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 c. doe by the lawes of the Realme descend unto the eldest Copercener and Judgement given once to the contrary Thereof Bracton doth rightly accompt to be unjust his reason is notable For in as much as the Honour and Chivalty of the Realme doth chiefly consist in the Nobilitie 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 bee impaired as the strength of the Realme being drawne into many hands with decrease of livelihood by such partition should be infeebled In which resolution Britton the Baroned Bishop of Hereford Britton 187. de herit devis who compiled this Booke in the name and by the commandment of Ed. 1. accordeth who delivered this as a speciall Caveat En tous cases sont les droits des espees that which Braecton calleth Ius gladij gardes de sole misse dismembres he calleth it Ius gladij because Dukes Earles be at the time of their creation Cinguntur gladijs gladius autem significat defensione reginae patriae But howsoever that judgement was given or whensoever it was neverthelesse very evident that it was soone 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 doe testifie that the Earledome of Chester came wholly to Iohn Scot the sonne of David Earle of Huntington and Anguish and of Maude the eldest Sister of the said Ranulph If it were given upon the death of the said Iohn Scot who died without issue about 24. H. 3. for in the reports of the Law the difference of a yeare 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 Earledome into his owne hands upon other satisfaction made to the Sisters Coparceners of the said Iohn 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 memoriall is most evident where the Case ws that Humph de Bohun Earle of Hertford and Essex held the Manor of Hatfield Newnham and Whiting hurst in com' Glouc ' du roy pur service de eant hault Constable d' Anglque mor ' tyent issue 2 files que font particion de mesme les Maners part le office eant servic ' pur reason de tenureque descent ' al ambu files deÌ„e exercise pur lour sufficient deputie dum sole ' vixerint mez aprez lour mariage fuit deÌ„e 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 unitie of parcell 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 heires of whom the said Duke was discended 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 chiefe Justices did signifie 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 Earle Baron c. doe marry with a Knight Esquire or Gentleman then neverthelesse shee 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 controversie concerning the title names and dignities Noble There must be made a dis-Junction betweene the strictnesse of Law Resolu and courtesie of Ladyes 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 knowne among the Heraulds for asmuch as a report of law in that case doth acknowledge it to be taken out of the bookes of Heraulds 5. Mar. bre Br. 546. nosme 69. Fortescue 100. that Quando mulier nobilis nupserit igncb c. Of the which Fortescue sometime chiefe Justice of England yeeldeth a notable reason Cod lib. 10. de incolis leg sinal Mulieres honore maritorum c. sin autem minoris ordinis verum For if shee be honoured with any title in respect of her Husband it is reason that after his death she marrying with an inferiour sub cujus potestate vivet that she should bee of like qualitie and reputation as is her said Husband For as she was inabled by the one so must she be content to leave that Nobilitie by strict course of law for liue of the other so that in this point the law is one way and the honour and courtesie of Ladyes 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 Neverthelesse the books of our law do make mention of that Courtesie and allow of it as a Courterie though not as the Law With these doe agree the law of Nation with which concordeth also the Civill law Foeminae nuptae clarissimis personis clariss personarum appellatione continuentur But of the other side clariss â—oeminarum nomine senator Filiae nisi quae viros claeriss sortitae sunt non habentur Foeminis enim dignitat clariss mariti tribuunt Parentes verò donec plebeis nuptijs fuerint copulaetae Cod de dignit leg 12. tamdiu igitur clariss foemina erat quaemdiu Senatori nupt est vos clariss aut separat ab eo alij inferioris dign non nupserit Neverthelesse Iacob Rebuff indâ—ct leg 1. lib. 12. Cod de dignitat in Kingdomes this holdeth not place in the blood Royall for Si filia Regis nubat alicui Duci vel Comiti dicitur tamen semper Regalis
upon paine of forfeiture of all their goods except Lo. and other great men and true and notable Merchants and the Kings souldiers and all others shall forfeit c. But because the Statute is abrogated by 4. Iacobi c. 2. I do not set this down for one of the priviledges at this day But Philip Earle of Arundell Son of Thomas Duke of Norfolke Cromptons Iurisd 31. was taken upon the Sea passing into France about 30. Eliz. and was fined in the Starre chamber because he tooke not shâ—pping at one of the Ports mentioned in that Statute In the Priviledge before mentioned of his Clergie it shall be allowed him for breaking a house by day or night for robbing upon the high-way and in all other cases excepted in the Stat. of 1. E. 6.12 saving in wilfull murder and poysoning But in all other cases wherein Clergie 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 confesse 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 Clergie for that by the Statute of 18. Eliz. cap. 81. hee nor any other need to make purgation Stat. 18. Eliz. cap. 18. but shall bee forthwith delivered out of prison by the Justice Sed quaere Bolton 202. by the Imperiall constitution Nobiles non torquentur in casibus in quibus plebei torquentur nec suspenduntur sed decapitantur Which forme 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 uniformitie of Common prayer 1. Eliz cap. 1. there is a proviso that the Baron shall bee tried per Pares and not by any Ecclesiasticall Courts read the Statute at large At the Common law it was lawfull for any to retaine 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 sixe Chaplains with dispensation to keepe two Benefices with Cure to every Marquesse or Earle five with the like priviledge To the Lord Chancellour every Baron and Knight of the Garter three with the same priviledge If a Bishop bee made an Archbishop or a Baron an Earle yet can they have but Chaplains as Archbishop or Earle 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 Non-resident without he procure a non obstante So if a Baron retaine a Chaplaine and before he is advanced his Lord is attainted Cooke rep 4.117 Actons Case as the Earle of Westmerland was hee cannot accept a second Benefice Those that are first retained shall onely have priviledge in case c. By the Statute of 2. H. 5.8 that gives authoritie to the Sheriffe to raise Posse Comitat. Neverthelesse may he not command the person of a Nobleman to attend that service but if the Sheriff upon a supplicavit against him returne that he is so puissant that he dare not arrest him the Sheriffe shall be grievously amerced for such returne for the Writ is to all Archbishops Bishops Dukes Earles c. and to all liege men of the County to to be ayding to him therefore by intendment none will resist the execution The words of Charta de forest cap. 11. are every Archbishop Bishop Earle or Baron comming to us at our commandment and passing by our forrests 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 horne that he seeme not to steale our Deare In this Stat. though a Duke Marquesse or Viscount being Lord of the Parliament being commanded c. shall have the same priviledge so if the King send for him letters missive Messenger or Sergeant at arms or by writ of Sub-paena to appear in Chanc. they shall have the benefit of this Statute because they came at the Kings commandement so in case of Scire facias out of the Chancery or D. R. But if such Processe goe out of the C. B. to appeare before the Iustices 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 c. So of the Starre-chamber Also Lords that come to visit the new King though not sent for shall have the priviledge and so note this Statute is a Warrant dormant and is to be vnderstood of their returning homeward Manwood cap. 13. Crompton Iuris Nota. D. 167. note the Statute doth give licence to kill or hunt in the Kings Parkes though the Letter bee Transiens per forrestam nostram Note that in certaine Cases the Law doth give priviledge to the sonnes or brethren of Noblemen though they bee not of that degree Stat. 21. H. 8.13 c. 7. E. 6. cap. 5. Certaine Cases wherein he hath no Priviledges IF the King commit a Baron to prison Durante bene placito he cannot be discharged by Bayle or mainprise or by the common Writ De homine replegiando And by the same power it is if a noble person bee committed by the Kings Councell for they are incorporated to his Highnesse and doe command as with the Kings mouth and the same law is if a Nobleman be committed to prison by the absolute Commandment of the Kings 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 himselfe by the chiefe Justice sitting in the Kings 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 priviledge to appeare by attorney Et per Curiam could not for a Cessavit lyeth against him Upon contempt of Peeres a Capias may bee awarded 1. H. 5. ult 27. H. 8.22 If he depart the Realme as Embassadour c. and returne not at the Kings commandement the King may seize his lands and goods Dyer 108.176 The Dutches of Suffolkes case if he imprison any man in his house whereupon there is a writ De homine replegiando if he convey him from the Sheriffe 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. Iacobi and see the Statute of 7. Iacobi 3. Iac. ca. 4. 7 Ia. cap. 6. who hav eauthoritie to administer it unto them
by birth though she marry vnder her degree she remaines noble but those innobled by marriage and after marry with a man of meaner degree utterly lose her former dignitie Fortescue 100. Cooke 6.33.4.118 It was the case of Ra. Howard Esquire husband of the widow of the Lord Powes against the Dutches of Suffolke the Writ naming her Ladie Anne Powes Dyer 79. so also in Qu. Maryes times when the Dutches of Suffolke married Stokes bre Bro. 146. digest lib. 1. Tit. 9. for the dignity accruing by marriage is but in fait and not by any record Coke 6.53 Coke 4.117 Cawells instit lib. 1. Tit. 10.15 So long shall a Dukes wife be called Dutches and an Earles Countesse and enjoy all honours appertaining to that estate with tasting kneeling serving c. And a Baronesse and Knights wife saluted Lady Quamdiu matrimonium aut viduitas vxoris durant except she elope for as then every woman shall lose her dower so being advanced by titles of dignitie by that husband by such elopement loseth them If a Ladie which is married come through the forrest shee hath no priviledge by the Statute but a Dutchesse or Countesse during the time she is vnmarried may Crompt Juris dict 167. Such Ladies whether they be married or sole upon Indictment shall be tried per Peeres by the Statute of 20. H. 6. cap. 9. it being a declaration of the common law Coke 6.52 By the Civill Law Si filia Regis nubat alicui Domino vel Comit. dicetur tamen semper Regalis Among Noble women there is difference of degrees and according to their qualities the law gives speciall priviledges as followeth by the Stat. of 25. of E. 3 2. it is high Treason to compasse or imagine the death of the Queene or to violate the Kings companion The Kings Spouse is a sole person in law to purchase c. plead and be impleaded Coke 4.23.6 Theboal lib. 1. cap. 4 24 E. 3.3.8 Bract. 363. And of such acts of Parliament as concerne her the Iudges ought to take notice Coment 231. a Coke 8.28 In some cases she shall have Prerogative as the King himselfe See the case of Wardship 5. E. 3.4 Stamf. prerog cap. 2. The Qu. Wife to the King or widow shall not be amerced if she be non-suited whereas all other subjects shall for she shall participate with the Kings prerogative Coke 8.62 but not in all cases for the subject shall not sue to her by Petition as to the King 11. H. 4 67. Stamf. prerog cap. 22. Against the King Nullum tempus occurrit otherwise of the Queene 18. E. 3.2 Philippa Regina Angl. Ibid. fol. 1. 13. Stam. prerog 18. In 21. E. 3.6 A Protection was allowed against the Queene In a Writ of dower against Isabel Qu. of England mother to the then King the Iudges were of opinion that shee was not to answer to any Writ but said they to the plaintife it behoveth you to go to her by Petition to whom the Demandant Dixit graits and prayed the court for a continuance of the action vntill shee might speake with the Queene But they nor the Queenes Councell would agree that the Qu. should be accepted as answerable 10. E 3.379 The Wife of the Kings eldest Son hath some prerogative not communicable to the Wives of other Noblemen for by the Statute of 25. E. 3. It is high Treason to violate her Dutchesses also and Countesses have speciall honour appertaining to their estates as kneeling and tasting which things I leave to the Heraulds The Statute of 7. Iac. cap. 6. intituled an Act for the administring the oath of Allegiance requireth those of 18. yeares or above to take the said oath The title is for administration of the Oath c. and reformation of married women Recusants Ladyes in Reputation THe Wife or Widow of the sonne and heire of a Duke or Earle in the life of his Father is a Lady by Curtesie and taketh place according to the antient time as they have beene permitted by their Soveraigne Prince and allowance of the Herauld But in legall proceedings they are not to have such Priviledge If a Noblewoman of Spaine come into England by a safe conduct or c. And so stiled in the said Letters yet is shee but a Lady in reputation And English woman borne taketh to Husband a Spanish or French Duke though hee be made Denizen yet shall she not beare the title of Dignitie in legall proceedings A German woman is married to the Marquesse of Northampton or c. unlesse she be made Denizen shee cannot claime the priviledge or title of her Husband no more then shee can claime Dower or Joynture An English woman doth take the Earle of Kildare in Ireland to her Husband or if a Lord in Scotland though hee be post natus c. their wives shall not aprticipate their Husbands Dignities But if the King Create one of his Subjects naturalized by Parliament to be Viscount Rochester within England and after summon him to the Parliament by Writ and assigne him place there by this is he made Peere of the Realme and partakes with them of all Priviledges and by consequence his Wife Widow and Children after him E. of Angus in Scotland 34. E. 3.35 Gilbert Humfrevils case But if an English man be made by the Emperour Earle of the Empire his Wife shall not beare that title either according to law or reputation All Daughters of Dukes Marquesses and Earles are by custome long used in the Kings Palace to be named Ladies and to have precedencie according to the degrees of their parents and of this custome the Law taketh notice But neverthelesse in the Kings Courts of Justice they beare not this title of Honour no more then the Sons of such noble personages Brothers to such Ladyes may doe The Hypothesis or particular Question WHether the Dignitie of Aburgavenny Sit conjuncta feodo and such as ought to descend to the speciall Heire male seized of the Castle bearing the head of that Barony and of the lands that make that Honour Or whether the Dignitie Name and Stile to be Baron of Aburgaven ought to descend to the generall Heire male who is not interessed in the said Castle or honour For the more orderly proceeding herein to avoid confusion and that every thing appeare concerning his question in his proper person There shall be shewed First that the Barony is a Barony by by tenure a very antient Honour and no Barony by Writ onely whereof will ensue by the former Declaration in the treatise of Barony That the dignitie and name de jure ought to go and descend with the Castle and Honour so holden as long as the same shall or may continue in the name blood and line of such as are nobly descended and may support the same There shall be Proved Secondly That the said Barony of Aburgav and the name title and dignitie of Lord and Barony of Aburg de facto
6.36 37. H. 6. forasmuch as our bookes doe acknowledge them to be determined by course of the Civill law It is true Resol that the manner of performance of those severall kinds of Combates is very different and although the combate for Honour or upon the Appeale for treason be performed within England according to the custome of forraigne Nations in some respects although not altogether so that almost every particular Countrey hath a particular manner by meanes whereof some men seeing the difference betwixt those and the ordinary course of observance of Combates for land in the Writ of right or for life in the Appeale of felony have therefore imagined that the proceeding in Combate before the Lord Constable or Lord Marshall in the Appeals of treason or in causes of Honour betwixt such persons Paris de Putio Iohannes de delignatio Iac. de Castilio And. Assiatus Iul. 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 Civill law yet neverthelesse it must been certaine that the Civill law of the Romanes is so farre off from giving any allowance thereto as that it seemeth to forbid it For that law of the Christian Emperour Constantine is most notably alledged to this purpose by most of the learned Doctors of the Civill law that have written De duello the words of which law are these Cruenta spectacula in otio civili domest quiete non placent And that which for disputation sake is alledged 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 playes de gladiatoribus as were usuall among the Romanes 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 duâ—ll cap. 4. de legibus Congobard â—it de Monarchijs n. â— Iul. Ferreâ— de duelâ—o 17 â—et Gregor lib. 48. cap 161. n 8. Neverthelesse among these warlike Nations that invaded the Romane Empire this kind of single Combate hath beene againe exercised in divers Kingdomes according to the custome of every severall Countrey 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 complaine 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 severall Kingdomes of Cicilie in Spaine it hath beene allowed in some Cases Likewise in France by the constitution of Philip le Beau. Anno 1306. Likewise the Emperour Fredericke did permit it in certaine 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 c. In some places of Italy the battell hath beene allowed upon lesse 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 Combate are different in divers Countries and every Countrey that people following their owne Customes and usages being their peculiar Law and in this our Realme it was a tryall much more frequented in antient times neere the Conquest then succeeding ages for it is evident by some antient Records and Plea rolls yet extant of King Steven Wager of battell in personall causes H. 2. R. 1. and King Iohn that it was permitted to be waged in personall 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 Iudgement and therefore in 37. H. 6. and 37. H. 6. fol. 20. Needehams opinions are much more agreeable to the truth where both doe affirme that such waging of battell before the Lord high Constable and Earle Marshall is by the Lawes of this Realme although it bee determined before them and so great a Sympathy is betweene that Court and others of common Justice as that the Judges shall take notice of the proceedings before the Lord Constable and Earle Marshall 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 triall of matters in fact concerning Honour and ARmes proceedeth upon examination of witnesses which is according to the course of the civill Law therefore matters of Honour are to bee determined by the civill not common Law I the tryall of matters in fact Resolu the common law doth not alwayes proceed by a Jury for although they most properly lye in the Conusance of the Jury 8. Ed â—â— triall 94. 9 Ed 2. Iudg meÌ„t 231. yet in other matters the Law hath ordained some other manner of tryall as they gage others by Witnesses as if a Wife bring a Writ of Dower supposing her Husband to bee 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 hee 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. 3â— 19 H. 6.32 this shall be tried by examination and depositions of the summoners c. and not by the Jury In a Write de Nativo habendo whereby the Plaintife claimeth the Defendant to bee his villaine the Defendant saith hee 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 tryall in fact are tried by view and inspection of the Court 8. Account 121. not by a Jury as the Nonage of the Plaintife or defendant alledging himselfe to be within the age of twenty one yeares And the like tryall 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
p. 2. whereby Hugh de Burga was made Earle of Kent in the time of H. 3. which was Habend sibi haered suis de corpore Margaret uxoris suae sororis Alexandri Regis Scociae procreat pro defectu talis exitus reman Ricīs haered dicti Hugonis c. The manner of the Solemnitie used in the Creation of Barons by Patent The forme of Creation of a Baron is much after this forme The Baron newly to be Created is presented unto the Queenes Majestie sitting in her Chaire 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 principall King at Armes bearing the Patent and the Officers at armes proceeding on before him when they come in presence of her Majestie they make their solemne obeysance three times And the Baron to be Created kneeleth downe before the Chaire of Estate the said King at Armes delivereth the Patent of Creation to the Lord Chamberlaine who humbly presents the same to her Majestie who delivereth the same to the principall Secretary to bee read who reading the same with a loud voyce at the word Creavimus the Baron which carrieth the Mantle presenteth the same to her Majestie 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 Queene who delivereth it to the Baron so Created who after most humble thankes given to her Majesty hee riseth up and they depart in like solemne order as they came with the Trumpets sounding before them The particular more full knowledge of these Solemnities I doe referre to the Colledge and Corporation of Heraulds to whom the knowledge of these things doth most specially appertaine For the better explanation of this kind of Dignitie the resolution also of certaine questions shall bee very requisite Quest 1 First if a Nobleman and his Progenitors have for a long time beene called to the Parliament and he a Baron either by tenure or by Writ And have had in regard thereof a place certaine 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 heires retaine his old place in Parliament which he had according to the former dignitie or whether shall he lose his old place and take a new place according to the time of his creation onely The case of the Lord De la Ware received a resolution some what answerable to this Question De laware 11. Rep. Looke fol 1. E. 3 6. The Lord De la Ware 3. E. 6. being in sore displeasure which William West his Nephew and heire 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 naturall life onely cleerely disabled to claime demand or have any manner of right Title or interest by descent remainder or otherwise in or to the Mannors Lands tenents or hereditaments title or dignitie of Tho. Lo. de la Ware his vncle 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 Lo. 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. hee was excluded to challenge the sormer auntient 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. Councell being her Maiesties Attorny generall and Solliciter were that the acceptance of the new creation by the said William West could not extinguish the antient dignity for he had not that antient Dignitie in him at the time of his Creation but that Dignitie was at the time of his Creation by the Act of E. 6. in abbeyance suspence or consideration of law and he thereby utterly dis-inabled to have the same during his life onely so as his acceptance could not extinguish that dignitie which he then had not nor could conclude his heire who was not disabled by the said act of 3. E. 6. to claime the antient Barony which opinion of theirs was soone allowed by the resolutions of the Lo. cheife Iustice of Engl. and Lord cheife 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 beene Baron and intitled Nota. or in possession of the antient dignitie when he accepted the creation the law perchance might have beene 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 dignitie in every Writ to be sued by him or against him The bookes of law doe make difference herein betweene Duke Marquesse 8. H. 6.10 30 H. 8.30 Earle Viscount c. which are allowed names of Dignitie and the Baron for they affirme that such Baron needeth not to be named Lord or Baron by his Writ but the Duke Marquesse Earle or Viscount ought to be named by their Names or Dignities Neverthelesse I doe take these bookes to be understood of the Barony by tenure or Barons by Writ onely for the title of a Baron by Patent in his Letters Patents under Seale adorned and named by the name of Status gradus dignitas and therefore is requisite to be named and such dignities are a parcell of the name of the possessor as well as the Title and Stile of Duke Marquesse Earle Viscount c. And although there may be conceived this difference last mentioned betweene 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 Peeres of the Realme as they are Barons onely without any other distinction that I have observed And thus much concerning the three degrees of Barons within this Realme may suffice to be said in generall upon this occasion for the better understanding and resolution of the controversie in hand The priviledge of Barons There resteth last of all in this Treatise of Baronage that I would expresse some certaine of the sundry priviledges that the Lawes doe allow unto Barons and the Nobilitie of the Realm ingenerall in regard of that favour which all good policy in every wel-governed Common-wealth doth bestow and yeeld to the Noble and Honourable wherein I shall content my selfe onely with certaine of those
for they are not bound to beleeve him upon such protestation otherwise then they thinke 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 feare of his safegard 35 H 6. Sub-paena 20 V. 14. E. 3. and prayes a Supplicavit in the Chan. directed unto the Justice of peace or Sheriffe to take bond c. such Writ which otherwise is ordinary but the Lord Chancellour shall award a Sub-paena in stead thereof and when he appeareth in stead of surety he shall onely promise upon his Honour to keepe the peace which the Law hath allowed in this point a Caution sufficient A nobleman is not to bee 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 civill Action but onely in Criminall And by the same reason lyeth no Attachment against him as it was ruled in Parliament 14. Eliz. in the Lord Cromwells Case But if he make any notable contempt against the proceedings of the Law then ceaseth this priviledge for Frustra legis auxilium invocat qui in legem peccat As if in a Writ de homine replegiando hee will not permit the Sheriffe to execute the Writ or Essoigne the party or upon a Rescousse a Capias hath this priviledge notwithstanding So in cases Criminall 27. H. 8.14 15. H. 7.1 a Capias and an Exigent may be awarded The like priviledges doth the Court of equitie allow in cases of conscience Chanc. nomine Sub-paena for the Lord Chancellour doth not award any Sub-paena but sendeth his Letters missive in lieu of other ordinary Processe In the prosecution of any Action personall 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 Plaintife may pray Jour de grace but against a Peere of the Realme it shall not be allowed although it be allowable against other persons If any Lord Spirituall or Temporall be partie to any Action Privileg 7. 13. E 3. â—â— Chal. 115. â— 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 impannelled in his Jury with other the most sufficientest Esquires in the Countrey otherwise he may challenge the Array but if there bee no Knight in the County the Pannell shal be made of the most sufficient Vavasours and Esquires there inhabiting But if one bring an Action against another and the Shâ—riffe impannell a Jury where there is not any Knight 14. 15. Eliz. 318. and before the Triall the Plaintife or Defendant is Created a Baron or c. and hee doe challenge the said Jury such challenge shall not bee allowed for at the time of the enquest made he was not so reputed as in the Case of Reginald late Earle of Kent may appeare If the King grant an Annuitie 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 Dignitie that by no manner of alienation it can be severed If the King upon such Creation give land c. untill he shall bee advanced to some other living and upon Eviction to have the valew if he be impleaded of this land by Scire facias 21. E. 3.47 c. hee shall have aid of the King If a Baron be partie to a suite Privileg 9. Pract. l. 5. fol 337. 351. and would be essoigned hee that casts the essoigne out to put in sureties to prove the cause which is not usuall in case of common persons In all cases where he is to be amerced his amerciament is not lesse then a hundred shilâ—ings by the Statute oâ— Magna Charta 14. and it was to be affirmed by hiâ— Peeres Privil 10.16 E. 3 â—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 beene obtained by the Barons of the Exchequer who were sometimes Barons of the Realme Whereas by the Statute 32. H. 8. no subject might keepe in his family above foure Strangers borne Privil 11. Br. fol. 116 Coâ—ke 8 39. Stat. 32 H. 8.16 Privil 12 yet by a Proviso every Baron may keepe sixe If a Lord of the Parliament having place and voyce there Stat 1. E. 6. cap. 13. be convicted of Felony wherein Clergie is allowed upon request alleadging that hee is a Baron c. and clayming the benefit of his Clergie although hee cannot reade without burning in the hand losse of Inheritance or corruption of blood hee shall for the first time bee deemed a Clerke 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 Peeres of the Realme are exampted By the antient Lawes before William the Conquerors time Lemb perambul de Kent 21. Britt cap. 29. Marlb cap 10. every man above 12. yeeres should be sworne to the King which we observe now in the veiw of Francke-pledge Court-leete But noble men c. are neither bound to attend the Leete nor take the oath If an Error be brought in Parliament upon a Iudgement 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 distresse taken for expences and fees of the Knights of the Parliament 11. H 6.2 It was agreed that the Barons are not contributorie for Lands parcell of the antient Barony but for other lands but there is a question made whether the purchaser of such an antient Barony should enjoy the said priviledge which question was not worthy the questioning for as lands holden by Villaines service doth not make the free purchaser a Villaine though he be bound to doe such Villaine 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 supremacie Staâ— 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 c. of the temporall lawes Therfore this act shall not compellany of or above the degree of a Baron to take this oath nor to incurre any penalty limited for the refusall 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. c. upon the Sea Coast