antient Saxon Testament of one Arfrie an Earle 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 dignitie as the Barons doe The word Thanis being usuall in that sence not onely 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 appeare that the name of Baron was not usuall amongst the ancient English Saxons for that in the subscription unto the graunts of Kings whereunto with the signe of the X were subscribed the names of all noble personages as well temporall as spirituall the said word Baron cannot bee heard of but in an antient 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 c. ab omni diminutione exact comitum c. Likewise to this effect have I seene in an old booke 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 Ecclesiā de Westm. renovavit Neverthelesse the name of Baron was not much vsed within the Realme untill the Norman Conquest after which it grew very frequent In which time the notable cases c. of the Realme were debated before him and his Barons and by them adjudged as by divers Monuments extant may appeare Doomes-day in Canterbury whereof one is in this manner in the Record of Doomes-day 21. E. 3.6 Quidam Preposit Brumanus eo tempore R. Edw. coepit consuet de extraneis mercatoribus c. 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 Monasterie which Parliament was holden by the said King the Archbishop of Cant Barkshire and all other the Bishops Earles c. appeareth Moreover in the Record of Doomes-day in the description of Donesh is declared that at the time of the said Record there were at Warham of certaine Barons lands twenty houses standing and seventy destroyed by which appeareth that both name and dignitie of a Baron was sufficiently knowne in the time of the Conquest and as touching the vse of the name the word Baron seemeth to be frequented among the Norman Conqu of this Realme In lieu of the word Thane among the Saxons for as they in a large signification did sometime use the same to the sence c. of a free man borne of free parentage c. and so did the Normans vse it and therefore called their free Citizens of their best esteemed Cities and Burgesses c. by the name of Barons Bracton 272. and therfore the Citizens of London were called Barons Lond. in divers auntient Monuments of whom also Bracton writeth Per Barones Lond. c. So also there are diverse Charters wherin mention is made of such like Barons as the Barons of Warw. in Dooms-day and in our time the Burgesses of the five ports are called Barons and divers of the Nobility of Barons as well spirituall as temporall did in antient 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 antient 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 Realme have had their immediate Barons being the Peeres of this Realme so certaine other Noblemen especially the Earle Palatine and Earle Marchers whose Counties have confined upon the coasts of the enemie 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 c. The Earle-dome of Pembrooke 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 Earle thereof being an Earle Marcher had also under him his Barons for it appeareth by the Parliament rolles 18. E. 3. that the Baronies of Haverford Cammois Rochie and Castlegoton were antiently belonging to the Iurisdiction of the Earledome of Pembrooke and had their Chancery and Scals as other Barons upon the Marches vsed to have Hereof also it followed not onely in this Realme but also else-where that Earles had under them such as they called their Barons who held under them lands in Knights service and in the defence of their Lords and therefore in the Register of the Monast of Saint Iames of Northampton it is found that Simon Ea. of Northampton did get and confirme unto the said Abbey Omnia dona c. quae Barones sui c. infra burgum extra North. illis dederunt Many old Charters also are extant whereby it appeares which now time hath worne 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 onely and that no subiect can aliene his land to another to hold of such alienor per Baroniam which some Serjeants denyed to the which opinion of Serjeants 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 aliene some parcell thereof to bee holden by other since which is evident saith he in this that the antient Baronies doe consist most of services which began by occasion of such suites as aforesaid The assertion of both the said Iudges is good law for none can hold per Baroniam but of the K. Qu. c. Monarchs of the Realme And againe it is true that in some kind of feme a man may hold per Baron of a subject but diversis respect ergo distinguendū est None can hold per Baroniam as a Peere of the Realme and in course of perfect Nobilitie but of the Crowne onely For of this Bar. Bracton understandeth when he saith it is the strength of the Realme 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. feudall tit
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
Likewise the said first rule touching the Nobilitie of Women married unto persons ignoable doth faile where they inherit those dignities For if a Dukedome Earldome or Barony descend unto any woman who taketh an ignoble man to husband that husband shall not debase the wife having such Dignities descended but rather he in her right shall beare the title of such dignities especially if he be intituled by the Courtesie Object 3 A third Object is this It is said that by the law of Chivalry exercised within the Realme if a Baron be created an Earle c. that the heire apparent of such Earle c. shall after such Creation of his Father beare the title of the Barony c. but this is not usuall by the course of the Common law therefore the descent of such Dignities not to be guided by the Common Law The common law doth not disallow any such usage Resolu for it being the custome of the Realme is the law of the Realme Howbeit the Common Law doth put a difference betweene such Heires apparent as carry those Titles lawfully in respect of the usage and such others as have them by Creation or otherwise for such Heire apparent is no Peere of the Realme as those by Creation or such as have the Earldome c upon descent after the death of his Auncestor and therefore as when the Lord Hen. Howard Earle of Surry Son Heire apparent to Thomas Duke of Norfolke An Earle by Nativity was attainted his Triall was by Iury of Knights and Gentlemen not by Barons c. for that hee was an Earle by Nativity which in respect of tryall the Law doth not allow The like tryal chanced to the Lord Gray who 33. H. 8. was in B. K. arraigned of treason and appointed to bee tried by a Jury of Knights and Gentlemen and not by Peeres Causa qua supra but he confessed the Indictment and the Jury were dismissed yet such shall hold precedency of place at Court and in the presence of their Soveraigne as is usuall in that behalfe Obje 4 It is objected fourthly that by the Common law a man may not bee called Lord of that he hath not But by the law of Chivalry a man may bee created Earle of a County having no land therein therefore differ Resol 1 It is true that some particulars of ordinary proceedings in the law doth differ from other proceedings concerning Chivalry and yet their difference is no other then as one hand doth differ from another both are hands and both of one body That part of the law which concemeth purporty doth not allow a man to bee called Lord of that wherein he is no way owner in demesne or seignory but when you draw the law to the consideration of dignity the whole resolution must rest upon the Patent of creation Earle pur autre vie 31. H 6.29 pur Danby wherein the name is appointed at the pleasure of the Soveraigne for one may be Earle during the life of another if the Creation be so But I answer further that it is not true that every Earle must be Earle of a place nor every Earle of a place Earle of a County nor that every Earle of a County hath nothing in that County whereby he is Earle For the better manifestation consider that originally within this Realme Earldome of Counties in the antient English Saxon Governours were not onely dignities of honour but also offices of Justice Vea leg Edgar regis de Consil Lamb. 80. n. 5. for that they did further the administration of Justice in the County whereof they were Earles or Aldermen they likewise had their Deputies under them the Sheriffe an Officer yet containing the name of his substitution in Latine Vicecomes Camden 107. These Earles in recompence of their travailes received a Salary name by the third penny of the profits of the said County which continued long after the Conquest and was inserted as a princely benevolence in the Patent of Creation as by divers antient Charters may appeare which afterward were turned into Pensions H 3. dedit Haberâ—o de burgo 40 pro 3. deno Com. Cant. de quoeund creavit comit habeÌ„d sibi haered de corpore Marger uaeor Alexand. reg Scotiae 13. H 3. in turr Lond. 33 H. 6.29.6 H. 8. Dy. 2. for the better maintenace of that honour and as appeareth by a booke case upon the pleading of the Patent whereby H. 6. Created that worthy Knight Sir John Talbot Earle of Shrewsbury which Pension is so annexed unto their Dignitie as that by any meanes of alienation it cannot be severed and therefore in respect of such Pensions which were the third part of the profits of the County or other summe in lieu thereof some have not without probabilitie imagined Quod Comites nominabant capiend fisco Regis socij Comites fido participes essent Lamberd c. Of the single Ear. and not Palentine with Engl there have beene principally two kinds but every one of them againe subdivided into severall branches for either they take their names of a place or hold their Title without any place Those that take their names of a place are of two kinds for either the same place is a County which is most usuall or else some other place and no County as a Towne Castle or honour c. of which later sort some are more antient having their originall even from the Conquest or shortly after as the Earledome of Richmond in Yorkshire Clarence in Suff. Arundell in Essex all which had their originall in the time of the Conquerours by donation of those Castles c. The Earledomes of Bath temp H. 7. H. 8. erected in the family where now it remaineth and the Earledome of Bridgewater whereof Sir Giles Dawbeney was Created Earle temp H. 7. Earledomes which have their titles without any place are likewise of two kinds either in respect of office as is the Earle Marshall for it is granted in this or the like manner Officium Comit. Marescal ' Angl ' with further words vizt A.B. c. Comit. Marescallum Angl. creamus ordinamus c. by which it appeares that the very office is an Earledome Earle by birth The second sort are Earles by birth and so are all the Sons of the Kings of England if they have none other dignitie bestowed upon them and therefore it is said that John afterwards King of England in the life-time of his Father H. 2. was called Counte sans terre before he was affied unto Alice the Daughter of the Earle of Morton in France Object 5 A fifth Object is this The law of Chivalry proceedeth not in the accomplishment of a combate in such manner as is performed by the course of the Common law either in the Writ of right by Champion or in the Appeale by person therefore the managing of the causes in Chivalry is not in the common law especially 37. H.
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
an Appeale of Maykem the parties bee at issue whether the hurt be a Maykem or no sometimes the Courts of the ordinary of some other Iudge or Officer as in matters spirituall by Certificate thereof from the ordinary c. And concerning matters done beyond the Seas in the Kings Army or concer-cerning Combate for honour armes c. by Certificate of the Lord Constable or Earle Marshall 3 H 6.6 48 E. 3.3 c. whereby appeareth the weakness of the former Argument but in cases usuall the law alloweth the triall by Witnesses without Iury And therefore in the Lord Constable and Earle Marshals Court matter in fact concerning Honour and Armes 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 discerne Hitherto have I wandred of purpose to shew that our homebred Law is sufficiently able and ought to trie all causes civil other then Marine such as are rising with the body of the Realme and not in forraigne parts whereby appeared the excellencie 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 compasse of his proper sphere and upholdeth the jurisdiction of the Court of the Earle Marshall By that therfore which hath beene said two things may sufficiently appeare First that the Court of the Lord Constable and Earle Marshall have had and now the Earle Marshals Court hath particular jurisdiction originally and primarily to determine matters of controversie concerning Chivalry Dignity Honour Armes and some other things acknowledged to belong to the said Court by the Lawes and Statutes of our Countrey 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 c. but not ease or in sua but rather by an adjunct as by this example may appeare If there bee 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 originall Writ Cap. alz plures in a personall action and thereupon an exigent is awarded whereupon insueth an Outlary the party outlwaed brings a Writ of errour and assigneth for errour that hee having such a Castle to him descended c. holden per Baroniam whereupon his Ancestours have beene Barons anp he himselfe Baron no Cap. ought to be awarded against him but in very speciall cases onely therefore the outlary erroneous This matter of errour alledged the Court cannot consider without due determination of the title of the Barony wherein if the Court of the Earle Marshall should adjudged one way by any forraigne Law in the same question depending there and the Court of B.R. adjudge another way by the common law of the Realme upon this Writ of errour there would ensue thereof a great confusion and inconveniencie in the Common-wealth which the law will rather eschew then any other mischiefe whatsoever Secondly therefore it doth appeare by the speeches aforesaid that the common law ought to decide this controversie and that both Courts ought to follow one and the same law in as much as the common law is more ample then ordinary reports of Cases in the yeare bookes For whatsoever is not disagreeing from the law of God and is consonant to the lawes of nature and Nations allowed by the customes of our Countrey not disagreable to former presidents answerable to all good learning is the vndoubted common law of the Realme which knowledgeth no other Author but God and nature and whereof the Iuges in all ages have ever thought it honourable to receive all good helpes from every faculty of literature in the ending of difficulties questioned before them The proofe therfore in this controversie to be produced shall be arguments of reason What māner of proofes are to be used in your Controversies allegations of authoritie presidents of time drawne out of Records Histories ouncient Monuments Lawes and customes of our owne countrey and furnished with such other matters of necessary knowledge as may tend to the better explanation It followeth somewhat to speake in generall of the dignitie 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 cleere determination which for order sake I will reduce to the consideration of these principall heads 1. The definition or description of a Baron 2. The Etimologie of the name of Baron 3. The antiquitie thereof and the divers vse of the name 4. The division and consideration of the severall Kinds of Barons 5. The determination of certaine Qu. and difficulties tending to the more manifestation of the natures of the severall Kinds of Barons 6. And lastlie a declaration of the divers and sundry priviledges allowed by the lawes of this Realme unto the Barons and Nobilitie of the same wherin the vulgar c. hath no participation Which things being discouered there will be laied open as I doe conceiue a plaine way to the finall 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 doe not often see any definition or description of a Baron Baldus thus describeth a Baron Baldus Canotus de sectionibus vt sit quisquis merum mixtumque imperium in aliquo Castro opidove concessione principes habeatur But his seemeth rather particular to some then generall to all and therefore Alciatus vseth 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 thinke they are those which are meant under the name of Valvasores majores Capitanei In the second booke De feodis de titulo Quis dicatur dux c. And some others would have the dignitie of a Baron to containe every noble dignitie under the Earle Grand de supplenda neglig plator in Sexto Some common Lawyers there are which extoll the dignitie of a Baron before that of the Earles by reason of a subcription to a decretall epistle directed Baronibus Comit. regin Portugal They not considering that in another place in the same decretals it is more orderlie placed
then sought to be infringed by the Pope and his Clergie Called the Assis of ClarindoÌ„ 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 c. 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. ParliameÌ„t 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 c. For ever unto our times when question is had of any attainder of any Peere 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 chiefe 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 consecraetioneÌ„ suam homag sua facere solent Of these also Bracton saith St autem terra data fuit Ecclesiat Cathedral vel conventurae non jacebit assisa utrum quamvis in habitam c. Eleemosinam Of the which hee reciteth a Judgement P. 15. H. 3. which was given in a Writ of Errour upon a Judgement in Eire betweene the Prior of Lewes Gilb. de Aquila Bract lib 4. cap. 2.287 and he yeeldeth the reason thereof Againe Bract. lib. 5. cap. 23. fol. 4.27 he in another place searching out the reason why the certificate Excommunicat spiritualium any spirituall Judge other then the Archbishops and Bishops of this Realme is not by any Law to be admitted hee yeeldeth this reason so that none of those other spirituall 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 seaze their temporaltie Likewise about 46. E. 3. the Bishop of Chichester Leased for life a Mannor parcell of his Bâ—rony with licence of the King 46. E. 3. forf 8. this alienation was a forfeiture because parcell of his Barony Many more authorities might be cited out of Records and bookes of Law 13. E. 3. Chal. 115. enquest 43.29 E. 3.42 in regard whereof they have in antient time been named Peeres of the Realme and have enjoyed other the priviledges that Peeres doe the triall by Peeres onely in matters of Treason or misprision c. excepted wherof 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. â—nqust 99. 2. Mar. 46. 35. H. 8. Triall 142. Stan. 1536. 1. H. 4.13 H 8 11. Another reason why Bishops are not tryed by Peeres as other Peeres because they cannot passe upon the life of any man being thereunto forbidden by c. and therefore the Peeres cannot trie them for that this kind of triall should be mutuall if the offence give occasion insomuch that their censure is upon their honour without oath c. The like of those Abbotts 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 c. which held some part of their land per Bar. who were also called Peeres of the Realme therefore no Capias against them and therfore some of them that held not per Bar. being summoned to the Parliament upon their petition were discharged whereof there are some presidents extant The Abbot of Saint Iames neere Northâ—mpton in 12. E. 3. was summoned to the Parliament which was the same yeere holden at Yorke who because neither he nor his predecessors were summoned and because he held onely by Frankalm hee by his Procurator exhibited his petition to the Lord Chancellour a monument wherof I have seen in this maÌ„ner Abbas Sancti Iacobi North Irrotul de novo in Cancell dom Regis inter citand ad Parliamentum non tent per Baroniam nec de rege in Capite sed tantum in pura Out of the Register booke of St. Iames of Northampton c. Eleemosina nec ipe nec predecessor sui unquam in Cancellaria irrotulat fuerunt nec ad Parliamentum cita huc vsque unde idem Abbas petit remedium Ad cujus billam execut Dominus Cancellar cum suo Consilio de Cancell ordinavit quod nomen praedict Abbatis a registro Cancel deleretur ita pluribus circumspect idem Abbas est absolutus facta est haec excusatio per visum Domini Iohannis 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 forme Ex. rot Patent 26. E. 3. pars 1. M. 22. in turri London Edwardus Dei gratia c. 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 puraÌ„ eleemosinam advocat 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 aliâ— modo non tenuit per quod ad Parliamentum venireâ— 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 voluntarie 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. Cancell 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 c. 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 c. quod idem Abbas c. de veniendo ad Parliamentum c. quieti sint Ita semper quod dictus Abbas
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
Being arraigned of felony in an Appeale he shall not be tried by his Peeres as in case of Inditement in which case he may not challenge any of the Triers either peremptorily or upon causes which is permitted to all other common persons The Iudgment is the vsuall Iudgement given against common persons and though the King pardon all but the losse of his head that is of speciall grace not ex debito By Attainder the blood is corrupted and he and his posterity made ignoble Stam. lib. 3. cap. 34. and cannot be restored by the Kings pardon but onely by authoritie of Parliament And note that Nobility is not a thing substantiall but meerely accidentall present or absent without corruption of his subject for experience shewes that honourable titles are restrained by exorbitant crimes when the nature in the meane while cannot be thrust out with a forke wherefore though we tearme extinguishment of Nobility in cases of Attainder yet this phrase is not vsed as though Nobility were essentially in the homour of the blood more then any other hereditary faculty But because the right of inheritance which descends by communication of blood is by that meanes determined and also in regard of the detestation of the crime it is called corruption of blood 16. Eliz. Dyer 332. The Lord Charles Flowards case if one be made a Knight by a forraign King he is so to be stiled in all legall proceedings in this Realme But if he be created by the Emperour an Earle it is other wise Coke 7.16 If the King Create the son a Duke c. and the father dies he within age shal be in ward but if he had bin made a Knight in his fâ—â—hers life he should not be in ward neither for the lands descended nor marriage Coke 74. Drueries Case though he be within age Nobilitie and Lords in reputation onely THere be other Lords in reputation and appellation who neverthelesse are not Iure neither can they enjoy the priviledges of those of the Nobilitie of the Parliament viz. The Sonne and heire of a Duke during the life of his father is onely by curtesie called an Earle and the eldest sonne of an Ea. a Baron but not in legall proceedings Br. Treason 2. Coke 8-16 But the King may create them in the life of their Auncestors Lords of the Parliament A Duke or other of the Nobilitie of a forraign Nation being named Duke in Letters of safe conduct that makes him not Duke to be sued by that name in England but a forraigne King ought so to be stiled though he hath not merum imperium out of his owne Kingdome Cok 7.15 c All the younger Sonnes of the King of England are Earles by birth without other creation and onely Lords by reputation A Lord of Ireland or Scotland though he be post-natus is but onely Lord in reputation Noble Women ALthough Noble Women may not sit in Parliament in respect of their Sexes yet are they in Law Peeres of the Realme and may challenge all Coke 8.53 or most of the former Priviledges But the opinions of some have been Crompt Iust de peace 85. that they cannot maintaine any Action upon the Statute of 2. R. 2. cap. 2. de Scand Magnat because the Statute speakes onely of other Sexes If any of the Kings servants within in the Checkroll conspire the death of any Noble woman that is not felony within the Statute of 3. H. 7.13 Honourable women of three sorts By Creation Descent Marriage H. 8. Created Anne Bullen Marchionesse of Pembrooke King James Created the Lady Compton Wife to Sir Thomas Compton Countesse of Buckingham in the life of her said Husband without any addition of honour to him And formerly by Patents openly read in Parliament without any other investure did Create Mary sole Daughter and heire of the late Baron of Aburgauen Camden 63.6 Baronesse de le Spenser Noble Women by Descent are those to whom lands holden by such Dignitie doe descend or whose Ancestors were seized of an estate descendable in their Titles of Dukedomes c. or those whose Ancestors were summoned to the Parliament by this an Inheritance doth accrue to their posteritie They who take to Husband any Peere of the Realme though they themselves were not noble Fortescue fol. 100. Question hath bin made whether the Dignitie of one suÌ„moned to the Parliament dying without issue male may descend to the female but this may appeare by the former Treatise Concerning the title of Honour descendable to the Heire female it is cleere that such offices being of estate of inheritance doe descend as the office of the high Constableship of England challenged tempore H. 3. by the Duke of Buckingham was adjudged to descend to the Daughter of Humfrey Bohun Earle of Hereford So the office of Earle Marshall descended to the house of Norfolke all which offices are as unfit to be exercised by their sexes as unfit for them to be summoned to the Parliament And if such Title come in competition the issue shall bee tried by record and certified by the Kings Writ and not by Jury Coke 6.5 3.7 part 15. Though all Daughters be Coperceners and make but one Heire yet in descent of Dignities it is otherwise for they bee things entire participating of superioritie therefore descendable onely to the eldest And so is the Civill Law yet there was a Judgement tempore H. 3. touching the descent of the Earledome of Chester Obijt 17. H. 3. the Earle dying without issue leaving his Sisters his Heires The Judgement was that it should be divided equally among Coperceners But this Judgement was held erroneous in that very age Vide Bract. li. 2. cap. 34 fol. 76. hoc fuit injustum c. His reasons are because the honour of Chivalrie chiefly consisting in the Nobilitie may not be divided for by multitude of partitions the reputation of Honours in such succession must bee impaired and the strength of the Realme being drawne into many hands by such partition much infeebled In which resolution Britton by commandment and in the name of E. 1. accorded fol. 187. The former Judgement was given about 17. H. 3. And the Writers of that time testifie that it came holy unto Iohn Scot Son of David Earle of Huntington and Anguish and Maude the eldest Sister of the said Randolph if it were given upon the death of John Scot who died without issue about 24. H. 3. yet it stood in force because the King assumed the Earledome to himselfe upon other satisfaction to the coperceners Mat. Par. 366. tamen vide Mills 75. Guillem 28. Hugh Lupus the first Earle of Chester was by the Conquerour his vncle created into that dignitie Mills 74.75 Coke 35.7 part 15. habend fibi c. adeo libere per gladium sicut Rex ipse tenuit Angliam per Coronam c. he died without issue and the Earldome divided among his 4. sisters If she be noble
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