Honour given in respect of wisdome and vertue of him on whom it was first bestowed is not onely a due reverence of him c. while he liveth but also a memorable reward thereof to his posteritie see Tully Cicero pro Sextio Therefore this kind of honour is patrimoniall If infamy of the ancestor be a blot to posteritie as for it the law doth corrupt the blood for the offence of the Ancestor Reason would that the honour due to the Ancestor should be likewise Honour to the posteritie for Contraries doe carrie their contrary in reason For determination whereof it is to be noted that diversitie of reason hath bred diversitie of opinions Some thinke it is not descendable vnlesse the Heire be likewise called by Writ and that then its an inheritance but this is repugnant to the nature of a descent which commonly carieth the patrimony descendable by act in law vpon the death of the ancestors to the heire or not at all Wherefore divers presidents prove that this doth descend and there needs not any word of heire in the Writ of Summons onely there is a speech of a speciall Writ sometimes directed to Sir Henry Bromflet Teste Rege apud West 24 Iun. 27. H 6. when he was called Lo. Vescy by H. 8. in 27. yeere of his raigne wherein there are these words inserted Volumus tamen vos haeredes vestros masculos de corpore vestro legitime exeuntes Barones de Vescye Wherfore it is ever true that the heire of such a Baron when he is called to the Parliament that his descent of honour is thereby established and approved by the gratious Iudgment of our Soveraigne so it is also true that if it shall stand with her highnesse pleasure that such heire shall not be summoned at all for none come to so high a Councell except he be called then that Nobilitie is much impaired and in manner extinguished in the censure of all men for that it had no other originall but by writ of Summons for the which in the Judgement of the supreme Soveraigne he is secluded And thus much as concerning the first Article or point touching the descent in generall of this kind of Baronie As for the second principall Point The second point whether the Barony by Writ may descend to the heire Male it shall not be amisse likewise to view the reasons of each part that by the conflict of Argument the truth may the better be discerned Those which doe maintaine the affirmative part doe reason after this manner Ratio 1. On the affirmative part In reason the sexe of the Heire female ought no more to barre her of the dignitie then the nonage of the Heire male ought to barre him although during his nonage hee be not able to doe the service But as the service of the one is forbearing for the time So the sexe of the other may at all times be supplyed by the maturitie and sufficiencie of her husband Ratio 2. Offices of Honour which doe much import the publike weale being possessed by inheritance to descend to the heire female if there bee no Neeces heire male as the office of high Constable of England which descended unto the Daughter of Humfrey de Bohun Earle of Hereford and Essex as afore declared the office of Lord Steward descended unto Blanch Daughter of Henry Earle of Lancaster in whose right Iohn 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 Norfolke All which Offices are as unfit to be exercised by a woman as it is unfit for a woman to bee summoned to the Parliament as a Baron by Writ And yet notwithstanding the Law doth allow the Husband of such a woman to exercise the Office of the one And therefore by the same congruitie of reason such Husband is likewise by law inabled to performe the other Ratio 3. Many Noble houses in England doe support and lawfully beare the Dignitie of Baronage unto them descended by women Renatus Cap nus de dom cap. H. 7. 8. of the which many are by Writ Moreover in France the dignitie to be a Peere of the Realme as Opimus by many examples proveth descendeth to the heire female for want of heire male The dignitie of Nobilitie descendeth likewise in Spaine vnto the female for want of Heire male which custome not being onely currant in our neighbour countries but with vs in an evident proofe in the case in question Ratio 1. on the Negat The adverse part object that the writ of summons c. by which the Baron hath his originall is to call him to be one of the members of that right high assemby of Parliament there to determine life and member plea and right of land c. but these things are convenient onely for the qualitie of men not to the other sexe Ergo it not to descend to the heire female Ratio 2. If it be answered that such heire female be unfit in her owne person yet may she marry one fufficiently able to excecute the same this answer will neither satisfie nor salve the inconvenience for admit she were at age at the death of her Ancestors vnmarried being in her owne choice the great causes of the Realme should be subject to her will in the choise of her Husband which were inconvenient Ratio 3 Thirdly if such husband bee summoned the writ should make meantion thereof for otherwise it may be taken that he was chosen in his owne person and not in her right but such a Summons wherein the wife was mentioned was never seene and if by a generall writ without mentioning his wife hee is thereby made Baron in his owne right Obser 1 Having heard the arguments on both sides place doth now require that we should interpose opinion to compound this controversie This question is somewhat perplexed by different Presidents for some Presidents prove that Baronies by Writ have descended to Heires females whose Husbands have beene called to the Parliament whether in their owne or Wives right it matters not but sure it is that such Marriage gave occasion to the Summons and such Husbands and their posterities beare the dignitie of the wives Ancestors for by this controversie wee purpose not to question the right of such Noble houses Obser 2 Secondly wee must acknowledge that the Qu. is to summon to the Parliament whom she please and therefore whereas Rodulph Lord Cromell being a Baron by Writ died having two Coheires Barony of Cromwell Eliz. married to Sir Thomas Nevill and Ioan the younger to Sir Humfrey Bourchier the said Sir Humphrey was called to the Parliament as Lord Cromwell and not Sir Thomas Nevill who had married the eldest Sister Obser 3 That if a Baron by Writ die his Daughter Sister or other collaterall Heire female being his Heire and that no collaterall Heire
A TREATISE OF THE NOBILITIE Of the Realme COLLECTED OVT OF THE BODY Of the Common Law with mention of such Statutes as are incidet hereunto upon a debate of the Barony of Aburgavenny With a Table of the heads contained in this Treatise LONDON Printed by A.N. for Mathow Walbanke and Richard Best and are to be sold at their shops at Grayes-Inne gate 1642. The Table OF Barons Page 3. The definition and description of a Baron Page 37 Of the name Baron Page 40 The Antiquitie of the Dignitie of Barons and the uses of the Name Page 43 If a Baron by Tenure grant the Honour holden by Barony whether shall the Grantee have the Dignity or otherwise Page 68 Certaine Cases wherein a Baron hath no priviledge Page 127 Noblitie and Lords in reputation onely Page 131 Noble Women Page 132 Honourable Women of three sorts Ibid. â—adyes in Reputation Page 140 The Hypothesis or particular question Page 143 The Barony of Aburgavenny a Barony by Tenure and an ancient Honour Page 145 The Line of the Hastings owners of the Castle of and Barons of Aburgavenny Page 149 The Descent Page 156 The family of Beauchampe L. Aburgavenny Ibid. A Treatise of the Nobilitie of the Realme according to the Law Question Whether the Barony of Aburgavenny with the title and dignitie be descended unto the Lady being the Daughter and Heire of the Honourable Hen. Nevill the late Baron of Aburgavenny or unto the speciall heire male unto whom the Castle of Aburg being antiently the head of hat Barony is descended WHerein are three things considerable 1. First this generall Thesis whether within the Realme of England there be any Baronies by Tenure And whether Baronia sit dignitas annexa â—odo vizt whether the heire male haâ—ing the Castle holden per Baroniam shall have the title or the heire generall which hath not the Castle 2. The second is Hypothesis whether by former presidents it may be shewed that this Barony of Aburg hath beene guided by the lawfull descent of the Castle of Aburgavenny or whether the same hath gone to the heires generals sundred from the Castle 3. The third is that it is not to bee doubted whether the dignitie of Baron may descend to the heire female for where such Castles is holden per Baroniam and doth descend unto the heire female There likewise the title c. as in many Noble houses of this Realme is most evident but The Question is whether the title of Baron or Baronesse may descend to the heire female whereas that fee holden by Barony is descended to the Heire male or no and whether the fee to support the dignitie may bee severed from the dignitie A Treatise of the Barons of this Realme IT is true of Vlpian Publicè interest quod ordinum familiarumque solva sit Lib. O sed si F. de ventre inspiciend Baldwin in la sacraledge divinis rescript Ante Nobilit cap. 6. Which duly considered is cause that the speciall heire male of the late Baron deceased without any affection of honour or humour of ambition desireth to make knowne what things former times observed hee hath now found to have been considered in such like Quaeries Neverthelesse with all humility and loyall dutie hee submitteth himselfe to the princely pleasure of the Queenes most excellent Majestie â—n whom is the fountaine of all Nobilitie and unto the censure of the right Honourable the Earle Marshall of England unto whom the jurisdiction and Cognisance of the same cause by office appertaineth But before proofe be produced 1. By what law this Quer. is to be determined it shall not bee amisse to consider two principall things what manner of proofe in these causes is most pregnant and by what law this controversie might best bee determined 3. 2. Touching the state ofour Bâ—renies Some things are requisite to bee delivered before in generall manner touching the state of the Baronies within the Realme whereby the Querie in hand may be the better apprehended and receive the more easie resolution As touching the first it is to bee observed that the dignity of a Baron and that name given to a degree of Nobilitie was not usuall any where untill neere the declination of the Rom. Monarchy and therefore those parts of the civill Law which containe the ancient Roman lawes doe affoord small proofe of the deciding of this kind of controversie otherwise then prechance now and then there are inserted some generall sentences or axiomes of the law of nature which may be particularly applied as the occasion serveth Therefore in those times upon the sundry invasions of those Northerne people Goths Vandalls which hastened the ruine of the Romane estate when Tenures and it which they call Feuda had their first originall divers new dignities of Nobilitie were devised and drawne from the service of the field whereof some of them formerly had beene but names of Offices as may appeare in the second booke de feudis in the title Quis dicatur dux Marchio c. Hee that would not have the controversies moved within the Realme concerning this kind of Dignities to be deterined by the Common law and yet would that the common custome of our Countrey should direct the same speakes in my understanding contrary things for it is a generall Maxime 7. H. 6. Martin 9. Ed. 4. 38 H. 8. Custom B. 59 that the Common custome of the Realme is the common law of the Realme Therefore to affirme that the common usage of the Countrey should direct the controversie and to denie that the common Law should determine it is contrary to it selfe That the common Law doth determine this kind of Controversie it cannot seeme strange to him that considereth the generall division whereby the said law is distributed into parts Bracton lib. 1. cap 5. 2 de justo jure Est autem jus publicum jus privatum Jus publicum Bracton disposeth it Est jus quod ad statum Reipub. pertinet consistit in sacris Sacerdotibus Magistris Others give a more large scope to this division Ioachimus Hosp de juris arte lib. 2. de rebus humanis sive de jur ' civil distributing jus publicum into three parts into Jus civile jus fecile jus questortum The first part jus civile though it be the generall name of the whole Law yet in this division thye doe understand thereby that part of the Law wherein consideration of many things are had tending chiefly to the publick good and wherein persons of men are considered diversly Dividumtur quinque formae modis pro loco pro facultate pro ordine pro jure pro dignitate Under that division which is in respect of Order all degrees of persons Noble and ignoble are comprehended and under the division in regard of dignity the Prince Magistrate Pro ordine Officers of all kinds are contained Pro dignitate The consideration therefore of
Likewise the said first rule touching the Nobilitie of Women married unto persons ignoable doth faile where they inherit those dignities For if a Dukedome Earldome or Barony descend unto any woman who taketh an ignoble man to husband that husband shall not debase the wife having such Dignities descended but rather he in her right shall beare the title of such dignities especially if he be intituled by the Courtesie Object 3 A third Object is this It is said that by the law of Chivalry exercised within the Realme if a Baron be created an Earle c. that the heire apparent of such Earle c. shall after such Creation of his Father beare the title of the Barony c. but this is not usuall by the course of the Common law therefore the descent of such Dignities not to be guided by the Common Law The common law doth not disallow any such usage Resolu for it being the custome of the Realme is the law of the Realme Howbeit the Common Law doth put a difference betweene such Heires apparent as carry those Titles lawfully in respect of the usage and such others as have them by Creation or otherwise for such Heire apparent is no Peere of the Realme as those by Creation or such as have the Earldome c upon descent after the death of his Auncestor and therefore as when the Lord Hen. Howard Earle of Surry Son Heire apparent to Thomas Duke of Norfolke An Earle by Nativity was attainted his Triall was by Iury of Knights and Gentlemen not by Barons c. for that hee was an Earle by Nativity which in respect of tryall the Law doth not allow The like tryal chanced to the Lord Gray who 33. H. 8. was in B. K. arraigned of treason and appointed to bee tried by a Jury of Knights and Gentlemen and not by Peeres Causa qua supra but he confessed the Indictment and the Jury were dismissed yet such shall hold precedency of place at Court and in the presence of their Soveraigne as is usuall in that behalfe Obje 4 It is objected fourthly that by the Common law a man may not bee called Lord of that he hath not But by the law of Chivalry a man may bee created Earle of a County having no land therein therefore differ Resol 1 It is true that some particulars of ordinary proceedings in the law doth differ from other proceedings concerning Chivalry and yet their difference is no other then as one hand doth differ from another both are hands and both of one body That part of the law which concemeth purporty doth not allow a man to bee called Lord of that wherein he is no way owner in demesne or seignory but when you draw the law to the consideration of dignity the whole resolution must rest upon the Patent of creation Earle pur autre vie 31. H 6.29 pur Danby wherein the name is appointed at the pleasure of the Soveraigne for one may be Earle during the life of another if the Creation be so But I answer further that it is not true that every Earle must be Earle of a place nor every Earle of a place Earle of a County nor that every Earle of a County hath nothing in that County whereby he is Earle For the better manifestation consider that originally within this Realme Earldome of Counties in the antient English Saxon Governours were not onely dignities of honour but also offices of Justice Vea leg Edgar regis de Consil Lamb. 80. n. 5. for that they did further the administration of Justice in the County whereof they were Earles or Aldermen they likewise had their Deputies under them the Sheriffe an Officer yet containing the name of his substitution in Latine Vicecomes Camden 107. These Earles in recompence of their travailes received a Salary name by the third penny of the profits of the said County which continued long after the Conquest and was inserted as a princely benevolence in the Patent of Creation as by divers antient Charters may appeare which afterward were turned into Pensions H 3. dedit Haberâ—o de burgo 40 pro 3. deno Com. Cant. de quoeund creavit comit habeÌ„d sibi haered de corpore Marger uaeor Alexand. reg Scotiae 13. H 3. in turr Lond. 33 H. 6.29.6 H. 8. Dy. 2. for the better maintenace of that honour and as appeareth by a booke case upon the pleading of the Patent whereby H. 6. Created that worthy Knight Sir John Talbot Earle of Shrewsbury which Pension is so annexed unto their Dignitie as that by any meanes of alienation it cannot be severed and therefore in respect of such Pensions which were the third part of the profits of the County or other summe in lieu thereof some have not without probabilitie imagined Quod Comites nominabant capiend fisco Regis socij Comites fido participes essent Lamberd c. Of the single Ear. and not Palentine with Engl there have beene principally two kinds but every one of them againe subdivided into severall branches for either they take their names of a place or hold their Title without any place Those that take their names of a place are of two kinds for either the same place is a County which is most usuall or else some other place and no County as a Towne Castle or honour c. of which later sort some are more antient having their originall even from the Conquest or shortly after as the Earledome of Richmond in Yorkshire Clarence in Suff. Arundell in Essex all which had their originall in the time of the Conquerours by donation of those Castles c. The Earledomes of Bath temp H. 7. H. 8. erected in the family where now it remaineth and the Earledome of Bridgewater whereof Sir Giles Dawbeney was Created Earle temp H. 7. Earledomes which have their titles without any place are likewise of two kinds either in respect of office as is the Earle Marshall for it is granted in this or the like manner Officium Comit. Marescal ' Angl ' with further words vizt A.B. c. Comit. Marescallum Angl. creamus ordinamus c. by which it appeares that the very office is an Earledome Earle by birth The second sort are Earles by birth and so are all the Sons of the Kings of England if they have none other dignitie bestowed upon them and therefore it is said that John afterwards King of England in the life-time of his Father H. 2. was called Counte sans terre before he was affied unto Alice the Daughter of the Earle of Morton in France Object 5 A fifth Object is this The law of Chivalry proceedeth not in the accomplishment of a combate in such manner as is performed by the course of the Common law either in the Writ of right by Champion or in the Appeale by person therefore the managing of the causes in Chivalry is not in the common law especially 37. H.
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