Earl of Darby being then Constable of England sat and gave Judgment alone in a Cause between Sir Thomas Ashton and Sir Piers Leigh upon a Coat of Arms: But this needs no Proof, since 'tis contended on the other side, that the Court doth belong only to the Constable.
3. And Martial alone may sit, and give Judgment. Precedents. 1 Lev. 230. Anser to Lord Coke's Authority.—'Twas argued, that the Earl Marshal hath sat alone and given Judgment; and to prove that, it was said, this Court was held when there was no Constable, before Thomas Howard, Duke of Norfolk, Lord High Treasurer and Earl Marshal of England, who died 16 H. 8. and next after him, before Charles Brandon, Duke of Suffolk, then Earl Marshal, who died 37 H. 8. after him, the Court was held and Sentences given by Thomas Howard, Duke of Norfolk, who died in 1512. and after him, in the 30 Eliz. the Earl of Essex sat as Earl Marshal, and heard and determined Causes judicially, and the chief Judge sat then as Assistant with him in Court, and then after the Death of the Earl of Essex, it was in Commission to my Lord Treasurer Burleigh and others, and then the great Case of Sir F. Mitchell was heard and determined, at which several Judges assisted, and the Sentence of Degradation was executed upon him, 26 April, 1621. [61] and then was cited the Case of Pool and Redhead 12 Jac. 1. 1 Roll's Rep. 87. where 'twas held, that the proper Remedy for Fees of Knighthood was to sue to the Earl Marshal; and Coke says in the same Case, the Common Law does not give Remedy for Precedency, but it belongs to the Earl Marshal: And since that in Parker's Case, which was 20 Car. 2. Syd. 353. the Earl Marshal was agreed to have the absolute Determination of Matters of Honour in the Court of Chivalry, as much as the Chancellor hath in Matters of Equity: And the Error on the other Side, was occasioned by not distinguishing between the Ancient Jurisdiction of this great Court at the Common Law, and the Jurisdiction given to the Constable and Marshal under those Names by Statute: For the latter cannot be executed by one alone; and that Distinction answers the Authority in 1 Inst. 74. which grounded the Mistake, that there is no Court of Chivalry, because there's no Constable; whereas the Reason why in Sir Francis Drake's Case the not constituting of a Constable silenced the Appeal, was from the 1 H. 4. cap. 14, which orders all Appeals of Murder committed beyond Sea to be before the Constable and Marshal by Name: But the Ancient Jurisdiction of this Court by Prescription, wherein both the Constable and Marshal were Judges severally or together, and which each of them did and could hold alone, remains still as much in the Earl Marshal alone, as it ever was in him and the Constable.
That no Prohibition lies to this Court.—Then it was argued that no Prohibition lay to this Court, because none had ever been granted, and yet greater Occasions than now can be pretended, by Reason of the large Jurisdiction, which this Court did in ancient Time Exercise; many Petitions were frequently preferred in Parliament, complaining of the Incroachments of this Court in E. 1. E. 3. R. 2. H. 4. and H. 6. Time, as appears in 4 Inst. 125. 2 H. 4. Num. 79 and 99. 1 Roll's Abridg. 527. and yet no Prohibition granted or moved for; which according to Littleton's Text is a very strong Argument, that it doth not lie.
1. Reason.—The Statute of 13 R. 2. 2. is an Argument against it, because after several Complaints of the Incroachments of this Court, another Remedy is given, which had been needless, if this had been legal: Nay, it shews the Opinion of the Parliament, that there was no other way of Relief: And soon after the Making of this Statute, in the same Reign two Privy Seals were sued upon it: In the Case of Poultney and Bourney, 13 H. 4. 4. 5.
2. Reason.—Besides, this might be grounded on the Antiquity and Greatness of this Court: For as to the subject Matter of it, 'tis by Prescription a Court for determining Matters of Honour, to preserve the Distinction of Degrees and Quality, of which no other Courts have Jurisdiction; and the Right and Property in Honours and Arms is as necessary to be preserved in a Civil Government, as that in Lands or Goods. Then 'twas urged that this Court hath Jurisdiction even of Capital Offences, its Extent is large, 'tis throughout the Realm, even in Counties Palatine, even beyond [62] the Seas; its Manner of proceeding is different, in a Summary way by Petition, its Trial of Fact may be by Duel, as in 4 Inst. 125. though the Statutes of H. 8. impower Commissions for Trial of Treasons committed
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