76 a. Ante, c. 1. Rym. Fœd. 4 Inst. c. 40. Descent of dignities by writ. Barony of Collins 291. 1 pears to have taken place in the descent of dignities by tenure, to females, as well as to males. For Bracton, in treating of the partition of estates among coparceners, says, that where a mansion or castle was caput comitatus or baronia, it was not divisible, propter jus gladii quod dividi non potest; for by such a division earldoms and baronies would be destroyed. Per quod deficiat Regnum, quod ex comitatibus et baroniis dicitur esse constitutum. Now, as the eldest sister had a right to the principal mansion jure esnecia, to which, if it was caput comitatus, or baronia, the service of attending parliament appears to have been always annexed, she would, in those times, have been entitled to the dignity. And this was exactly conformable to the feudal law, in which an indivisible feud descended to the eldest daughter. 3. The descent of earldoms and baronies in the reign of Edward I. appears, from the answers of the parliaments of England and Scotland, previous to the adjudication of the succession to the crown of Scotland, to have been to the eldest daughter. And Lord Coke has cited a charter of King Edward III., in which the right of the eldest sister to the earldom of Pembroke is fully recognized. 4. With respect to dignities by writ, whatever doubts existed formerly respecting their being hereditary, it appears to have been fully settled in the time of Lord Coke, that they were descendible to all the lineal heirs of the person first summoned. The right of primogeni ture takes place among males; and, in default of males, they are descendible to female heirs, and transmissible by such female heirs to their descendants. 5. This doctrine was admitted in the case of the barony of Grey of Ruthyn, in 1640: but was more fully considered, and solemnly established, in the following case. 6. In 1673, Catherine Lady O'Brien claimed the barony of Clifton of Leighton Bromswold; and her petition having been referred to the House of Lords, the Committee of Privileges reported-"That Jervas Lord Clifton was summoned by writ to parliament, 6 Jac. 1., by the title of Lord Clifton of Leighton Bromswold; so as the barony, being a fee simple, ought to descend from the said Lord Clifton upon his heirs; and that the Lady Catherine O'Brien being the heir, gradually and lineally descended from the said Lord Clifton, the barony did of right descend to her and her heirs." It was ordered that the judges should give their opinion in this case; which they did in the following words: XII. 629. "The Lord Chief Justice of the King's Bench, Lord Journ. Vol. Chief Justice of the Common Pleas, Chief Baron Turner, Baron Littleton, Justice Atkins, Justice Ellis, and Baron Thurland, were unanimous in their opinions, that taking the case in fact to be as his Majesty's Attorney-General reported it to be, and as it stood transmitted to that House, they found it to be thus, as to that lady's claim of the said barony. That Sir Jervas Clifton was summoned to parliament by the name of Jervas Clifton of Leighton Bromswold, by writ dated 9 Ja. 1.; that accordingly he did come and sit in parliament as one of the peers of England; that he died 16 Ja. 1., leaving issue behind him, Catherine, his sole daughter and heir, who married to the Lord Aubigny, afterwards Duke of Lenox; that the said duke, 17 Ja. 1., was, by letters patent, created Baron Leighton of Leighton Bromswold, in the county of Huntingdon, to him and the heirs male of his body, whereof none were then living; that the petitioner was lineally descended from him, and was his heir, (by the said report,) and as such then claimed the barony of Clifton. All which being admitted to be true, they were of opinion, first, that the said Jervas, by virtue of the said writ of summons, and his sitting in parliament accordingly, was a peer and baron of this kingdom, and his blood thereby ennobled ; secondly, that his said honour descended from him to Tit. 29. c. 3. The half blood may inherit. 1 Inst. 15 b. 3 Rep. 42 a. Tit. 29. c. 3. Cro. Car.601. Catherine, his sole daughter and heir, and successively after several descents, to the petitioner, as lineal heir to the said Lord Clifton; thirdly, that therefore the petitioner was well entitled to the said dignity." The House resolved, that the said Catherine Lady O'Brien had right to the barony of Clifton. (a) 7. The descent of dignities by writ is, in some respects, different from that of lands; for possession does not affect it, as every person claiming a dignity must make himself heir to the person first summoned; not, as in the case of lands, to the person last seised. 8. In consequence of this principle, a brother of the half blood shall inherit a dignity, in preference to a sister of the whole blood. Thus, Lord Coke says, "Of dignities, whereof no other possession can be had but such as descend (as to be a duke, marquis, earl, viscount, or baron,) to a man and his heirs, there can be no possession of the brother, to make his sister inherit: but the younger brother being heir (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. 1. 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 Journ. Vol. IV. the opinion of the judges was required; who resolved, 8 Term R. 213. that there was not any possessio fratris of a dignity, but 149. (a) The doctrine established in this case has been admitted in a great number of modern cases, which will be stated hereafter. 蜜 it should go to the younger son, who was heres 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. 11. In the case of the barony of Fitzwalter in 1668, Collins 286. 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. dignities. 12. When dignities by writ were first introduced, Abeyance of 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 impar tible nature, it fell into a dormant state, and was said to be in suspence or abeyance. 13. Lord Coke has stated a case in 23 Hen. 3. 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." 1 Inst. 165 a. Fitz. Ab. Tit. Partition 18 14. The above observations of Lord Coke do not seem to be well founded; for it appears from Dugdale, Bar. Vol. I. 44. Collins 99. Dugd. Bar. Collins 175. Journ. Vol. III. 535. that Ranulph Earl of Chester died in 16 Hen. 3. without issue, leaving four sisters, of whom the eldest, 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 in 1237, according to M. Paris, leaving four sisters: 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 co-heirs, 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 Chief Justice Crewe, that he, with the Lord Chief Baron, Justices Doderidge, Yelverton, and Baron Trevor, had considered the titles of the competitors to the baronies |