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That the said titles came, by mesne descents, to George Earl of Cumberland, who died, leaving only one daughter, the Lady Ann : by which the title and dignity of Earl of Cumberland came to Sir Francis Clifford, brother to the said George, as heir male of the body of the said Henry. But the said Francis never was seised of the title or dignity of a baron
That the said barony of Clifford descended to the said Lady Ann Clifford, from whom it descended to the daughters and co-heirs of the then late Earl of Thanet; and was given by the king to Margaret Lady Clifford, one of the said co-heirs. That Henry Clifford, (the petitioner's ancestor), eldest son of the faid Francis Earl of Cumberland, was summoned to parliament in the lifetime of his father, without
patent, in 3
Cha. . I., the writ being directed Henrico Clifford Chevalier, and fat and voted in that and several succeeding parliaments.
That the said Henry Lord Clifford left issue only one daughter, Elizabeth, who intermarried with Richard, Earl of Burlington, to which Elizbeth Countess of Burlington, the petitioner was great-grandson, and heir.
That therefore the title and dignity, created by the said writ of summons, in virtue of which the faia Henry Clifford fat and voted in parliament, was defcended to the petitioner, who was sole heir to the faid Henry Lord Clifford. The House of Lords resolved, that the petitioner was entitled to the barony of Clifford, created by the said writ*
S 75. It is observable that, in the two last cases, the claimants stated that the baronies, by the games of which they were summoned, were not then veited in their fathers; from which it may be inferred, that an opinion then prevailed, that there 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.
S 76. This idea was, probably, first suggested by the author of the " Enquiry into the Manner of “ creating Peers;" who, 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, says: “ The writ of summons, therefore, seems not so Pa. 49, 50. “ much to be considered as the creation of a baron, “ but only as an instrument of conveyance, or me“ thod 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, fum6 moned by the title of his father's barony, shall have
precedence according to the rank and antiquity of
* There can be no doubt, but that the crown, in the two preceding cases, illued its writ of summons upon the idea that the baronies, by the names of which the 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 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 take his place in the house ac“ cordingly. I speak, and I think every man ought, “ with great submislion upon this subject. But, if I “ mistake not, the law even at this day is, that though 66 the last of these persons takes a barony in fee, or “ otherwise according to the 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 con
veyed: and, therefore, if the father has only an is estate tail in the barony, the state of the fon, " though summoned by writ, is not enlarged, nor 4 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 modern cafe.
S 77. King James 1. created Sir Robert Sydney, Lord Sydney of Pensburst, to him and the heirs male of his. body; and afterwards created him Viscount Lifle and Earl Leicester. These titles descended to his grandson Philip; whose eldest son Robert, by curtesy Viscount Lisle, was in 1 Wm. and Mary summoned to parliament by writ, and fat and voted 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 daughters of his next brother, Mary Sydney and Elizabeth Sydney, his heirs general ; and Jocelyne, his youngest brother,
who became Earl of Leicester, and afterwards died without issue; by which the titles created by the letters patent became extinct. Upon the death of Mary Sydney without issue, Elizabeth Sydney. (who had married Mr. Perry) claimed the barony of Pensharfi, as fole 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 fat 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 cafes, 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 w.it 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 fathers' barony: although, since the statute 31 Hen. 8. c. 10. for placing the lords, whereby the precedency of peers was fixed and established, the right to such precedency had at diffe
rent times come under the consideration of the house; Lords' Jour. 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, were entitled to the same precedence and rights, which they would have been entitled to, if they had fucceeded to the same by descent; and that the calling them up by writ in their fathers' lifetime only accelerated the possession.
vol. 4. 35. vul. 15.523.
That he was of opinion, that the effect of the writ of fummons to Sir 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 advisable to refer it to the house of peers.
The case was accordingly referred to the house of lords; and, after having been fully heard, it was resolved, that the claimant had no right in consequence of her grandfather's summons and fitting.
$ 78. Another