by birth though she marry vnder her degree she remaines noble but those innobled by marriage and after marry with a man of meaner degree utterly lose her former dignitie Fortescue 100. Cooke 6.33.4.118 It was the case of Ra. Howard Esquire husband of the widow of the Lord Powes against the Dutches of Suffolke the Writ naming her Ladie Anne Powes Dyer 79. so also in Qu. Maryes times when the Dutches of Suffolke married Stokes bre Bro. 146. digest lib. 1. Tit. 9. for the dignity accruing by marriage is but in fait and not by any record Coke 6.53 Coke 4.117 Cawells instit lib. 1. Tit. 10.15 So long shall a Dukes wife be called Dutches and an Earles Countesse and enjoy all honours appertaining to that estate with tasting kneeling serving c. And a Baronesse and Knights wife saluted Lady Quamdiu matrimonium aut viduitas vxoris durant except she elope for as then every woman shall lose her dower so being advanced by titles of dignitie by that husband by such elopement loseth them If a Ladie which is married come through the forrest shee hath no priviledge by the Statute but a Dutchesse or Countesse during the time she is vnmarried may Crompt Juris dict 167. Such Ladies whether they be married or sole upon Indictment shall be tried per Peeres by the Statute of 20. H. 6. cap. 9. it being a declaration of the common law Coke 6.52 By the Civill Law Si filia Regis nubat alicui Domino vel Comit. dicetur tamen semper Regalis Among Noble women there is difference of degrees and according to their qualities the law gives speciall priviledges as followeth by the Stat. of 25. of E. 3 2. it is high Treason to compasse or imagine the death of the Queene or to violate the Kings companion The Kings Spouse is a sole person in law to purchase c. plead and be impleaded Coke 4.23.6 Theboal lib. 1. cap. 4 24 E. 3.3.8 Bract. 363. And of such acts of Parliament as concerne her the Iudges ought to take notice Coment 231. a Coke 8.28 In some cases she shall have Prerogative as the King himselfe See the case of Wardship 5. E. 3.4 Stamf. prerog cap. 2. The Qu. Wife to the King or widow shall not be amerced if she be non-suited whereas all other subjects shall for she shall participate with the Kings prerogative Coke 8.62 but not in all cases for the subject shall not sue to her by Petition as to the King 11. H. 4 67. Stamf. prerog cap. 22. Against the King Nullum tempus occurrit otherwise of the Queene 18. E. 3.2 Philippa Regina Angl. Ibid. fol. 1. 13. Stam. prerog 18. In 21. E. 3.6 A Protection was allowed against the Queene In a Writ of dower against Isabel Qu. of England mother to the then King the Iudges were of opinion that shee was not to answer to any Writ but said they to the plaintife it behoveth you to go to her by Petition to whom the Demandant Dixit graits and prayed the court for a continuance of the action vntill shee might speake with the Queene But they nor the Queenes Councell would agree that the Qu. should be accepted as answerable 10. E 3.379 The Wife of the Kings eldest Son hath some prerogative not communicable to the Wives of other Noblemen for by the Statute of 25. E. 3. It is high Treason to violate her Dutchesses also and Countesses have speciall honour appertaining to their estates as kneeling and tasting which things I leave to the Heraulds The Statute of 7. Iac. cap. 6. intituled an Act for the administring the oath of Allegiance requireth those of 18. yeares or above to take the said oath The title is for administration of the Oath c. and reformation of married women Recusants Ladyes in Reputation THe Wife or Widow of the sonne and heire of a Duke or Earle in the life of his Father is a Lady by Curtesie and taketh place according to the antient time as they have beene permitted by their Soveraigne Prince and allowance of the Herauld But in legall proceedings they are not to have such Priviledge If a Noblewoman of Spaine come into England by a safe conduct or c. And so stiled in the said Letters yet is shee but a Lady in reputation And English woman borne taketh to Husband a Spanish or French Duke though hee be made Denizen yet shall she not beare the title of Dignitie in legall proceedings A German woman is married to the Marquesse of Northampton or c. unlesse she be made Denizen shee cannot claime the priviledge or title of her Husband no more then shee can claime Dower or Joynture An English woman doth take the Earle of Kildare in Ireland to her Husband or if a Lord in Scotland though hee be post natus c. their wives shall not aprticipate their Husbands Dignities But if the King Create one of his Subjects naturalized by Parliament to be Viscount Rochester within England and after summon him to the Parliament by Writ and assigne him place there by this is he made Peere of the Realme and partakes with them of all Priviledges and by consequence his Wife Widow and Children after him E. of Angus in Scotland 34. E. 3.35 Gilbert Humfrevils case But if an English man be made by the Emperour Earle of the Empire his Wife shall not beare that title either according to law or reputation All Daughters of Dukes Marquesses and Earles are by custome long used in the Kings Palace to be named Ladies and to have precedencie according to the degrees of their parents and of this custome the Law taketh notice But neverthelesse in the Kings Courts of Justice they beare not this title of Honour no more then the Sons of such noble personages Brothers to such Ladyes may doe The Hypothesis or particular Question WHether the Dignitie of Aburgavenny Sit conjuncta feodo and such as ought to descend to the speciall Heire male seized of the Castle bearing the head of that Barony and of the lands that make that Honour Or whether the Dignitie Name and Stile to be Baron of Aburgaven ought to descend to the generall Heire male who is not interessed in the said Castle or honour For the more orderly proceeding herein to avoid confusion and that every thing appeare concerning his question in his proper person There shall be shewed First that the Barony is a Barony by by tenure a very antient Honour and no Barony by Writ onely whereof will ensue by the former Declaration in the treatise of Barony That the dignitie and name de jure ought to go and descend with the Castle and Honour so holden as long as the same shall or may continue in the name blood and line of such as are nobly descended and may support the same There shall be Proved Secondly That the said Barony of Aburgav and the name title and dignitie of Lord and Barony of Aburg de facto
p. 2. whereby Hugh de Burga was made Earle of Kent in the time of H. 3. which was Habend sibi haered suis de corpore Margaret uxoris suae sororis Alexandri Regis Scociae procreat pro defectu talis exitus reman Ricīs haered dicti Hugonis c. The manner of the Solemnitie used in the Creation of Barons by Patent The forme of Creation of a Baron is much after this forme The Baron newly to be Created is presented unto the Queenes Majestie sitting in her Chaire of state After this order he is apparelled In his Surcote with the hood a Baron bearing the mantle before him and two Barons in their Parliament robes on each hand one leading him The principall King at Armes bearing the Patent and the Officers at armes proceeding on before him when they come in presence of her Majestie they make their solemne obeysance three times And the Baron to be Created kneeleth downe before the Chaire of Estate the said King at Armes delivereth the Patent of Creation to the Lord Chamberlaine who humbly presents the same to her Majestie who delivereth the same to the principall Secretary to bee read who reading the same with a loud voyce at the word Creavimus the Baron which carrieth the Mantle presenteth the same to her Majestie who puts it on the new Baron whereby he is Created and then is the Patent read out to the end and delivered to the Queene who delivereth it to the Baron so Created who after most humble thankes given to her Majesty hee riseth up and they depart in like solemne order as they came with the Trumpets sounding before them The particular more full knowledge of these Solemnities I doe referre to the Colledge and Corporation of Heraulds to whom the knowledge of these things doth most specially appertaine For the better explanation of this kind of Dignitie the resolution also of certaine questions shall bee very requisite Quest 1 First if a Nobleman and his Progenitors have for a long time beene called to the Parliament and he a Baron either by tenure or by Writ And have had in regard thereof a place certaine in Parliament if afterwards the same Noble man shall be created a Baron of that Barony and by the same name by Letters Patents whether shall he and his heires retaine his old place in Parliament which he had according to the former dignitie or whether shall he lose his old place and take a new place according to the time of his creation onely The case of the Lord De la Ware received a resolution some what answerable to this Question De laware 11. Rep. Looke fol 1. E. 3 6. The Lord De la Ware 3. E. 6. being in sore displeasure which William West his Nephew and heire who was father to Tho. now Lord De la Ware procured an act of Parliament by the which the said William West was during his naturall life onely cleerely disabled to claime demand or have any manner of right Title or interest by descent remainder or otherwise in or to the Mannors Lands tenents or hereditaments title or dignitie of Tho. Lo. de la Ware his vncle And after the said Tho. Lo. De la Ware died and the said William West in the time of Qu. Mary was attainted of treason by verdict 2. 3 Ph. Mary 5. Eliz. and afterwards pardoned by Q. Mary and after by Parliament in the time of the O. Marestie that now is And after in 8. Eliz. was created Lo. De la Ware by Patent and had place in the Parliament according to his creation For that by the said act of Parliament in the time of E. 6. hee was excluded to challenge the sormer auntient Barony and after died whether the now Lo. De la Ware should take his place according to the Baron by Writ or according to his creation was the question The opinions of the Qu. Councell being her Maiesties Attorny generall and Solliciter were that the acceptance of the new creation by the said William West could not extinguish the antient dignity for he had not that antient Dignitie in him at the time of his Creation but that Dignitie was at the time of his Creation by the Act of E. 6. in abbeyance suspence or consideration of law and he thereby utterly dis-inabled to have the same during his life onely so as his acceptance could not extinguish that dignitie which he then had not nor could conclude his heire who was not disabled by the said act of 3. E. 6. to claime the antient Barony which opinion of theirs was soone allowed by the resolutions of the Lo. cheife Iustice of Engl. and Lord cheife Baron and so signified to the Lord Keeper But this to be noted by the reasons made for the said resolution That if the said Sir William West had beene Baron and intitled Nota. or in possession of the antient dignitie when he accepted the creation the law perchance might have beene otherwise but that remaineth as yet unresolved Quest 2 Secondly it may be questioned whether a Baron called by Patent ought to be named by the name of his dignitie in every Writ to be sued by him or against him The bookes of law doe make difference herein betweene Duke Marquesse 8. H. 6.10 30 H. 8.30 Earle Viscount c. which are allowed names of Dignitie and the Baron for they affirme that such Baron needeth not to be named Lord or Baron by his Writ but the Duke Marquesse Earle or Viscount ought to be named by their Names or Dignities Neverthelesse I doe take these bookes to be understood of the Barony by tenure or Barons by Writ onely for the title of a Baron by Patent in his Letters Patents under Seale adorned and named by the name of Status gradus dignitas and therefore is requisite to be named and such dignities are a parcell of the name of the possessor as well as the Title and Stile of Duke Marquesse Earle Viscount c. And although there may be conceived this difference last mentioned betweene 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 equally made Noble Honourable and Peeres of the Realme as they are Barons onely without any other distinction that I have observed And thus much concerning the three degrees of Barons within this Realme may suffice to be said in generall upon this occasion for the better understanding and resolution of the controversie in hand The priviledge of Barons There resteth last of all in this Treatise of Baronage that I would expresse some certaine of the sundry priviledges that the Lawes doe allow unto Barons and the Nobilitie of the Realm ingenerall in regard of that favour which all good policy in every wel-governed Common-wealth doth bestow and yeeld to the Noble and Honourable wherein I shall content my selfe onely with certaine of those
for they are not bound to beleeve him upon such protestation otherwise then they thinke in their conscience to be conformable unto truth If a man doth receive a menace at the hand of a Nobleman Privileg whereupon he conceiveth feare of his safegard 35 H 6. Sub-paena 20 V. 14. E. 3. and prayes a Supplicavit in the Chan. directed unto the Justice of peace or Sheriffe to take bond c. such Writ which otherwise is ordinary but the Lord Chancellour shall award a Sub-paena in stead thereof and when he appeareth in stead of surety he shall onely promise upon his Honour to keepe the peace which the Law hath allowed in this point a Caution sufficient A nobleman is not to bee arrested by any Capias Privileg 5. 21. E. 3.39 43. E. 3.33 8 R 2 7. H. 4 2. 11. H. 4.15 1. H. 5.14 14. H. 6.2 22 H. 6.226 26. H 8.7 14. Eliz 115. Restaint and therefore cannot be outlawed in any civill Action but onely in Criminall And by the same reason lyeth no Attachment against him as it was ruled in Parliament 14. Eliz. in the Lord Cromwells Case But if he make any notable contempt against the proceedings of the Law then ceaseth this priviledge for Frustra legis auxilium invocat qui in legem peccat As if in a Writ de homine replegiando hee will not permit the Sheriffe to execute the Writ or Essoigne the party or upon a Rescousse a Capias hath this priviledge notwithstanding So in cases Criminall 27. H. 8.14 15. H. 7.1 a Capias and an Exigent may be awarded The like priviledges doth the Court of equitie allow in cases of conscience Chanc. nomine Sub-paena for the Lord Chancellour doth not award any Sub-paena but sendeth his Letters missive in lieu of other ordinary Processe In the prosecution of any Action personall Privil 6. 14 E. 3.22 15 E. 3.21 22 E. 3.9 27. E. 38. 41. E 3.31 27 H. 8.22 the Plaintife may pray Jour de grace but against a Peere of the Realme it shall not be allowed although it be allowable against other persons If any Lord Spirituall or Temporall be partie to any Action Privileg 7. 13. E 3. â—â— Chal. 115. â— 22. H 8.22 Dyer 107.3 4. Elize 24 9. 10. Eliz. 26. there ought to be one Knight at the least to be impannelled in his Jury with other the most sufficientest Esquires in the Countrey otherwise he may challenge the Array but if there bee no Knight in the County the Pannell shal be made of the most sufficient Vavasours and Esquires there inhabiting But if one bring an Action against another and the Shâ—riffe impannell a Jury where there is not any Knight 14. 15. Eliz. 318. and before the Triall the Plaintife or Defendant is Created a Baron or c. and hee doe challenge the said Jury such challenge shall not bee allowed for at the time of the enquest made he was not so reputed as in the Case of Reginald late Earle of Kent may appeare If the King grant an Annuitie or Rent to a then created Baron Privileg 8. for the support of his Degree 6. H. 6.2 which they call creation money this is so annexed to the Dignitie that by no manner of alienation it can be severed If the King upon such Creation give land c. untill he shall bee advanced to some other living and upon Eviction to have the valew if he be impleaded of this land by Scire facias 21. E. 3.47 c. hee shall have aid of the King If a Baron be partie to a suite Privileg 9. Pract. l. 5. fol 337. 351. and would be essoigned hee that casts the essoigne out to put in sureties to prove the cause which is not usuall in case of common persons In all cases where he is to be amerced his amerciament is not lesse then a hundred shilâ—ings by the Statute oâ— Magna Charta 14. and it was to be affirmed by hiâ— Peeres Privil 10.16 E. 3 â—m 14 38 E. 3 31 1. H. 6.7.9 H. 6 2 32. H. 6 30 19. E. 3.9.21 E 4 77 Fleta lib. 2. But for that it were troublesome to assemble Barons for so small matter such amerciaments in time past have beene obtained by the Barons of the Exchequer who were sometimes Barons of the Realme Whereas by the Statute 32. H. 8. no subject might keepe in his family above foure Strangers borne Privil 11. Br. fol. 116 Coâ—ke 8 39. Stat. 32 H. 8.16 Privil 12 yet by a Proviso every Baron may keepe sixe If a Lord of the Parliament having place and voyce there Stat 1. E. 6. cap. 13. be convicted of Felony wherein Clergie is allowed upon request alleadging that hee is a Baron c. and clayming the benefit of his Clergie although hee cannot reade without burning in the hand losse of Inheritance or corruption of blood hee shall for the first time bee deemed a Clerke convict and may have purgation Also Privile 13. whereas it is ordained that the Justice of the Peace named of the Quorum shall be resident in his Shire Stat. 2. H 5 cap. 4. by a Proviso the Peeres of the Realme are exampted By the antient Lawes before William the Conquerors time Lemb perambul de Kent 21. Britt cap. 29. Marlb cap 10. every man above 12. yeeres should be sworne to the King which we observe now in the veiw of Francke-pledge Court-leete But noble men c. are neither bound to attend the Leete nor take the oath If an Error be brought in Parliament upon a Iudgement in B. R. the upper house alone without the Commons Postaat 20. are to examine the errors In 11. H. 6.2 in a case concerning distresse taken for expences and fees of the Knights of the Parliament 11. H 6.2 It was agreed that the Barons are not contributorie for Lands parcell of the antient Barony but for other lands but there is a question made whether the purchaser of such an antient Barony should enjoy the said priviledge which question was not worthy the questioning for as lands holden by Villaines service doth not make the free purchaser a Villaine though he be bound to doe such Villaine service so doth not such Purchase ennoble him that purchaseth By the Stat. of 5. Eliz. cap 1. all Burgesses of Parliament shall take the oath of supremacie Staâ— 5 Eliz cap. 1. so shall Citizens and Barons of Cinqueports But there is a Proviso in that Stat. that forasmuch as the Qu. is otherwise sufficiently assured of the faith c. of the temporall lawes Therfore this act shall not compellany of or above the degree of a Baron to take this oath nor to incurre any penalty limited for the refusall By the Stat. of 5. R. 2. cap. 12. the King defendeth the passage of all manner of People in every Port Stat. 5. R. 2. cap. 12. c. upon the Sea Coast