Analogia honorum, or, A treatise of honour and nobility, according to the laws and customes of England collected out of the most authentick authors, both ancient and modern : in two parts : the first containing honour military, and relateth to war, the second, honour civil, and relateth

PRIVILEDGES Incident to the NOBILITY According to the Laws of England. CHAP. XIII.

WHEN a Peer of the Realm, and Lord of the Parliament, is to be Arraigned upon any Trespass or Felony whereof he is indicted, and where∣upon he hath pleaded Not Guilty, the King by his Letters Patens shall assign some great and sage Lord of the Parliament to be High Steward of England for the day of his Ar∣raignment, who before the said day shall make a Precept to his Serjeant at Arms, that is ap∣pointed to serve him during the time of his Commission, to warn to appear before him Eighteen or Twenty Lords of the Parliament (or Twelve at the least) upon the same day. And then at the time appointed, when the High Steward shall be set under the Cloth of Estate, upon the Arraignment of the Prison∣er, and having caused the Commission to be read, the same Serjeant shall return his Pre∣cept, and thereupon the Lords shall be called; and when they have appeared, and are set in their places, the Con••••able of the Tower shall be called to bring his Prisoner to the Barr, and the High Steward shall declare to the Prisoner the cause why the King hath assembled thither those Lords, and himself, and perswade him to answer without fear; and then he shall call the Clerk of the Crown to read his Indictment unto him, and to ask him, if he be Guilty, or not: whereunto when he hath answered Not Guilty, the Clerk of the Crown shall ask him How he will be tryed, and then he will say, By God and his Peers. Then the King's Ser∣jeant and Attorney will give Evidence against him; whereunto when the Prisoner hath made answer, the Constable shall be commanded to receive the Prisoner from the Barr to some o∣ther place, whilst the Lords do secretly confer together in the Court; and then the Lords shall rise out of their places, and consult a∣mongst themselves, and what they affirm shall

be done upon their Honour, without any Oath to be ministred upon them. And when all, or the greatest part of them, shall be agreed, they shall retire to their places, and sit down. Then the High Steward shall ask of the youngest Lord by himself, if he that is Arraigned be Guilty or not of the Offence whereof he is Ar∣raigned, and then the youngest next him, and so of the residue one by one, until he hath asked them all; and every Lord shall answer by himself. And then the Steward shall send for the Prisoner again, who shall be led to the Barr, to whom the High Steward shall rehearse the Verdict of the Peers, and give Judgment accordingly.

The Antiquity and Original of this kind of Tryal, by the opinion of several Authors, is grounded from the Statute of Magna Charta, so called, not in respect of the quantity, but of the weight of it. Coke to the Reader be∣fore his eight part, fol. 2. cap. 29. beginning thus, Millus liber homo, &c. nec super eum ibimus, nec super eum mittemus, nisi per le∣gale judicium parium suorum. But I take it to be more ancient than the time of Henry the Third, as brought into the Realm with the Conqueror, being answerable to the Norman and French Laws, and agreeable with the Cu∣stom Feudale, where almost all Controversies arising between the Sovereign and the Vassal are tryed per Iudicium parium suorum.

And if a Peer of the Realm, upon his Ar∣raignment of Treason, do stand mute, or will not answer directly, Judgment shall be given against him as a Traytor Convict, and he shall not be prest to death, and thereby save the forfeiture of his Lands; for Treason is out of the Statute of Westminster 1. chap. 12. 15. Ed. 4. 33. Dyer 205. But if he be Arraigned upon Indictment of Felony, he may be mute. This priviledge hath some restraint, as well in re∣gard of the person, as in the manner of pro∣ceeding. As touching the person; first the Archbishops and Bishops of this Realm, al∣though they be Lords of the Parliament, if they be impeached of such offence, they shall not be tryed by the Peers of the Realm, but by a Jury of Knights, and other substantial Persons upon their Oaths; the reason thereof alledged is so much as Archbishops and Bishops cannot pass in the like cases upon Peers, for that they are prohibited by the Common and Ecclesiastical Laws to be judged of Life and Blood. Reason would that the other Peers should not try them; for this Tryal should be mutual, forasmuch as it is performed upon their Honours, without any Oath taken. And so by the way you may see the great respect the Law hath to a Peer of the Realm, when he speaketh upon his Honour, even in a case con∣cerning the life of a man, and that of a Peer; and therefore ought they much more to keep their Words and Promises in smaller matters, when they engage their Honour for any just cause or consideration.

Secondly, as touching these persons, no Temporal Lords, but they that are Lords of the Parliament, shall have this kind of Tryal; and therefore out of this are excluded the eld∣est Son and Heir apparent of a Duke in the life of his Father, though he be called an Earl. And it was the case of Henry Howard Earl of Surrey, Son and Heir apparent to Thomas Duke of Norfolk, in 38 Hen. 8. which is in Brook's Abridgment Treason, 2. Likewise, the Son and Heir apparent of an Earl, though he be called a Lord. And all the younger Sons of Kings are Earls by birth, though they have no other Creation; but shall not be partaker of these or other Priviledges incident to the Lords of the Parliament.

Thirdly, Those that are Barons, and of the Nobility of Scotland or Ireland, if upon the like Offence committed in England they be ap∣prehended in England, they shall not have this Tryal by Peers, no, though they were born in England; for they received their Dig∣nity from a King of England of other Nations: But if the King of England do at this day cre∣ate one of his Subjects of Scotland or Ireland an Earl, Viscount, Baron, or other Peer of this Realm; or by his ordinary Writ of Summons under his Great Seal do call him to the Upper House of Parliament, and assign him a place, and to have Voice free amongst the Lords and Peers there assembled, he shall be partaker with them in all priviledges.

And thus much concerning the restraint of the Priviledges in respect of the persons 39 Ed. 3.

And touching the manner of proceeding, it appeareth by the said Statute of Magna Char∣ta, chap. 29. That a Peer of the Realm shall be tryed by his Peers only, in case where he is indicted at the King's Suit of Treason or Felo∣ny; for the words of the Statute be Nec su∣per eum ibimus, &c.

But if any Appeal of Murther of Felony be sued by any common person against a Peer of the Realm, he shall be tryed by common per∣sons, and not by his Peers.

And so was Fines Lord Dacres tryed in Ap∣peal of Murther. The Nobility of this Realm do enjoy this priviledge, That they are not to be impannelled on any Jury or Inquest to make tryal or inquiry upon their Corporal Oaths between party and party, for they may have a Writ for their Discharge to the She∣riff.

But it is a Rule in Law, Vigilantibus non dormientibus subveniant jura. For if the Sheriff have not received any such Writ, and the Sheriff have returned any such Lord on Juries, or in Assize, &c. and they thereupon do appear, they shall be sworn; if they do not appear, they shall lose their Issues 35 Hen. 6. and in such case they must purchase a Writ

out of the Chancery reciting their priviledges, directed to the Justices before whom such No∣ble persons are so impannelled, commanding to dismiss him or them that were so impannel∣led out of the said Pannel, F.N.B. 165.

This priviledge hath, in two causes, not been allowed, or taken place: 1. If the enquiry concern the King and the Common∣wealth, in any necessary and important degree or business of the Realm. And therefore divers Barons of the Marshes of Wales were impan∣nelled before the Bishop of Ely, and other Com∣missioners of Oyer and Terminer, to enquire of a notable outrage committed by Gilbert de Clare Earl of Glocester, against Humphrey de Bohun, Earl of Hereford and Essex, and his Tenants in Wales, in the Twelfth year of Ed∣ward the First, where Iohn de Hastings, Ed∣mond de Mortimer, Theobald Beardmoe, and other Barons of the Marshes, challenged their priviledges aforesaid, and much insisted upon the same. But it was afterwards answered by the Court, as by the words in the Record ap∣peareth. The Barons aforesaid did persist in the Challenge, and in the end both the said Earls, between whom the said outrage had been perpetrated, submitted themselves to the King's Grace, and made their Fines. Secondly, This priviledge hath no place in case of necessity, where the truth of the case cannot otherwise come to light; for the words in the Writ in the Register are, Nisi sua praesentia ob ali∣quam causam specialiter exigatur, &c.

If any Nobleman do bring an Action of Debt upon Account, in case where the Plain∣tiff is to be examined (which is always intend∣ed to be upon Oath) upon the truth of his cause, by vertue of the Statute of the fifth of Henry the Fourth, chap. 8. it shall suffice to examine his Attorney, and not himself up∣on his Oath.

And this priviledge the Law hath given to the Nobility, That they are not Arrested up∣on any Warrant of a Justice of Peace for their good behaviour, or breach of Peace; nor by a Supplicavit out of Chancery, or from the King's Bench: For such an Opinion hath the Law conceived of the peaceable disposition of No∣blemen, that it hath been thought enough to take their promise upon their Honour in that behalf. And as in Civil Causes, the like Rule doth the Court of Equity observe in Cases of Conscience; for if the Defendant be a Peer of the Realm in the Star-Chamber, or Court of Chancery, a Subpaena shall not be awarded, but a Letter from the Lord Chancellor or Lord Keeper in lieu thereof. And if he do not ap∣pear, no Attachment shall go out against him: For in the Fourteenth year of Queen Eliza∣beth this Order and Rule was declared in the Parliament Chamber, That an Attachment is not awarded by Common Law, Custome, or President, against any Lord of Parliament. And if he do appear, and make his Bill of Complaint upon his Honour only, he is not compelled to be sworn. But by the Statute 5 Eliz. cap. 1. it is enacted, That all Knights and Burgesses of Parliament shall take the Oath of Supremacy, and so shall Citizens and Barons of the Cinque Ports, being returned of the Parliament, before they enter into the Parliament House; which Oath shall be ac∣cording to the tenor, effect, and form of the same, as is set forth in the Statutue of 1 Eliz. Provided always, that forasmuch as the Queens Majesty is otherwise sufficiently assured of the Faith and Loyalty of the Temporal Lords of her High Court of Parliament, therefore this Act, nor any thing therein contained, shall not extend to compel any Temporal person of or above the Degree of a Baron of this Realm to take the said Oath, nor to incur any penal∣ty limited by the said Act for not taking the same.

If a Peer be sued in the Common Pleas in an Action of Debt or Trespass, and Process be a∣warded by Capias or Exigit against him, then he may sue out a Certiorari in the Chancery, directed to the Justices of the Common Pleas, testifying that he is a Peer of the Realm. For unless the Court be certified by the King's Writ out of the Chancery, that the Defendant is a Peer of Parliament, if a Capias or Exigit issue forth against him, it is no Error, neither is it punishable in the Sheriff, his Bailiffs or Officers, if they execute the said Process, and arrest the body of such a Noble person; for it appertaineth not to them to argue or dispute the Authority of the Court. But if the Court be thereof certified as aforesaid, they will a∣ward a Supersedeas, which is in the Books of Entries in the Title of Error, Sect. 20.

And there are two Reasons or Causes, where∣fore no Capias or Exigit lieth against any Peer; one because of the dignity of their per∣sons, and the other by intendment of Law. There is none of the Nobility but have suffi∣cient Freehold, which the Plaintiffs may ex∣tend for their payment or satisfaction. But a Capias or Exigit lieth against a Knight, for the Law hath not that Opinion of his Freehold. And if any of the Nobility happen to be so wilful, and not to appear, the Court will com∣pel the Sheriff to return great Issues against him, and so at every default to encrease the is∣sues, as lately against the Earl of Lincoln hath been in practice.

By the ancient Laws of this Realm, before the coming of William the Conqueror, many good Laws were made for keeping the Peace; and amongst others, That all above the age of twelve years should be sworn to the King; which we in remembrance thereof do keep at this day in the view of Frank Pledge, or the Court Leet. But Noblemen of all sorts, are neither bound to attend the Court Leet, nor to take the Oath, as appeareth by Britan. c. 29. treating of the Court called the Sheriffs Tourn,

out of which the Leet to be extracted. And agreeable thereunto is the Statute of Marl∣bridge, cap. 10. See the Lord Chancellor's Speech in the case of Postnati, fol. 78. If a Writ of Error be brought in Parliament upon a Judgment given in the King's Bench, the Lords of the higher House alone, without the Commons, are to examine the Errors, ibid. fol. 22.

In the 11th of Henry the Fourth, fol. 26. in a Case concerning a Distress taken for Ex∣pences and Fees, the Knights of the Parliament are not contributary for such Lands as are par∣cel of their ancient Lordships and Baronies; but for other Lands they are. But there is a Que∣stion made, If one which is no Baron, but ig∣noble, do purchase any ancient Barony, whe∣ther he shall be discharged of such Expences and Fees, or not? Which is not worthy the que∣stioning: For as Land holden by Villainous Ser∣vice doth not make him a Villain or Bondman, which being free doth purchase the same, al∣though by his Tenure he shall be bound to do such Villainous Service: So on the other side, Land that is holden by Barony doth not make the Villain or Ignoble which purchaseth the same, to be Noble, although the charge of such Tenure do lye upon him in respect of the Ser∣vice of the Realm.

It is said in our Books, That a day of Grace, or by the favour of the Court, is not to be granted to the Plaintiff in any Suit or Action whereby a Nobleman is Defendant; because thereby a Nobleman should be longer delayed than the ordinary course of the Court is; and such a Lord is to have expedition of Justice, in respect that he is to attend the person of the King, and the Service of the Commonwealth: But if there be no Noble person to the Suit, the Judges do and may at their discretion, upon a motion, grant a day more of Grace o∣therwise than by the strict course of the Law the Plaintiff may challenge. Cambden, f. 169. writing upon this Subject, saith, Where a No∣bleman is Demandant, the Defendant may not be assoyned for the delay and cause afore∣said. To which I could also subscribe, but that the Book in the fifth of Hen. 4. 15. b. is otherwise adjudged: There the King brought a Quare Impedit against a common person, and the Defendant was essoyned by a Rule of Court.

If any Peer of the Realm be Plaintiff or Defendant in any Action, real or personal, a∣against any other, whereupon any Issue is to be tryed by a Jury, the Sheriff must return one Knight at the least to be of the Inquest; other∣wise upon challenge made the whole pannel shall be quashed. Which by order of the Law is appointed to be done for honour and reve∣rence due to the person of that degree: For when a Peer of the Realm is party, it is other∣wise than when the Suit is between private persons; F. N. B. Title Challenge 115. 13. Edward the Third in a Quare Impedit against a Bishop adjudged. But the Earl of Kent in the fourteenth year of the late Queen's Reign, and the parties did plead to an Issue, the Veni∣re Facias is awarded, which the Sheriff did return ••••rved, and a pannel returned accord∣ingly, in which is no Knight named. The truth of which Case was, that after the return made, the Demand is published, and demand∣ed by the Queen and the Heralds to be Earl of Kent in right and discent, although he had not been so reputed or named before; and also af∣ter that time (that is to say) at the then last Parliament, the Tenant is made a Baron by Writ of Parliament, and then the Jury doth appear in the Court of Common Pleas, and the Earl of Kent did challenge the Array, because no Knight was returned: but it was not al∣lowed him by the Court, for the admittance of both parties is to the contrary, and no de∣fault can be laid to the Sheriff, for he had no notice of the honourable Es••ate of either of the parties; the Demandant not being then known or reputed to be an Earl by descent, or of the Tenant then also being no Baron. How much the Common Law hath always prohibi∣ted perpetuity in Lands and Tenements, you may see in Corbet's Case, in the first part of Coke's Book, fol. 48. and in many other Cases in the rest of his Books. As also Littleton, fol. 145. saith it is a principle in the Law, that e∣very Land in Feesimple may be charged with a Rent. But if the King's Majesty, upon a Creation of any Peer of the Realm, of what degree soever, do as the manner is by Letters Patent give unto any such new created No∣bleman an Annuity or Rent for the support of his degree, which they call Creation-money; this is so annexed to the dignity, that by no Grant, Assurance, or any manner of Aliena∣tion it can be given from the Lord, but is still incident, and a support of the same Creati∣on.

In all Cases wherein is any Suit, a Baron or Peer of the Realm is to be amerced no less than five pounds; but the amercement of a Duke is One hundred pounds. Although the Statute of Magna Charta, chap. 14. be in the Negative, viz. Comites & Barones non amer∣cientur nisi per pares suos, & non nisi secun∣dum modum delicti; yet use hath reduced it into a certainty. As also by the same Statute it appeareth, that such Amercements should be assessed per pares suos: but that it were trou∣blesome to assemble Barons for so small a mat∣ter, such Amercements in times past have been assessed by the Barons of the Exchequer, who sometime were Barons of the Realm, as is al∣ready taken notice of; and so writeth Bracton lib. 3. tract. cap. 1. fol. 116.8.

Whereas by Statute 32 Hen. 8. cap. 16. it is enacted, That the Subjects of this Realm shall not keep in their Houses or Families above the number of four Strangers born; nevertheless,

by a Proviso in the same Act, every Lord of the Parliament hath this priviledge allowed unto him to keep in his Family the number of six born Strangers.

By the Statute 14 Hen. 8. cap. 13. a privi∣ledge was granted to the Nobility according to their degrees concerning Apparel; but be∣cause by a Statute made in the first of the King that now is, chap. 15. all Laws and Statutes concerning Apparel are taken away.

Whereas by the Statute 2 Hen. 5. Parl. 2. cap. 1. it is ordained, That the Justices of the Peace in every County, named of the Quorum, shall be resident in the Shires wherein they are Justices, there is a Proviso whereby the Lords and Peers of the Realm, named in such Com∣missions, are excepted.

By the Statute 1 Edw. 6. cap. 12. amongst other things it is enacted, That in all and eve∣ry Case and Cases, where any of the King's Subjects shall and may upon his prayer have the priviledge of the Clergy, as a Clark Con∣vict, that may make purgation in all the Cases, and every of them, and also in all and every Cases of Felony wherein the priviledge or be∣nefit of Clergy is taken away by this Statute, wilful Murther, and poysoning only excepted, the Lords and Peers of the Realm having place and voice in Parliament, shall by vertue of this Act of Common Grace, upon his or their requests and prayer, alledging that he is a Lord or Peer of this Realm, claiming the benefit of this Act, though he cannot read, without burning in the Hand, loss of Inheri∣tance, or corruption of Blood, be adjudged, taken, and used for the first time only to all constructions, intents, and purposes as a Clark Convict, which may make purgations with∣out any other benefit of Clergy to any such Lord or Peer from thenceforth at any time af∣ter for any cause to be allowed, adjudged, or admitted, any Law, Custome, Statute, or other thing to the contrary notwithstanding. By this Statute a Lord of the Parliament shall have the benefit of his Clergy, where a common person shall not, viz. for breaking open an House by day or night, or for robbing any on the High-way, and in all other Cases excep∣ted, saving in wilful Murther and Poysoning, but in all other Cases, wherein Clergy is taken away by any Statute made since the said Sta∣tute of 1 Edw. 6. he is in the same degree that a common and inferiour person: but the Court will not give him the benefit of this Statute, if he doth not require it. If a Lord of the Par∣liament do confess his Offence upon his Ar∣raignment, or doth abjure, or is Outlawed for Felony, it seemeth that in these Cases he may have the benefit of this Statute, viz. his Cler∣gy; for that by the Statute 18 Eliz. cap. 18. he, nor any other, need to make his purgati∣on, but shall be forthwith delivered out of Pri∣son by the Justices.

By the Imperial Constitutions, Nobiles non torquentur, & Nobiles non suspendentur, sed decapitantur: and so it is almost grown into a Custome of England by the favour of the Prince; for it is rare to have a Nobleman exe∣cuted in other form. Yet Thomas Fines Lord Dacres of the South, in the 23th of Henry the Sixth, and the Lord Sturton in the fourth of Queen Mary, were hanged.

At the Common Law it was lawful for any man, Noble or Ignoble, to retain as many Chaplains as they pleased for their instruction in Religion. But by a Statute made 21 Hen. 8. cap. 13. a restraint was made, and a certain number only allowed the Nobility: And such Chaplains for their attendance have Immuni∣ties, as by the Statute at large may appear, viz. every Archbishop and Duke may have six Chaplains, whereof every one may have, and purchase Licence of Dispensation, and take, receive, and keep two Parsonages or Benefices with Cure of Souls; and that every Marquiss and Earl may have five Chaplains; every Viscount or other Bishop four Chaplains; and every Baron and Knight of the Garter may have three Chaplains, whereof every one of them may purchase License of Dispensation, and take, receive, and keep two Benefices with Cure of Souls.

And forasmuch as the retaining of Chap∣lains by Lords and Peers of the Realm is or∣dinary; and nevertheless some questions have been concerning the true understanding of the said Statute Law, I think it not unnecessary to set down some subsequent Resolutions of the Judges touching some matters.

If a Bishop be translated to an Archbishop∣rick, or a Baron be created an Earl, yet in this case they can have but only so many Chaplains as an Archbishop, or an Earl might have; for although he hath divers Dignities, yet he is still but one 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, he shall have in all but three Chaplains, & sic de similibus.

And if such an Officer allowed by the Sta∣tute to have one, two, or more Chaplains, do retain accordingly, and after he is removed from his Office, in this case he cannot be now Nonresident, nor accept a second Benefice of his Complement which was not full before his removing; and in that case it behoveth the Chaplain to procure a Non obstante, otherwise he may be punished for his Nonresidence.

So if any Earl or Baron do retain a Chaplain, and before his advancement his Lord is Attaint∣ed of Treason (as it was in the Case of the Earl of Westmoreland) after the said At∣tainder such a Chaplain cannot except a se∣cond Benefice; for though his Lord be still li∣ving according to Nature, yet after the Attain∣der he is a dead person by the Law, and there∣fore out of the case to have priviledge for him∣self, or for his Chaplains.

If a Baron have three Chaplains, and every of them have two Benefices, and after the Ba∣ron dieth; they shall enjoy those Benefices with Cure, which were lawfully settled in them be∣fore: But in this case, although the said Chap∣lains be resident upon one of his Benefices, yet now he is become punishable for being resident upon the other; for Cessante causa, cessat ef∣fectus.

The same Law is, if the Baron be attainted of Treason or Felony; or if any Officer be removed from his Office, & sic de simili∣bus.

So if a Lord do one time retain more Chap∣lains than are allowed by the Law, the lawful number only shall have priviledge; and in this case which of them be first promoted shall have priviledge, and the rest are excluded; for aequali jure melior est conditio possidentis. If a Nobleman doth retain Chaplains above his number at several times, if any of his Chap∣lains die, the next that was retained shall not succeed, for his first retainer was void; and therefore in this case, it behoveth him to have a new retaining after the death of the prede∣cessor, and before his advancement; for quod ab initio non valet, in tractu temporis non con∣valescit.

If a Noble person retain such a number of Chaplains as is by the law allowed him, but afterwards the Lord, upon such dislike or o∣ther cause, do discharge any of them from their attendance or service, the Lord in this case can∣not retain other (thereby to give them pri∣viledge) during the life of them so retained and discharged. And the reason thereof is, because the first Chaplains were lawfully re∣tained, and by virtue thereof, during their lives, might purchase Dispensations to have advantage according to the Statute: and there∣fore if the discharge of their service and at∣tendance might give liberty to the Lord to re∣tain others, by such means he might advance Chaplains without number, by which the Sta∣tute might be defrauded. And the said Sta∣tute must be strictly construed, Non-residents, & Pluralities, as a thing prejudicial to the service of God, and the ordinary instruction of the people of God.

By the Statute 3 Hen. 7. cap. 4. it is enact∣ect as followeth; Forasmuch as by quarrels made to such as have been in great Authority, Office, and of Council with the King's of this Realm, hath ensued the destruction of the Kings, and therefore the undoing of this Realm, so as it hath evidently appeared, when the compassing of the death of such as were of the King's true Subjects was had, the destruction of the Prince was imagined thereby, and for the most part it hath grown and been occasion∣ed by malice of the King's own Houshold Ser∣vants; and for that by the Laws of this Land, if actual deeds were not, there was no remedy for such false compassing, imaginations, and confederacies had against any Lord, or any of the King's Council, or great Officers in his Houshold; and so great inconveniences did en∣sue, because such ungodly demeanours were not strictly punished before that any actual deed was done; for remedy whereof, it was by the said Statute ordained, That the Stew∣ard, Treasurer, or Comptroller of the King's Houshold for the time being, or one of them, shall have full authority to enquire by twelve discreet persons of the Check Roll of the King's honourable Houshold, if any person admitted and sworn the King's Servant, and his name put in the Check Roll, in any quality or de∣gree whatsoever under the state of a Lord, do make any Confederacies or Conspiracies with any person or persons, to destroy or murther the King, or any Lord of this Realm, or any other person sworn to the King's Council, Steward, Treasurer, or Comptroller of the King's Houshold, that if it be found before the said Steward for the time being, by the said twelve men, that any such of the King's Ser∣vants as aforesaid hath confederated or conspi∣red as abovesaid, that he so found by the en∣quiry be put thereupon to answer, and the Steward, Treasurer, or Comptroller, or two of them have power to determine the said matter according to Law: And if he put in trial, that then he be tried by Oath of twelve discreet men of the same Houshold, and that such Misdoers have no challenge but for ma∣liace: And if such Misdoers be found Guilty by confession or otherwise, that the said Offence is adjudged Felony, and they to have Judg∣ment and Execution, as Felons attainted ought to have by the Common Law.

By the Statute made in the second of King Henry the First, cap. 8. Authority is given to the Sheriffs, and other the King's Justices, for the better suppressing of Riots, to raise posse Comitatus; and the same liberty doth in Com∣mon Law guide in many other cases: Never∣theless the Sheriff may not by such Authority command the person of any Nobleman to at∣tend the Service. But if the Sheriff upon a Sup∣plicavit against a Nobleman in that case do re∣turn, that he is so puissant that he cannot, nor dare not arrest him, the Sheriff shall be grie∣vously amerced for such his return: For by the Writ under the Great Seal of England, the King's Command is to all Archbishops, Bishops, Earls, Counts, and Barons, and to all Leige∣men of the County, to be aiding unto him in that which to his Office appertaineth; and therefore no person whatsoever can respit the execution of the said Writ of the King's: Also the Sheriff at his discretion may levy three hundred men, if need be, to aid him in that behalf.

The words of the great Charter of the Fo∣rest, in the eleventh Chapter, are as follow∣eth; To every Archbishop, Bishop, Earl, or Baron coming to us, and passing by our Forest,

it shall be lawful for him to take one Beast or two by the view of the Forest if he be pre∣sent; or else he shall cause one to blow a Horn for him, that he seem not to steal our Deer. Although the Statute doth speak but of Bi∣shops, Earls, and Barons, yet if a Duke, Mar∣quiss, or Viscount (which are Lords of the Parliament) be coming towards the King by his command, they also shall have the benefit of this Article.

So if the King send to any of the Lords a∣foresaid to come to his Parliament; or send for him by Writ of Subpoena to appear in the Chancery; or by Privy Seal to appear before his Council; or send for him by Letters Missive, or by Messenger, or Serjeant at Arms; in all these cases he shall have the benefit of this Statute, because that they come at the King's command. The same Law is, if a Scire Fa∣cias go out of the Chancery or Kings Bench to a Lord of Parliament: But if such Process go forth against a Lord to appear before the Ju∣stices of the Common Pleas, or the Barons of the Exchequer, and he cometh upon the same, he shall not have the benefit of the Statute; for he doth not come unto the King; and the words of the Statute are, Veniens ad nos; And all the Process which are made out of the Chancery and King's Bench, are, Quod sit co∣ram nobis; and so are the Process out of the Star-Chamber.

Also Lords which come to visit the new King after the death of his Father (though not sent for) shall have the same priviledge. And so that this Statute is a Warrant dormant to such Lords; which also is to be understood as well of their returning homeward, as of their coming to the King. And note, that this Statute doth extend to give Licence to kill or hunt in the King's Parks, though the Letter of the Statute be Transiens per Forestam no∣stram.

The Oath of Supremacy is not imposed on the Peers of the Realm.

A Peer shall for his first Offence of Felony, though he cannot read, have the benefit of his Clergy, and without burning.

If any person shall divulge false and scanda∣lous Reports of any Lord of Parliament, the Offender is to be imprisoned until he bring forth the Author.

In personal Actions the Plaintiff may pray a day of Grace; but against a Lord of Par∣liament it shall not be allowed him.

It is Actionable for any to deface the Coat Armour, &c. of any Nobleman or Gentle∣man, that is placed in a Church or Window.

Certain Cases wherein a Lord of the Parliament hath no priviledge.

THE Statute of Westminster 2. cap. 39•• saith, If the Sheriff return that he can∣not execute the Kings precept propter resisten∣tiam alicujus magnatis; if it be true, he shall punish the resisters by Imprisonment, from whence they shall not be delivered without the Kings special commandment.

In 11 Hen. 4. 15. in homine replegiando, a∣gainst Dame Spencer a Peer of the Realm, (viz. a Baroness born) a Capias was granted, because it was an high injury to the person whom she eloigned, and in some other cases of great contempt a Capias may be awarded against a Peer.

An Abbot, which was a Lord of the Par∣liament, was impleaded, and he did pray pri∣viledge to appear by an Attorney: and by the Rule of the Court he could not, because the Statute is general, and against it; but by a special Writ out of Chancery he might; and so in case where he doth pray to be re∣ceived. For if a Lord of the Parliament, holding Lands of another in Feesimple, doth forbear and withhold to do, and pay his Ser∣vice to his Landlord, and that by the space of two years; whereupon he bringeth a Writ of Cessment (which is his Remedy given by Law) thereby to recover the Inheritance of the Land: But the said Lord, for the saving of Tenancy, being minded to pay all the Ar∣rearages before Judgment given against him (as by the Law he ought to do) in this case he must come in proper person, and not by an Attorney.

If a Nobleman be indicted, and cannot be found, Process of Outlary shall be awarded a∣gainst him per legem terrae, and he shall be outlawed per judicium Coronatorum, but he shall be tried per judicium parium suorum when he appeals and pleads to issue.

If any Lord did depart this Realm as Am∣bassador and otherwise, by the Kings Licence, or without Licence, and do not return at the King's command, or upon the Kings Writ, up∣on his privy Signet, the King may seize his Goods and Chattels.

If a Lord, arrested upon a Supplicavit for the peace, do refuse to obey the Arrest, and make Rescous, and the Sheriff do return the Rescous; upon such return shall issue an Attachment against the said Lord for his contempt, to take his Body; and this is a way to obtain the peace against any Lord of the

Parliament; whereas the party could not have an Attachment against him, if the Subpoena had been duly served, and peaceably accepted of, although the said Lord had not appeared thereupon.

All Lords are compellable to take the Oath mentioned in the Statute of the 7th of King Iames, chap. 4. And see the Statute of the 7th of King Iames, chap. 6. who have Au∣thority to minister the said Oath unto them.

If a Baron that holdeth by Baron Tenure, have his absence excused by Essoyn, he which casteth his Essoyn or Excuse, ought to find Surety that the said Essoyn is true. But in case of common persons, it shall rest upon the Credit and Integrity of the Essoyner; wherein a Lord hath lesser priviledge than a common per∣son.

And whereas the Amercements should be offered per pares, the use is to refer them to the Barons of the Exchequer.

When a Peer of the Realm is Arraigned in any Appeal of Felony, he shall not have that priviledge to be tried by his Peers (as in case of Indictment) but must undergo the ordina∣ry Trial of Twelve men.

Also in case of Indictment, the Defendant (though a Peer) may not challenge any of his Triers: And the Judgment to be given against any Lord of Parliament in cases of Felony or Treason shall be no other, than according to the usual Judgment given against common per∣sons. And their Execution (through the spe∣cial Grace and Favour of the King) is behead∣ing.

By Attainder of Felony or Treason is cor∣ruption of Blood, so that their Children may not be Heirs unto them, nor to any other An∣cestor. And if he were a Nobleman before, he is by the Attainder made Ignoble, not only himself, but all his Children; having regard unto the Nobility which they had by their Birth. And this corruption is so strong and high, that it cannot be salved by the King's pardon, or otherwise than by Authority of Parliament.

But here is to be observed, That Nobility is not a thing substantial, but mere accidental; for it may be present or absent, without cor∣ruption of the Subject whereof it doth depend; for experience sheweth, That the passing of ho∣nourable Titles are restrained by exorbitant Crimes, when as Nature in the mean while cannot be thrust away. Wherefore, though the Lawyers do call Extinguishment of Nobi∣lity, which happeneth by such hainous Offences committed by corruption of Blood: neverthe∣less they use not this manner of phrase, as though Nobility were naturally and essential∣ly in the Honour of Blood, more than any o∣ther hereditary Faculty; but because the right of Inheritance (which is by degrees of com∣munication of Blood directed) is by that means determined; and also in regard of the hatred and detestation of the Crime, it is cal∣led corruption of Blood.

And here a Question may arise, Whether by Attainder of the Father the Blood be so cor∣rupted, that the Son shall also be barred his Mother's Inheritance, who hath not transgres∣sed, or no?

They that maintain the Affirmative, say, That forasmuch as none can be procreated or ingendred according to the course of Nature, but of a Father and Mother, and must have in him two Bloods, viz. the Fathers and Mo∣thers; therefore the Law also faith, Those Bloods commixt in the person of a man in law∣ful Marriage, do constitute and make him an Heir; and that none can be Heir unto any, un∣less he hath both Bloods in him to whom he doth convey himself to be Heir. And there∣fore the Heir of the half Blood shall not inhe∣rit, because he doth want one of the Bloods which should make him inheritable. And up∣on this reason Britan. chap. 5. saith, If a man be attainted of Felony by Iudgment, the Heirs ingendred after the Attainder are precluded from all manner of succession in the Heritage, as well of the part of the Mother as of the Fa∣ther; for ex leproso parente, leprosus genera∣tur filius. And when the Father is attainted of Treason or Felony, the Blood, in respect whereof he is Inheritable, being corrupted, the same hath but half his Blood, that is, the Blood of his Mother in him without corruption. And with this doth agree Bracton, lib. 3. cap. 13. Non valebit felonis generatio, nec ad haeredi∣tatem paternam, nec maternam; si autem an∣te feloniam generationem fecerit, talis gene∣ratio succedit in haereditatem patris vel ma∣tris, à quo non fuerit felonia perpetrata. Because at the time of his Birth he had two lawful Bloods commixt in him, which could not be corrupted by the Attainder subsequent, but only as unto that party who did offend.

But on the Negative part it is said, That the Law is not so penal against the innocent Child, as to prejudice him touching his Mothers Inhe∣ritance, who also did not offend; or contrari∣wise, especially in case where the Mother was seized of an Estate in Feesimple, either in Lands or Tenements, or Title of Honour. And this was the case (if I be not mistaken) of Philip late Earl of Arundel, notwithstand∣ing the Attainder of Thomas Duke of Norfolk his Father; for he had that Earldom in right of his Mother.

But they do agree, That if the Lands or Te∣nements, or a Title of Honour, be given to a man, and to his wife in tayl who hath Issue: The Father is attainted of Treason, and exe∣cuted, though this forfeiture of the Husband shall be no barr to the Wife concerning her in∣terest by Survivorship; yet their Issue is bar∣red by the Statute 26 Hen. 8. cap. 13. and his Blood corrupted: For in that case the Heir must necessarily make himself Heir, as well of the

Body of the one as of the other. And yet the words of the Statute 32 Hen. 8. cap. 28. are, That no Fine, Feof••ment, or other Act or Acts hereafter to be made, or suffered by the Husband only of any Mannors, Lands, Te∣nements, or Hereditaments, being the Inhe∣ritance or Freehold of his Wife, during the Co∣verture between them, shall in any wise be, or make any discontinuance, or be prejudici∣al to the said Wife, or to her Heirs, or to such as shall have right, title, or interest to the same by the death of such Wife or Wives; but the same Wife or her Heirs, and such o∣ther to whom such right shall appertain after her decease, shall or may then lawfully en∣ter into all such Mannors, Lands, Tenements, and Hereditaments according to their Rights and Titles therein. For there is Adversity ta∣ken and agreed for Law between a disconti∣nuance which doth imply a wrong, and a lawful Baron which doth imply a right: And therefore if Land be given to the Husband, and the Wife, and to the Heirs of their Bo∣dies begotten, and the Husband levies a Fine with Proclamation, or do commit High Treason, and dieth, and the Wife before or after Entry dieth, the Issue is barred, and the Comisee for the King hath right unto the Lands, because the Issue cannot claim as Heir unto both. And with this doth agree Dyer 351. b. adjudged. vide 5 Hen. 7. 32. Cott's Assize, Coke's eighth part, 27. where it is resolved, That the Statute 32 Hen. 8. doth extend only unto Discontinuances, although the Act hath general words, or be prejudicial to the Wife or her Heirs, &c. but the conclusion; if she shall lawfully enter, &c. according to their right and title therein, which they cannot do when they be barred, and have no right, title, and interest. And this Statute doth give advantage unto the Wife, &c. so long as she hath right; but it doth not extend to take away a future barr. Although the Statute doth give Entry without limitation of any time; nevertheless the Entry must attend upon the right: and therefore if the Wife be seized in Feesimple, and her Husband levy a Fine with Proclamation unto another, and dieth, now the Wife may enter by force of the Statute; for as yet that Fine is not any barr unto her, but her right doth remain, which she may continue by Entry; but if she do sur∣cease her time, and the five years do pass without Entry, &c. now by force of the Fine with Proclamation, and five years past after the death of her Husband, she is barred of her right, and by consequence she cannot en∣ter. And the Statute doth speak of Fine on∣ly, and not of Fine with Proclamation. If there be Father and Son, and the Father be seized of Lands holden in Capite, or other∣wise by Knight's Service, the King doth cre∣ate the Son Duke, Earl, or other Degree of Nobility, and afterwards the Father dieth, his Son being within the Age of One and twenty years, he shall be no Ward; but if the King had made him Knight in the life of his Father, he should not have been in Ward after the death of his Father, neither for the Lands descended, nor for his Marriage, though he be within Age.