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 [Page 10] 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 pas [...] 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 [...]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 [Page 11] 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 SonneBut 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, 20^s and no more, and of every 20^• of Land, holden of the King without mean in soccag [...] 20^s, and no more, and so rata pro rata of the Lands in soccage. And for Lands of the [...]enure of Chevalry, according to the quantity of the Fee.

By another Statute, made in the said 25. yeer of Ed. 3. [Page 12] cap. 2. amongst other things it is declared, that to compasse or imagine the death of the Kings eldest Sonne and Heir, is crimen laesoe Majestatis, high treason, or if a man do violate the Wife of the Kings eldest Sonne and Heir, it is high treason, and see the Statute 20. Hen. 8. cap. 13. And so was the ancient common Law of England, and not a new Law made by this Statute, Cooks 8. Part. 28. 6. But this Statute is a manifestation and declaration, or publication of the ancient common Law in this Case.

By a Statute made in the said 25. yeer of King Ed. 3. It is declared, because the people be in ambiguity, and doubt of the children born in the parts beyond the Sea, out of the Kings Legiance of England, should be able to demand any inheritance, within the same Legiance or not. Whereof a Petition was put into the Parliament late holden at West­minster the 17. yeer of the raign of our Soveraign Lord the King assembled in this Parliament, and was not at the same time wholly assented. Our Soveraign Lord the King willing that all doubts and ambiguities should be put away, and the Law in this case declared, and put i [...] a certainty, hath charged the said Prelates, Earls, Barons and other wise men of his Counc [...]ll assembled in this [...], to deli­berate upon this point, who with one asseur hath said, That the Law of the Crown of England is, an [...] alwayes hath been such that Les Enfants du Roy, the children of the King of England in whatsoe [...]e [...] part they be born, in Eng­land, or elsewhere, be able, and ought to bear the inheri­tance after the death of their Ancestors, which Law our Soveraign Lord the King, the said Prelates, Earls, Barons and other great m [...]n, and all the C [...]amons assembled in this Parliament, do approve and affirm for ever.

Note, These words in the Statute, Les Infants du Roy, [Page 13] have briefly set down, and in a vulgar manner, for loquen­dum ut vulgus, and not in form of exquisite pleading for sentiendum ut docti, and therefore ought to be understood largely, Cooks 7. part. 11. 6. and as the Latine word liberi is with the Civilians, Bract. lib. 2. cap. 29. hath these words, Item descendit jus vero beredi ubicunque natus fuerit, vel in utero matris, intra mare, vel ultra: Nec potest sibi aliquis facere heredem, quia solus Deus heredem facit. The right doth descend unto the true Heir, wheresoever he shall be born in the Womb of his Mother on this side the Sea, or beyond, no man can make an Heir unto himself, because God only doth make the Heir, read the Statute, and Cook 7. part. 18. a. Where you shall see that though generally, the birth place is observable, yet many times Legiance, and obedience with­out any place within the Kings Dominions may make a Subject born, for though we see by experience almost in every Parliament, Ambassadors, Merchants, and the Kings souldiers doth shew there in such causes, to have their chil­dren naturalized, or made denizens; yet that doth proceed onely of doubt, and needlesse sc [...]pulosity and ignorance of the Law; even as we see men that are doubtfull, desire to be resolved, as may appear by sundry covenants in bargai­ning, more then necessary. And by renuing of Chartes, though there be no forfeitures; and by suing forth par­ticular pardons, when a generall is granted by Parliament, Priests, and Ministers sue to the Parliament, for legitima­tion of their children.

And in the Articles confirmed by Parliament, touching the marriage between Philip Prince of Spain, and Queen Mary, a speciall proviso was, to barre him from being Tenant by the courtesie of the Crown, in case he should have issue by her, and survive, which was superfluous; be­cause [Page 14] the Common-Law would have denyed this last point. See the Lord Cromwels Speech in the case of the Postnati, fol. 36

But note that if an Alien Enemy come into this Realm, and his Wife Engiish, or stranger, be delivered of a childe within England; this childe notwithstanding his birth­place is an Alien born, for want of allegeance in the Parents, Ibidem.

King Henry did create Edward his eldest Sonne the first Prince of Wales, and did give unto him the dignity and Dominion of it, to be holden of him and his Heirs, Kings of England; and after that time, the eldest sonne of the King of England hath been Prince of Wales, and as incident to the State and dignity of a Prince, and might make Laws and Statutes, and use jurisdiction and authority, as amply as any King of that Nation could do. Plowden. Cooks 7. part. 21. 6. Vide Mills, fol. 312. 126. For Wales was a Kingdom in ancient time. But in a Statute made in the 12. Ed. 1. Wales was united and incorporated into Eng­land, and made parcell of England in possession. And note in Tho. Mylls 112. the devise of the said King was to draw the Welchmen to acknowledge the Kings eldest Son, Ed­ward of Carnarvan to be their Prince.

Also by another Statute made 27. Hen. 8. cap. 24. a gene­rall resumption of many liberties and franchises heretofore, taken or granted from the Crown, as the authority to par­don Treason, murther, man-slaughter, and fellony, power to make Justices in Oyre, Justices of assize, Justices of peace, Goal delivery, and such like; so that from thenceforth, the Kings eldest Sonne, hath only the name and stile of Prince of Wales, but no other Jurisdiction then at the Kings plea­sure is permitted him, and granted by his Letters Patents, [Page 15] as by the tenour thereof following, made by King Henry the eight, to Edward his sonne, and heir apparent may appear.

Henry, By the grace of God King ofIreland was before, 33. Hen. 8. a Lord­ship, and now is a Kingdom, and the King of England, was as absolute a Prince and Sove­raign, when he was Lord of Ire­land, as now when he is stiled King of the same, Cooks 7. part. England, and of France, Lord of Ire­land, &c. To all Archbishops, Bishops, Abbots, Priors, Dukes, Earls, Barons, Justices, Viscounts, Governours, Mini­sters, and to all our Bailiffs, and faith­full Subjects greeting, out of the excel­lency of Royall preheminence, like as the beams from the Sunne, so doth infe­riour honour proceed; neither doth the integrity of Royall lustre, and bright­nesse by the naturall disposition of the light-affording light, feel any losse or detriment by such borrowed lights; yea, the Royall Scepter is also much the more extolled, and the Royall Throne exalted, by how much more noblenesse, preeminences, and honours, are under the power and command thereof.

And this worthy consideration allureth, and induceth us with desire to the increase of the name and honour of our first begotten, and best beloved Sonne Edward, in whom we behold and see our selves to be honoured, and our Royall House also, and our people subject to us, hop­ing by the grace of God (by conjecture taken, of his gra­tious future proceedings) to be the more honourably strengthned, that we may with honour prevent, and with aboundant grace prosecute him, who in reputation of us, is deemed the same person with us.

Wherefore by the Councell and consent of the Prelats, Dukes, Earls, Viscounts, and Barons of our Kingdom, be­ing in our present Parliament, we have made and created, and by these presents, make and create him the said Edward Prince of Wales, and Earl of Chester, and to the same Ed­ward we give and grant, and by this Charter have confir­med the Name, Stile, Title, State, Dignity, and the honour of the said Principality, that he may therein in governing, rule, and in ruling, direct, and defend. We by a Garland upon his head, by a Ring of Gold upon his Finger, and a Virge of Gold, have according to the manner invested him to have, and to hold to him, and to his Heirs the Kings of England for ever.

Wherefore we will and straightly command, for us, and our Heirs, that Edward our Sonne aforesaid, shall have the Name, Stile, Title, State, Dignity, and honour of the Prin­cipality of Wales, and of the County of Chester aforesaid, unto him and his Heirs, the Kings of England aforesaid for ever; These being witnesses, the Reverend Father John Cardinall and Archbishop of Canterbury, Primate of all England, our Chancellor, and William, Archbishop of York, Primate of England, Thomas Bishop of London, John Bi­shop of Lincolne, and William Bishop of Norwich; our most welbeloved Cousins, Richard Duke of York, Humpbry Duke of Buckingham; our welbeloved Cousin, Richard Earl of Warwick, Richard Earl of Salisbury, John Earl of Wiltshire; and our welbeloved, and faithfull Cousins, Ralph Cromwell, Chamberlain of our House, William Falconbridge, and John Sturton, Knights: Dated at Our Palace at Westminster [...]he fifteenth day of March, and in the yeer of Our Raign [...]hirty two.

And here (by the way) may be observed, that in ancient [Page 17] time, and in the time of the English Saxon Kings, the use was as well in penning the Acts of Parliament, as of the Kings Letters Patents, when any lands, franchi­ses or hereditaments, did passe from the King of any estate of inheritance, as also in their creations of any Man unto honour and dignity, the conclusion was with the signe of the Crosse in forme aforesaid (that is) his Testibus &c.

But long time that forme hath been discontinued, so that at this day, and for many yeares past, all the Kings Patents for lands, franchizes and h [...]reditaments, doe conclude with teste me ipso; neverthelesse in all creati­ons of honour and dignity by Letters Patents, the anci­ent forme of concluding with, his testihus, is used at this day, Cookes 8. part 19.

And it hath been resolved by the Judges, that all Acts of Parliament and Statutes which doe concerne the Prince, who is the first begotten son of the King; and heire apparant to the Crowne, for the time being, Per­petuis futuris temporibus, in all succession of ages and times be such Acts, whereof the Judges and all the Realme must take conusance, as of generall Statutes, for every subject hath interest in the King, and none of his subjects (who is within his Lawes) be divided from him, being his head and Soveraign; so that the busi­nesse and things of the King doth touch all the Realme, and namely, when it doth concerne the Prince, the first begotten sonne of the King, and Heire apparant to the Crowne, Corruscat enim Princeps radlis Reg [...]s Patr [...] sii & censetnr und persona cum ipso; For the Prince shi­neth with the beames of the King his Father, and is holden to be one person with him. Cookes 8. part 28.

Although the Prince by expresse words hath no privi­ledge by the great Charter of the Forrest, 9 H. 3. cap. 11. for hunting in the Kings Forrests or Parks, passing by them, and sent for by the Kings commandment; yet by construction the Prince is to take benefit and advantage thereby, as well as Bishops, Earls, or Barons, who are expressed, Crompt. Courts, des Justices de Forrests, 167.

In the Parliament, 31. H. 8. c. 10. an Act concerning the placing of the Kings children, and Lords in the Parlia­ment, and other assemblies, were amongst other things made as followeth.

First, it is enacted by the authority aforesaid, that no person or persons, of what degree, estate or condition, whatsoever he or they be, (except only the Kings chil­dren) shall at any time hereafter attempt or presume to sit, or have place at any side of the cloth of state in the Parliament chamber, neither of the one hand of the Kings Highnesse, or of the other, whether the Kings Majesty be there personally present or not.

The Prince shall not find pledges for the prosecution of any Action, and therefore shall be amerced more then the King should be, or the Queen his wife, Vide Cooks 8. part, 61. b.

Of the most noble and excellent Prince that now is, it is truly said, that he is omni nomine numine magnus, by destiny, name, & providence of God, the greatest; before Cook to the Reader, before his 8. Book, the last leaf.

Neverthelesse as he is a distinct person by nature from the King, so is he distinct by the Law, viz. a Subject, and holdeth his principalities and seigniories of the King; neither shall he have all those Prerogatives which the King shal have; for example, when the King seizeth his Subjects lands, or taketh away his goods from him, ha­ving [Page 19] no title by order of the Law so to do: In this case the Subject is to sue to his Soveraign Lord by way of Petition onely, for other remedy hath he not, but suit by Petition can be to none other then to the King; for no such suit shall be made to the Prince, but Actions as the case requireth, as against a Subject, Stamf. praerog. ca. 22.

And in token of subjection, the Prince doth not upon his Posie of his Arms disdain the old Saxon word (Ichdien, I serve) as Lambert doth mention in his Book of Perambulation of Rent. 364.

And there is a case, that Gascoin chief Justice of Engl: in the time of H. 4. did commit the Prince, who would have taken a prisoner from the Bar in the Kings Bench, and the Prince did humbly obey, and did go at his com­mand; in which the King did greatly rejoyce that hee had such a Judge who durst minister justice upon his son, and also that hee had a son so gracious as to obey, Court de Banco Regis, 79. Crompton.

A question was moved to the Justices in the first yeer of H. 7. what order should be in that present parliament, for the anulling and making void certain attainders, for so much as divers who were returned of that Parliamet did stand attainted of treason; and all the Justices resol­ved, That so many of the Knights of the shires, or Citi­zens, or Burgesses as stood then attainted of treason, should depart out of the Parliament house at the rever­sall of the Act of Parliament for their attainders. But [...]s soon as the Act of Parliament was reversed and annuld, that they and every of them (that is to say) Lords and Commons should come into 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 cō ­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, [Page 21] 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 goodness [...] 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, [Page 22] 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, Ʋlrick 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 well­beloved cousin and Councellour, Henry Earl of Nor­thumberland, [Page 23] Edward Earl of Worcester, Master of our horse, George Earl of Cumberland; and also our well­beloved 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, Cook [...] 8 part, in the pleading, Habend' et tenend' eidem duci, et ipsius et heraed' suorum Regum Angliae fili [...]s prim [...]g [...]ni [...]is, et dicti loci d [...]ibus in [Page 24] 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 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 i [...] 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 reg [...]duces, as before ap­peareth, yet that place is to be understood of the ancient kings, who were before the conquest; for in Mag. Charta, [Page 25] 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 Winso [...], 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 [Page 26] 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 to [...]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 pre [...]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 [Page 27] 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 th [...] Common Law, and extinct, for the greater doth distinguish the lesse, and after those times the pos­sessions of the Dutchie of LANCASTER [Page 28] 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, reserving a rent with reentry, for default of payment, and after his assumption of the Crown the rent happen to be unpaid, he might re­enter without demand; for the King is not bound to do such personall Ceremonies as the Subjects are by the Law compelled to do. Therfore to have the said Dutchy to be still a Dutchy, with the liberties to the same, as it was before; and to alter the order & degree of the lands of the Dutchy from the Crown, the said King H. 4. made a Charter by authority of Parliament, which is intituled Charta Regis Henrici quarti de seperatione ducatus Lanca­stria a corona authoritate Parliamenti anno Regni sui pri­mo. The Charter of Henry the fourth, for the sepa­ration of the Dutchy of Laucaster from the Crowne by the authority of Parliament, in the first ye [...]r of his raign of the said King, as by the tenure thereof may appear.

And so by authority of Parliament, the said Dutchy, withall the Franchises and liberties, were disjoyned from the Crown, and from the Ministers and Officers of the Crown, and from the receit of the revenues of the Crown, and from the order to passe by conveyance which the said Law did require in the possessions of the Crown.

But although the possessions of the Dutchy by force of the said Statute stood, divided from the Crown, and ought to be demeaned and ordered, and passe as they ought before Henry the fourth was King; yet there is no clause set down in the said Charter, [Page 29] which doth make the person of the king, who hath the Dutchy in any other degree then it was before; but things concerning his person, shall in the same estate as they were before seperations: Insomuch, as if the Law before the Charter, by the authority of Parliament ad­judged the person of the King alwayes of full age, ha­ving regard unto his gifts, as well of the lands which he doth inherit in his naturall body, as in that he doth in­herit in the right of his Crown, or politique body, it shall be so adjudged for the Dutchy land after the said Statute; for the Statute doth go, and reach unto the estate, condition, and order of the lands of the Dutchy, but doth not extend to the person of the king, who hath the lands in points touching his person, neither doth it diminish or alter the preheminences which the Law doth give, or attribute to the person of the King. For if king Henry 4. after the said Act, had made a [...], or other grant of parcell of the Dutchy by the [...] of H. Duke of Lancaster onely, it had been void; for it should have been made in the name of Henry 4. king of England.

And thus stood the Dutchy of Lancaster, severed from the Crown all the raign of H. 5. and H. 6. being politiquely made for the upholding of the Dutchy of Lancaster, their true and ancient inheritance, howsoever the right heir uuto the Crown might in future time ob­tain his right thereunto (as it happened in king Edward 4. his time:) But after king Edward 4. obtained his right unto the Crown of England, and was in his re­mitter, he in Parliament attainted H. 6. and appropria­ted unity, and annexed the said Dutchy again unto the Crown of England, as by the Statute thereof made in [Page 30] the first yeer of his Raign may appear.

By which Statute three things were ordained:

1. First, the County Palatine of Lancaster was again established.

2. Secondly, he did vest it in the body politique of the kings of this Realm.

3. Thirdly, he did divide it from the order of the Crown-lands; and in this force it did continue untill the time of H. 7. who forthwith (being descended from the house of Lancaster) did separate it onely in order and government from the Crown, and so continueth at this day, and all that is before spoken concerning the Duke and the Dukedom of Lancaster, appeareth in Plowden, 212. and that which there followeth.

Before I write further concerning the Nobility, I should set down the form of the Kings Letters Patents of their Creations, and the manner of solemnity used in the admittance and investry of Marquesses, Earls, Vis­counts, and Barons, according to their severall degrees. But I do willingly omit so to do, partly because in effect the same may appear by that before recited Patent, for the Creation of a Duke (altering onely such things which of right ought to be altered) and partly because their Patents are not onely extant and of Record, but also because all those things are to be read in a printed English Book of this subject, judicially made by Tho. Mills, being a matter also proper to the Colledge and Corporation of Heralds, and not unto the drift of my discourse, and I will briefly set down some other things observable concerning each of them.

Of Marquesses.

A Marquesse, that is, if we consider the very nature of the word, is a Governour of the Marches, and hath the next place of honour after a Duke.

This title came to us but of late dayes, and was not bestowed upon any one before the time of King Rich. 2. who made Robert Vere Marquesse of Dublin, and then it became with us to be a title of honour; for before time those that governed the Marches were called com­monly Lords Marchers, and not Marquesses.

After the Normans had conquered this land, it was carefully observed by them as a matter of much mo­ment, and a point of speciall policie, to place upon she confines and borders of the Britains, or Welsh, &c. not then subdued, men of much valour, not onely suffi­ciently able to incouuter the inrodes and invasions of the enemy; but also willing to make on-set of them, and inlarge the Conquest; these men thus placed, were of high bloud, credit, and conntenance, among their country-men the Normans, and in whose faith and power the Conqueror reposed speciall confidence and trust, and therefore in their territories given unto them to hold their tenures, were devised to be very speciall, and of great importance, and their honours inriched with the name and priviledges of Earls of Chester, and for the North border of Wales created to be a County Palatine, and the Barons of the middle Po [...]t of the South Marches, were adorned in a manner with a Pa­latine Jurisdiction, having a Court of Chancery, and Writs only among themselvs pleadable, to th [...] inte [...]t that [Page 32] their attendance, might not thence be driven for the pro­secution of controversies, and quarrells in the Law: and as for the other part of the South Marches, they seemed sufficiently fenced with the River of Severn and the Sea.

Of Earls.

FIrst, It is to be observed, that originally within this Kingdome, Earldomes of Counties in the ancient English Saxon Government, were not onely Dignities of Honour, but also Offices of justice, for that they did further the administration of justice in the Counties whereof they were Earls or Aldermen. They had like­wise their Deputies under them, the Sheriff an Officer yet in being, and retayning the name of his Substituti­on, in Latine therefore called Vicecomes, as it is to be read at large in Cambden.

The Earls, in recompence of their travell concern­ing the Officers of the County received a Sallary, name­ly, the third peny of the profits of the said County; which custome continued a long time after the Conquest, and was inserted as a Princely benevolence or gift in their Patents of Creation (as by divers ancient Patents there­of may appear) which afterwards were turned into pen­sions, for the better maintenance of that honour, as appeareth by a Book Case upon the pleading of a Pattent, whereby King Henry the sixth Created that worthy Knight, Sir John Talbott Earl of Shrewsbury; [Page 33] which pension is so annexed to their dignity, as that by any means of Alienation, it cannot be at any time severed and disjoyned from the same; and therefore in respect of such pensions, which were the third part of the profits of the County, or such other sum given in lieu thereof, some men have, not without probabi­lity thereof imagined, quod Comites nominabantur quia in multis fiscu Regii Socii et Comites item participes es­sent, vide Cooks 7 part 34. a.

Of the single Earls, and not Palatine within the Realm of England, there were and have been princi­pally two kindes, but every of them subdivided into severall branches, for they either take name of a place, or hold their title without any place at all. Those that take their name of a place are of two kindes; for ei­ther the same place is a County (and this is most usu­all) as the Earl of Devon-Shire, Cornwall, Kent, &c. or else of some other place being no County as a Town, Castle, Honour, or such like; of which later sort, some are most ancient, having their originall even from the Conquerer, or shortly after, as the Earldome of Richmond in York-Shire, Clarence in Suffolk, Arun­del ni Sussex; all which had their originall in the time of the Conquerer, by Donation of those Castles and Honors the Earldome of Bath, in the time of H. 7. and after in the time of H. 8. erected in the Family where it now remayneth: and the Earldome of Bridgewater, whereof Giles Dawbery was created in the time of H. 7.

Earldomes, which have their titles without any place, are likewise of two kindes, either in respect of office, as is the Earl Marshall of England; for it is granted in this or the like manner, Officium Marescalli Angliae, with [Page 34] further words, viz. A. B. &c. Comitem Marescallum Anglia creamus ordinavimus & constituimus, &c. By which it appeareth that the very Office is an Earldom, which title of Earl Marshall of England, King Richard 2. gave first to Thomas Newbray, Earl of Nottingham, whereas before they were simply stiled Marshalls of England, Cambden. 167.

The second sort of Earls by birth, and so are all the Sonnes of the Kings of England, if they have no other dignity bestowed upon them; and therefore it was said that John afterwards King of England, in the life of his Father, Hen. 2. was called countiscane terrae, before he was affied to Alice the daughter of the Earl of Moreton in France, though Hollenshed, fol. 103. writing of the degrees of people in England, saith, That the Kings younger Sonnes are but Gentlemen by birth, till they have received creation from the King of high estate.

Earls, and all others of the degree of Nobility, and honour, have Offices of great trust and confidence, be­ing for two principall purposes, ad consulendum Regi tempore Pacis, to Councell the King in time of peace, the other, ad defendendum Regem & Patriam tempore belli, to defend the King and Country in time of Warre; and therefore Antiquity hath given unto them two Ensignes to resemble both the said duties; For the first, the head is adorned with a Cap of honour, and a Coronet, and the body with a Robe in resemblance of Councell. Se­condly, They are girt with a sword, in resemblance, that they must be faithfull and true to defend the Prince and Country, Cooks 7. part. 34. a.

But to come to the Kings high Councell of Parlia­ment, No man ought to presume before he hath received [Page 35] the Kings-Writ of Summons, for the rule is ad consili­um ne accedas antequam voceris, the forme of a writ of Summons to an Earl is as followeth.

Rex, &c. Unto his welbeloved Cofin Edward, Earl of Oxford greeting. Because by the assent and advise of our Councell, for certain weighty and urgent businesse, concerning us the State and defence of our Kingdom, and Church of England; we have ordained to be holden a certain Parliament at our Citie of Westminster, the 22. day of November next coming, and there together with you, and with the Prelates, the great and noble men of our said Kingdom, to have conference and trea­ty; commanding, and firmely enjoyning you, upon your faith and alleageance, whereby you are holden unto us, that the dangers and perills imminent of that businesse considered, and all excuse set a part, you be present the said day in the same place with us, and with the Prelates, and great and noble men aforesaid, to treat and give Councell upon the aforesaid businesse; and hereof fail you not, as you tender us, our honour, and the safeguard, and defence of our Kingdom and Church aforesaid. Witnesse our self at Westminster in the second day of March, in the first yeer of our Raign. Cromptons Courts, tit. Parliam. 1. which is recited out of the Book of Entries. 594.

Upon this Writ, three things have been observed.

First, A priviledge incident to an Earl, or other of degree above him; for the Kings doth salute him by the name of his Co [...]in, although he peradventure be of no consanguinity to the King.

Secondly, When the King doth summon an Earl, or any other Peer of the Realm of the Parliament, he doth [Page 36] send his Writ, directed to himself particularly, and not to the Sheriff of the County, as the generall Summons are for Knights and Burgesses for the Parliament.

Thirdly, The Writ is to the Earl of Oxford greeting, not naming him Knight, though he be a Knight, and though that degree be parcell of his name, as appeareth, 3. Hen. 6. fol. 29.

And Priscot chief Justice in the 32. H. 6. 29. That i [...] an Esquire be made Knight, he looseth the name of E­squire: But if a Knight be made a Nobleman, he doth still retain the name of Knight, and so ought to be stiled in all Writs. And Cooks 4. part. fol. 118. a. saith, Th [...] if a Baron be created an Earl, yet his title of Baro [...] doth continue. B [...]t in Plowdens Book. 213. It is agreed That if the Crown of England do descend to a Duke within England, his name of Duke is gone for omne [...] jus tollit minus.

Viscounts.

NExt unto Earls or Counts in order, followeth the Vicount, this is an ancient name of Office, but a new title of honour, and by Henry the first brought in, who conferred that title upon John Lord Beamont.

Barons.

AMongst the Nobles and Honourable; Barons have the next place, and the last of the Rank; It now followeth somewhat to speak in generall of the dignity and degree of a Baron. First, the definition or descrip­tion of a Baron. Secondly, The Etymologie of the name. Thirdly, The antiquity thereof, and the divers uses of the name in former ages. Fourthly, The divisi­ons and considerations of the severall kindes of Barons. [Page 52] And lastly, A declaration of the divers and sundry pri­viledges allowed by the Laws of this Realm, unto the Barons and Nobility of the same; wherein the vulgar and common person hath no participation.

The Definition or Descripti­on of a Baron.

IT is a rule in Law, that definitions in Jure sunt peri­culosissimae rarium est enim ut non subverti possunt. And therefore I do not often finde any definition or a descrip­tion of a Baron delivered by writers. Neverthelesse in this our Common-wealth of England, me thinks that a Baron may be described in a 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 [Page 53] 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 poss [...]ssor, as well as the Stile and Title of a Duke, Ma [...]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 [Page 54] vocibus videndum no [...] 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 quidicunt [...]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; [Page 55] 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 [Page 56] in Westwales being first erected by Arnulp [...]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 to be all one with the Barons by tenure, or those whose Ancestors time out of minde, have been called to the Parliament by Writ; for otherwise there are hardly such to be found as are Barons by prescription only.

BARONS by Tenure.

BArons by tenure are those which doe hold any Ho­nour, Castle, or Mannour as the head of their Barony per Baroniam, which is Grand Serjeanty: And these Barons by tenure are of two sorts; Barons spirituall by tenure, and Barons temporall by tenure: Of Barons spirituall by tenure sufficient is said before in the first leafe of this Treatise, whereunto this may be added, That it appea­reth by all ancient Writers of our Lawes, as Britton, Glan­vile, Bracton, and the rest, that the Archbishops and Bishops of the Realme in the ancient Saxons dayes, as well during the time that this Realme was divided into divers King­domes, as also after the uniting of them into one Monarchy, were called to the Parliament or Assembly of States or wise men, not so much in respect of their tenure, for in those dayes all their tenures were by franck almoigne; but espe­cially for that the lawes and counsels of men are then most currant and commendable, and have a more blessed issue and successe, when they are grounded upon the feare of God, the root and beginning of all true wisdome: and therefore our wise and religious Ancestors called to their generall Councell, or Witten Agmote, or Court of Wis­dome (as they called it) those chiefe and principall persons of the Clergy, which by their place and profession, by their gravities, learning, and wisdome, might best advise what was the law of Gods acceptable will and pleasure, that they might frame their humane lawes answerable, or at least no [...] contrary and repugnant thereunto.

As touching the temporall Barons by the tenure, mention is made of them in the Books of the Law, Records, and an­cient Monuments of the Realme: these are the words of Glanvile; Mortuo enim aliquo capital [...] Bar [...]ne suo, statim Ba­roniam in manu sua retinet Rex, donec▪ haeres garantum suum fecerit de relivio, licet haeres ipse plenam habuerit atatem: Which reliefe of Barons for the Barony by tenure was at that time uncertain, and rentable at the pleasure of the King: Of which also he writeth thus. Dicitur autem rationabile re­livium alicujus juxta consuetudinem regni, de feodo unius Mi­litis centum solidos: de soccagio verò, quantum valet census il­lius soccagii per unum annum: De Baronis verò nihil certum statutum est, quia juxta voluntatem & misericordiam Domi­ni Regis solent Baronii capitales de reliviis suis Domino Regi satisfacere, lib. 9. cap. 4. But such uncertainty was brought to certainty by the statute of Magna Charta cap. 2. so here we have speech of the Barony Temporall by tenure, and of the reliefe due for the same.

In tertio H. 3. there was argued an ancient Prerogative belonging to the Crowne, and usuall even from the Con­quest unto these times, authentickly written in these words, and so reported by Fitzherbert; Quòd si aliquis Baro Domi­ni Regis tenens de Rege obiisset, & non haberet haeredes nisi fi­lias, & primogenitae filiae maritatae sunt in vita Patris, Domi­nus Rex daret postnatam filiam, quae remaneret in haereditate patris, alicui milit' suor', cum tota haereditate Patris sui de qua obiisset seisitus, ita quòd aliae filiae nihil recuperent versus post­natam filiam in vita sua: Et omnes Reges habuerunt hanc dig­nitatem à conquestu.

Also Bracton lib. 5. fol. 351. & fol. 357. doth make expresse mention of Barons temporall by tenure.

It shall be needlesse here againe to remember the former [Page 67] alledged assertion of Bracton, that the head of a Barony de­scending unto daughters should not be divided by partiti­on, which argueth likewise the tenure by Barony. But let us descend to other authorities, that is to say, to the Book­case in 48. E. 3. fol. 30. Sir Ralph Everden his case; by which case of law is most evidently proved that there are Barons by tenure, and in regard of such their tenure ought to be summoned to Parliament. And to this purpose you may read a private statute in the eleventh yeere of Henry the sixth mentioned also in Cambden concerning the Earl­dome of Arundell: and also another statute to the same pur­pose made 27. H. 6. for the finall determination of a contro­versie between William Earl of Arundell, and Thomas Earl of Devonshire, for place and preheminence in Parliament.

I would wish that those who deny that there were or are any Barons by tenure, should consider advisedly the sta­tute of Westminster the 2^d. cap. 41. where the Fees of the Earle Marshall and Lord Chamberlain are expressed, which are to be taken by them, upon the homage done of every Ba­ron by tenure, whether the Baron holdeth by whole Baro­ny or by lesse.

But ere I proceed further, there ariseth a question here to be considered, the resolution whereof may give great light, and in a manner determine the matter in hand. The Que­stion therefore is this.

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, appoin [...]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: T [...]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 Ba­ [...] 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 up­ [...] [...] of such writ, and place taken accordingly in [...], ought to enjoy the name, dignity, and ho­ [...] of a Baron.

[...] [...]ouching the antiquity of Barons by writ onely, and [...]eir first institution, I finde little or no mention before [...]he time of H. 3. And therefore I conceive that either [Page 89] 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 occasion. For in the dis­cord between the King and his Nobility, in those trou­biesome warres, seditions, and rebellions, which they moved against the said King, there were many cruell battells fought, to the great eff [...]sion of English blood: of which rebellions Simon Earl of Leicester was ring-leader, for the defence of liberties (as they pretended) granted by Magna Charta, and the Charter of the Forrest, which are even to this day the principall grounds of the positive Lawes, and are the most ancient statutes in use within this Realme, and for defence of other constitutions and ordinances then made at Oxford: And after divers fields fought by them at Northampton, Rochester, Lewis, and other places; last of all was the catastrophe of that tra­gedy finished at Evesham, where the said Earle of Lei­cester was slain, the King had the victory, and the rebel­liors Barons had the overthrow; whereupon presently ensued the Parliament holden at Winchester, and a [...]ter at Westminster, where such of the Barons as were slaine in the field against the King, and such others of them also as were taken captive, and were fled, were to be attain­ted and disinherited of their livings: wherefore for as much as the number of Barons who had continued faith­full unto the King, was small, (who were the Peeres up­on whose tryall then these things were to be accompli­shed) it was holden a necessary policy to supply the num­ber of the diminished Barons, and to fill up their rooms in Parliament with other wise and fit men, of the best ac­count and livelihood, upon summons by writ: By reason whereof at those Parliaments were called the Abbots [Page 90] and Priors of the Realme, as well those that held not by Barony, as others: and divers others of the most worthy of the Laity not holding by Barony: And these by means thereof were thenceforth Barons by writ. But certain of the said Abbots and Priors, which held not by Barony, and thought it a burthen to their houses, got themselves upon petition afterward to be exempt, as by divers re­cords thereof remaining in the Chancery may appeare.

This moreover is to be noted concerning the writ of summons to the Parliament, that these writs in forme of their direction are diverse. Some directed by speciall name of Barons: as, Rex, &c. Edmundo Baroni de Staffort; Johanni Baroni de Greystock; Johanni Baroni Dudley. Some others by the [...]ame of the party, with addition of the place; as, Johanni Stronning de Knocking Militi: Ed­mundo Grey de Ruthin Militi; Edvardo Grey de Grooby Militi; Johanni le Scroop de Masham Militi; Willihelmo Zouch de Harrington Militi; naming the chiefe Castle or Mannour of such Baron, which alway standeth after­ward for the head place of the Barony: wherefore the said Baron and his heires shall be sirnamed and called, and shall continue that name of place, although he doe alien away the same, as before is said. Some others are named in this manner, with the title of Lord; as, Johan­ni Beauchamp Domino Clinton, Henrico Piercy Domino de Poynings. To some others the said writ is directed onely by their name, without any addition of place or dignity; as, Willihelmo de Lovell Militi, Tho de Scales Militi, Wil­lihelmo Devereux Militi. See Tho. Mills Nobility Politicall and Civill.

But the nature, quality, and condition of these Barons by writ is aptly discovered by the debate of a question of­ten [Page 91] moved among men, and spoken of concerning the descent and continuance of a Barony by writ: which question for the more orderly disposition thereof, I doe divide into these articles or points.

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, [Page 103] 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 dispo [...]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 Ma [...]ga [...]etaeuxo­ris su [...] sororis Alexandri Regis Scoti [...] procreatis & pro defectu talis exitus, rema [...]ere rectis hered [...]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.

Priviledges incident to the Nobility according to the Lawes of England.

VVHen a Peere of the Realme, and Lord of the Parliament is to be arraigned upon any trea­son or fellony, whereof he is indicted, and whereupon hee hath pleaded not guilty; the King by his Letters Pattents, shall assigne some great and sag [...] Lord of the Parliament to bee High Steward of England, for the day of his arraignement, who before the same day shall make precept to his Sergeant at armes, that is appointed to serve him during the time of his Com­mission to warne to appeare before him 18. or 20. Lords of the Parliament, or 12. at the least upon the same day; and then at the day appointed, when the High Steward shall bee set under the Clothe of State upon the arraignement of the Prisoner, and hath cau­sed the Commission to bee read: the same Sergeant shall returne his Precepts, and thereupon, the Lords shall bee called, and when they have appeared and set in their places, the Constable of the Tower shall bee called to bring his Prisoner into the Court, who then [Page 110] shall bring his Prisoner to the Barre, and the High 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.

I [...] 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. [Page 112] 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 [Page 113] 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 Ro [...]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. P [...]ulton 118. and so was Fines Lord Dacres tried in a [...]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 m [...]ke tryall, or Enquiry upon their corporall oathes betweene party and party; for they may have their writ for their discharge to the Sheriffe.

Rex & Ʋic' Com' &c. quia barones regni nostri in Assizis Iuratis seurecognitionibus aliquibus poni non consuever [...]nt ut dicunt nisi eorum sacramentum adeo sit necessarium quod sine illis varitas inquire non p [...]test; Tibi precipimus quod dilectum & fed [...]lem nostram, A. B. in Assizis Iuratis seu recogniti [...]nibus aliquibus non ponas seu poni faciat is contra voluntatem suam sine mandato nastro speciali, nisi suam presentia ob aliquam causam specialiter exigatur teste, &c.

But it is a rule in Law, vigilantibus non dormientibus subve [...]iun [...] Iura: For if the Sheriffe have not recei­ved any such writ, and the Sheriffe have returned any Lords in Iuries, or in Assizes, &c. and they thereupon doe appeare, they shall be sworne, and if they doe not appeare, they shall loose their issues, 35. H. 6. 46. and in such case they must purchase a writ out of the Chan­cery, reciting their priviledge directed to the Iustices before whom such noble persons are so impannelled, commanding them to dismisse him or them, that were so impannelled out of the said pannell, Fitz. na. br. 165.

This priviledge hath restraint in two cases; first if the Enquiry concerne the King, and Common-wealth in any necessary or important degree, or busines of the Realme, then this priviledge is not allowed, nor taketh place; and therefore divers Barons of the marches of Wales were impannelled before the Bishop of Ely, and after Commissioners of Oyer and Terminer to enquire of a notable out-rage, committed by Gilbert de Clare, Earle of Gloucester, against Humphery de Boh [...]n, Earle of Hereford, and Essex; and his Tennant in [Page 139] Wales the 12th. yeare of Ed. 1. where John de Hastings▪ Edmond de Mortimer, Theonald de Bordmor; and others Barons of the Marches, challenged their Priviledges a­foresaid▪ and much insisted upon the same, but it was af­terwards answered by the Courts, as by the words in the Records appeareth; Domino quod res ista Dom. Regem & Coronam & dignitatem suam tangit. dictum fu [...] Dominum Regis Joh [...]n. de Hastings, & omnibus aliis magnatibus▪ s [...] ­pra nominatis quod per statu & Iure Regni, & per conser­vatione dignitatis Coronae & pacis suae apponunt manum [...]d librum adfaciendum, idquod eis ex perte Dom. Regis in jun­geretur, The Baron [...] aforesaid did neverthelesse persist in the Challenge, and in the end both the said Earles between whom the said outrage had been perpetrated, submitted themselves to the Kings grace, and mad [...] their Fines.

Secondly, this Priviledge hath no place in case of ne­cessity, where the truth of the case cannot otherwise come to light; for the words of the Writ in the Register before mentioned are Nisi sua presentiae ob aliquam causam specialiter exigatur, &c. Register▪ 179. If a Nobleman doe bring an Action of debt upon an Ac­compt in case where the Party is to be examined, which is alwayes intended to be upon Oath, upon the truth of his cause by vertue of the Statute of 2. H. 4. cap. 8. [...]t shall suffice to examine his Artorney and not himselfe upon Oath. 3. H. 6. 48. Cooke 6. part 53.

And this Priviledge the Law doth give to the Nobili­ty, that they are not to be arrested by any Warrant o [...] any Justice of the Peace for the peace, or for the goo [...] behaviour, nor by a supplicavit out of the Chance [...]y [...] [Page 140] called, because it issueth out at the supplication of the partie, or from the Kings Bench, for such an opinion hath the Law conceived of the peaceable disposition of Noblemen, that it hath beene thought enough to take their promise upon Honour in that behalfe, Lamb. Iustice of Peace, lib. 2. cap. [...]. Fol. 17. E. 44. 24. E. 3. 33. subpenae, Fitz, 20.

And as in civill causes, the like rule doth the Court of Equity observe in causes of conscience; for if the de­fendant be a Peere of the Realm in the Star-Chamber, or Court of Chancery, a Subpena shall not be awar­ded, but a Letter from the Lord Chancellor, or Lord Keeper, in liew thereof, and if he doe not appeare, no attachment shall go forth against him. For in the 14. Yeare of the late Queene Eliz. the Order and rule was declared in the Parliament Chamber, and so to be inrolled in the Parliament, that attachment is not to be awarded by Common Law, custome or president, against any Lord of the Parliament, Dy [...]r, 315. [...]. and if he doe appeare, he may make his Answer to the B [...]ll of complaint, upon his Honour onely, and is not com­pelable to be sworne.

By the Statute 5. Eliz. chap. 1. [...]t is enacted, that all Knights, and Burgesses of the Parliament, shall take their Oath for the Supremacy, and so shall Cittizens, and Barons of the Cinque-ports being returned of the Parliament, before they enter into the Parliament House, which Oath shall be according to the tenour, effect, and forme of the same Oath [...]erbatim, which is. [Page 141] and as it is already set forth to be taken in the Statute, 1. Eliz. provided alwayes that for so much as the Queenes Majestie is otherwise sufficiently assured of the faith and loyalty of the temporall Lords of her high Court of Parliament; Therefore this Act nor a▪ any thing therein contayned, shall not extend to com­pell any temporall person, of or above the degree of a Baron of this Realme, to take or Pronounce the Oath abovesaid, nor to incurre any Penalty limited by this Act, for not taking or refusing the same.

If any Peere of the Realme be sued in the Common Pleas, in an Action of debt, or trespasse, and Processe are awarded against him by Capia [...] or by Exigent, then he may sue a Certi [...]rare in the Chancery, directed to the Justices of the Common Pleas, testifying that he is a Peere of the Realme, and the Writ is thus.

Rex. &c. Iusticiari [...]s suis de banco salutem, mandamu [...] vobis quasi G. F. miles corum nobis ad sectam alicujus per Actionem personalem in placitatus existat. talem proces­sum & non alium versus ipsum in actionem predicta scire faciat qualem versus Dominos, magnates, Comites, seu Barones, Regni nostri Anglium qui ad Parl. nostra de su [...]inicionem nostra venire debent aut eorum aliquem se­cundum legem & consuetudinem regnum nostri Angl­fieri faciendum quia pred. G▪ T. vnius Baronum Regnum in pred. ad Parliamentum, nostri de sumini­ [...]ionem regia venient. record. & hoc vobis manda­ [...]us, & alijs quorum interest in [...]atescimus teste est. Fitz. H. N▪ B, fol. 247.

For unlesse the Court be judicially certified by the Kings Writ out of the Chancery, that the defendant is a Lord of the Parliament, Jf a Capias or Exigent issue for [...] against him no errour, neither is it punishable in the Sheriffes, his Bayliffes, or Officers, if they execute the said processe, and Arrest the body of the said No­ble person, for it appertaineth not to them to argue or dispute the Authority of the Court, but if the Court [...]e thereof certified in forme aforesaid, they will award a Supersedeas which is in the Booke of Enteries in the Title of Errour, Sect. 20. and there are two reasons or causes, wherefore no Capias or Exigent lyeth against any Peere, the one because of the dignity of their per­sons, the other by Intendment of Law, there is none of the Nobility but have sufficient Freehold which the Pl [...]intiffe may extend for their payment or satisfaction, but a Capias o [...] Exigent lyeth against a Knight, for the Law hath not that opinion of his Freehold, as the Court said in 26. H. 8. vide 27. H. 8. 22. in Brookes abridgement Exigent, 2. & 3. Cooko 6. part 52. & 54.

And if any of the Nobility happen to be so wilfull as not to appeare, the Court will compell the Sheriffe to returne great issues against him, and so at every de­fault to increase and multiply the iss [...]es, as lately against the Earle of Lincolne hath been in practice.

By the Ancient Lawes of this Realme before the com­ming of William the Conquerour, many good Lawes were made for the keeping of the peace amongst others that every man above the Age of 12. yeares should b [...] sw [...]rne to the King, as you may read more at large i [...] [Page 143] Lamberts perambulation of Kent, 21. which we in re­membrance thereof doe keep at this day in view of Frank▪ pledge or leete Court; but Noblemen of all sorts are neither bound to attend the Leete, nor to take that Oath as appeares by Britton cap. 29. treating of this Court called the Sheriffes Turne Courts, of which the Leete seemes to be extracted and agreeable, thereunto is the Statute of Marlbridge, cap. 10. in these words, de turnis vice contra provisum est, quod necesse non habe­ant ubi venire Archiepiscopi, Episcopi, Abbates, Priores, Committes, Barones, vide, the Lord Chancellors Speech in the case of Post-nati, fol. 78.

If a Writ of Error be brought in Parliament upon a Judgement given in the Kings Bench, the Lords of the higher House alone without the Commons are to exa­mine the errors, vide Jbid. fol. 22.

Jn 11. H. 4. 2. b. In a case concerning a distresse ta­ken for expences and Fees of the Knights of the Parlia­ment, it is agreed for Law that the Baronies and other Lands as are parcell of their ancient Lordships and Ba­ronies, but for other Lands they are. But there is a que­stion made, one which is no Barron, but ignoble doe purchase any ancient Barony, whether he shall be dis­charged of such ignoble purchase, by reason onely of such his purchase, challenge, or pretence to have Nobili­ty and place in Parliament, as before in this treatise more at large appeareth; for as Lands by Villany service doe not make a Villany or Bondman, which being free doth purchase the same. as Littleton doth teach lib. 2. [Page 144] cap. 12, though by his Tenure he shall be bound to doe such Villanie service, so of the other side, and that is holden by Barony, doth not make the villany peasent or ignoble which purchaseth the same, to be noble, although the charge of such tenure doe lye upon him in respect of the service of the Realme.

It is said in our Bookes, that a day of grace or by the favour of the Court is not to bee granted to the Plaintiffes in any Suite or Action wherein a No­bleman is defendant, 27. H. 8. 22. 27. E. 3. 88. because thereby the Nobleman should be longer de­layed then the Ordinaty course of the Court is, and such Lord is to have expedition of Iustice in respect that he is to attend the Person of the King, and the Service of the Common-wealth, but if there be no ig­noble person party to the Suite; the Judges doe and may at their discretions grant upon a motion and pray­er, a day or more of tryall otherwise then by the strict course of the Law the Plaintisse may challenge.

Cambden fol. 169. writing upon the Sub [...]ect saith; where the Noble man is demandant the Tenant may not be essoyned; for the delay and causes aforesaid, to which [...] would also subscribe but that the Booke of 3. H. 4, 5, 6. is otherwise adjudged (if I doe misunder­stand it) there the King brought a O [...]re Impedit. a­gainst a Common person, and the defendant was essoy­ned by the rule of the Court; Therefore a fortiori, he might be essoyned against a Nobleman.

Jf any Peere of the Realme, being a Lord of the parliamant, be plaintiffe or demandant, defendant or Tenant, in any Action reall or personall, against another, whereupon an issue is to be tryed by a Jury, the Sheriffe must returne one Knight at the least, to be of the Inquest, otherwise upon a challenge made the whole Pannell shall be quashed, which by the or­der of the Law is appoynted to be done, for Honour and reverence due to the persons of that degree, for (as the words of the Booke are) when a Peere of the Realme is party, the Law is otherwise, then when the Suite is betweene other persons, Fitz. Chall. 113. 13. E. [...]. in a Quar. Impedit. against a Bishop adjudged, Plowd. 117. Dyer 208. b. 27. H, 8. 22. b.

But the Earle of Kent by the name of Reignald Gray Esq. brought a Writ of Entry against Sir H. G. Knight, 4. Eliz. and the parties did plead to an issue, the veni­re facias was awarded, which the Sheriffe did returne ferved, and a Pannell returned according, in which pannell there is no Knight named. the truth of which Cause was, that after the returne made, the demandant is published and declared by the Queene and the He­raulds, to be Earle of Kent, in right and by discent, al­though hee had not beene so reputed, or named Earle before, and also after that time (that is to say) at the then last parliament, the Tenant is made a Baron by a Writ of parliament, and both parties have places and voyces in parliament, and then the Iury doe appeare in the Court of Common pleas, and the Earle of K [...]nt did challenge the array, because no Knight was retur­ned, but it was not allowed him by the Court, [Page 146] for the admittance of both parties as to the contra­ry, and no default can bee layd to the Sheriffe; for he had no notice of the honourable estates of ei­ther of the parties, the demandant not being then knowne or reputed to bee an Earle by discent or of the Tenants then also being no Ba [...]on. Dy­er, 318.

How much the Common Law hath alwaies prohibited perpetuities in Lands and Tenements, you may see in Corbets Case, in the first part of Sir Edward Cookes Booke, Fol. 84. and in many other Cases in the rest of his Books, also Littleton Fol. 145. saith, it is a Principle in the Law, that every Land of Fee-simple may be charg­ed with a Rent in Fee-simple by one way or other, but of the Kings Majesty upon the Creation of any Peere of the Realme, Duke, Marquesse, Earle, Vicount, or Baron, do (as the manner is) by his Letters Parents give unto such new created Noblemen an Annuity or Rent for the support of his degree, which they call cre­ation Money, this is so annexed unto the Dignity, that by no grant, assurance, or any manner of Alienation it can be given from the same, but is still incident, and a support of the same Creation, Dyer fol. 2. &c.

Jn all Cases wherein Suite of Law, a Baron or Peere of the Realme, is to be amerced (other then a Duke) his amercement is no [...]esse [...] [...]a 100. s. 9 E. 4. 9. 21. E. 4. 77. 38. E. 3. 31. 9. H [...] 6. 21. but the amercement of a Duke is 10. l. 19. E. 4. 9. [...] H. 6. 7. although the Statute of Magna Charta, Chap. 14. be in the negative, viz. Comites at Barones non [...] merciantur nisi per pures suos et [Page 147] non nisi secundum modum delicti, and yet the usage hath reduced it into a certainty, also by the same Statute it appeareth, that such amercements should be afferred per pures suos, but for that it were troublesome to assemble Barons for so small a matter, such amercements in times past hath beene afferred by the Barons of the Exchequer, who sometimes were Barons of the Realme, as is be­fore in this Treatise mentioned, and hereof writeth Bracton, Lib. 3. Tract. 2. chap. Fol. 116. viz. Comitet vero vel Barones non sunt amerciandi, nisi per paces suos secundum modum delicti, & hoc per Barones de Scacario vel coram ipso Rege. Vid. Cooke 8. part, 39. & sequentiae, this Section is to be omitted, because it is more fitly to be written hereafter.

If a Plaintiffe recover against a Peere of the Realme, in an Action of debt or trespasse, upon such a Plea plea­ded by him, or other default in him, so that a Fine thereby doth, grow to the King, and thereupon a Capias per Fine issueth out against him, this shall not preju­dice that Nobleman, so as the Plaintiffe may thereby take advantage by prayer that he shall abide in Execu­tion, for the Plaintiffe neither without his prayer, not though he doe pray it, by the opinion of Brian, Justice 14. H. 7. 21.

VVhereas by a Statute made 32. H. 8. Cap. 16. Jt is enacted, that the Subjects of the Realme shall not keepe in their Families or Houses above the number of Foure Strangers borne, neverthelesse by a proviso in the said Act, every Lord of the Parliament hath his priviledge [Page 148] allowed unto him to keepe in his Family the number of six Strangers borne, any thing in that Act to the con­trary notwithstanding.

By the Statute of 24. H. 8. Cap. 13. a. A Priviledge was granted to the Nobility according to their degrees concerning their Apparell, but because by a Statute made in the first Yeare of the King that now is, Chap. 25. all Lawes and Statutes made concerning Apparell, are taken away, I leave further to speake of that matter 1. Jac. cap. 25.

By the Statute of 5. R. 2. cap. 12. The King our Soveraigne Lord of his Royall Majesty defen­deth the passe utterly of all manner of people, aswell Clarkes as others, in every Port and other Towne and place upon the Coasts of the Sea, upon the paine of forfeiture of all their goods, except onely the Lords and other great men of the Realme, and true and Noble Merchants, and the Kings Souldiers, and eve­ry person then is before excepted, which after publi­cation of this Ordinance made shall passe out of the said Realme without the Kings speciall Lycence, which Lycence the King willeth and commandeth that it be not from henceforth made, but in one of the Ports vn­der written, that is to say, London, Sandwich, Dover, Southampton, Plimouth, Dartmouth, Bristoll, Yarmouth, St. Buttolphe, Kingstone upon Hull, Newcastle upon Tine, and the other parts and passages towards Ire­land, and the Iles pertaining to England, shall forfeit towards the King as much as he hath in goods as afore [Page 149] is said, but because this Statute is also taken away by a late Act of Parliament, made in the fourth yeare of King James. cap. 1. J doe not set downe this for one of the Priviledges appertaining to the Nobility at this day.

But Phillip Earle of Arundel Sonne of Thomas Duke of Norffolke, was taken upon the Sea passing in­to France, about the 30. yeare of the late Queene, and was fined in the Star-chamber to a great summe, because he did not take Shipping at one of the Ports mentioned, Cromptons Courts 31. Whereas by the Statute of 2. H. 2. Parl. 2. cap. 1. Jt is ordained, that the Justices of Peace in every County named of the Cu [...] ­rum should be resident in the Shieres wherein they are Justices, there is a Proviso whereby the Lord and Peeres of the Realme named in such Commission are excepted.

By the Statute of 1. E. 6. cap. 12. amongst other things, it is enacted, that in all and every case and Cases where any of the Kings Subjects shall and may upon his Prayer have the Priviledge of his Cler­gie, as a Clarke Convict, that may make purgation in all those Cases and every of them, and also in e­very Case and Cases of Fellony, wherein the privi­ledge and benefit of Clergie is taken away by this Statute (wilfull malice and poysoning, of malice prepensed) onely excepted the Lord and Lords of the Parliament, and Peere and Peeres of the Realme having place and voyce in Parliament, [Page 150] shall by vertue of this Act of Common grace up­on his and their Requests and Prayer, alleadging that he is a Lord or Peere of the Realme, claiming the benefit of this Act though hee cannot reade without burning of the Hand, losse of Inheritance, or corruption of his blood, bee adjudged, dee­med, taken, and used for the first time onely to all Jnstructions, intents, and purposes as a Clarke Convict, which may make purgation without any further or other benefit of the Clergy to any such Lord or Peere from thenceforth at any time after, for any cause to bee allowed, adjudged, or admit­red any Law, Custome, Statute, or any thing to the contrary notwithstanding.

By this Statute a Lord of the Parliament shall have the priviledge of his Clergy, where a common person shall not, viz. for the breaking of a house by day or night, for robbing of any in the high way, and in all other cases excepted in the Statute of 1. E. 6. 12. sa­ving in wilfull murder, and poysoning.

But in all other cases wherein Clergy is taken away by any Statute made since the said Statute of 1. E. 6. he is in the same Degree that a common and inferior per­son is, but the Court will not give him the benefit of this Statute, if he doe not require it.

Jf the Lord of the Parliament doth confesse his of­fence upon his Arraignment, or doth abjure, or is our­l [...]wed for Fellony, it seemes that in those cases he may have the benefit of this Statute, viz. his Clergy, for [Page 151] that by the Statute of 18. 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 [Page 152] one shall or may purchase Lycence or dispen­sation, and take, receive, and keepe two Perso­ [...]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 [Page 153] 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 [Page 154] 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 con­val [...]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; and for that by the lawes of this land, if actuall deeds were not, there was no remedy for such false compassing imaginations and confede­racies [Page 156] had against any Lord, or any of the Kings Councell, or any of the Kings great Officers in his houshold, as Steward, Treasurer, Controller; and so great inconvenien­ces did ensue, because such ungodly demeanours were not straightly punished before that an actuall deed was done. For remedy whereof it was by the same statute ordained, that the Steward, Treasurer, or Controller of the Kings house for the time being, shall have full authority and power to enquire by twelve sad men and discreet persons of the Check-roll of the Kings honourable houshold, if any servant, admitted to be his servant, sworne, and his name put into the Check-roll of the houshold, whatso­ever he be, serving in any manner office or roome, repu­ted, had, and taken under the estate of a Lord, make any confederacies, compassings, conspiracies, imaginations, with any person or persons, to destroy or murder the King, or any Lord of this Realme, or any other person sworne to the King, Councell, Steward, Treasurer, or Controller of the Kings house, that if it be found before the said Steward for the time being, by the said twelve men, that any such of the Kings servants as is aforesaid hath confederated, compassed, conspired, or imagined as abovesaid, that he so found by the enquiry, be put there­upon to answer, and the Steward, Treasurer, or Con­troller, or two of them, have power to determine the same matter according to the law: and if hee be put in tryall, that then he be tryed by other twelve sad men and discreet men of the same houshold, and that such misdo­ers have no challenge but for malice, and if such misdo­ers be found guilty by confession or otherwise, that the said offence be adjudged felony, and they to have judg­ment [Page 157] and execution, as felons attainted ought to have by the Common law.

In the statute made in the second yeare of H. 5. cap. 10. authority is given to the Sheriffe, and other the Kings Justices, for the better suppressing of Riots and Routs, &c. to raise Posse Comitatus, the power of the County: and the same liberty doth the Common law give in many other cases. Neverthelesse may not the Sheriffe upon such authority command the person of any Nobleman to attend that service; but if the Sheriffe upon a Supplica­vit against any Nobleman, in that case doe returne that he is so puissant, that he cannot or dare not arrest him, the Sheriffe shall be grievously amerced for such his re­turne: For by the writ under the Great Seale of the King, commandement is to all Archbishops, Bishopsi, Dukes, Earles, Vicounts and Barons, and to all liege men of the County, to be ayding unto him in that which to his office appertaineth: And therefore by intendment no person whatsoever can resist the execution of the said writ of the King. Also the Sheriffe may by his discretion le­vie three hundred men (if need be) to aid him in that be­halfe. Cromptons Justice 134. 3. H. 7. 1. Cookes 5. part. 71. b.

The words of the great Charter of the Forrest, in the eleventh Chapter, are as followeth: Every Archbishop, Bishop, Earle, or Baron, comming to us at our commande­ment, and passing by our Forrest, it shall be lawfull for him to take one beast or two by the view of the Forrester, if he be present; or else he shall cause one to blow a Horne for him, [Page 158] that he seeme not to steale our Deere. This statute doth speake but of Archbishops, Bishops, Earles and Barons, yet if a Duke, Marquesse, or Viscount, which be Lords of Parliament, be comming towards the King by his commandement, they also shall have the benefit of this article.

So if the King send to any of the Lords aforesaid to come to his Parliament; or send to him by writ of Sub­poena, to appeare in the Chancery, before his Councell, or send for him by his missive, or by Messenger, or Ser­jeant at Armes, in all these cases he shall have the benefit of this statute, because they came at the Kings comman­dement.

The same Law is if a Scire facias goe out of the Chan­cery or Kings Bench to a Lord of the Parliament: but if such processe goe forth for a Lord to appeare before the Justices of the Common Pleas, or before the Barons of the Exchequer, and he commeth upon that, he shall not have the benefit of the statute; for he doth not come un­to the King, and the words be, veniens ad nos; and all the processe which are made out of the Chancery and Kings Bench are, quòd sit coram nobis; and so are the Pro­cesse out of the Star-chamber. Also Lords which come to visite the new King after the death of his Father, (though not sent for) shall have the priviledge: and so note this statute is a warrant dormant to such Lords, which is also to be understood as well of their returning homewards as of their comming towards the King. Manwood Forrest Lawes cap. 181. Cromp Courts 167. b. [Page 159] Note this statute doth give licence to kill or hunt in the Kings Parks, though the letter of the statute be transien­tes per forrestam nostram, Passing by our Forrest, Crom­ptons Court 168.

Note, in certain cases the Law doth give priviledge to the Sons or Brethren of Noblemen, though themselves be not of that degree. Vide 21. H. 8. cap. 13. 7. E. 6. cap. 5.

CERTAINE CASES WHEREIN A LORD of the Parliament hath no PRIVILEDGE.

THe King may by his absolute power commit a Nobleman to prison durante beneplacito suo, from whence he cannot be discharged by bail or main­prise, or by the common writ de homine replegi­ando: And by the same power it is if a Noble person bee committed to prison by the Kings Councell, for they are incorporate to his Highnesse, and do command as with the Kings mouth. And the same law is if a Noble be committed to prison by the absolute commandement of the Kings Judges sitting in their places of Judicature, Stamf. lib. 2. cap. 18. fol. 72. 1. as you have before when [Page 160] the Prince himself was committed by the chiefe Justice sitting in the Kings Bench, and hee was not baile­able.

Also if a Capias and an Exigent may bee awarded by the Iustices out of their ordinary Jurisdiction against such persons upon an Inditement for Felony or Treason, as common experience sheweth.

The statutes of Praemunire are 27. E. 3. cap. 1. 16. R. 2. cap. 5. upon which statutes an Abbot which was a Lord of the Parliament was impleaded, and he did pray pri­viledge to appeare by an Atturney; and by the rule of the Court he could not, because the statute is generall and against it; but by speciall writ out of the Chancery he might. And so in case where he doth pray to be recei­ved. For if a Lord of the Parliament, holding lands of another in Fee simple, doth forbeare or with-hold to doe and pay his services due to his Land-lord, and that by the space of two yeares, whereupon he doth bring a writ of Cessavit, which is his remedy given him by the Law, thereby to recover the inheritance of the land: but the said Lord for the saving of his tenancy, being minded to pay all the arrerages before judgment given against him (as by the Law hee ought to doe) in this case hee must come in proper person, and not by Atturney, 15. H. 7. 9. b.

If a noble man, in contempt of any processe which hath beene awarded from out of any the Kings Courts, doth make rescous, and wilfully doth refuse to obey the said writ, and the same his offence doth appeare of re­cord to the Court by the Sheriffs returne, there may be [Page 161] and shall be awarded against him a Capias, 1 H. 5. Case ult. 27 H. 8. 22. Cooks 6. part. 54.

If any Lord doe depart this Realm, as Ambassadour or otherwise, by the Kings licence or without licence, and doe not returne at the Kings Commandement, or upon the Kings writ under his privy Signet; the King may seize his lands, goods, and chattells, Dyer 108. b. & 17. the Dutchesse of Suffolks case.

If a Lord, arrested upon a Supplicavit for the peace, doe wilfully refuse to obey the arrest, and make rescous upon his returne shall issue an attachment against the said Lord for his contempt to take his body; and this is the way to obtaine peace against any Lord of the Parlia­ment, whereas the party could not have an attachment against him, if the Subpoena had beene duly served and peaceably accepted, although the said Lord had not ap­peared thereunto, Cromptons Justice of Peace 134.

If a Lord of the Parliament doth with force and arms detaine a man in prison, in his House or elsewhere, the remedy is in such cases by himselfe or his friends abroad at liberty to have a writ called de homine replegiando to deliver him; but if the Lord, to prevent the execution thereof, and of malice, doe keep or convey away this man, so wrongfully imprisoned, so privily, as that the Sheriffe cannot execute his said writ; then will the Court award a Witheram, whereby the Sheriffe shall attach and arrest the body of the said Lord, and imprison him untill he doe deliver his said prisoner, 11 H. 4. 15.

All Lords are compellable to take the Oath mentioned in the Statute of 3 Jac. 4. & vide the Statute 7 Jac. cap. 6. who have authority to minister the said Oath to [Page 162] them. Bracton lib. 5. fol. 337. 6. H. 3. & 351. writing of essoines, delivereth this learning, that if a Baron that holdeth by Baron tenure have his absence excused by essoine, he which casteth such essoine or excuse, ought to finde surety that the said essoine is true; but in case of common persons it shall rest upon the credit and inte­grity of the Essoinee, and so is the use at this day.

The Statute of magna charta cap. 1 [...]. is quod liber homo non amercietur pro parvo delicto, nisi secundum modum illius delicti & pro magno delicto secundum magnitudinem delicti & nulla praedictarum misericordiarum ponatur, nisi per Sacramentum proborum & legalium hominum de vici­nate, and accordingly is the Law thereunto at this day.

But the subsequent words in the said Statute, viz. Comites & Barones non amercientur nisi per pares suos, & non nisi secundum modum delicti, are not in use, for whether the offence be great or small, for which they are to be amerced, their amercement must be certaine, viz. of a Duke ten pound, and of any other of the No­bility.

Also whereas the amercement should be offered per pares the use is to offer them by the Barons of the Ex­chequer, Cooks 8. Rep. 40. Bracton lib. 3. Tractat. 2. cap. 1. fol. 116. b.

When a Peere of the Realme is arraigned in Appeale of Fellony, he shall not have that priviledge to bee tried by his Peere, as he should in case of Inditement, but must undergoe the ordinary triall of twelve men, Stamford Pleas of the Crowne lib. 3. cap. 1. Brook triall 142. Ferdinando Poulton 188. b. Read the book of En­tries title appeale Sect. 7. also▪ in Case of an Indite­ment, [Page 163] the Defendant, though a Peere of the Realme, may not challenge any of his Triers, either perempto­rily or upon causes which in like cases permitted to all other common persons.

The Judgement to be given against any Lord of the Parliament in case of Felony or Treason, shall be no other than according to the usuall judgement given against common persons; and although the execution be not pursuant (but with the losse only of their heads) yet that is by the speciall grace of the King, and not ex debito, as by the examples of Thomas Lord Dacre 33. H. 8. and of the Lord Sturton 2 Mariae, may ap­peare, Brook tit. Jury 48.

By attainder of Treason or Fellony is corruption of blood, so that their Children may not be heires unto them, nor unto any of their Ancestors. And if hee were a noble man before he is by the attainder made ignoble, and not only himselfe, but also his Children, having no regard unto the Nobility which they had by their birth, and this corruption is so strong and high that it cannot be saved by the Kings pardon or other­wise than by authority of Parliament, Stamford Pleas del Coronae lib. 3. cap. 34.

But here it is to bee observed, that Nobility is not a thing substantiall, but meere accidentall; for that may be present or absent without corruption of the Subject whereof it dependeth; for experience sheweth that the passage of honourable titles are restrained by exorbitant crimes, when as nature in the meane while cannot bee thrust away with a fork. Wherefore although the Lawyers doe terme and call that extinguishment of [Page 164] Nobility, which hapneth by such hainous offences com­mitted as corruption of blood, neverthelesse they use not this manner of phrase and speech as though Nobility were naturally and essentially in the humour of blood more than any other hereditary faculty; but because the right of inheritance which is by degree of communica­tion of blood directed, is by that meanes determined and ended, and also in regard of the hatred and detesta­tion of the crime it is called corruption of blood, note in Dyer 16. Eliz. 332. the Lord Charles Howards case.

If one be made a Knight in a forraigne Kingdome by a forraigne Knight, yet he is to be so stiled in this Realme in all legall proceedings; but if a man be created by the Emperour an Earle of the Empire, or into any other title of dignity, he shall not beare this title here in Eng­land, Cooks 7. part. 16. 20. E. 46.

If there be a Father and Sonne, and the Father is seised of lands holden in Capite or otherwise by knightly service, the King doth create the same Duke and Earle or of any other degree of Nobility, and afterwards the Father dieth, his Sonne being within the age of one and twenty yeares, he shall be in ward; but if the King had made him Knight in the life of his Father, he should not have beene in ward after the death of his Father, neither for the lands descended or for his marriage, though he be within age, Cooks 6. part. 74. in Druries case.

Nobility, and Lords in re­putation onely.

THere are other Lords in reputation and appella­tion, who neverthelesse are not de jure, neither can they enjoy the priviledge of those of the No­bility that are Lords of the Parliament.

The sonne and heire of a Duke, during his fathers life, is onely by curtesie of speech and honour called an Earle, and the eldest sonne of an Earle a Baron; but not so in legall proceedings, or in the Kings Courts of Iustice, Brook Treason 2. But the King may at his pleasure create them in the life of their Ancestors into any degree of Lords of the Parliament, Cook 8. part 16. b.

A Duke or other of the Nobilitie of a forraigne Na­tion, doth come into this Realme by the Kings safe con­duct: in which the Kings said Letters of Conduct he is named Duke, according to his Creation: yet that appel­lation maketh him not a Duke, &c. to sue or to be sued by that name within England, but is onely so reputed. But if the King of Denmark, or other Soveraigne King, come into England under safe conduct, he during his aboad in England ought to bee stiled by the name of King, though hee have not merum imperium out of his [Page 166] 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 Check­roll, 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 [Page 168] 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 [...] 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 [Page 169] 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 [Page 170] 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 Judgem [...]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 [Page 107] 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 tryall hereof shall not be by Record, as in the former case, but by a Jury of 12. men, and the reason of the diversity, is, because in this case the Dignity is accrewed unto her by marriage, which the Lawyers tearme matter in fact, and not by any record, Cookes 6. part. 53. a.

But a noble Woman by Marriage, though she take to her a second Husband, a man of meane degree, yet shee may keepe two Chaplaines according to the Proviso in the Statute of 21. H. 8. c. 13. for and in respect of the honour which once she had, viz. at the time of the re­tayner, and every such Chaplaine may purchase lycense and dispensation, Cookes 4. part 117. Cowels Instutions lib. tit. 10. 15. but her Chaplaines may not be nonresi­dent afterwards.

And forasmuch as the retayning of Chaplaines by Ladies of great estates is ordinary, and neverthelesse some questions in law have beene concerning the true understanding of the said Statute law, I thinke it not impertinent to set downe some subsequent resolutions of the Judges touching such matters.

Anne Baronesse of Mount Eagle in her Widdowhood, did retaine two Chaplaines according to the Statute, and one of them had but one Benefice, and therefore did obtaine a dispensation with a confirmation from the Queene according to the tenour of the said Statute, but before he was presented to his second Benefice, the La­dy did take to Husband Henry Lord Compton, whereby [Page 109] she did forsake her former dignity of Baronesse of Mount-Eagle; and afterward the said Chaplain did ac­cept a second Benefice, and was therunto admitted and inducted, and the Judges have resolved that the Chaplain hath done nothing herein, but according to the meaning of the Statute, and that the Ladies marriage between his Retainer and acceptance of his second benefice, was no Countermand Revocation or determination of that Re­tainer, which the Lady lawfully then did make, but that she living, he might proceed to the filling up of the qua­lification, Causa & origio est materia negoti; for though the wife of a Noble-man during the covecture, cannot by Law rerain a Chaplain to be quallified according to the statute; because by Intendment her Husbands Chaplains are sufficient for that Office; yet forasmuch as the Retai­ner was lawfull: then she was widdow, that being the principall matter, shall enable him to take use and bene­fice after her marriage: for though the husband and wife are but one person in Law, yet as the Text is, sunt animo duo in carne uno. Bracton, lib. 5. fol. 363, a.

And in this case by the death of the Lord Compton, her first Retainer, was not determined; for without any neer Retainer, her said Chaplain may take his second benefice and also for that cause, so long as the said Chaplains do attend upon their said Lady in her House, they shall not be endammaged for Non-residency, Cooks 4. part, 117. fol. 90 &. 76.

That which remains concerning the further exposition of this statute, you may read before in the title of privi­ledge of Lords.

So long that the wife of a Duke be called Dutchesse, or of an Earl be a Countesse, and have the fruition of all [Page 110] the Honours, appertaining to that estate, with kneeling, tasting, serving, and the rest, and so long shall a Barons widow be saluted: Lady and a Knights wise also by the courteous Speech of England, quandiu Maj. aut viduitas vic. durant, except she happen to relaps with an Adulte­rer; for as the Laws of this Kingdome do adjudge that a woman shall lose her dower in that case, viz. west cap. B. F. N. B. fol. 150. H. Perk. fel. 70. Kitchin 162. b. as Ruto Lands, and Tenents, so justly; so doth the Laws of Gen­try and Noblenesse, give sentence against such a woman advanced to Titles of Dignity by the husband, to be unworthy to enjoy the same, when she putting her hus­band out of mind, hath subjected her self to another.

If a Lady which is married come through the For­rests, he shall not take any thing but a Dutchesse, or a Countesse shall have advantage of the statute, de Charta Forest, 11. Art. during the time that she is unmarried, Cromptons Court fol. 167, b.

Wheras it is contained in the great Charter amongst other things in the Form, which followeth: no Freeman shall be taken or imprisoned, or deseised of his Free-hold or his Liberties, or Free-customs, or shall be outlawed or banished, or in any wise destroyed, nor go upon him but by the lawfull judgment of his Peers, or by the Law of the Land In which statute is no mention made, how wo­men, Ladies of great estate; because of their Husbands, Peers of the Land, married or sole; that is to say, Dut­chesse, Countesse, or Barronesse, shall be put to answer, or before what Iudges they shall be judged, upon an Indite­ment of Treason, or Fellonyes by them committed, or done, because wherof it is an Ambiguity in the Law of England, before whom and by whom, such Ladies so en­dicted [Page 111] shall be put to answer, and be judged by our said Soveraign Lord the King, willing to put out such Ambi­guities and Doubts, hath declared by Authority afore­said; that such Ladies so endicted, or hereafter to be en­dicted, whether they be married or sole therof, shall bee brought in answer, and put to answer, and judged before such Iudges, and Peers of the Realm; as Peers of the Realm should be, if they were endicted of any Treasons, or Fellonyes, done or hereafter to be done, and in like manner and Form, and in none otherwise, Anno 2. H. 6. Cap. 9. Which statute was but a Confirmation or Decla­ration of the common Law, vide Cooks, 6, part 52. b.

This is a Rule in the civill law, si filia R. nubat alicui dom. vel. Comiti dicetur, semp. Regalis. As amongst Noble women there is a difference of degrees, so according to their distinct excellentnesse, the law doth give speciall Priviledges as followeth.

By the statute of 25. E. 3. cap. 2. It is High Treason to compose or imagine the death of the Queen, or to violate the Kings Companion.

The Kings Espouse is a sole person, exempted by the common law, and she may purchase by Fee-simple, or Make leases, or Grants without the King, she may plead and be impleaded, which no other married woman can do without her husband, Cook 4 part 23. B. Theol. lib, 1. cap. 4. 24. E. 3. 63. vide Bracton 363. a.

All Acts of Parliaments for any cause, which any way may concern the Queen and her Capacity, are such sta­tutes wherof the Judges ought to take recognisance, as of generall statutes; for though the matter do only concern the Capacity of the Queen; yet it doth also concern all the subjects of the Realm, for every subject hath interest [Page 112] in the King, and none of his Subjects who are within his Lawes in divided from the King being his head and So­veraigne, so that his businesse and things do touch all the Realme, and as all the Realme hath interest in the King, so and for the same Reason in the Queene being his wife, Plouden 23. 1. a. Co [...]kes 8. Repl. 28.

A man seised of divers Lands in Fee, holden by Knights service, some by Prioritie that is by ancient Feofment holden of others, and some other parts hol­den by the same tenure of the King by posteritie, the King granteth his Seigniory to the Queene, and after­wards the Tenant dyeth, the sonne within age in this case the King shall have the Wardship of the Body, and have the Prerogative even as the King himselfe should have had, 3. E. 3, 4. vide etiam Stamford Prerog. Reg. cap. 2.

The Queene, wife unto the King or widdow, shall not be amerced if she be non-suited in any Action or o­therwise, in which cases any other subject of what de­gree soever shall be amerced, for in this case the Queen shall participate the Kings Prerogative, Cookes 6. Re­port 62.

But the Queene shall not in all cases have the same Prerogatives that the King shall have in the same case; as for Example, Petition is all the remedy the Subject hath when the King seizeth his Lands or taketh away his Goods from him having no title by order of Law so to doe, contrary to the opinion of some ancient Bookes, as you may see Stamfords Prerog. cap. 19. But in such suit shall be made to the Queene, but actions against other Leiges of the King, according as the case shall require, for by the same reason that the Queene [Page 113] may be Plaintiffe and Demandant in actions without the King by the same reason that the Queene may be Plain­tiffe and Demandant in actions without the King, by the same reason he shall be Defendant or Tenant, with­out pertaking such Prerogatives as doe appertaine to the King, 11. H. 4. 64. B. Stamford Prerog. cap. 22. in fine.

Against the King by his Prerogative, Nullum tem­pus occurit Regi, but time shall runne against the Queen H. 18. E. 3. 2. a. and aplenarty by sixe mouthes is a good plea in a Quare Imp. brought by Philippa Regina Angliae ibid. fol. 1. et 13. b. Stamford Prerog. cap. 18. prope finem.

In 21. E. 3. 13. b. It is thus to be read, note that a protection was sued forth against the Queen, in a Writ which she brought, and it was allowed though shee be a person exempt.

Neverthelesse by this short case following may bee observed, that the Justices doe not easily suffer any pro­ceedings in Law against the Queene, wife or widdow, but will hold with their Inmities as much as they may by Law.

A Writ of dower was brought against Isabel Queene of England, mother of the King that then was, and the Cou [...]t said to the Plaintiffe, the Queene is a person of dignitie and excellencie, and we are of opinion, that she shall not answer to the Writ, but it behooveth you to sue to her by Petition, and thereupon the Deman­dant dixit grat▪ and shee prayed the Court to grant a continuance of her Action untill another day, so that in the meane time she might sue to speake with the Queen but the Court would not agree to make a Continuan [...]e, [Page 114] but said, that upon her request they might give day precepart. and so it was done for the Queenes Couneell, would not agree to a continuance, for thereby the Queene should bee accepted as answerable, 10. E. 3. 379.

The wife of the Kings eldest sonne also hath some Prerogative, in regard of the excellencie of her Hus­band, which the wives of other Noblemen have not, for by the Statute of 25. E. 3. it is high Treason to violate the wife of the Kings eldest sonne and heire.

Dutchesses also and Countesses have speciall Honour appertaining to their Estates, as kneeling and tasting, and such like, which things as appertaining more pro­perly to the Heraulds then to this legall discourse I leave unto them.

By the Statute made 7. Iac. cap. 6. intituled, An Act for the Administring the oath of Allegiance and Refor­mation of Women recusants if any person or persons of or above the age of 18. yeeres and degrees aforesaid, must and hereafter shal stand and be presented, indicted, or convicted for not comming to Church, or not recei­ving the holy Communion or Sacraments of the Lords Supper, according to the Lawes and Statutes of this Realme before the Ordinary, or other having lawfull power to take such presentment or indictment, then 3. of the Privie Counsell of the King his Highnesse his Heires or Successours and no other, whereof the Lord Treasurer, the Lord Chancellour, Lord Privie Seale, or principall Secretary to be one, upon know­ledge shall require such person or persons to take the said Oath, but it shall be lawfull to and for every Bi­shop within his Diocesse, to require any Baron or Ba­rons [Page 115] of the age of 18. or above, to take the said Oath.

Also in cases of indictment of Felony or Treason, a Baronesse shall have the same tryall by Peeres, as doth appeare by the Statute of 20. H. 6. cap. 9. which any o­ther Noble woman of higher degree shall have, which priviledge is denyed to all of a lower degree then a Ba­ronesse.

Observations concerning a Knight Batchelour▪

A Knight Batchelour cannot claime the priviledge, that Knights have from cart-taking, by Magna ch [...]rta, cap. 21.

A Knight Batchelours Sonne cannot keepe a Grey­hound, [Page 142] 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 [Page 143] 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, Tit 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 [Page 144] 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 Seld [...]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 [Page 145] 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 of the Towne, degree, state, condition, or mysterie: And when hee was named, Cooke hee observed the Statute: For hee hath named him by his name of mysterie, and yet hee may be in that case an Esquire, and a Cooke, 14. H. 6. fol. 15.

If a man be an Esquire, or Gentleman only by of­fice, [Page 146] and lose his office, hee then doth lose his gentry, also, 26. H. 6. Estopell 47.

Note, Esquire or Gentleman, are but additions to satisfie the said Statute: But names of dignity are par­cell of the name, vide Bro: additions, 58. 21. E. 4. 71. b. and therefore if a precipe quod reddat bee brought against A. B. yeoman, and Recovery is had, whereas the Iennant was a Gentleman, yet the Recovery is good: The same Law where a Release is made to A. B. yeoman, who is a Gentleman, and where addition is given by the Party, where it needeth not by the law (being no dignity) it is void, so if a deed be made to a Gentleman by the name of a yeoman: For there is a great difference betweene deeds and writs, Cooks 6. part. a.

If an Esquire be to be arraigned of high treason, he may and ought to be tryed, Per probos & legales homines that may dispend 40. s. per An. of free-hold, or bee a 100. l. in value in goods, and so the Statute that doth speake of men of his condition hath alwayes beene put in ure, Dyer 99. b.

The King may make an Esquire by Patent in these words, viz. creamus te Armigerum, &c. Note Mr. Sebden, his Preface to his titles of honour 5. b. and 313.

By the Statute of 21. H. 8. cap. 13. It is amongst other things enacted, That the brethren and sonnes borne in wed-locke of every Knight, being spirituall men, may every of them purchase lycense and dispen­sation, and receive, take, and keepe two parsonages, or benefices with cure of soules.

The sonne or sonnes of any Knight is priviledged to [Page 147] keep a Grey hound, or setting doge, or nets to take Pea­sants, or Patridges in, though he cannot dispend x. l in his own right, or in his wives right of an estate of in­heritance, or of the value of 30. l. of estate for life, 1. Jac. cap. 17.

The Definition of Gentry, or civill Nobility.

GEnerous seemeth to be made of two words, the one French, Gentile honestus, vel honesto na­tus; the other Saxon (mon) as if you would say, a man well borne, and under this name are all comprised, that are above yeoman, so that Nobles are truly called Gentlemen, by the course and custome of England.

Nobility, is either Major, or Minor; Major con­taines all titles, and degrees from Knights upwards, Minor from all Barons downewards, Gentlemen have their beginning, either of blood, as that they are borne of worshipfull parents, or that they had expedited something worthy in peace or warre, whereby they deserve to have armes, and to be accounted Gentle­men.

But in these dayes he is a Gentleman, who is so commonly taken, and reputed, Doctor Ridley 96. And whosoever lludieth in the Vniversities, who professeth the liberall sciences, and to be short, who can live idly, and without manuall labour, and will beare the Port, charge, and countenance of a Gentleman, he shall bee called Master: For that is the title that men give to Esquires, and other Gentlemen: For true it is with us, as one said; Tanti eris aliis quanti tibifueris: and [...] need be, a King of Heralds shall give him for money [Page 148] armes newly made, and invented with the Creast and all: the title whereof shall pretend to have bin found by the said Herauld, in the perusing and viewing of old Registers, where his ancestors in time past had beene recorded to beare the same: or if he will doe it more truly, and of better faith, hee will write, that for the merits of, and certaine qualities that he doth see in him, and for sundry noble acts which he hath performed, hee by the authority which he hath, as King of Heralds in his Province, and of armes, giveth unto him and his heires, these and these heroicall bearings in arms, vide Smith de Republic. Anglorum.

But some men of Iudgement make doubt and que­stion, whether this manner of making Gentlemen is to be allowed or no: and it may seeme, that it is not amisse: For first the Province looseth nothing by it, as hee should doe, if hee were in France. Reade Fortescue, fol. 82.

For the Yeoman or Husbandman is no more sub­ject to toyle, or tax in England, then Gentlemen; nay in every payment to the King, the Gentleman is more charged, which he beareth the more gladlier, and dare not gainesay, to save and keepe his honour and reputa­tion, in any shew, or muster, or other particular charge of the Towne where he is, he must open his purse wi­der, and augment his proportion above others, or else he doth diminish his honour, and reputation: as for their outward shew: a Gentleman, if he will bee ac­counted, he must goelike a Gentleman.

And if he be called to the warres, hee must, and will whatsoever it cost him, array himselfe, and arme his body according to the vocation that he pretendeth, hee [Page 149] must also shew a more manlike courage and tokens of better education; higher stomacke, and bountifuller liberality then others, and keepe about him idle servants, who shall doe nothing but waite upon him, so that no man hath hurt by it, but himself, who hereby (perchance) will beare a bigger sayle, then he is wel ableto maintain.

For as touching the policy and government of the Common-wealth, it is not those that have to doe with it, which will magnifi [...] themselves, and goe in higher Buskins then their estate, but they who are to be ap­pointed, are persons tryed and well knowne.

In 25. Eliz. the case was, that whereas it is requi­red by the Statutes of 1. H. 5. cap. 5. That in every writ originall, &c, in which an exigent shall be awar­ded, that additions should bee given unto the Defen­dant of their estate, and degree, &c. and the case was that one was a yeoman by his birth, and yet common­ly called and reputed a Gentleman; and yet it was ad­judged, that a writ may bee brought against him with the addition of Gentleman: For so much as the inten­tion of the act, is to have such a name given, by which hee may be knowne, this is sufficient to satisfie the law, and the act of Parliament: For nomen dicitur a nos­cendo, quia natitiam facit, Cook. 6. part. 65. and 67. a.

But if a Gentleman bee sued by addition of Hus­bandman he may say hee is a Gentleman, and demand Iudgement of the Writ without saying (and not hus­bandman:) For a Gentleman may be a husbandman, but hee shall be sued by his addition most worthy, An. 14. H. 6. b. 15. For a Gentleman of what estate soe­ver hee be, although hee goe to plough, and by com­mon Law, though he have nothing in his purse; yet [Page 150] is a Gentleman, and shall not be named in legall pro­ceedings, Labourer Long, 5. E. 4 33. 14. H. 6. fol. 15, a. Dyer.

If a Gentleman bee bound an aprentice to a Mer­chant, or else, &c. he hath not thereby lost his degree of Gentry, Estopell 47.

But if a Recovery be had against a Gentleman by the name of yeoman, in which case no addition is necessa­ry, then it is no errour, Brooke Cron 83. addition 58. So if any deed or obligation be made unto him by the name of yeoman.

If a Capias goe against A. B. yeoman, and if the Sheriffe take A. B. Gentleman, an action of false im­prisonment lyeth against the Sheriffe, vide An. 21. E. 4. fol. 71. b.

But if a yeoman be indicted: and A. B. Gentleman being the same man bee produced it is good, Kelway 58. b.

Gentlewomen have the same additions. vide Dyer, 88.

IF one be a Gentleman by office, and looseth his of­fice, then he doth also lose his gentility, 28. H. 6. 2. Estopel 47.

By the Statute of 5. Eliz. cap. 4. intituled an act touching divers orders for Artificers, Labourers, Ser­vants of husbandry, and apprentices; amongst other things, It is enacted, that a Gentleman borne, &c. shall not be compelled to serve in husbandry.

If any Faulcon be lost, and is found, it shall be brought to the Sheriffe, who must make Proclamation, and if the owner come not within foure moneths, then if the Finder bee a simple man, the Sheriffe may [Page 151] keepe the Hawke, making agreement with him that tooke it, but if hee be a Gentleman, and of estate to have, and keepe a Faulcon, then the Sheriffe ought to deliver unto him the Faulcon, taking of him reasona­ble costs, for the time that hee had him in custody, An. 34. E. 3. cap. 22. and anno 37. E. 3. cap. 19.

A Commission is made to keepe chrildren into Cathedrall Churches, where children be instructed to sing for the furnishing of the Kings Chappell: These generall words by construction of Law have a reasonable intendment, viz. That such children who be brought up and taught to sing, to seeke and sustaine their living by it; Those may bee taken for the Kings service, and it shall be a good preferment unto them to serve the King in his Chappell; but the sonnes of Gentlemen, or any other that are taught to sing for their ornament, delight or recreation, and not thereby to seeke their living, may not bee taken against their will, or the consent of their Parents and friends, and so it was resolved by the two chiefe Iustices, and all the Court of Star-chamber, anno 43. Eliz. in the case of one Evans, who had by colour of such Letters Pa­tents taken the sonne of one Clifton a Gentleman of quality in Norfolke, who was taught to sing for his re­creation, which Evans was for the same offence grie­vously punished, Cook. 8. Reports, fol. 46.

And to the end, it may withall appeare what de­grees of Nobility and Gentry there were in this Realme, before the comming in of the Normans, and by what merits men might ascend, and bee promoted to the same; I will shew you the copie of an English or Saxon antiquity, which you may reade in Lamberts [Page 152] Perambulation of Kent, fol. 3 64. and Englished thus, viz.

It was sometimes in the English Lawes, that the people and lawes were in reputation, then were the wisest of the people, worship-worthy in his degree, Earle and Chorle, They [...]e, and under Theyne: and if a Chorle so thrived, that had fully five hides of land of his owne, a Church, and a Kitchin, a Bel-house, and a Gate, a seat, a severall office in the Kings Hall; then was hee from thenceforth the Theines right worthy, and if a Theyne so thrived, that hee served the King on his message, on his journey-ward in his houshold, if he then had a Theyne, which him followed, who to the Kings experience had five hides, and in the Kings Pallace his Lord had served, and thrice with his er­rand had gone to the King, hee might afterwards with his foreoath, his Lords part play at need; and if a Theyne that hee became an Earle, then was hee from henceforth the Theynes right worthy; and if a Scholler so thrived through learning, that he had degree, and served Christ, he was thenceforth of dignity and peace: so much worthy as thereunto belonged; unlesse hee forfeited, so that he, the use of his degree ne might, Mils 73. Nobility, Politicall, and Civill.

It is observeable, that the Saxons out of all these trades of life, which be conversant in gaine admitted to the state of Gentry, such onely as increased by honest husbandry, or plentifull merchandize; of the first of which Cicero affirmeth, that there is nothing mee­ter for a Free borne man; and of the other that is prayse-worthy also, if at the length being satisfied with gaine, as it hath often come from the sea to the [Page 153] haven, so it changeth from the havens into lands and possessions; and therefore, whereas Gervasius Tilbu­riensis in his observations of the Exchequer, accoun­ting it an abasing for a Gentleman to occupy Publi­cum mercimonium, common buying and selling, it ought to bee referred to the other two parts of merchandize, that is, to negotiation which is retay­ling or keeping of an open shop, and to invention which is exercise mercery, or some call it to play the Chapman, and not to navigation, which (as you see) is the onely laudable part of all buying and selling.

And againe, whereas by the Statute of Magna charta, cap 6. and Merton cap. 7. It was a discourage­ment for a ward in Chivalry, which in old time, was as much as to say, a Gentleman to bee married to the Daughter of a Burgesse, I thinke it ought to bee restrained to such onely as professed handy crafts, or those baser arts of buying and selling, to get their living by. But this matter I leave to the He­raulds.

And in this place, it may bee remembred, that King Hen. 8. thought it no disparegement unto him, when hee tooke Anne, Daughter of Thomas Bullen, sometimes Major of London to his wife.

The Statute of Westminster, 2. cap. 1. which was made, Anno 13. E. 1. was procured, especially, and purposely at the desire of Gentlemen for the preser­vation of their lands and hereditaments, together with their surnames and faculties, and therefore, one called this Statute Gentiliteum municipale, and the Lawyers call it, Ius taliatum & taliabile.

The children onely of Gentlemen were wont [Page 154] to bee admitted into the Innes of Court, and there­by it came to passe, that there was scant any man found within the Realme skilfull and cunning in the Lawes except hee were a Gentleman borne, and came of a good house; For they, more then any kind of men, have a speciall care to their Nobility, and to the pre­servation of their honour and fame; for in those Innes of Court are vertue studied, and vices exiled; for that for the endowment of vertue, and abandoning of vice, Knights and Barons with other States, and No­blemen of the Realme, place their Children in these Innes, though they desire not to have them learned in the Lawes, nor to live by the practice thereof, but onely upon their Fathers allowance, vide Fortescue de landibus Anglorum, cap. 49.

But the Statute of An. 3 Iac. cap. 4. amongst o­ther things it is enacted, that if any Gentleman or Per­son of high degree, shall hereafter goe or passe volun­tarily out of this Realme to serve any forraine Prince, State, or Potentate, before that hee or they shall become bounden with two sureties, as shall bee allowed of the Officers, by that act limited to take the said bond unto the King his Heires and Succes­sours in the summe of twenty pounds of currant English money at the least, with condition to the ef­fect following; hee shall bee a felon▪ (viz.) That if the within Bounden, &c. shall not at any time then after bee reconciled to the Pope, or Sea of Rome, nor shall enter into, or consent unto any practise, plot, or conspiracy whatsoever against the Kings Majesty, his Heires, and Successours, or any of his, or their estate or estates, Realmes and Dominions, but shall with­in [Page 155] convenient time after knowledge thereof had, re­vealed and disclosed to the Kings Majesty, his Heires and Successours, or some of the Lords of his, or their Privy Counsell, all such practises, plots, and conspi­racies, and that then the said obligation to bee void, &c.

Of Yeomen.

THe Yeomanry or Common people, for they bee called of the Saxon word Zemen, which doth signifie Common, who have some lands of their owne to live upon; for a carve of land, or Plow land, was in antient times of the yearely value of five No­bles, and this was the living of a sober man, or Yeo­man; Cookes 9. part fol. 124. b. But in our Lawes, they are called Legales hom [...]nes; a word very familiar in writs and inquests, and by divers Statutes, it hath beene enacted, that none should passe in any inquest, unlesse they had fourty shillings freehold in yearely revenues, which maketh, if the most value were ta­ken to the proportion of moneyes above six pounds of our currant money at this present; Sir Thomas Smith fol 30. and by the Statute of 27. Eliz. cap. 6. Iurours must have 4. l. in lands.

In the end of the Statute, 23. H. 6. cap. 15. concer­ning the election of Knights for the Parliament, it is expressely provided, that no man shall bee such Knight, which standeth in the degree of a Yeo­man.

It appeareth in Lamberts perambulation of Kent, that this Saxon word Telphinorman was given to the Theine or Gentleman, because his life was valued at twelve hundred shillings, and in those dayes, the lives of all sorts of men, were rated at certaine summes of money, Telphinorman, to the Chorle or Yeoman, because the price of his head was taxed at two hun­dred shillings; which thing (if it were expressely set forth in sundry old Lawes yet extant,) might well enough bee found in the Etimologie of the words themselves, the one called a Twelve hund, as if it were a twelfe hundred.

And in this estate, they please themselves, and joy exceedingly, insomuch as a man may find sundry Yeomen, although otherwise comparable for wealth with many of the Gentle sort that will not yet for that, change their condition, nor desire to bee appa­relled with the title of Gentry. Lamberts esta [...]e of Kent, names the Yeomanry of Kent, when a Yeoman of 1000. l. yearely revenues, and ref [...]sed any other superiour title, but these are now no more heard of, &c.

By the Common Law as may appeare in An. 1. E. 2. De militibus, & in An. 7. H. 6. 15. men that had lands of the yearely value of 28. l. were comp [...]l­lable at the Kings pleasure to take upon them the or­der of Knight-hood; and upon summons, there came a Yeoman who might dispend 100. markes per an­num, and the Court was in doubt, how they might put him of; and at last, hee was wayved in, because hee did come the second day, An. 7. H. 6. fol. 15. a.

By this sort of men, the triall of causes in the Coun­trey [Page 157] proceedeth ordinarily; for of them, there are greater number in England, then in any other place, and they also of a more plentifull livelyhood, and therefore it cometh that men of this Countrey are more apt and fit to discerne in doubtfull causes of great examinations and trials, then are men wholly given to moyling in the ground, to whom the rural [...] exercise engendreth rudenesse of wit and mind, and many Franklins and Yeomen there are, so neere ad­joyning as you may make a Iury with little difficulty; For there bee many of them, which bee able to spend 100. l. a yeare, vide Fortescue de landibus Anglo­rum, &c.

As in ancient time, the Senatours of Rome, never elected a Censor; and as with us in conserving of Nobility, respect is had unto the Revenues, by which their dignity and Nobility may bee supported and maintained, Cookes 7. part 33. b. so the wisedome of this Realme hath of ancient provided, that none shall passe upon Iuries for the trials of any matters reall or personall, or upon any criminall cause, but such as be­sides their moveables have lands of estate for life, at the least to a competent value, least for need and po­verty, such Iurours might easily bee corrupted and suborned, Fortescue 56. b.

And in all cases and causes, the Law hath concei­ved a better opinion of those, that have lands and te­nements, or otherwise are of worth in moveable goods, presuming that such will commit, or omit nothing, that any way may bee prejudiciall to their estimations, or which may endanger their estates, then hath Labourers, Artificers, Retaylers, or such [Page 158] like, of whom Tully saith, Nihil proficiunt in se adm [...] ­dum mentiuntur; and by divers Statutes, certaine immunities are given to men of quality, which are deemed to the vulgar sort of people, read hereof a­mongst other in An. 1. Iac. cap. 127.

By the Statute of 2. H. 4. cap. 21. amongst other things, it is enacted that no Yeoman should take, or weare any livery of any Lord upon paine of imprisonment, and to make fine and ransome at the Kings will.