HERil 
ment; either for life, or to him and his heirs, we lhall 
ftate a few particulars that appear upon the confidera- 
tion of the writs of fummons that are extant. If it be 
true, that every man (though he be not a baron by te¬ 
nure or patent) ought upon the receipt of his writ to 
enjoy the dignity and honour of a baron, why have not 
the many abbots and priors fummoned in 49 Henry lil. 
been reckoned among the fpiritual barons ? No'r is it a 
fufficient reafon that their baronies were, by their own 
confent, defeated and taken away. In the Cafe of vif- 
count Purbeck, which title was extinCt in 1657, on the 
death of Robert, the foil of John, the elder brother of 
George Villiers duke of Buckingham, and who had been 
by James I. created vifcount Purbeck, the lioufe of lords 
relolved : 
“ Forafmuch as upon debate of the petitioner’s cafe, 
who claims the title of Purbeck, a queftion inlaw did 
arife, whether a fine-levied to the king by a peer of the 
realm of his title of honour can bar and extinguilh that 
title :—The lords fpiritual and temporal in parliament 
affembled, upon very long debate, and having heard 
his majefty’s attorney-general, are unanimoufly of opi¬ 
nion, and do refolve and adjudge, that no fine now le¬ 
vied, nor at any time hereafter to be levied to the king, 
can bar fuch title of honour, or the right of any perfon 
claiming fuch title under him that levied or lhall levy 
fuch fine.” Hence it follows, that though a peerage 
may be forfeited, it cannot be either furrendered, de¬ 
feated, or extinguilhed, except by aCt of parliament. 
And by my lord Coke, Every temporal lord who fits in 
the houfe, ought ex debitojufiitia to have a writ of fum¬ 
mons directed to him every parliament; they therefore 
cannot by law be left out in the lift of fummons. The 
lords have at all times refented any omiftion of that 
nature. 
In A. D. 1255, the barons refufed to grant any aid, 
or tranfaCt any bufinefs, becaufe certain barons were 
not fummoned. And the commons, when they thought 
the houfe of lords too thinly attended, though the 
peers themfelves acquiefced, have yet refufed to pro¬ 
ceed, until the writs of.fummons, which ought of right 
to have been fent to the lords, were actually iffued. 
We particularize an inftance in the 20th of Richard II. 
when the commons petitioned that ail the abfent bilhops 
find lords might be fent for to parliament. And on ano¬ 
ther and later occafion, the lords adjourned themfelves 
from day to day, with a refolution-not to enter upon 
bufinefs until they had fatisfaCtion given to their houfe 
in regard to the earls of Arundel and Briftol. If it is 
infifted that the writ of fummons operated as a creation 
of peerage in fee, and that every peer fjas a right to 
demand a writ of fummons, and to every parliament, it 
follows, that every man to whom fuch a writ has ever 
been directed, was thereby created a baron, to him and 
his heirs; jand confequently entitled to demand, as a 
matter of right, his writ of fummons. But let us exa¬ 
mine an ancient Jilt of names of thofe who have been 
fummoned to parliament, and we lhall find, that from 
the year 1264, until the year 1482, 23d Edw. IV. (from 
which latter period the writs of fummons have been 
more regularly iffued,) ninety-eight laymen have been 
fummoned to parliament one Angle time, by the fame 
writs as the earls and other undoubted barons. Yet, in no 
fubfequent parliament, have either they, or their pofte- 
rity, been fummoned. If a peerage in fee had been 
gained by being once fummoned, how is it that the 
lords'Ihould have permitted the omiftion to be palled 
over in filence ? or is it conceivable that fo many barons 
fhould not; have preferred their claims? It hence fol¬ 
lows, that a tenure per baroniam is diftinCt from the writ. 
ACtual proof of a tenure per baroniam is not neceffary to 
conftitute a lord of parliament; but the record of the 
writ of fummons to his anceftor is admitted as a fuffi¬ 
cient evidence of the tenure. Blackjlone. 
It is very important to draw a material diftjnCtion 
. L D ft Y. 769 
between the perfons to whom the writ of fummons fr- 
now directed, whether to the elder foils of peers, fum¬ 
moned by the title of fome barony actually in the father, 
or directed to perfons who have no right of fucceftion 
to any peerage whatfoeveiv As to the laft of thefe per¬ 
fons, if it operates at all,- it will operate by way of 
creation for life. It is near one hundred and fifty years 
fince any perfon was fo fummoned; and in regard to. 
tlrofe who are confidered as barons by writ of fummons,it 
muft be obferved, that all the ancient writs of fummons 
uniformly run ( ‘in fide,' et homagio, quibus nobis tenemini.” 
Lord Coke, and fir Henry Spelman, both affert, that 
perfons fummoned to parliament as peers,, have been, 
barons only by tenure: and if fo, it follows, that there 
could not po.flibly be any barons by writ in the fenfe 
we now ufe the term, before the time of 25 Edw. III. 
fince all the writs antecedent to that period, have that 
phrafe regularly inferted in them. 
In regard to the writ of fummons when diredted to 
the eldeft or other fon of a peer:—Every peer has- 
precedence in the houfe of lords according to the fe- 
niority of his creation. If the writ operated by way 
of creation, then the eldeft fon of a peer, as well as' 
any other commoner, when fummoned to parliament, 
would be the puifne baron, and give place to all 
others; but the contrary is the ufage of parliament.- 
If the eldeft fon of a peer is fummoned by writ, it is 
generally by the ftyle of fome barony that is in the 
father, and his place in the houfe is regulated accord¬ 
ing to the antiquity of that barony. In the 2d of 
Charles II. Henry Howard lord Mowbray was placed as- 
the firft baron of England. In the 6th of Henry VIII. 
in the cafe of the earl of Surrey, who claimed prece¬ 
dence in parliament above all the earls, as fon to the- 
duke of Norfolk, it was refolved, that he Ihould be 
ranked only according to the time of his being created; 
earl of Surrey. 
We lhall now proceed to inquire whether the writ of 
fummons has the effect'of creating a new barony by the 
fame title or not. This queftion has been agitated be¬ 
fore the lords; and wherein their lordfliips, after great 
and full confideration, decided, that the writ of fum¬ 
mons did not enlarge the barony. The writ of fummons 
muft therefore be confidered more in the nature of, but not. 
as, an inftrument of conveyance, or method of transferring 
a barony or honour from one perfon to another. When,, 
therefore, the eldeft fon of a nobleman is fummoned 
to the houfe of peers by the title of his father’s barony, 
there is no new barony created; but by the operation 
of the writ according to the cuftom of parliament, the 
barony of the father is transferred to the fon. An ob¬ 
jection has been, ftarted, that the writ cannot operate 
by way of conveyance of the father’s barony to the fon,. 
becaufe if it did, the father could have no barony left 
whereby lie could be entitled to fit in the houfe; and. 
that, therefore, the writ muft operate by way of crea¬ 
tion. In aniwer, there is a material difti notion between; 
the writ being directed to the eldeft fon of an earl, See.. 
and to the eldeft fon of a baron: for, although an earl> 
be poflefled of only one barony, yet his eldeft Ion may 
be fummoned by that title, and the father Hill retain in. 
himfelf all the rights of a barony ; for, notwithftanding 
the fingle barony be transferred to the fon, yet the 
earldom , which implies a barony,, ftill remains with the 
father; but a baron muft regularly have feveral baro¬ 
nies centering in him, to enable his eldeft fon to be 
called by writ; becaufe that in that cafe, although one 
of them be transferred to the fon, yet a barony ftill 
actually remains with the father. 
The practice of fummoning the eldeft fons of peers,, 
is not of very long handing.' The firft inftance is in the 
22d of Edward IV. A. D. 1481, in favour of Thomas 
Arundel, eldeft fon of Richard Eitzalan earl of Arun¬ 
del, who was fummoned to parliament.by the name of 
lord Maltravers. The fummoning of the eldeft fons of. 
earls- 
