Lord Taylboys, in right of his wife, or not. The king confulted the two chief juftices, Dr. Gardiner bishop of Winchester, and Garter. First, the king demanded of the two chief justices, whether, by law, Mr. Wimbifb ought to have the name of Lord Taylboys, in right of his wife, or not. They anfwered, that the common law dealeth little with the titles and customs of chivalry; but fuch questions had always been decided before the constables and marshals of England. Then the king moved the queftions to Dr. Gardiner, who answered, that, by the law which he profeffed, dignity was denied both to women and to jews. I like not that law, quoth the king, that putteth christian women and jews in the fame 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 fucceed 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 anfwered, that it had been always ufed fo in England, as in France, that the husband of a baronefs by birth fhould use the style of her barony, fo long as fhe lived; and, if he were tenant by the curtefy, then that he might use it for term of his life. The chief juftice confeffed that custom, concerning the tenant by the curtefy, to be confonant to the common law: for the common law admitted him to all his wife's inheritances, of which she was seised during the coverture; and that might defcend to their iffue; and the dignity was parcel of the inheritance: which Dr. Gardiner confeffed, adding, that the law granting the more, which was the poffeffion

poffeffion 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, faid the king, that tenants by curtefy fhould have the dignity, so it standeth with reafon. But I like not that a man fhould be this day a lord, and to-morrow none, without crime committed; and it must fo fall out in the husband of a baronefs, if she die, having never had by him any children. The chief justice confirmed, that, in that point, the common law diffented not much from the king's rea fon: for the husband, that never had iffue, was thought to have no intereft in law in his wife's inheritance, more than in respect only that he was a husband; but, hav. ing a child, then he acquired a state in law, and was admitted to do homage, and not before.

The king for resolution said, that forafmuch as by their speeches he understood, that there was no force of reafon or law to give the name to him that had no iffue by his wife, that neither Mr. Wimbish, nor none other, from thenceforth, fhould use the ftyle of his wife's dignity, but fuch as by curtesy of England had alfo right to her poffeffions for term of his life. The which opinions the perfons afore named applauded, and fo the fentence stood.

§ 111. Notwithstanding this recognition of the Coll. 23. doctrine of curtefy in dignities, the claim of Richard Bertie, in 1580, to the barony of Willoughby in right of his wife, Catharine, dutchefs of Suffolk, as tenant by the courtesy, was rejected; and Peregrine Bertie her son was admitted, in the life time of his father.

§ 112. Mr. Hargrave has obferved, 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 curtefy, fince Lord Coke's time: and, from the want of modern instances of fuch claims, as well as from fome late creations, by which women were made peereffes, in order that the families of their husbands might have titles, and yet the husbands themselves remain commoners, 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.

§ 113. It may also be obferved, that there are fome modern inftances of perfons, 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 fame manner, the prefent 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.

S 114. Formerly, it was held that a dignity or title of honour, held by tenure, might be aliened by the person who was in poffeffion of it; provided fuch alienation was made with the king's licence.

$ 115. Hereward

§ 115. Hereward De Marifco and Rametta his wife, conveyed to Simon De Montfort Earl of Leicester, totam baroniam De Emeldon, in Com. Northumbr. quæ ad ipfam Ramettam jure hereditario defcendit de hereditate quæ fuit Johannis le Vifcount patris fui, habend. & tenend. eidem com. et hæredibus fuis et eorum affignatis. And king Hen. 3. confirmed the grant anno 41, which with others was afterwards confirmed by king Edward

3.

§ 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 iffue male, defirous that his firname, arms, and barony, all which he held in fee-fimple, might continue, by humble fuit importuned king Edward 2. for that he conceived, quòd cognomen fuum, et arma, poft mortem fuam delerentur, et corditer affectabat ut poft mortem ejus in memoriâ haberentur, ut de maneriis et armis fuis feoffaret quemcunque voluerit; and in the end obtained his fuit, by the king's letters patent under the great feal; and afterwards, about 19 Edw. 2., he affigned according to the king's grant, his firname, arms, and poffeffions. For, it appears in the close rolls, that Edmond Baron of Eincourt, fat in parliament until and in 18 Edw. 2.; and that after his decease, his affignee fat in parliament in 1 Edw. 3. by the name of William de Eincourt: and in his heirs males the dignity, firname, and poffeffions 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 any writ.

4 Inft. 126,

Lords' Jour.

and then his heir male, together with the name and dignity, ceafed.

§ 117. Lord Coke alfo fays, he heard lord Burgley vouch a record in the reign of Edw. 4. that the Lord Hoe, having no iffue male, by his deed and under his feal, 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 cafe of the barony of Grey of Ruthyn, in 1640, the Houfe of Lords made the following refolution :-" Upon fomewhat which vol. 4. p. 150. « was spoken of in the argument concerning a power "of conveying away of honour, it was refolved upon "the question, nemine contradicente, that no perfon, "that hath any honour in him, and a peer of this "realm, may alien or transfer the honour to any other "perfon."

Nor furren

dered to the King.

Coll. 10.

66

§ 119. It was also formerly held, that a dignity or title of honour might be furrendered to the king; of which there are feveral instances.

§ 120. Sir Charles Brandon, being affianced to Elizabeth Viscountefs Lifle, (who was then an infant of tender age), obtained letters patent creating him Viscount Lifle, to him and his heirs by the faid Elizabeth. "But, having fhortly after happened on "a fatter