leaving Elizabeth his daughter and heire married to Richard Earle of Warw. after whose death James the Nephew entered into the said Castle Som Parliament 9 H. 5. Esch 5. H. 6. c. and was summoned to the Parliament as Lord Barkley Tho. Lo. de la Ware died seized in taile by reason of a fine levied in the time of his Ancestors of the Baronie de la Ware with divers other lands in other Counties and died 5. H. 6 without issue And Reginald West Knight of the halfe blood was next Heire Som. Parliament An 7. H. 6 by reason of the intaile And was summoned to the Parliament by the name of Regin Lo. de la Ware Knight although Iohn Griffeth was heire of the whole blood Iohn de Vere Esch 9. H 6 20. H. 6. E. of Oxford seized in his demesne as of fee taile to him and to the Heires males of his body issuing of the Honour and County of Oxford with divers other lands Ao. 18. H. 8. died without Heires of his body and his three sisters viz. Elizab. Vrsula and Dorothy were his next heire generall but Iohn De Vere next heire male was E. of Oxford by reason of the said intaile and none of the said three Heires obtained the dignitie William Lord Paget of Bewdsert Esch Anno 11. Eliz. was seized in fee of the Baronies of Longden and Haywood and of and in the Mannors of Bewdsert Longden c. and being so seized by fine 1. Mar. intayled the Mannours and Baronies aforesaid to him and the Heires males of his body issuing and after anno 5. Eliz. died leaving Hen. his Son next heire male which Hen. entred into the Baronies and lands aforesaid by vertue of the aforesaid fine and died thereof seized 11. Eliz. leaving Elizabeth his onely Daughter and heire after whose death Tho. Paget brother and heire male of the said Hen. entred into the Baronies and Mannors aforesaid and was summoned to the Parliament by vertue of the aforesaid fine Robert le Ogle intayled the Mannors of Bothall and Ogle Esch 6. Eliz. with divers other Mannors c. Com. Northumb. to himselfe for life the Remainder to the Heires males of his body and tooke to his first wife Dorothy Witherington by whom he had issue Robert his eldest sonne and Margery his daughter married Gregory Ogle of Chippington and the said Rob. after the death of his first wife married Iohan Ratliffe Brother of the half blood by whom he had issue Cuthbert his second sonne and died after whose death Robt. the Sonne was Lord Ogle and from him to Cuthbert brother of the halfe blood by vertue of the intaile and not vnto Marg. nor Cuthbert her sonne of the whole blood Moreover thirdly 3. Conclusion if a Baron by tenure doth Aliene by Licence to a meere stranger upon consideration or c. if such Alience be nobly descended in such cases after such alienations such Alience hath borne the name and dignitie of a Baron in respect of such Barony so aliened And if he had no Dignity before hee in respect of that hath beene summoned to the Parliament and enjoyed the Barony hereof are Presidents extant Maude Esch 22. Ric. 2. Countesse of Angiers and Northumb. Heire of the Barony of Cockermouth after the death of Lucy her Brother who dyed without issue intailed the honour c. of Cocker-mouth to her selfe and to Henry Piercy Earle of Northumberland then her Husband and to the Heires males of their bodyes upon condition that that should beare the Armes of the said Earle which are Armes given Or a Lyon rampant 6. quartered with the Armes of Lucie viz. Gules 3. Lucies argent bearing the said Armes so often as they shall appeare and afterwards viz. 22. R. 2. died without issue Neverthelesse the said Earle and after him the said Hen. Percy his Son were Barons of the said Honour by the said assurance and Sir William Melton Knight Couzen and next Heire of the said Countesse never had the said Armes Amongst the Parents in the Tower Chart patent in 41. H 3. Anno 41. H. 3. it appearth that one Herward de Marisco and Rameta his wife did grant unto Simon de Mountfort then Earle of Leycester the Barony of Elinden in the County of Northampton which descended to the said Rameta from John de Vescount which Graunt seemeth to be with Licence for that the said King doth by his Patent confirme the same and further gave to the said Earle and his Heires divers priviledges there Also Exchange of a Barony this antient Charter following concerning the exchange of a Barony with the King is worthy memory which is K. Iohn ao. 7. granted unto Robert de Newbergh Fordington for the honour of Burstocke in exchange and granted that it should be the head and the chiefe of the Baronship as Burstock was aforetime and that all Knights and others should attend upon him and his lands in Fordington as chiefe of his Baronship as they aforetime were attendant upon Robert Burstock By these Presidents appeareth that Barony by tenure is annexa feodo So that the former questions are fully satisfied and answered viz. 1. That by alienation without Licence the Barony is ferfeited 2. The heires Males have enjoyed them and the Females excluded 3. That the Alience of such a Barony nobly descended is Baron But if such alienation with Licence be made to any person ignoble Nora 1. though the burden of the tenure doth remaine on him for the K. best advantage yet he may not take upon him the Dignitie without the Kings speciall favour upon his merit Upon consideration therefore of these assertions all the former objections are answered and as touching the first it is answered by that which is last specified that an ignoble Alience may challenge nothing as a Baron by tenure In 11. H. 4.2.6 in a Case concerning a Distresse it is agreed that a Baron 11. H. 4.2.6 c. are not contributary for such lands parcell of their Barony but for other lands they are but there is question made if one which is not Baron purchase a Barony whether hee shall be discharged which was not worthy the questioning if such a purchaser challenge by reason of his purchase place in Parliament For as land holden by villein service doth not make the owner a villein which doth purchase the same although by tenure he must doe villein service So land holden by Baron service doth not make the ignoble noble though the charge of such tenure lay upon him Yet if the King will give to any man ignoble in recompence of service any Castle c. to be holden per Baroniam hee is forthwith noble because hee draweth this Nobilitie from the fountaine without other Creation But a question by the way what yeerely revenue is sufficient for a Baron Qu. Diversitie of times hath brought forth divers determinations as touching the French constitution R.
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
the said Milliscent were allotted the Castle of Totnes in Devon c. Eyton in the County of Bedford and Farringworth c. with divers other lands The said Iohn came to full age the first Iohn Hastings Baton of Aberg 11. E. 1. and did his homage and had his Livery as appeareth by Record but by the same Record appeareth that the Barony of Hastings was never redeemed according to the Edict Kellenworth but granted to Peter de Sabandia Claus 11. E. 1. Mem. 6. as aforesaid This Iohn did lawfully beare the Title of Lord Abergavenny by this partition The said John being one of the Competitors for the Crowne of Scotland with the rest submitted himselfe 19. E. 1. to the determination of the said King as Supreame Lord of Scotland which Commission was framed in these words A tout crus In magno Rot. ScaÌ„r c. Florence Comit. de Holland Robert de Bruse seigneur de Vasdaum Io. Balioll Seigneur de Badenaw Patrick de Dumbar Comite de la March Ia. de Vascye pur son pier Nich de Seules Gulielm de Rosse Salus en dieu cum nous entendomus daver droit en Roylme de Escoce cel duel jure chalenger avouer devant ceoque pluis de pouer jurisdiction reason eist de trier nostre droit Et le noble Prince Seig. Edward c. nous syant enforme per bo sufficient reasonque a luy come aver droit Soveraigne SuÌ„r seÌ„ du dit Roylme de Escoce la Conusance d'oyer trier determin nostre droit nous ne nostre volunt sans nul maner de force ou distresse de droit devant luy come Soveraigne SuÌ„r de la terre c. l'an de grace 1291. There was another like writing whereby these competitors doe yeeld some of the Kingdome of Scotland unto the said E. 1. untill he should determine the controversie After the sentence given by E. 1. for John Balioll who afterwards adhered to the French against England Whereupon Ed. 1. prosecuting war against Scotland the Pope intermedling a Parliament was proclaimed to be held at Lincolne 29. E. 1. where it wass agreed that the King should write to the Pope touching his right to that Crowne and the wrong offered him And that the Nobility should write that they neither could nor ought to suffer Nota that the King of England should referre the same to the Popes sentence they subscribing their names and titles of Honour among which was the said Iohn Hastings name in this manner Iohannes Dominus de Aburgavenny In 16. E. 1. the King purposing to go to France Ex Rot. mal 17. E 1. in dors charged the Lords Marchers of Wales to be resident upon their Baronies fearing the invasion of the Welch and Anno 17. in the Rebellion of Rise ap Meredocke the King being in France directeth his Writ unto the said Marchers under the Test Edmundi fratris sui And among other the Barons there named as Ed. de Mortimer Roger Mortimer Pet. Corbet Roger le Strange Fulk Fitzwarren Galfrid de Canmyl William Mortimer Guy de Brian Iohn de Hastings Ra. de Tony William de Bruse Iohn Tregouse Bogok Nevill Ric. Fiz-Allen Io. Fitz-Reginald and all Barons Marchers Againe 20. E. 1. When therer was a great quarrell between Gilbert de Clare 20. E. 1.14 in recept Scacar Earle of Gloucester and Hereford and Humfrey de Bohum late E. of Hereford and Essex whereupon murders c. had beene committed in their lands in Brecnocke A Commission was awarded to the Bishop of Ely William de Valence the Kings vncle Io. de Mettingham one of the Iudges and unto Robert de Hereford to heare and determine the same In which Commission the said Iohn Hastings was one In which the Commissioners would have had the said Barons to have beene sworne to make presentment thereof which they refused standing upon their priviledge and therfore the Enquest was impannelled of others P. 23. E. 1. The said Iohn was summoned ot the Parliament Som. Parliamen Anno 24. E. 1. Som. Parl. a. 35. E. 1. which was to be holden the Sunday next after the feast of St. Martin as also to a Parliament at Carlile 35. E. 1. It will be objected that Iohn his father was summoned in 49. H. 3. and therfore in regard thereof and not in respect of this Barony was this Iohn summoned It is true that Henry Hastings was summoned it 49. H 3. he was Captaine of the Caste of Killingworth Respon and held it against the King and beheaded the Kings Messenger sent unto him for the which fact was the said imprisonment before spoken of Ed. Kenel act 34. Cron. Holens And the Barony of Hastings descended not to the said John Therfore in the letters to the Pope and in his claime to Scotland he writeth himselfe Iohannes Hastings c. and not Dominus Hastings which if that title had belonged to him he had expressed it Object 2 That he used the Title of Dominus Abergav as Dominus Proprietarius and not as Dominus Honorarius The same may be said of the other Competitor and the Letters to the Pope which were ridiculous In the Summons 23. E. 1. â—e is named Io. Hastings Mil. and not Iohannes Dominus Hastings therefore Respon c. Object 3 They used not then to expresse the place except for distinction Now to the Descent THis Iolin died Continuance of the descent 6. E. 2. having issue Iohn who died 18 E. 2. And in the Diem eligit extremum he is stiled Johannes Hastings Dominus de Abergav and Earle of Pembrooke tempore E. 3. he died 12. E. 3. having issue Iohn his Heire Ex bundel Esc 18. E. 2. Earle of Pembrooke and Lord of Abergav who died 49. E. 3. having issue Iohn Earle of Pembrooke c. who died by reason of a wound received at a Just at Woodstocke about 13. R. 2. he was the last of that name Baron of Aburgavenny The Family of Beauchampe Lord Aburgavenny AFter the death of the said Iohn Peauchamp Lord of Aberg Reginald Gray Lord Richyn Sonne of Elizabeth Sister of the said Iohn the great Grandfather of him that last died claimed this Barony and thereof had Livery And thereupon grew a contention concerning the bearing of the Armes of Hastings without difference betweene the Lo. Gray of the whole blood and Sir Edward Hastings of the halfe blood which was adjudged for the Lord Gray in the Earle Marshalls Court A like contention was betweene the Lord Gray and William Beauchampe third sonne of Thomas the elder Earle of Warwicke who claimed this Barony against the said Lord Gray by vertue of an intaile from the said John the elder which proved and upon Composition the said Reginald 15. R. 2. levied a Fine to M. 15. R. 2 recordat Term. H. prox c. whereby he acknowledged the right of the said Castle to the use of the said William Beauchampe as by an old Msss remaining with the Earle of Kent may appeare Vid. the Earle of Kents booke as also by a partition of the said Lands FINIS
male can challenge the said Barony by any antient intayle or otherwise such claim by the Heire female hath heretofore beene allowed by the late right Honourable Commissioners in the office of the Early Marshall signified to the Queen as upon the Petition of the Sister and Heire of Gregory late Lord Dacres deceased may appeare In whose Pedegree it appeares that Thomas Lord Dacres Barony of Dacres had issue Thomas his eldest Sonne Ralph his second and Humphrey his third Thomas died in the life of his Father having issue Jone his Daughter and heire married to Sir Richard Fines after Tho. the Grandfather died wherevpon H. 6. by Patent 7. Novemb. Anno 37. declares the said Richard Fines to be Lo. Dacres but tempore E. 4. the said Humf. Dacres after the Attainder of the said Ralph himselfe by Parliament 1 E. 4 and after of the said Ralph and reversall of the said act in 12. E. 4. the said Humf. challenged the Baronie whereupon after it was controverted in Parliament they submitted themselves to the arbitrement of E. 4. for performance whereof they entered bond whereupon the King awarded vnder the privy Seale Award by King E. 4. 8. Aprill Anno 13. that the said Richard Fines should be reputed Lo. Dacres and that he and his Heires of the body of the said Richard should retaine the said place in Parliament which the said Tho. Lo. Dacres used And that the heires of the body of the said Tho. should enjoy the Mannor of Holbeck And that the said Humf. Dacres should be reputed named and called the Lo. Dacres of Gillesland And that hee c. should keepe the place in Parliament next beneath the said Richard Fines c. And that the heires of the said Tho. Dacres should have the Mannor of Fethington c. in Taile Nota. And so note that Gillestand the antient Barony remained to the heire male Obser 4 Observe also that if any Baron doe die without issue male and that by some speciall intaise c. by which an heire female enjoyeth the inheritance of the said Baron such heires females have beene called to the Parliament and not the husband or issue male of of such heire female and this appeareth by a notable controversie Tempore H. 7. between Sir Robert Willoughbie Lo. Brooke and Richard Nevill Lo. Latimer Barony of Latimer for the Barony of Latimer which in effect was The said Lo. Brooke challenged the said Barony as cosen and heire of Eliz. his great grandmother who was sister and heire to Iohn Nevill Lo. Latimer who died without issue And herevpon exhibited a Petition to H. 7. in Parliament whereunto Richard then Lo. Latimer was called to answer who agreed the descent viz. that the said Eliz. was married vnto Sir Tho. Willoughbie second Sonne to the Lo. Willoughbie but H. 6. because the said Iohn died without issue and that the next heire was female did therefore call to the Parliament Sir George Nevill second sonne of Ralph Earle of Westmerland to be Lo. Latimer which George was grandfather of the said Richard namely Father of Hen. father to the said Richard in debate of which cause our Question viz. whether a Barony by Writ may descend vnto heires females was debated and in the end adjudged with the said Rich. which Presidents doe afford vs 2. Iudgements in the point Object But here the former President of the Barony of Dacres may be objected to incounter this conclusion for whereas the heire female married to Sir Rich. Fines he was Baron of Dacres and Raynolph and Humf. the heires males placed below the said heire female by H. 6. and E. 4. Answ This Objection is easily answered for although H. 6. did declare him Lo. Dacres yet Rand. being heire male bare also the title of Lo. Dacres and by that name was attainted 1. E. 4 Wherefore the Reason why the heire male could not be regarded was the attainder Ratio and when this was reversed E. 4. to satisfie both competitors thus orderd it And thus much concerning the second point whether a Barony by writ may descend unto the heire female Concerning the third point admitting such descent to their female The third Article when no male can claime it for then doth this question take place whether her husband should enjoy that dignity in her right or no something hath beene said hereof in the last question But for satisfaction wee are to insist upon a resolution in the very point tempore H. 8. When Master Wimbish tooke upon him the stile of Lord Talbois jure uxoris having no issue by her The King assisted both by civill and temporall Lawyers gave sentence Resolution â—cmp H. 8. that no husband of a Baronesse should use her stile untill he had by her a child whereby he should be intitled by the curtesie to her inheritance Ratio 1 The speciall reasons that occasioned this sentence were 2. first the inconvenience that the husband should be a Peere of the Realme to day and to morrow by the death of his wife none and so honour subject to mutation without default of the partie Ratio 2 Secondly if he had issue if he should not beare the stile then should his Son after the death of his Mother dying in the life of his Father bee a Baron without land for it the Father hath by the curtesie but these questions take place where there is no Heire male at all And thus much concerning the nature qualitie and estate of the Baron by Writ and for resolution of the severall points and articles of the question proposed may suffice onely note the Case in 13. E. 3. where William de Clinton having married the Countesse of Huntington 13. E. 3. Briefe 259. they joyned in an Assise of Nusance for levying a Market c. Exception was taken because he did not name himselfe but it was over-ruled because having it Jure Vxoris by the Law he may not use the same title having no other title thereunto Now come we to Barons by Patent A Baron by Creation Barons by Patent is he or shee to whom the King hath conferred Baronies by his Letters Patents The usuall words are Considerantes itaque generis claritat vel grata obsequia quae A.B. Mil. nobis praestiterit c. Sciatis nos c. praefat A.B. adstatum gradum dignitat honor Baronis te ereximus praefecerimus creavimus eidemque A.B. nomen c. Baronis de T. imposuimus c. Ac per patentes damus c. habend praefat A.B. Haer. c. This kind of Dignitie shall bee of such continuance as shall be limited in the Habend sometimes for life sometimes pur auter vie as some hold opinion in 32. H. 6. 32. H. 6.296 It may bee in the speciall or in the generall And this kind of Patent was usuall before the Statute of 2. as it apeareth by the Patent Pat. 13 H. 3. in turre