GENERAL OBSERVATIONS. With respect to the estate, which may be had in a title of honour, while the dignity was annexed to the land, and held by tenure, the person in possession of the estate, if he was tenant in fee simple, would, it is presumed, have an estate equal in dignity. These kind of territorial dignities, or land baronies, were anciently allowed to be aliened by the possessor, provided such alienation was made with the king's licence. Collins, in his Parliamentary Precedents*, cites *p.114.116, various examples to this effect; and Dugdale, in his History of the Baronaget, notices the same. As to dignities derived from writs of summons, they have generally been said to be holden in fee; but this is deemed an erroneous doctrine. A person having a barony of this kind, is not tenant in fee simple of it: for, in that case, it would descend to the heirs general, lineal or collateral, of the person last seised: whereas, a dignity of this species is only inheritable by such of the heirs as are lineally descended from the person first summoned to parliament, and not to any other of his heirs. It is, in fact, a kind of estate, not known to the law in any other respect or instance excepting in that of an honour. et alibi. + Vol. I. p. 385, et alibi. Cruise on Dignities, P. 55. § Purbeck case. Cor. Dom. Proc. anno 1678. || Lords' These dignities, created by writ, (and the same rule applies to those created by patent§,) are unalienable; being an hereditament in the blood of the grantee and his descendants. And in the case of the barony of Grey of Ruthyn, in 1640, the house of lords made || the following resolution; viz. "Upon somewhat, which was spoken of in the argument, Journ. concerning a power of conveying away an honour, it was resolved upon Vol. IV, the question, nemine contradicente, that no person that hath any honour in him, and a peer of this realm, may alien or transfer the honour to person." any other p. 150. It was doubted formerly, whether a barony by writ was not extinguished by the acceptance of a new barony of the same name. But, in the case of ¶ Ibid. Lord Delaware, it was resolved ¶ in parliament, 39th of Elizabeth, that a Vol. II. p. 196-7. * Collins's Parl. Prec. p. 122, 3. ↑ Ib. p. 321. grant of a new barony of Delawarre to William West, who was not then in possession of the old barony of that name, did not merge or extinguish the ancient dignity*. The same doctrine was also established in the barony of Willoughby de Broket, claimed by sir Richard Verney. It was also formerly questioned, whether a person having a barony by writ, and being afterwards advanced to an earldom, to him and his issue male, did not thereby so merge the barony in the higher honour, as that it could not afterwards be separated from it. But this doctrine was fully Ib. p. 195. exploded in the cases of the baronies of Grey of Ruthyn, and of FitzWalter; in which latter case, another point was embraced by the determination, namely§, that, though the earldom or higher dignity should become § Ib. p. 286. extinct, the barony by writ will, notwithstanding, descend to the heir general. Lords' Jour. 1 Inst.15.b. 3 Rep. 42.a. Collins's Parl. Prec. p. 195. ** 1 Inst. 15. b. n. 3. ++ Cruise on Dig. The descent of dignities by writ, is in some respect different from that of lands; for possession does not affect the descent of a dignity for every person claiming an honour created by writ, must make himself heir to the person first summoned, not to the person last seised ||. Thus, in the case of the barony of Grey of Ruthyn, before mentioned, it was stated, that it was a barony by writ; that lord Grey died, leaving a son and daughter by one venter, and a second son by another venter. The barony descended to the eldest son, in due course, who sat in parliament, and afterwards died without issue: the question was, whether the second son should inherit the barony, or the sister? The opinion of the judges was required, who resolved, that there was no possessio fratris of a dignity; but it should go to the younger son, who was hæres natus; and the sister was only hæres facta, by the possession of her brother, of such things as were in demesne, but not of dignities, whereof there could be an acquisition of the possession. But lord chief-justice Hale, in his Notes to the First Institute,** published by Mr. Hargrave, observes, on this case, that, if it was a feudal title of honour, as of the earldom of Arundel, or barony of Berkeley, there possessio fratris should hold well; because the title is annexed to the land. The right of primogeniture takes place between males in the descent of dignities; and, therefore, where a person possessing an honour in tail male, dies, leaving several sons, it descends upon the eldest but where a This doctrine, laid down by lord Coke, was fully established and acted upon both before and in his time. Thus, in the case of the earldom of Oxford, the house of lords certified that the earldom was descended to the heir male; but, as to the baronies of Bulbeck, Sandford, and Badlesmere, they being entire, and not dividable, they became incapable of the same, otherwise than by gift from the crown; and they in strictness of law, reverted to, and were in the disposition of king Henry VIII.” * Coke on Litt. sect. of Coparc. + 1 Inst. 165. a. tit. Præscr. 18. Lords' Jou. Vol. III. p. 535. Dignities. A learned author, however, has observed, that the expression, that § Cruise on "Baronies in abeyance are wholly at the disposal of the crown, is too general; for it is not in the power of the crown to dispose of such baronies to a stranger." But the decision || on the barony of Latimer, temp. Hen. VI. | Collins's rather rebuts this assertion. When Ranulph, earl of Chester, died, (16 Hen. III.) without issue, his four sisters became his co-heirs; and in the partition of that vast inheritance, John le Scot, son of Maud the eldest sister, (his mother being dead) had for his part the whole county of Chester, and by reason thereof, Parl. Prec. ¶ Dugd. Baron, Vol. I. p. 44. et seq. * Dugd. +Lib.2.c.34. ↑ Cruise on Dignities. § Collins's Parl. Prec. p. 222-3, et alibi. most probably, was allowed to bear likewise the title of that earldom. But when the said John le Scot deceased, without issue, 21 Hen. III., leaving his four sisters, or their representatives, his co-heirs, the king took the earldom of Chester into his own hands*, and afterwards annexed it to the crown, granting to the co-heirs certain other lands in the lieu thereof. Bracton treats of the partition of estates among co-parceners; and observes, that where a mansion-house was caput comitatûs seu baroniæ, it was not divisable, propter jus gladii, quod dividi non potest; for, by that means, earldoms and baronies would come to nothing: per quod deficiat regnum, quod ex comitatibus et baroniis dicitur esse constitutum. Now, provided the eldest daughter had a right, as some assert, to the principal mansion, if it was a caput comitatus, sive caput baroniæ, she would, in those times, have been entitled to the dignity annexed to it; and this appears to have been the case in divers baronies § noticed as having been given to the eldest of several co-heirs; yet, in the instance of the division of the great inheritance of Hugh de Albini, earl of Arundel and || Dugd. Sussex, among his sisters and co-heirs, or their representatives, it seems, Baron. Vol.I.p.121. that the dignity of earl of Sussex, (whereof the Albini's were earls per ¶ Ib. p. 119. tertium denarium comitatus unde comes est¶) was not granted to any one of the co-heiresses, but the castle of Arundel, which was the caput **Rot. Pat. comitatus, was given to John Fitz-Alan, son of Isabel, the second sister** of earl Hugh; the descendants of which John Fitz-Alan, by reason of the possession of the said castle, have been earls of Arundel to this day. 28 Hen. III. m. 12. Where the king terminates the abeyance of a dignity in favour of a commoner, he issues a summons to him by the name of the honour which was in abeyance; as in the cases of Le Despenser, and Botetourt. But, where the person, in whose favour the abeyance is terminated, is already a peer, and has a higher dignity, there the king makes a declaration under the great seal, confirming the barony to him; and in the case of a female, the abeyance is also terminated by a declaration. With regard to the effect of terminating the abeyance or suspension of an honour, by the nominating of any one of the co-heirs to it; such nomination operates not as a new creation of a dignity, but as a revival of the ancient title, according to the date of its standing, and the nominee Argument of chief-jus. has thenceforth an inheritance in the barony or honour so revived, to hold case of the barony of Beaumont; Cor. Dom. Proc. anno Dom. Proc. an. 1794-5. The house of lords, in the case of the barony of Beaumont, claimed by + Coram Mr. Stapleton, has decided, that where a barony by writ was in abeyance between two persons, the attainder of one of them for high treason, did not terminate the abeyance, and give to the other a sole right to the barony. In the case of an original barony by tenure, where the party seised thereof has continued to have summons to parliament for divers descents, until the male line has ceased, and only female co-heirs been left to the inheritance; there does not appear to have been ever any decision, whether such barony would be in abeyance among the co-heirs, or extinguished, provided the baronial lands, which had at first moved the writ, were sold or alienated by the last male possessor previous to his death, at which time his sisters, or any other females should become his co-heiresses. From the determinations made in the Berners, Botetourt, and several other cases, it is settled, that dignities are not within the Statute of Lords' Limitations; and, therefore, no length of time of non-claim can bar the right of any one entitled to a descendable honour. to With regard to dignities, created by letters patent, they are not open so many questionable points of law, with relation to their descent, as those honours are, which derive their origin from the writ of summons, for the express words of their patents define their course. It was an opinion, that a title must be created of some place, in order that it might appear to be annexed to land, and thereby become a real hereditament. This opinion strongly coincided with the ancient notion of baronial tenures. But in the case of Mr. Knollys, who claimed to be earl Journ. Collins's Skin. Rep. &c. |