"Upon confideration had by this houfe, &c. It "is refolved by the lords fpiritual and temporal, in parliament affembled, that the said Catharine lady "O'Brien hath right to the barony of Clifton."

§ 66. Notwithstanding this folemn declaration of the judges, and of the house of lords; the doctrine that a writ of fummons to parliament, and a fitting by virtue of such writ, created a dignity to heirs general, was again combated in the cafe of the barony of Willoughby de Broke; which was originally created by writ of fummons, in 7 Hen. 7., and was claimed Vide infra. in 1694 by Sir Richard Verney, who derived his pedi

gree through a female heir. The attorney-general

argued, that a fummons by writ did not create an estate in fee for that anciently feveral had been fo fummoned, and yet their fons had never been fummoned after them: nay, fometimes the very perfon, first fummoned, had afterwards been omitted to be fummoned; and he insisted that, even in the time of Henry 7. when Sir Robert Willoughby was firft fummoned, it was not looked upon as an eftate in fee. Several of the peers, as the earls of Lindfay, Thanet, Suffex, and Abingdon, the lord Delawarre, &c. who had baronies by writ in them, (and fome of whom had at that time only daughters), looking upon themfelves as concerned, from what was mentioned in the committeee in relation to the descent of fuch baronies,

moved the house, that a day might be appointed to confider of what had been mentioned by fome lords, on that day, in relation to the descent of baronies by writ: and, a day being appointed, the faid lords were

heard

Lords' Jour.

vol. 15. 442. 458.552.

Vide Coll. Append. No. 7

heard by their counfel. On another day, the attorneygeneral argued for the king against the defcent of ba ronies by writ; to which the counsel for the lords replied, and produced several precedents, collected by Mr. King, Lancaster herald. The feveral heralds were afterwards heard, in relation to the defcent of baronies by writ; and, the matter being reported by Vide Claim of the lord keeper, the house of lords refolved, that the Barony of where a perfon was fummoned to parliament, by writ, and took his feat, he acquired a peerage, defcendible, to his heirs lineal, whether male or female.

Wentworth,

Lords' Jour. vol. 17, 81, 91.

Ante, f. 56.

Of Writs to the eldest Sons of Peers.

§ 67. The mode of defcent may, however, be reftrained by the writ of summons to males, exclufive of females; as appears from the writ, by which Henry de Bromfleet was called to parliament.

§ 68. It has, for fome centuries, been a practice to call up the eldest fons of fome peers to the house of lords, by the title of a barony vested in their fathers; in which cafes they have been allowed to take their place in parliament, according to the antiquity of the baronies, by the names of which they are fummoned.

§ 69. Dugdale, at the end of his fummons to parlia ment, has given a lift of those eldest fons of peers, who had been fummoned in the lifetime of their fa thers, by the titles of fuch honors as were then in their fathers, and had place and precedence according thereto. The first of these was Thomas Arundel, lord Maitravers, fon to Richard Fitzallan earl of Arundel, Lords' Jour. in 22 Edw. 4. And it appears from the journals,

vol. 4. p. 55.

that,

that, in 16 Cha. 1., Henry Howard, eldeft fon of the duke of Norfolk, was called up to the houfe of lords by writ of fummons, by the title of lord Mowbray, which was the most ancient barony of the Norfolk family; and that he was placed firft upon the barons' bench.

§ 70. This rule has been adopted in all other cafes, in which the eldest son of a peer has been called to parliament by writ of fummons, by the title of a barony then vested in his father.

S 71. It has been determined, that a writ of fummons of this kind creates a dignity, and renders it hereditary in the blood of the perfon fo fummoned.

$ 72. Charles lord Clifford, the eldest fon of the earl of Burlington, was called to parliament by writ of fummons, by the title of lord Clifford of Launfburg, (a barony which was then in his father), and took his feat accordingly. This Charles died in the lifetime of his father, leaving a fon named Charles ; who claimed to be lord Clifford of Launfburg, by descent from his father.

"The lord prefident reported from the lords com"mittee of privileges, to whom it was referred to "confider, whether, if a lord called by writ into the "father's barony shall happen to die in the lifetime "of his father, the fon of that father fo called be a

66

peer, and hath right to demand his writ of fum

mons; that their lordships find no precedent in this "cafe."

"A debate

Lords' Jour. vol. 25. p. 11.

66

"A debate arifing, whether Charles lord Clifford, (fon and heir of Charles late lord Clifford of Launf“burg, deceased), who was called by writ to parlia

ment, in the lifetime of his father, the prefent earl "of Burlington, hath right to fit in parliament; the "house was of opinion. that the faid Charles lord "Clifford, hath right to a writ of fummons to parliament, as lord Clifford of Launfburg;" and he took his feat accordingly.*

$73. James, duke of Athol, in the year 1736, claimed the dignity of baron Strange, stating that king Henry 7. had created Thomas, lord Stanley, earl of Derby, to him and the heirs male of his body. That the said title and dignity came by mefne descents to Ferdinando earl of Derby; who died feised thereof, leaving three daughters. That the faid Ferdinando did not die feised of any title or dignity of a baron, created by letters patent; and, whatever titles and dignities he had, which were created by any writ or writs of fummons to parliament, defcended to his faid three daughters. That the faid title and dignity of earl of Derby, came to William, brother of the faid Ferdinando, as heir male of the body of the said Thomas; but the faid William never was feifed of the title or dignity of a baron.

That James, (the petitioner's ancestor, whose heir he was), eldest son of the faid William, was fummoned

* The fame point was determined, in the case of lord Hervey.— Lords' Journ, vol. 25. p. 112. 130.

to

to parliament, 3 Cha. 1. as a baron, the writ being directed Jacobo Strange Chevalier; and, being alfo fummoned to feveral fucceeding parliaments, fat and voted by the title of lord Strange, in the lifetime of his father, the faid William Earl of Derby.

That, upon the death of the faid William Earl of Derby, the faid James Lord Strange, fucceeded to the faid title and dignity of Earl of Derby, and died feised thereof, to him and the heirs male of the body of the faid Thomas Earl of Derby; and of the faid title and dignity of Lord Strange, to him and his heirs.

That the said title and dignity of Lord Strange came, by mefne descents, to the then late Earl of Derby, who died without ifsue in 1735.

That the faid James Duke of Athol, was coufin and next heir to the faid then late Earl of Derby, and great grandfon of the said James Lord Strange, and confequently entitled to the faid title and dignity of Lord Strange. The House of Lords refolved, that the peti- Lords' Jour. tioner was entitled to the faid barony of Strange, created by the faid writ in 3 Cha. 1.

Id. p. 39.

vol. 25. P.

112.

$ 74. Richard Earl of Burlington, in the year 1737, Lords' Jour. claimed the dignity of Baron Clifford; ftating that Robert de Clifford was fummoned to parliament in 28 Edw. 1. as a baron; and that the faid barony came by mefne descents, to Henry Lord Clifford, who was created by king Henry 8. Earl of Cumberland, to him and the heirs male of his body.

VOL. III.

P

That