their Peeres they proceed upon their honour not upon their oath And if a Nobleman on an action of debt upon an Accompt in case where the Plaintife is to be examined upon oath upon the Statute of 5. H. 4. cap. 8. it shall suffice to examine his Attorney and not himselfe upon his oath Yet if a Nobleman will give evidence to a Jury reason would that he should bee sworne