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That this writ "mud be obeyed there is no doubt, for 

 every fiibjeft is by his allegiance obliged to affiH: the kini- 

 with failhful counfcl ; but what right the party fummoned 

 acq'iired thereby, is the queftion. The words arc not only 

 perfonal to him, but rellrifted likewife to a particular place 

 and ti;ne ; and, accordingly, in ancient tinnes we find many 

 perfons fummoned to one parliament, omitted in the next, 

 and fummoned perhaps to the third. Tiiert is not a word 

 therein that hints at givinp; the leafl right to an heir; and 

 what reafon can be affigned why a man by this v. rit fliould 

 gain an etlate of inheritance in a peerage, when i;i letters pa- 

 tent it is admitted that he ga ns only a;i cftate for life, with- 

 out the word heirs. That anciently there was no fuch no- 

 tion appears from the fummons to parliament, where fre- 

 quently we find the grandfather fimmoiied, the father pafTed 

 by, and the grandfon afterwards fummoned ; nay, in the 

 rolls there are inftances of ninety-eight perfons being fum- 

 moned a f;ng!e time only, and neither themfelves nor any of 

 their pofterity ever taken notice of afterwards. Or if we 

 were to allow that this writ created an inheritance, what 

 reafon can be given why it (hould be an eftate tail only, 

 and be confined to the heirs of the body, and not, as all 

 ether new inheritances created generally, go to the collateral 

 heirs ? 



But in order to difcover plainly what privileges perfons 

 fo called by writ had, or could obtain in thofe times, it will 

 be proper to diilinguifh them into three kinds of perfons : 

 firll then, they were either fome of the mhiores btirones by 

 tenure, and thefe, when called, had certainly all the privi- 

 le'jes of the greater, or elfe they were not barons at all, but 

 pb.in knights or gentlemen ; and in refpecl to thefe, it is 

 plain they had a right to deliberate, debate, and advife ; 

 but the better opinion is, they had no right to vote, but 

 were alTi'.lants and ndvifers only, as the judges are at prefcnt, 

 for it is abfurd to fuppofe that in thofe times, when the 

 commons were low and inconCderable, and the barons were 

 more powerful than the crown, that the latter fhould fuffer 

 their rtfolutions to be over-ruled at the pleafure of the king, 

 by calling in fuch numbers as we find he often did, which 

 tnuft have been the cale if all he had fummoned had votes. 

 But thefe two kinds of perfons gained by their writ or fitting 

 in confequence of it, originally, no farther right than to be 

 prefent at that time. However, by many of thefe perfons 

 and their heirs having been conilantly fummoned, efpecially 

 fince Henry the Seventh's reign, and the ancient praftice 

 of omitting any who had been very frequently fo going into 

 difufe, the dillinflion between the greater and lefler barons 

 was forgot, and that opinion prevailed which my lord Coke 

 had adopted, and which is now the law, that a man having 

 once fat in parliament in purfuance of the king's writ, ac- 

 quires thereby an eilate tail to him and the heirs of his 

 body. 



There was yet another kind of perfons, not peers, that 

 might be fummoned by writ : thefe v/ere the eldcll fons of 

 peers, to whom the father's barony muft defcend ; and in 

 fuch cafe, if the heir was called by the name of a barony 

 that was in his father, he was a baron to all intents and pur- 

 pofes. But it feems very plain that this was not a new cre- 

 ation of a barony, for in that cafe the fon fo called fhould have 

 been the loweft peer, whereas the practice is contrary ; and 

 we fiad no inilance of a baron's fon fitting on fuch a fum- 

 mons, unlefs the father had another barony by which he 

 might fit : if the father indeed had a higher title, that has 

 been reckoned fuiBcient to fupport his feat, though his only 

 barony was transferred- to the fon. This then being no new 

 creation, but a temporary transfer only of ?.n old peerage, it 

 fhould feem that this title, when onee merged in the greater 



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by the father's death, ftiould go according to the old limit; 

 alion ; but of late we find them conCdered as new creations. 

 On the death of the earl of Derby, fir Edward Stanley, his 

 fixth coufin, fuceeeded, and fat in parliament as baron 

 Strange by Henry the Seventh's creation : but an eldeil fon 

 of a former earl of Derby, having been called by writ while 

 his father was living, the duke of Athol, as his heir by the 

 female line, fat by the fame title of baron Strange of king 

 Charles the Firft's creation. 



Tiie defcent of tlefe two kinds of baronies is direfted 

 by the rules of the defcent of other inheritances at common 

 law ; and, confequently, females are capa'jle of fucceffion, 

 but with two exceptions : firil, that half-blood is no impe- 

 diment, and, confequently, the half-brother, excludes the 

 fifter ; fecondl}-, that the honour is not divifible ; and, 

 therefore, if there be two or more fillers heireffcs, the title is 

 in abeyance, that is, is fufpended until the king makes 

 choice of one of them and her heirs ; though by conftant 

 iifage the law feems to be verging fall to a conftant defcent 

 to the elded. 



The third method of creating peers is by letters patent^ 

 which is the moil ufual, and ellcemed the moil advantageous 

 v/ay ; becaufe a peerage is thereby created, though the new 

 nobleman has never taken his feat, which is not the cafe of 

 a barony by writ. As to the m.anner of thefe creations, 

 there has a notable difFerence intervened fince the acceflion 

 of Henry the Seventh, from what was the practice before 

 Richard the Second. In his eleventh year began this me- 

 thod of creating by patent, in favour of John de Beauchamp, 

 who, though fummoned, never fat there, but was attainted 

 by the next parliament, and afterwards executed. But the 

 attainder out of the cafe, his patent in law could never have 

 been deemed valid, becaufe Michael de la Pole was the lord 

 chancellor who affixed the feal to it, which had been before 

 taken from him by aft of parhament, and he declared in- 

 capable of ever having it again. This then was a fingle and 

 ineffeilual attempt of that weak prince to create a new peer 

 without the aflent of parliament, which was the ufual wav, 

 above thirty having been m.ade fo in that very reign. 



His fucceffors were too wife to follow his example ; for 

 eveiy barony newly created, till the union of the rofes, which 

 were about fourteen, was every one of them, as appears on 

 the face of the patents, by authority of parhament ; if we 

 except two or three : and even thefe, on a clofe examina- 

 tion, will appear not to be new baronies, but regiants of old- 

 feudal baronies by tenure, which undoubtedly were all in the 

 fole difpofition of the king. 



But Henry the Seventh having trodden down all oppofi- 

 tion, was fortunate enough to carry the point Richard had 

 vainly attempted ; and acquired for his fucceffors that pre- 

 rogative which they have fince enjoyed, of creating peers at 

 pleafure. The defcent of thefe titles created by patent is 

 diredled by the words of the creation ; if heirs are not men- 

 tioned, it is only an eftate for life; if to a man and heirs of 

 his body, females are not excluded : but the general way is, ta 

 the heirs male of the body lawfully begotten of the grantee, 

 perhaps with remainders over, and they defcend as other 

 eftates entailed. The cafe of the duchy of Somerfet was 

 fingular: Edward Seymour having three fons by two venters, 

 was created duke of Somerfet, and his heirs male of his fecond 

 marriage, remamder to his heirs male by his firft. This 

 title continued near two hundred years in the younger branch, 

 until upon its failure in Charles the fixth duke of Somerfet, 

 Gr Edward Se) mour, the heir by the prior marriage, fuc- 

 eeeded by virtue of the remainder. 



Baron' s ly Ancient Tenure were thofe who held by certain 

 territories of die king, who fiill referved the tenure in chief 



to 



