erit consuetudo regionis observanda ubi haereditas est quae petitur personae nascuntur quae petunt Et unde si dicatur quod in regno Angl. aliquando facta fuit partitio hoc fuit injustum Vermon liver d'antiquities à placitio 290 ad placiumt 301. It is therefore evident that Baronies c. doe by the lawes of the Realme descend unto the eldest Copercener and Judgement given once to the contrary Thereof Bracton doth rightly accompt to be unjust his reason is notable For in as much as the Honour and Chivalty of the Realme doth chiefly consist in the Nobilitie reason will not that such dignities should be divided among Coperceners whereby through multitude the reputation of honour in such succession Pet. Greg. de repub lib. 7. cap. 5. and so divided might bee impaired as the strength of the Realme being drawne into many hands with decrease of livelihood by such partition should be infeebled In which resolution Britton the Baroned Bishop of Hereford Britton 187. de herit devis who compiled this Booke in the name and by the commandment of Ed. 1. accordeth who delivered this as a speciall Caveat En tous cases sont les droits des espees that which Braecton calleth Ius gladij gardes de sole misse dismembres he calleth it Ius gladij because Dukes Earles be at the time of their creation Cinguntur gladijs gladius autem significat defensione reginae patriae But howsoever that judgement was given or whensoever it was neverthelesse very evident that it was soone redressed for if it were given upon the death of Ranulph the last of the name E. of Chester who died about 17. H. 3. the Writers about that time doe testifie that the Earledome of Chester came wholly to Iohn Scot the sonne of David Earle of Huntington and Anguish and of Maude the eldest Sister of the said Ranulph If it were given upon the death of the said Iohn Scot who died without issue about 24. H. 3. for in the reports of the Law the difference of a yeare is no great matter yet notwithstanding the said Judgement stood not in force Math. Paris Monast Sancti Albani Chron. 36. 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 haered tas inter Colos deduceretur M. 6. H. 8. That the descent of Dignities and Offices of Honour are determinable by the Common law is made manifest by the great cause concerning the office of the Lo. high Constable of England challenged tempore H. 8. by the Duke of Buckingham and determined by the resolution of the Judges as by a note of that Case extant Dyer 285. whereof my Lord Dyer in his Reports hath a memoriall is most evident where the Case ws that Humph de Bohun Earle of Hertford and Essex held the Manor of Hatfield Newnham and Whiting hurst in com' Glouc ' du roy pur service de eant hault Constable d' Anglque mor ' tyent issue 2 files que font particion de mesme les Maners part le office eant servic ' pur reason de tenureque descent ' al ambu files deÌ„e exercise pur lour sufficient deputie dum sole ' vixerint mez aprez lour mariage fuit deÌ„e exercise solement pur le Baron el'eigne Mes quia Hen. de Bullingb Ca'ps H. 4. que ad espouse le puisne a que le man ' de Whittenhurst de eant part ' de terr' iss ' ten ' fuit allot ' pur sa pur port Another Querie was moved whether by the unitie of parcell of the tenancy in the King the said Office were not determined or whether this were in the other Sister which the Justices resolved that the Office had its continuance in the eldest Sister and her heires of whom the said Duke was discended but because the exercise of the said Office was a service in respect of tenure the said Judges further resolved that the King might refuse to have the said office exercised as any Lord may refuse the homage of his Tenant All which resolutions the two chiefe Justices did signifie unto the King according to the names of themselves and the rest Object 2 Second Objection that by the law of Chivalry if the Widow of a Duke Earle Baron c. doe marry with a Knight Esquire or Gentleman then neverthelesse shee retaineth her name of honour whereas the Common Law doth otherwise determine thereof and therefore they conclude that the common Law doth not determine this kind of controversie concerning the title names and dignities Noble There must be made a dis-Junction betweene the strictnesse of Law Resolu and courtesie of Ladyes at the Court 14 H. 6.2 8. a. for it is a rule in Law as it is the same law of Chivalry and in that point so is and should be knowne among the Heraulds for asmuch as a report of law in that case doth acknowledge it to be taken out of the bookes of Heraulds 5. Mar. bre Br. 546. nosme 69. Fortescue 100. that Quando mulier nobilis nupserit igncb c. Of the which Fortescue sometime chiefe Justice of England yeeldeth a notable reason Cod lib. 10. de incolis leg sinal Mulieres honore maritorum c. sin autem minoris ordinis verum For if shee be honoured with any title in respect of her Husband it is reason that after his death she marrying with an inferiour sub cujus potestate vivet that she should bee of like qualitie and reputation as is her said Husband For as she was inabled by the one so must she be content to leave that Nobilitie by strict course of law for liue of the other so that in this point the law is one way and the honour and courtesie of Ladyes another And as the Civilian saith in the like case 6. E. 3.7 E 6.79 3 Eliz 23.69 Aliud est jus aliud Privilegium Neverthelesse the books of our law do make mention of that Courtesie and allow of it as a Courterie though not as the Law With these doe agree the law of Nation with which concordeth also the Civill law Foeminae nuptae clarissimis personis clariss personarum appellatione continuentur But of the other side clariss â—oeminarum nomine senator Filiae nisi quae viros claeriss sortitae sunt non habentur Foeminis enim dignitat clariss mariti tribuunt Parentes verò donec plebeis nuptijs fuerint copulaetae Cod de dignit leg 12. tamdiu igitur clariss foemina erat quaemdiu Senatori nupt est vos clariss aut separat ab eo alij inferioris dign non nupserit Neverthelesse Iacob Rebuff indâ—ct leg 1. lib. 12. Cod de dignitat in Kingdomes this holdeth not place in the blood Royall for Si filia Regis nubat alicui Duci vel Comiti dicitur tamen semper Regalis
Being arraigned of felony in an Appeale he shall not be tried by his Peeres as in case of Inditement in which case he may not challenge any of the Triers either peremptorily or upon causes which is permitted to all other common persons The Iudgment is the vsuall Iudgement given against common persons and though the King pardon all but the losse of his head that is of speciall grace not ex debito By Attainder the blood is corrupted and he and his posterity made ignoble Stam. lib. 3. cap. 34. and cannot be restored by the Kings pardon but onely by authoritie of Parliament And note that Nobility is not a thing substantiall but meerely accidentall present or absent without corruption of his subject for experience shewes that honourable titles are restrained by exorbitant crimes when the nature in the meane while cannot be thrust out with a forke wherefore though we tearme extinguishment of Nobility in cases of Attainder yet this phrase is not vsed as though Nobility were essentially in the homour of the blood more then any other hereditary faculty But because the right of inheritance which descends by communication of blood is by that meanes determined and also in regard of the detestation of the crime it is called corruption of blood 16. Eliz. Dyer 332. The Lord Charles Flowards case if one be made a Knight by a forraign King he is so to be stiled in all legall proceedings in this Realme But if he be created by the Emperour an Earle it is other wise Coke 7.16 If the King Create the son a Duke c. and the father dies he within age shal be in ward but if he had bin made a Knight in his fâ—â—hers life he should not be in ward neither for the lands descended nor marriage Coke 74. Drueries Case though he be within age Nobilitie and Lords in reputation onely THere be other Lords in reputation and appellation who neverthelesse are not Iure neither can they enjoy the priviledges of those of the Nobilitie of the Parliament viz. The Sonne and heire of a Duke during the life of his father is onely by curtesie called an Earle and the eldest sonne of an Ea. a Baron but not in legall proceedings Br. Treason 2. Coke 8-16 But the King may create them in the life of their Auncestors Lords of the Parliament A Duke or other of the Nobilitie of a forraign Nation being named Duke in Letters of safe conduct that makes him not Duke to be sued by that name in England but a forraigne King ought so to be stiled though he hath not merum imperium out of his owne Kingdome Cok 7.15 c All the younger Sonnes of the King of England are Earles by birth without other creation and onely Lords by reputation A Lord of Ireland or Scotland though he be post-natus is but onely Lord in reputation Noble Women ALthough Noble Women may not sit in Parliament in respect of their Sexes yet are they in Law Peeres of the Realme and may challenge all Coke 8.53 or most of the former Priviledges But the opinions of some have been Crompt Iust de peace 85. that they cannot maintaine any Action upon the Statute of 2. R. 2. cap. 2. de Scand Magnat because the Statute speakes onely of other Sexes If any of the Kings servants within in the Checkroll conspire the death of any Noble woman that is not felony within the Statute of 3. H. 7.13 Honourable women of three sorts By Creation Descent Marriage H. 8. Created Anne Bullen Marchionesse of Pembrooke King James Created the Lady Compton Wife to Sir Thomas Compton Countesse of Buckingham in the life of her said Husband without any addition of honour to him And formerly by Patents openly read in Parliament without any other investure did Create Mary sole Daughter and heire of the late Baron of Aburgauen Camden 63.6 Baronesse de le Spenser Noble Women by Descent are those to whom lands holden by such Dignitie doe descend or whose Ancestors were seized of an estate descendable in their Titles of Dukedomes c. or those whose Ancestors were summoned to the Parliament by this an Inheritance doth accrue to their posteritie They who take to Husband any Peere of the Realme though they themselves were not noble Fortescue fol. 100. Question hath bin made whether the Dignitie of one suÌ„moned to the Parliament dying without issue male may descend to the female but this may appeare by the former Treatise Concerning the title of Honour descendable to the Heire female it is cleere that such offices being of estate of inheritance doe descend as the office of the high Constableship of England challenged tempore H. 3. by the Duke of Buckingham was adjudged to descend to the Daughter of Humfrey Bohun Earle of Hereford So the office of Earle Marshall descended to the house of Norfolke all which offices are as unfit to be exercised by their sexes as unfit for them to be summoned to the Parliament And if such Title come in competition the issue shall bee tried by record and certified by the Kings Writ and not by Jury Coke 6.5 3.7 part 15. Though all Daughters be Coperceners and make but one Heire yet in descent of Dignities it is otherwise for they bee things entire participating of superioritie therefore descendable onely to the eldest And so is the Civill Law yet there was a Judgement tempore H. 3. touching the descent of the Earledome of Chester Obijt 17. H. 3. the Earle dying without issue leaving his Sisters his Heires The Judgement was that it should be divided equally among Coperceners But this Judgement was held erroneous in that very age Vide Bract. li. 2. cap. 34 fol. 76. hoc fuit injustum c. His reasons are because the honour of Chivalrie chiefly consisting in the Nobilitie may not be divided for by multitude of partitions the reputation of Honours in such succession must bee impaired and the strength of the Realme being drawne into many hands by such partition much infeebled In which resolution Britton by commandment and in the name of E. 1. accorded fol. 187. The former Judgement was given about 17. H. 3. And the Writers of that time testifie that it came holy unto Iohn Scot Son of David Earle of Huntington and Anguish and Maude the eldest Sister of the said Randolph if it were given upon the death of John Scot who died without issue about 24. H. 3. yet it stood in force because the King assumed the Earledome to himselfe upon other satisfaction to the coperceners Mat. Par. 366. tamen vide Mills 75. Guillem 28. Hugh Lupus the first Earle of Chester was by the Conquerour his vncle created into that dignitie Mills 74.75 Coke 35.7 part 15. habend fibi c. adeo libere per gladium sicut Rex ipse tenuit Angliam per Coronam c. he died without issue and the Earldome divided among his 4. sisters If she be noble
by birth though she marry vnder her degree she remaines noble but those innobled by marriage and after marry with a man of meaner degree utterly lose her former dignitie Fortescue 100. Cooke 6.33.4.118 It was the case of Ra. Howard Esquire husband of the widow of the Lord Powes against the Dutches of Suffolke the Writ naming her Ladie Anne Powes Dyer 79. so also in Qu. Maryes times when the Dutches of Suffolke married Stokes bre Bro. 146. digest lib. 1. Tit. 9. for the dignity accruing by marriage is but in fait and not by any record Coke 6.53 Coke 4.117 Cawells instit lib. 1. Tit. 10.15 So long shall a Dukes wife be called Dutches and an Earles Countesse and enjoy all honours appertaining to that estate with tasting kneeling serving c. And a Baronesse and Knights wife saluted Lady Quamdiu matrimonium aut viduitas vxoris durant except she elope for as then every woman shall lose her dower so being advanced by titles of dignitie by that husband by such elopement loseth them If a Ladie which is married come through the forrest shee hath no priviledge by the Statute but a Dutchesse or Countesse during the time she is vnmarried may Crompt Juris dict 167. Such Ladies whether they be married or sole upon Indictment shall be tried per Peeres by the Statute of 20. H. 6. cap. 9. it being a declaration of the common law Coke 6.52 By the Civill Law Si filia Regis nubat alicui Domino vel Comit. dicetur tamen semper Regalis Among Noble women there is difference of degrees and according to their qualities the law gives speciall priviledges as followeth by the Stat. of 25. of E. 3 2. it is high Treason to compasse or imagine the death of the Queene or to violate the Kings companion The Kings Spouse is a sole person in law to purchase c. plead and be impleaded Coke 4.23.6 Theboal lib. 1. cap. 4 24 E. 3.3.8 Bract. 363. And of such acts of Parliament as concerne her the Iudges ought to take notice Coment 231. a Coke 8.28 In some cases she shall have Prerogative as the King himselfe See the case of Wardship 5. E. 3.4 Stamf. prerog cap. 2. The Qu. Wife to the King or widow shall not be amerced if she be non-suited whereas all other subjects shall for she shall participate with the Kings prerogative Coke 8.62 but not in all cases for the subject shall not sue to her by Petition as to the King 11. H. 4 67. Stamf. prerog cap. 22. Against the King Nullum tempus occurrit otherwise of the Queene 18. E. 3.2 Philippa Regina Angl. Ibid. fol. 1. 13. Stam. prerog 18. In 21. E. 3.6 A Protection was allowed against the Queene In a Writ of dower against Isabel Qu. of England mother to the then King the Iudges were of opinion that shee was not to answer to any Writ but said they to the plaintife it behoveth you to go to her by Petition to whom the Demandant Dixit graits and prayed the court for a continuance of the action vntill shee might speake with the Queene But they nor the Queenes Councell would agree that the Qu. should be accepted as answerable 10. E 3.379 The Wife of the Kings eldest Son hath some prerogative not communicable to the Wives of other Noblemen for by the Statute of 25. E. 3. It is high Treason to violate her Dutchesses also and Countesses have speciall honour appertaining to their estates as kneeling and tasting which things I leave to the Heraulds The Statute of 7. Iac. cap. 6. intituled an Act for the administring the oath of Allegiance requireth those of 18. yeares or above to take the said oath The title is for administration of the Oath c. and reformation of married women Recusants Ladyes in Reputation THe Wife or Widow of the sonne and heire of a Duke or Earle in the life of his Father is a Lady by Curtesie and taketh place according to the antient time as they have beene permitted by their Soveraigne Prince and allowance of the Herauld But in legall proceedings they are not to have such Priviledge If a Noblewoman of Spaine come into England by a safe conduct or c. And so stiled in the said Letters yet is shee but a Lady in reputation And English woman borne taketh to Husband a Spanish or French Duke though hee be made Denizen yet shall she not beare the title of Dignitie in legall proceedings A German woman is married to the Marquesse of Northampton or c. unlesse she be made Denizen shee cannot claime the priviledge or title of her Husband no more then shee can claime Dower or Joynture An English woman doth take the Earle of Kildare in Ireland to her Husband or if a Lord in Scotland though hee be post natus c. their wives shall not aprticipate their Husbands Dignities But if the King Create one of his Subjects naturalized by Parliament to be Viscount Rochester within England and after summon him to the Parliament by Writ and assigne him place there by this is he made Peere of the Realme and partakes with them of all Priviledges and by consequence his Wife Widow and Children after him E. of Angus in Scotland 34. E. 3.35 Gilbert Humfrevils case But if an English man be made by the Emperour Earle of the Empire his Wife shall not beare that title either according to law or reputation All Daughters of Dukes Marquesses and Earles are by custome long used in the Kings Palace to be named Ladies and to have precedencie according to the degrees of their parents and of this custome the Law taketh notice But neverthelesse in the Kings Courts of Justice they beare not this title of Honour no more then the Sons of such noble personages Brothers to such Ladyes may doe The Hypothesis or particular Question WHether the Dignitie of Aburgavenny Sit conjuncta feodo and such as ought to descend to the speciall Heire male seized of the Castle bearing the head of that Barony and of the lands that make that Honour Or whether the Dignitie Name and Stile to be Baron of Aburgaven ought to descend to the generall Heire male who is not interessed in the said Castle or honour For the more orderly proceeding herein to avoid confusion and that every thing appeare concerning his question in his proper person There shall be shewed First that the Barony is a Barony by by tenure a very antient Honour and no Barony by Writ onely whereof will ensue by the former Declaration in the treatise of Barony That the dignitie and name de jure ought to go and descend with the Castle and Honour so holden as long as the same shall or may continue in the name blood and line of such as are nobly descended and may support the same There shall be Proved Secondly That the said Barony of Aburgav and the name title and dignitie of Lord and Barony of Aburg de facto