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.
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
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