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.
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.
make alienation without licence 50. E. 3 c. 10. he is onely to make a fine by the Statute For authoritie Glanvill saith Mag. Char. cap 31. Glanv l. 7. cap. 1. Notandum est quod nec Episcopus nec Abbas quia corum Baroniae sunt de Eleemosina Regis non possunt de Dominicis suis aliquam partem dare ad remanenciam sine assensu consensu Domini Regis In 20. E. 3. certaine land being parcell of the Baronie of Brenbur was aliened by W. de Bruce 20. Ass 1 8 20 E. 3. Ass 122. 224. the Baron thereof without licence and in the argument of a Case concerning the same Greene said that parcell of a Baronie c. held in chiefe cannot bee aliened without his Licence Againe 46. E. 3. it was found by Office that W. Bishop of Chester had Leased for life to Io. Peston a Mannor 46. E. 3. Forf 18. parcell of the Baronie without Licence and resolved that it was forfeited but by mediation of the said Counsell the Bishop submitted and made a fine and severall Scire faec issued against the perceptors of the profits to answer the King Distinct 2. Thus much of Alienation without Licence But of the other part if a Baron by tenure doth aliene by Licence wee must distinguish for it is either made for the continuance of his Barony c. or else for some other consideration That if any such Alienation be made for the continuance of the Barony in the name then have the issue male with the Castle c. retained the Dignitie of a Baron and hereof have the Heires generall or next Heires females beene excluded And for proofe of this assertion many antient Presidents may be produced seeing they have happened almost in every age for three hundred yeares space of which some certaine doe ensue Barony of Grooby in Com. Leycest Willielm dr Ferariis Co. Derbie obiit anno 38. H. 3 Margaret Com. Derb Domina deGrooby Robeitus de Ferariis Comes de Derbie VVil De Ferariis Dom De Grooby ex Do. Mris Iohannes de Ferariis Dominus de Cartley VVill. de Ferariis Do. Minus de Grooby It appeareth by an Office found after the death of William de Ferarijs Lord of Grooby 23 H. 6. that Margaret Lady of Grooby gave to William Ferarijs her second sonne in taile the Mannor of Grooby by vertue whereof hee and his Heires wee Barons of Grooby The Barony of Kelpâ—cke Com Hereof Temp. E. 1. VVillelm Baro de Kelpecke Rob. VVallero Baro de Kel obit si neprodâ—â— F. 1 Alicca Nuptal Laynec VVilielmus VValleion Aâ—anus â— Laynet Baro de Kelp ra io Don. Robertus VValleron Prox Hae-res Robertus Walleron Baron of Kelpecke died 1. E. 1. without heire of his body and Robert Sonne of William Brother of the said Robert was his next Heire yet he gave to Allen Playnell the Lordship of Kelpecke c. in taile by force whereof he was Baron and summoned to the Parliament and he died Anno 27. E. 1. The Barony of Plankenoy in Com. Lincolne Temp. E. 2. Iohn Dreyn court tam Dâ—eâ—n court Baâ—on of Blaâ—knoy obiit â—o E. 2 VV. Dreyne ba. of Blank â—ntayled o-biit 38. E. 3 Iohn Dreyn-court Edmond Dreyncourt VVillielm Dreyncourt obiit ante â—atrem Isabell his next heire VVilliam Dreyncourt baron of Blanknoy The King to all Pat. Anno 10 E. 2. part 2. num 13. c. greeting Know yee that whereas lately our welbeloved Edm. Dreincourt considered that both his sirname and also his Armes after his death in the person of Isabel Dreincourt should bee quite blotted out of memory most earnestly desired c. To whose request in consideration of service to our Father and our selfe by our Letters Patents do grant so much as in us lyeth to the said Edm. to dispose to whom hee pleaseth By vertue whereof he gave them to William sonne of John Dreincourt in taile Esch 22. E. 3. Sâ—m Parl. 7. E. 3. Claus dors part 25. the said Edm. died ult Ed 2. tempore E. 3. William was summoned to the Parliament by vertue of that gift till his death which was Anno 38. E. 3. The Barony of Holgate Com. Salop. Philip Barnell baron of Holgate Edward Barnell baron of Holgate Iohn Lovell â—he first Husband Maude Barnell heire to her brother Iohn Hand-lowe the scond hus-band Iohn Lord Lovell Nicholas Handlowe Baron of Holgate Iohn Lord Lovell Hugh Handlowe alias Bunnell Baron of Holgate Iocosa Vxor Thoâ—nae Ed-dington Margery uxor Ed-wardi Hungerford Paterina ux-or Iohannis Talbot It appeareth by divers officers in the time of Ed. the third that Iohn Handlowe in the right of Maude his wife was seized of the Mannor of Holgate Acton Burnell c. for life the remainder to Nic. Handlowe alias Burnell sonne of the said Maude and Iohn by a fine in Court And that Iohn Lovell was next heire of the said Maude and her first borne sonne by her first Husband And afterwards the said Nicholas was summoned among the Barons of this Realme to the Parliament by reason of the fine aforesaid And not the said Iohn Lovell that was next heire Thomas de Beauchampe Esch Anno 43. Ed 3. the elder Earle of WarWicke by a fine levyed 18. E. 3. intayled the Mannor and Castle of Warw. with divers other possessions to himselfe for terme of his life the Remainder thereof to Guy his eldest sonne and to the heires males of his body issuing and for want of such Heires the Remainder to come to Tho. Beauchampe brother to the aforesaid Guy and to the Heires males of his body c. And after the said Guy died without Heires males of his body leaving two Daughters and Heires living Afterward the said Earle died and the said Thom. the sonne entered into the Castle and Mannor aforesaid with other the premisses and was E. of Warw. by reason of the intaile aforesaid notwithstanding that Katherine Daughter of Guy next heire to the said Tho. the elder was living thirty yeeres after his death Richard Earle of Arundell by a fine levied 21. Ed. 3. intayled the Castle towne Esch Anno 9. H. 5. c. of Arund to him and the Heires males of the body of Elinor his wife by vertue whereof Iohn Matravers was E. of Arun. after the death of Tho. the Earle who died without issue male although his Sisters possessed divers lands whereof he died seized in fee. Thomas the elder Lord Barkeley Esch 5. H. 5. was seized in Fee of the Castle of Barkely and mannor c. And by a fine levied in 23. E. 3. he intayled the said Castle c. to himselfe for life the Remainder to Maurice his sonne in taile with other Remainder as before which said Maurice had issue Tho. Lord Barkley and Sir Iohn which Iohn died in the life of his Brother leaving James his Sonne and heire living after the said Tho. died 5. H. 5.
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
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
priviledges which I find mentioned in the Lawes of this Realme purposely omitting such as either the Civill Common or the lawes of forraigne Countries doe afford referring them to a fit place in an intended Treatise of Nobilitie Priviledge First therefore it is a priviledge that the Peeres and Nobilitie of the Parliament doe enjoy namely to bee tried in the cases of Treason Felony Mag. Char. 29 10. E. 4.6.20 H. 6. cap. 9 and such like by their Peeres The antiquitie and originall of this kind of triall hath as some men doe thinke his ground from the Statute of Magna Charta cap. 29. beginning that Nullus liber homo in these words Nec super eum ibimus nec super eum mittimus nisi per legale judicium Parium suorum But I take it to be more antient Triall by Peeres Where allowable De consuet feudorum as brought into this Realme with the Conquerour being answerable to the Norman and French lawes and agreeable with the customes severall where almost all controversies arising betweene the Soveraigne and his Peeres are tried per judicium Parium suorum This Triall in antient time was very oft had in Parliament as may bee collected by the Statute of 15. E. 3. cap. 6. 15. E. 3. cap. 6. 1. H. 4.1 13 H. 8.11 But neverthelesse the same may as well be performed by Commission under the Lord Steward of Eng. the forme manner and Solemnitie wherof is expressed in the bookes of Law This priviledge hath some restraint as well in regard of the person The restraint of the praviledge as in the manner of proceedings As touching the person First the Archbishops of this Realme although they bee Lords of the Parliament if they bee impeached of such assent as aforesaid shall not be tried by the Peeres of this Realme but by a Jury of other substantiall persons upon their oathes the reason thereof as I can conceive as before remembred 27. H. 8. Br. Inquest 100 Triall 142. Fine 2. Stamf. 153 namely for as much as the Archbishops and Bishops cannot passe in the like cases upon the tryall of any other of the Peeres for that they are prohibited by the Ecclesiasticall lawes to bee judges of life and blood reason would that the other Peeres should not trie them for this triall should be mutuall forasmuch as it is performed upon their Honour without any oath taken Secondly as touching the person 38. H. 6. Br. Treason none but Lords of the Laytie being Lords of the Parliament 38. H 8. Case Leo. Grey en leâ— Con. shall have this kind of Triall And therefore hereout are excluded the eldest Sonne and heire apparent of a Duke in the life of his Father though he be called Earle beare that title Likewise the eldest Sonne and Heire apparent of an Earle though he be onely a Lord or Baron or beare such Title Those that are Barons and of the Nobility of Ireland 19 20. Eliz 36.6 if upon the like offence committed in Engl. if they chance to be apprehended in Engl. they shall not be tried herein by their Peeres For the Lords of the Parliament of England are not their Peeres but the Lords of the Parliament in Ireland And thus much concerning the Restraints of the said priviledges in respect of the person As touching the manner of Proceeding the Nobilitie of this Realme doe injoy the priviledge of triall by their Peeres in Course of Inditement onely 33. H 8. Br. Iurors 48. Triall 142. 10 E. 3.6 Stam 152. which is a kind of proceeding ex officio between the Qu. highnesse and them But in any case of Appeale of felony which is in the suite of the subject they shall not have the same but shall be tried by a Jury of 12. men upon their oathes And thus much concerning this priviledge at this place and upon this occasion may suffice Likewise this priviledge the Nobility of this Realme doe enjoy PrivilegiuÌ„ secundum 48. E. 3.30 48. Assis 6. 35 H. 6.46 22. H. 8.22 Reg. 1 79. 15 Eliz. 315. That they are not so to be inpannelled in any Jury or inquest to make triall or inquiry upon their corporall oathes between partie and partie And if they be impannelled contrary thereunto they may have a writ out of the Chancery repeating this priviledge directed to the Iustices before whom such noble personages are impannelled commanding them to dissmisse him or them that were so impannelled out of the said Pannell This priviledge hath restraint in two cases Restraint 1. first if he inquire concerning the King and CoÌ„mon-wealth in any necessary and important Decrees as businesse of this Realme then this priviledge is not allowed nor taketh place And therefore divers Barons of the Marches of Wales were impaÌ„nelled before the Bishop of Ely and other Commissioners of Oyer and Terminer to inquire of notable outrage committed by Gilbeâ—t de Clare Earle of Gloucester against Humfrey de Bohun Earle of Pereford and Essex and his suits in Wales in the 20. yeere of E. 1. where Iohn de Hastings Edmond de Mortimer Theobald de Verdune and other of the Barons of the Marchâ—s of Wales challenged their priviledges aforesaid and much insisted upon the same but it was afterwards answered by the Court as by the words of the appeareth 20 E. 1. Rel. 14. Camera Scar. Eo quod res ist a dominum Regem coronam dignitatem suos tangit deinde fuit ex parte domini Regis IohaÌ„nt Hastings omnibus alijs magnat supranominat quod pro statu jure regnt Pro conservatione dignitatis Coronae pacis suae opponant manum ad librum ad faciend c. quod eis ex parte Domini Regis injungentur c. The Barons aforesaid neverthelesse did persist in their Challenge and in the end both the said Earle betweene whom the said outrage had heene perpetrated submitted themselves to the Kings grace and made their Fines Secondly Restraint 2 this priviledge hath no place in case of necessitie where the truth can no otherwise come to light for the Writ is Regist 179. Quia Barones in Assissis jurat c. poni non consuêrunt ut dicunt nisi eorum Sacrament adeo sit necessarium quod sine illis verit as in qua non possit tibi praecepimus c. In many Cases the Protestation of honour shall satisfie in Noblemen Privileg 3. Bract. l. 5. cap. 9. fol. 352.8.3.1 H. 4.1.13 H. 8.1 3 H. 6.48 Cooke 6.53 as in triall of their Peeres they proceed upon their honour not upon their oath And if a Nobleman on an action of debt upon an Accompt in case where the Plaintife is to be examined upon oath upon the Statute of 5. H. 4. cap. 8. it shall suffice to examine his Attorney and not himselfe upon his oath Yet if a Nobleman will give evidence to a Jury reason would that he should bee sworne
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
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