LECTURE XX.

Lords of Parliament or Peers—Earls and Barons—The earlier state of Baronies in England—The Barones majores & minores—Barons by writ and by letters patent—The different ranks of Nobility.

Next in rank to the king are the lords, that held immediately of him by military service, as long as that species of tenure subsisted; and whom, from their privilege of sitting in parliament in their own rights, are frequently called Lords of Parliament, and in common speech are called Peers, though that word properly signifies any co-vassals to the same lord. Thus every immediate vassal of a baron are peers of that barony, and the accurate description of the great personages I am speaking of is Pares Regni. Of these there were, antiently, two ranks only, in England, Earls and Barons. Indeed, abroad also, to speak properly, there were but two likewise: for there was no difference in power and privilege between the dukes and counts, or earls. But as every earl is a baron, and something more, and as it is a maxim of our law, that every lord of parliament sits there by virtue of his barony, it will, in the first place, be necessary to see what a baron is.

The word baron of itself originally, did not, more than peer, signify an immediate vassal of the king; for earls palatine had their barons, that is, their immediate tenants; and, in old records, the citizens of London are stiled barons, and so are the representatives of the cinque ports called to this day. Baron, therefore, at first signified only the immediate tenant of that superior whose baron he is said to be, but by length of time it became restrained to those who, properly and exactly speaking, were barones regis & regni, and even not to all of these, but to such only as had manors and courts therein. For though, by the principles of the feudal constitutions, every immediate military tenant of the crown, however small his holding, was obliged to assist the king with his advice, and entitled likewise to give or refuse his assent to any new law or subsidy, that is, to attend in parliament. This attendance was too heavy and burthensome upon such as had only one or two knights fees, and could not be complied with without their ruin. Hence arose the omission of issuing writs to such, and which, being for their ease, they acquiesced in, attendance in parliament being considered at that time as a burthen. Thus they lost that right they were entitled to by the nature of their tenure, until the method was found out of admitting them by representation. Hence arose the distinction between tenants by barony, and tenants by knight service in capite of the king. The former were such military tenants of the king, as had estates so considerable as qualified them, without inconvenience, to attend in parliament, and who were therefore entitled to be summoned. The quantum of this estate was regularly thirteen knights fees and one third, as that of a count or earl was twenty; that is, as a knight’s fee was then reckoned at twenty pounds per annum, the baron’s revenue was four hundred marks, or two hundred sixty-six pounds thirteen shilling and four-pence, and the earl’s four hundred pounds, answering in value of money at present to about two thousand six hundred, and four thousand pounds yearly[251].

Such was the nature of all the baronies of England for about two hundred years after the conquest; and they are called baronies by tenure, because the dignity and privileges were annexed to the lands they held; and if these were alienated with the consent of the king (for without that they could not) the barony went over to the alienée. The manner of creating these barons was by investiture, that is, by arraying them with a robe of state, and a cap of honour, and girding on a sword, as the symbols of their dignity. Of these Matthew Paris tells us there were two hundred and fifty in the time of Henry the Third, and while they stood purely on this footing, it was not in the king’s power to encrease the number of the baronies, though of barons perhaps he might. For as William the Conqueror was obliged to gratify several of his great officers according to the number of men they brought, with two or more baronies, whenever these fell into the hands of the crown by escheat, either for want of heirs, or by forfeiture, it was in the king’s power, and was his interest, to divide them into separate hands. The same thing likewise happened, when, by an intermarriage with an heiress, more baronies than one came into the hands of a nobleman, and escheated to the crown[252].

But the number of these feudal baronies could not, strictly or properly speaking, be encreased by the king; for they could be created only out of lands, and there were no lands vacant to create new ones out of, for the king’s demesnes were, in those days, unalienable. However, we find, at the end of Henry the Third’s reign, and even in John’s, that the number of baronies were actually encreased, and a distinction made between the barones majores, and minores. The majores were those who stood upon the old footing of William, and had lands sufficient in law, namely, the number of knights fees requisite. The minores were such as held by part of a barony; as when an old barony descended to, and was divided among sisters; in which case, when the husband of the sister whom the king pleased to name, was the baron of parliament; or else were newly carved out of the old baronies that had fallen in by escheat; as supposing the king had granted six knights fees of an old barony to one, to hold with all the burthens, and to do the service of an entire barony, and the remaining seven and one third to another, on the same terms. But the attendance of these minor barons also, at length became too burthensom for their circumstances, and many of them were glad to be excused. The kings took then the power of passing by such as they thought unable, by not sending them writs of summons, and John extended his prerogative even to omit summoning such of the majores as he imagined were inclined to oppose him. This however at length he was obliged to give up: For in his Magna Charta it is said, Ad habendum commune consilium regni faciemus summoneri archiepiscopos, episcopos, abbates, commites, & majores barones regni sigillatim, per literas nostras [253].

The barones majores were then fully and plainly distinguished from the minores, and I think it will not be doubted they were such as had the full complement of knights fees that made up an antient barony; and, accordingly, we find in 1255, when Henry the Third had neglected summoning some of these, the others refused to enter on any business, Quia omnes, tunc temporis, non fuerunt, juxta tenorem Magnæ Chartæ suæ, vocati, et ideo, sine paribus suis, tunc absentibus, nullum voluerunt tunc responsum dare, vel auxilium concedere vel prestare. No king since, ever omitted to summon all the greater nobility, until Charles the First was prevailed upon to forbid the sending a writ to the Earl of Bristol by Buckingham, who was afraid of being accused by that nobleman; but on the application of the house of lords, and their adjourning themselves from day to day, and doing no business, the writ at last was issued.

In the reign of Henry the Third also, the king’s prerogative of summoning or omitting the lesser barons was likewise ascertained by an act of parliament since lost, as we find by these words from history: Ille enim rex (scilicet Henricus Tertius) post magnas perturbationes, & enormes vexationes inter ipsum regem, Simonem de Morteforti, & alios barones, motas & sopitas, statuit & ordinavit, quod omnes illi commites & barones regni Angliæ, quibus ipse rex dignatus est brevia summonitionis dirigere, venirent ad parlamentum suum; & non alii nisi, forte, dominus rex alia illa brevia illis dirigere voluisset [254]. And from henceforth no nobleman could sit in parliament without a writ. But there was this difference between the greater and the lesser barons, that the former had a right to their writ ex debito justitiæ, to the latter it was a matter of favour; but when summoned, they, being really barons, had the same rights with the rest, though sitting, not by any inherent title, but by virtue of the writ. The other lesser barons, who were generally omitted to be summoned, by degrees mixed with the other kings tenants in capite, and were thenceforth represented by the knights of the shires[255].

But these baronies by tenure being long since worn out among the laity, it is proper to proceed to the two ways now in being of creating peers, by writ, and by letters patent. It is the lord Coke’s opinion, and in this he has been followed ever since, that a writ to any man, baron, or no baron, to sit in parliament, if once he hath taken his seat in pursuance thereof, gains a barony to him and the heirs of his body. And though the law, principally on the authority of that great lawyer, is now so settled, certainly it is comparatively but a novel opinion, and very ill to be supported by reason. The words of the writ are, Rex tali salutem, quia de advisamento & assensu concilii nostri, pro quibusdam arduis & urgentibus negotiis statum & defensionem regni nostri Angliæ contingentibus, quoddam parlamentum nostrum apud Westmonast. tali die, talis mensis, proximo futuro teneri ordinavimus, & ibidem vobiscum, ac cum prelatis magnatibus & proceribus dicti regni nostri, colloquium habere & tractatum; vobis in fide & ligeantia quibus nobis tenemini, firmiter injungendo mandamus, quod consideratis dictorum negotiorum auctoritate & periculis imminentibus, cessante excusatione quacunque, dictis die & loco personaliter intersitis nobiscum, ac cum prelatis magnatibus & proceribus super dictis negotiis tractaturi, vestrumque consilium impensuri, & hoc sicut nos, & honorem nostrum, ac expeditionem negotiorum prædictorum diligitis, nullatenus omittatis [256].

That this writ must be obeyed, there is no doubt, for every subject is, by his allegiance, obliged to assist the king with faithful counsel: But what right the party summoned acquired thereby is the question. The words are not only personal to him, but restricted likewise to a particular place and time; and accordingly, in antient times, we find many persons summoned to one parliament, omitted in the next, and summoned perhaps to the third. There is not a word therein that hints at giving the least right to an heir; and what reason can be assigned why a man, by this writ, should gain an estate of inheritance in a peerage, when, in letters patents, it is admitted that he gains only an estate for life, without the word heirs. That antiently there was no such notion appears from the summons to parliament, where frequently we find the grandfather summoned, the father passed by, and the grandson afterwards summoned: Nay, in the rolls there are instances of ninety-eight persons being summoned a single time only, and neither themselves, nor any of their posterity, ever taken notice of afterwards. Or, if we were to allow that this writ created an inheritance, what reason can be given why it should be an estate tail only, and be confined to the heirs of the body, and not, as all other new inheritances, created generally, go to the collateral heirs?

But, in order to discover plainly what privileges persons so called by writ, had, or could obtain in those times, it will be proper to distinguish them into three kinds of persons. First, then, they were either some of the minores barones by tenure; and these, when called, had certainly all the privileges of the greater; or else they were not barons at all, but plain knights or gentlemen; and, with respect to these, it is plain they had a right to deliberate, debate, and advise. But the better opinion is, they had no right to vote, but were assistants and advisers only, as the judges are at present; for it is absurd to suppose that, in those times, when the commons were low, and inconsiderable, and the barons were more powerful than the crown, these latter should suffer their resolutions to be over-ruled at the pleasure of the king, by his calling in such numbers as we find he often did, which must have been the case, if all he summoned had votes. But these two kinds of persons gained by their writ, or sitting in consequence of it, originally, no farther right than to be present at that time. However, by many of these persons and their heirs having been constantly summoned, especially since Henry the Seventh’s reign, and the ancient practice of omitting any who had been very frequently so, going into disuse, the distinction between the greater and the lesser barons was forgot, and that opinion prevailed which my lord Coke had adopted, and which is now the law, that a man, having once sat in parliament in pursuance of the king’s writ, acquires thereby an estate tail to him and the heirs of his body[257].

There were yet another kind of persons, not peers, that might be summoned by writ. These were the eldest sons of peers, to whom the father’s barony must descend; and in such case, if the heir was called by the name of a barony that was in his father, he was a baron to all intents and purposes. But it seems very plain, that this was not a new creation of a barony; for in that case the son so called should have been the lowest peer, whereas the practice is the contrary. The eldest son of the duke of Norfolk, called by the title of lord Mowbray, sat first baron, because that barony of his father’s is the antientest in England. It seems, therefore, that this was considered as a transfer of the antient barony by the joint consent of the father and king, and the father still continues to sit by the remaining peerage in him. Accordingly we find no instance of a baron’s son sitting on such a summons, unless the father had another barony by which he might sit. If the father indeed had a higher title, that has been reckoned sufficient to support his seat, though his only barony was transferred to the son. This then being no new creation, but a temporary transfer only of an old peerage, it should seem, that this title, when once merged in the greater by the father’s death, should go according to the old limitation; but of late we find them considered as new creations. On the death of the late earl of Derby, Sir Edward Stanley, his sixth cousin, succeeded, and sits in parliament as baron Strange, by Henry the Seventh’s creation; but an elder son 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, sits by the same title of baron Strange of king Charles the First’s creation.

The descent of these two kinds of baronies are directed by the rules of the descent of other inheritances at common law, and consequently females are capable of succession, but with two exceptions; first, that half blood is no impediment, and consequently the half brother excludes the sister; secondly, that the honour is not divisible, and therefore, if there be two or more sisters, heiresses, the title is in abeyance, that is, is suspended, until the king makes choice of one of them and her heirs; though by constant usage the law seems to be verging fast to a constant descent to the eldest[258].

The third method of creating peers is by letters patent, which is the most usual, and esteemed the most advantageous way; because a peerage is thereby created, though the new nobleman hath never taken his seat, which is not the case of a barony by writ. As to the manner of these creations, there has a notable difference intervened since the accession of Henry the Seventh from what was the practice before Richard the Second. In his eleventh year began this method of creating by patent, in favour of John de Beauchamp, who, though summoned, never sat there, but was attainted by the next parliament, and afterwards executed. But, the attainder out of the case, his patent in law could never have been deemed valid, because Michael de la Pole was the lord chancellor who affixed the seal to it, which had been before taken from him by act of parliament, and he declared incapable of ever having it again. This, then, was a single and ineffectual attempt of that weak prince to create a new peer without the assent of parliament, which was the usual way, above thirty having been made so in that very reign. His successors were too wise to follow this example; for every barony newly created, till the union of the roses, which were about fourteen, were, every one of them, as appears on the face of the patents, by authority of parliament, if we except two or three; and even these, on a close examination, will appear not to be new baronies, but regrants of old feudal baronies by tenure, which, undoubtedly, were all in the sole disposition of the king[259].

But Henry the Seventh, having trodden down all opposition, was fortunate enough to carry the point Richard had vainly attempted, and acquired for his successors that prerogative which they have since enjoyed, of creating peers at pleasure. The descent of these titles, created by patent, is directed by the words of the creation. If heirs are not mentioned, it is only an estate for life; if to a man and heirs of his body, females are not excluded, but the general way is, to the heirs male of the body of the grantée, perhaps, with remainders over, and they descend as other estates entailed. The case of the dutchy of Somerset was singular. Edward Seymour having sons by two venters, was created duke of Somerset, and his heirs male of his second marriage, remainder to his heirs male by his first. This title continued near two hundred years in the younger branch, until, upon its failure in the late duke of Somerset, Sir Edward Seymour, the present duke, the heir by the prior marriage, succeeded by virtue of the remainder.

In the case of lord Purbeck, in Charles the Second’s reign, it was controverted whether a title could be extinguished, for as lord Purbeck had surrendered his honour by fine to the king, and there it was determined, and so the law now stands, contrary to many precedents that were produced, that the title is inherent in the blood, and while that remains uncorrupted, can by no means be extinguished by surrender or otherwise, and this, generally, whether the peerage be created by patent or by writ; for Purbeck’s was by writ. In case of a patent where the dignity is expressly entailed, it is surely as reasonable that it should be impossible for the possessor to destroy the entail, as in an estate tail of land, created by the king, and yet in old times there had been many instances to the contrary. I shall mention but two that happened in this kingdom.

Sir Thomas Butler was created baron Cahir by Henry the Eighth to his heirs general. His heirs male failed in his son Edmond, the second baron, and his nephew, Sir Theobald, was, in 1683, by queen Elizabeth created baron Cahir; but it being found that Sir Thomas left daughters, to one of whom the title ought to have been assigned by the queen, one of them, and the heir of the other, who was dead in 1685, bargained, sold, and released to Sir Theobald and his assigns, their right and title to the said honour. The other was the case of the honour of Kingsale. Charles the First, apprehending the barony of Kingsale to be extinguished by attainder, created Sir Dominick Sarsfield viscount Kingsale, but, upon lord Kingsale’s petition, and proof made by him that his barony still subsisted, it was ordered that Sarsfield should surrender his viscounty of Kingsale, and be treated viscount of Kilmallock, with his former precedence, which was accordingly done.

These two instances were, indeed, of a particular nature, and calculated to rectify grants that had arisen from error; but in England there were, in ancient times, many instances of such surrenders without error. They were, indeed, generally made in order to obtain higher titles; and therefore it is no wonder they passed sub silentio, and were never disputed. But as to the old baronies by tenure that were annexed to land, nothing is clearer than that, by the king’s consent, they might be aliened or surrendered, notable instances of which happened in the reign of Henry the Third. Andrew Giffard, baron of Pomfret, surrendered to the king; and Simon de Montfort, a nobleman of large possessions in France, had two sons by the heiress of the earldom of Leicester, in whose right he was earl of Leicester, and, having a mind to settle his second son in England, assigned the earldom over to him, as Selden says; or, which comes to the same thing (for the eldest son was equally defeated) surrendered it to the king, who granted it to the second, according to Camden.

All noblemen are equally so, and, therefore, each others peers; but they differ in rank and precedence. The ranks are five; dukes, marquisses, earls, viscounts, barons. The first duke was created by Edward the Third; the first marquiss, by Richard II.; the first viscount, by Henry the Sixth. Though their dignities are now personal, and annexed to the blood, yet as they were originally annexed to land, so much of the old form remains, that, in their creation, they must be named from some place in some county; though I do not apprehend it to be material at this day, whether there really be such a place or not. With respect to the raising a lord from a lower degree of dignity to a higher, I should observe, that long before Henry the Seventh’s time, the king had the right solely in himself, though it was frequently done in parliament; for this was not adding to the number of the peers, but an exertion of the ancient prerogative of his settling precedence according to his pleasure. This continued in England till Henry the Eighth, by act of parliament, settled it according to antiency, and it still continues in Ireland, though it has not been exerted since Henry the Seventh’s time, when lord Kingsale, a Yorkist, was obliged to change places with lord Athenry, a Lancastrian, and from first became the second baron, which hath continued his rank, till lately, that Athenry was created an earl[260].