. 



. i'..\ 



tenure to ait in the House may be justified o 

 upon UM first institution of Parliament, a* 

 election made by the king was exercised pur 



from the very earliest period, and from the time of Edward 1. was 

 adopted as a part of th* constitutional system, u the only theory upon 

 which the existence of an hereditary nobility, such as that presented 

 by the House of Lords, can be explained. The right of barons by 

 tenure to ait in the House may be justified on the assumption that 



as now constituted, the 

 purely and solely on the 



ground of tenure "of eome uu-ticular castle or barony, whilst in other 

 MISS it was merely p""""y" and irrespective of tenure. 



We are now arrived at a time when the word baron acquired a sense 

 still more restricted than that which has hitherto belonged to it. 

 Later than the reign of Edward II. we seldom find the word baru* 

 used in the chronicles to designate the whole of that formidable body 

 who were next in dignity to the king himself, who formed his army 

 and his legislative assembly, and who forced the monarch to yield 

 paint* of liberty either to themselves as a class, or to the v. I...1,. com. 

 uiunity of Englishmen. The counts or earls, from this time, stand 

 out mure prominently as a distinct order. There were next introduced 

 into that assembly persons under the denomination of dukes, mar- 

 quesses, and viscount* ; to all of whom was given a precedence before 

 those barons who had not any dignity, strictly so called, annexed to 

 the service which they hod to render in Parliament. The baron became 

 the lowest denomination in the assembly of peers, possessing the same 

 right* of iluu-iuMt^g and voting with any other member of the house, 

 but MmiMnh^j destitute of those honorary titles and distinctions the 

 possession of which entitled others to step before him. The term also 

 nnesnd to be applied to those persons who, possessing a tenancy in 

 chief, were not yet summoned by the king to attend the Parliament ; 

 and the right or duty of attendance, from the time of King Kdward I., 

 has been founded, not, ss anciently, upon the tenure, but on the writ 

 which the king issued commanding their attendance. 



Out of this has arisen the expression baroni by writ. The king 

 issued his writ to certain persons to attend in Parliament, and the 

 production of that writ constituted their right to sit and vote there. 

 Conies of these write were taken, and are entered on what is called the 

 close roll at the Tower. The earliest are in the latter part of the 

 reign of King Henry III., in the forty-ninth of his reign, wJicn tic- 

 king was a prisoner in the hands of Simon de Montfort, who did what 

 he plcsieril in the king'* name. There are many such writs existing in 

 the copies taken of them, of the reign of Kdward I., and all subsequent 

 kings, down to the present time. They are addressed to the arch- 

 bishops and bishops, the prior of Saint John of Jerusalem, many 

 abbot* and priors, the earls and peers of the higher dignities as they 

 were introduced into the peerage, and to a number of pei.-..n- l.y their 

 names only; as William de Vescy, Henry de Cobham, Italph r'itzwilli.iin, 

 William la Zouch, and the like ; portions of the baronage whom the 

 king chose to call to his councils. Upon this the question arises, 

 whether when a person who was a boron by tenure received the king's 

 writ to repair to the Parliament, the receipt of the writ, and obedience 

 to it, created in him a dignity as a lord of Parliament which adhered 

 to him during his life, and was transmitted to his heir. Upon this 

 question the received opinion undoubtedly has been, that a heritable 

 dignity was created; that once a boron, by sitting under authority of 

 the king's writ, always a boron ; and that the barony would endm - . - 

 long as there were heirs of the body of the person to whom the king's 

 writ had issued. Upon this, the received opinion, there have been 

 many adjudications of claims to dignities, and yet the Lords' committee 

 on this subject express very strong doubts respecting the doctrine, and 

 contend that there are persons to whom the king's writ issued, and 

 who took their scot accordingly, to whose heirs similar writ* never 

 went forth, though there was no bar from nonage, fatuity, or attainder. 

 On the other hand, there is the strong fact, that wo do find, by the 

 writ* of summons, that they were addressed to the several member* of 

 many of the great families of Knglond, as they rose in successive 

 generations to be the beads of their houses : that, when it hapi-ciie.l 

 that a female heiress occurred, her issue was not unfrequeutiy sot in 

 the place in Parliament which her ancestors had occupied ; and that 

 when the new mode arose in the time of Richard II., of creating 

 borons by patent, in which a right was acknowledged in the posterity 

 of the person so created, the ancient barons who hod sat by virtue of 

 the king's writ to them and their ancestors did not apply for any 

 ratification of their dignity by patent, which they would have done 

 had they not conceived that it was a heritable dignity, as secure as 

 that granted by the king's patent. 



The doubt of the Lords committee, however, shows that this is one 

 of the many point* touching the baron on which there is room for 

 question. The practice, however, has been hitherto to admit that 

 l*oof of the issuing of the writ, and of obedience to it. l.y taking a 

 est in Parliament, or what U technically colled proof of sitting, entitles 

 the person who is heir of the body of a person so summoned to take 

 his seat in Parliament in the place which his ancestor occupied. 



In interpreting the phrase heir nf the 'w/y, the analogy of the descent 

 of corporeal hereditsment* in the feudal times is followed. That is, 

 if a person die wised of the dignity of lau-on, and leave a brother and 

 an only child, a daughter, the daughter shall inherit in pi i. . 

 the brother, though the dignity has been transmitted from some 

 person who u ancestor to them both. This fact clearly shows how 

 close a connection there is between the dignity and the lands, the 



of both being regulated by the same principle The 

 auence of this principle is, that through a portion of the baronage 

 there has been an introduction of new families into the peerage 

 without the sanction of the crown ; for the heire*v these 



baronies may now bestow herself in marriage at her pleasure ; and 

 though it i* not held that the husband can claim the benefit oi'.tl..- 

 tenancy by courtesy principle (though doubts have been 

 on this point), yet, the issue of the husband may undoubtedly, who 

 ever he may be, take his place in Parliament in the seat whi. 

 mother would have occupied had she been a male. PractinlU. ).,- 

 effect of this upon the composition of the House of Peers IIA- 

 . . ; \ - ; , : r i i i . 



The case of co-heiresses demands a distinct notice, because it will 

 lead to the explanation of a phrase which is often used by persons 

 who Deem not to have very distinct notions concerning what is implied 

 liy it. (.-Hid* may be divided, but o dignity u by its very nature 

 iiHlivi.-il.]c. Thus, if the representative of one of the ancient Un 

 Parliament die, leaving four daughters and no son, his lauds n 

 d:\idi-d in equal portions among them, and would be so divide.) 

 according to the principle of the feudal system. But the dignity 

 not be divided ; and as the principle of that system was against any 

 distinction among co-heiresses (reserving the occurrence in the course 

 of nature of persons dying leaving no son but several daughters. 

 the means of preventing the too great accumulation of lands in the 

 same person, and of breaking up from time to time the great tenancies), 

 it made no provision that cither the capul baronia-, or a dignity that 

 was indivisible, should descend to the eldest, or any daughter in 

 preference to her sisters. It therefore fell into abeyance. [Aum 

 It was not extinguished or destroyed, but it lay in a sort of xilcnt 

 partition among the sisters ; and in this dormant, but not dead 

 it lay among the posterity of the sisters. But if three of the four died 

 without leaving issue, or if after a few generations the issue of three 

 ' 'f them became utterly extinct, the barony would then revive, and 

 the surviving sister, if olive, or the next heir of her body, would 

 1 ii i on ie entitled to the dignity, and might, on proof of the necessary 

 facts, claim a writ of summons as if there had been no suspension. 

 Again, it is a part of the royal prerogative to determine an eibcn 

 that is, the king may select one of the daughters, and give to ! 

 place, state, and precedency which belonged to her father; ami tlien 

 the barony will descend to the several heirs in succession of !: 

 as entire as if there had never been any state of abeyance. But tln- 

 doee not interfere with the rights of the other co-heirs, who 

 whose posterity, remain in precisely the same position in which they 

 stood before the king determined the abeyance in favour of a particular 

 In .ptii-h. In tliis way the barony of Clifford, which has several times 

 fallen into abeyance, was, in our own time, given to a co-heir. Tin' 

 same was the case with the baronies of lioss and Homers, and i 

 it is in a great measure to the exercise of this prerogative of tin- 

 crown that we owe the presence in the House of Peers of barons 

 who take their seats at the head of the bench, and date their sittings 



iii the 14th and 13th centuries. 



The principle of the feudal law, which was favourable to the 

 of females, was fraught with ruin to noble houses. The great family 

 which springs from Hugh Capet, and a few other great families of tin- 

 Continent, have had the address to escape from the operation 

 principle by availing themselves of what is called the Salic law 

 to this is owing that they still hold the rank in which we now see them, 

 a thousand years after they first became illustrious. This must hove 

 been early perceived in Kngland, and it was probably this consideration 

 which led to the introduction of a class of barons, the desc< 

 whose dignity should not be regulated by the principle of the feudal 

 descent of hereditaments, but should be united inseparably with the 

 male line, if ]H-rson issuing from the stock of the original grantee. 

 Thin innovation is liclieved to have first taken place in the reign of 

 King Richard II., who in his eleventh year created .lolni I'.i anchanip 

 uf Holt a liaron. not merely by writ of summons to Parliament, Imt l>y 

 a patent, in which it was declared that he was advanced t 

 M vie. and dignity of a baron, and that the same state, style, and dignity 

 should descend to the male heirt of his body. Thus and at this time 

 the class of bannu by patent arose. The precedent thus set was, w itli 

 very few exceptions, followed in the subsequent reigns; and by far tin- 

 great majority of persons who now occupy the barons' l>cnch in I 

 meat are the mole representatives of persons on whom the dignity has 

 been conferred, accompanied by a potent, which directs th- 

 its descent to be in the male heirs for the time being of the on 

 grantee. Should it ever happen that they are exhausted, the dignity 

 becomes extinct. 



It has been reserved for our own times to settle one other \.i\ 

 important question with respect to the baronage, namely, whether tin- 

 grant of the dignity of baron for life only, entitles the holder to nit in 

 the House of Peers. This was determined in the negative, in the case 

 of Lord Wi'iisleydalc, in the session of 1865-56. It would l- equally 

 out of pi. ice h- ic eithel to . tatc the argument* in supixirt of, or in 

 opposition to. the \ i. w taken by th. < L.uds in this case, or to 



express the general opini* <n uf lawyer* on the subject. The result of 

 has been to call attention to the mode of acquiring, and to 

 Uie disabilities consequent on attuning, the peerage, and to raise much 

 discussion as to the expediency of having some recognised life-peerage*, 



