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Lord Taylboys, in right of his wife, or not. consulted the two chief justices, Dr. Gardiner bishop of Winchester, and Garter. First, the king demanded of the two chief justices, whether, by law, Mr. Wimbis ought to have the name of Lord Taylboys, in right of his wife, or not. They answered, that the common law dealeth little with the titles and customs of chivalry; but such questions had always been decided before the constables and marshals of England. Then the king moved the questions to Dr. Gardiner, who answered, that, by the law which he professed, dig. nity was denied both to women and to jews. I like not that law, quoth the king, that putteth christian women and jews in the same predicament. That law, said Dr. Gardiner, as I take it, is to be intended of dignity, whereunto public office is annexed : for, in France, women succeed as well to their ancestors in dignities, as in patrimonies : therefore the custom of every region is to rule thofe things. Then the king asked Garter, of the custom of England; who answered, that it had been always used so in England, as in France, that the husband of a baroness by birth should use the style of her barony, so long as she lived ; and, if he were tenant by the curtesy, then that he might use it for term of his life. The chief justice confeffed that custom, concerning the tenant by the curtesy, to be consonant to the common law : for the common law admitted him to all his wife's inheritances, of which fhe was seised during the coverture; and that might descend to their issue; and the dignity was parcel of the inheritance: which Dr. Gardiner confessed, adding, that the law granting the more, which was the
possession possession of the barony, could not be intended to deny the less, which was the dignity, a thing incident to it, As it standeth with law, said the king, that tenants by curtesy should have the dignity, so it standeth with reason. But I like not that a man should be this day a lord, and to-morrow none, without crime committed; and it must fo fall out in the husband of a baroness, if she die, having never had by him any children. The chief justice confirmed, that, in that point, the common law dissented not much from the king's reason : for the husband, that never had issue, was thought to have no interest in law in his wife's inheritance, more than in respect only that he was a husband; but, having a child, then he acquired a state in law, and was admitted to do homage, and not before.
The king for resolution said, that forasmuch as by their speeches he understood, that there was no force of reason or law to give the name to him that had no issue by his wife, that neither Mr. Wimbish, nor none other, from thenceforth, should use the style of his wife's dignity, but such as by curtesy of England had also right to her possessions for term of his life. The which opinions the persons afore named applauded, and so the sentence stood.
$111. Notwithstanding this recognition of the Coll. 23. doctrine of curtesy in dignities, the claim of Richard Bertie, in 1580, to the barony of Willoughby in right of his wife, Catharine, dutchess of Suffolk, as tenant by the courtesy, was rejected ; and Peregrine Bertie her son was admitted, in the life time of his father.
1 Inft. 29 6.
$ 12. Mr. Hargrave has obseryed, that two other claims of a like kind were made in a few years after, but were not determined ; and he could not learn that there had been any claims of dignities by curtesy, since Lord Coke's time : and, from the want of modern instances of such claims, as well as from some late creations, by which women were made peeresses, in order that the families of their husbands might have titles, and yet the husbands themselves remain com. moners, it seemed as if the prevailing notion was against curtesy in titles of honor. However, he had not yet discovered, whether this great question had ever formally received the judgment of the House of Lords. S 113.
It may also be observed, that there are some modern instances of persons, fitting in parliament, as heirs to their mothers' dignities, in the lifetime of their fathers; which would not have been allowed, if their fathers had an estate by the curtesy in those dignities. Thus, the present Duke of Northumberland was allowed to fit in parliament as Baron Percy, immediately after the death of his mother, though his father was living.
In the same manner, the present Earl of Leicester was allowed to take his feat in parliament, as baron de Ferrers, upon the death of his mother, though his father, Lord Townsend, was alive.
A Dignity cannot be aliened,
§ 114. Formerly, it was held that a dignity or title of honour, held by tenure, might be aliened by the person who was in possession of it; provided such alienation was made with the king's licence.
$ 115. Heroward
§ 115. Hereward De Marisco and Rametta his wife, Pat. An.
5 Ed. 3. p. 2. conveyed to Simon De Montfort Earl of Leicester, totam baroniam De Emeldon, in Com. Northumbr. quæ ad ipsam Ramettam jure hereditario descendit de hereditate qua fuit Johannis le Viscount patris sui, habend. & tenend. eidem com. et hæredibus fuis et eorum afignatis. And king Hen. 3. confirmed the grant anno 41, which with others was afterwards confirmed by king Ed
$ 116. Lord Coke fays, that the barony of Edmond 4 Inft. 126, de Eincourt, originally created by writ*, had long continued in his firname; and he having no issue male, desirous that his firname, arms, and barony, all which he held in fee-simple, might continue, by humble suit importuned king Edward 2. for that he conceived, quòd cognomen suum, et arma, post mortem fuam delerentur, et corditer affectabat ut post mortem ejus in memoriâ haberentur, ut de maneriis et armis fuis feoffaret quemcunque voluerit; and in the end obtained his suit, by the king's letters patent under the great seal; and afterwards, about 19 Edw. 2., he assigned according to the king's grant, his firname, arms, and poffefsions. For, it appears in the close rolls, that Edmond Baron of Eincourt, sat in parliament until and in 18 Edw. 2.; and that after his decease, his assignee sat in parliament in i Edw. 3. by the name of William de Eincourt : and in his heirs males the dignity, firname, and possessions continued till 21 Hen. 6.;
* It appears from Dugdale's Baron, vol. 1. p. 385., that this was a barony by tenure : for he does not mention
and then his heir male, together with the name and dignity, ceased.
4 Inft. 126.
§ 117. Lord Coke also says, he heard lord Burgley vouch a record in the reign of Edw. 4. that the Lord Hoe, having no issue male, by his deed and under his seal, granted his name, arms, and dignity over ; but not having the king's licence and warrant, the fame was in parliament adjudged to be void.
118. It has, however, been long established, that a dignity or title of honour is unalienable; being an hereditament inherent in the blood of the grantee, and his descendants ; and, in the case of the barony of
Grey of Ruthyn, in 1640, the House of Lords made Lords' Jour. the following resolution :-“ Upon somewhat which vol. 4. p.150.
was spoken of in the argument concerning a power “ of conveying away of honour, it was resolved upon “ the question, nenine contradicente, that no person, " that hath any honour in him, and a peer of thiş “ realm, may alien or transfer the honour to any other
Nor surrendered to the King.
$ 119. It was also formerly held, that a dignity or title of honour might be surrendered to the king; of which there are several instances.
$ 120. Sir Charles Brandon, being affianced to Elizabeth Viscountess Lifle, (who was then an infant of tender age), obtained letters patent creating him Viscount Lisle, to him and his heirs by the said Elizabeth. “ But, having shortly after happened on
(6 a fattet