A TREATISE OF THE NOBILITY Of the Realm. COLLECTED OUT OF THE BODY Of the Common Law, with mention of such Statutes as are incidet hereunto, upon a debate of the Barony of Aburgavenny. With a Table of the heads contained in this Treatise. LONDON, Printed by A.N. for Mathow Walbanke and Richard Best, and are to be sold at their shops at Grays-inn gate. 1642. The Table. OF Baron's Page 3. The definition and description of a Baron Page 37 Of the name Baron Page 40 The Antiquity of the Dignity of Barons, and the uses of the Name. Page 43 If a Baron by Tenure grant the Honour holden by Barony, whether shall the Grantee have the Dignity or otherwise? Page 68 Certain Cases wherein a Baron hath no privilege Page 127 nobility and Lords in reputation, only Page 131 Noble Women. Page 132 Honourable Women of three sorts Ibid. ladies in Reputation. Page 140 The Hypothesis or particular question, Page 143 The Barony of Aburgavenny, a Barony by Tenure, and an ancient Honour. Page 145 The Line of the Hastings, owners of the Castle of, and Barons of Aburgavenny Page 149 The Descent. Page 156 The family of Beauchampe L. Aburgavenny Ibid. A Treatise of the Nobility of the Realm according to the Law. Question. Whether the Barony of Aburgavenny, with the title and dignity be descended unto the Lady, being the Daughter and Heir of the Honourable Hen. Nevil, the late Baron of Aburgavenny, or unto the special heir male, unto whom the Castle of Aburg being anciently the head of hat Barony is descended. WHerein are three things considerable. 1. First this general Thesis, whether within the Realm of England, there be any Baronies by Tenure, And whether Baronia sit dignitas annexa ●odo (vizt.) whether the heir male ha●ing the Castle holden per Baroniam shall have the title, or the heir general which hath not the Castle. 2. The second is Hypothesis, whether by former precedents it may be showed that this Barony of Aburg. hath been guided by the lawful descent of the Castle of Aburgavenny, or whether the same hath gone to the heirs generals sundered from the Castle. 3. The third is, that it is not to be doubted whether the dignity of Baron may descend to the heir female (for where such Castles, & is holden per Baroniam, and doth descend unto the heir female. There likewise the title, etc. as in many Noble houses of this Realm is most evident) but The Question is whether the title of Baron or Baronesse may descend to the heir female, whereas that fee holden by Barony, is descended to the Heir male or no, and whether the fee to support the dignity may be severed from the dignity. A Treatise of the Barons of this Realm. IT is true of Ulpian Publicè interest quod ordinum familiarumque solva sit, Lib. O sed si F. de ventre inspiciend. Baldwin in la sacraledge divinis rescript Ante Nobilit. cap. 6. Which duly considered, is cause that the special heir male of the late Baron deceased without any affection of honour or humour of ambition desireth to make known what things former times observed, he hath now found to have been considered in such like Queries; Nevertheless with all humility and loyal duty he submitteth himself to the princely pleasure of the Queen's most excellent Majesty, ●n whom is the fountain of all Nobility, and unto the censure of the right Honourable the Earl Martial of England, unto whom the jurisdiction and Cognisance of the same cause by office appertaineth. But before proof be produced, 1. By what law this Quer. is to be determined. it shall not be amiss to consider two principal things, what manner of proof in these causes is most pregnant, and by what law this controversy might best be determined. 3. 2. Touching the state ofour B●renies. Some things are requisite to be delivered before in general manner touching the state of the Baronies within the Realm, whereby the Querie in hand may be the better apprehended, and receive the more easy resolution. As touching the first, it is to be observed, that the dignity of a Baron, and that name given to a degree of Nobility, was not usual any where, until near the declination of the Rom. Monarchy, and therefore those parts of the civil Law, which contain the ancient Roman laws do afford small proof of the deciding of this kind of controversy, otherwise then prechance now and then there are inserted some general sentences or axioms of the law of nature, which may be particularly applied as the occasion serveth. Therefore in those times upon the sundry invasions of those Northern people, Goths. Vandals. which hastened the ruin of the Roman estate, when Tenors and it which they call Feuda, had their first original, divers new dignities of Nobility were devised, and drawn from the service of the field, whereof some of them formerly had been but names of Offices, as may appear in the second book de feudis, in the title Quis dicatur dux Marchio, etc. He that would not have the controversies moved within the Realm concerning this kind of Dignities to be deterined by the Common law, and yet would that the common custom of our Country should direct the same, speaks in my understanding contrary things, for it is a general Maxim, 7. H. 6. Martin. 9 Ed. 4. & 38 H. 8. Custom. B. 59 that the Common custom of the Realm, is the common law of the Realm. Therefore to affirm that the common usage of the Country should direct the controversy, and to deny that the common Law should determine it is contrary to itself. That the common Law doth determine this kind of Controversy, it cannot seem strange to him that considereth the general division, whereby the said law is distributed into parts, Bracton, lib. 1. cap 5. & 2 de justo & jure. Est autem jus publicum, & jus privatum. Jus publicum, Bracton disposeth it, Est jus quod ad statum Reipub. pertinet & consistit in sacris Sacerdotibus & Magistris. Others give a more large scope to this division, joachimus Hosp. de juris arte, lib. 2. de rebus humanis sive de jur' civil. distributing jus publicum into three parts into Jus , jus fecile, & jus questortum. The first part jus , though it be the general name of the whole Law, yet in this division thy do understand thereby, that part of the Law wherein consideration of many things are had, tending chief to the public good, and wherein persons of men are considered diversely; Dividumtur quinque formae modis, pro loco, pro facultate, pro ordine, pro jure, pro dignitate. Under that division which is in respect of Order, all degrees of persons, Noble and ignoble are comprehended, and under the division, in regard of dignity the Prince, Magistrate, Pro ordine. Officers of all kinds are contained. Pro dignitate. The consideration therefore of all degrees of Nobility is a part of the Law practised in every Kingdom, under that division which respecteth public justice, and therefore in regard of persons sub ordine debito, this is now apparently perceived if we apply our thoughts to the regard of jurisdiction in general, which respecteth the fountain of justice from whom it springeth. All Justice is either commutative or distributive. Commutative Justice determineth debates growing upon contracts, inheritance, or chattels, and those be real or personal, which suits are commenced ad instantiam partis, by Plaint, Bill, or Writ, in the ordinary Court of Justice within the Realm. Distributive Justice is twofold, for either it doth ordain punishment for such crimes as do fall within the correction of the laws, or else it doth distribute a reward for virtues. That kind of Distributive justice that inflicts punishment proceedeth in some cases add instant. partis, as in appeals of Murder, Rape, Robery, etc. That most usually Ex officio, and that either by indictment or presentment. That kind of Distributive justice which concerneth the advancement of virtue in bestowing of honour, which is the proper guerdon of virtue, In Camer. stellat. 39 El. z inter Comit. Kanc. & Rotherom. remaineth with the highest Sovereign, annexed to the Imperial Crown of the Realm, for as virtue is the gift of none but God from heaven, so the reward of virtue with honour for her Majesty, God's substitute on earth within, etc. But when honour and arms (being the ensigns of honour) be once bestowed on any, or possessed by any, if there shall arise contention between competitors for the same, pretending several challenge thereto the ancient policy of the Realm, hath ordained an especial Court, The proper Court of honour & arms. the jurisdiction whereof is immediately derived from the Crown, and whereof the Judges have been right honourable personages, The Lord high Constable, and the Earl Martial, and in later times the Judge thereof is the Right Honourable the Earl Martial, the jurisdiction of which Court consists in the execution of that part of Distributive justice, which concerneth the advancement and support of Virtue. The Court wherein, and the Judges by whom these controversies are to be determined by that which is above. said may partly appear. The Laws whereby the same are to be decided, are the Laws of God, the general conclusions of the laws of Nature, Dist. lib. 10. cap 4. Com. 304.6. and of the law of Nations, together with the customs & usages of statutes and Ordinances of our Country in like cases heretofore, either observed, or provided, or which are the primary grounds, and chief principles of the laws of this Realm. And if no Cause heretofore hath happened that might be a precedent to determine such future Controversies, then in the judgement of such doubts, that resolution is to be embraced, which is most correspondent to our government agreeable with the disposition of our people, and so especially as that the new judgement (so it be promulged) do not in any matter of consequence impeach, infringe, or enfeeble any old or former received Law, or usage then in force. The law therefore of our Country so branched into several Courts, though the several Jurisdictions aforesaid, 8. Ed. 4. per Yeluerton, Bract. lib. 1. Cap. 2. aught to determine all civil and criminal Causes with the body of this Realm concerning whatsoever Causes. Nevertheless, some men there are not duly considering of what principles and parts the Laws do consist, have laboured to prove that the Quae. of Nobility and Arms should not be determined by the laws of the Realm, framing unto themselves many Arguments to prove their Assertion, the chief of which arguments are here proposed and answered. Object. 1 First, it is said that the Laws of the Realm do make all the Daughters equally to inherit, but it is not so in the descent of the Dignities and titles of Honour, and therefore it seemeth that the Quae. concerning the descent of dignity are not determinable by the laws of the Realm. To this Argument may be answered, Resolve Bract. li. 2. Cap. 4 fol. 10 & li. 2. ca 5 fol. 13. Coment. 170. that there are divers inheritances, some of things corporal, as lands, tenements, etc. some of incorporal framed, not by nature, but by man's policy, and therefore called jura: the first sort do lie in Livery, the other are such as do lie in grant. Of the later sort there are divers kinds, some matters of preceptible profit, as Offices common, etc. Some others are matters chief of ease, as ways and passages over the land of others; Some other concern matter of profit and pleasure, as Forests, Parks, Chases, Warraines, etc. Others of jurisdiction, as the grant of Courts, others of Privileges and immunities, as a getter to one and his heirs, to be quit of Subsidies, Dizmez, Quinzems, etc. Others matter of honour, as the dignity of a Duke, marquis, Earl, Viscount, or Baron, granted to one and his heirs general, or to him and the heirs of his body. Inheritance concerning matters of honour, Cap. 1. Praeterea de prohibita feodi alienatione per Frederes. being things in their nature, participating of superiority and eminency, are not partible in any equality among many, and therefore must of necessity descend unto one, and that is unto the eldest Daughter inheritable, where there are no heirs males lawfully to challenge the same. 23. H. 3. Fitz. Com. 8. There was a Judgement in the time of H. 3. touching the descent of the Earldom of Chester, after the death of the Earl, who died without issue male, his Sisters being his heir, which Judgement was, that the said Earldom should be divided as other lands, and not to the eldest, But this Judgement was holden erroneous then. For Bracton, a learned Judge of that age, Braction, lib. 7. fol. 76 de Cosercen. thus seemeth to write thereof (viz.) De hoc autem quod dicitur quod de feodo milit. veniunt in divisione capital. Messuagia, & inter cohaeredes dividuntur; Hoc verum est nisi capitale Mess. sit caput Comitat. propter jus gladii quod dividi non potest, vel caput Baroniae castrum vel aliud aedificium, & hoc ideo ne sit caput in plures particulas dividatur, & jura Comitat. & Baroniar' deveniant ad nihilum per quod deficiat regnum, quod ex Comitat. & Baronibus dicitur esse constitutum. si autem plura sunt aedificia quae sunt capita BAroniae dividi possunt in Cohaeredes facta electione, salvo jum assuet. quia cum plura ibi jura sunt quod liber per se poterit inte gre observari, quod autem non est in uno ut praedoct' est licet à qui busdam dicatur. Quod in alijs Regionibus aliquando de consuetudine dividatur, sed quod nunquam dividi videtur in Anglia debeat, nec visum fuit contrar', & erit consuetudo regionis observanda ubi haereditas est quae petitur, & personae nascuntur quae petunt; Et unde si dicatur quod in regno Angl. aliquando facta fuit partitio, hoc fuit injustum. Vermon liver d'antiquities à placitio, 290 ad placiumt. 301. It is therefore evident that Baronies, etc. do by the laws of the Realm descend unto the eldest Copercener, and Judgement given once to the contrary. Thereof Bracton doth rightly account to be unjust, his reason is notable; For in as much as the Honour and Chivalty of the Realm doth chief consist in the Nobility, reason will not that such dignities should be divided among Coperceners, whereby through multitude the reputation of honour in such succession, Pet. Greg. de repub. lib. 7. cap. 5. and so divided might be impaired, as the strength of the Realm being drawn into many hands with decrease of livelihood by such partition should be enfeebled. In which resolution Britton the Baroned Bishop of Hereford, Britton, 187. de herit. devis. who compiled this Book in the name, and by the commandment of Ed. 1. accordeth, who delivered this as a special Caveat; En tous cases sont les droits des espees (that which Braecton calleth Ius gladij) guards de sole miss & dismembres, he calleth it Ius gladij, because Dukes, Earls be at the time of their creation, Cinguntur gladijs gladius autem significat defension, reginae & patriae; But howsoever that judgement was given, or whensoever, it was nevertheless very evident that it was soon redressed, for if it were given upon the death of Ranulph, the last of the name E. of Chester, who died about 17. H. 3. the Writers about that time do testify, that the Earldom of Chester came wholly to john Scot, the son of David Earl of Huntingdon, and Anguish and of Maude the eldest Sister of the said Ranulph. If it were given upon the death of the said john Scot, who died without issue about 24. H. 3. (for in the reports of the Law, the difference of a year is no great matter) yet notwithstanding the said Judgement stood not in force, Math. Paris Monast. Sancti Albani Chron. 36. for that the said King assumed the said Earldom into his own hands upon other satisfaction made to the Sister's Coparceners of the said john Scot ne tanta haered tas inter Colos deduceretur. M. 6. H. 8. That the descent of Dignities and Offices of Honour are determinable by the Common law is made manifest by the great cause concerning the office of the Lo. high Constable of England challenged tempore H. 8. by the Duke of Buckingham, and determined by the resolution of the Judges, as by a note of that Case extant, Dyer, 285. whereof my Lord Dyer in his Reports hath a memorial is most evident where the Case was that Humph de Bohun Earl of Hertford and Essex, held the Manor of Hatfield Newnham, and Whiteing hur'st, in com' Glouc ' du roy pur service de eant halt Constable d' Anglque mor' tyent issue 2 files que font partition de mesme les Manners, & part le office eant servic' pur reason de tenureque descent' all ambu files dene exercise pur lour sufficient deputy (dumb sole ' vixerint) mez aprez lour marriage, & fuit dene exercise solement pur le Baron el'eigne, Mes quia Hen. de Bullingb. Ca'ps H. 4.) que ad espouse le puisne a que le man ' de Whittenhurst de eant part' de terr' iss ' ten' fuit allot ' pur sa pur port. Another Querie was moved, whether by the unity of parcel of the tenancy in the King the said Office, were not determined, or whether this were in the other Sister, which the Justices resolved that the Office had its continuance in the eldest Sister and her heirs, of whom the said Duke was descended, but because the exercise of the said Office was a service in respect of tenure, the said Judges further resolved that the King might refuse to have the said office exercised, as any Lord may refuse the homage of his Tenant; All which resolutions the two chief Justices did signify unto the King, according to the names of themselves and the rest. Object. 2 Second Objection that by the law of Chivalry, if the Widow of a Duke, Earl, Baron, etc. do marry with a Knight, Esquire, or Gentleman, then nevertheless she retaineth her name of honour, whereas the Common Law doth otherwise determine thereof, and therefore they conclude that the common Law doth not determine this kind of controversy concerning the title, names and dignities Noble. There must be made a dis-Junction between the strictness of Law, Resolu. and courtesy of Ladies at the Court, 14 H. 6.2. & 8. a. for it is a rule in Law, as it is the same law of Chivalry, and in that point so is, and should be known among the Heralds, for as much as a report of law in that case doth acknowledge it to be taken out of the books of Heralds, 5. Mar. bre. Br. 546. & nosme 69. Fortescue, 100 that Quando mulier nobilis nupserit igncb. etc. Of the which Fortescue sometime chief Justice of England yields a notable reason, Cod lib. 10. de incolis leg. sinal. Mulieres honore maritorum, etc. sin autem minoris ordinis verum? For if she be honoured with any title in respect of her Husband, it is reason that after his death she marrying with an inferior sub cujus potestate vivet, that she should be of like quality and reputation as is her said Husband. For as she was enabled by the one, so must she be content to leave that Nobility by strict course of law for live of the other, so that in this point the law is one way, and the honour and courtesy of Ladies another. And as the Civilian saith in the like case, 6. E. 3.7. E 6.79. 3 Eliz 23.69. Aliud est jus, aliud Privilegium. Nevertheless, the books of our law do make mention of that Courtesy, and allow of it as a Courterie though not as the Law. With these do agree the law of Nation, with which concordeth also the Civil law, Foeminae nuptae clarissimis personis clariss. personarum appellatione continuentur. But of the other side clariss ●oeminarum nomine senator. Filiae, nisi quae viros claeriss. sortitae sunt, non habentur. Foeminis enim dignitat. clariss. mariti tribuunt. Parents verò donec plebeis nuptijs fuerint copulaetae. Cod de dignit. leg 12. tamdiu igitur clariss. foemina erat quaemdiu Senatori nupt. est. vos clariss. aut separate. ab eo alij. inferioris dign. non nupserit. Nevertheless, jacob Rebuff ind●ct. leg. 1. lib. 12. Cod de dignitat. in Kingdoms this holdeth not place in the blood Royal, for Si filia Regis nubat alicui Duci vel Comiti dicitur tamen semper Regalis. Likewise, the said first rule touching the Nobility of Women married unto persons ignoable doth fail where they inherit those dignities. For if a Dukedom, Earldom, 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 bear the title of such dignities especially if he be entitled by the Courtesy. Object 3 A third Object. is this, It is said that by the law of Chivalry exercised within the Realm, if a Baron be created an Earl, etc. that the heir apparent of such Earl, etc. shall after such Creation of his Father bear the title of the Barony, etc. but this is not usual 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 custom of the Realm, is the law of the Realm. Howbeit the Common Law doth put a difference between such Heirs apparent as carry those Titles lawfully in respect of the usage, and such others as have them by Creation or otherwise, for such Heir apparent is no Peer of the Realm as those by Creation, or such as have the Earldom, &c upon descent after the death of his Ancestor, and therefore as when the Lord Hen. Howard, Earl of Surry, Son & Heir apparent to Thomas Duke of Norfolk, An Earl by Nativity. was attainted his Trial was by jury of Knights and Gentlemen, not by Barons, etc. for that he was an Earl by Nativity, which in respect of trial the Law doth not allow. The like trial chanced to the Lord Grace, who 33. H. 8. was in B. K. arraigned of treason, and appointed to be tried by a Jury of Knights and Gentlemen, and not by Peers, 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 Sovereign, as is usual in that behalf. Obje. 4 It is objected fourthly, that by the Common law a man may not be called Lord of that he hath not; But by the law of Chivalry a man may be created Earl of a County, having no land therein: therefore differ. Resol. 1 It is true that some particulars of ordinary proceed in the law doth differ from other proceed 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 be called Lord of that wherein he is no way owner in demesne or signory, but when you draw the law to the consideration of dignity, the whole resolution must rest upon the Patent of creation, Earl pur autre vie 31. H 6.29. pur Danby. wherein the name is appointed at the pleasure of the Sovereign, for one may be Earl during the life of another, if the Creation be so. But I answer further, that it is not true that every Earl must be Earl of a place, nor every Earl of a place Earl of a County, nor that every Earl of a County, hath nothing in that County whereby he is Earl. For the better manifestation consider that originally within this Realm Earldom of Counties in the ancient English Saxon Governors were not only 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 Earls or Aldermen, they likewise had their Deputies under them, the Sheriff an Officer, yet containing the name of his substitution in Latin Vicecomes. Camden. 107. These Earls in recompense of their travails 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 ancient Charters may appear, which afterward were turned into Pensions, H 3. dedit Haber●o de burgo 40 pro 3. deno. Com. Cant. de quoeund creavit commit. habend. sibi, & haered. de corpore Marger. vaeor 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 book case upon the pleading of the Patent, whereby H. 6. Created that worthy Knight, Sir John Talbot Earl of Shrewsbury, which Pension is so annexed unto their Dignity, as that by any means 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 sum in lieu thereof, some have not without probability imagined, Quod Comites nominabant capiend. fisco Regis socij & Comites fido participes essent Lamberd. etc. Of the single Ear. and not Palentine with Engl there have been principally two kinds, but every one of them again subdivided into several 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 usual, or else some other place and no County, as a Town, Castle, or honour, etc. of which later sort some are more ancient, having their original even from the Conquest, or shortly after: as the Earldom of Richmond in Yorkshire. Clarence in Suff. Arundel in Essex, all which had their original in the time of the Conquerors by donation of those Castles, etc. The Earldoms of Bath temp. H. 7. & H. 8. erected in the family where now it remaineth, and the Earldom of Bridgewater, whereof Sir Giles Dawbeney was Created Earl, temp. H. 7. Earldoms which have their titles without any place, are likewise of two kinds, either in respect of office, as is the Earl Martial, for it is granted in this or the like manner. Officium Comit. Marescal' Angl ' with further words, (vizt.) A.B. etc. Comit. Marescallum Angl. creamus, ordinamus, etc. by which it appears that the very office is an Earldom. Earl by birth. The second sort are Earls by birth, and so are all the Sons of the Kings of England, if they have none other dignity 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 Count sans terre, before he was affied unto Alice, the Daughter of the Earl of Morton in France. Object. 5 A fifth Object. is this, The law of Chivalry proceedeth not in the accomplishment of a combat in such manner as is performed by the course of the Common law, either in the Writ of right by Champion, or in the Appeal by person, therefore the managing of the causes in Chivalry is not in the common law especially, 37. H. 6.36 37. H. 6. forasmuch as our books do acknowledge them to be determined by course of the Civil law. It is true, Resol. that the manner of performance of those several kinds of Combats is very different, and although the combat for Honour, or upon the Appeal for treason be performed within England, according to the custom of foreign Nations in some respects, although not altogether so, that almost every particular Country hath a particular manner, by means whereof some men seeing the difference betwixt those and the ordinary course of observance of Combats for land in the Writ of right, or for life in the Appeal of felony, have therefore imagined that the proceeding in Combat before the Lord Constable or Lord Martial in the Appeals of treason, or in causes of Honour betwixt such persons, Paris de Putio johannes de delignatio jac. de Castilio And. Assiatus. jul. Herret. Anthon. Mosseus, Cod. lib. 21. gladiatus lege unica. Dig lib 9 ad legem aqualiam, leg. 7. Justus Lipsius de gladiatoribus. as by the law may wage the same, should be according to the course of the Civil law, yet nevertheless it must been certain that the Civil law of the Romans, is so fare off from giving any allowance thereto, as that it seemeth to forbid it. For that law of the Christian Emperor Constantine is most notably alleged to this purpose by most of the learned Doctors of the Civil law, that have written De duello, the words of which law are these, Cruenta spectacula in otio civili & domest. quiet non placent. And that which for disputation's sake is alleged to the contrary. Si quis in collustratione vel pancratio vel pugiles dum inter se exercenturs alius alium occideret. Si quidem in publico certamine alius alium occiderit cessat, equalia, quia gloriae causa, & virtutis non injuriae gratia vitetur damnum datum, is understood rather of Justs and such like plays de gladiatoribus, as were usual among the Romans, all which were abrogated by this law of Constantine. I. de Lignano de Duel. a 5. Inlius Ferret. de duel. n. 20.5. Andr. Ascicus de duel, cap. 4. de legibus Congobard, ●it de Monarchijs, n. ● jul. Ferre● de duello. 17. ●et Gregor. lib. 48. cap 161. n 8. Nevertheless among these warlike Nations that invaded the Roman Empire this kind of single Combat hath been again exercised in divers Kingdoms, according to the custom of every several Country. Among the Lumbards' it, was permitted in 19 cases; Their weapons being nothing else but the Shield and the Baston. And yet of the use, or rather abuse therreof, the King Katharius seemeth to complain, purposing to have abrogated the some. Quia incerti sumus de judicio dei, & multos audivimus per pugnam sine justa causa suam causaem perders, sed propter consuetua. gentis nostre Longobardor. legem impiam vetare non possumus In the several Kingdoms of Cicilie in Spain, it hath been allowed in some Cases; Likewise in France by the constitution of Philip le Beau. Anno 1306. Likewise the Emperor Frederick did permit it in certain cases expressed in the Treatise De consuetud. feodorum in the title De Pace tenenda & ejus violatoribus si quis hominem, si quis alium, si quis Miles, etc. In some places of Italy the battle hath been allowed upon less occasion, De pugn. cern. cap. 4. in fine. of the which Alciatus maketh mention with some detestation. Hereof it is evident that the order, manner, and causes of single Combat are different in divers Countries, and every Country: that people following their own Customs and usages being their peculiar Law: and in this our Realm, it was a trial much more frequented in ancient times near the Conquest then succeeding ages, for it is evident by some ancient Records and Plea rolls yet extant of King Steven, Wager of battle in personal causes. H. 2. R. 1. and King john, that it was permitted to be waged in personal occasions in cases wherein men now commonly wage their law, 37. H. 6. fol 36.37. H. 6. fol. 20. Glan. lib. 8. cap 8. Que battalle partee gage en ascun case en vn' bre. de fac. judgement. and therefore in 37. H. 6. and 37. H. 6. fol. 20. Needehams' opinions are much more agreeable to the truth, where both do affirm that such waging of battle before the Lord high Constable and Earl Martial, is by the Laws of this Realm, although it be determined before them, and so great a Sympathy is between that Court and others of common Justice, as that the Judges shall take notice of the proceed before the Lord Constable and Earl Martial upon occasion offered rising in debate before them. Object. 6 The sixth Objection is this, The common Law in the trials of matters in sentence doth proceed by a Jury of 12. but the law of Chivalry in the trial of matters in fact concerning Honour and Arms proceedeth upon examination of witnesses, which is according to the course of the civil Law: therefore matters of Honour are to be determined by the civil (not common) Law. I the trial of matters in fact, Resolu. the common law doth not always proceed by a Jury, for although they most properly lie in the Conusance of the Jury, 8. Ed ●● trial 94. 9 Ed 2. judge meant, 231. yet in other matters the Law hath ordained some other manner of trial, as they gage others by Witnesses, as if a Wife bring a Writ of Dower, supposing her Husband to be dead, and the tenant saith that he is alive, whereupon they arer at issue, this shall be tried by Witnesses only, and not by Jury. 33. H. 6.9. 35. H. 6.47 So likewise if land be recovered by default, and after brings a Writ of discript, for that he was not lawfully summoned in the former action, upon which they are at issue, 13. Ed. 1.36.37. 13. H 7. vill 43.47. H. 3 15. Ed 2. Coron 385. Vill. 3●. 19. H. 6.32. this shall be tried by examination and depositions of the summoners, etc. and not by the Jury. In a Write de Nativo habendo, whereby the Plaintiff claimeth the Defendant to be his villain, the Defendant saith he is a freeman, and thereupon they are at issue, this shall not be tried by a Jury, but by Witnesses, namely such males as be of the blood and kindred of the Defendant and not otherwise. 48. Ed. 3. n. 34. H 2. 46. E. 3. Some matters of trial in fact are tried by view and inspection of the Court, 8. Account. 121. & not by a Jury as the Nonage of the Plaintiff or defendant alleging himself to be within the age of twenty one years. And the like trial is of a Maykem, 21. H. 7 33. 39 E. 3.32. 7. H 4.24. 38 E. 3 27. 18 E. 4 36. 2 H 4.17. 22. H 6.27. wherras in an Appeal of Maykem the parties be at issue, whether the hurt be a Maykem or no, sometimes the Courts of the ordinary of some other judge or Officer, as in matters spiritual by Certificate thereof from the ordinary, etc. And concerning matters done beyond the Seas in the King's Army, or concer-cerning Combat for honour, arms, etc. by Certificate of the Lord Constable or Earl Martial, 3 H 6.6. 48 E. 3.3. etc. whereby appeareth the weakness of the former Argument, but in cases usual the law alloweth the trial by Witnesses without jury; And therefore in the Lord Constable and Earl Marshals Court matter in fact concerning Honour and Arms (which lie not in the knowledge of the vulgart sorz) the the Common Law grounded upon the best reason would it should be tried by witnesses or matters of Record, as the cause shall require, and not that the same should be tried by the conscience of the vulgar people, 22. Assess. pl. 24. being matters whereof they have no knowledge sufficiently to discern. Hitherto have I wandered of purpose, to show that our homebred Law is sufficiently able, and aught to try all causes civil (other then Marine) such as are rising with the body of the Realm (and not in foreign parts) whereby appeared the excellency of the Common Law, which maintaineth the particular jurisdiction of every particular Court. For it is the common Law (through the sundry Writs of prohibition which it useth) which keepeth every Court within the compass of his proper sphere, and upholdeth the jurisdiction of the Court of the Earl Martial. By that therefore which hath been said, two things may sufficiently appear. First, that the Court of the Lord Constable and Earl Martial have had, and now the Earl Marshal's Court hath particular jurisdiction originally and primarily to determine matters of controversy concerning Chivalry, Dignity, Honour & Arms, and some other things acknowledged to belong to the said Court by the Laws and Statutes of our Country. Howbeit by a consequent but not originally, some other Courts of ordinary justice may, as the case shall require, determine likewise such like controversies touching honour, etc. but not (ease or in sua) but rather by an adjunct, as by this example may appear. If there be two competitiours of a Barony, and during the time that their cause is litigious, the one of them is impleaded at the common Law by original Writ Cap. alz & plures in a personal action, and thereupon an exigent is awarded, whereupon ensueth an Outlary, the party outlwaed brings a Writ of error, and assigneth for error, that he having such a Castle to him descended, etc. holden per Baroniam, whereupon his Ancestors have been Barons, anp he himself Baron, no Cap. ought to be awarded against him, but in very special cases only, therefore the outlary erroneous. This matter of error alleged, the Court cannot consider without due determination of the title of the Barony, wherein if the Court of the Earl Martial should adjudged one way by any foreign Law in the same question depending there, and the Court of B.R. adjudge another way by the common law of the Realm: upon this Writ of error, there would ensue thereof a great confusion and inconveniency in the Commonwealth, which the law will rather eschew then any other mischief whatsoever. Secondly, therefore it doth appear by the speeches aforesaid, that the common law ought to decide this controversy, and that both Courts ought to follow one and the same law, in as much as the common law is more ample than ordinary reports of Cases in the year books. For whatsoever is not disagreeing from the law of God, and is consonant to the laws of nature and Nations, allowed by the customs of our Country not disagreeable to former precedents answerable to all good learning is the undoubted common law of the Realm, which knowledgeth no other Author but God and nature, and whereof the juges in all ages have ever thought it honourable to receive all good helps from every faculty of literature in the ending of difficulties questioned before them. The proof therefore in this controversy to be produced shall be arguments of reason, What manner of proofs are to be used in your Controversies. allegations of authority, precedents of time drawn out of Records, Histories, ouncient Monuments, Laws and customs of our own country and furnished with such other matters of necessary knowledge as may tend to the better explanation. It followeth somewhat to speak in general of the dignity and degree of a Baron, The 2. matters before proposed. whereby the Qu. in hand may be the better conceived and be reduced to a more clear determination, which for order sake I will reduce to the consideration of these principal heads. 1. The definition or description of a Baron. 2. The Etymology of the name of Baron. 3. The antiquity thereof, and the divers use of the name. 4. The division and consideration of the several Kind's of Barons. 5. The determination of certain, Qu. and difficulties tending to the more manifestation of the natures of the several Kind's of Barons. 6. And lastlie a declaration of the divers and sundry privileges allowed by the laws of this Realm unto the Barons and Nobility of the same wherein the vulgar, etc. hath no participation. Which things being discovered there will be laid open (as I do conceive) a plain way to the final conclusion and resolution of the question in hand. The definition or description of a Baron. IT is a rule of Law that Om nis definitio in jure periculosissima. Dig. l. 51. de regulis juris 203. omnis defifinitio. Rarum est enim ut non subverti possit. And therefore I do not often see any definition or description of a Baron. Baldus thus describeth a Baron, Baldus Canotus de sectionibus. ut sit quisquis merum mixtumque imperium in aliquo Castro opidove concessione principes habeatur, But his seemeth rather particular to some then general to all, and therefore Alciatus useth these words Nobis alia est sententia quia sciamus et in Germania, Andr. Alciatus de duello, c. 32. Refer. Pet. Greg. in reg jur. H. 6. capire 10. et Gallia solum Barones dici quibus super opidorum jurisdictionem haec dignitas specialiter concessa est. Some think they are those which are meant under the name of Valvasores majores & Capitanei. In the second book De feodis de titulo Quis dicatur dux, etc. And some others would have the dignity of a Baron to contain every noble dignity under the Earl. Grand de supplenda neglig. plator. in Sexto. Some common Lawyers there are which extol the dignity of a Baron before that of the Earls, by reason of a subcription to a decretal epistle directed Baronibus & Comit. regin Portugal. They not considering that in another place in the same decretals it is more orderly placed, Nullus Imperator seu Rex Romanus aut alius Imper. aut Rex, princeps Marchio, Dux, Comes aut Baro, etc. Other some do equal the Baron with the Earl, Baro. de Tan. Berg. refer. Hyard. in Leuxiris. affirming that Comiti Baro. prorsus equiparatur, etc. nullaque differentia nisi quod de Comitat. non sit investtitus, etc. haud quicquam Comite censeatur inferior. And thus every one of them have written conformably to the customs of his particular Country. But in this our Commonwealth of England (me thinks) a Baron may be described in a generality answerable to every of the special kinds thereof in this manner. A Baron described. A Barony is a dignity of Nobility and honour next under the Viscount, and above the Banaret and Vavasour with the title of Lordship holding the same place with us as did the Patritij or Senator under the Romans. For the better understanding whereof consider that Nobilitas generally signifieth matter of note, but specially it is applied to express the reward of virtue in honourable measures. Sc. generis claritatem of which there are two kinds Nobilitas major (viz) a Lord at least, & Nobilitas minor: but our english tongue expresseth the higher kind. A Barony therefore is a dignity of nobility and honour. A dignity of Nobility to exclude all other kinds of dignities, of honour, to exclude the lesser kind of Nobility wherein Gentlemen are comprehended. Dignities of Nobilities are with us of two kinds some are dignities of Nobility, honour, parcel of the name of those that are ennobled thereby, so that in public proceed of law it is parcel of their name, and may not more be omitted then their surname, such are the Nobility of Dukes, Earls, Viscount's. Others are Dignities only, and not parcel of the name, and so is the Baron, and therefore if an Action be brought by or against a Baron, who hath but a Barony only, it is not requisite to make him Baron, which in all other Dignities being parcel of the name is otherwise most curiously observed, 8. H. 6.10. 32. H. 6.30 Littlet. otherwise the Writ shall abate; Thus much of the Dignity of a Baron, now of the Etymology of the Name. 2. The Etymology of the name Baron. MAny Writs have laboured to yield the Etymology of the name wherein following their own fancy there hath been bred much variety of opinion, some men inducing the Greek, importing Gravity, others have sought a Latin Author to father it upon, Lib. 5. alleging Cicero ad Atticum, where they find printed in some Copies these words, Apud Patronem & reliquos Barones te in maximam grā positum, where in other Copies in lieu thereof is read Barrones, Alciat. lib. 5. cap. 16. & 32. and so by others the same is acknowledged to be nothing but a corruption whereof Alciatus speaketh, etc. And therefore Rasius calleth the word Vanasors & vassallos, among the which they intended Barons to be included, Sim. Shaldus in lexico juris, Ptol. lib 2. cap. 6. Io Brekins de consuetud. gallorum. Vocabula illota. Others would derive the word from a certain warlike ancient people inhabiting some parts of Spain, called Barones; or as Strabo and Ptolemy do name them Barones, whose habitation was situate upon the Westside of the River Euberus, who guarded the persons of the Roman Governors, as the Swissers are now used for the guard of certain Princes. Others derive the name from the manner of building of those houses that were given to Barons to be holden and were the head of their Baronies, Petr. Gregor. Syntax. lib. 6. c. 10. Quod erant ejusmodi domus undique occlusae & substructis turribus & barris. Some think it to be an Hebrew name signifying mercenary soldiers, some would fetch it merely from the Latin, Barones tanquam pures homines; But the most probable derivation is drawn from the Northern people's language, which invaded the Roman Empire, among whom a Baron signified a man of strength, as by the laws of the Lombard's, and as by the words yet remaining without much variation in every one of the said three tongues, The word Varon and Baron, Tit. 8 in al. lib. tit. 9 Tit. 60.54. is used in stead of the Latin word Virro, and with this agreeth parcel of the ancient law of Canutus, Quod est summa census diversarum dignitatum si minoris Vironis, id est, Baronis duae librae: si majoris 4. etc. And therefore in the Lombard's laws, compiled by K. Rotharis the word Baron is thus used si quis ex Baronibus nostris ad nos voluerit venire, securus veniat & illaesus ad suos revertatur. And in those old laws called, Repnaria si quis hominem regni tabularium tam Barone qui foeminam abstulerit, etc. Where the word doth signify the same that the word Virro doth in Latin; Vir leges salvos: Bracton. lib. 2. c. 8. Therefore Bracton not unfitly useth it sunt & alij potentes sub rege qui dicuntur Barones (hoc est) robur belli. The Antiquity of the dignity of Barons and the sundry uses of the name. IT seemeth that the dignity was more ancient than the name for in the ancient constitution feudal of the Lombard's, Lib 2 feud. titulo. 10. lib feud. 1.16. lib. 1. feud 1.7. there is not mention made of the name of Baron, howbeit the learned Interpreters understand that dignity to be comprehended under Valvasores minores, or Valvasini, or Valvasores minimi, being another kind inferior to Valv. majores, which were also called Capitanei (Barons.) The like Dignity before the Conquest, Lamb. de regimine Saxonum, fol. 71. of whom is mention made in the Laws of K. Ethelston, and of this there were two kinds Thani Regis & Thani aliorum, Lamb. de regimine Saxon. fol. 71. and therefore in the Records of Doomsday in the deseription of Hertfordsh. and therein of the Manor of Brackins it is thus written; Record of Doomsday Hertfordshire. Hoc maner' tenuel 2. taggas horum unus homo regis Edw. & alter Asgari steleri. This word Thani was diversely used by the ancient Saxons; Sometimes they signified thereby a Noble man, as by the Baron, sometimes a freeman, sometimes a Magistrate, sometimes a servant attendant upon a man's person, which they signified by the subscription of the ancient regal Charters by the word Minister, as Ego minister A. B. praesens auscultavi or interfui, or in inspexi of the Kings Thanis. I find thus much written in the same Records, Thanis vel Miles Regius dominicus moriens pro relevamento dimittebat regi omnia arma sua, & equum unum cum Cella, & alterum sine cella. quod si essent ei canes vel accipitres presentabunt regi ut si vellet acciperet. That the like was done also by the Thanis of others, as of Noblemen, Earls, and others, appeareth by an ancient Saxon Testament of one Arfrie an Earl, which is brought to light by Master Lambert, in the description of Mephem in the preambulation of Kent in those times. The Thanis were for the most part deemed Noble, and held one and the same dignity, as the Barons do. The word Thanis being usual in that sense, not only among our English Saxons, but also with the Scots and Danes, as concerning the Scots Hector Poet writeth, Malcolmum regem titulo Comitatum honestasse, And as touching the Dane; the Thanis among them are yet in use, as liberi Domini, such as are the Barons, by this it may appear, that the name of Baron was not usual amongst the ancient English Saxons, for that in the subscription unto the grants of Kings, whereunto with the sign of the X were subscribed the names of all noble personages, as well temporal as spiritual, the said word Baron cannot be heard of, but in an ancient Charter made in the name of Zolpher, sometimes King of Mercia, unto the Church of Peter-borough, having these words; Praecipimus quod praedict. Monast. & dona sua sint habenda, etc. ab omni diminutione & exact. comitum, etc. Likewise to this effect have I seen in an old book belonging to the Monast. of West. Edg. Rex concilio habito infra basilicum Westm. presidente eo cum filio suo Edw. & Dunstano Archiepiscopo, & universis Episc & Baronibus suis dictā Ecclesiam de Westm. renovavit. Nevertheless, the name of Baron was not much used within the Realm until the Norman Conquest, after which it grew very frequent. In which time the notable cases, etc. of the Realm were debated before him and his Barons, and by them adjudged as by divers Monuments extant may appear, Doomsday in Canterbury. whereof one is in this manner in the Record of Doomsday, 21. E. 3.6. Quidam Preposit Brumanus eo tempore R. Edw. coepit consuet. de extraneis mercatoribus, etc. Also 21. Ed. 1. doth set forth by exemplification an act of Parliament made in a cause between the Abbot of Saint Edmondsbury, and Arfast sometimes Bishop of Thetford, which See was afterwards translated by Herbert to Norwich concerning the Visitation of the said Monastery, which Parliament was holden by the said King, the Archbishop of Cant, Berkshire. and all other the Bishops, Earls, etc. appeareth. Moreover in the Record of Doomsday, in the description of Donesh is declared, that at the time of the said Record there were at Warham of certain Barons lands twenty houses standing and seventy destroyed, by which appeareth that both name and dignity of a Baron was sufficiently known in the time of the Conquest, and as touching the use of the name the word Baron seemeth to be frequented among the Norman Conqu. of this Realm. In lieu of the word Thane among the Saxons, for as they in a large signification did sometime use the same to the sense, etc. of a free man borne of free parentage, etc. and so did the Normans use it, and therefore called their free Citizens of their best esteemed Cities and Burgesses, etc. by the name of Barons, Bracton 272. and therefore the Citizens of London were called Barons Lond. in divers ancient Monuments, of whom also Bracton writeth, Per Barones Lond. etc. So also there are divers Charters wherein mention is made of such like Barons as the Barons of Warw. in Doomsday, and in our time the Burgesses of the five ports are called Barons, and divers of the Nobility of Barons as well spiritual as temporal, did in ancient time set in the Exchequer in judicature. Moreover as our Saxons had two kinds of Thanis; Fleta, lib. 2. cap. 24. the judges of that Court have been from ancient times, and yet are called Barons of the Exchequer. the like hath been observed of Barons among the Norman Conqu. for the Kings of this Realm have had their immediate Barons being the Peers of this Realm: so certain other Noblemen, especially the Earl Palatine and Earl Marchers, whose Counties have confined upon the coasts of the enemy, have had under them a kind of Barons, as namely under the County Palatine of Chester were these Barons, the Barons of Hatton, Monbatte, Mulbanke, Shipbrooke, Malpas, Masy, Kingderston, Stockport, etc. The Earldom of Pembroke, being first erected by Arnulphus Mountgomery, 7 H. 6.35. 17. E. 3. inter placita. 18. E. 2. Assis. 30. Camois. that conquered some part of the County, and therefore the Earl thereof being an Earl Marcher had also under him his Barons, for it appeareth by the Parliament rolls 18. E. 3. that the Baronies of Haverford, Cammois, Rochie, and Castlegoton, were anciently belonging to the jurisdiction of the Earldom of Pembroke, and had their Chancery and Scals as other Barons upon the Marches used to have. Hereof also it followed not only in this Realm, but also elsewhere, that Earls had under them such as they called their Barons, who held under them lands in Knight's service and in the defence of their Lords, and therefore in the Register of the Monast, of Saint james of Northampton, it is found that Simon Ea. of Northampton, did get and confirm unto the said Abbey, Omnia dona, etc. quae Barones sui, etc. infra burgum & extra North. illis dederunt. Many old Charters also are extant, whereby it appears which now time hath worn out of memory, and yet the knowledge thereof serveth to good purpose, namely to reconcile the different opinion of some men concerning the law, 20. E. 3. Ass. 122. for 20. E. 3. Thorpe holdeth opinion that none can hold per Baron. but of the King only, and that no subject can alien his land to another to hold of such alienor per Baroniam, which some Sergeants denied, to the which opinion of Sergeants Wilby and other judges agreed, 2. E. 3. Ass. 124. Prerog. cap 7. Adding further, that before the statute of Prerog. Regis, those that held per Baroniam might alien some parcel thereof to be holden by other, since which is evident (saith he) in this that the ancient Baronies do consist most of services which began by occasion of such suits as aforesaid. The assertion of both the said judges is good law, for none can hold per Baroniam but of the K. Qu. etc. Monarches of the Realm, And again it is true that in some kind of feme a man may hold per Baron. of a subject but diversis respect. ergo, distinguendun est. None can hold per Baroniam as a Peer of the Realm, and in course of perfect Nobility but of the Crown only. For of this Bar. Bracton understandeth when he saith it is the strength of the Realm, and these Barons according to the law Senderl, are these, Capitanei or Valvasor. Majores there spoken of: for Qui a principe vel ab aliqua potestate de plebe aliquare per feudum & vestitus, Lib 2. feudal. tit. 10 is Capitane us appellatur qui proprie Valvasor. majores olim appellabantur, and of the question arising concerning these Baronies, the Monarch of the Realm or the judges, for that those Barons are immediate à Rege in feudali, as for others they be Barons ex similitudine, and therefore those which in the said laws feudal are called Valvasores & Valvasini, for the words are these, Bract. lib. 1. cap. 8. Qui vero a Capitaneis antiquitus beneficium tenent Valvasores sunt, Qui autem a valvasorib s feudum quod a Capitaneis habebatur, similiter acceperint Valvasini, id est, valicas minores appellantur, The use of this division within England, hath been in no other manner than this, The Valv. majores may be understood to be our Barons and Peers for in such manner the Interpreters of the law feudal have expressed the same. The second sort is the Valv. proprie of which degree Bracton also speaketh: sunt & alij qui dicuntur Valvasores magni dignitat. Valvasor melus dici poterit quia vas sortitum ad valetudinem. Howbeit the Civilians do give another Etymology in this manner, Valvasor. quasi ad valvas stantes, Shand Lexico in verb valve Pet. Greg. lib. 6. ca 11.13 E. 3. Chal 115. id est, tanquam ad valvas tentorij dum sunt in bello excubantes ad quamlibet injuriam propulsandam; And of these valvasi, which are properly the Valvasi indeed, mention is made 13. E. 3. For they may be impanelled in a jury among the Knights where a Baron is party. The third sort called Valvasini inspecial name we have not in use, Nevertheless they are in nature the same that we call Lords and proprietors of Manors, who also in respect of their Tenants were oftentimes in ancient remembrances called Barons, but (abusive) and their Courts, Courtbarons, for of these Glanvill speaketh, Glan lib. 8. cap. 10. fol 64. Praeterea Record. habeant minores Cur. de his quae in eyes facta sunt, etc. hence it is that these divers degrees have been observed in foreign Countries; By the French Constitution it is ordained, that Si quis aut Vicecom. aut Baro voluerit fieri comes, necessarium ducunt eum habere in sua ditione. 4. Baronias & tres castella. quarum quaelibet habeat saltem 10. Pet. Ger. in lib. 6. cap 9 Ex edito regis gall. 17. Angl. 1579 Nobiles sibi subdit os qui eum comitari possunt. Again, in tit. commit. nullus transeat nisi habeat 2. Baroneas, & 3. Castellaneas aut saltem, i. Baroniam & 6. Castellaneas unitas & nomine feudi Possessat & investitas a rege sub uno titulo. Jac Mercant. Fland. 16. cap 1 de Alosto. In Flanders which was an Earldom of regal constitution there was in ancient time an Earldom the Ea. whereof was entitled Comes Alestanus the Earl of Elston, who although his jurisdiction was particular to himself from the Emperor, yet had he under him five Barons, the memory of which doth remain; It hath been heretofore a common received opinion, that every Earldom in times passed had under it ten Barons, and every Baron seven Knights fees holden of him, and some are of opinion, that those which had fourteen Knights fees were usually Barons, but of that more hereafter. It resteth now for the more explanation of the use of the name Baron, that we call to remembrance that which is before spoken, that the Custom of our Country is, that if a Baron be created an Earl; the eldest son of the said Earl, in the life of his l'ather, taketh upon him the title of the Barony, although he want the privileges belonging to a Baron. Lastly, that is not to be omitted, that by the general name of the Barons of the Realm, we do understand the whole body of the Nobility, and hence it is that the civil war concerning the liberties granted in the great Charter, both in the time of King john, and H. 3. prosecuted by the whole Nobility some few excepted, are called the Baron's wars; Thus much of their antiquity, etc. Having before shown the several uses of the word Baron, The true use of the name. we are now to adhere only to the proper signification thereof, whereby there is denoted to us an Honourable personage next under the Viscount, and therefore we are to set forth a division. Baron's honourable are of three kinds, 3. kinds of Barons. by Tenure, by Writ, by Creation or Patent, as for the Baron by prescription they are all one with the Barons by tenure, or those who anciently, and time out of mind have been called to the Parliament by Writ, and otherwise none. Barons by tenure are those which do any honour, Barons by tenure 2. kinds. etc. as the head of their Barony, per Baroniam, which is called Grand Serjeanty; These are of two sorts spiritual and temporal. The Barons spiritual per Tenure, Spiritual. are and were those Ecclesiastical persons, which held the principal part of their spiritual living per Baron. and such were also of two kinds; first, the Archbishops and Bishops of this Realm, who do hold the principal part of their temporalties per Baron. Secondly, such Abbots, Priors, etc. which were extinguished by coming to the Crown by the Statute. Baron's temporal are such as hold the chiefest part of their possessions, Temporal. as some honour, Castle, etc. per Bar. of the Crown, all which honourable Barons of holding their Baronies of the Crown were in ancient time in respect of these their tenors called by the Monarch of this Realm to assist him in counsel in Parliament. But first it shall be requisite to prove every part of the division, namely of Barons by tenure, and first of spiritual. It is evident, that the Archbishops and Bishops of the Realm in the Saxon days, as well during the time that it was divided into divers kingdoms, as also after the uniting of them into one Monarchy were called to the Parliament, not so much in respect of their tenure (for it was then by Frankalmoigne) but especially for that laws are then most commendable, when they are grounded upon the law of God, Hist. Inguelf. Ab. de Croland. in subscrip. Chartre Bertofli regis, fol. 490 ibid. 492. and therefore our wise Ancestors called to their general Counsel or Wittenaymot or Court of wise men, as they called it those principal persons of their Clergy, which by their profession, etc. might advise them to frame their lives answerably, etc. Nevertheless, shortly after the Norman Conquest, the Conqueror altered tenors, being before Frankalm. not without some complaint and grief of the Clergy of which Matth. Paris thus writeth An. 1070. which prove that Bishops than held per Baroniam. Matt. Paris, fol 6. In the Constitution held at Clarindon tempore, H. 2. Anno 1164. which constitutions certain recapitulations of the prerogative of the King and his people then sought to be infringed by the Pope and his Clergy, Called the Assis. of Clarindom in old Writers. it is thus expressed in the 11. Article, Archiepiscopi & Episcopi, & universa persona regni qui de rege ten' in Cap. habeat possession. suas de Rege sicut Baroniam, & inde respondeant Justiciarijs, etc. Regis & faciant omnes consuet. regias, & sicut caeteri Barones debeant interesse judicijs curiae Regis cum Baronibus quousque. perveniatur ad diminutionem membrorum vel mortem. 10. E. 4.6. De Rot. Parliament. 11. R. 2. an no 9 in turr. London. Here we see the presence of the Bishops in the Parliament in respect of their Baronies, Quousque perveniatur ad diminutionem, etc. For ever unto our times when question is had of any attainder of any Peer in Parliament, they depart the higher house, and make their procurators, for by the Decrees of the Church, they may not be judges of life and death. Of the Baronies of Bishops, Lib 9 fol. 66. and of their homage for the same; Thus writeth Glanvill, who tempore R. 1. was chief Justice, Episcopi vero consecrati homagium facere non solent Domino regi etiam de Baronijs suis sed fidelitat. cum jurament. interposit. ipsi praestare solent; Elect. vero in episcopos ante consecraetionem suam homage. sua facere solent. Of these also Bracton saith, St autem terra data fuit Ecclesiat. Cathedral. vel conventurae non jacebit assisa utrum quamvis in habitam, etc. Eleemosinam. Of the which he reciteth a Judgement, P. 15. H. 3. which was given in a Writ of Error upon a Judgement in Eire between the Prior of Lewes & Gilb. de Aquila, Bract lib 4. cap. 2.287. and he yields the reason thereof. Again, Bract. lib. 5. cap. 23. fol. 4.27. he in another place, searching out the reason why the certificate Excommunicate. spiritualium, any spiritual Judge other than the Archbishops and Bishops of this Realm is not by any Law to be admitted, he yields this reason so, that none of those other spiritual Judges are compellable to admit the action as are the the Archbishops and Bishops, Quia rex in episcopis coercionem habet propter Baroniam, Meaning thereby that upon their contempt the King doth seize their temporalty. Likewise, about 46. E. 3. the Bishop of Chichester Leased for life a Manor parcel of his Barony with licence of the King, 46. E. 3. forf. 8. this alienation was a forfeiture because parcel of his Barony. Many more authorities might be cited out of Records and books of Law, 13. E. 3. Chal. 115. inquest. 43.29. E. 3.42. in regard whereof they have in ancient time been named Peers of the Realm, and have enjoyed other the privileges that Peers do the trial by Peers (only in matters of Treason or misprision, etc. excepted) whereof Stamford giveth the reason, Non ratione Nobilitatis sed ratione officij. 39 E. 3.30. 31. E. 3.94. 21. E. 4 77 27. H. 8. 27. H. 8. ●nqust. 99 2. Mar. 46. 35. H. 8. Trial. 142. Stan. 1536. 1. H. 4.13. H 8 11. Another reason why Bishops are not tried by Peers as other Peers, because they cannot pass upon the life of any man, being thereunto forbidden by etc. and therefore the Peers cannot try them, for that this kind of trial should be mutual if the offence give occasion, insomuch that their censure is upon their honour without oath, etc. The like of those abbots, 21. E. 3.88 36. H. 6. 7. H. 6.108. 7. H. 4.2. 26. H. 8.7. 21. E. 3. n. 50. Priors, etc. which held some part of their land per Bar. who were also called Peers of the Realm, therefore no Capias against them, and therefore some of them that held not per Bar. being summoned to the Parliament upon their petition were discharged, whereof there are some precedents extant. The Abbot of Saint james near North●mpton, in 12. E. 3. was summoned to the Parliament, which was the same year holden at York, who because neither he nor his predecessors were summoned, and because he held only by Frankalm. he by his Procurator exhibited his petition to the Lord Chancellor a monument whereof I have seen in this manner, Abbas Sancti jacobi North, Irrotul. de novo in Cancel. dom. Regis inter citand. ad Parliamentum & non tent per Baroniam nec de rege in Capite sed tantum in pura, Out of the Register book of St. james of Northampton. etc. Eleemosina & nec ipe nec predecessor. sui unquam in Cancellaria irrotulat. fuerunt nec ad Parliamentum cita. huc usque unde idem Abbas petit remedium. Ad cujus billam execut. Dominus Cancellar. cum suo Consilio de Cancel. ordinavit quod nomen praedict. Abbatis a registro Cancel. deleretur & ita pluribus circumspect. idem Abbas est absolutus; facta est haec excusatio per visum Domini johannis de Oth. Episcopi Elien. Cancil. domini regis, domini Willielmi Dirmins' tunc cust. rotulorum & al'. A like Petition was made by the Abbot of Leicester unto K.E. 3. and thereupon obtained a Writ of discharge in this form; Ex. rot. Patent. 26. E. 3. pars. 1. M. 22. in turri London. Edwardus Dei gratia etc. Salut. supplicavit nobis dilect. nobis in Christo Abbas de Leycest. in Abbatia sua predict per Robert. Fits, Roberti de Mellent dudum Com. Leyc. fundata fuisset in puram eleemosinam, & advocate. sibi preornat. ad manus Domini Hen. quondam regiae Angl. proavi nostri per forisfacturam, Simon. de Monte forte tunc Com. Leyc. & proin ejusdem darent, idemque Abbas alijque terras sive tenta de nobis per Baron. sive ali● modo non tenuit per quod ad Parliamentum venire● teneatur, nec aliquis predecessorum suorum ante 49 annum Domini proavi nostri part. forisfacturam dicti Simonis quo anno omnes Abbat. & Priores regni nostri ad parliamentum, proavi nostri tunc tenturum & voluntary summoniti fuerunt summonit. extiterit velimus ipsum Abbat. de hujusmodi adventu ad Parliamentum facere exonerari, & quia visis chartis & confirm. de terris, & tentis eidem Abbati dat. & concessis in Rot. Cancel. nostri irrotulat. compertum est quod dicta Abbat. praedict. Roberti Fitzs Robert Com. Leyc. fundat. erat in pura elemosina, & non invenimus quod praedict. Abbaes' aliquas terras de nobis tenuit. per Baron. etc. nec quod predecessor. sui adalia parliamenta progenitorum nostrorum ante praedict. 49. Annum dicti proavi nostri, aut post modum continue, sed vicibus interpellatis summonit. fuerint nolentes ipsum Abbat. indebite sic vexari Concessimus pro nobis, etc. quod idem Abbas. etc. de veniendo ad Parliamentum, etc. quieti sint; Ita semper quod dictus Abbas, etc. in procurator. ad hujusmodi parliamenta per clerum mittenda consentient, & ut moris est expensis contribuant corundam In cujus rei Test. etc. 15. Febr. Anno 26. & Franc. 13. per Petition. parliament. Whereby it appeareth, that Barons by tenure are summoned in respect of their tenure. As touching the temporal Barons by tenure mention is often made of them in the yeare-booke Records, Glan. 9 c. 6 etc. as Glanv. lib. 9 cap. 6. Baroniam retinet rex donec haeres, etc. Which relief for Baronies was at that time incertain, and rentable at the King's pleasure, but such incertainty of relief was brought to certainty by the Statute of Magn. Chart. si quis, Madge Char. cap. 2. etc. de Comitat. integro per C.1. haeres Baron. per C. mercas, haeres Mil. per feodo mil. C. solidos. Thus much of the temporal Baron and his relief. In 3. H. 3. there was agnized an ancient prerogative belonging to the Crown and usual from the Conqu. in these words and so reported by Fitzherb. Quod si aliquis Baron. obijsset, & non h●beret haere●em nisi filias & primogenit. filia marit. sit in vita patris Rex daret post natum filium quod remaneret in haereditat patris, Bract lib. 5 Tract. 2. cap. 2. fol. 337. etc. Bracton writing of essoignes delivereth this learning, that if any Baron that holdeth per Baroniam hath his absence excused by essoigne, he which casteth such essoigne ought to find surety that it is true, but in the case of common persons that shall rest upon credit, and the integrity of the Essoigner; His words be these, Ideo ne essoniator, etc. by which appeareth that there are temporal Bar. by tenure. Now let us descend to the other authorities Sir Ralph Everdon Knight, 48. E. 3.30. being one of the Barons of the Realm tempore E 3. was impanelled in a Jury to their privilege, and therefore for his exemption procured a Writ directed to the Judges of C.B. before whom the Jury was impanelled, by which they were commanded to discharge the said Sir Ralph, Reg. 179.14. &. 15. H 8.35. H. 6.46. whereupon Belke chief Justice of C.B. examined him whether he held per Baroniam or no, etc. and whether he had come to the Parliament as a Baron, to which he answered that he held by a certain part of a Baron. and that his Auncest. had likewise so done upon good advice, by means whereof he was discharged, in which case is proved that there are ●arons by tenure, and that they in regard of their tenure ought to be summoned. In the Parliament 23. H. 6. there was a controversy between W. E. of Arundel, Inter. rot. Parliamen, 27. H. 6. and Tho. E. of Devon. for their places in the King's presence as well in the Parliament, etc. whereupon there were divers writings, etc. declared between them in the said Parliament; the consideration whereof was committed by the King to certain Lords of the Parliament to decide the said title with all incidents thereto belonging. Nevertheless it being not accordingly performed and the said controversy remaining undecided in the next Parliament 27. H. 8. the said K. was pleased that the judges should examine the said matter, who having considered the allegations of either part, and also an act of Parliament made 11. H. 6. concerning the same in the behalf of john E. of Arundel decided; his Ancestors they certified, first, that the controversy was never matter of Parliament 2. that the said act whereby it was ordained that the said john should have his seat in the King's presence a● well in Parliament as elsewhere as E. of Arundel there was no mention made of his heirs but of himself. 3. That to the castle, etc. of Arundel the name, etc. of Earl than was, and time out of mind had been united and annexed, and by reason thereof the said E. did hold that name and not by creation, all which being so certified it was enacted that the said W. E. of Arundel should retain his prehemience by reason of the eastle as worshipfully (for so are the words of the act) as any of the E. of Ar. above the E. of Devon, etc. saving always to the said E. of Devon his lawful suit to the King in his high court of Parliament for his right, by which Precedent we do plainly see that the dignity of that Earled. was annexa feode, and an Earldom by tenure, in regard of which the Earls thereof have had their place in Parliament, from whence may be deduced that the like may be observed of Baronies by tenure as of this E. by tenure I would wish those that deny Baronies by tenure to consider the statute of West. 2. cap 42. where the Fees of the E. Martial and Lord Chamberlain are expressed, which are to be taken by them upon the homage of every Baron by tenure where he holdeth by a whole Barony or by less, And lest any should think that this ordained by the Statute should concern any other Marshal or Chamberlain, Fleta will put him out of doubt, Fleta. lib. 2. cap. 5. which applieth them to this purpose. But ere we proceed further there a riseth a Quere. If a Baron by tenure grant the hononr holden by Barony. whether shall such grantee have the said dignity or otherwise? Argument ex parte neg. THey which deny Baronies by tenure do use this as their principal reason, first, if there be any, than the Grantee of them must hold by the same tenure as their Feoffer, 10.2. ca 1. Qu. ●mp. terrar. but that was per Baroniam: the refore. And if such Grant be made to persons ignoble, they then should be Noble which were absured. Ratio 1. Secondly, it is very evident that many ancient Manors, which in ancient time were holden per Baron. are now in the tenors of mean Gentlemen, who may not dare to challenge it. Thirdly, some ancient Barons are which have sold those Castles, etc. and yet retain their dignity, and have been, and are summoned to Parliament notwithstanding. Distinctions considerable. For the better anser, it shall be convenient to exhibit certain necessary distinctions and thence to draw infallible distinctions, and then Authorities and Precedents. First therefore if a Baron by tenure do alien the same, Distinct 1 either he doth it without licence, or else with licence obtained. If without Licence, The conclusion. than the Conclusion is certain that it is forfeited, and to be seized to the King, and the Dignity extinguished in the Crown from whence it was derived. The reason is out of Bracton, because Baronies are the strength of the Kingdom, and if they should be aliened without consent of the Soveriagne, base persons ennobled without desert, etc. for where the thing so aliened is an Honour, it differeth much from the ordinary tenure in Cap. whereof if the Tenant make alienation without licence, 50. E. 3 c. 10. he is only to make a fine by the Statute. For authority. 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. certain land being parcel of the Barony 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 parcel of a Barony, etc. held in chief, cannot be aliened without his Licence. Again, 46. E. 3. it was found by Office, that W. Bishop of Chester had Leased for life to Io. Peston a Manor, 46. E. 3. Forf. 18. parcel of the Barony without Licence, and resolved that it was forfeited, but by mediation of the said Counsel, the Bishop submitted and made a fine, and several 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 alien by Licence we must distinguish, for it is either made for the continuance of his Barony, etc. 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, etc. retained the Dignity of a Baron, and hereof have the Heirs general, or next Heirs females been excluded; And for proof of this assertion many ancient Precedents may be produced, seeing they have happened almost in every age for three hundred year's space, of which some certain do 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. Will De Ferariis Dom De Grooby ex Do. Mistress johannes de Ferariis Dominus de Cartley William. de Ferariis Do. Minus de Grooby family tree Barons of 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 son in tail the Manor of Grooby, by virtue whereof he and his Heirs we Barons of Grooby. The Barony of Kelp●cke Come Hereof. Temp. E. 1. Willelm. Baro de Kelpecke. Rob. Wallero Baro de Kel. obit si neprod●●. F. 1 Alicca Nuptal Laynec. Wilielmus Walleion. A●anus ● Laynet Baro de Kelp. ra io. Don. Robertus Walleron Prox Haeres. family tree Robertus Walleron, Baron of Kelpecke died, 1. E. 1. without heir of his body, and Robert Son of William, Brother of the said Robert, was his next Heir, yet he gave to Allen Playnell the Lordship of Kelpecke, etc. in tail, by force whereof he was Baron, and summoned to the Parliament, and he died Anno 27. E. 1. The Barony of Plankenoy in Com. Lincoln. Temp. E. 2. john Dreyn. court. tam: D●e●n court Ba●on of Bla●knoy obiit, ●o E. 2 W. Dreyne. ba. of Blank. entailed obiit 38. E. 3. john Dreyncourt. Edmond Dreyncourt. Willielm. Dreyncourt obiit ante ●atrem. Isabella his next heir. William Dreyncourt baron. of Blanknoy family tree The King to all, Pat. Anno 10 E. 2. part 2. num. 13. etc. greeting; Know ye, that whereas lately our well-beloved Edm. Dreincourt considered, that both his surname, and also his Arms after his death in the person of Isabel Dreincourt should be quite blotted out of memory, most earnestly desired, etc. To whose request in consideration of service to our Father and ourself by our Letters Patents do grant so much as in us lieth to the said Edm. to dispose to whom he pleaseth. By virtue whereof he gave them to William son of John Dreincourt in tail, Esch. 22. E. 3. S●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 virtue 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 john Lovel ●he first Husband. Maude Barnell heir to her brother john Handlowe the scond husband john Lord Lovel. Nicholas Handlowe Baron of Holgate john Lord Lovel. Hugh Handlowe alias Bunnell Baron of Holgate jocosa Vxor Tho●nae Ed-dington Margery uxor Ed-wardi Hungerford. Paterina ux-or johannis Talbot. family tree It appeareth by divers officers in the time of Ed. the third, that john Handlowe in the right of Maude his wife, was seized of the Manor of Holgate. Acton Burnell, etc. for life, the remainder to Nic. Handlowe (alias) Burnell, son of the said Maude and john by a fine in Court, And that john Lovel was next heir of the said Maude and her first borne son by her first Husband. And afterwards the said Nicholas was summoned among the Barons of this Realm to the Parliament by reason of the fine aforesaid. And not the said john Lovel that was next heir. Thomas de Beauchampe, Esch Anno 43. Ed 3. the elder Earl of WarWicke, by a fine levied 18. E. 3. entailed the Manor and Castle of Warw. with divers other possessions to himself for term of his life, the Remainder thereof to Guy his eldest son, and to the heirs males of his body issuing, and for want of such Heirs, the Remainder to come to Tho. Beauchampe brother to the aforesaid Guy, and to the Heirs males of his body, etc. And after the said Guy died without Heirs males of his body, leaving two Daughters and Heirs living. Afterward the said Earl died, and the said Thom. the son entered into the Castle, and Manor aforesaid with other the premises and was E. of Warw. by reason of the entail aforesaid, notwithstanding that Katherine Daughter of Guy next heir to the said Tho. the elder was living thirty years after his death. Richard Earl of Arundel by a fine levied 21. Ed. 3. entailed the Castle town, Esch. Anno 9 H. 5. etc. of Arund. to him and the Heirs males of the body of Elinor his wife, by virtue whereof john Matravers was E. of Arun. after the death of Tho. the Earl, 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 manor, etc. And by a fine levied in 23. E. 3. he entailed the said Castle, etc. to himself for life, the Remainder to Maurice his son in tail with other Remainder as before, which said Maurice had issue Tho. Lord Barkley and Sir john, which john, died in the life of his Brother, leaving James his Son and heir living, after the said Tho. died 5. H. 5. leaving Elizabeth his daughter and heir married to Richard Earl of Warw. after whose death James the Nephew entered into the said Castle, Some Parliament. 9 H. 5. Esch. 5. H. 6. etc. and was summoned to the Parliament as Lord Barkley. Tho. Lo. de la Ware died seized in tail by reason of a fine levied in the time of his Ancestors, of the Barony de la Ware with divers other lands in other Counties and died 5. H. 6 without issue; And Reginald West, Knight of the half blood was next Heir, Som. Parliament. An 7. H. 6 by reason of the entail, And was summoned to the Parliament by the name of Regin. Lo. de la Ware Knight, although john Griffeth was heir of the whole blood. john de Vere, Esch. 9 H 6 & 20. H. 6. E. of Oxford, seized in his demesne as of fee tail to him and to the Heirs males of his body issuing of the Honour and County of Oxford, with divers other lands Ao. 18. H. 8. died without Heirs of his body, and his three sisters (viz.) Elizab. Ursula and Dorothy, were his next heir general, but john De Vere next heir male, was E. of Oxford, by reason of the said entail, and none of the said three Heirs obtained the dignity. 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 Manors of Bewdsert Longden, etc. and being so seized by fine, 1. Mar. entailed the Manors and Baronies aforesaid, to him and the Heirs males of his body issuing, and after anno 5. Eliz. died leaving Hen. his Son next heir male, which Hen. entered into the Baronies and lands aforesaid, by virtue of the aforesaid fine and died thereof seized 11. Eliz. leaving Elizabeth his only Daughter and heir, after whose death Tho. Paget, brother and heir male of the said Hen. entered into the Baronies and Manors aforesaid, and was summoned to the Parliament by virtue of the aforesaid fine. Robert le Ogle entailed the Manors of Bothall and Ogle, Esch. 6. Eliz. with divers other Manors, etc. Com. Northumb. to himself for life, the Remainder to the Heirs males of his body, and took to his first wife Dorothy Witherington, by whom he had issue Robert his eldest son, and Margery his daughter married Gregory Ogle of Chippington, and the said Rob. after the death of his first wife married johan Ratliffe, Brother of the half blood. by whom he had issue Cuthbert his second son and died, after whose death Robt. the Son was Lord Ogle, and from him to Cuthbert brother of the half blood, by virtue of the entail, and not unto Marg. nor Cuthbert her son of the whole blood. Moreover thirdly, 3. Conclusion. if a Baron by tenure doth Alien by Licence to a mere stranger upon consideration, or, etc. if such Alience be nobly descended in such cases, after such alienations, such Alience hath borne the name and dignity of a Baron, in respect of such Barony so aliened; And if he had no Dignity before, he in respect of that hath been summoned to the Parliament, and enjoyed the Barony hereof, are Precedents extant. Maude, Esch. 22. Ric. 2. Countess of Angiers and Northumb. Heir of the Barony of Cockermouth, after the death of Lucy her Brother, who died without issue entailed the honour, etc. of Cocker-mouth to herself, and to Henry Piercy Earl of Northumberland, than her Husband, and to the Heirs males of their bodies, upon condition that that should bear the Arms of the said Earl which are, Arms given. Or a Lion rampant 6. quartered, with the Arms of Lucy (viz.) Gules 3. Lucy's argent, bearing the said Arms, so often as they shall appear, and afterwards, viz. 22. R. 2. died without issue. Nevertheless the said Earl, 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 Heir of the said Countess never had the said Arms. Amongst the Parents in the Tower, Chartley 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, than Earl of Leycester, the Barony of Elinden in the County of Northampton, which descended to the said Rameta from John de Vescount, which Grant seemeth to be with Licence, for that the said King doth by his Patent confirm the same, and further gave to the said Earl and his Heirs divers privileges there. Also, Exchange of a Barony. this ancient Charter following concerning the exchange of a Barony with the King, is worthy memory, which is, K. john 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 chief of the Baronship, as Burstock was aforetime, and that all Knights and others should attend upon him, and his lands in Fordington as chief of his Baronship, as they aforetime were attendant upon Robert Burstock. By these Precedents 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 heir's 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 remain on him for the K. best advantage, yet he may not take upon him the Dignity without the King's special 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 Distress, it is agreed that a Baron, 11. H. 4.2.6. etc. are not contributory for such lands parcel of their Barony, but for other lands they are; but there is question made, if one which is not Baron purchase a Barony, whether he 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 villain service, doth not make the owner a villain which doth purchase the same, although by tenure he must do villain 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 recompense of service any Castle, etc. to be holden per Baroniam, he is forthwith noble, because he draweth this Nobility from the fountain without other Creation. But a question by the way what yearly revenue is sufficient for a Baron. Qu. Diversity of times hath brought forth divers determinations as touching the French constitution, R. there is an old Pamphlet wherein are these words; Summon. debeant omnes Commit. & Barones, & eorum pares (viz) qui habent terras & reddit. ad valentiam Commitat. vel Baron. integre, Modus tenend. parliament. viz. 20. feod. Milit. quolibet feod. comput. ad 12. librat. quae faciunt librat. vel ad valenc. 13. feod. Milit. & 3. part. Vnius feodi Milit. quolibet feod. computand. ad 20. librat. quae faciunt in toto 400. mercas, & nulli minores laici summon. debeant ad Parliament. ratione tenur. nisi eorum praesentia alijs de causis fuerit necesse (cap. du Laicis.) The revenue of a Baron. Camden in Britann. Others have esteemed it to be fourteen Knights Fees, but that doth rest wholly in the pleasure of the King to judge. Reason 2 To the second, it is true that ancient Baronies which were holden per Baroniam, are now in the hands of men ignoble, but the reason and means whereby such Manors should thus come to the hands of meaner personages are twofold; First, because they have been aliened by Licence to them. Secondly, which was usual such Manors have upon divers reasons come to the Crown by way of Reversion, Escheat or forfeiture, and after they were conveyed to others, reserving other services, so that it is no wonder that they be now holden in Soccage, etc. Object. 3 To the third Objection that ancient Barons have aliened, etc. and yet retain the degree, I answer, that it is true, yet it proveth nothing against the former resolution, therefore consider that they be either originally Barons by Writ or by tenure; By Writ are of two kinds, for either in such Writ whereby they or their Ancestors were at first Summoned, they were named only by their own names; or else addition was given them from the principle place of their abode, either for some distinction to sever them from some Honour of the same surname, or to give them such honourable title by addition of the place which was not holden per Baroniam, therefore if they allene it away, he may yet retain the title because it was not holden per Baroniam but was given by this Writ of summons; Thus much of Barons by Writ. But if Baron by tenure alien to one ignoble by licence, and after the alienor be called by Writ, he is not any more a Baron by tenure but by Writ and may retain the name of a Baron. Now of Barons by Writ. A Baron by Writ is he to whom a Writ of summons is directed by the King to come to the Parliament to treat, etc. of the affairs of the Realm, Barons by Writ. the form of which is, Rex, A Writ of Summons. etc. A. B. etc. de salut. quia de avisamento consilij nostri pro quibusdam arduis et urgentibus nos statum & defensionem regni nostri Angliae & Ecclesiae Anglicanae concernent quoddam Parliament. nostrum apud, etc. die, etc. teneri ordinavimus ac ibidem vobiscum ac cum caeteris Praelatis, Magnatibus, & proceribus dicti regni nostri colloquium habere & tractare vobis in fide & legiantia vestra quibus nobis tenemini. firmiter injungend. mandamus quod consideratis dictorum negotiorum arduitate & periculis imminentibus cessante quacunque excusatione dictis die, & loco personaliter intersitis nobiscum, ac cum Praelatis Magnat. ac Proceribus praedict. superdict. negotijs tractatur est urumque consilium impensari, & hoc sicut nos & honorem nostrum & salvationem & defensionem regni & Eccle. praedict. expeditio neque dictorum negotiorum deligitis nullatenus omittatis; Which kind of Writ is as well directed to Barons by tenure and creation, as others which are only Barons by Writ, which thereupon are to enjoy the dignity, because thereby they be associated in Counsel with the King, etc. Touching their antiquity and their first institution I find little or no mention before H. 3. his time, Antiquity of Barons by Writ. and therefore I conceive that either the first, or at least the first frequent use of Barons by Writ was 49. H. 3. in case of necessity and upon lamentable occasion of civil war about the great Charter, of which rebellion Simon then Earl of Leycester was ringleader; And therefore after divers fields fought at Northampton, Rochester, Lewes, etc. that of all was the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, of that tragedy finished at Evesham where the said Earl was slain and those Rebellious Barons overthrown; whereupon presently issued the Parliament at Winchester, and after at Westminster, where the said Barons were to be attainted; Wherefore forasmuch as much as the number of the Barons which had continued faithful was small, it was holden a necessary policy to supply the number, etc. upon summons by Writ where were called all Abbots, etc. which held not by Barony, as others of the most worthy of the laiety not holding by Barony. Note further, these Writs in form of their directions are divers, Divers manners of directions of summons. some directed by special name of a Baron, as Rex Baroni de staff. de Greystock. de Dudley others by the name of the party, with addition of the place, as Rex jobanni de Strange, de Knocking, Chr. Edm. Grace de Ruthen, Chr. Edw. Grace de Grooby, etc. Naming the chief Castle, etc. of such Baron. some others are named in this manner with the title of Lord, as johanni Beauchamp Domino de Beauch. Milit. johanni domino de Clinton; Hen. Percy, domino de Poynings; To others without additions, as William de Lourt Milit. Scals. Devereux. But the nature and quality of other Barons by Writ is aptly discovered by debate of a question concerning the continuance and descent of a Barony by Writ, which I divide. First, whether a Barony by Writ may descend. Admit it may then, whether it will to the heirs females, there being no issue male. Admit it doth then, whether the Husband of such heir female may assume the dignity of a Baron in jure uxoris. Quest. 1 Touching the first Question, it shall be requisite for satisfaction of all men, to allege such principal reasons as are wont to be produced of both parts. Object. Argument. ex parte negat. Nobility and honour given in respect of wisdom, etc. which are gifts of God, and personal cannot extend to others, for privilegium personale personam sequitur & extinguitur cum persona, but such is the dignity of such a Baron, therefore, etc. Again, if the calling to the Parliament by Writ, be the efficient instrument of Nobility in the Ancestor, than the not calling the heir is a loss of that Nobility. For admit some defects of nature in the heir as leprosy Ideocy, Frenzy, etc. he is made uncapable, and thereupon they conclude that it shall not descend. Argument. ex parte affirm. Of the contrary part the affirmative is proved thus, Honour given in respect of wisdom and virtue of him on whom it was first bestowed is not only a due reverence of him, etc. while he liveth, but also a memorable reward thereof to his posterity; see Tully, Cicero pro Sextio. Therefore this kind of honour is patrimonial. If infamy of the ancestor be a blot to posterity, 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 posterity; for Contraries do carry their contrary in reason; For determination whereof it is to be noted that diversity of reason hath bred diversity of opinions. Some think it is not descendable unless the Heir be likewise called by Writ, and that than its an inheritance, but this is repugnant to the nature of a descent, which commonly carrieth the patrimony descendable (by act in law) upon the death of the ancestors (to the heir) or not at all, Wherefore divers precedents prove that this doth descend, and there needs not any word of heir in the Writ of Summons, only there is a speech of a special Writ sometimes directed to Sir Henry Bromflet, Teste Rege apud West. 24 jun. 27. H 6. when he was called Lo. Vescy by H. 8. in 27. year of his reign, wherein there are these words inserted, Volumus tamen vos & haeredes vestros masculos de corpore vestro legitime exeuntes Barones de Vescye. Wherefore it is ever true that the heir of such a Baron when he is called to the Parliament, that his descent of honour is thereby established and approved by the gracious judgement of our Sovereign: so it is also true that if it shall stand with her highness' pleasure that such heir shall not be summoned at all (for none come to so high a Council except he be called) then that Nobility is much impaired and in manner extinguished in the censure of all men, for that it had no other original, but by writ of Summons, for the which in the Judgement of the supreme Sovereign, he is secluded. And thus much as concerning the first Article or point touching the descent in general of this kind of Barony. As for the second principal Point, The second point. whether the Barony by Writ may descend to the heir Male, it shall not be amiss likewise to view the reasons of each part, that by the conflict of Argument the truth may the better be discerned. Those which do maintain the affirmative part do reason after this manner; Ratio 1. On the affirmative part. In reason the sex of the Heir female ought not more to bar her of the dignity than the nonage of the Heir male ought to bar him, although during his nonage he be not able to do the service; But as the service of the one is forbearing for the time; So the sex of the other may at all times be supplied by the maturity and sufficiency of her husband. Ratio. 2. Offices of Honour which do much import the public weal being possessed by inheritance to descend to the heir female, if there be no Niece's heir male, as the office of high Constable of England, which descended unto the Daughter of Humphrey de Bohun Earl of Hereford and Essex, as afore declared, the office of Lord Steward, descended unto Blanch Daughter of Henry Earl of Lancaster, in whose right john of Gaunt her Husband enjoyed the same. The like may be said of the Office of Earl Martial which descended by an Heir 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 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 congruity of reason such Husband is likewise by law enabled to perform the other. Ratio 3. Many Noble houses in England do support, and lawfully bear the Dignity 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 dignity to be a Peer of the Realm (as Opimus by many examples proveth descendeth to the heir female for want of heir male. The dignity of Nobility descendeth likewise in Spain unto the female for want of Heir male which custom not being only currant in our neighbour countries, but with us in an evident proof in the case in question. Ratio 1. on the Negat. The adverse part object that the writ of summons, etc. by which the Baron hath his original, 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, etc. but these things are convenient only for the quality of men, not to the other sex, Ergo, it not to descend to the heir female. Ratio. 2. If it be answered that such heir female be unfit in her own person, yet may she marry one fufficiently able to excecute the same, this answer will neither satisfy nor salve the inconvenience, for admit she were at age at the death of her Ancestors unmarried being in her own choice, the great causes of the Realm should be subject to her will in the choice of her Husband which were inconvenient. Ratio. 3 Thirdly if such husband be summoned the writ should make meantion thereof, for otherwise it may be taken that he was chosen in his own person and not in her right, but such a Summons wherein the wife was mentioned was never seen and if by a general writ without mentioning his wife, he is thereby made Baron in his own right. Obser. 1 Having heard the arguments on both sides, place doth now require that we should interpose opinion to compound this controversy, This question is somewhat perplexed by different Precedents, for some Precedents prove that Baronies by Writ have descended to Heirs females, whose Husbands have been called to the Parliament, whether in their own or Wives right it matters not; but sure it is that such Marriage gave occasion to the Summons, and such Husbands and their posterities bear the dignity of the wives Ancestors, for by this controversy we purpose not to question the right of such Noble houses. Obser. 2 Secondly, we 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 Nevil, and joan the younger to Sir Humphrey Bourchier, the said Sir Humphrey was called to the Parliament as Lord Cromwell, and not Sir Thomas Nevil, who had married the eldest Sister. Obser. 3 That if a Baron by Writ die, his Daughter, Sister, or other collateral Heir female being his Heir, and that no collateral Heir male can challenge the said Barony by any ancient entail or otherwise, such claim by the Heir female hath heretofore been allowed by the late right Honourable Commissioners in the office of the Early Marshal signified to the Queen, as upon the Petition of the Sister, and Heir of Gregory late Lord Dacres, deceased may appear; In whose Pedigree it appears, that Thomas Lord Dacres, Barony of Dacres. had issue Thomas his eldest Son, Ralph his second, and Humphrey his third; Thomas died in the life of his Father having issue Joan his Daughter and heir, married to Sir Richard Fines, after Tho. the Grandfather died, whereupon 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 & himself by Parliament 1 E. 4 and after of the said Ralph and reversal of the said act in 12. E. 4. the said Humf. challenged the Barony, 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 under the privy Seal, Award by King E. 4. 8. April Anno 13. that the said Richard Fines should be reputed Lo. Dacres, and that he and his Heirs of the body of the said Richard should retain the said place in Parliament, which the said Tho. Lo. Dacres used, And that the heirs of the body of the said Tho. should enjoy the Manor of Holbeck. And that the said Humf. Dacres should be reputed, named, and called the Lo. Dacres of Gillesland, And that he, etc. should keep the place in Parliament next beneath the said Richard Fines, etc. And that the heirs of the said Tho. Dacres should have the Manor of Fethington, etc. in Tail. Nota. And so note that Gillestand the ancient Barony remained to the heir male. Obser. 4 Observe also, that if any Baron do die without issue male, and that by some special intaise, etc. by which an heir female enjoyeth the inheritance of the said Baron, such heir's females have been called to the Parliament, and not the husband or issue male of of such heir female, and this appeareth by a notable controversy Tempore H. 7. between Sir Robert Willoughby Lo. Brooke, and Richard Nevil Lo. Latimer, Barony of Latimer. for the Barony of Latimer, which in effect was, The said Lo. Brooke challenged the said Barony as cozen and heir of Eliz. his great grandmother, who was sister and heir to john Nevil Lo. Latimer, who died without issue, And hereupon 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 unto Sir Tho. Willoughby, second Son to the Lo. Willoughby, but H. 6. because the said john died without issue, and that the next heir was female, did therefore call to the Parliament Sir George Nevil, second son of Ralph Earl of Westmoreland 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 unto heirs females was debated, and in the end adjudged with the said Rich. which Precedents do afford us 2. judgements in the point. Object. But here the former Precedent of the Barony of Dacres, may be objected to encounter this conclusion: for whereas the heir female married to Sir Rich. Fines, he was Baron of Dacres, and Raynolph and Humf. the heir's males placed below the said heir 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 heir male bare also the title of Lo. Dacres, and by that name was attainted 1. E. 4 Wherefore the Reason why the heir male could not be regarded was the attainder, Ratio. and when this was reversed E. 4. to satisfy both competitors thus ordered it. And thus much concerning the second point whether a Barony by writ may descend unto the heir female. Concerning the third point admitting such descent to their female, The third Article. when no male can claim it, for than doth this question take place whether her husband should enjoy that dignity in her right or no, something hath been said hereof in the last question, But for satisfaction we are to insist upon a resolution in the very point tempore H. 8. When Master Wimbish took upon him the stile of Lord Talbois, jure uxoris having no issue by her, The King assisted both by civil and temporal Lawyers gave sentence, Resolution ●cmp. H. 8. that no husband of a Baroness should use her stile until he had by her a child, whereby he should be entitled by the courtesy to her inheritance. Ratio. 1 The special reasons that occasioned this sentence were 2. first, the inconvenience that the husband should be a Peer of the Realm to day, and to morrow by the death of his wife none, and so honour subject to mutation without default of the party. Ratio. 2 Secondly, if he had issue, if he should not bear the stile, than should his Son after the death of his Mother, dying in the life of his Father, be a Baron without land, for it the Father hath by the courtesy: but these questions take place where there is no Heir male at all. And thus much concerning the nature, quality, and estate of the Baron by Writ, and for resolution of the several points and articles of the question proposed may suffice, only note the Case in 13. E. 3. where William de Clinton having married the Countess of Huntingdon, 13. E. 3. Brief 259. they joined in an Assize of Nuisance for levying a Market, etc. Exception was taken, because he did not name himself, but it was overruled, 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 she to whom the King hath conferred Baronies by his Letters Patents. The usual words are, Considerantes itaque generis claritat. vel grata obsequia quae A.B. Mil. nobis praestiterit, etc. Sciatis nos, etc. praefat. A.B. adstatum, gradum, dignitat. & honour. Baronis te ereximus praefecerimus & creavimus eidemque A.B. nomen, etc. Baronis de T. imposuimus, etc. Ac per patentes damus, etc. habend. praefat. A.B. & Haer. etc. This kind of Dignity shall be of such continuance, as shall be limited in the Habend. sometimes for life, sometimes pur altar vie, as some hold opinion in 32. H. 6. 32. H. 6.296 It may be in the special or in the general. And this kind of Patent was usual before the Statute of 2. as it appeareth by the Patent, Pat. 13 H. 3. in turre, p. 2. whereby Hugh de Burga was made Earl of Kent, in the time of H. 3. which was Habend. sibi & haered. suis de corpore Margaret uxoris suae sororis Alexandri Regis Scociae procreate. & pro defectu talis exitus reman. Ricins haered. dicti Hugonis etc. The manner of the Solemnity used in the Creation of Barons by Patent, The form of Creation of a Baron. is much after this form; The Baron newly to be Created, is presented unto the Queen's Majesty sitting in her Chair of state; After this order he is apparelled; In his Surcote with the hood, a Baron bearing the mantle before him, and two Barons in their Parliament robes, on each hand one leading him. The principal King at Arms bearing the Patent, and the Officers at arms proceeding on before him; when they come in presence of her Majesty, they make their solemn obeisance three times; And the Baron to be Created kneeleth down before the Chair of Estate, the said King at Arms delivereth the Patent of Creation to the Lord Chamberlain, who humbly presents the same to her Majesty, who delivereth the same to the principal Secretary to be read, who reading the same with a loud voice at the word Creavimus, the Baron which carrieth the Mantle, presenteth the same to her Majesty, who puts it on the new Baron, whereby he is Created, and then is the Patent read out to the end, and delivered to the Queen, who delivereth it to the Baron so Created, who after most humble thanks given to her Majesty, he riseth up, and they departed in like solemn order, as they came with the Trumpets sounding before them. The particular & more full knowledge of these Solemnities I do refer to the College and Corporation of Heralds, to whom the knowledge of these things doth most specially appertain. For the better explanation of this kind of Dignity, the resolution also of certain questions shall be very requisite. Quest. 1 First, if a Nobleman and his Progenitors have for a long time been called to the Parliament, and he a Baron either by tenure or by Writ, And have had in regard thereof a place certain in Parliament, if afterwards the same Noble man shall be created a Baron of that Barony, and by the same name by Letters Patents, whether shall he and his heirs retain his old place in Parliament, which he had according to the former dignity, or whether shall he lose his old place and take a new place, according to the time of his creation only. The case of the Lord De la Ware received a resolution some what answerable to this Question, De laware, 11. Rep. Look fol 1. E. 3 6. The Lord De la Ware 3. E. 6. being in sore displeasure, which William West his Nephew and heir, who was father to Tho. now Lord De la Ware procured an act of Parliament, by the which the said William West was during his natural life only, clearly disabled to claim, demand, or have any manner of right, Title, or interest by descent, remainder, or otherwise in, or to the Manors, Lands, tenants, or hereditaments, title or dignity of Tho. Lo. de la Ware his uncle, And after the said Tho. Lo. De la Ware died and the said William West in the time of Qu. Mary was attainted of treason by verdict, 2. & 3 Ph. & Mary. 5. Eliz. and afterwards pardoned by Q. Mary, and after by Parliament in the time of the O. Marestie that now is. And after in 8. Eliz. was created Lorenzo De la Ware by Patent, and had place in the Parliament according to his creation, For that by the said act of Parliament in the time of E. 6. he was excluded to challenge the ancient Barony, and after died, whether the now Lo. De la Ware should take his place according to the Baron by Writ, or according to his creation was the question. The opinions of the Qu. Council being her Majesty's Attorney general, and Solicitor were that the acceptance of the new creation by the said William West, could not extinguish the ancient dignity, for he had not that ancient Dignity in him at the time of his Creation, but that Dignity was at the time of his Creation by the Act of E. 6. in abbeyance, suspense or consideration of law, and he thereby utterly disenabled to have the same during his life only, so as his acceptance could not extinguish that dignity which he then had not nor could conclude his heir, who was not disabled by the said act of 3. E. 6. to claim the ancient Barony, which opinion of theirs was soon allowed by the resolutions of the Lo. chief justice of Engl. and Lord chief Baron, and so signified to the Lord Keeper. But this to be noted by the reasons made for the said resolution, That if the said Sir William West had been Baron, and entitled, Nota. or in possession of the ancient dignity when he accepted the creation, the law perchance might have been otherwise, but that remaineth as yet unresolved. Quest. 2 Secondly, it may be questioned whether a Baron called by Patent ought to be named by the name of his dignity, in every Writ to be sued by him, or against him. The books of law do make difference herein between Duke, marquis, 8. H. 6.10. 30 H. 8.30 Earl, Viscount, etc. which are allowed names of Dignity and the Baron, for they affirm that such Baron needeth not to be named Lord or Baron by his Writ, but the Duke, marquis, Earl or Viscount, aught to be named by their Names or Dignities; Nevertheless I do take these books to be understood of the Barony by tenure, or Barons by Writ only, for the title of a Baron by Patent in his Letters Patents under Seal adorned, and named by the name of Status, gradus & dignitas, and therefore is requisite to be named, and such dignities are a parcel of the name of the possessor, as well as the Title and Style of Duke, marquis, Earl, Viscount, etc. And although there may be conceived this difference last mentioned between the Baron by tenure or Writ, and the Baron by Patent, yet they being all members of the higher house of the Parliament, they are thereby equally made Noble, Honourable, and Peers of the Realm, as they are Barons only, without any other distinction that I have observed. And thus much concerning the three degrees of Barons within this Realm may suffice to be said in general upon this occasion, for the better understanding and resolution of the controversy in hand. The privilege of Barons. There resteth last of all in this Treatise of Baronage that I would express some certain of the sundry privileges that the Laws do allow unto Barons, and the Nobility of the Realm in general, in regard of that favour, which all good policy in every wel-governed Commonwealth doth bestow and yield to the Noble and Honourable, wherein I shall content myself only with certain of those privileges which I find mentioned in the Laws of this Realm, purposely omitting such as either the Civil, Common, or the laws of foreign Countries do afford, referring them to a fit place in an intended Treatise of Nobility. Privilege. First therefore it is a privilege that the Peers and Nobility of the Parliament do enjoy, namely to be tried in the cases of Treason, Felony, Mag. Char. 29 10. E. 4.6.20. H. 6. cap. 9 and such like by their Peers. The antiquity and original of this kind of trial hath (as some men do think) 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 ancient, Trial by Peers Where allowable De consuet. feudorum. as brought into this Realm with the Conqueror, being answerable to the Norman and French laws, and agreeable with the customs several, where almost all controversies arising between the Sovereign and his Peers are tried, per judicium Parium suorum. This Trial in ancient time was very oft had in Parliament as may be collected by the Statute of 15. E. 3. cap. 6. 15. E. 3. cap. 6. 1. H. 4.1. 13 H. 8.11 But nevertheless the same may as well be performed by Commission under the Lord Steward of Eng. the form, manner, and Solemnity whereof is expressed in the books of Law. This privilege hath some restraint, as well in regard of the person, The restraint of the praviledge. as in the manner of proceed. As touching the person. First, the Archbishops of this Realm, although they be Lords of the Parliament, if they be impeached of such assent as aforesaid, shall not be tried by the Peers of this Realm, but by a Jury of other substantial persons upon their oaths, the reason thereof (as I can conceive) as before remembered, 27. H. 8. Br. Inquest. 100 Trial 142. Fine 2. Stamf. 153 namely for as much as the Archbishops and Bishops cannot pass in the like cases upon the trial of any other of the Peers, for that they are prohibited by the Ecclesiastical laws to be judges of life and blood, reason would that the other Peers should not try them: for this trial should be mutual 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 Laiety being Lords of the Parliament, 38. H 8. Case Leo. Grey en le● Con. shall have this kind of Trial. And therefore hereout are excluded the eldest Son and heir apparent of a Duke, in the life of his Father, though he be called Earl & bear that title, Likewise, the eldest Son and Heir apparent of an Earl, though he be only a Lord, or Baron, or bear 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 Peers, For the Lords of the Parliament of England are not their Peers, but the Lords of the Parliament in Ireland. And thus much concerning the Restraints of the said privileges in respect of the person. As touching the manner of Proceeding the Nobility of this Realm do enjoy the privilege of trial by their Peers in Course of Indictment only, 33. H 8. Br. jurors, 48. Trial. 142. 10 E. 3.6. Stam 152. which is a kind of proceeding ex officio between the Qu. highness and them, But in any case of Appeal of felony, which is in the suit of the subject, they shall not have the same, but shall be tried by a Jury of 12. men upon their oaths. And thus much concerning this privilege at this place, and upon this occasion may suffice. Likewise this privilege the Nobility of this Realm do enjoy, Privilegium 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 trial or inquiry upon their corporal oaths between party and party, And if they be impanelled contrary thereunto, they may have a writ out of the Chancery repeating this privilege directed to the justices, before whom such noble personages are impanelled, commanding them to dissmisse him or them, that were so impanelled out of the said Pannell. This privilege hath restraint in two cases, Restraint. 1. first if he inquire concerning the King and Common-wealth in any necessary and important Decrees, as business of this Realm, than this privilege is not allowed, nor taketh place. And therefore divers Barons of the Marches of Wales, were impamnelled before the Bishop of Ely, and other Commissioners of Oyer and Terminer, to inquire of notable outrage committed by Gilbe●t de Clare, Earl of Gloucester, against Humphrey de Bohun, Earl of Pereford and Essex, and his suits in Wales in the 20. year of E. 1. where john de Hastings, Edmond de Mortimer, Theobald de Verdune, and other of the Barons of the March●s of Wales challenged their privileges 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 johamnt Hastings. & omnibus alijs magnat. supranominat. quod pro statu & jure regnt, & Pro conservatione dignitatis Coronae, & pacis suae opponant manum, ad librum, ad faciend. etc. quod eis ex parte Domini Regis injungentur, etc. The Barons aforesaid nevertheless did persist in their Challenge, and in the end both the said Earl, between whom the said outrage had heene perpetrated, submitted themselves to the King's grace, and made their Fines. Secondly, Restraint 2 this privilege hath no place in case of necessity, where the truth can not otherwise come to light, for the Writ is, Regist. 179. Quia Barones in Assissis jurat. etc. poni non consuêrunt. ut dicunt nisi eorum Sacrament. adeo sit necessarium quod sine illis verit as in qua non possit, tibi praecepimus, etc. In many Cases the Protestation of honour shall satisfy 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. Cook 6.53 as in trial of their Peers, they proceed upon their honour, not upon their oath. And if a Nobleman on an action of debt upon an Account, in case where the Plaintiff is to be examined upon oath, upon the Statute of 5. H. 4. cap. 8. it shall suffice to examine his Attorney, and not himself upon his oath. Yet if a Nobleman will give evidence to a Jury, reason would that he should be sworn, for they are not bound to believe him upon such protestation otherwise then they think in their conscience to be conformable unto truth. If a man doth receive a menace at the hand of a Nobleman, Privileg. whereupon he conceiveth fear of his safeguard, 35 H 6. Subpoena 20 V 14. E. 3. and prays a Supplicavit in the Chan. directed unto the Justice of peace, or Sheriff to take bond, etc. such Writ which otherwise is ordinary, but the Lord Chancellor shall award a Subpoena in stead thereof, and when he appeareth in stead of surety, he shall only promise upon his Honour to keep the peace, which the Law hath allowed in this point a Caution sufficient. A nobleman is not to be arrested by any Capias, Privileg. 5. 21. E. 3.39. 43. E. 3.33. 8 R 2 7. H. 4 2. 11. H. 4.15 1. H. 5.14. 14. H. 6.2. 22 H. 6.226. 26. H 8.7. 14. Eliz 115. Restaint. and therefore cannot be outlawed in any civil Action, but only in Criminal. And by the same reason lieth no Attachment against him, as it was ruled in Parliament, 14. Eliz. in the Lord Cromwell's Case. But if he make any notable contempt against the proceed, of the Law, then ceaseth this privilege, for Frustra legis auxilium invocat, qui in legem peccat. As if in a Writ de homine replegiando, he will not permit the Sheriff to execute the Writ or Essoigne the party, or upon a Rescousse a Capias hath this privilege notwithstanding. So in cases Criminal, 27. H. 8.14 15. H. 7.1. a Capias and an Exigent may be awarded. The like privileges doth the Court of equity allow in cases of conscience, Chanc. nomine Subpoena. for the Lord Chancellor doth not award any Subpoena, but sendeth his Letters missive in lieu of other ordinary Process. In the prosecution of any Action personal, Privil. 6. 14 E. 3.22. 15 E. 3.21 22 E. 3.9. 27. E. 38. 41. E 3.31 27 H. 8.22 the Plaintiff may pray Jour de grace, but against a Peer of the Realm, it shall not be allowed, although it be allowable against other persons. If any Lord Spiritual or Temporal be party to any Action, Privileg. 7. 13. E 3. ●● Chal. 115. ● 22. H 8.22 Dyer. 107.3. & 4. Elize 24 9 & 10. Eliz. 26. there ought to be one Knight at the least, to be impanelled in his Jury, with other the most sufficientest Esquires in the Country, otherwise he may challenge the Array, but if there be no Knight in the County, the Pannell shall be made of the most sufficient Vavasours and Esquires there inhabiting. But if one bring an Action against another, and the Sheriff impannell a Jury, where there is not any Knight, 14. & 15. Eliz. 318. and before the Trial the Plaintiff or Defendant is Created a Baron, or, etc. and he do challenge the said Jury, such challenge shall not be allowed, for at the time of the inquest made, he was not so reputed, as in the Case of Reginald, late Earl of Kent may appear. If the King grant an Annuity or Rent, to a then created Baron, Privileg 8. for the support of his Degree, 6. H. 6.2. which they call creation money, this is so annexed to the Dignity, that by no manner of alienation it can be severed. If the King upon such Creation give land, etc. until he shall be advanced to some other living, and upon Eviction to have the value, if he be impleaded of this land by Scire facias, 21. E. 3.47 etc. he shall have aid of the King. If a Baron be party to a suit, Privileg. 9 Pract. l. 5. fol 337. & 351. and would be essoigned, he that casts the essoigne out, to put in sureties to prove the cause which is not usual in case of common persons. In all cases where he is to be amerced his amerciament is not less than a hundred shillings by the Statute o● Magna Charta 14. and it was to be affirmed by hi● Peers. Privil. 10.16 E. 3 ●m. 14 38 E. 3 31 1. H. 6.7.9 H. 6 2 32. H. 6 30 19 E. 3.9.21. E 4 77 Fleta. lib. 2. But for that it were troublesome to assemble Barons for so small matter, such amerciaments in time past have been obtained by the Barons of the Exchequer, who were sometimes Barons of the Realm. Whereas by the Statute 32. H. 8. no subject might keep in his family above four Strangers borne, Privil. 11. Br. fol. 116 Co●ke 8 39 Stat. 32 H. 8.16. Privil. 12 yet by a Proviso every Baron may keep six. If a Lord of the Parliament having place and voice there, Stat 1. E. 6. cap. 13. be convicted of Felony, wherein Clergy is allowed, upon request, alleging that he is a Baron, etc. and claiming the benefit of his Clergy, although he cannot read without burning in the hand, loss of Inheritance or corruption of blood, he shall for the first time be deemed a Clerk convict, and may have purgation. Also, Privile. 13. whereas it is ordained that the Justice of the Peace named of the Quorum, shall be resident in his Shire, Stat. 2. H 5 cap. 4. by a Proviso, the Peers of the Realm are exampted. By the ancient Laws before William the Conqueror's time, Lemb. perambul. de Kent. 21. Britt. cap. 29. Marlb. cap 10. every man above 12. years should be sworn to the King, which we observe now in the view of Francke-pledge, Court-leete. But noble men, etc. are neither bound to attend the Leete nor take the oath. If an Error be brought in Parliament upon a judgement in B. R. the upper house alone without the Commons, Postaat. 20. are to examine the errors. In 11. H. 6.2. in a case concerning distress taken for expenses and fees of the Knights of the Parliament. 11. H 6.2. It was agreed that the Barons are not contributory for Lands, parcel of the ancient Barony, but for other lands: but there is a question made whether the purchaser of such an ancient Barony should enjoy the said privilege, which question was not worthy the questioning, for as lands holden by Villain's service doth not make the free purchaser a Villain, though he be bound to do such Villain service: so doth not such Purchase ennoble him that purchaseth. By the Stat. of 5. Eliz. cap 1. all Burgesses of Parliament shall take the oath of supremacy, Sta●. 5 Eliz cap. 1. so shall Citizens and Barons of Cinqueports, But there is a Proviso in that Stat. that forasmuch as the Qu. is otherwise sufficiently assured of the faith, etc. of the temporal laws; Therefore this act shall not compellany of, or above the degree of a Baron to take this oath, nor to incur any penalty limited for the refusal. By the Stat. of 5. R. 2. cap. 12. the King defendeth the passage of all manner of People in every Port, Stat. 5. R. 2. cap. 12. etc. upon the Sea Coast upon pain of forfeiture of all their goods, except Lo. and other great men, and true and notable Merchants, and the King's soldiers and all others shall forfeit, etc. But because the Statute is abrogated by 4. jacobi, c. 2. I do not set this down for one of the privileges at this day; But Philip Earl of Arundel, Son of Thomas Duke of Norfolk, Cromptons' Iurisd. 31. was taken upon the Sea passing into France about 30. Eliz. and was fined in the Star chamber, because he took not sh●pping at one of the Ports mentioned in that Statute. In the Privilege before mentioned of his Clergy, it shall be allowed him for breaking a house by day or night, for robbing upon the highway, and in all other cases excepted in the Stat. of 1. E. 6.12. saving in wilful murder and poisoning, But in all other cases, wherein Clergy is taken away, he is in the same degree with a common person, but the Court will not give him the benefit of this Statute, if he requireth not the same. If a Lord doth confess his offence upon arraignment or abjure, or is outlawed for felony, in these cases it seemeth he may have the benefit of this Statute, viz. his Clergy, for that by the Statute of 18. Eliz. cap. 81. he nor any other need to make purgation, Stat. 18. Eliz. cap. 18. but shall be forthwith delivered out of prison by the Justice. Sed quaere Bolton 202. by the Imperial constitution, Nobiles non torquentur in casibus, in quibus plebei torquentur nec suspenduntur, sed decapitantur. Which form by favour of the Prince is allowed in England; Iurisd. Br. 48. Yet Thomas Fines, Lord Dacres, of the South. in the 37. H. 8. and the Lord Sturton 4. Mar. were hanged. By the Staute of 1. Eliz. cap. 1. for uniformity of Common prayer, 1. Eliz cap. 1. there is a proviso, that the Baron shall be tried per Pares, and not by any Ecclesiastical Courts, read the Statute at large. At the Common law it was lawful, for any to retain as many Chaplains as he would, but by the Statute of 21. H. 8 13. a restraint was made, viz. to every Archbishop, and Duke, six Chaplains, with dispensation to keep two Benefices with Cure, to every marquis or Earl five, with the like privilege; To the Lord Chancellor, every Baron and Knight of the Garter three, with the same privilege. If a Bishop be made an Archbishop, or a Baron an Earl, yet can they have but Chaplains as Archbishop or Earl, because though there be divers Dignities, yet the service is to be done, but to one person; so if he be removed from his Office, in this case he cannot be Nonresident without he procure a non obstante. So if a Baron retain a Chaplain, and before he is advanced, his Lord is attainted, Cook rep. 4.117. Acton's Case. as the Earl of Westmoreland was, he cannot accept a second Benefice. Those that are first retained, shall only have privilege in case, etc. By the Statute of 2. H. 5.8. that gives authority to the Sheriff to raise Posse Comitat. Nevertheless, may he not command the person of a Nobleman to attend that service, but if the Sheriff upon a supplicavit against him, return that he is so puissant that he dare not arrest him, the Sheriff shall be grievously amerced for such return, for the Writ is to all Archbishops, Bishops, Dukes, Earls, etc. and to all liege men of the County to to be aiding to him, therefore by intendment none will resist the execution. The words of Charta de forest. cap. 11. are every Archbishop, Bishop, Earl, or Baron, coming to us at our commandment and passing by our forests may take one beast or two by the view of the forester if he be present, or else he shall cause one to blow an horn that he seem not to steal our Dear. In this Stat. though a Duke, marquis, or Viscount, being Lord of the Parliament being commanded, etc. shall have the same privilege, so if the King send for him letters missive, Messenger or Sergeant at arms, or by writ of Subpoena, to appear in Chanc. they shall have the benefit of this Statute because they came at the King's commandment so in case of Scire facias out of the Chancery or D. R. But if such Process go out of the C. B. to appear before the justices or the Barons of the Exchequer he shall not have the benefit of the Statute, because the Statute is Veniens ad nos, and in those Courts they are, Quod coram nobis, etc. So of the Star-chamber. Also Lords that come to visit the new King, though not sent for, shall have the privilege: and so note this Statute is a Warrant dormant and is to be understood of their returning homeward Manwood, cap. 13. Crompton juris, Nota. D. 167. note the Statute doth give licence to kill or hunt in the King's Parks, though the Letter be Transiens per forrestam nostram. Note that in certain Cases the Law doth give privilege to the sons or brethren of Noblemen, though they be not of that degree, Stat. 21. H. 8.13. etc. 7. E. 6. cap. 5. Certain Cases wherein he hath no Privileges. IF the King commit a Baron to prison Durante bene placito, he cannot be discharged by Bail or mainprize, or by the common Writ De homine replegiando. And by the same power it is if a noble person be committed by the King's Council, for they are incorporated to his Highness, and do command, as with the King's mouth: and the same law is, if a Nobleman be committed to prison by the absolute Commandment of the King's Judges, sitting in their place of Judicature, Stam. lib 2. cap 18. fol. 72. Stamf. lib. 2. cap. 18. fol. 72. as you have before, when the Prince himself by the chief Justice sitting in the King's Bench, and was not bay leable. Also a Capias and an Exigent may be awarded upon an Indictment of a felony. This Statute of Praemunire, cap. 1.16. R, 2. cap. 1. upon which Statute an Abbot which was Lord of the Parliament, being impleaded, did pray privilege to appear by attorney, Et per Curiam, could not for a Cessavit lieth against him. Upon contempt of Peers a Capias may be awarded, 1. H. 5. ult. 27. H. 8.22. If he depart the Realm as Ambassador, etc. and return not at the King's commandment, the King may seize his lands and goods, Dyer 108.176. The Duchess of Suffolk's case, if he imprison any man in his house, whereupon there is a writ De homine replegiando, if he convey him from the Sheriff the Court will award a Withernam to arrest, 11. H. 4.15 and imprison him till he deliver the prisoner. All Lords are compellable to take the oath mentioned in the Statute 3. jacobi, and see the Statute of 7. jacobi, 3. jac. ca 4. 7 ja. cap. 6. who have eauthoritie to administer it unto them. Being arraigned of felony in an Appeal, he shall not be tried by his Peers, as in case of Indictment, 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 judgement is the usual judgement given against common persons, and though the King pardon all but the loss of his head, that is of special 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 King's pardon, but only by authority of Parliament. And note that Nobility is not a thing substantial, but merely accidental present or absent without corruption of his subject, for experience shows that honourable titles are restrained by exorbitant crimes, when the nature in the mean while cannot be thrust out with a fork, wherefore though we term extinguishment of Nobility in cases of Attainder, yet this phrase is not used as though Nobility were essentially in the homour of the blood more than any other hereditary faculty; But because the right of inheritance which descends by communication of blood, is by that means 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 foreign King, he is so to be styled in all legal proceed in this Realm, But if he be created by the Emperor an Earl, it is other wise, Coke 7.16. If the King Create the son a Duke, etc. and the father dies, he within age shall be in ward, but if he had been made a Knight in his father's life, he should not be in ward, neither for the lands descended, nor marriage, Coke 74. Drueries Case, though he be within age. Nobility and Lords in reputation only. THere be other Lords in reputation and appellation, who nevertheless are not jure, neither can they enjoy the privileges of those of the Nobility of the Parliament (viz.) The Son and heir of a Duke, during the life of his father, is only by courtesy called an Earl, and the eldest son of an Ea. a Baron, but not in legal proceed Br. Treason 2. Coke 8-16. But the King may create them in the life of their Ancestors Lords of the Parliament. A Duke or other of the Nobility of a foreign Nation being named Duke in Letters of safe conduct, that makes him not Duke to be sued by that name in England, but a foreign King ought so to be styled, though he hath not merum imperium out of his own Kingdom cock 7.15. &c, All the younger Sons of the King of England are Earls by birth without other creation, and only Lords by reputation, A Lord of Ireland or Scotland, though he be post-natus, is but only Lord in reputation. Noble Women. ALthough Noble Women may not sit in Parliament in respect of their Sexes, yet are they in Law Peers of the Realm, and may challenge all, Coke 8.53. or most of the former Privileges. But the opinions of some have been, Crompt. Just de peace 85. that they cannot maintain any Action upon the Statute of 2. R. 2. cap. 2. the Scanned. Magnat. because the Statute speaks only of other Sexes. If any of the King's 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 marchioness of Pembroke, & King James Created the Lady Compton, Wife to Sir Thomas Compton, Countess 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 heir of the late Baron of Aburgaven. Camden 63.6. Baronesse de le Spenser. Noble Women by Descent are those to whom land's holden by such Dignity do descend, or whose Ancestors were seized of an estate descendable in their Titles of Dukedoms, etc. or those whose Ancestors were summoned to the Parliament, by this an Inheritance doth accrue to their posterity. They who take to Husband any Peer of the Realm, though they themselves were not noble; Fortescue, fol. 100 Question hath been made whether the Dignity of one summoned to the Parliament dying without issue male may descend to the female, but this may appear by the former Treatise. Concerning the title of Honour descendable to the Heir female, it is clear that such offices being of estate of inheritance do 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 Humphrey Bohun Earl of Hereford. So the office of Earl Marshal descended to the house of Norfolk, 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 be tried by record, and certified by the King's Writ, and not by Jury, Coke 6.5 3.7. part 15. Though all Daughters be Coperceners, and make but one Heir, yet in descent of Dignities it is otherwise, for they be things entire, participating of superiority, therefore descendable only to the eldest. And so is the Civil Law, yet there was a Judgement tempore H. 3. touching the descent of the Earldom of Chester, Obijt. 17. H. 3. the Earl dying without issue, leaving his Sisters his Heirs; 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, etc. His reasons are, because the honour of Chivalry, chief consisting in the Nobility may not be divided: for by multitude of partitions, the reputation of Honours in such succession must be impaired, and the strength of the Realm being drawn into many hands by such partition much enfeebled. 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 testify, that it came holy unto john Scot, Son of David Earl of Huntingdon, 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 Earldom to himself upon other satisfaction to the coperceners, Mat. Par. 366. tamen vide Mills 75. & Guillem 28. Hugh Lupus the first Earl of Chester, was by the Conqueror his uncle created into that dignity, Mills 74.75. Coke 35.7 part 15. habend. sibi, etc. adeo libere per gladium sicut Rex ipse tenuit Angliam per Coronam, etc. he died without issue, and the Earldom divided among his 4. sisters. If she be noble by birth, though she marry under her degree, she remains noble, but those ennobled by marriage, and after marry with a man of meaner degree, utterly lose her former dignity, Fortescue 100 Cook 6.33.4.118. It was the case of Ra. Howard Esquire, husband of the widow of the Lord Powes against the Duchess of Suffolk, the Writ naming her Lady Anne Powes, Dyer 79. so also in Qu. mary's times when the Duchess of Suffolk married Stokes bre. Bro. 146. digest lib. 1. Tit. 9 for the dignity accrueing by marriage is but in fait and not by any record, Coke 6.53. Coke 4.117. Cawells instit. lib. 1. Tit. 10.15. So long shall a Duke's wife be called Duchess, and an Earl's Countess, and enjoy all honours appertaining to that estate, with tasting, kneeling, serving, etc. And a Baroness and Knight's wife saluted Lady, Quamdiu matrimonium aut viduitas uxoris durant, except she elope, for as then every woman shall lose her dower, so being advanced by titles of dignity by that husband by such elopement loseth them. If a Lady which is married come through the forest, she hath no privilege by the Statute, but a Duchess or Countess during the time she is unmarried may, Crompt. Juris dict. 167. Such Ladies whether they be married or sole upon Indictment, shall be tried per Peers by the Statute of 20. H. 6. cap. 9 it being a declaration of the common law. Coke 6.52. By the Civil Law, Si filia Regis nubat alicui Domino, vel Comit. dicetur tamen semper Regalis. Among Noble women there is difference of degrees, and according to their qualities, the law gives special privileges as followeth by the Stat. of 25. of E. 3, 2. it is high Treason to compass or imagine the death of the Queen, or to violate the King's companion. The King's Spouse is a sole person in law to purchase, etc. plead and be impleaded, Coke 4.23.6. Theboal lib. 1. cap. 4 24 E. 3.3.8. Bract. 363. And of such acts of Parliament as concern her, the judges ought to take notice, Comment. 231. a Coke 8.28. In some cases she shall have Prerogative as the King himself. See the case of Wardship 5. E. 3.4. Stamf. prerog. cap. 2. The Qu. Wife to the King, or widow, shall not be amerced if she be nonsuited, whereas all other subjects shall, for she shall participate with the King's prerogative, Coke 8.62. but not in all cases, for the subject shall not sue to her by Petition as to the King, 11. H. 4 67. Stamf. prerog. cap. 22. Against the King, Nullum tempus occurrit, otherwise of the Queen 18. E. 3.2. Philippe Regina Angl. Ibid. fol. 1. & 13. Stam. prerog. 18. In 21. E. 3.6. A Protection was allowed against the Queen. In a Writ of dower against Isabel Qu. of England mother to the then King, the judges were of opinion that she was not to answer to any Writ, but said they to the plaintiff it behoveth you to go to her by Petition, to whom the Demandant Dixit graits, and prayed the court for a continuance of the action until she might speak with the Queen; But they nor the Queen's Council would agree that, the Qu. should be accepted as answerable 10. E 3.379. The Wife of the King's eldest Son hath some prerogative not communicable to the Wives of other Noblemen, for by the Statute of 25. E. 3. It is high Treason to violate her. Duchess' also and Countesses have special honour appertaining to their estates, as kneeling and tasting, which things I leave to the Heralds. The Statute of 7. jac. cap. 6. entitled an Act for the administering the oath of Allegiance requireth those of 18. years or above to take the said oath. The title is for administration of the Oath, etc. and reformation of married women Recusants. Ladies in Reputation. THe Wife or Widow of the son, and heir of a Duke or Earl, in the life of his Father, is a Lady by Courtesy, and taketh place according to the ancient time, as they have been permitted by their Sovereign Prince, and allowance of the Herald. But in legal proceed they are not to have such Privilege. If a Noblewoman of Spain come into England by a safe conduct, or, etc. And so styled in the said Letters, yet is she but a Lady in reputation. And English woman borne, taketh to Husband a Spanish or French Duke, though he be made Denizen, yet shall she not bear the title of Dignity in legal proceed. A Germane woman is married to the marquis of Northampton, or, etc. unless she be made Denizen, she cannot claim the privilege or title of her Husband, no more than she can claim Dower or Jointure. An English woman doth take the Earl of Kildare in Ireland to her Husband, or if a Lord in Scotland, though he be post natus, etc. their wives shall not aprticipate their Husband's Dignities. But if the King Create one of his Subjects naturalised by Parliament to be Viscount Rochester within England, and after summon him to the Parliament by Writ, and assign him place there, by this is he made Peer of the Realm, and partakes with them of all Privileges, and by consequence his Wife, Widow and Children after him, E. of Angus in Scotland. 34. E. 3.35. Gilbert Humfrevils case. But if an English man be made by the Emperor, Earl of the Empire, his Wife shall not bear that title, either according to law or reputation. All Daughters of Dukes, Marquesses and Earls, are (by custom long used in the King's Palace) to be named Ladies, and to have precedency according to the degrees of their parents, and of this custom the Law taketh notice. But nevertheless in the King's Courts of Justice, they bear not this title of Honour, no more than the Sons of such noble personages. Brothers to such Ladies may do. The Hypothesis or particular Question. WHether the Dignity of Aburgavenny, Sit conjuncta feodo, and such as ought to descend to the special Heir male seized of the Castle, bearing the head of that Barony, and of the lands that make that Honour. Or whether the Dignity, Name and Style, to be Baron of Aburgaven. aught to descend to the general Heir male, who is not interessed in the said Castle or honour. For the more orderly proceeding herein to avoid confusion, and that every thing appear concerning his question in his proper person. There shall be showed, First, that the Barony is a Barony by by tenure, a very ancient Honour, and no Barony by Writ only, whereof will ensue by the former Declaration in the treatise of Barony; That the dignity and name de jure ought to go and descend with the Castle and Honour so holden, as long as the same shall or may continue in the name, blood, and line of such as are nobly descended, and may support the same. There shall be Proved Secondly, That the said Barony of Aburgav. and the name, title, and dignity of Lord, and Barony of Aburg. de facto hath come and descended with the Castle, which make the honour of by the space of 300. years last passed, in their noble Families in the blood of the Hastings. 2. In the time of Beauchampe, and the time of Nevil, where the name by the Grace of God doth now, and long may continue, every which family having right to the said Castle and honour, did lawfully bear the name and title of Lord Aburgav. and had place in Parliament accordingly. And therein shall be answered the objections made to the contrary. That the Barony of Aburgavenny is a Barony by Tenure, and an ancient Honour. AFter the Normans had conquered this Land, it was carefully observed by them as a matter of much moment, and a point of special policy to place upon the confines or borders of the Britons or Welsh, not then subdued, men of much matter, not only sufficiently able to encounter the inroads and invasions of the enemy, but also willing to make onset on them, and to enlarge the conquest. These men thus placed were of high blood, credit, and continuance among them, countrymen to the Normans, and in whose faith, and prowess the Conquerors reposed special confidence and trust. And therefore in the territories given unto them to hold, the tenors were devised to be very special and of great importance, and their Honours enriched with many privileges, 7. H 6.35. 18 E 2. Assisis 382 Fol. The Earl of Chester for the North border of Wales erected a County Palatine; And the Barons of the middle part of the South Marches were adorned i a manner with a Palatine Jurisdiction, having a Court of Chancery, and Writs only among themselves pleadable, to the intent that their attendance, might not thence be driven, for the prosecuting of Controversies or quarrels in the Law. And as for the other part of the South Marches, they seemed sufficiently fenced with the River of Severne and the Sea. The Castle of Aburgavenny taketh his name from the River of Gevenny, whereon it is situate, and the British word Abber, which signifieth a Mouth, and is interpreted the Mouth of Gevenny, because the Castle and Mouth of Aburgavenny is built near the place where the said River of Gevenny doth open itself to the end of the Uske; It is an ancient Fortress of old foundation: there or near unto the place (as learned men do probably, and upon many good circumstances conjecture) where the Romans builded their Gabonium. It is the chiefest Towns of the County, called the higher Guent, by the Romans called Ventum Gallinum, now parcel of the County of Monmouth. This Castle, etc. was first given to be holden Per Baroniam sive grand Serjantie, the service whereof is of great importance, as appeareth by this Record following. Inquisitio capt etc. At Aburgavenny, Ex bundelle Esch 6. E 2. Mar. Wal. 6. E. 2. upon the death of Jobn Hastings found quod idem Iohannes tenuit castrum, etc. De Rege in Capite per servicium homagij wardi maritag. cum acciderit, & si _____ fuerit inter Regem Angl. & Principem Walliae dictus Iohannes debet custodire patriam de Operwent sumptibus proprijs. Inquisitio capt. apud Hereford upon a Writ of ad quod damnum, Ex Bundle. Esch. 25. E. 3. Ex rot. Patent. 4. E. 1. num. 36. found quod non est ad damnum Regis nec, etc. si Rex conce●at Priori, etc. de Aburg. quod ipse duas acr. prat. vocat Weldelham, etc. quas de Lorentio de Hastings nuper Comit. Pembroke post Statutum de Mortmain retinere possit sibi & Successoribus suis, & dicunt quod praed. 2. acr. fuerunt de dominicis praedicti Comit. & tenentur immediate de Rege ut parcella Castri quod tenetur de eo, & de nullo alio. Also, that this Barony was of a very large Seignory, and had petty Barons or Baronet's holding thereof appeareth by Writ, 1. E. 1. for the more speedy gathering of 15th which was granted to him, towards his charge to the Holy land, which Writ is directed to the Tenants of the said Barony, that they should pay their part to Gremball Poneefote, and Henry de Bray appointed Collectors, directed in this manner. Rex Abbatibus Prior. Baron. Mil. liberis hominbius & omnibus alijs Tenentibus de honour. Aberg. Salut. Cum Archiepiscopi, Episcopi, Abbat. Prior. Mil. & omnes alij de regno 15th. de bonis suis, qnibusdam tamen rebus exceptis nobis liberaliter concesserunt & benign ad exonerationem debitorum in quibus diversis mercatoribus de tempore quo moram in terra sancta gessimus obligamur, Nos, etc. Obser. 2 Observatio secunda, that the Title of Aberga. de facto hath descended with the Castle, etc. William Conqueror gave the County of higher Guent, Hamline de Backlune. unto Hamline de Backlune, the Son of Drugo de Backlune a Norman, which builded the Castle and Priory of Abergavenny, and after assured the same to Brian de Wallingford, Son of Eudo Earl of Britain, Son of Lucy younger Sister of the said Hamline, by whom it was conveyed to Walter second Son of Miles of Gloucester, tralt. of Glou. Brews. Earl of Hereford, from him it came to his Brother Henry, and thence to the Families of Brews Barons in the Marches of Wales, and from them to Cantelupe, Barons in the said Marches. Cantelupe. The the line of Hastings, owners of this Castle, and in respect thereof entitled, Barons of Aburgavenny. GEorge de Cantelupe Baron of Aburgavenny and Cant. the last of that name died without issue having two Sisters, Hastings. joan the eldest married to Henry Hastings and Millicent, married to Eudo la Zouch. Henry Hastings by his had issue john, and because he did adhere to the Barons tempore H. 3. he was imprisoned for seven years, Ed. Kelen Article 35. Rot. Cart. H 3. during which time he died. And that Barony being in the King's hands, he gave it to Peter de Sabandia in exchange for the Manor of Baydenhall parcel of the Honour of Richmond which the said King had given him; So that this Barony came now to the Earl of Richmond, Esc 8. E. 3. In Suffex. Ex rot. claus. 2. E. 1 indoes. memb. 12. as by an office found after the death of john Britton Earl of Richmond, tempore E. 3. appeareth. The said john Hastings at the time of the death of Henry his Father, and Joan his mother, both which died in the life of the said Geo. Cant. as also at the time of the death of the said Geo. his Uncle was within age, and in ward to E. 1. during whose minority, there was a partition between the said Millicent his Aunt, and the said john, by which the Castle, etc. of Aberg. then extended to the yearly value of two hundred pounds, eighteen shillings and three pence, as also Kill Garren, St. Clear, and other lands in England and Wales. And unto the said Millicent were allotted the Castle of Totnes in Devon, etc. Eyton in the County of Bedford, and Farringworth, etc. with divers other lands. The said john came to full age, the first john 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 john did lawfully bear the Title of Lord Abergavenny, by this partition. The said John being one of the Competitors for the Crown of Scotland, with the rest submitted himself 19 E. 1. to the determination of the said King as Supreme Lord of Scotland, which Commission was framed in these words: A tout crus, In magno Rot. Scanr. etc. Florence Comit. de Holland, Robert de Bruse, seigneur de Vasdaum. Io. Balliol Seigneur de Badenaw, Patrick de Dumbar, Comite de la March, ja. de Vascye pur son pier Nich, the Souls, Gulielm. de Rosse: Salus en dieu cum nous entendomus daver droit en Roylme de Escoce, & cel duel jure challenger & avover devant ceoque pluis de pover, jurisdiction & reason eist de trier nostre droit. Et le noble Prince Seig. Edward, etc. nous syant inform per bo. & sufficient reasonque a luy come aver droit Sovereign Sunr sen du dit Roylme de Escoce, & la Conusance d'oyer trier & determine. nostre droit, nous ne nostre volunt sans nul maner de force ou distresse de droit devant luy come Sovereign Sunr de la terre, etc. l'an de grace, 1291. There was another like writing, whereby these competitors do yield some of the Kingdom of Scotland unto the said E. 1. until he should determine the controversy. After the sentence given by E. 1. for John Balliol, who afterwards adhered to the French against England. Whereupon Ed. 1. prosecuting war against Scotland, the Pope intermeddling, a Parliament was proclaimed to be held at Lincoln. 29. E. 1. where it wass agreed that the King should write to the Pope touching his right to that Crown, and the wrong offered him. And that the Nobility should write, that they neither could, nor aught to suffer, Nota that the King of England should refer the same to the Pope's sentence, they subscribing their names and titles of Honour, among which was the said john Hastings name in this manner, johannes 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 Welsh. 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, john de Hastings, Ra. de Tony, William de Bruse, john Tregouse, Bogok Nevil, Ric. Fiz-Allen, & Io. Fitz-Reginald, and all Barons Marchers. Again 20. E. 1. When therer was a great quarrel between Gilbert de Clare, 20. E. 1.14 in receipt. Scacar. Earl of Gloucester and Hereford, and Humphrey de Bohum, late E. of Hereford and Essex, whereupon murders, etc. had been committed in their lands in Brecnocke. A Commission was awarded to the Bishop of Ely, William de Valence, the King's uncle, Io. de Mettingham one of the judges, and unto Robert de Hereford, to hear and determine the same. In which Commission the said john Hastings was one In which the Commissioners would have had the said Barons to have been sworn to make presentment thereof, which they refused, standing upon their privilege, and therefore the Enquest was impanelled of others. P. 23. E. 1. The said john 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 Carlisle, 35. E. 1. It will be objected that john his father was summoned in 49. H. 3. and therefore in regard thereof and not in respect of this Barony was this john summoned. It is true that Henry Hastings was summoned it 49. H 3. he was Captain of the Cast of Killingworth, Respon. and held it against the King, and beheaded the King's 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. Therefore in the letters to the Pope, and in his claim to Scotland he writeth himself johannes Hastings, etc. 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. ●e is named Io. Hastings Mil. and not johannes Dominus Hastings, therefore, Respon. etc. Object. 3 They used not then to express the place except for distinction. Now to the Descent. THis jolin died, Continuance of the descent. 6. E. 2. having issue john, who died 18 E. 2. And in the Diem eligit extremum, he is styled Johannes Hastings, Dominus de Abergav. and Earl of Pembroke, tempore E. 3. he died 12. E. 3. having issue john his Heir, Ex bundle. Esc. 18. E. 2. Earl of Pembroke, and Lord of Abergav. who died 49. E. 3. having issue john Earl of Pembroke, etc. who died by reason of a wound received at a Just at Woodstock 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 john, Peauchamp Lord of Aberg. Reginald Grace, Lord Richyn, Son of Elizabeth Sister of the said john 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 Arms of Hastings without difference between the Lo. Grace of the whole blood, and Sir Edward Hastings of the half blood, which was adjudged for the Lord Grace in the Earl Marshals Court. A like contention was between the Lord Grace and William Beauchampe, third son of Thomas the elder Earl of Warwick, who claimed this Barony against the said Lord Grace by virtue of an entail 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. etc. 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 Earl of Kent may appear, Vid. the Earl of Kent's book. as also by a partition of the said Lands. FINIS.