$ 38. With respect to the various modes of creating Of Dignities dignities, or titles of honor, it has been fhewn that all by Tenure. dignities were originally annexed to the poffeflion of certain castles, lands, or hereditaments; and were therefore created by the grant and inveftiture of such castles, lands, or hereditaments. These acquired the names of earldoms or baronies by tenure; and fome of them are supposed to be still existing.

$ 39. It appears from the rolls of parliament, 11 and 12 Hen. 6., that John lord Maltravers claimed to have place in parliament as earl of Arundel; confidering that his ancestors earls of Arundel, as lords of the caftle, honor, and lordship of Arundel, had their place in parliament time out of mind, by reason of the faid castle, honor, and lordship, to which the faid name and title of an earl had been annexed; and fhewed, that he was then feifed of the faid castle, honor, and lordship. The duke of Norfolk, who was at that time a minor, prefented a petition; fhewing that the said castle and dignity belonged to him by inheritance. The counfel of lord Maltravers exhibited his title to the caftle of Arundel, under a fpecial intail: and, after mature deliberation, it was refolve₫ that he was entitled to fit in parliament as earl of Arundel, and in the ancient place of the earls of Arundel.

pre

$ 40. It alfo appears from the rolls of parliament, 27 Hen. 6., that, in confequence of a dispute between the earls of Arundel and Devon, respecting their cedence, the judges declared, that the earl of Arundel was feifed of the castle, honor, and lordship of Arundel, whereto

v.

Rot. Parl. 4.441. Dugd. Bar vol. 1. 322,

Rot. Parl. Dugd. Bar. vol. 5. p. 148.

vol. 1. p. 323,

Coll. 115.

Dugd. Bar.

vol. 1. 361.

whereto the name, estate, and dignity of earl of Arundel was, and time out of mind had been, united and annexed; and by that reafon he bore and had that name, and not by way of creation: whereupon it was enacted that the faid earl of Arundel fhould retain his pre-eminence by reafon of the faid caftle, honor, and lordship of Arundel, as worshipfully as any of his ancestors, earls of Arundel, above the faid earl of Devon and his heirs.

§ 41. Thomas de Beauchamp, earl of Warwick, by a fine levied in 18 Edw. 3., fettled the caftle and manor of Warwick, with divers other poffeffions, on himself for life, remainder to Guy his eldest fon, and the heirs male of his body; remainder to Thomas his fecond fon, and the heirs male of his body. Guy died without male iffue, leaving two daughters: afterwards Thomas the fettlor died; upon which Thomas his fecond fon entered into the caftle and manor or Warwick, and was earl of Warwick by reason of the aforefaid intail.

5

§ 42. Upon the death of Thomas lord Berkley in Hen. 5. it was found by inquifition, that the castle and manor of Berkley were entailed by the grandfather of the deceased, by a fine levied in 23 Edw. 3. on himself and the heirs male of his body; and, as the deceased left only a daughter, they defcended on James de Berkley, as coufin and next heir to the deceased. And Dugdale obferves, that this James, by virtue of the faid intail, enjoyed the castle and barony of Berkley, and was fummoned to parliament in 9 Hen. 5. and

to

to all the parliaments that were held in the time of Id. 363. Henry 6.

$ 43. It alfo appears from Dugdale's Baronage, that Vol. 1. p. 365. William lord Berkley, having no children, and taking occafion to except against his brother Maurice, for not marrying with a person of honorable parentage; by an indenture dated 10 December, 3 Hen. 7. covenanted to affure the castle and manor of Berkley, for want of iffue of his own body, unto king Henry 7. and the heirs male of his body; and for default of such issue, to his own right heirs; and fettled the fame accordingly in confideration of this, he obtained the office of earl marshal, and title of marquis, to himself and the heirs male of his body. William lord and marquis of Berkley dying without iffue, and the caftle and manor of Berkley having thereby vested in the crown, Maurice de Berkley, the brother and heir of William, never had or enjoyed the barony of Berkley; but, having recovered several other estates belonging to the family, he died in 22 Hen. 7. leaving iffue Maurice his eldest son, who was fummoned to parliament in 14 Hen. 8. But he had not the place of his ancestors, in regard that the caftle of Berkley and those lordships belonging thereto, which originally were the body of that ancient barony, then remained in the crown, by virtue of the intail; and therefore fat in parliament merely as a new baron, in the lowest place: of which, fays Dugdale, he had no joy, confidering the eminency of his ancestors, and the precedence which they ever had; though, in point of prudence, he was neceffitated to fubmit, being thereunto perfuaded by his

counfel.

counfel. Upon the death, however, of Edward 6. (who was the last heir male of Hen. 7.), the reverfion of Berkley castle, and all the estates given to that king, fell into the poffeffion of Henry de Berkley, as right heir of William lord and marquis Berkley; in confe. quence of which he was fummoned to parliament in 4 and 5 Phil. and Mary, and was feated in the place of the ancient barons of Berkley,

$ 44. The laft cafe, in which the right to a dignity by tenure was claimed, and allowed, was that of the barony of Abergavenny, in the year 1604, 2 James 1. Sir Thomas Fane, having married Mary the only daughter and heir of Henry lord Abergavenny, claimed the barony of Bergavenny; and fhewed that king Richard 2. caufed his writ of fummons to be directed to Sir William Beauchamp to attend his parliament at York; where he appeared and fat in the faid parlia ment as a baron. That the faid dignity defcended to Henry Nevill, the father of the faid Mary; who, therefore, as his heir general, became entitled to the dignity.

Edward Nevill, who was nephew and heir male to Henry the last lord Bergavenny, claimed the dignity under the will of George lord Bergavenny, made in 27 Hen. 8., by which he entailed the barony of Bergavenny, and all other his caftles, lordships, honors, &c. on himself and the heirs male of his body, re, mainder to Sir Edward Nevill and the heirs male of his body; and deduced his pedigree as heir male of the body of the faid Sir Edward Nevill. The cafe was argued in the houfe of lords for feven days. Ser

jeant

baro

jeant Doddridge, who was counsel for Edward Nevill, faid, that thofe, who denied the existence of baronies by tenure, objected, first, that the grantee of them must hold by the fame tenure, namely per baroniam ; and, therefore, if a grant of them were made to perfons ignoble, they would become noble, which would be abfurd. Secondly, it was evident that many manors, which in former times were holden per niam, were then in the poffeffion of mean perfons; who never claimed the title of barons. Thirdly, that there were some ancient barons, who had fold their castles, and yet retained their dignities. To thefe objections the Serjeant answered; first, that if a baron by tenure aliened without licence, he forfeited his estate, which was feized by the king; and fo the dignity was extinguished. If he aliened with licence, fuch alienation was made, either for the continuance of the dignity in his blood, by entailing it to fome branch of his family, or to a stranger: in the first case he mentioned feveral instances, where the dignity was allowed to pass, and be enjoyed by the alienee; particularly those of the earldoms of Warwick, Arundel, and Berkley, which have already been stated. And, in the fecond cafe, he mentioned several instances, where the alienee Coll. 116. had borne the name and dignity of a baron, in refpe&t

Barony of

Eincourt.

of fuch barony fo aliened; and where fuch alienee Vide infra. had no dignity before, he had in refpect of that, been fùmmoned to parliament, and enjoyed the dignity. To the second objection, he answered, that it was true, ancient baronies were in the hands of perfons ignoble; but the reasons were twofold: 1ft, because they had been aliened by licence to them; 2d, fuch manors

had