Page images

Now, as the eldest daughter had a right to the principal mansion, if it was a caput comitatús, or baroniæ, she would, in those times, have been entitled to the dignity annexed to it: and this appears to have been the reason, that the whole earldom of Chester was allotted to the son of the eldest sister, who, by that means, acquired the dignity.

[blocks in formation]

§ 154. It appears that, fo late as in the reign of Hen. 6., the eldest daughter was supposed to have a claim to her father's dignity, superior to that of her sisters. But, whatever might have been the old law on this subject, the doctrine laid down by Lord Coke was fully established in his time : and it was foon after determined by the Judges, and the House of Lords, that where a dignity or title of honour is descendible to heirs general, and the person possessed of it dies, leaving only daughters, or fisters, or coheirs, it falls into abeyance; or rather, becomes vested in the crown during the continuance of the coheirship.

Collins, 175.

$ 155. Thus in the case of the earldom of Oxford and Lords' Jour. Great Chamberlain, a report was made to the House vol. 3. 535.

of Lords by Lord Chief Justice Crewe; that he, with the Lord Chief Baron Hale, Mr. Justice Doderidge, Mr. Justice Yelverton, and Mr. Baron Trevor, had, according to the order of the House, considered the titles of the competitors to the earldom of Oxford, the baronies of Bulbeck, Sanford, and Badlesmere, and the office of Great Chamberlain of England. And they certified that, “ as touching the baronies of Bulbeck, Sanford, and Badlesmerc, their opinion was, that


“ the fame 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 Wing

field, and another to Knightley; which John the fifth “ Earl of Oxford dying without issue male, those “ baronies descended upon the daughters as his sisters “ and heirs. But, these dignities being entire and not “ dividable, they became incapable of the fame, 6 otherwise than by gift from the crown; and they, 66 in strictness of law, reverted to, and were in the

disposition of king Henry 8."

In this case, 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 own pleasure.

may termi

$ 156. The expression, that baronies in abeyance The King are wholly at the disposal of the Crown, is too general ; nate the for it is not in the power of the Crown to dispose of Abeyance. such baronies to a mere stranger. But the Crown has the prerogative of terminating the abeyance, or fufpenfion of the dignity, by nominating any one of the coheirs to it: and such a nomination operates, not as a new creation of a dignity, but as a revival of the antient dignity : for, the nominee becomes entitled to precedence, according to the date of the antient dignity, to which he is nominated.

$ 157. Sir William Blackstone observes, that in the Comm. 316. king's prerogative, of conferring a dignity on which of the daughters he pleases, is preserved a strong trace


of the antient law of feuds, before their descent by primogeniture, even amongst the males, was established:

namely, that the lord might bestow them on which of 1 Lib. Feud. the sons he thought proper. Progressum est ut ad filios

deveniret, in quem scilicct dominus hoc vellet beneficium confirmare.

[ocr errors]

Lords' Journ.

$ 158. There are several instances, where the Vol. 30. 403. Crown has exercised this power. In 1763, his Majesty

iflued his writ of summons to Sir 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 J.ords' Journ. whom and whose heirs king James 1, had revived the

ancient barony of Le Despencer; and, thereupon, he was allowed to take his place upon the upper part of the Bench, next above Lord Abergavenny.

Vol. 2. 347.

$ 159. In the year 1764, Norman Berkley Esq. petitioned his Majesty to be nominated to the antient barony of Botetourt; ftating, that John de Botetourt Chevalier, was fummoned to parliament as a baron, by writ in 33 Edw.I., and fat in parliament in pursuance of that writ. That the faid John had issue a son John, (who died in the lifetime of his father, leaving issue a daughter Joyce), and five daughters. That the faid Joyce died without issue of her body in 7 Hen. 4. ; and that, thereupon, the barony became in abeyance amongst the daughters of the faid John last Lord De Botetourt. That the petitioner was sole heir of Catharine Berkley, one of the said daughters of John Lord Botctoirt. This petition having been referred to the


House of Lords, the committee of privileges reported, that the barony of Botetourt was in abeyance; and that Lords' Journ.

Vol. 30.561. the petitioner was one of the coheirs of John Lord Botetourt. Soon after, his Majesty ordered a writ of fummons to be directed to Norman de Botetourt Chevalier ; who, in consequence thereof, was allowed to Id. 572, take place on the Barons' Bench, next after Lord Dacre.

$ 160. The barony of Willoughby of Eresby fell into abeyance in the year 1779, by the death of Robert Bertie Duke of Ancaster and Kesteven, without issue, leaving Lady Priscilla, Barbara Elizabeth, and Lady Georgina Charlotte Bertie, his sisters and coheirs. And, in the following year, his Majesty, by letters patent, confirmed the barony of Willoughby of Eresby to Lady Priscilla Barbara Elizabeth, then the wife of Peter Burrell Esq., since created Lord Gwydir, and the heirs of her body

$ 161. In the case of Sir John Griffin Griffin, in 1784, claiming to be one of the two coheirs of James Lord Howard of Walden, grandson and heir of Thomas Lord Howard of Walden, who was summoned to parliament by writ in 40 Eliz., and sat therein ; the Attorney General reported, “ that the said Sir John Griffin

Griffin had, in his opinion, proved his pedigree ; " and that the Earl of Bristol and the petitioner apo “ peared to him to be the coheirs of the body of " Thomas Lord Howard of Walden; and that, if the « said Thomas Lord Howard of Walden was called up “ to the House of Peers by writ, without patent, and

“ sat by virtue of the same, (which, as far as he could 6 collect from the evidence laid before him, appeared “ to be the case), he acquired thereby an inheritance “ in the barony, to him and the heirs of his body; ~ and that the same was then in abeyance, between “ the petitioner and the Earl of Bristol; in which case, « his Majesty had an undoubted right to allow and “ confirm the same barony, either to the petitioner,

or to the said Earl of Bristol: and such perfon, to

whom the same was so confirmed, and the heirs of “ his body, would hold and enjoy the said barony, « and all the privileges thereunto belonging, exclu

sively of the other and the heirs of his body, whose “ right to the same would remain dormant and suf

pended, so long as there should be issue of the body “ of the person to whom the same should be fa 46 confirmed."

The House of Lords resolved, that the barony of Howard of Walden was in abeyance; and that the petitioner was one of the coheirs of James the then last Lord Howard of Walden: and Sir John Griffin Griffin was summoned to parliament by writ, as Lord Howard of Walden.

$ 162. Where the king terminates the abeyance of a dignity in favour of a commoner, he issues a summons to him by the name of the barony, which was in abeyance; as, in the cases of Lord Le Despencer and Lord Botetourt. But, where the person, in whose fa. vour the abeyance is terminated, is already a peer, and has a higher dignity, there, the king makes a


« PreviousContinue »