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 mixtum (que) 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 Ʋalvasores 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 [Page 38]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, Nullus Imperator seu Rex Roma­nus aut alius Imper. aut Rex, princeps Marchio, Dux, Comes aut Baro, &c. Other some do equal the Baron with the Earle,Baro. de Tan. Berg. refer. Hy­ard. in Leuxiris. affirming that Comiti Baro. prorsus equiparatur, &c. nulla (que) differen­tia nisi quod de Comitat. non sit invest­titus, &c. haud quicquam Comite cen­seatur inferior. And thus every one of them have written conformably to the customes of his particular Coun­trey.

But in this our Common-wealth of England (me thinkes) a Baron may be described in a generality answerable to every of the speciall kinds thereof in this maner.A Baron described. A Barony is a dignitie of Nobilitie and honour next vnder the Viscount, and above the Banaret and Vavasour with the title of Lordship holding the same place with vs as did the Patritij or Senatour under the [Page 39]Romanes. For the better vnderstand­ing whereof consider that Nobilitas generally signifieth matter of note, but specially it is applyed to expresse the reward of vertue in honourable mea­sures. Sc. generis claritatem of which there are two kinds Nobilitas major (viz) a Lord at least, & Nobilitas minor: but our english tongue expresseth the higher kinde. A Barony therefore is a dignity of nobility and honour. A dig­nitie of Nobilitie to exclude all other kinds of dignities, of honour, to ex­clude the lesser kind of Nobilitie wherein Gentlemen are compre­hended. Dignities of Nobilities are with vs of two kinds 1 some are dig­nities of Nobilitie, honour, parcell of the name of those that are innobled thereby, so that in publicke pro­ceedings of law it is parcell of their name, and may not more be omitted then their surname, such are the Nobilitie of Dukes, Earles, Vicounts. Others are Dignities onely,and 2 not parcell of the name, and so is the Ba­ron, and therefore if an Action bee brought by or against a Baron, who [Page 40]hath but a Barony onely, it is not re­quisite to make him Baron, which in all other Dignities being parcell of the name is otherwise most curiously observed,8. H. 6.10. 32. H. 6.30 Littlet. otherwise the Writ shall a­bate; Thus much of the Dignitie of a Baron, now of the Etimologie of the Name.

2. The Etimologie of the name Baron.

MAny Writs have laboured to yeeld the Etimologie of the name wherein following their owne fancy there hath beene bred much va­rietie of opinion, some men inducing the Greeke, importing Gravity, o­thers have sought a Latine Author to father it upon,Lib. 5. alledging Cicero ad At­ticum, where they find printed in some Copies these words, Apud Patronem & reliquos Barones te in maximam grā positum, where in other Copies in lieu thereof is read Barrones, Alciat. lib. 5. cap. 16. & 32. and so by others the same is acknowledged to be nothing but a corruption whereof [Page 41] Alciatus speaketh, &c. And therfore Rasius calleth the word Vanasors & vassallos, among the which they inten­ded Barons to be included,Sim. Shal­dus in lexi­co juris, Ptol. lib 2. cap. 6. Io Brekins de consue­tud. gallo­rum. Vocabula illota. Others would derive the word from a certaine war-like auncient people inhabiting some parts of Spaine, called Barones; or as Strabo and Ptolomy doe name them Barones, whose habitation was scituate vpon the West-side of the River Euberus, who guarded the persons of the Ro­mane Governours, as the Switzers are now vsed for the guarde of cer­taine Princes. Others derive the name from the manner of building of those houses that were given to Barons to be holden and were the head of their Baronies,Petr. Gre­gor. Syntax. lib. 6. c. 10. Quod erant ejusmodi domus undi (que) occlusae & substructis turribus & barris. Some thinke it to be an He­brew name signifying mercenary soul­diers, some would fetch it meerely from the Latine, Barones tanquam pu­res homines; But the most probable de­rivation is drawne from the Nor­therne peoples language, which in­vaded the Romane Empire, among [Page 42]whom a Baron signified a man of strength, as by the lawes of the Lom­bards, and as by the words yet re­maining without much variation in every one of the said three tongues, The word Varon and Baron, Tit. 8 in al. lib. tit. 9. Tit. 60.54. is vsed in stead of the Latine word Vir, and with this agreeth parcell of the aun­tient law of Canutus, Quod est summa census diversarum dignitatum si mi­noris Vironis, id est, Baronis duae librae: si majoris 4. &c. And therfore in the Lombards lawes, compiled by K. Ro­tharis the word Baron is thus vsed si quis ex Baronibus nostris ad nos vo­luerit venire, securus veniat & illaesus ad suos revertatur. And in those old lawes called, Repnaria si quis homi­nem regni tabularium tam Barone qui foeminam abstulerit, &c. Where the word doth signifie the same that the word Vir doth in Latine;Vir leges salvos: Bracton. lib. 2. c. 8. Therefore Bracton not vnfitly vseth it sunt & alij potentes sub rege qui dicuntur Ba­rones (hoc est) robur belli.

The Antiquitie of the dignitie of Barons and the sundry uses of the name.

IT seemeth that the dignitie was more auncient then the name for in the auncient constitution feudall of the Lombards, Lib 2 feud. titulo. 10. lib feud. 1.16. lib. 1. feud 1.7. there is not mention made of the name of Baron, howbeit the learned Interpreters understand that dignitie to be comprehended un­der Valvasores minores, or Valvasini, or Valvasores minimi, being another kind inferiour to Valv. majores, which were also called Capitanei (Barons.) The like Dignitie before the Conquest,Lamb. de regimine Saxonum, fol. 71. of whom is mention made in the Lawes of K. Ethelston, and of this there were two kinds Thani Regis & Thani alio­rum, Lamb. de regimine Saxon. fol. 71. and therefore in the Records of Doomesday in the deseription of Hert­fordsh. and therein of the Mannor of Brackins it is thus written;Record of Doomes-day Hert­fordshire. Hoc ma­ner' tenuel 2. taggas horum unus homo regis Edw. & alter Asgari steleri. This word Thani was diversly used by the antient Saxons; Sometimes they sig­nified [Page 44]thereby a Noble man, as by the Baron, sometimes a freeman, some­times a Magistrate, sometimes a ser­vant attendant upon a mans person, which they signified by the subscripti­on of the antient regall Charters by the word Minister, as Ego minister A. B. praesens auscultavi or interfui, or in inspexi of the Kings Thanis. I find thus much written in the same Re­cords, Thanis vel Miles Regius domi­nicus moriens pro relevamento dimitte­bat regi omnia arma sua, & equum unum cum Cella, & alterum sine cella. quod si essent ei canes vel accipitres pre­sentabunt regi ut si vellet acciperet. That the like was done also by the Thanis of others, as of Noblemen, Earles, and others, appeareth by an 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 [Page 45]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, & [Page 46]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 [Page 47]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 [Page 48]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 [Page 49]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 [Page 50]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. 10 is Capitane us [Page 51]appellatur qui proprie Valvasor. majores olim appellabantur, and of the question arising concerning these Baronies, the Monarch of the Realme or the Iudges, for that those Barons are immediate à Rege in feudali, as for others they be Barons ex similitudine, and therfore those which in the said lawes feudall are called Valvasores & Valvasini, for the words are these,Bract. lib. 1. cap. 8. Qui vero a Capitaneis antiquitus beneficium tenent Valvasores sunt, Qui autem a valvasorib s feudum quod a Capitaneis habebatur, similiter acceperint Valvasini, id est, valicas minores appellantur, The vse of this division within England, hath beene in no other manner then this, The Valv. majores may be vnder­stood to be our Barons and Peeres for in such manner the Interpreters of the law feudall have expressed the same. The second sort is the Valv. proprie of which degree Bracton also speaketh: sunt & alij qui dicuntur Valvasores magni dignitat. Valvasor melus dici poterit quia vas sortitum ad valetudi­nem. Howbeit the Civilians doe give another Etimologie in this man­ner, [Page 52] Valvasor. quasi ad valvas stantes, Shand Lexico in verb va [...]ve Pet. Greg. lib. 6. ca. 11.13 E. 3. Chal 115. id est, tanquam ad valvas tentorij dum sunt in bello excubantes ad quamlibet injuriam propulsandam; And of these valvasi, which are properly the Val­vasi indeed, mention is made 13. E. 3. For they may be impannelled in a Iury among the Kinghts where a Baron is party. The third sort called Valvasini inspecial name we have not in vse, Ne­verthelesse they are in nature the same that we call Lords and proprietors of Mannors, who also in respect of their Tenants were oftentimes in an­tient remembrances called Barons, but (abusive) and their Courts, Court-Barons, for of these Glanvill speaketh,Glan lib. 8. cap. 10. fol 64. Praeterea Record. habeant minores Cur. de his quae in eis facta sunt, &c. hence it is that these divers degrees have beene observed in forraigne Countries; By the French Constituti­on it is ordained, that Si quis aut Vice­com. aut Baro voluerit fieri comes, neces­sariū ducūt eum habere in sua ditione. 4. Baronias & tres castella. quarū quae­libet habeat saltem 10.Pet. Ger. in lib. 6. cap 9. Ex edito regis gall. 17. Angl. 1579 Nobiles sibi sub­dit os qui eum comitari possunt. Again, in [Page 53] tit. comit. nullus transeat nisi ha­beat 2. Baroneas, & 3. Castellaneas aut saltem, i. Baroniam & 6. Ca­stellaneas vnitas & nomine feudi Possessat & investitas a rege sub uno titulo. Jac Mer­cant. Fland. 16. cap 1 de Alosto. In Flanders which was an Earl­dome of regall constitution there was in auntient time an Earledome the Ea. whereof was intituled Comes Alestanus the Earle of Elston, who although his jurisdiction was parti­cular to himselfe from the Emperour, yet had he under him five Barons, the memory of which doth remaine; It hath beene heretofore a common re­ceived opinion, that every Earldome in times pasT had under it ten Barons, and every Baron seven Knights fees holden of him, and some are of opini­on, that those which had foureteene Knights fees were usually Barons, but of that more hereafter.

It resteth now for the more expla­nation of the use of the name Baron, that wee call to remembrance that which is before spoken, that the Cu­stome of our Countrey is, that if a Ba­ron be created an Earle; the eldest son [Page 54]of the said Earle, in the life of his l'a­ther, taketh upon him the title of the Barony, although he want the privi­ledges belonging to a Baron. Lastly, that is not to be omitted, that by the generall name of the Barons of the Realme, wee doe understand the whole body of the Nobility, and hence it is that the civill warre concerning the liberties granted in the great Charter, both in the time of King Iohn, and H. 3. prosecuted by the whole Nobilitie some few excepted, are cal­led the Barons warres; Thus much of their antiquitie, &c.

Having before shewed the severall uses of the word Baron, The true use of the name. we are now to adhere onely to the proper significati­on thereof, whereby there is denoted to us an Honourable personage next under the Vicount, and therefore wee are to set forth a division.

Barons honourable are of three kindes,3. kinds of Barons. by Tenure, by Writ, by Crea­tion or Patent, as for the Baron by pre­scription they are all one with the [Page 55]Barons by tenure, or those who anti­ently, and time out of mind have been called to the Parliament by Writ, and otherwise none.

Barons by tenure are those which doe any honour,Barons by tenure 2. kinds. &c. as the head of their Barony, per Baroniam, which is called Graund Serjeanty; These are of two sorts spirituall and temporall.

The Barons spirituall per Tenure, Spirituall. are and were those Ecclesiasticall persons, which held the principall part of their spirituall living per Baron. and such were also of two kinds; first, the Archbishops and Bishops of this Realme, who doe hold the principall part of their temporalties per Baron. Secondly, such Abbots, Priors, &c. which were extinguished by com­ming to the Crowne by the Statute.

Barons temporall are such as hold the chiefest part of their possessions,Temporal. as some honour, Castle, &c. per Bar. of the Crowne, all which honourable Barons of holding their Baronies of the Crown were in antient time in re­spect of these their tenures called by the Monarch of this Realme to assist him [Page 56]in counsell in Parliament.

But first it shall be requisite to prove every part of the division, namely of Barons by tenure, and first of spiri­tuall.

It is evident, that the Archbishops and Bishops of the Realme in the Saxon dayes, as well during the time that it was divided into divers king­domes, as also after the uniting of them into one Monarchy were called to the Parliament, not so much in re­spect of their tenure (for it was then by Frankalmoigne) but especially for that lawes are then most commen­dable, when they are grounded upon the law of God,Hist. In­guelf. Ab. de Croland. in subscrip. Chartre Bertofli re­gis, fol. 490 ibid. 492. and therefore our wise Ancestours called to their gene­rall Counsell or Wittenaymot or Court of wise men, as they called it those principall persons of their Clergie, which by their profession, &c. might advise them to frame their lives an­swerably, &c.

Neverthelesse, shortly after the Norman Conquest, the Conquerour altered tenures, being before Frank­alm. not without some complaint [Page 57]and griefe of the Clergie of which Matth. Paris thus writeth An. 1070. which prove that Bishops then held per Baroniam. Matt. Pa­ris, fol 6.

In the Constitution held at Clarin­don tempore, H. 2. Anno 1164. which constitutions certaine recapitulations of the prerogative of the King and his people then sought to be infringed by the Pope and his Clergie,Called the Assis. of Clarindō 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. Parliamēt. 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, Quous (que) 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 [Page 58]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 conse­craetionē 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 [Page 59]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 B [...]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. [...]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 [Page 60]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 North [...]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 māner, 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 [Page 61]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 vs (que) 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 purā 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, idem (que) Abbas alij (que) [Page 62]terras sive tenta de nobis per Baron. sive ali [...] modo non tenuit per quod ad Parlia­mentum venire [...] teneatur, nec aliquis predecessorum suorum ante 49 annum Domini proavi nostri part. forisfactu­ram dicti Simonis quo anno omnes Abbat. & Priores regni nostri ad par­liamentum, proavi nostri tunc tenturum & 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 [Page 63]sint; Ita semper quod dictus Abbas, &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, [Page 64]& non h [...]beret haere [...]em nisi filias & primogenit. filia marit. sit in vita patris Rex daret post natum filium quod re­maneret in haereditat patris, Bract lib. 5 Tract. 2. cap. 2. fol. 337. &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 [Page 65]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 [...]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 cōmitted 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 [Page 66]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 a [...] 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, [Page 67]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. 1 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. [...]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.

2 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.

3 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 [Page 69]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 make alienati­on without licence,50. E. 3 c. 10. he is onely to make a fine by the Statute. For authoritie. Glanvill saith,Mag. Char. cap 31. Glanv. l. 7. cap. 1. Notandum est quod nec Episcopus, nec Abbas quia corum Baro­niae sunt de Eleemosina Regis non pos­sunt de Dominicis suis aliquam partem dare ad remanenciam sine assensu, & consensu Domini Regis.

In 20. E. 3. certaine land being par­cell of the Baronie of Brenbur was aliened by W.de Bruce, 20. Ass. 1 8 20 E. 3. Ass. 122. & 224. the Baron thereof without licence, and in the argument of a Case concerning the same, Greene said that parcell of a Ba­ronie, &c. held in chiefe, cannot bee aliened without his Licence. Againe, 46. E. 3. it was found by Office, that W. Bishop of Chester had Leased for life to Io. Peston a Mannor,46. E. 3. Forf. 18. parcell of the Baronie without Licence, and re­solved that it was forfeited, but by mediation of the said Counsell, the Bishop submitted and made a fine, and severall Scire faec. issued against the perceptors of the profits to answer the King.Distinct. 2. Thus much of Alienation without Licence.

But of the other part, if a Baron by tenure doth aliene by Licence wee must distinguish, for it is either made for the continuance of his Barony, &c. or else for some other consideration.

That if any such Alienation be made for the continuance of the Barony in the name, then have the issue male with the Castle, &c. retained the Dig­nitie [Page 71]of a Baron, and hereof have the Heires generall, or next Heires fe­males beene excluded; And for proofe of this assertion many antient Presi­dents may be produced, seeing they have happened almost in every age for three hundred yeares space, of which some certaine doe ensue.

It appeareth by an Office found af­ter the death of William, de Ferarijs, Lord of Grooby 23, H. 6. that Marga­ret Lady of Grooby, gave to William Ferarijs her second sonne in taile the Mannor of Grooby, by vertue whereof hee and his Heires wee Barons of Grooby.

Robertus Walleron, Baron of Kel­pecke died, 1. E. 1. without heire of [Page 73]his body, and Robert Sonne of William, Brother of the said Robert, was his next Heire, yet he gave to Allen Play­nell the Lordship of Kelpecke, &c. in taile, by force whereof he was Baron, and summoned to the Parliament, and he died Anno 27. E. 1.

The King to all,Pat. Anno 10 E. 2. part 2. num. 13. &c. greeting; Know yee, that whereas lately our welbeloved Edm. Dreincourt conside­red, that both his sirname, and also his Armes after his death in the person of Isabel Dreincourt should bee quite blotted out of memory, most earnest­ly desired, &c. To whose request in consideration of service to our Father and our selfe by our Letters Patents do grant so much as in us lyeth to the said Edm. to dispose to whom hee pleaseth.

By vertue whereof he gave them to William sonne of John Dreincourt in taile,Esch. 22. E. 3. S [...]m. Parl. 7. E. 3. Claus. dors. part. 25. the said Edm. died ult. Ed 2. & tempore E. 3. William was summoned to the Parliament by vertue of that gift till his death, which was Anno 38. E. 3.

It appeareth by divers officers in the time of Ed. the third, that Iohn Handlowe in the right of Maude his wife, was seized of the Mannor of Hol­gate. Acton Burnell, &c. for life, the remainder to Nic. Handlowe (alias) Burnell, sonne of the said Maude and Iohn by a fine in Court, And that Iohn Lovell was next heire of the said Maude and her first borne sonne by her first Husband. And afterwards the said Nicholas was summoned among the Barons of this Realme to the Par­liament by reason of the fine aforesaid. And not the said Iohn Lovell that was next heire.

Thomas de Beauchampe, Esch Anno 43. Ed 3. the elder Earle of WarWicke, by a fine levyed 18. E. 3. intayled the Mannor and Castle of Warw. with divers other possessions to himselfe for terme of his life, the Remainder thereof to Guy his eldest sonne, and to the heires males of his body issuing, and for want of such Heires, the Remainder to come to Tho. Beauchampe brother to the aforesaid Guy, and to the Heires males of his body, &c. And after the said [Page 77] Guy died without Heires males of his body, leaving two Daughters and Heires living. Afterward the said Earle died, and the said Thom. the sonne entered into the Castle, and Mannor aforesaid with other the premisses and was E. of Warw. by rea­son of the intaile aforesaid, notwith­standing that Katherine Daughter of Guy next heire to the said Tho. the elder was living thirty yeeres after his death.

Richard Earle of Arundell by a fine levied 21. Ed. 3. intayled the Castle towne,Esch. Anno 9. H. 5. &c. of Arund. to him and the Heires males of the body of Elinor his wife, by vertue whereof Iohn Ma­travers was E. of Arun. after the death of Tho. the Earle, who died without issue male although his Sisters possessed divers lands where­of he died seized in fee.

Thomas the elder, Lord Barkeley, Esch. 5. H. 5. was seized in Fee of the Castle of Barkely and mannor, &c. And by a fine levied in 23. E. 3. he intayled the said Castle, &c. to himselfe for life, the Remainder to Maurice his sonne in [Page 78]taile with other Remainder as before, which said Maurice had issue Tho. Lord Barkley and Sir Iohn, which Iohn, died in the life of his Bro­ther, leaving James his Sonne and heire living, after the said Tho. died 5. H. 5. leaving Elizabeth his daugh­ter and heire married to Richard Earle of Warw. after whose death James the Nephew entered into the said Castle,Som Parli­ament. 9 H. 5. Esch. 5. H. 6. &c. and was summoned to the Parliament as Lord Barkley.

Tho. Lo. de la Ware died seized in taile by reason of a fine levied in the time of his Ancestors, of the Baronie de la Ware with divers other lands in other Counties and died 5. H. 6 without issue; And Reginald West, Knight of the halfe blood was next Heire,Som. Par­liament. An 7. H. 6 by reason of the intaile, And was summoned to the Parliament by the name of Regin. Lo. de la Ware Knight, although Iohn Griffeth was heire of the whole blood.

Iohn de Vere, Esch. 9. H 6 & 20. H. 6. E. of Oxford, seized in his demesne as of fee taile to him and to the Heires males of his body issuing of the Honour and County of [Page 79] Oxford, with divers other lands A^o. 18. H. 8. died without Heires of his body, and his three sisters (viz.) Elizab. Vrsula and Dorothy, were his next heire generall, but Iohn De Vere next heire male, was E. of Oxford, by reason of the said intaile, and none of the said three Heires obtained the dignitie.

William, Lord Paget, of Bewdsert, Esch. An­no 11. Eliz. was seized in fee of the Baronies of Longden and Haywood, and of, and in the Mannors of Bewdsert Longden, &c. and being so seized by fine, 1. Mar. intayled the Mannours and Baronies aforesaid, to him and the Heires males of his body issuing, and after anno 5. Eliz. died leaving Hen. his Son next heire male, which Hen. entred into the Baronies and lands aforesaid, by vertue of the aforesaid fine and died thereof seized 11. Eliz. leaving Elizabeth his onely Daugh­ter and heire, after whose death Tho. Paget, brother and heire male of the said Hen. entred into the Baronies and Mannors aforesaid, and was sum­moned to the Parliament by vertue of the aforesaid fine.

Robert le Ogle intayled the Man­nors of Bothall and Ogle, Esch. 6. Eliz. with divers other Mannors, &c. Com. Northumb. to himselfe for life, the Remainder to the Heires males of his body, and tooke to his first wife Dorothy Witherington, by whom he had issue Robert his eldest sonne, and Margery his daughter mar­ried Gregory Ogle of Chippington, and the said Rob. after the death of his first wife married Iohan Ratliffe, Brother of the half blood. by whom he had issue Cuthbert his second sonne and died, after whose death Robt. the Sonne was Lord Ogle, and from him to Cuthbert brother of the halfe blood, by vertue of the intaile, and not vnto Marg. nor Cuthbert her sonne of the whole blood.

Moreover thirdly,3. Con­clusion. if a Baron by tenure doth Aliene by Licence to a meere stranger upon consideration, or, &c. if such Alience be nobly de­scended in such cases, after such alie­nations, such Alience hath borne the name and dignitie of a Baron, in re­spect of such Barony so aliened; And if he had no Dignity before, hee in re­spect of that hath beene summoned to [Page 81]the Parliament, and enjoyed the Ba­rony hereof, are Presidents extant.

Maude, Esch. 22. Ric. 2. Countesse of Angiers and Northumb. Heire of the Barony of Cockermouth, after the death of Lucy her Brother, who dyed without issue intailed the honour, &c. of Cocker-mouth to her selfe, and to Henry Pier­cy Earle of Northumberland, then her Husband, and to the Heires males of their bodyes, upon condition that that should beare the Armes of the said Earle which are,Armes gi­ven. Or a Lyon rampant 6. quartered, with the Armes of Lucie (viz.) Gules 3. Lucies argent, bearing the said Armes, so often as they shall appeare, and afterwards, viz. 22. R. 2. died without issue.

Neverthelesse the said Earle, and after him the said Hen. Percy his Son were Barons of the said Honour by the said assurance, and Sir William Melton Knight, Couzen and next Heire of the said Countesse never had the said Armes.

Amongst the Parents in the Tower,Chart pa­tent. in 41. H 3. Anno 41. H. 3. it appearth that one Herward de Marisco and Rameta his [Page 82]wife did grant unto Simon de Mount­fort, then Earle of Leycester, the Ba­rony of Elinden in the County of Northampton, which descended to the said Rameta from John de Vescount, which Graunt seemeth to be with Li­cence, for that the said King doth by his Patent confirme the same, and fur­ther gave to the said Earle and his Heires divers priviledges there.

Also,Exchange of a Baro­ny. this antient Charter follow­ing concerning the exchange of a Ba­rony with the King, is worthy me­mory, which is, K. Iohn a^o. 7. granted unto Robert de Newbergh Fordington, for the honour of Burstocke in ex­change, and granted that it should be the head, and the chiefe of the Baron­ship, as Burstock was aforetime, and that all Knights and others should at­tend upon him, and his lands in For­dington as chiefe of his Baronship, as they aforetime were attendant upon Robert Burstock.

By these Presidents appeareth, that Barony by tenure is annexa feodo. So that the former questions are fully satisfied and answered (viz.)

• 1. That by alienation without Li­cence, the Barony is ferfeited.
• 2. The heires Males have enjoyed them, and the Females excluded.
• 3. That the Alience of such a Ba­rony (nobly descended) is Baron.

But if such alienation with Li­cence be made to any person ignoble,Nora. 1. though the burden of the tenure doth remaine on him for the K. best advan­tage, yet he may not take upon him the Dignitie without the Kings spe­ciall favour upon his merit.

Upon consideration therefore of these assertions all the former objecti­ons are answered, and as touching the first, it is answered by that which is last specified, that an ignoble Alience may challenge nothing as a Baron by tenure.

In 11. H. 4.2.6. in a Case concern­ing a Distresse, it is agreed that a Ba­ron,11. H. 4.2.6. &c. are not contributary for such lands parcell of their Barony, but for other lands they are; but there is question made, if one which is not Ba­ron purchase a Barony, whether hee shall be discharged, which was not [Page 84]worthy the questioning, if such a pur­chaser challenge by reason of his pur­chase place in Parliament; For as land holden by villein service, doth not make the owner a villein which doth purchase the same, although by tenure he must doe villein service; So land holden by Baron service doth not make the ignoble noble, though the charge of such tenure lay upon him. Yet if the King will give to any man ignoble in recompence of service any Castle, &c. to be holden per Baroniam, hee is forthwith noble, because hee draweth this Nobilitie from the foun­taine without other Creation.

But a question by the way what yeerely revenue is sufficient for a Baron.Qu.

Diversitie of times hath brought forth divers determinations as touch­ing the French constitution,R. there is an old Pamphlet wherein are these words; Summon. debeant omnes 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. [Page 85]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; 1 First,because they have beene aliened by Licence to them. 2 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 [Page 87]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 urum (que) cōsiliū impensari, & hoc sicut nos & honorem nostrum & salvationem & defensionem regni & Eccle. praedict. expeditio neque [Page 88]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 [Page 89]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 [Page 90]by debate of a question concerning the continuance and descent of a Ba­rony by Writ, which I divide.

1 First, whether a Barony by Writ may descend.

2 Admit it may then, whether it will to the heires females, there being no issue male.

3 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.

The ſe∣cond. 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 [Page 91]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, 1 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.

2 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, [Page 92]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 [Page 93]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 [Page 94]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 [Page 95]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, [Page 96]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; [Page 97]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 [Page 98]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 [Page 99]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 [Page 100]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 [...]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 [Page 103]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 ita (que) 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 eidem (que) 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, 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 [Page 105]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 [Page 106]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 [Page 107]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 [Page 108]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 [Page 109]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 [Page 110]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 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 [Page 111]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 [Page 112]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.

1 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.

2 Secondly, as touching the person,38. H. 6. Br. Treason. none but Lords of the Laytie being [Page 113]Lords of the Parliament,38. H 8. Case Leo. Grey en le [...] 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.

3 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, [Page 114]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,Privilegiū 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 Cōmon-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 im­pānelled [Page 115]before the Bishop of Ely, and other Commissioners of Oyer and Terminer, to inquire of notable outrage committed by Gilbe [...]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 March [...]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 Iohānt 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, [Page 116]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.

4 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 [Page 118]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. [...] Chal. 115. [...] 22. H 8.22 Dyer. 107.3. & 4. E­lize 24 9. & 10. Eliz. 26. there ought to be one Knight at the least, to be 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 Sh [...]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 [Page 120]case of common persons.

In all cases where he is to be amer­ced his amerciament is not lesse then a hundred shil [...]ings by the Statute o [...] Magna Charta 14. and it was to be affirmed by hi [...] Peeres.Privil. 10.16 E. 3 [...]m. 14 38 E. 3 31 1. H. 6.7.9 H. 6 2 32. H. 6 30 19. E. 3.9.21. E 4 77 Fleta. lib. 2. But for that it were troublesome to assemble Ba­rons for so small matter, such amer­ciaments in time past have 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 Co [...]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 [Page 121]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, Court­leete. 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 [Page 122]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,Sta [...]. 5 E­liz cap. 1. so shall Citizens and Barons of Cinqueports, But there is a Proviso in that Stat. that foras­much as the Qu. is otherwise suffici­ently assured of the faith, &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 [Page 123] 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 sh [...]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, [Page 124] 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 [Page 125]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 [Page 127]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 [Page 128]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 [Page 129]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 [Page 130]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 f [...]hers life, he should not be in ward, neither for the lands descended, nor marriage, Coke 74. [Page 131] 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 [Page 132]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.

1 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.

2 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.

3 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 sūmoned to the Parli­ament dying without issue male may [Page 134]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 [Page 135] 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, [Page 136]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 [Page 137]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 [Page 138]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 [Page 142]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.