which these persons were summoned, were then vested in their fathers: but this proving to have been a mistake, the House of Lords was obliged to admit that the writs operated as new creations.

that of the

54. It is observable, that in the two preceding Is the same as cases the claimants stated, that the baronies by the ancient names of which their ancestors were summoned, were

From which it may
prevailed that there

not then vested in their fathers.
be inferred, that an opinion then
was some difference between the operation of a writ
of summons to the eldest son of a peer by the name
of a barony vested in his father, and that of a
similar writ, by the name of a barony, not vested in
his father.

Barony.

55. This idea was probably first suggested by the "Inquiry into the Manner of creating Peers," where, ante, c.1. §35. speaking of the practice of calling up the eldest son of a peer to the House of Lords by the title of a barony then in his father, the author says, "The writ of summons therefore seems, not so much to be considered as the creation of a baron, but only as an instrument of conveyance, or method of transferring a barony or honour from one person to another. For if it is not so, what reason can be given why the eldest son of one earl, summoned by the title of his father's barony, shall have precedence according to the rank and antiquity of that barony; and that the eldest son of another earl, if he be by patent created to a title or barony foreign to his family, shall be considered as the youngest baron; and to take his place in the House accordingly. I speak, and I think every man ought, with great submission on this subject: but, if I mistake not, the law even at this day is, that though the last of these persons takes a barony in fee or otherwise, according to the

Barony of
Sydney,
Printed Case,
1782.

limitations of it; yet the first, upon whom the writ operates only by way of instrument of conveyance, has no other title in the barony than his father had, from whom it was conveyed; and therefore if the father has only an estate tail in the barony, the state of the son, though summoned by writ, is not enlarged nor made a fee, and descendible to his heirs general." The doctrine here laid down has been adopted by the House of Lords in the following case.

56. King James I. by letters patent created Sir Robert Sydney, Lord Sydney of Penshurst, to him and the heirs male of his body; and afterwards created him Viscount Lisle and Earl of Leicester, with the same limitations. These titles descended to his grandson Philip, whose eldest son, Robert, by curtesy Viscount Lisle, was in 1 William and Mary summoned to parliament by writ, and sat and voted under such writ by the title of Lord Sydney of Penshurst, in the lifetime of his father. These titles descended to John Sydney the son of Robert, who died without issue, leaving the two daughters of his next brother, Mary and Elizabeth Sydney, his heirs general, and Jocelyne his youngest brother, his heir male; who became Earl of Leicester, and afterwards died without issue, by which the dignities limited to the heirs male, of Sir Robert Sydney became extinct.

Upon the death of Mary Sydney without issue, Elizabeth her sister, who had married Mr. Perry, claimed the barony of Penshurst, as the sole heir of Robert Sydney, who was summoned to parliament by writ.

The Attorney General (Mr. Wallace) stated in his report, that the petitioner claimed the barony of Sydney of Penshurst, as being the sole heir general of

the body of Robert Sydney, who was called to parliament by writ in vita patris: upon a supposition that the effect and operation of the writ of summons to parliament, without letters patent, and his having sat in parliament in pursuance thereof, vested a title in him to the barony, descendible to his lineal heirs. That a writ of summons to parliament, and a sitting in pursuance, did certainly, in general cases, ennoble the person and his descendants: but he conceived that the effect of a writ of summons to the eldest son of an earl or viscount, by the title of his father's barony; or to the eldest son of a baron, who had two or more baronies, to one of his father's baronies; was to accelerate the succession of the son to the barony, which, on his father's death, would descend to him and the extent of the inheritance depended upon the nature of his father's title to the barony, whether in fee or in tail male. That the usual manner of calling up the son of a peer in vita patris, was, by writ of summons to the barony of the father; and the persons thus called had been constantly placed in the House of Lords according to the antiquity of their father's barony. Athough, since the statute 31 Hen. VIII. c. 10. for placing the Lords, whereby the precedency of Peers was fixed and established, the right to such precedency had at different times come under the consideration of the House and although it did not appear that the House had determined the point; yet it was highly probable that the Lords had satisfied themselves, that the eldest sons of peers, called up by writ into their fathers' baronies, vol. 15.523. were entitled to the same precedence and rights, which they would have been entitled to, if they had succeeded to the same by descent; and that the calling

Ꭱ 3 .

;

Lords Journ.

them up by writ in their father's lifetime only accelerated the possession.

That he was of opinion that the effect of a writ of summons to Robert Sydney, to his father's barony, gave to him the like inheritance his father had in the barony, which was restrained to heirs male: and that the petitioner was not, as heir general, entitled to the barony but as the case appeared anomalous, and never to have been precisely determined, he thought it adviseable to refer it to the House of Peers.

The case was accordingly referred to the House of Peers; and on the part of the claimant it was insisted, that a writ of summons to parliament, directed to any temporal person, who sits in pursuance of it, although it contains no words of limitation, ennobles the person to whom it is directed, and his lineal descendants, or, as it has been sometimes expressed, gives a barony in fee, was a general rule of law, so fully established, and was so little liable to be contro. verted, that it was presumed to be unnecessary to refer to the innumerable authorities contained in the books of law, and the resolutions of the House of Peers, in support of it.

The claim must therefore he admitted, unless it could be shown, that the effect of a writ of summons, directed to the eldest son of an earl or viscount, by the same title as that of his father's barony; or to the eldest son of a baron, who had two or more baronies, by a name the same as that of one of his father's baronies; was different from the effect of a writ of summons directed to other commoners. The Attorney General had adopted a notion of this sort, and stated in his report, that the effect of a writ of summons in such cases was, to accelerate the succession of the son to the barony, which, on his

father's death, would descend to him; and that the extent of the inheritance depended on the nature of his father's title to the barony, whether in fee or in tail male.

It was admitted by the Attorney General that a writ of summons so addressed, if its effect was such, formed an anomalous case, and a case which had never been precisely determined. It was contended further, that this doctrine of acceleration was perfectly novel; that it never occurred before to any of the great lawyers of this country, that a writ of summons in such cases, had such an operation; and that there was nothing of authority to be found in any law book, or in the Journals of Parliament, to countenance the notion. The practice of thus calling to parliament the sons of peers was stated by the report to have existed as far back as the reign of Edw. IV.; and if the doctrine of the report could be maintained, it was extremely singular that every lawyer who, since the law of parliament upon this subject had been considered as settled, had treated upon the effect of a writ of summons to parliament, in which there were no words of limitation, (with exception only of the author of a tract upon the ante, e. 1. origin and manner of creating peerages; whose $35. reasoning the report seemed to abandon, though it adopted the result of it; and who contended against many of the most acknowledged principles of the law relating to peerages,) should have stated in general terms, without reserve, qualification, or exception, that such a writ operated to ennoble the person to whom it was directed, if he sat in consequence of it, and his lineal descendants. By all writers of authority it had been observed, that letters patent, in which there were no words of limitation, gave the