Journ. Vol. the House of Lords by a writ directed Jacobo Strange, Chevalier, and was seated in the place of the ancient barons of Strange of Knockin, though that barony was not in his father. This title descended to William Earl of Derby, who died without issue in 1735. James Duke of Athol, who was the heir general of William Earl of Derby, claimed the barony of Strange, created by this writ of summons; stating, that King Henry VII. 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 mesne descents to Ferdinando Earl of Derby, who died seised thereof, leaving three daughters; that the said Ferdinando did not die seised 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 summons to parliament, descended to his said three daughters. That the said title and dignity of Earl of Derby came to William, brother of the said Ferdinando, as heir male of the body of the said Thomas: but the said William never was seised of the title or dignity of a baron. That James, the petitioner's ancestor, whose heir he was, eldest son of the said William, was summoned in 3 Cha. 1. as a baron, the writ being directed Jacobo Strange, Chevalier; and being also summoned to several succeeding parliaments, sat and voted by the title of Lord Strange, in the lifetime of his father, the said William Earl of Derby. That upon the death of the said William Earl of Derby, the said James Lord Strange succeeded to the said title and dignity of Earl of Derby; and died seised thereof, to him and the heirs male of the body of the said Thomas Earl of Derby, and of the said title and dignity of Lord Strange, to him and his heirs. And the said title and dignity of Lord Strange came by mesne descents to the then late Earl of Derby, who died without issue in 1735. That the said James Duke of Athol was cousin and next heir to the said then late Earl of Derby, and great grandson of the said James Lord Strange, and consequently entitled to the said title and dignity of Lord Strange. That the only objection which had been made to his claim was, that the heralds ranked the Lord Strange in the place of the ancient barons of Knockin; from which two arguments were drawn,-1st, That the said James had no right by descent to the old barony of Strange of Knockin, because that descended to the three daughters and coheiresses of Ferdinando; and the writ. of summons directed to him by the name of James Strange, Chevalier, could not operate as a new creation, because he was not ranked as puisne baron, but took an ancient place. 2d, Though the rank given by the heralds to the Lord Strange could not take from him his right to sit and vote as a lord of parliament, by virtue of the King's writ, yet it was to be looked on as an evidence, that the King thought the old barony of Strange of Knockin was in William Earl of Derby, and intended to summon the Lord Strange into his father's barony; and therefore, William Earl of Derby having no barony into which his son could be summoned, the King was deceived. To which it was answered, that the fact of Ferdinando's having left three daughters was then fully known; for it appeared by an entry on the Journals, Vol. III. 841. that upon a claim made by Anne Countess of Castlehaven, the eldest daughter and one of the coheirs of Earl Ferdinando, it was ordered that the writ of summons, and the rank and place of the said James, should be no way prejudicial to the right and claim of the said Anne, or any of the daughters and coheirs of the said Ferdinando. That the King's grant of nobility by writ of summons was not governed by any of the rules by which his gift of lands was governed at the common law. Lords' Journ. Barony of Lords' Journ. Printed case, 1737. The King's gift of lands was not good, but by his letters patent, and by special words of grant. No inheritance passed from him without the word heirs and if he was, deceived in the motive which induced him to grant, his grant was void, and he might by his prerogative repeal it by scire facias. But if a commoner was once summoned to parliament, and sat, his blood was ennobled, and his title and dignity descended to his heirs; though the King's motive to summon him was merely personal, viz. to have his advice and counsel; though there were no words in the writ of summons from which the King's intention could be collected, to give to the person summoned the state, title, and dignity of a baron, much less to expound it an estate of inheritance. When the person summoned sat, the writ of summons had its full effect, and could not afterwards be avoided, or made not to have been. His creation into the state and dignity of a baron was by operation of law, in consequence of his once sitting; and did not depend on the King's intention, which it would be of dangerous consequence to be guessing at, after such a length of time. The only point on which such a barony depended was, whether the person summoned sat. If he once sat in parliament, the law ennobled his blood, and gave him a barony in fee. The House of Lords resolved, that the petitioner was entitled to the said barony of Strange, created by the said writ in 3 Cha. 1. 53. In the next year, Richard Earl of Burlington claimed the dignity of Baron Clifford; stating, that Vol. XXV. 112. Robert de Clifford was summoned to parliament in 28 Edw. 1. as a baron, and that the said barony came by mesne descents to Henry Lord Clifford, who was created by King Henry VIII. Earl of Cumberland, to him and the heirs male of his body. That the said titles came by mesne descents to George Earl of Cumberland, who died, leaving only one daughter, the Lady Anne, 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 Anne Clifford, from whom it descended to the daughters and coheirs of the then late Earl of Thanet. That Henry Clifford, (the petitioner's ancestor,) eldest son of the said Francis Earl of Cumberland, was summoned to parliament in the lifetime of his father, in 3 Cha. 1., without any letters patent, the writ being directed Henrico Clifford, Chevalier, and sat 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 Elizabeth 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 said Henry Clifford sat and voted in parliament, was descended to the petitioner, who was sole heir to the said Henry Lord Clifford. The House of Lords resolved, that the petitioner d. 130. was entitled to the barony of Clifford, created by the said writ. 54. There can be no doubt but that the Crown, in the two preceding cases, issued its writs of summons upon the idea that the baronies, by the names of 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. 55. It is observable, that in the two preceding cases the claimants stated, that the baronies, by the names of which their ancestors were summoned, were not then vested 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 Is the same as that of the an cient barony. Manners of Barony of Sydney. Printed case, 1782. in his father, and that of a similar writ, by the name of a barony, not vested in his father. 56. This idea was probably first suggested by the "Inquiry into the Manner of creating Peers;" where, 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 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. 57. 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 |