c. in procurator ad hujusmodi parliamenta per clerum mittenda consentient ut moris est expensis contribuant corundam In cujus rei Test c. 15. Febr. Anno 26. Franc. 13. per Petition parliament Whereby it appeareth that Barons by tenure are summoned in respect of their tenure As touching the temporall Barons by tenure mention is often made of them in the yeare-booke Records Glan 9. c. 6 c. as Glanv lib. 9. cap. 6. Baroniam retinet rex donec haeres c. Which reliefe for Baronies was at that time incertaine and rentable at the Kings pleasure but such incertainty of reliefe was brought to certaintie by the Statute of Magn. Chart. si quis Mag Char. cap. 2. c. de Comitat. integro per C.1. haeres Baron per C. mercas haeres Mil. per feodo mil. C. solidos Thus much of the temporall Baron and his reliefe In 3. H. 3. there was agnized an auntient perogative belonging to the Crowne and usuall from the Conqu in these words and so reported by Fitz-Herb Quod si aliquis Baron obijsset non hâ—beret haereâ—em nisi filias primogenit filia marit sit in vita patris Rex daret post natum filium quod remaneret in haereditat patris Bract lib. 5 Tract 2. cap. 2. fol. 337. c. Bracton writing of essoignes delivereth this learning that if any Baron that holdeth per Baroniam hath his absence excused by essoigne he which casteth such essoigne ought to find suretie that it is true but in the case of common persons that shall rest upon credit and the integritie of the Essoigner His words be these Ideo ne essoniator c. by which appeareth that there are temporall Bar. by tenure Now let us descend to the other authorities Sir Ralph Everdon Knight 48. E. 3.30 being one of the Barons of the Realme tempore E 3. was impannelled in a Jury to their priviledge and therefore for his exemption procured a Writ directed to the Judges of C.B. before whom the Jury was impannelled by which they were commanded to discharge the said Sir Ralph Reg. 179.14 15. H 8.35 H. 6.46 whereupon Belke chiefe Justice of C.B. examined him whether he held per Baroniam or no c. and whether hee had come to the Parliament as a Baron to which he answered that he held by a certaine part of a Baron and that his Auncest had likewise so done vpon good advice by means whereof he was discharged in which case is proved that there are â—arons by tenure and that they in regard of their tenure ought to be summoned In the Parliament 23. H. 6. there was a controuersie between W. E. of Arundell Inter. rot Parliamen 27. H. 6. and Tho. E. of Devon for their places in the Kings presence as well in the Parliament c. wherevpon there were diuers writings c. declared betweene them in the said Parliament the consideration whereof was coÌ„mitted by the King to certaine Lords of the Parliament to decide the said title with all incidents thereto belonging Neverthelesse it being not accordingly performed and the said controversie remaining vndecided in the next Parliament 27. H. 8. the said K. was pleased that the Iudges should examine the said matter who having considered the allegations of either part and also an act of Parliament made 11. H. 6. concerning the same in the behalfe of Iohn E. of Arundell decided his Ancestors they certified first that the controversie was never matter of Parliament 2. that the said act wherby it was ordained that the said Iohn should have his seat in the Kings presence aâ— well in Parliament as els-where as E. of Arundell there was no mention made of his heires but of himselfe 3. That to the castle c. of Arundell the name c. of Earle then was and time out of mind had beene vnited and annexed and by reason thereof the saide E. did hold that name and not by creation all which being so certified it was enacted that the said W. E. of Arundell should retaine his prehemience by reason of the eastle as worshipfully for so are the words of the act as any of the E. of Ar. above the E. of Devon c. saving alwayes to the said E. of Devon his lawfull suite to the King in his high court of Parliament for his right by which President we do plainly see that the dignitie of that Earled was annexa feode and an Earldome by tenure in regard of which the Earles thereof have had their place in Parliament from whence may be deduced that the like may be observed of Baronies by tenure as of this E. by tenure I would wish those that denye Baronies by tenure to consider the statute of West 2. cap 42. where the Fees of the E. Marshall and Lord Chamberlaine are expressed which are to be taken by them vpon the homage of euery Baron by tenure where he holdeth by a whole Barony or by lesse And lest any should thinke that this ordained by the Statute should concerne any other Marshall or Chamberlaine Fleta will put him out of doubt Fleta lib. 2. cap. 5. which applyeth them to this purpose But ere wee proceed further there a riseth a Quere If a Baron by tenure grant the hononr holden by Barony whether shall such grantee have the said dignitie or otherwise Argument ex parte neg THey which deny Baronies by tenure doe vse this as their principall reason first if there be any then the Grantee of them must hold by the same tenure as their Feoffer 10.2 ca 1. Qu. â—mp terrar but that was per Baroniam the refore And if such Grant bee made to persons ignoble they then should bee Noble which were absured Ratio 1. Secondly it is very evident that many antient Mannors which in antient time were holden per Baron are now in the tenures of meane Gentlemen who may not dare to challenge it Thirdly some antient Barons are which have sold those Castles c. and yet retaine their dignitie and have been and are summoned to Parliament notwithstanding Distinctions considerable For the better anser it shall bee convenient to exhibit certaine necessary distinctions and thence to draw infallible distinctions and then Authorities and Presidents First therefore if a Baron by tenure doe aliene the same Distinct 1 either he doth it without licence or else with licence obtained If without Licence The conclusion then the Conclusion is certaine that it is forfeited and to be seized to the King and the Dignity extinguished in the Crown from whence it was derived The reason is out of Bracton because Baronies are the strength of the Kingdome and if they should be aliened without consent of the Soveriagne base persons innobled without desert c. for where the thing so aliened is an Honour it differeth much from the ordinary tenure in Cap. whereof if the Tenant
Honour given in respect of wisdome and vertue of him on whom it was first bestowed is not onely a due reverence of him c. while he liveth but also a memorable reward thereof to his posteritie see Tully Cicero pro Sextio Therefore this kind of honour is patrimoniall If infamy of the ancestor be a blot to posteritie as for it the law doth corrupt the blood for the offence of the Ancestor Reason would that the honour due to the Ancestor should be likewise Honour to the posteritie for Contraries doe carrie their contrary in reason For determination whereof it is to be noted that diversitie of reason hath bred diversitie of opinions Some thinke it is not descendable vnlesse the Heire be likewise called by Writ and that then its an inheritance but this is repugnant to the nature of a descent which commonly carieth the patrimony descendable by act in law vpon the death of the ancestors to the heire or not at all Wherefore divers presidents prove that this doth descend and there needs not any word of heire in the Writ of Summons onely there is a speech of a speciall Writ sometimes directed to Sir Henry Bromflet Teste Rege apud West 24 Iun. 27. H 6. when he was called Lo. Vescy by H. 8. in 27. yeere of his raigne wherein there are these words inserted Volumus tamen vos haeredes vestros masculos de corpore vestro legitime exeuntes Barones de Vescye Wherfore it is ever true that the heire of such a Baron when he is called to the Parliament that his descent of honour is thereby established and approved by the gratious Iudgment of our Soveraigne so it is also true that if it shall stand with her highnesse pleasure that such heire shall not be summoned at all for none come to so high a Councell except he be called then that Nobilitie is much impaired and in manner extinguished in the censure of all men for that it had no other originall but by writ of Summons for the which in the Judgement of the supreme Soveraigne he is secluded And thus much as concerning the first Article or point touching the descent in generall of this kind of Baronie As for the second principall Point The second point whether the Barony by Writ may descend to the heire Male it shall not be amisse likewise to view the reasons of each part that by the conflict of Argument the truth may the better be discerned Those which doe maintaine the affirmative part doe reason after this manner Ratio 1. On the affirmative part In reason the sexe of the Heire female ought no more to barre her of the dignitie then the nonage of the Heire male ought to barre him although during his nonage hee be not able to doe the service But as the service of the one is forbearing for the time So the sexe of the other may at all times be supplyed by the maturitie and sufficiencie of her husband Ratio 2. Offices of Honour which doe much import the publike weale being possessed by inheritance to descend to the heire female if there bee no Neeces heire male as the office of high Constable of England which descended unto the Daughter of Humfrey de Bohun Earle of Hereford and Essex as afore declared the office of Lord Steward descended unto Blanch Daughter of Henry Earle of Lancaster in whose right Iohn of Gaunt her Husband enjoyed the same The like may be said of the Office of Earle Marshall which descended by an Heire female unto the house of Norfolke All which Offices are as unfit to be exercised by a woman as it is unfit for a woman to bee summoned to the Parliament as a Baron by Writ And yet notwithstanding the Law doth allow the Husband of such a woman to exercise the Office of the one And therefore by the same congruitie of reason such Husband is likewise by law inabled to performe the other Ratio 3. Many Noble houses in England doe support and lawfully beare the Dignitie of Baronage unto them descended by women Renatus Cap nus de dom cap. H. 7. 8. of the which many are by Writ Moreover in France the dignitie to be a Peere of the Realme as Opimus by many examples proveth descendeth to the heire female for want of heire male The dignitie of Nobilitie descendeth likewise in Spaine vnto the female for want of Heire male which custome not being onely currant in our neighbour countries but with vs in an evident proofe in the case in question Ratio 1. on the Negat The adverse part object that the writ of summons c. by which the Baron hath his originall is to call him to be one of the members of that right high assemby of Parliament there to determine life and member plea and right of land c. but these things are convenient onely for the qualitie of men not to the other sexe Ergo it not to descend to the heire female Ratio 2. If it be answered that such heire female be unfit in her owne person yet may she marry one fufficiently able to excecute the same this answer will neither satisfie nor salve the inconvenience for admit she were at age at the death of her Ancestors vnmarried being in her owne choice the great causes of the Realme should be subject to her will in the choise of her Husband which were inconvenient Ratio 3 Thirdly if such husband bee summoned the writ should make meantion thereof for otherwise it may be taken that he was chosen in his owne person and not in her right but such a Summons wherein the wife was mentioned was never seene and if by a generall writ without mentioning his wife hee is thereby made Baron in his owne right Obser 1 Having heard the arguments on both sides place doth now require that we should interpose opinion to compound this controversie This question is somewhat perplexed by different Presidents for some Presidents prove that Baronies by Writ have descended to Heires females whose Husbands have beene called to the Parliament whether in their owne or Wives right it matters not but sure it is that such Marriage gave occasion to the Summons and such Husbands and their posterities beare the dignitie of the wives Ancestors for by this controversie wee purpose not to question the right of such Noble houses Obser 2 Secondly wee must acknowledge that the Qu. is to summon to the Parliament whom she please and therefore whereas Rodulph Lord Cromell being a Baron by Writ died having two Coheires Barony of Cromwell Eliz. married to Sir Thomas Nevill and Ioan the younger to Sir Humfrey Bourchier the said Sir Humphrey was called to the Parliament as Lord Cromwell and not Sir Thomas Nevill who had married the eldest Sister Obser 3 That if a Baron by Writ die his Daughter Sister or other collaterall Heire female being his Heire and that no collaterall Heire
male can challenge the said Barony by any antient intayle or otherwise such claim by the Heire female hath heretofore beene allowed by the late right Honourable Commissioners in the office of the Early Marshall signified to the Queen as upon the Petition of the Sister and Heire of Gregory late Lord Dacres deceased may appeare In whose Pedegree it appeares that Thomas Lord Dacres Barony of Dacres had issue Thomas his eldest Sonne Ralph his second and Humphrey his third Thomas died in the life of his Father having issue Jone his Daughter and heire married to Sir Richard Fines after Tho. the Grandfather died wherevpon H. 6. by Patent 7. Novemb. Anno 37. declares the said Richard Fines to be Lo. Dacres but tempore E. 4. the said Humf. Dacres after the Attainder of the said Ralph himselfe by Parliament 1 E. 4 and after of the said Ralph and reversall of the said act in 12. E. 4. the said Humf. challenged the Baronie whereupon after it was controverted in Parliament they submitted themselves to the arbitrement of E. 4. for performance whereof they entered bond whereupon the King awarded vnder the privy Seale Award by King E. 4. 8. Aprill Anno 13. that the said Richard Fines should be reputed Lo. Dacres and that he and his Heires of the body of the said Richard should retaine the said place in Parliament which the said Tho. Lo. Dacres used And that the heires of the body of the said Tho. should enjoy the Mannor of Holbeck And that the said Humf. Dacres should be reputed named and called the Lo. Dacres of Gillesland And that hee c. should keepe the place in Parliament next beneath the said Richard Fines c. And that the heires of the said Tho. Dacres should have the Mannor of Fethington c. in Taile Nota. And so note that Gillestand the antient Barony remained to the heire male Obser 4 Observe also that if any Baron doe die without issue male and that by some speciall intaise c. by which an heire female enjoyeth the inheritance of the said Baron such heires females have beene called to the Parliament and not the husband or issue male of of such heire female and this appeareth by a notable controversie Tempore H. 7. between Sir Robert Willoughbie Lo. Brooke and Richard Nevill Lo. Latimer Barony of Latimer for the Barony of Latimer which in effect was The said Lo. Brooke challenged the said Barony as cosen and heire of Eliz. his great grandmother who was sister and heire to Iohn Nevill Lo. Latimer who died without issue And herevpon exhibited a Petition to H. 7. in Parliament whereunto Richard then Lo. Latimer was called to answer who agreed the descent viz. that the said Eliz. was married vnto Sir Tho. Willoughbie second Sonne to the Lo. Willoughbie but H. 6. because the said Iohn died without issue and that the next heire was female did therefore call to the Parliament Sir George Nevill second sonne of Ralph Earle of Westmerland to be Lo. Latimer which George was grandfather of the said Richard namely Father of Hen. father to the said Richard in debate of which cause our Question viz. whether a Barony by Writ may descend vnto heires females was debated and in the end adjudged with the said Rich. which Presidents doe afford vs 2. Iudgements in the point Object But here the former President of the Barony of Dacres may be objected to incounter this conclusion for whereas the heire female married to Sir Rich. Fines he was Baron of Dacres and Raynolph and Humf. the heires males placed below the said heire female by H. 6. and E. 4. Answ This Objection is easily answered for although H. 6. did declare him Lo. Dacres yet Rand. being heire male bare also the title of Lo. Dacres and by that name was attainted 1. E. 4 Wherefore the Reason why the heire male could not be regarded was the attainder Ratio and when this was reversed E. 4. to satisfie both competitors thus orderd it And thus much concerning the second point whether a Barony by writ may descend unto the heire female Concerning the third point admitting such descent to their female The third Article when no male can claime it for then doth this question take place whether her husband should enjoy that dignity in her right or no something hath beene said hereof in the last question But for satisfaction wee are to insist upon a resolution in the very point tempore H. 8. When Master Wimbish tooke upon him the stile of Lord Talbois jure uxoris having no issue by her The King assisted both by civill and temporall Lawyers gave sentence Resolution â—cmp H. 8. that no husband of a Baronesse should use her stile untill he had by her a child whereby he should be intitled by the curtesie to her inheritance Ratio 1 The speciall reasons that occasioned this sentence were 2. first the inconvenience that the husband should be a Peere of the Realme to day and to morrow by the death of his wife none and so honour subject to mutation without default of the partie Ratio 2 Secondly if he had issue if he should not beare the stile then should his Son after the death of his Mother dying in the life of his Father bee a Baron without land for it the Father hath by the curtesie but these questions take place where there is no Heire male at all And thus much concerning the nature qualitie and estate of the Baron by Writ and for resolution of the severall points and articles of the question proposed may suffice onely note the Case in 13. E. 3. where William de Clinton having married the Countesse of Huntington 13. E. 3. Briefe 259. they joyned in an Assise of Nusance for levying a Market c. Exception was taken because he did not name himselfe but it was over-ruled because having it Jure Vxoris by the Law he may not use the same title having no other title thereunto Now come we to Barons by Patent A Baron by Creation Barons by Patent is he or shee to whom the King hath conferred Baronies by his Letters Patents The usuall words are Considerantes itaque generis claritat vel grata obsequia quae A.B. Mil. nobis praestiterit c. Sciatis nos c. praefat A.B. adstatum gradum dignitat honor Baronis te ereximus praefecerimus creavimus eidemque A.B. nomen c. Baronis de T. imposuimus c. Ac per patentes damus c. habend praefat A.B. Haer. c. This kind of Dignitie shall bee of such continuance as shall be limited in the Habend sometimes for life sometimes pur auter vie as some hold opinion in 32. H. 6. 32. H. 6.296 It may bee in the speciall or in the generall And this kind of Patent was usuall before the Statute of 2. as it apeareth by the Patent Pat. 13 H. 3. in turre
priviledges which I find mentioned in the Lawes of this Realme purposely omitting such as either the Civill Common or the lawes of forraigne Countries doe afford referring them to a fit place in an intended Treatise of Nobilitie Priviledge First therefore it is a priviledge that the Peeres and Nobilitie of the Parliament doe enjoy namely to bee tried in the cases of Treason Felony Mag. Char. 29 10. E. 4.6.20 H. 6. cap. 9 and such like by their Peeres The antiquitie and originall of this kind of triall hath as some men doe thinke his ground from the Statute of Magna Charta cap. 29. beginning that Nullus liber homo in these words Nec super eum ibimus nec super eum mittimus nisi per legale judicium Parium suorum But I take it to be more antient Triall by Peeres Where allowable De consuet feudorum as brought into this Realme with the Conquerour being answerable to the Norman and French lawes and agreeable with the customes severall where almost all controversies arising betweene the Soveraigne and his Peeres are tried per judicium Parium suorum This Triall in antient time was very oft had in Parliament as may bee collected by the Statute of 15. E. 3. cap. 6. 15. E. 3. cap. 6. 1. H. 4.1 13 H. 8.11 But neverthelesse the same may as well be performed by Commission under the Lord Steward of Eng. the forme manner and Solemnitie wherof is expressed in the bookes of Law This priviledge hath some restraint as well in regard of the person The restraint of the praviledge as in the manner of proceedings As touching the person First the Archbishops of this Realme although they bee Lords of the Parliament if they bee impeached of such assent as aforesaid shall not be tried by the Peeres of this Realme but by a Jury of other substantiall persons upon their oathes the reason thereof as I can conceive as before remembred 27. H. 8. Br. Inquest 100 Triall 142. Fine 2. Stamf. 153 namely for as much as the Archbishops and Bishops cannot passe in the like cases upon the tryall of any other of the Peeres for that they are prohibited by the Ecclesiasticall lawes to bee judges of life and blood reason would that the other Peeres should not trie them for this triall should be mutuall forasmuch as it is performed upon their Honour without any oath taken Secondly as touching the person 38. H. 6. Br. Treason none but Lords of the Laytie being Lords of the Parliament 38. H 8. Case Leo. Grey en leâ— Con. shall have this kind of Triall And therefore hereout are excluded the eldest Sonne and heire apparent of a Duke in the life of his Father though he be called Earle beare that title Likewise the eldest Sonne and Heire apparent of an Earle though he be onely a Lord or Baron or beare such Title Those that are Barons and of the Nobility of Ireland 19 20. Eliz 36.6 if upon the like offence committed in Engl. if they chance to be apprehended in Engl. they shall not be tried herein by their Peeres For the Lords of the Parliament of England are not their Peeres but the Lords of the Parliament in Ireland And thus much concerning the Restraints of the said priviledges in respect of the person As touching the manner of Proceeding the Nobilitie of this Realme doe injoy the priviledge of triall by their Peeres in Course of Inditement onely 33. H 8. Br. Iurors 48. Triall 142. 10 E. 3.6 Stam 152. which is a kind of proceeding ex officio between the Qu. highnesse and them But in any case of Appeale of felony which is in the suite of the subject they shall not have the same but shall be tried by a Jury of 12. men upon their oathes And thus much concerning this priviledge at this place and upon this occasion may suffice Likewise this priviledge the Nobility of this Realme doe enjoy PrivilegiuÌ„ secundum 48. E. 3.30 48. Assis 6. 35 H. 6.46 22. H. 8.22 Reg. 1 79. 15 Eliz. 315. That they are not so to be inpannelled in any Jury or inquest to make triall or inquiry upon their corporall oathes between partie and partie And if they be impannelled contrary thereunto they may have a writ out of the Chancery repeating this priviledge directed to the Iustices before whom such noble personages are impannelled commanding them to dissmisse him or them that were so impannelled out of the said Pannell This priviledge hath restraint in two cases Restraint 1. first if he inquire concerning the King and CoÌ„mon-wealth in any necessary and important Decrees as businesse of this Realme then this priviledge is not allowed nor taketh place And therefore divers Barons of the Marches of Wales were impaÌ„nelled before the Bishop of Ely and other Commissioners of Oyer and Terminer to inquire of notable outrage committed by Gilbeâ—t de Clare Earle of Gloucester against Humfrey de Bohun Earle of Pereford and Essex and his suits in Wales in the 20. yeere of E. 1. where Iohn de Hastings Edmond de Mortimer Theobald de Verdune and other of the Barons of the Marchâ—s of Wales challenged their priviledges aforesaid and much insisted upon the same but it was afterwards answered by the Court as by the words of the appeareth 20 E. 1. Rel. 14. Camera Scar. Eo quod res ist a dominum Regem coronam dignitatem suos tangit deinde fuit ex parte domini Regis IohaÌ„nt Hastings omnibus alijs magnat supranominat quod pro statu jure regnt Pro conservatione dignitatis Coronae pacis suae opponant manum ad librum ad faciend c. quod eis ex parte Domini Regis injungentur c. The Barons aforesaid neverthelesse did persist in their Challenge and in the end both the said Earle betweene whom the said outrage had heene perpetrated submitted themselves to the Kings grace and made their Fines Secondly Restraint 2 this priviledge hath no place in case of necessitie where the truth can no otherwise come to light for the Writ is Regist 179. Quia Barones in Assissis jurat c. poni non consuêrunt ut dicunt nisi eorum Sacrament adeo sit necessarium quod sine illis verit as in qua non possit tibi praecepimus c. In many Cases the Protestation of honour shall satisfie in Noblemen Privileg 3. Bract. l. 5. cap. 9. fol. 352.8.3.1 H. 4.1.13 H. 8.1 3 H. 6.48 Cooke 6.53 as in triall of their Peeres they proceed upon their honour not upon their oath And if a Nobleman on an action of debt upon an Accompt in case where the Plaintife is to be examined upon oath upon the Statute of 5. H. 4. cap. 8. it shall suffice to examine his Attorney and not himselfe upon his oath Yet if a Nobleman will give evidence to a Jury reason would that he should bee sworne
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
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
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
there is an old Pamphlet wherein are these words Summon debeant omnes Comit Barones eorum pares viz qui habent terras reddit ad valentiam Commitat vel Baron integre Modus tenend parliament viz. 20. feod Milit. quolibet feod comput ad 12. librat quae faciunt librat vel ad valenc 13. feod Milit. 3. part Vnius feodi Milit. quolibet feod computand ad 20. librat quae faciunt in toto 400. mercas nulli minores laici sommon debeant ad Parliament ratione tenur nisi eorum praesentia alijs de causis fuerit necesse cap. du Laicis The revenew of a Baron Camden in Britann Others have esteemed it to be foureteene Knights Fees but that doth rest wholly in the pleasure of the King to judge Reason 2 To the second it is true that antient Baronies which were holden per Baroniam are now in the hands of men ignoble but the reason and meanes whereby such Mannors should thus come to the hands of meaner personages are twofold First because they have beene aliened by Licence to them Secondly which was usuall such Mannors have upon divers reasons come to the Crowne by way of Reversion Escheat or forfeiture and after they were conveyed to others reserving other services so that it is no wonder that they be now holden in Soccage c. Object 3 To the third Objection that antient Barons have aliened c. and yet retaine the degree I answer that it is true yet it proveth nothing against the former resolution therefore consider that they be either originally Barons by Writ or by tenure By Writ are of two kinds for either in such Writ whereby they or their Ancestors were at first Summoned they were named only by their owne names or else addition was given them from the principle place of their abode either for some distinction to sever them from some Honour of the same sirname or to give them such honourable title by addition of the place which was not holden per Baroniam therefore if they allene it away he may yet retaine the title because it was not holden per Baroniam but was given by this Writ of summons Thus much of Barons by Writ But if Baron by tenure aliene to one ignoble by licence and after the alienor be called by Writ he is not any more a Baron by tenure but by Writ and may retaine the name of a Baron Now of Barons by Writ A Baron by Writ is he to whom a Writ of summons is directed by the King to come to the Parliament to treat c. of the affaires of the Realme Barons by Writ the forme of which is Rex A Writ of Sūmons c. A. B. c. de salut quia de avisamento consilij nostri pro quibusdam arduis et vrgentibus nos statum defensionem regni nostri Angliae Ecclesiae Anglicanae concernent quoddam Parliament nostrum apud c. die c. teneri ordinavimus ac ibidem vobiscum ac cum caeteris Praelatis Magnatibus proceribus dicti regni nostri colloquium habere tractare vobis in fide legiantia vestra quibus nobis tenemini firmiter injungend mandamus quod consideratis dictorum negotiorum arduitate periculis imminentibus cessante quacunque excusatione dictis die loco personaliter intersitis nobiscum ac cum Praelatis Magnat ac Proceribus praedict superdict negotijs tractatur est urumque cōsiliū impensari hoc sicut nos honorem nostrum salvationem defensionem regni Eccle. praedict expeditio neque dictorum negotiorum deligitis nullatenus omittatis Which kind of Writ is as well directed to Barons by tenure and creation as others which are onely Barons by Writ which thereupon are to enjoy the dignitie because thereby they be associated in Counsell with the King c. Touching their antiquitie and their first institution I find little or no mention before H. 3. his time Antiquity of Barons by Writ and therefore I conceive that either the first or at least the first frequent use of Barons by Writ was 49. H. 3. in case of necessitie and vpon lamentable occasion of civill warre about the great Charter of which rebellion Simon then Earle of Leycester was ring-leader And therfore after divers fields fought at Northampton Rochester Lewes c. that of all was the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of that tragedie finished at Evesham where the said Earle was slaine and those Rebellious Barons overthrown whereupon presently issued the Parliament at Winchester and after at Westminster where the said Barons were to be attainted Wherfore forasmuch asmuch as the number of the Barons which had continued faithfull was small it was holden a necessary policie to supply the number c. vpon summons by Writ where were called all Abbots c. which held not by Barony as others of the most worthy of the laytie not holding by Barony Note further these Writs in forme of their directions are divers Divers manners of directions of summons some directed by speciall name of a Baron as Rex Baroni de Staffe de Greystock de Dudley others by the name of the partie with addition of the place as Rex Iobanni de Straunge de Knocking Chr. Edm. Gray de Ruthen Chr. Edw. Gray de Grooby c. Naming the cheife Castle c. of such Baron some others are named in this manner with the title of Lord as Iohanni Beauchamp Domino de Beauch Milit. Iohanni domino de Clinton Hen. Percey domino de Poynings To others without additions as William de Lourt Milit. Scals Devereux But the nature and qualitie of other Barons by Writ is aptly discovered by debate of a question concerning the continuance and descent of a Barony by Writ which I divide First whether a Barony by Writ may descend Admit it may then whether it will to the heires females there being no issue male Admit it doth then whether the Husband of such heire female may assume the dignitie of a Baron in jure uxoris Quest 1 Touching the first Question it shall be requisite for satisfaction of all men to alleadge such principall reasons as are wont to bee produced of both parts Object Argument ex parte negat Nobilitie and honour given in respect of wisedome c. which are gifts of God and personall cannot extend to others for privilegium personale personam sequitur extinguitur cum persona but such is the dignitie of such a Baron therefore c. Againe if the calling to the Parliament by Writ be the efficient instrument of Nobilitie in the Ancestor then the not calling the heire is a losse of that Nobilitie For admit some defects of nature in the heire as leprosie Ideocy Frenzie c. he is made uncapable and thereupon they conclude that it shall not descend Argument ex parte affirm Of the contrary part the affirmative is proved thus
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