738 HER J 
or in chief. Their number at fir ft was not fo great, but 
that they might all attend together for the difpatch of 
bufinefs;. for at the time of the Conqueror there were 
not above feven hundred lay tenants in capite, who, 
with the bifhops, abbots, See. under the king, held, all 
the lands in the kingdom ; and under whom all others 
held. And even of the above tenants in capite, the 
referved fervice of a great part of them was but petit 
fe'rjeantry, as that of rendering to the king fome fmall 
implement of war, a bow, a fword, a lance, an arrow, 
or the like; confequently the number of thofe who 
held per comitatum, vel baroniam, could not be very large. 
Although the firft barons, or rather the firft baronial ler- 
vices, were inflituted by common confent ; there is ano r 
therconfiderationwhich isderived from the circumftance 
of the power that the kings haefover their crown lands 
or demefne. It was by grants only, that it was poflible 
to increafe the number of feodal baronies; as, at the 
conqueft, all the other lands were either portioned out 
to certain individuals attached to the fortune of the Nor¬ 
man, or by him confirmed to certain Saxon proprietors. 
It therefore obvioufly follows, that during the time the 
barons were feodal, it was not poflible for the crown 
to increafe the number of baronies; for all the land, 
except what was preferved in demefne, being granted 
out to be held by different fervices, the crown had no 
land to difpofe of, but only fuch as fhould efeheat by 
■the death of any of thofe grantees, without heirs, or 
forfeiture, See. When baronies efeheated into the king’s 
hands, the baronies were not diffolved, but fubfifted as 
baronies in manu regis, and as fuch were to be granted 
over. They always retained their nature and name, 
and were accounted for as fitch in the exchequer. But 
it fometimes happened that the king could increafe the 
number of baronies, in the event of a perfon poflefled 
of feveral dying without iffue, 8cc. 
In regard to thofe baronies of which the record of 
.writ of fummons is confidered fufficient evidence to 
eonftitute a lord of parliament, fir Edward Coke fays, 
“ If the king calls a layman to the upper houfe gene¬ 
rally by his writ, that he is thereby (provided he once fits 
in confequence of it) created, a baron and lord of parlia¬ 
ment to hint and his heirs for ever.” He fays in ano¬ 
ther place, that “ if a layman was fummoned, he was 
obliged to attend, but that a regular was not, unlefs 
lie held of the king per baroniam.” It is upon this au¬ 
thority that the creation of barons by writ is chiefly 
founded ; but with due and great deference to this le¬ 
gal difrum, we conceive that, in all cafes where the 
mode of creation has not been by patent, the crea¬ 
tion of a baron has always been by aaual ceremony of 
inveftiture. No ancient record can be produced, that 
any degree of honour did pafs without an aftual cere¬ 
mony; and therefore we feel warranted in an opinion, 
that the ancient bardns were ever created firft before 
they had their writs, and then being firft called by writ, 
they had as good a right, for them and their pofterity, 
to be fumrr^oned ever after, as the earls ha'd. Harl. MSS. 
n. 1342. The inveftiture ufed at the creation of fir 
John de Beauchampe of Holt, and of whom it is affirmed 
lie was the firft baron created by letters patent, was by 
the king in perfon, who put on the fcarlet robe and 
mantle, with a hood furred with, Sec. Sec. The fame 
form continued until the 13th of James I. A. D. 16x4, 
when fir James Hay was advanced to the dignity of a 
baron;. and on that occafion the ceremony was firft 
difpenfed with, and the letters patent delivered over, 
which was confidered fufficient; and as far as we are 
acquainted, has not been ufed fince. 
Henry III. caufed a. lift to be made of all the baro¬ 
nies in England; and, according to Camden’s Britannia, 
(the edition of 1571,) the number amounted to two 
hundred and fifty ; though according to the manufeript 
mentioned by him, the number ought to be only one 
hundred and fifty. If, therefore, we.confider that many 
L D R Y. 
of thefe baronies might efeheat into the hands of the king, 
or that many of them might be held by one nobleman, 
it is more than probable that the number of peers did 
not at any time exceed the prefent. It appears by the 
rolls five or fix years after, that when writs of fummons 
were fent to all the barons to attend the king againft the 
Welfh cum equis et armis, one hundred and thirty-three 
temporal and fifty fpiritual barons only were fummoned. 
During the period that the baronage fubfifted upon the 
feodal footing, every man who held per baroniam integrant 
had a right to be fummoned to the great Councils of 
the nation. See Parliament. But, as many of them 
were greatly inconvenienced by fuch attendance, they 
were afterwards difeontinued to be fummoned; and 
eventually only the barons upon the ancient foundation, 
and who afterwards were ftiled majores barones, and who 
did .(as Mr. Selden is of opinion) procure a law that 
preceded the charter of John, that only the majores ba¬ 
rones , and not the new barons, to whom the king had- 
granted over the efeheated baronies,fhou Id be fummoned. 
And this we apprehend was the original foundation of 
what was confidered “ a barony by writ.” Yet it is 
evident, that it was not the writ that by thefe laws was 
rnade elfential to a barony, but only that though they 
were barons, they fhould not have a right to appear 
among the greater barons, unlefs they were particularly 
fummoned. It was not their barony, but their right of 
voting in parliament, that depended upon the writ. 
This regulation of the peerage or barons in parliament 
was completed in the reign of Henry III. and was alfo 
obferved by feveral of his fucceffors; but Henry did not 
by this law propofe to eftablifh a prerogative of creating 
any perfon a baron of parliament by his writ, whether 
he was a" tenant per baroniam or ofherwife, but left the 
queftion, whether the party was a baron or not, on the 
footing he found it; contenting himfelf with introducing 
a regulation, that none of the barons, or tenants per ba¬ 
roniam, fhould have voice in parliament, but thofe only 
. to whom he fhould direct a writ of fummons; for fuch 
are the exprefs words of the manufeript cited by Cant- 
den. To form a judgment, as to the operation in law, 
that the writ of fummons anciently had, we mu ft con¬ 
fider to whom this writ could be directed; it could 
only be to fuch as were tenants in capite per baroniam ; 
or to fuch as were tenants in capite by knights fervice. 
See. or to fuah as were not the immediate tenants of the 
crown. The firft were obliged to attend if fummoned, 
and no doubt had a right to vote in.all queftions what¬ 
ever. As to the fecond, they alfo, by virtue of their 
'oath of homage, were obliged to attend when fummoned; - 
but it may be fairly doubted whether they had more 
than the deliberative voice of counfellors, or, as they 
have been confidered, alliftants to the houfe of lords. 
As to the third, or thofe who were not the immediate 
tenants of the crown, they were not obliged to obey the 
writ; but if they did, they probably did not a£t in any 
other capacity than as thofe laft 1 mentioned. 
Mr. Juftice'Doddridge, in his “ Treatife of Nobility 
conliders the writ of fummons, and which is the only 
juft criterion, as entirely perfonal to the man to whom 
it is directed ; that it is fo far from creating a barony to 
him and his heirs, that neither the words baron, barony, 
nor heirs, are to be found in it. And it is agreed, that 
the king cannot, by his Utters patent, s creatc any man a 
baron or peer, either for life, in tail, or in fee-fimple, 
without exprefs words of creation, in the patent, for 
that purpofe; and in all the patents that have pafied 
fince the 20th of Henry VIII. there is not only a fpecial 
claufe inferted for creating the patentees barons, Sec . 
but alfo for enabling them and their heirs, or as the li¬ 
mitations may be, to hold and polfefs a feat and place 
in parliament. 
That we may be able better to judge how far the di¬ 
rection of a writ of fummons to any man who. was not a 
tenant per baroniam, could create him a baron in parlja- 
mentj. 
