cessively summoned to parliament by descent, in virtue of letters patent, 1 Edw. VI., and sat as heirs male of the body of Sir William, created Lord Willoughby of Parham by the said letters patent, contrary to right and the truth of the case; it then appearing that Sir Ambrose Willoughby, the second son of the said Charles, and the elder brother of the said Sir Thomas, who was averred to have died without issue, left a son, and that the claimant was great grandson and heir male of the body of such son, and consequently heir male of the body of the said Sir William, who was created Lord Willoughby of Parham; the male line of the eldest son of the said Charles Lord Willoughby of Parham having failed in or before the year 1680; and that the proof of the petitioner's pedigree being clear, the contrary possession ought to be no bar to his claim, as there was no person in being interested under such possession; without prejudice to the question, if there was.”

The claimant took his seat accordingly.

Idem, 537.

Descent of
Dignities by
Tenure.

DI

SECTION 1.

IGNITIES by tenure appear to have always been hereditary, and to have descended in the same manner as the castles or manors to which they were annexed. So that the descent of dignities of this kind, in the male line, was exactly similar to that Tit. 29. c. 3. of estates in fee simple, unless the castles or manors to which the dignity was annexed were entailed; for, in that case, the dignity descended to the person entitled to the castle or manor, under the entail, as appears from the cases that have been stated in a former chapter.

c. 1. § 46.

Brit. c. 72.

2. In ancient times the right of primogeniture appears to have taken place in the descent of dignities by tenure, to females, as well as to males. For, Bracton, in treating of the partition of estates among 76a. coparceners, says, that where a mansion or castle was caput comitatus or baroniæ, it was not divisible, propter jus gladii quod dividi non potest; for by such a division earldoms and baronies would be destroyed. Per quod deficiat regnum, quod ex comitatibus et baroniis dicitur esse constitutum. Now, as the eldest sister had a right to the principal mansion jure esnecia, to ante, c. 1. $33. which, if it was caput comitatus, or baroniæ, the service of attending parliament appears to have been always annexed, she would, in those times, have been entitled to the dignity. And this was exactly conformable to the feudal law, in which an indivisible feud descended to the eldest daughter.

Rym. Fœd. vol. 2. 583.

3. The descent of earldoms and baronies in the reign of Edward I. appears, from the answers of the parliaments of England and Scotland, previous to the adjudication of the succession to the crown of Scotland, to have been to the eldest daughter. And Lord Coke has cited a charter of King Edw. III., 4 Inst. c. 40. in which the right of the eldest sister to the earldom

of Pembroke is fully recognized.

4. With respect to dignities by writ, whatever Descent of Dignities by doubts existed formerly respecting their being here- Writ. ditary, it appears to have been fully settled in the time of Lord Coke, that they were descendible to all the lineal heirs of the person first summoned. The right of primogeniture takes place among males; and, in default of males, they are descendible to female heirs, and transmissible by such female heirs to their descendants.

Barony of
Clifton,

5. This doctrine was admitted in the case of the barony of Grey of Ruthyn, in 1640; but was more fully considered, and solemnly established, in the following case.

6. In 1673, Catherine Lady O'Brien claimed the Collins, 291. barony of Clifton of Leighton Bromswold; and her petition having been referred to the House of Lords, the Committee of Privileges reported-"That Jervas Lord Clifton was summoned by writ to parliament, 6 Jac. I., by the title of Lord Clifton of Leighton Bromswold; so as the barony, being a fee simple, ought to descend from the said Lord Clifton upon his heirs; and that the Lady Catherine O'Brien being the heir, gradually and lineally descended from the said Lord Clifton, the barony did of right descend to her and her heirs."

Journ.vol. 12.

629.

It was ordered that the Judges should give their opinion in this case; which they did in the following words.

"The Lord Ch. Just. of the King's Bench, Lord Ch. Just. of the Common Pleas, Chief Baron Turner, Baron Littleton, Justice Atkins, Justice Ellis, and Baron Thurland, were unanimous in their opinions, that taking the case in fact to be as His Majesty's Attorney General reported it to be, and as it stood transmitted to that House, they found it to be thus, as to that lady's claim of the said barony. That Sir Jervas Clifton was summoned to parliament by the name of Jervas Clifton of Leighton Bromswold, by writ dated 9 Ja. I.; that accordingly he did come and sit in parliament as one of the peers of England; that he died 16 Ja. I., leaving issue behind him, Catherine, his sole daughter and heir, who married to the Lord Aubigny, afterwards Duke of Lenox ;

that the said duke, 17 Ja. I., was, by letters patent, created Baron Leighton of Leighton Bromswold, in the county of Huntingdon, to him and the heirs male of his body, whereof none were then living; that the petitioner was lineally descended from him, and was his heir, (by the said report,) and as such then claimed the barony of Clifton. All which being admitted to be true, they were of opinion, first, that the said Jervas, by virtue of the said writ of summons, and his sitting in parliament accordingly, was a peer and baron of this kingdom, and his blood thereby ennobled; secondly, that his said honour descended from him to Catherine, his sole daughter and heir, and successively, after several descents, to the petitioner, as lineal heir to the said Lord Clifton; thirdly, that therefore the petitioner was well entitled to the said dignity."

The House resolved, that the said Catherine Lady O'Brien had right to the barony of Clifton.*

7. The descent of dignities by writ is, in some respects, different from that of lands; for possession Tit. 29. c.3. does not affect it, as every person claiming a dignity must make himself heir to the person first summoned, not, as in the case of lands, to the person last seised.

Blood may

8. In consequence of this principle, a brother of The Half the half blood shall inherit a dignity, in preference to inherit. a sister of the whole blood. Thus, Lord Coke says, 1 Inst. 15 b. "Of dignities, whereof no other possession can be 3 Rep. 42 a. had but such as descend (as to be a duke, marquis, earl, viscount, or baron,) to a man and his heirs, there can be no possession of the brother, to make his sister inherit; but the younger brother being heir

*The doctrine established in this case has been admitted in a great number of modern cases, which will be stated hereafter.