Cro. Car, (as Littleton saith) to the father, shall inherit the dignity inherent in the blood, as heir of him that was first created noble." 9. Lord Hale, in a note to this passage, published by Mr. Hargrave, observes, that if it was a feudal title of honour, as the earldom of Arundel, or barony of Berkeley, there, possessio fratris should hold well, because the title was annexed to land. 10. A question was moved in parliament in 16 Cha. I. respecting the barony of Grey of Ruthyn, which was originally created by writ of summons. Lord Grey died, leaving a son and a daughter by one venter, and a second son by another venter. 'The barony descended to the eldest son, who sat in parliament, and afterwards died without issue. The question was, whether the second son should inherit the barony, or the sister; and the opinion of the Journ, vol. 4. Judges was required; who resolved, that there was not any 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 not be an acquisition of the possession. 149. 8 Term R. 213. Collins, 286. Abeyance of 11. In the case of the barony of Fitzwalter in 1668, the same objection was made before the Privy Council: and the question being put to the two Chief Justices, and Lord Ch. Baron Hale; they all agreed that the half blood was no impediment to the descent of a dignity. 12. When dignities by writ were first introduced, they were probably descendible, in default of males, to the eldest female; in conformity to the rule then existing respecting the descent of baronies by tenure. But in course of time it became established, that where a person possessed of a dignity by writ died, leaving only daughters or sisters; as the dignity was of an impartible nature, it fell into a dormant state, and was said to be in suspence or abeyance. 66 Partition, 18. 13. Lord Coke has stated a case in 23 Hen. III. Inst. 165 a. Fitz. Ab. Tit. in these words: "Note, if the earldom of Chester descend to coparceners, it shall be divided between them, as well as other lands. And the eldest shall not have this seigniory and earldom to herself, entire, quod nota. Adjudged, per totam curiam." And he makes the following observations on this case.— By this it appeareth that the earldom (that is, the possessions of the earldom) shall be divided; and that where there be more daughters than one, the eldest shall not have the dignity and power of the earl; that is, to be a countess. What then shall become of the dignity? The answer is, that in that case, the King, who is sovereign of honour and dignity, may, for the uncertainty, confer the dignity upon which of the daughters he please; and this hath been the usage since the Conquest; as is said." 44. 14. The above observations of Lord Coke do not seem to be well founded; for it appears from Dugdale, that Ranulph Earl of Chester died in 16 Hen. III. Bar. vol. 1. without issue, leaving four sisters, of whom the eldest, Collins, 99. Maud, was married to David Earl of Huntingdon, brother to William King of Scotland, by whom she had a son, surnamed Scotus, who succeeded Ranulph in the earldom of Chester; but the reason was, that in the partition of the vast possessions of Ranulph, this John had for his part, his mother being dead, the whole county of Chester. 15. The decision cited by Lord Coke must have taken place on the death of the above-named John įn 1237, according to M. Paris, leaving four sisters; VOL. III. Р Dugd. Bar. Collins, 175. Journ. vol. 3. 535. but it cannot be relied on as an authority; for it appears from Knyghton, c. 35., that this was a special and arbitrary exertion of the prerogative, by which the King, probably from jealousy of the great powers and regalities of the Earls of Chester, continuing in the presumptive heir to the crown of Scotland, not only took the dignity of the earldom into his own hands, but also all the lands appertaining to it; making compensation to the four sisters of the last earl, in other lands. 16. It appears to have been held, so late as in the reign of Henry VI., that the eldest daughter had a superior claim to that of her sisters, to the dignity of their ancestor. But whatever might have been the old law, the doctrine laid down by Lord Coke was fully established in his time; and it was soon after resolved by the Judges and the House of Lords, that where a dignity is descendible to heirs general, and the person possessed of it dies, leaving only daughters or sisters, or coheirs, it falls into abeyance, or rather becomes vested in the Crown, during the continuance of the coheirship. 17. Thus in the case of the earldom of Oxford, a report was made to the House of Lords by Lord Ch. Just. Crewe, that he, with the Lord Ch. Baron, Justices Doderidge, Yelverton, and Baron Trevor, had considered the titles of the competitors to the baronies of Bulbeck, Sandford, and Badlesmere; and they certified that the same baronies descended to the general heirs of John, the fourth Earl of Oxford, who had issue, John, the fifth Earl of Oxford, and three daughters, one of them married to the Lord Latimer, another to Wingfield, and another to Knightley; which John, the fifth Earl of Oxford, dying without issue, those baronies descended upon the daughters, as his sisters and heirs; but these dignities 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. The House of Lords certified to the King, that for the baronies, they were wholly in his Majesty's hand, to dispose of at his pleasure. 18. The expression that baronies in abeyance are The Crown wholly in the disposal of the Crown, is too general; may termifor it is not in the power of the King to dispose of Abeyance. such baronies to a stranger. The Crown has only the prerogative of terminating the abeyance or suspension of a dignity, by nominating any one of the coheirs to it and such nomination operates, not as a new creation of a barony, but as a revival of the ancient one. For the nominee becomes entitled to the place and precedence of the ancient barony to which he is nominated. 19. This prerogative does not however appear to have been of ancient date, for though Lord Coke, in the passage above cited, respecting the earldom of Chester, carries it up to the Conquest, as was said: yet in his Reports he says, Camden told him, some 12 Rep. 112. held, that if a baron died having issue divers daughters, the King might confer the dignity on him who married any of them; as had been done in divers cases: viz. in the case of Lord Cromwell, who had issue divers daughters, and King Henry VI. conferred the dignity upon Bourchier, who married the youngest daughter; and he was called Lord Cromwell. The Crown has, however, exercised this prerogative in so many subsequent instances, that it caunot now be questioned. 20. Robert Devereux, Earl of Essex, Viscount Hereford, and Lord Ferrers of Chartley, a barony descendible to heirs general, died without issue in 1646, leaving his two sisters his coheirs. In 1678 Sir Robert Shirley, grandson of Lady Frances, one of the sisters and coheirs of the said Earl of Essex, was summoned to parliament, by writ, directed to Vol. 13. 130. Robert Shirley de Ferrers, Chevalier. It was opened to the House by the Lord Chancellor, how his Lordship came in upon descent, so no introduction to be: and he was placed upon the barons bench, next below Lord Berkeley. Journ. 18 March, Journ. Journ. 21. In 1720 a writ of summons was issued to Hugh Fortescue, by the title of Hugh Fortescue de Clinton, Chevalier. When he took his seat, the Lord Chancellor explained to the House his descent; how he was one of the heirs of Theophilus late Earl of Lincoln, and Baron Clinton, which barony was then in abeyance between Mr. Fortescue and Samuel Rolle, Esq. 22. In 1763 a writ of summons was issued to Sir vol. 30. 403. Francis Dashwood, Baronet, by the title of Lord Le Despencer; the Lord Chancellor informing the House of Lords that he was one of the heirs of Lady Mary Fane, in favour of whom and whose heirs King James I. had revived the ancient barony of Le Despencer. Thereupon he was allowed to take his seat upon the upper part of the bench, next above Lord -Abergavenny. 23. The barony of Willoughby de Eresby fell into abeyance in the year 1779, by the death of Robert Bertie, Duke of Ancaster, without issue, leaving Lady Priscilla Barbara Elizabeth, and Lady Georgiana Charlotte, his sisters and coheirs. In the following |