Patents doe grant and give licence for us and our heires so much as in us lyeth to the said Edmond to dispose and give all his Manours Lands Tenements and Knights fees with their appurtenances and Advowsons of Churches Abbies and Priories and Hospitalls which he holdeth of us in chiefe to whom he pleaseth To have and to hold to him and his heires for us and our heires by the service thereof for ever By which Grant the said Edmond gave all his Lands and Tenements to one William sonne of John Deyncourt and to his heires of his body comming And the said Edmond dyed the last yeere of Edward the second and the said William in the time of Edward the third was summoned among other Barons to the Parliament by vertue of the same gift untill his death which was Anno 3. E. 3. It appeareth by divers offices in the time of King Edward the third that John Handlow in the right of Maud his wife was seized of the Mannour of Holgate Acton Burnell c. for terme of her life remainder to Nicolas Handlow alias Burnell sonne to the said Maud and John by a fine in the Court levied and that John Lovell was next heire of the said Maud and her first-borne sonne by her first husband and afterwards the said Nicolas was summoned among other Lords to the Parliament by reason of the fine aforesaid and not the said John Lovel who was next heire Edward Burnell Baron of Holgate Philip Burnell Baron of Holgate Maud Burnell heire to her brother John Lovell the first husband John Lord Lovell Iohn Lord Lovell John Handlow second husband Nicolas Handlow Baron of Holgate Hugh Handlow alias Burnell Baron of Holgate Thomas de Beauchamp the elder Earle of Warwick by a fine levied 18. E. 3. entailed the Mannour and Castle of Warwicke with divers other possessions to himselfe for terme of his life the remainder whereof to Guy his eldest sonne and to the heires males of his body issuing for want of such heires the remainder to come to Thomas Beauchamp brother to the foresaid Guy and to his heires males of his body issuing c. And afterwards the said Guy died without heires male of his body leaving two daughters and heires living afterward the said Earle dyed and the said Thomas the sonne entred into the Castle and Mannour aforesaid with other the premisses and was Earle of Warwick by reason of the entaile aforesaid notwithstanding that Katharine daughter of Guy and next heire to the said Thomas the elder was living 30. yeers after his death Thomas Beauchampe Earl of Warwick Guy de Beauchampe first son obiit ante patrem 30. E. 3. Katharine lived in 21. R. 2. Elizabeth Tho. de Beauchampe Earle of Warwicke by reason of the entail obiit anno 1. H. 4. Rich. Beauchamp Earl of Warwick obiit 17. H. 6. William Beauchampde Beauchamp L. of Aberganey obiit 12. H. 4. Richard de Beauchamp Earl of Warwicke obiit 9. H 5. Richard Earle of Arundell by a fine 21. E. 3. entailed the Castle Towne and Mannor of Arundell with other Lands to him and to his heires Males begotten of the body of Ellenor his wife By vertue of which entaile John Lord Matrovers Earle of Arundell after the decease of Thomas then Earle which died without heire Male although the sisters of the said Thomas possessed divers Lands and honors or the which the said Thomas died seised in Fee simple war Earle of Arundell Richard Earle of Arundell Richard Earle of Arundell obiit anno 21. R. 2. Thomas Earle of Arundell obiit anno 3. H. 5. Elizabeth married to Tho. Mowbray Duke Norfolk Married to Lewthall Jane Lady of Abergany John Arundell Knight Lord Matrovers John Arund Lord Matrovers obiit 6. H. 4. Io. Arund L. Matrovers obiit 9. H. 5. Io. E. of Arun. by reason of the entail Thomas Lord Barkley was seised in his demesne as of fee of the Castle of Barkley and Mannour c. and a fine levied in the Kings Court 23 E. 3. of the aforesaid Castle Mannour c. to him for terme of his life remainder to Morrice his sonne and to the heires males of his body issuing with other remainders as aforesaid the which said Morrice had issue Thomas Lord Barkley and Iames Barkley Knight which Iames dyed in the life of his brother leaving Iames his sonne and heire living After the said Thomas Lord Barkley died Anno 5. H. 5. leaving Elizabeth his daughter and heir married to Richard Earle of Warwick after whose death Iames his Nephew on the brothers side entred into the Lands Castles and rem ' aforesaid by virtue of the entaile and was summoned among the Barons to the Parliament as Baron of Barkley 9. H. 5. which Elizabeth died in 1. H. 6. Tho. Lord Barkley Morrice Lo Barkley Tho. Lord Barkley Eliz. married to Rich Earle of Warwick Sir Ia. Barkley died before his brother Iames Lo. Barkley by reason of the entaile Thomas Lord Delaware died seised in his demesne as of fee taile to himselfe and to the heires males of his body issuing by reason of a fine levied in the time of his ancestors of the Barony Delaware with divers other lands in other counties and died 5 H. 6. without heires of his body and Reignold West Knight of the halfe blood was next heire by reason of the entaile aforesaid and was summoned to the Parliament by the name of Reignold Lord Delaware Knight although Iohn Griffith was heire generall of the aforesaid Thomas Delaware being of the whole blood as appeareth by the genealogie ensuing Iohn Lord Delaware son of Roger. Iohn Lord Delaware Elisabeth daughter to Adam L. Wels. Iohn Lord Delaware died without issue Thomas Lord Delaware died without issue Roger Lord Delaware Elisabeth daughter to the Lord Mowbray his second wife Iohn Griffin heire generall to the Lord Delaware Sir Reignold West Lord Delaware by the entail Katharine married to Nicolas Latimer Katharine married to Griffin Iohan married to Tho West Knight John de Vere Earle of Oxford seised in his demesne as of Fee taile to him and his heires Males of his body issuing of the honour and county of Oxford with divers other Lands Anno 18. H. 8. died without heires of his body and his three sisters were his next heires generall but Iohn de Vere his next heire Male as appeareth was Earle of Oxford by reason of the said entaile and none of the three sisters obtained Dignity Richard de Vere Earle of Oxford died 4. H. 5. Iohn de Vere Earle of Oxford died 1. E. 4. John de Vere Earle of Oxford died without issue 4. H. 8. George de Vere Knight Iohn de Vere Earl of Oxfo died without issue 18. H. 8. Eliz. married to Sir Antho Wingfield Knight Vrsula married to Edm. Knightley Esq Dorothy married to Nevill Sir Robert de Vere Kt. Iohn de Vere Iohn de Vere Iohn de Vere Earle of Oxford by vertue of the entaile William Lord Paget of
same Pedegree of the said Lord Dacres it is expressed that Thomas sometimes Lord Dacres had issue Thomas his eldest son Ralph his second sonne and Humphrey his third sonne Thomas the eldest dyed in the life time of his Father having Issue Ioan his daughter and heire who was marryed unto Sir Richard Fines Knight And after Thomas Lord Dacres her Grandfather and Father unto the said Sir Ralph and Humphrey dyed After whose death Henry 6. by his Letters Parents bearing date at Westminster 7. Novem. Anno 7. regni reciting the said Pedegree and Marriage doth by his Letter a Pattents accept declare and repute the said Richard Fines to be Lord Dacres and one of the Barons of his Realme But afterward in the time of Edw 4. the said Humphrey Dacres after the attaindor of the said Ralph and himselfe by an Act of Parliament which was in 1. Ed. 4. and after the death of the said Ralph and after the reversall of the same Act by another Act 12. Edw. 4. the said Humphrey made challenge unto the said Barony and to divers Lands of the said Thomas his Father whereupon both parties after their title had been considered in Parliament submitted themselves unto the Arbitrement of King Edw. 4. and entred into Bond each to other for the performance thereof Wherupon the said King in his award under his Privie seale bearing date at Westminster 8. April Anno regni 13. did award that the said Rich Fines in the right of Ioan his wife and the Heires of his body lawfully begotten should be reputed had named and called Lord Dacres and that the said Richard Fines and the Heires of his body by the said Ioane begotten should keepe have and use the same state and place in every Parliament as the said Thomas Dacres Knight late Lord Dacres had used kept c. that the heires of the body of the said Thomas Dacres Knight late Lord Dacres lawfully begotten should have and hold to them their Heires the Mannor of Holbech And furthermore the said King did award on the other part that the said Humphrey Dacres Knight and the Heires males of the said Thomas late Lord Dacres should be reputed had named and called the L. Dacres of Gillesland And that he and the heires males of the said Thomas then late Lord Dacres should have use and keepe the place in Parliament next adjoyning beneath the said place which the said Rich Fines Knight Lord Dacres then had and occupied and that the heires of the body of the said Ioan his wife should have and occupie And that the Heires males of the said Thomas Dacres late L. Dacres should have to them to the heires males of their bodies begotten the Mannor of Jothington c. And so note that the name of the ancient Barony namely Gilestand remained unto the Heire male unto whom the land was entailed Moreover this is specially observed if any Baron by writ doe dy having none other issue then Female and that by some speciall entail or other assurance there be an heire male which doth enioy all or a great part of the lands possessions and inheritances of such Barons deceased the Kings of this Realme have used to call to the Parliament by writ as Baron such heire male omitting the Husband or issue male of such heire female and this also appeareth by a notable controversie in the time of Henry 7. betweene Sir Robert Willoughby Lord Brooke and Richard Lord Latimer for the Barony of Latimer which in effect was The said Lord Brooke did challenge the Barony of Latimer as cosen and Heire to Elizabeth his great grandmother who was sister and heire to Iohn Nevill Lord Latimer who died without issue and hereupon exhibited a Petition to Henry 7. in Parliament whereto Richard then Lord Latimer was called to answer because he then enioyed the said title and dignity The said Richard Lord Latimer by his answer did shew that it was true that after the death of the said Iohn Nevill Lord Latimer dying without issue the said Elizabeth was the sister and next heire and married unto Sir Thomas Willlonghby Knight second son of the Lord VVilloughby but Henry 6. for that the said Iohn Nevill was dead without issue and that the next heire was female did therefore call to the Parliament George Nevill Knight second son of Ralph Earle of Westmerland to be Lord Latimer as Cozen and next heire male of the said Iohn Nevil Lord Latimer which George was grandfather of the said Richard Lord Latimer namely Father of Henry Lord Latimer Father of the said Richard In debate of which cause the question now in hand whether a Barony by writ may discend unto the heirea semales was advisedly considered of by the said King and his Nobility in Parliament and in the end adjudged with the said Richard Lord Latimer which President doth afford us two Iudgements in this point one in the time of Hen. 6. when the writ was directed to the said Sir George Nevill whereby he was summoned as Lord Latimer to the Parliament and as heire Male and not the said Sir Thomas Willoughby Knight husband of the said Eliza. heire male And the second judgement was given in the time of Henry 7. whereby the Barony was adiudged vnto the said Richard Lord Latimer comming of the speciall heire male against the said Lord Brooke descended of the generall heire male But here the President before remembred of the Barony of Dacres may be objected to incounter this confusion For there was an heire female martied unto Sir Richard Fines who by the declaration of Hen. 6. was Baron of Dacres in the right of his wife and there was also Ralph and Humfrey the heires males before whom the heire female was preferred by the censure of Henry 6. and Edward 4. This objection is easily answered For although Hen. 6. through the Princely favour which hee bare unto Sir Richard Fines had declared him to bee Lord Dacres in the right of his wife yet notwithstanding did Ralph Dacres being heire male unto the then Lord Dacres deceased beare also the name of 〈◊〉 Dacres and by that name was attainted in Parliament Wherefore the reason why the heire male could not bee regarded was the said attainder of the said Ralph and Humfrey his brother and therefore when Humphrey 12. Edw. 4. laboured to have the said attainder reversed he submitted himselfe vnto the Arbitrament of the King who to satisfie both Competitors because both had well deserved of him after he had admitted them to his favour he allowed the one to be Lord Dacres the other to be Lord Dacres of Gillesland thus much concerning the second point whether a Barony by writ may discend unto the heire female or not As concerning the third point admitting such discent to bee to the heire female when there is no heire male at all that may claime the same for then doth this question take place whether the husband of such heire
Bewdesert was seised in his demesn as of fee of the Baronies of Langden and Hawood and of and in the Mannours of Bewdesert Landen c. And being so seised by fine quinto Mariae entailed the Baronies and Mannours aforesaid to him and his heires males of his body issuing And afterward Anno 5. Eliz. died leaving Henry his sonne next heire male Which Henry entred into the Baronies and land aforesaid by vertue of the foresaid fine and died thereof seised 11. Eliz. leaving Elizabeth his onely daughter and heire After whose death Thomas Paget brother and heire male of the said Henry entred into the Baronies and Mannours aforesaid and was summoned to the Parliament by virtue of the aforesaid fine William Lord Paget of Bewdesert deed anno 5. Eliz. Henry Lord Paget died An. 11. Eliz. Elizabeth his daughter and heire Thomas Lord Paget by force of the entailes after the death of his brother Robert Lord Ogle entred into the Barony of Bothal and Ogle with divers other Mannors and Lands in the County of Northumberland by conveiance which was to himselfe for terme of his life the remainder to the heires males of his body begotten and he took to his wife Dorothy Witherington by whom he had issue Robert Ogle his eldest sonne and Margery his daughter married Gregory Ogle of Chippington And the said Robert the father after the death of the said Dorothy his wife took to his second wife Ioane Ratcliffe by whom he had issue Cutbert his second sonne and after died After whose death Robert the sonne was Lord Ogle from whom the same descended to Cutbert being brother of the halfe blood by vertue of the said entaile and not to the said Margery nor unto her heires being of the whole blood unto the said Robert the sonne Robert Ogle Lord Ogle Dorothy daughter of Henry Withrington first wife Robert Ogle L. Ogle died without issue Margery maried to Ogle of Chippington Cutbert Ogle of Chippington Cutbert Ogle L. Ogle died Margery Ogle married Robert Witherington Thomas Ogle Joan the daughter of Cuthbort Ratcliff Kni. the second wife Moreover concerning the second objection it is very true that many ancient Mannours which were anciently holden by Barony as the head or parcell of a Barony are now in the hands of Gentlemen meane and un-noble by blood who neither doe nor may claime any Nobility or honour thereby But the reason that some former gifts made by the Kings Majesties progenitours the supreme Soveraignes of this Realme to such as they honoured in augmentation and support of their honour and by honourable services should thus come to the hands of mean persâ—nages are twofold First for that such Mannours have been aliened by licence unto such persons before spoken whom such possessions alone cannot make noble Secondly and that was usually such Mannours as were holden by Barony have upon divers encheasons and occasions come to the Crowne by way of revertor or eschete or forfeit by meanes whereof the ancient tenures derived from the Crowne by reason of those lands so comming again to the Crown were extinct and after the said lands were given or conveyed to others reserving other services than those which at the first were due for the same so that it was no marvaile to see that some Mannours anciently holden by Barony or other honourable service should now bee holden in soccage or by other triviall or meane tenure As to that which was thirdly objected that some ancient Barons there are which have aliened and sold away those Castle and Mannours of the which they have and doe beare the name and dignity and yet neverthelesse themselves doe still retaine and keep lawfully their estate dignity and degree of a Baron and have been and are called to the Parliament such alienation notwithstanding To this I answer That it is true but it proveth nothing against the former resolution And therefore for better satisfaction of this observation it is to be considered that such Barons either be originally Barons by writ or Barons by tenure Barons by writ in this respect now in hand are of two kindes For either in such writ whereby they or their Ancestors were at first summoned they were named onely by their owne names or else there was addition given them of the principall place of their aboad which was done either for distinction sake to sever them from some honourable person of the same surname or else to give them such honourable title by addition of the place which place notwithstanding was not holden by Barony And therefore if such a Baron doe alien away that place which anciently was his seat he may neverthelesse retain his honourable title in respect had of such a place But if a Baron by tenure doe alien away the honourarable Castle or Mannour holden by Barony unto a mean person not capable of honour and that by sufficient licence so to doe and after the alienour which made such alienation be called by writ to the Parliament under the title or as Baron of such Honour Castle or Mannour so aliened he is not any more a Baron by tenure in respect of that place for that he hath aliened that away which he held by Barony but thenceforth after such writ of summons he is become a Baron by writ and may retaine the name of Baron by title of the place as Baron by writ such alienation notwithstanding forasmuch as the writ directed at the pleasure of the Prince doth give unto him that addition of name and dignity And thus much touching the resolution of the said question and satisfaction of the said objections and of Barons by tenure BARONS by writ which is the second kind of Barons mentioned in the former Divisions of BARONS A Baron by writ is he unto whom a writ of summons in the name of the King is directed to come to the Parliament appoinâ—ed at a certaine time and place to be holden and there with his Highnesse the Prelates Nobility and Peeres to treat and advise touching the waighty affairs of the Realme The forme of which writ is much to the effect of the writ before mentioned in the title of Earle which kind of writ is as well directed to the Barons by tenure as Barons by creation Patent or otherwise But those which are not Barons by tenure nor by Patent and have onely such writs are therefore called Barons by writ and upon receipt of such writ and place taken accordingly in Parliament ought to enjoy the name dignity and honour of a Baron Touching the antiquity of Barons by writ onely and their first institution I finde little or no mention before the time of H. 3. And therefore I conceive that either the first of all or at least that the first frequent use of such Barons was had and devised 49. H. 3. in case of necessity and upon a lamentable occasion For in the discord between the King and his Nobility in those troublesome warres seditions and rebellions which they moved
and of such a King who is heir unto the said Prince Edward And such a first begotten son and heir apparant to the Crown shall inherit the said Dukedom in the life of the said King his father with manner of limitation of estate was short excellent and curious varying from the ordinary Rules of the Common Law touching the framing of any estate of inheritance in fee-simple or fee-tail And neverthelesse by the authority of Parliament a speciall fee-simple is in that onely case made as by judgment may appear in the Book aforesaid and the case thereof fol. 27. and 21 E. 3.41 b. And ever since that creation the said Dukedom of Cornwall hath been the peculiar inheritance of the Kings eldest son ad supportandum nomen on us bonoris to support the name and weight of that his honourable estate during the king his fathers life so that he is ever Duxnatus non creatus a Duke born not created and the said Duke the very first day of his nativity is presumed and taken to be of full and perfect age so that he may sue that day for his livery of the said Dukedom and ought of right to obtain the same as well as if he had been full 21 yeers of age And the said Black-Prince was the first Duke in England after the Conquest for though Bracton who made his Book in H. 3. saith Et sunt sub rege duces as before appeareth yet that place is to be understood of the ancient kings who were before the conquest for in Mag. Charta which was made in Anno 9 H. 3. we finde not the name of Duke amongst the Peers and Nobles there mentioned For seeing the Norman Kings themselves were Dukes of Normandy for a great while they adorned none with this honour of Duke And the eldest son of every King after this creation was Duke of Cornwall and so allowed As for example Henry of Munmouth eldest son of H. 4. and Henry of Winsor eldest son of H. 5. and Edw. of Westminster the first son of Ed. 4. and Arthur of Winchester first son of H. 7. and Edward of Hampton first son of H. 8. but Richard of Burdeaux who was the first son of the Black-Prince was not Duke of Cornwall by force of the said creation for albeit after the death of his father he was heir apparant to the Crown yet because he was not the first begotten son of a King of England for his father dyed in the life time of king Ed. 3. the said Richard was not within the limitation of the grant and creation by authority of Parliament made in the 11 yeer of king Edward above mentioned And therefore to supply that defect in the 5. yeer of Ed. 3. he was created Duke of Cornwall by a speciall Charter Elizabeth eldest daughter to king Edw. 4. was not Durches of Cornwal for she was the first begotten daughter of king Edw. 4. but the limitation is to the first begotten son Henry the 8. was not in the life of his father king H. 7. after the death of his eldest Brother Arthur Duke of Cornwall by force of the said creation for albeit he was sole heir apparant to the king yet he was not his eldest begotten son Cooks 8 part 29. b. and 30. a. And the opinion of Stamford a learned Judge hath been that he shall have within his Dukedom of Cornwall the kings Prerogatives because it is not severed from the Crown after the form as it is given for none shall be inheritour thereof but the kings of the Realm For example whereas by the Common Law if a man hold divers Mannors or other lands and tenements of severall Lords all by knâ—â—hts service somâ— part by priority and ancient Feoffment and other lands by posterity and by a latter Feoffment and the Tenant so seized dyeth his son and heir within age In this case the custody of Wardshâ—p of the body and his marriage may not be divided among all the Lords but one of them onely shall have right unto it because the body of a man is intire and the Law doth say That the Lord of whom some part of those lands be holden by priority and by the same tenure of Chivalry shall have it except the king be any of the Lords for then though the Tenant did purchase that land last yet after his death the king shall bee preferred before all or any other the Lords of whom the Tenant did hold by priority And so shall the Duke of Cornwall in the same case have the same Prerogative if his Tenant dye holding of him but by posterity of Feoffment for any tenure of his Dutchie of Cornwall although the said Duke is not seized of any particular estate whereof the reversion remaineth in the king for the Prince is seized in fee of his Dukedom as before is said Iohn of Gaunt the fourth son of king Edward 3. did take to wife Blanch who was daughter and heir to Henry Duke of Lancaster who had issue Henry afterwards king of England so that the said Dutchy of Lancaster did come unto the said Henry by discent from the part of his mother and being a subject he was to observe the Common Law of the Land in all things concerning his Dutchie For if he would depart in Fee with any part thereof hee must make livery and seizen or if hee had made a Lease for life reserving rent with a reentery for default of payment and the rent happen to be behind the Duke might not enter unlesse hee doe make a demand or if he had aliened any part thereof whilest he was with age hee might defeat the purchaser for that cause and if hee would grant a reversion of any estate for life or yeares in being there must also be Attornment or else the grant doth not take effect But after that hee had deposed King Richard the second and had assumed upon him the Royall estate and so had conjoyned his naturall bodie in the bodie Politique of the King of this Realme and so was become King Then the possessions of the Duchie of Lancaster were in him as King and not as Duke For the name of Duke being not so great as the name of a King was drowned by the name of King and by the State Royall in him who was Duke for the King cannot bee a Duke within â—â—s owne Realme but out of his Realme hee may And likewise the name of the Duchie and all the Franchizes Liberties and Jurisdictions of the same when they were in the hands of him who had the Crowne and Jurisdiction Royall were gone by the Common Law and extinct for the greater doth distinguish the lesse and after those times the possessions of the Dutchie of LANCASTER would not passe from King Henry the fourth but by his Letters Patents under the great Seal of England without livery of seisin and without Attornment and if he make a Lease for life being Duke reserving a rent with reentry for
act in law presently upon the death of the Ancestor unto the heire or not at all Wherefore the custome of our countrey and manifold presidents doe prove that this kind of Barony doth descend from the Ancestors to the heire and there needs not any words of heirs in the writ of summons Onely one president there is in a speciall writ sometimes directed to Sir Henry Bromsted in 27. H. 6. wherein he was stiled Lord Veysey wherein there are these words inserted Volumus tamen vos haeredes vestros masculos de corpore vestro legitimè procreatos excuntes Barones de Veysey existere which is to bee read in Co. 7. part 33. b. Wherefore as it is true that where the heire of any such Baron by writ is called to the Parliament that his descent of honour is thereby established and approved by the gracious judgment of our sacred Soveraigne so it is also true that if it shall stand with his Highnesse pleasure that such heire shall not be summoned at all for none can come to so high a Councel unlesse he be called then that Nobility is much empaired and in a manner extinguished in the censure of all men for that it had none other originall but by writ of summons from the which in the judgment of the supreme soveraign he is excluded As to the second principall point whether the Barony by writ may descend to the heires females it shall not be amisse likewise to view the reasons of either part and by conflict of argument the truth may the better be discerned Those that maintain the affirmative part do reason after this manner In reason the sexe of the heire female ought no more to bar her of the dignity than the nonage of the heire male ought to bar him although during his nonage he be unable to do the service but as the service of the one is forborne for a time so the sexe of the other may at all times be supplied by the maturity and sufficiency of her husband Offices of honour which do much import the publique weale being passed by inheritance do descend to the heire female if there be no nearer heire male As the office of the high Constableship of England which descended to the daughters of Humphrey de Bohun Earle of Hereford and Essex a memoriall whereof is in Dyer 285. but more at large in Keilway 6. H. 8. Also the office of Lord-Steward descended to Blanch daughter to H. Earle of Lancaster the like may be said of the office of Earle Marshall which descended by an heire female unto the house of Norfolk all which offices are unfit to be exercised by a woman as it is unfit for a woman to be summoned to the Parliament as a Baronesse by writ And many noble houses in England do support the dignity of Baronage unto them descended by women They which stand on the negative part of this controversie do encounter their adversaries on this manner viz. The writ of summons to the Parliament whereby the Baron by writ hath his originall is to call that honourable and worthy person so summoned to be one of the number of that right high and honourable Assembly and to be a Judge to sit heare and determine life and member plea and right of land if there shall come occasion likewise to give counsell and advice in the most weighty affaires of the Realme But these things are convenient for the quality of men unfitting and altogether unbeseeming the sexe of women Ergo having respect unto the finall purpose of such writs such inheritances should only descend unto the heire male and not unto the heire female Secondly if it shall be answered that although the heire female to whom such inheritance is descended be unfit in her owne person for the accomplishing of these things yet she may marry with one sufficiently able for her and in her behalf to execute the same this answer will neither satisfie nor salve the inconveniences For admit that such heire female were at full age at the death of her Ancestor unmarried it doth lie in her own choice who shall be her husband so shall the pleasure of the Soveraigne in the choice of his Councell in the great causes of the Realme be subject to the will of his subject in the choice of her husband which were altogether inconvenient Thirdly if such husband shall be called in the right of his wife the writ should make some mention hereof for otherwise it may well be taken that the husband was chosen in his own person and in behalfe of himselfe and not in regard of his wife or such pretended dignity descended unto him But there was never such writ of summons seen wherein the wife was mentioned and if the husband of such wife have been called to the Parliament which is alwayes by generally writ not mentioning his wife he is now made thereby a Baron of himself and in his own right by that writ Having thus heard both sides speak place doth now require to interpose opinion to compound this controversie This question or point is somewhat perplexed by means of difficult presidents for first it is observed that some presidents do prove that Baronies by writs have descended unto heires females whose husbands have beene called to the Parliament whether in regard of themselves or in regard of their wives it matten not But sure it is that the marriage of such Ladies gave them occasion so to be summoned and such husbands and their posterity have and do lawfully beare the same name of dignity which the Ancestors of such wife did before rightfully beare For by this controversie there is no purpose to call the right of such noble houses into question Howbeit secondly this is to be observed out of the presidents and to be acknowledged of every dutifull subject that the Kings Majesty is neverthelesse at liberty to call to the high Councell of Parliament whom his Highnesse shall in his Princely wisdom think most meet which his Majesties Progenitors have in former ages observed And therefore whereas Radulph Lord Cromwell being a Baron by writ died without issue having two sisters and coheirs Eliz. the eldest married to Sir Tho. Nevill Knight and Joan the younger married Sir Hunt Bourcher he who had married the younger sister was called to the Parliament as L. Cromwell and not the said Sir Tho. Nevill who had married the elder sister 3. It is to be observed that if a Baron by writ die without heire male having his daughter sister or other collaterall heire male that doth or can challenge the lands of the said Baron deceased by any ancient entaile or otherwise the title of such heire female hath bin heretofore allowed as by the honourable opinions and relations of the right honourable the late Commissioners in the office of Earle Marshall signified unto the late Queene upon the Petition of the sister and heire of Gregory late Lord Dacres deceased may appeare Moreover in the
female shall enioy the dignitie in the right of his wife or no wherein wee are to rest upon a resolution had and given in this speciall question which was in this manner In the time of Hen. 8. when Mr. Winbie tooke upon him the stile of Lord Talboys in the right of his wife having none issue by her the said King assisted both by Civill and Temporall Lawyers gave sentence that no husband of Baronesse in her right should use the stile and dignitie untill he had by her a Child whereby he should become Tenant by the courtesie unto her inheritance The speciall reasons that occasioned this sentence were two First it should be inconvenient for her husband this day to bee a Baron and Peere of the Realme and to morrow by the death of his wife so become none and that without the death of the partie Secondly if he had issue by his wife and were inâ—â—taled to be Tenant by the curtesie of England of the wives land if he shall not also beare the stile and dignity of her Barony then should his sonne after the death of his mother dying in the life time of his father be Baron and Lord without land for so the Father should have the land as Tenant by the curtesie and the sonne the Lordship without Land And thus much said concerning the nature quality and estate of a Baron by writ and for resolution of the severall points and Articles of the question proposed may suffice Barons by Batent which is the third kind of Barons mentioned in the former division of Barons THere is also a fourth meanes of creation by act of Parliament but the first a mentiond and this by Patent are most for the honour of the King for thereby the donation doth proceed from his highnes onely as from the fountaine of all honour and dignity but when the creation is by Parliament every one may bee said donator Cookes 8. part 19. A Baron by creation by reason of Letters Parents is that Noble person whom the Kings Maâ—esty or any of his progenitors Kings of the Realm have created Barons by such their Letters Patents But this manner of creating Barons by Patent began in the Raign of R. 2. who created first Iohn Beauchamp of Holt Baron of Kidderminster by his Letters Patents 8. October anno 11. But Mils saith in 30. H. 6. this was brought in This kind of dignity of Baron shall bee of such countenance in discent or otherwise as shall bee limited in the Habendi in such Letters Patents contained for it may be but for the life of him to whom it is giâ—en or for teâ—â—e de anter vie of some other mans life as some hold opinion in 9. H. 6.29 for Cuius est dare eiâ—â—est disponere it may be in speciall a genetall taile and this kind of estate tayle was usuall before the Statute made 13. E. 1. by which estate taile in Lands and Tenements was created as appeareth by the Patent whereby Hubert de Burgo was made Earle of Kent in the time of H. 3. by these words Habend ' sibi hered ' suis decorpore Margaretae uxoris suae sâ—roris Alexandri Regis Scotiae procreatis pro defectu talis exitus remanere rectis heredibus dicti Huberti and that estates in taile are at this day titles of honour by the Statute of Westm 2. vide Nevils case Cooks 7. part 33. For the better explanation of this kind of dignity the resolution also of certaine questions shall be very requisite Question If a Nobleman and his Progenitors have for a long time been called to the Parliament and be a Baron either by tenure or writ have had in regard thereof a place cortaine in Parliament if afterwards the same Nobleman should be created a Baron of that Barony and by the same name by Letters Patents whether shall hee and his heires retaine his old place in Parliament which hee had according to the former dignity or whether shall be lose his old place and take a new place according to the time of his creation onely Answer The case of the Lord Delaware received a resolution somewhat answerable to this question Cook 11. â—art the Lord de â—a wares case Tho. Lord Delaware 3. E. 6. being in some displeasure with William West his Nephew and heire who was Father to the now Lord De la ware procured â—n Act of Parliament by the which the said Will West was during his naturall life only clearly disabled to clayme demand or have any manner of right title or interest by discent revenue or otherwise in or to the mannor lands tenements or hereditaments title and dignity of Thomas Lord De la ware his Vnkle After the said Thomas De la ware dyed and the said VVilliam West was in the time of the late Queene Elizabeth restored and afterwards in the 8. yeare of her Raigne was created Lord De la ware by Patent and had place in Parliament according to his creation by Patent for that by the said Act of Parliament in the time of E. 6. hee was excluded to challenge the former ancient Barony and after hee dyed whether the new Lord Delaware should take his place to the ancient Barony by writ or according to his Fathers creation by Patent was the question the opinion of the late Queenes Counsell being Her Majesties Atturney Generall and Sollicitor were that the acceptance of the new creation by the said William West could not distinguish the ancient dignity in him at the time of his creation but ahe dignity was at that time by the Act of Parliament 3. Ed. 6. in obeysance suspence or consideration of Law and he thereby utterly disabled to have the same during his life onely so as other acceptance could not extinguish that dignity which he then had not nor could not conclude his heire who was not disabled by the said act of 3. Ed. 6. to claime the ancient Barony which opinion of theirs was seene and allowed by the resolution of the chiefe Iustice of England and Lord chiefe Baron and so signified unto the Lord Keeper but this is to be noted by the reasons made for the said resolution that if the said William VVest had beene Baron and intituled or in possession of the ancient dignity when hee accepted the said creation the Law perchance might have been otherwise but that remaineth as yet unresolved neverthelesse the rule codem mado quo quid constuitur dissolvitur but by grant which is made a matter in fact a man cannot transferre his ritle of honour Cooke 7. parâ— And thus much concerning the three degrees of Barons within this Realme may suffice to be said in generall upon this occasion for the better understanding and direction of that which followeth to be handled And in this place I thinke it not impertinent to mention one case which I read in the bookes of the common Law concerning the discent of a title of honour whereof the
nostri iâ— Assizis Iuratis seurecognitionibus aliquibus poni non consueverint ut dicunt nisi corum sacramentumadeo sit necessarium quod sine illis veritas inquire non potest Tibi precipimus quod dilectum fidelem nostram A.B. in Assizis Iuratis seu recognitionibus aliquibus non ponas seu poni faciatis contra voluntatem suam sine mandato nostro speciali nisi suam presentia ob aliquam causam specialiter exigatur teste c. But it is a rule in Law vigilantibus non dormientibus subveniuns Iura For if the Sheriffe have not received any such writ and the Sheriffe have returned any Lords in Iuries or in Assizes c. and they thereupon doe appeare they shall be sworne and if they doe not appeare they shall loose their issues 35. H. 6.46 and in such case they must purchase a writ out of the Chancery reciting their priviledge directed to the Iustices before whom such noble persons are so impannelled commanding them to dismisse him or them that were so impannelled out of the said pannell Fitz na br 165. This priviledge hath restraint in two cases first if the Enquiry concerne the King and Common-wealth in any necessary or important degree or busines of the Realme then this priviledge is not allowed nor taketh place and therefore divers Barons of the marches of Wales were impannelled before the Bishop of Ely and after Commissioners of Oyer and Terminer to enquire of a notable out-rage committed by Gilbert de Clare Earle of Gloucester against Humphery de Bohuâ— Earle of Hereford and Essex and his Tennant in Wales the 12th yeare of Ed. 1. where John de Hastings Edmond de Mortimer Theonald de Bordmor and others Barons of the Marches challenged their Priviledges aforesaid and much insisted upon the same but it was afterwards answered by the Courts as by the words in the Recordâ— appeareth Domino quod res ista Dom. Regem Coronam dignitatem suam tangit dictum fuit Dominum Regis Johan de Hastings omnibus aliis magnatibus supra nominatis quod per statu Iure Regni per conservatione dignitatis Coronae pacis suae apponunt manum ad librum ad faciendum id quod eis ex perte Dom. Regis in jungeretur The Barons aforesaid did neverthelesse persist in the Challenge and in the end both the said Earles between whom the said outrage had been perpetrated submitted themselves to the Kings grace and made their Fines Secondly this Priviledge hath no place in case of necessity where the truth of the case cannot otherwise come to light for the words of the Writ in the Register before mentioned are Nifi sua presentiae ob aliquamâ— causam specialiter exigatur c. Register 179. If a Nobleman doe bring an Action of debt upon an Accompt in case where the Party is to be examined which is alwayes intended to be upon Oath upon the truth of his cause by vertue of the Statute of 2. H. 4. cap. 8. Jt shall suffice to examine his Attorney and not himselfe upon Oath 3. H. 6.48 Cooke 6. part 53. And this Priviledge the Law doth give to the Nobility that they are not to be arrested by any Warrant of any Justice of the Peace for the peace or for the good behaviour nor by a supplicavit out of the Chancery so called because it issueth out at the supplication of the partie or from the Kings Bench for such an opinion hath the Law conceived of the peaceable disposition of Noblemen that it hath beene thought enough to take their promise upon Honour in that behalfe Lamb. Instice of Peace lib. 2. cap. 2. Fol. 17. E. 44.24 E. 3.33 subpenae Fitz 20. And as in civill causes the like rule doth the Court of Equity observe in causes of conscience for if the desendant be a Peere of the Realm in the Star-Chamber or Court of Chancery a Subpena shall not be awarded but a Letter from the Lord Chancellor or Lord Keeper in liew thereof and if he doe not appeare no attachment shall go forth against him For in the 14. Yeare of the late Queene Eliz. the Order and rule was declared in the Parliament Chamber and so to be inrolled in the Parliament that attachment is not to be awarded by Common Law custome or president against any Lord of the Parliament Dyer 315. a. and if he doe appeare he may make his Answer to the Bill of complaint upon his Honour onely and is not compelable to be sworne By the Statute 5. Eliz. chap. 1. Jt is enacted that all Knights and Burgesses of the Parliament shall take their Oath for the Supremacy and so shall Citizens and Barons of the Cinque-ports being returned of the Parliament before they enter into the Parliament House which Oath shall be according to the tenour effect and forme of the same Oath verbatim which is and as it is already set forth to be taken in the Statute 1. Eliz. provided alwayes that for so much as the Queenes Majestie is otherwise sufficiently assured of the faith and loyalty of the temporall Lords of her â—igh Court of Parliament Therefore this Act nor any thing therein contayned shall not extend to comâ—ell any temporall person of or above the degree of a â—aron of this Realme to take or Pronounce the Oath â—bovesaid nor to incurre any Penalty limited by this Act for not taking or refusing the same If any Peere of the Realme be sued in the Common Pleas in an Action of debt or trespasse and Processe are awarded against him by Capias or by Exigent then he may sue a Certiorare in the Chancery directed to the Justices of the Common Pleas testifying that he is a Peere of the Realme and the Writ is thus Rex c. Iusticiarijs suis de banco salutem mandamus vobis quasi G. F. miles corum nobis ad sectam alicujus per Actionem personalem in placitatus existat talem processum non alium versus ipsum in actionem predicta scire saciat qualem versus Dominos magnates Comites seu Barones Regni nostri Anglium qui ad Parl. nostra de suminicionem nostra venire debent aut eorum aliquem secundum legem consuetudinem regnum nostri Angl. feri faciendum quia pred G T. vnius Baronum Regnum in pred ad Parliamentum nostri de suminitionem regia venient record hoc vobis mandanus alijs quorum interest innatescimus teste est lan H. N B. fol. 247. For unlesse the Court be judicially certified by the Kings Writ out of the Chancery that the defendant is a Lord of the Parliament Jf a Capias or Exigent issue forth against him no errour neither is it punishable in the Sheriffes his Bayliffes or Officers if they execute the said processe and Arrest the body of the said Noble person for it appertaineth not to them to argue or dispute the Authority of the Court but if the Court be thereof certified in
forme aforesaid they will award a Supersedeas which is in the Booke of Enteries in the Title of Errour Sect. 20. and there are two reasons or causes wherefore no Capias or Exigent lyeth against any Peere the one because of the dignity of their persons the other by Intendment of Law there is none of the Nobility but have sufficient Freehold which the Plaintiffe may extend for their payment or satisfaction but a Capias or Exigent lyeth against a Knight for the Law hath not that opinion of his Freehold as the Court said in 26. H. 8. vide 27. H. 8.22 in Brookes abridgement Exigent 2. 3. Cooko 6. part 52. 54. And if any of the Nobility happen to be so wilfull as not to appeare the Court will compell the Sheriffe to returne great issues against him and so at every default to increase and multiply the issues as lately against the Earle of Lincolne hath been in practice By the Ancient Lawes of this Realme before the comming of William the Conquerour many good Lawes were made for the keeping of the peace amongst others that every man above the Age of 12. yeares should be sworne to the King as you may read more at large in Lamberts perambulation of Kent 21. which we in remembrance thereof doe keep at this day in view of Frank-pledge or leete Court but Noblemen of all sorts are neither bound to attend the Leete nor to take that Oath as appeares by Britton cap. 29. treating of this Court called the Sheriffes Turne Courts of which the Leete seemes to be extracted and agreeable thereunto is the Statute of Marlbridge cap. 10. in these words de turnis vice contra provisum est quod necesse non habeant ubi venire Archiepiscopi Episcopi Abbates Priores Committes Barones vide the Lord Chancellors Speech in the case of Post-nari fol. 78. If a Writ of Error be brought in Parliament upon a Judgement given in the Kings Bench the Lords of the higher House alone without the Commons are to examine the errors vide Jbid. fol. 22. Jn 11. H. 4.2 b. In a case concerning a distresse taken for expences and Fees of the Knights of the Parliament it is agreed for Law that the Baronies and other Lands as are parcell of their ancient Lordships and Baronies but for other Lands they are But there is a question made one which is no Barron but ignoble doe purchase any ancient Barony whether he shall be discharged of such ignoble purchase by reason onely of such his purchase challenge or pretence to have Nobility and place in Parliament as before in this treatise more at large appeareth for as Lands by Villany service doe not make a Villany or Bondman which being free doth purchase the same as Littleton doth teach lib. 2. cap. 12 though by his Tenure he shall be bound to doe such Villanie service so of the other side and that is holden by Barony doth not make the villany peasent or ignoble which purchaseth the same to be noble although the charge of such tenure doe lye upon him in respect of the service of the Realme It is said in our Bookes that a day of grace or by the favour of the Court is not to bee granted to the Plaintiffes in any Suite or Action wherein a Nobleman is defendant 27. H. 8.22 27. E. 3.88 because thereby the Nobleman should be longer delayed then the Ordinary course of the Court is and such Lord is to have expedition of Iustice in respect that he is to attend the Person of the King and the Service of the Common-wealth but if there be no ignoble person party to the Suite the Judges doe and may at their discretions grant upon a motion and prayer a day or more of tryall otherwise then by the strict course of the Law the Plaintiffe may challenge Cambden fol. 169. writing upon the Subject saith where the Noble man is demandant the Tenant may not be essoyned for the delay and causes aforesaid to which J would also subscribe but that the Booke of 3. H. 4 5 6. is otherwise adjudged if I doe misunderstand it there the King brought a Quare Impedit against a Common person and the defendant was essoyned by the rule of the Court Therefore a fortiori he might be essoyned against a Nobleman Jf any Peere of the Realme being a Lord of the parliament be plaintiffe or demandant defendant or Tenant in any Action reall or personall against another whereupon an issue is to be tryed by a Jury the Sheriffe must returne one Knight at the least to be of the Inquest otherwise upon a challenge made the whole Pannell shall be quashed which by the order of the Law is appoynted to be done for Honour and reverence due to the persons of that degree for as the words of the Booke are when a Peere of the Realme is party the Law is otherwise then when the Suite is betweene other persons Fitz. Chall 113.13 E. 3. in a Quar. Impedit against a Bishop adjudged Plowd 117. Dyer 208. b. 27. H 8.22 b. But the Earle of Kent by the name of Reignald Gray Esq brought a Writ of Entry against Sir H. G. Knight 4. Eliz. and the parties did plead to an issue the venire facias was awarded which the Sheriffe did returne served and a Pannell returned according in which pannell there is no Knight named the truth of which Cause was that after the returne made the demandant is published and declared by the Queene and the Heraulds to be Earle of Kent in right and by discent although hee had not beene so reputed or named Earle before and also after that time that is to say at the then last parliament the Tenant is made a Baron by a Writ of parliament and both parties have places and voyces in parliament and then the Iury doe appeare in the Court of Common pleas and the Earle of Kent did challenge the array because no Knight was returned but it was not allowed him by the Court for the â—dmittance of both parties as to the contrary and no default can bee layd to the Sheriffe for he had no notice of the honourable estates of either of the parties the demandant not being then knowne or reputed to bee an Earle by discent or of the Tenants then also being no Baron Dyer 318. How much the Common Law hath alwaies prohibited perpetuities in Lands and Tenements you may see in Corbets Case in the first part of Sir Edward Cookes Booke Fol 84. and in many other Cases in the rest of his Books also Littleton Fol. 145. saith it is a Principle in the Law that every Land of Fee-simple may be charged with a Rent in Fee-simple by one way or other but of the Kings Majesty upon the Creation of any Peere of the Realme Duke Marquesse Earle Vicount or Baron do as the manner is by his Letters Patents give unto such new created Noblemen an Annuity or Rent for the support of his
or for his marriage though he be within age Cooks 6. part 74. in Druries case Nobility and Lords in reputation onely THere are other Lords in reputation and appellation who neverthelesse are not de jure neither can they enjoy the priviledge of those of the Nobility that are Lords of the Parliament The sonne and heire of a Duke during his fathers life is onely by curtesie of speech and honour called an Earle and the eldest sonne of an Earle a Baron but not so in legall proceedings or in the Kings Courts of Iustice Brook Treason 2. But the King may at his pleasure create them in the life of their Ancestors into any degree of Lords of the Parliament Cook 8. part 16. b. A Duke or other of the Nobilitie of a forraigne Nation doth come into this Realme by the Kings safe conduct in which the Kings said Letters of Conduct he is named Duke according to his Creation yet that appellation maketh him not a Duke c. to sue or to be sued by that name within England but is onely so reputed But if the King of Denmark or other Soveraigne King come into England under safe conduct he during his aboad in England ought to bee stiled by the name of King though hee have not merum imperium out of his owne Kingdome yet he shall retaine honoris titulos Cook 7. part 15. b. sequentia All the younger sonnes of the Kings of England are of the Nobility of England and Earles by their birth without any other Creation and onely Lords in reputation And if an English man be created Earle of the Empire or of other title of honour by the Emperour he shall not beare the title in England and therefore is an Earle onely in reputation A Lord of Ireland and Scotland though he be a Postnatus is not a Lord in England in legall Courts of Iustice though he be commonly called and reputed a Lord. NOBLE VVOMEN ALthough Noble women may not sit in Parliament in respect of their sexe yet they are in the law Peeres of the Realm and all or most of the Prerogatives before mentioned which to Noblemen are belonging doe also appertaine to them Cook 8. part 53. But the opinion of some men hath been that a Countesse Baronesse or other woman of great estate cannot maintaine an action upon the statute de scandalis Magnatum because the statute of 2. R. 2. cap. 5. speaketh but of Prelates Dukes Earles Barons or other Nobles and other great men of the Realme and of the Chancellour Treasurer Clarke of the Privie Seale Steward of the Kings house Iustice of the one Bench or of the other great officers of the Realm by which words they conceive the meaning of the makers of that statute was onely to provide in that case for Lords and not for women of honour Crompton Justice of Peace 45. b. Also if any of the Kings servants within his Check-roll doe conspire the death of any Noble man it is not felony within the compasse of the statute 3. H. 7. cap. 13. Honourable women are of three sorts By creation by Descent or by Marriage King Henry the eighth created Anne Bullen Marchionesse of Pembrook and so may the King create any woman into any title of honour as to his Highnesse shall seem good As the King by by his Letters Patents openly read in the Parliament did create _____ Widow the sole daughter of _____ late Baron of Abergavenny Baronesse De le Spencer Cambden 63.6 Noble women by descent are those to whom either the lands holden by such dignity do descend as heir and they are said to be honourable by tenure or those whose Ancestors to whom they are heires were seised of an estate descendable unto them in their titles of Dukedomes Earldomes or Baronies or those whose Ancestors were summoned to the Kings Parliament for thereby also an inheritance doth accrue to their posterities Noble women also are those who do take to their husbands any Lord or Peere of the Realme although they of themselves were not of any degree of Nobility Fortescue de laudibus legum Anglia fol. 100. Question and doubt hath been made whether if a man be summoned to the Parliament and afterwards die without issue male the dignity and title of honour may descend to the heire female and many arguments have beene made pro contra in that which at this time I doe purposely omit because I have before discoursed thereof in the title of Barons in this Treatise Concerning the title of honour descendable to the heire female by reason of a tenure in her Ancestor there need no more doubt to be made than of offices of honour the which doe much import the publike wealth and being of estate of inheritance doe descend to the heire female if there be no heire male as the office of high-Constableship of England challenged in the time of H. 8. by the Duke of Buckingham and judged by the advice and resolution of the Judges as by a note of that case extant whereof my Lord Dyer in his Reports hath a memoriall is most evident Dyer 283. b. Kellaway 6. H. 8.170 b. which descended to the daughters of Humphrey de Bohun Earle of Hereford and Essex as afore is declared the office of a Lord Steward descended to Blanch daughter of Henry Earle of Lancaster in whose right John 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 Norfolk all which offices are as unfit to be exercised by a woman as it is unfit for a woman to be summoned to the Parliament as Baronesse by writ as before is written And when the title of honour doth descend to a woman if question in Law doe arise betweene the noble woman and any other person whether she be of that degree of noblenesse or no the issue shall be tried by the Record thereof and by the Kings writ it shall be certified and not by a Jury of twelve men even as it should be in case her Ancestors had beene party Cooks 6. part 53. 7. part 15. Although the Lawes of this Realme regularly doe make all the daughters where there are no sonnes equally to inherit Lands and Tenements and to be but one heire to their Ancestor yet it is not so in the descent of dignities and titles of honour for inheritances concerning matters of honour being things in their nature entire paticipating of superiority and eminency are not partable amongst many and therefore must of necessity descend unto one and that is to the eldest daughter sister aunt or cosin female inheritable where there is no heires males that may lawfully challenge the same and so in this point is the civill Law Neverthelesse there was a Judgment in the time of H. 3. touching the descent of the Earldome of Chester after the death of the Earle who dyed without issue his sisters being his
heires which Judgement was that the said Earldome should bee divided amongst the said copartners as other lands and that the eldest should not have it alone 23. H. 3. Fitz. partic 18. But this judgement was holden erroneous even in those times wherein it was given For Bracton a learned Judge who lived in that age thus writeth thereof treating of Partition among Copartners lib. 2. cap. 34 fol. 76. b. De hoc autem quod dicitur quod de feodo militare veniunt in divisione capitalia messuagia inter cohaeredes dividuntur hoc verum est nisi capitale messuagium illud sit caput comitatus propter jus gladis quod dividi non potest vel caput Baroniae castrum vel aliud aedificium hoc ideo ne sit caput per plures particulas dividetur plura jura Comitat ' Baroniarum deveniant ad nihilum per quod deficiat regnum quod ex Comitatibus Baroniis dicitur esse constitutum Si autem plura sunt aedisicia quae sunt capita Baronia dividi possunt inter cohaeredes facta electione salvo jure essentiae quia cùm plura sunt ibi jura quodlibet per se poterit integrè observare quod quidem non est in uno ut praedictum est licèt à quibusdam dicatur quòd in aliis regionibus aliquando de consuetudine dividatur sed quod nunquam divids debeat in Anglia videtur nec visum fuit contrarium erit consuetudo regionis observanda ubi haereditas quae petitur personae nascuntur quae petunt unde sic dicatur quòd in regno Anglia aliquando facta fuit partitio hoc fuit injustum It is therefore evident that Baronies and dignities of Honour do by the Lawes of this Realm descend unto the eldest Coapercener and the Iudgement given once to the contrary thereof Bracton doth rightly account to be unjust his reason is notable for in as much as the honour of the Chivalry of the Realme doth chiefly consist in the Nobility reason would not that such dignitie should be divided amongst Coaparceners whereby through multitude of partitions the reputation of Honour in such succession and so divided might be impaired or the strength of the Realme being drawne into many hands with the decrease of livelihood by partition should be enfeebled in which Resolution Britton the learned Bishop of Hereford who compiled his Booke of the Lawes of the Realme by the commandement and in the name of E. 1. according Britton 187. and therefore howsoever that Judgement was given or whensoever it is neverthelesse very evident that it was soone redressed for if it were given upon the death of Renulph the last of that name the Earle of Chester who dyed about 17. H. 3. without issue the Writers of that time doe testifie that the Earledome of Chester came wholly unto Iohn Scot the sonne of David Earle of Huntington and Anguish and of Maud the eldest sister of the said Renulph if it were given upon the death of the said Iohn Scot who dyed without issue about 14. H. 7. yet notwithstanding the said Judgement stood not in force for that the said King assumed the said Earledome into his owne hands upon other satisfaction made to the sisters Coparceners of the said Iohn Scot. Ne tanta hereditas colos deduceretur Matth. Paris Monast S. Albani in Arr. fol. 3.66 B. tamen vido Vill. fol. 75. et Ioh. Guill 78. For this it is to be observed out of Presidents and to be acknowledged of every dutiful Subject that the King is at liberty to call and advance to honour whom his Highnesse shall in his Princely wisdome thinke most meet and therfore whereas Ralph Lord Cromwell being a Baron by Writ dyed without issue having two sisters and co-heires Elizabeth the eldest married unto Sir Thomas Nevill Knight and Ioane the younger married unto Sir Hunt Burther hee who married the younger sister was called unto the Parliament as Lord Cromwell and not the said Sir Thomas Nevill who had married the eldest sister and Hugh Lupus the first and great Earle of Chester was by the Conquerour his Uncle creared Earle of Chester Habemus sibi heredibus adeo libere per gladium sicut ipse Rex tenuit Angliam per Corenam Hugh dyed without issue and the inheritance of his Earledome was divided amongst his foure sisters and the eldest had not the Seigniory entire unto her selfe Reade Mills 74 75. Cookes b. part 53. 7. part 15. If a Woman be Noble by birth or by discent with whomsoever she doth marry though her Husband bee under her degree yet she doth remaine Noble for her Birthright Est Character in delibilis Cook 4. part 118. b. 6. part 53. b. Other Women are enobled by Marriage and the text saith thus viz. Women with the honour of their Husbands and with the kindred of their Husbands we worship them in the Court we decree matters to passe in the name of their Husbands and into the house and sirname of their Husbands wee doe translate them but if afterwards a woman doe marry with a man of baser degree then loseth she her former Dignitie and followeth the condition of her latter Husband Fortescue de laudibus legum Angl. 100. And as concerning the second disparaged Marriage as aforesaid many other bookes of the law doe agree for these bee rules received in those Cases Si mulier nobilis nupserit ignobili desit esse nobilis eadem modo quo quidem Constitut dissolvitur Cookes 6. part 53. B. 4. part 118. It was the Case of Ralph Hayward Esquire who tooke to his wife Anne the widdow of the Lord Powes they brought an Action against the Duke of Suffolke by the name of Ralph Hayward Esquire and the Lady Anne Powes his wife and exception was taken for misnaming her because shee ought to have beene named by the Husbands Name and not otherwise and the exception was by the Court allowed For said they by the Law of God shee is Sub potestate viri and by our Law her Name of Dignitie shall bee changed according to the degree of her Husband notwithstanding the curresies of the Ladies of Honour and Court Dyer 79. And the like was also in Queene Maries Raigne when the Dutchesse of Suffolke tooke to her Husband Adrian Stoakes Prob. 4 5 6. and many other presidents have beene of latter time and herewith agreeth the Civill Law punctually Digest lib. 1. Tit. 9. Lege 8. Eodem de Dignitate Liber 12. Lege 2. In this case of acquired Nobility by Marriage of Question in Law be whereupon an issue is taken betweene the parties that is to say Dutchesse or not Dutchesse Countesse or not Countesse Baronesse or not Baronesse the tryall hereof shall not be by Record as in the former case but by a Jury of 12. men and the reason of the diversity is because in this case the Dignity is accrewed unto her by marriage which the