\^^ 
 
 IW^-W'-' ^C-ir^'pfi^^ j 
 
 '^^^ 
 
 
 Vi'--'Yi^i!m 
 
 n inquiry into the Origin and 
 ^'^mner of Creating Peers 
 
 By 
 
 Richard West 
 
 \?r^.;^r:^i! 
 
 -^.'
 
 UNIVERSITY OF CALIFORNIA 
 AT LOS ANGELES
 
 A N 
 
 EN Q^ U I R V 
 
 , INTO THE 
 
 ORIGIN AND MANNER 
 OF 
 
 CREATING PEERS, 
 
 By RICHARD WEST, Efq. 
 LORD CHANCELLOR OF IRELAND. 
 
 'ANTIt^AM EXqyiRITE MATREM. 
 
 VIRO, 
 
 LONDON: 
 
 i»RINTED FOR. T. EVANS, NEAR YORK'' 
 
 BUILDINGS, IN THE STRANP. 
 
 MDCCLXXXII,
 
 
 T 
 
 ^ THE EARL OF SHELBURNE, 
 
 A NOBLEMAN 
 
 >- 
 
 CO WHOSE ARDENT ZEAL FOR HIS COUNTRY 
 
 HAS RENDERED HIM 
 
 THE ORNAMENT OF THE PEERAGE, 
 
 AND THE HOPE OF BRITAIN, 
 
 THIS EDITION OF 
 ;.ORD CHANCELLOR WEST'S TREATISE 
 
 IS, 
 oo 
 
 g WITH GREAT DEFERENCE, 
 
 <o INSCRIBED, 
 
 BY HIS LORDSHIP'S 
 • MOST OBEDIENT 
 
 HUMBLE SERVANT, 
 
 QZ 
 
 a. 
 
 <: 
 
 March i, 1782, 
 
 THE EDITOR, 
 
 C9 
 
 A z
 
 PREFACE. 
 
 TH E following Pamphlet, the Produce 
 tion of a Pcrfon eminent in his Time 
 for legal and conftitutlonal Learning, con- 
 tains fo full a Difcuflion of a very curious 
 and important Subjeft, as to render it ex- 
 tremely ufeful to the Lawyer, the Legiflator, 
 and the Antiquarian. Though written at a 
 particular Period, and with a particular View, 
 the Subjed: of it will claim Attention at all 
 Times : And the honourable Notice it re- 
 ceived lately in a very Auguft Aflembly feems 
 to demand, that it fhould be exempted from 
 the ufual Fate of Fugitive Pieces, and the 
 Knowledge of it more generally diffufed. 
 The Author of it was Richard fVeJl, Efq. a 
 Gentleman brought up to the Profeffion of 
 the Law, and who had arrived, when this 
 Performance was originally publiihed, at the 
 Honour of being one of the King's Counfel. 
 6 Jn
 
 VI 
 
 P R E F A C E. 
 
 In the Fifth Parliament of Great Britain he 
 reprefented the Borough of Grampotifid^und in 
 the Sixth that oi Bodwyn. On the 31 ft Day 
 oi May 1725, he was appointed Lord High 
 Chancellor of 7r^/<z«^, in which Kingdom and 
 Station he died, on the 3d Day of December 
 1726. He married a Daughter of Bifhop 
 Burnet ; and left one Son, who is well known 
 as a polite Scholar.
 
 A N 
 
 ENQUIRY 
 
 I NT T H E 
 
 Manner of Creating Peers. 
 
 THE Leader* of thofe warlike Nations whfl 
 overturned the koman Empire, did in Proceft 
 cf Time become Kings of the refpeftive Provinces 
 which they conquered : And by the Difpofition and 
 Regulation of Property, which they refpeftively efta- 
 blilhed among their Followers, give Birth to what was 
 afterwards called the Feudal-Lanu. For by the Teudcd- 
 Laiu muft not be intended, thofe Laws by which the 
 Goths (or by whatfoever other Name the glorious 
 Founders of the European Monarchies were known) 
 were governed while they were as yet in their own 
 Countries, but thofe which, after the Acquifition of 
 their feveral Provinces, the Conquerors by a commoa 
 Neceffity were obliged to obferve, that they might be 
 able to keep PoffefEon of their Conquefts. And hence 
 is it that the Form of their Civil Government was 
 taken from that of their Army. The antient Inha- 
 bitants of the Countries conquered, not being to be 
 trufted with too large^a Share of Property, the Dilbi- 
 bution of Lands (which was the Reward of the con- 
 quering Army) was made with a View to the keeping 
 them in perpetual Sabjeftion. 
 
 But without entering particularly into the Hiftory of 
 the Rife and Progrefs of the Feudal-Law, it will be 
 fufficient to obferve, that in a fmall Compafs of Time 
 it fpread over all Europe ; the feveral Conquerors of 
 the European Provinces being engaged, by aLikenefs of 
 B Circumdances;
 
 ( 2 ) 
 
 Circumllances, to eftablifli Laws flmilar to each other. 
 And a Kingdom, upon their Principles, is to be con/r- 
 tiered no otherwife than as one great Seignory or Do- 
 minion, of which the King is the Chief Lord. For 
 the whole conquered Territory was at firft divided in- 
 to two Parts : One of which was referved for the Sup- 
 port and Revenue of the Crown, and was manured 
 by the proper Tenants and HufSandmen of the King. 
 Which Share of the Lands was th-e facrum patrimonium 
 frincipis, and the infeparable Inheritance of the 
 Crown, and is ftyled in the Book of Domefday, Teira 
 Titz Her- Regis, and is now known in Law by the Name of Jn- 
 btrt Stat, cient Demejhe. The Occupiers of ihefe Lands were- 
 de Militi. all Tenants in Socage, and (among other their Privi- 
 ly Ed. II. leges) they could not by Law be obliged to ki\t in the 
 Cap. 6. Wars. 
 
 For the Defence therefore of their new eftablifhed 
 Kingdoms, the other Part of the Land was divided 
 among the Military Men ; in a Manner fo like what 
 was pradifed by Alexander Severus in fomc Frontier 
 I'rovinces of the Reman Empire, that it has been thought,' 
 by Men of very confiderable Learning, to have beea 
 the Foundation of the Feudal-La-w : The Barbarians 
 making Ufe of that Method, which they found em- 
 ployed by that Emperor for the Defence of his Provin- 
 ces, to maintain themfelves in the Poflcfnon of theirs. 
 Jn vita As the Words of JBUus Lampridius, from whom this 
 Alexandri Paflage is taken, are very remarkable, I have thought 
 T^rveri. fit to tranfcribe them. " Sola qua: de hoftibus capta 
 •' Aint limitancis ducihus & militibus donavit, ita 
 " ut eorum ita eflent, fi hairedes illorum militarent, 
 ** nee unquam ad privatos pertinerent dicens attentius 
 " eos militaturos, fi etiam fua rura dcfcnderent." 
 For this Purpofe therefore, Provinces were granted 
 to £)«>{«, Sub-Divilions of them, or Counties, to Earls, 
 CaiUes and Seigr.ories to Barens ; fubjeifl, among others, 
 to this Condition, of ferving in the Wars with a pre- 
 ftribed Number of Men. 
 
 Thcfe Fiefsy as they were afterwards called, were 
 originally at molt but for Term' of Life ; and when 
 iti Procefs of Time they became Hereditary, this Con- 
 dition of military Service was fo annexed to the Poflef- 
 iion of Land, that every Donee and his Heirs were 
 obliged, not expaao velcondiao, but of Common Right, 
 without any cxprefs Rcfervation in the Grant for that 
 
 Purpofe,
 
 ( 3 ) 
 
 Purpofc, to render all Feodal Duties and Services 
 whatfoever. 
 
 This Feudal Laiv prevailed fo univerfally, that while 
 the Ci-vil La'w was buried for feveral Ages and for- 
 gotten, it was, as it were, the jus gentium oi Europe. 
 As iorEngUitiu, in particular, the Civil Laiuvtzs fcarcely 
 ever admitted, whenas the Bulk of our Ccmmon Law 
 is nothing but Feudd Cuftoms. And Braaon thought, 
 that Counties and Baronies were in a Manner eflential 
 to the Being of a Kingdom ; Regnujn, fays he, quod ex Lib. ii. 
 xomitatibtu 6f baroniis dicitur ejfe conjiitutum : And the c. 34. 
 Author of the Mirror o/jujiices, after mentioning fe- 
 veral of the Royal Prerogatives, adds, " Thefe C. i. fs. 3. 
 *' Rights the firft Kings held, and of the Refidue 
 " of the Lands they did enfeofFe the Earls, Barons, 
 •* Knights, Serjeants, and others, to hold of the King 
 *• by the Services provided and ordained for the De- 
 «• fence of the Realm, according to the Articles of 
 ** the Antient Kings." And for this Reafon therefore Co. Lit. 
 do all our Lawyers affirm, that no Subjeft does poflefs fs. i. 
 any Land in England abfolutely free, but that it is all Smith de 
 held mediately or immediately of the Crown, it being Rep. 1. 3. 
 but Partially or Conditionally, and not Abfolutely c. 10. 
 granted to him. ^ Somner 
 
 At the Time of the Coiiqueft the Feudal Lew, as it Gavel, 
 was underltood and praftifed m France, flourifhed in p. 109, &c. 
 its full Vigour in Normandy. Not that the Cuftoms of 
 Normandy were entirely the fame with thofe oi France^ 
 fince that was impoffible, each Province of that King- 
 dom, even at this' Day, having dilHndl and different O-uvres 
 Cuftomaries, though all founded upon the fame Prin- deBafnag. 
 ciples, as appears bv their greateJl Lawyers, conftantly Vol. L 
 explaining the Cuiloms of one Province by thofe of 
 another. But that (in like Manner) Rollo upon his 
 Conqueft oi Neujiria, afterwards called Normandy, for 
 the Prefervation of his Acquifition, did eftablilh Laws 
 (ys his Circumftances were the fame) much refembling 
 thofe which had been enafted by the Franks, upon 
 their Canqueft of France, which, as Intercourfe and 
 Commerce bet\veen the two People encreafed, acquired 
 a iHil greater Likenefs. Now although there were 
 Military Tenures in England during the Time of the 
 Saxons, yet it is certain that they underwent a very 
 great Alteration by the Acceflion of William the Con- 
 queror to the Throne, who eftablilhed many Feudal 
 
 R z Cuftoms
 
 ( 4 ) 
 Cultoms for Law, that he brought with him from 
 
 Fiefs had in France, not many Years before our Con- 
 queft, been made Hereditary, with no other View 
 than to fecure the Succeflion of the Crown to one Fa- 
 mily. For Hugh Capet, who ufurped the Crown of 
 France, to the entire Exclufion of the Carolo-vingiatt 
 Line, in order to make it the Interelt of all the leffer 
 Nobility (for perhaps fome of the greater Fiefs had 
 been made Hereditary fooner through the Weaknefs of 
 the French Princes) to fupport his Title, did in the 
 Year 988 grant to them, that from thenceforth they 
 fhould hold their Fiefs to them and their Zfmv for ever 
 in a Feodal Manner, by the Ceremony and Oath of 
 Homage anA Fealty. This Example was wifely followed 
 hymUiam theConqueror, who immediately transferred 
 (if Sir Harry SpeUman is to be believed) this Frenck 
 Cuftom of making Fiefs Hereditary into England, neg- 
 lea.ng the former Praftice of our Saxon Anceftors, 
 who had till that Time continued the Tenure of their 
 Ftefs either Arbitrary, or at leaft in fome definite Li- 
 mitation, as for Life, k^c. But what makes this Spe- 
 culation the more probable is, that for a long Time 
 after, the Conqueft, the Rules of the Defcent of Land 
 at the Common Law were very uncertain. Which is 
 exaaiy conformable to what happened abroad durinjr 
 the Infancy of the Feudal Law, in which the Suet 
 ceffion to Fiefs was but by flow Degrees reduced to 
 l-eu- a Certainty. «' Antiquiflimo tempore fic erat in do- 
 dor. 1. * minorum poteftate connexum, ut quando vellent. 
 m. 1. «* poflent auferre rem in feudum a fe datam. Poftei 
 
 *J vero eo ventum eft, ut per annum tantum firmi- 
 tatem haberent. Deinde ftatutum eft ut ufque ad 
 
 vitam fidehs produccretur Sic progre/Tum 
 
 •t^ o /• zr"/ ^'^^^'°' deveniret." My Lord Chief luf- 
 DeSuccef- tice Hales does obferve out of Clan-vil, that in the 
 fion. Lib. Reign of //-^^rp the Second, if a Man had two Sons. 
 V». c. 3. and the Eldeft died in the Lifetime of the Fathe 
 leaving a Son or Daughter, and then the Father diedj 
 
 '/i'T", r°"^'"°'l"^*''^'^''"''^'" ^^« Nephew or the Son 
 fhould fucceed as Heir to the Father. The Chief Tuf, 
 tice adds, that the better Opinion fecms to be for the 
 Nephew; but then this Obfervation muft be added, 
 that though Glan-uil does declare for the Nephew, it ia 
 Wt^cqerally but upon Condition ^ for if the Father of 
 ^ th« 
 
 Lib.
 
 ( 5 ) 
 
 the Nephew had been by the Grandfather provided 
 for with a fufficient portion, and been as it were ma- 
 numitted and made/«/ J-m, in fuch Cafe the Nephew, 
 according to G/ati'vil, was not Heir. But if the Father 
 died during the Life of the Grandfather while he 
 was part of the Grandfather's Family, and/u6 ejus po- 
 tejtate, without any feparate Eftate of his own, in fuch 
 Cafe only was the Nephew Heir. " Ita dico fi pater 
 
 ** fuus non fuerit ab avo fuo foris familiatus — 
 
 *' fi quando partem terrae fuae affignet pater filio fuo 
 
 ** & leifinam faciat, tunc enim non poterint 
 
 *♦ hjeredes ipfius filii de corpore fuo aliquid amplius 
 ** petere contra avunculum fuum vel alium de refidua 
 " parte ha::reditatis avi fui." But befides what is now 
 obferved out of Glaifvil, it is certain that much hard- 
 er Cafes did happen at the Time that he wrote. For 
 fometime by the Feudal Laav, if the Father died leav- 
 ing feveral Sons, the Lord of the /"/V/^, though he was 
 obliged to give it one of them, was yet at Liberty to 
 grant it to which he pleafed. " Progreflum ell ut Lib. Feud. 
 " ad filios deveniret, in quem, fcilicet dominus hoc y^i fypj.^^ 
 ** vellet beneficium confirmare." 
 
 That the King had a prerogative fomewhat like this 
 in relation to Female Heirs is certain, for by /"/>«- Prefcrip- 
 Herbert it appears, that if a Baron died leaving only tion, 3 H. 
 three Daughters, if the two Eldeft were married, l^c.\\\. n. 56. 
 the King had the Marriage of the Youngcll, to whofe 
 Hulband the King could grant the whole Inheritance 
 of the Father, entirely excluding the other Sifters. 
 But this was not all, for during the fame Reign of 
 Henry IL a Man died leaving a Son by a firft Wife, and 
 another Son by a feccnd Wife, the King claimed and 
 adually exercifed the Prerogative of bellowing the Fief 
 upon the fecond Son, though by a difterent Ventre. 
 Becaufe he judged him to be a Man abler to perform 
 Knightfervice than the other. " Galfridus deMande- Mag. Rot, 
 
 " ville fenex tenuit baroniam de Merfewude & 10. 
 
 *' genuit de prima uxore fibi defponfata Robertum Joa. Re. 
 
 " de Mandevilla. Galfridus autem fenex de Man- Ro. 11. b, 
 
 ** devilla aliam uxorem defponfavit de qua Dorfet U 
 
 ** genuit Radulphum de Mandevilla. Qui pod obitum Somerfet. 
 *' ipfius Galfridi fenis tenuit praediftam baroniam per 
 *• voluntatem Henrici Regis eo quod fuit melior Mi- 
 *< Jcs, quam Robertus de Mandevilla frater ejus." 
 
 Thfi
 
 ( 6 ) 
 
 The Army of William the Conqueror was compofcd 
 of feveral Nations, who, in order to make their Fortunes 
 » by the Spoil of the EngliJIj, had lifted themfelvcs in 
 
 Order. the Service of the Norman. '* Galli namque St Britones, 
 Vital, in " Piftavini & Burgundiones, aliique populi Cifalpini 
 Vi. Wi. 2. " ad bellum Tranfmarinum convolarunt & Anglics 
 ** praedsE inhiantes." And among all thofe People, as 
 well as in Normandy^ the Feudal Lauj not only prevailed, 
 but was underflood almoft in the fame Manner. Now, 
 as I do not propofe to write a juft Treatife upon the 
 Original and Nature of Peerage, but only to enquire 
 into the Manner how the Prerogative of creatino- 
 Peers was antiently exercifed by the Crown, I (hall 
 not carry my prefent Refearch higher than the Con- 
 Tit, of queft. What Eftate the Q\i\tiThanes among the Saxons 
 Honor, p. (who Mr. Sclden fays were the King's immediate 
 507 — 8. Tenants of Lands held as of his Perion by perfonal 
 Services, which therefore he thinks to be a Kind of 
 Grand-Serjeantry) had in their Honours, or how they 
 were created, hot being neceflary to be determined in the 
 lixamination of a Point that as to the firft Part of it 
 turns chieHy upon the Feudal Laiv, as it was under- 
 flood in England foon after the Conqueft. 
 
 Peerage, according to the common Opinion, is by 
 Three Manner of Ways, that is, by Tenure, by Writ, or 
 by Letters Patents. But before I enterinto the Confidera- 
 tion of either of them, it muft be obferved that it is 
 agreed by all, that from the Conqueft until the latter End 
 of the Reign oi Henry III. the Barons were all Feudal 
 and by Tenure, and confequently their Appearance in 
 Parlianrient, during that Time, can be confidered no 
 otherwife than as a Service annexed and incident to 
 the Pofleflion of their Lands. Henry III. according to 
 In Britan. the learned Cambden, firft began the Method of crea- 
 ting Barons by Writ, thereby excluding fuch of the 
 lefler Barcns by Tenure as hepleafed, and beftowing an 
 equal Degree of Honour and Privilege upon Perfons 
 who were not Barons by Tenure, as upon thofe who 
 were. Which Method of proceeding continued until 
 the nth of Richard II. who firft introduced the Qxt?^- 
 tion of Barons hy Patent. Thefe three Periods of Time, 
 which exhibit fo many different Stages of the Englijh 
 Peerage, are fo remarkable, that I think I cannot ob- 
 ferve a better Method than to make them the Heads of 
 the following Difcourfe. 
 
 Thft
 
 ( 7 ) 
 
 The wltole of Parliamentary Bufinefs mSy be reduced 
 under the two general Heads of y/</x'/« and Con/ent ; io 
 fur as the Confcnt of the Barons was wanting to any 
 Propofition that might be made unto them, their Pre- 
 icnce in Parliament, and Signification of their AfTent, 
 was abfolutely neceflary to enable the King to do fomc 
 Ad, which by Law could not be done without their 
 Confents. And as to the Matter of Advice, their At- 
 tendance is to be confidered only as a Feudal Service, 
 which by the Tenure of their Lands, and the Oath of 
 Homage they had taken, they were obliged to pay unto 
 the King as to the Superior Lord of their fie/i. For it 
 was a Notion common to all the Gothic Nations, that 
 their Kings had no Right to any Duties or Services 
 whatfcever, but what were purely Feudal. Nor did 
 any Man think himfelf obliged to the Performance of 
 any further Service, than was annexed to the Tenure of 
 his Lands. And therefore as to all other Things that 
 ViCxtExtrar Feudal, the particular Confent of the Parties, 
 who were to perform them either in Perfon or by their 
 Reprefentatives, was abfolutely requifitc. Now it is 
 abnird to fuppofe that the Conqueror's Native Normans^. 
 and much more fo that the Foreigners, who were no 
 inconfiderable Part of his Army, fluflied with the 
 Merit of conquering a Kingdom for their General, 
 would fufFer themfelves to be worfe ufed in England 
 than they had been in their own Country. That Prince 
 therefore (w ho was not likely to abate any Thing of 
 his juft Prerogative), never pretended to any Thing 
 from his Followers, that was not founded upon ti\e 
 known Principles of the Feudal Lawut as appears by the 
 Laws which he enafted ; " Volunius etiam ac fimiter Inter Lc« 
 ** prjecipimus, ut omnes liberi homines totius ^^5 -^^ i^ 
 ** monarchia: regni nollri prasdidi habeant & teneant Lcx. 55. 
 *• terras fuas & poflefilones fuas bene Sc in pace liberc 
 *' ab omni exadione injulU & ab omni tallagio, ita 
 *• quod nihil ab eis exigatur vel capiatur nifi fervitium 
 *' fuum libcrum quod de jure nobis facere debent Sc 
 " facere tenentur, Sc prout ftatutum eft cis & illis a 
 " nobis datum & conceffum, jure hereditario in 
 •* perpetuum per Commune Concilium totius regni 
 " noftri." 
 
 Parliaments were not formerly fo regular in point 
 of Form as they now are, fince even the Number of 
 Xnight* to be chofen for each Shire, to fcrve in the 
 
 Houfe
 
 ( 8 ) 
 
 Houfe ofCommons, was for fome Time uncertain. The 
 firft Writs for the Choice of whom that are extant, are 
 M. 6. dor. ^^ ^^' ^' ^y ^^^^^ ^wo Knights only, as at this Day, 
 weredircfled to be chofen for each County: But then 
 the King not being fatisfied with that Number, as ap- 
 pears by another Writ entered upon the fame Dorfe, 
 the Sheriffs are commanded to caufe Two other 
 Knights to be chofen ; which Way of proceeding be- 
 ing at laft thought inconvenient, was remedied by 
 the Statutes of 5 R. II. C. 4. 7. //. 4. C. 15. and feveral 
 other fubfequent Statutes, which have contributed to 
 the reducing the Houfe of Commons to that Method 
 and Form we now fee it in. Now one Reafon why 
 thefe Circumftances were not determined in the earlier 
 Times may poflibly be, that they were then more con- 
 cerned about the Eflentials of Government than the 
 Forms. When no Prince in Europe had as yet imagined, 
 that he had a Right to rule in all Things without a 
 Parliament or Affembly of Eftatcs ; provided the Con- 
 fent of the Pcrfons, who were either to pay or perform 
 any Thing extra-feodaly was bond fide applied for and 
 obtained, they were not over-folicitous concerning the 
 Manner in which it was applied for and obtained. But 
 as the People grew jealous of the Crown's defigning 
 to impofe Contributions, \^c, upon them without their 
 Confent, thefe (otherwife) Formalities were thought 
 neceflary to be regulated and fixed. For certainly fuclr > 
 Things have been formerly done by each Houfe in 
 Parliament, and that without any Complaint, which if 
 they were now to happen, would be univerfally con- 
 demned as unparliamentary and illegal. Both Lord* 
 and Commons have feparately and by themfelves given. 
 Aids and Subfidies unto the Crown ; as for Inftance, 
 Rot. Pari ^" ' ^ ^^' ^^^' *^^ Lords granted to the King the Tyihe 
 J. ^* * of all the Corn, ^c. growing upon their Demefnes j. 
 the Commons at the fame Time granting nothing, nor 
 anywife concerning themfelves, with what the Lord* 
 thought fit to grant out of their own Ellates. At other 
 Times the Knights of Shires feparating themfelves, 
 as it were, from the reft of the Commons, and uniting 
 themfelves to the Lords, have granted a Subfidy, 
 and the Reprefentatives of Cities and Boroughs have 
 likewife, feparately by themfelves, granted the Subfi- 
 Rot. Par. dies to the Cown, as appears by a Writ for the Col- 
 i>.i.m.22. ledion of a Subiidy ia z\SJ. I. ** Rex, &c. Cum 
 
 *• Comites
 
 ( 9 ) 
 
 *' Coniltes, Barones, Milites, &c. nobis, &c. fecerunt 
 " undecimam de omnibus bonis fuis mobilibus. Et 
 " Gives & Burgenfes, &:c. feptimain de omnibus bonis 
 ** fuis mobilibus, &:c. nobis curialiter conceflerint,&c/* 
 
 But further, when any Affair happened which was . 
 not univerfal, but afFefted only particular Perfons, it 
 was common for them only to be fummoned. Hence 
 is it, that we fee among the Rolls feveral Writs to this 
 Purpofe, as, e. g. Sutntnonit tones ad colloquium, de njeni- 
 endoadconfilium,icz. Which, though they have fometimes 
 been millaken for Parliamentary Writs, are yet nothing 
 but Summons of particular Perfons to confult, and 
 to contribute towards the Expence of an Aftair, in 
 which they only (or at leail chiefly) were concerned. 
 As in 35 Ed. III. there is a Writ direfted to Humfry Earl 
 of Ntrthampton (which Dugdale however has printed ' 
 
 in his Colleftion of Writs of Summons to Parliament), 
 wherein, after reciting the Confufion the Affairs of. 
 Ireland were in, and that he and feveral other Englijh 
 Lords had large Pofleflions in that Kingdom, and were 
 therefore more particularly obliged to the defence of 
 it-, it follows •• Volumus vobifcum & cum aliis de Rot. 
 " eodexn regno (Angliae fcilicet) terras in dida terra Clauf. 35. 
 ** habentibus colloquium habere & traftatum vobis E. 3. m. 
 " in fide & ligeancia, &c. Mandamus, &c." But 36. dorfo. 
 that the Reader may fully fee, how ftriftly the 
 Principle of no Perfon's being to be taxed without their 
 own Confent was obferved, he mull know, that upon 
 the fame Occafion Writs were likewife direfted even 
 to the Ladies, who were Proprietors of Land in Ire- 
 land, commanding them to fend their proper Attornies, 
 to confult and confent to what fliould be judged v 
 necefiary to be done, in relation to that Affair. " Rex 
 •' ^cz. Marix comitiffa; Norfolc. falutem, &c. Vo- 
 
 *' bis in fide & ligeancia, &c. mandamus quod . 
 
 •• aliquem vel aliquosde quibus confidatis apud Weft- 
 
 " mon. mittatis ad loquendum nobifcum . 
 
 *' fuper diftis negotiis — - & ad faciendum & confen- 
 *• tijcndum nomine veflro, fuper hoc quod ibidem 
 '• contigerit ordinari." 
 
 If this Equity was therefore obferved with refpeft 
 to particular Perfons, it is no Wonder that it was al- 
 ways thought necefiary, as well as reafonable, to con- 
 fult the whole Kingdom in Parliament, upon all Af- 
 fairs and Demands, which were extra-feodal and of a 
 C general
 
 ( 10 ) 
 
 general concern. And therefore that great King Ed. t. 
 
 Was fo fenfible of the Juftice of this Way of Proceeding, 
 
 that heinferted in his Writs of Summons to Parliament, 
 
 as a firlt Principle of Law, and as his Reafon for fum- 
 
 moning Parliaments, That in every Affair ivhich related 
 
 to the ivhole Kingdom, the Confent of the ivhole Kingdom, 
 
 ought to he required. The Words are fo noble that I 
 
 Rot. may be forgiven if I tranfcribe them. *' Rex, &c. 
 
 Clauf. 24. " Sicut lex juftiffimaprovida circumfpeftione facronim 
 
 Ed.I. m.4. ** principum ftabilita hortatur ut quod omnes tangit 
 
 Dor. ** ab omnibus approbetur, fic & innuit evidenter ut 
 
 *' communibus periculis per remedia provifa commu- 
 
 •* niter obvietur." 
 
 It is agreed univerfally, that the Peers or Lords of 
 Parliament do relate to, and ferve for the general good 
 of the whole Kingdom, and as it is agreed, that every 
 Peer fits in the Houfe of Lords in refpeft only of his 
 Barony, it will be neceffary to inquire into the true 
 Notion of the Word Peer, and likewife what conftituted 
 a Barony, during this firft Period of Time of which 
 we now treat. And although it is very true, that 
 there were Great or Common Councils both in Eng- 
 land and Scotland, before fo much as the Inftitotion of 
 Tenures of Land by Knight-Service, i^c. or of Ma- 
 nors in this Kingdom, and that therefore the Feudal 
 Laiv, cannot be confidered as the firft Original or 
 :lBradr. Foundations of Parliaments (as has been by fome 
 imagined), yet if we confider the Englijh Government 
 only as it has been fince the Norman Conqueft, it will 
 be found natural to look upon our Anglo-Norman Mo- 
 narchy to be in Great, what every Manor is in Minia- 
 ture, and that therefore our Parliaments do in a great 
 Meafure refemble, and may (not improperly) be iHIed 
 the Court Baron of the Kingdom. And I cannot but 
 think this to have been the Notion of Antiquity ; for 
 in the great Cafe between the two Kings of Navarre 
 and Cajiille, which was referred to the Judgment of 
 our Henry L and his Barons, the Judgment is entered 
 (if I may ufe that Expreflion in this Manner), Comites 
 £lf barones regalis curies Anglia adjudicaverunt. ,i 
 
 Some Authors, in order to magnify the Dignity of 
 Peerage have afferted, that the Term of Peer is properly 
 to be derived from the Roman Patricius, or at leaft from 
 the Patriciatus, which, in the Decadence of the Roman 
 Empire, was ufed to denote not only the moft confi- 
 6 derable
 
 I ' ( II ) 
 
 derab'e Dignity, butalfoOfficeof the Empire. As this 
 
 was criginally a French Notion, and ftarted parhaps Recher- 
 
 with no other View than to flatter the Peers of France, ches de 
 
 I {hall wave any further Confideration of it, fince in Pafquier 
 
 fail (upon Examination) the Term appears to be L. 2.0.9. 
 
 owing to a much more minute Original. And the 
 
 Word Peers or Pares is altogether feodal, fignifying 
 
 nothing but Men equal as to their Condition, Convaffals 
 
 in the fame Court, and Liege Men of the fame Lord. 
 
 ** Sunt autem Pares Curtis (fays Cujacius) qui & Cujac. 
 
 ** Pares curiae dicuntur nonnunquam & Pares domus. Com. in 
 
 " convaflalli, qui ab eodem domino eademve domo Lib. i. 
 
 *' feuda tenent ; non quafi Patricii, ut volunt ignari de feud. 
 
 *« feudorum:" With whom Sir //.arry 5/ Jwaw concurs, tit.i.p.lS. 
 
 when he fays " Pares dicuntur qui acceptis ab eodem In Gloffar* 
 
 " domino puta rege comit« & barone feudis pari 
 
 '* legevivunt. Et dicuntur omnes /*«rfj curiae, quod in 
 
 " curia domini illius cujus funt vaflalli parem habent 
 
 ** poteftatem, fcilicet, vaflalli regis in curia regni, 
 
 ♦' valTalli comitis in curia comitates, vaflalli baro- 
 
 •' nis in curia baronis." The Word Peer therefore, 
 
 though now it is by Cullom, and xaT i^oxn ; » appropriated 
 
 to the Peers of the Kingdom, was yet antiently equally 
 
 applicable to the Tenants of what Lord foever. I think 
 
 that I need not fpend more Time in fhowing the Senfe 
 
 of this Word. Every one knows that in Magna Chartd 
 
 it is ufed in the mofl: general Senfe " Nullus liber Cap. 29. 
 
 '* homo, Cjfr. nifl per legale judicium /«r/««y«oraOT." 
 
 But in the Laws of Henry the Firft, the Word Pares or 
 
 Compares is ufed in a perfeft Feudal Senfe, to denote 
 
 the Tenants of the fame Manor, '* In denelagaLafhe- Cap. 34. 
 
 *' lutes, nifl fupcr fanfla jurare poterit, i^c. Sivc in 
 
 *' comitatu, vel in quovis placito regis fiat de fua 
 
 ** vel alterius caufa, vel inter Compares in curiis vcl 
 
 *• divifis vel locis fuis." 
 
 But further it mull be obferved, that although thft 
 TcrmBarcn, as well as Peer, has been by commonUfage 
 appropriated to the Lords of Parliament, that yet an- 
 tiently it was ufed to fignify any Freeman whatfoever. 
 The Freemen of the City of London are by our old 
 Hiftorians frequently ^i\tA Barons, fo likewife of Tori , 
 and feveral other Places. The Barons of the Cinque 
 Ports retain their Name unto this Day. Nor is it fur- 
 prizing that this Word was fo applied by thofe Au- 
 thors, who were perfeftly ignorant not only of the 
 C 2 Elegancy»
 
 ( i2 ) 
 
 Elegancy, bat alfo of the Propriety of the Language 
 they wrote in. Very little therefore can be concluded 
 from the Phrafeofa Monkifli Hiftorian, who generally 
 chofe his Words, a c leaft as much for the Sai;c of the 
 Sound, as the Senfe. For the Citizens of Zc^.-./ow have 
 been lliled not only Banns but Heroes^ by Ingulphus ,\N\iO 
 giving the Charafler of one Singir.us, an Ofliccr cf what 
 may be called the London iV//////a, fays that he was 
 " Inter omnes Heroes Londojiicnfes viribus robuftifli- 
 ** mus." The true Senfe therefore of Words cf this 
 Nature is not to be taken from the Hiftorians, but from 
 the Lawyers, and legal Proceedings of Antiquity, 
 from Vv-hich it appears, that this Word came to be ufed 
 in aperfett Feudal Senfe, and to denote the chief Te- 
 nants of any Lord. For not only thofe v.^ho were the 
 chief Tenants cf the Crown, but alfo thofe who under 
 them held great Quantities of Land by Feudal Ser- 
 vices, were ftiled Barons, And the Term Barcn when 
 applied to the' Tenants of Land, was always relative 
 to fuch or fuch a Lord. The chief Tenants of the 
 Kingwere the^^rc77fj^^^/V, and fo ftiled todilHnguilh 
 them from the Barons of other Lords, Thus in Charta 
 D? tenen. Henrici L '• Si a modo exurgat, placitum de divifione 
 Comit. & " terrarum, fi intereft Barents rneos dominicos, trafletur 
 Hundred. *' placitum in curia mea." The Eight Barons of the 
 County Palatine of Chejicr are fo well known, that they 
 need not be here mentioned ; and the mofl confidcr- 
 able Tenants of the Abby o{ Ram/ey, are in a Charter 
 Lik Ra- of Henry the Firfl: ftiled Barons of that Abby, " Sciatis 
 meiien. a- << corr.m me teftificatum & recognitum per Barones de 
 pud Spel- *^ honore de Ramejia." Which Ufe of the Word is like- 
 man. ^\((. common to other Feudal Countries; thus in the 
 Sicilian Conftitutions, to add no more (and I make 
 choice of them as a foreign Inftance, becaufe their 
 Government, as well as ours, was of a Norman Origi- 
 nal, and is therefore in many P.'lrticulars, atleal^till 
 it was corrupted by Spanijh Vice-Roys, very fimilar to 
 th^t of England) . " Poll mortem ^flro«/V vel militis. 
 Con flit. '• qui a comite vel bar one alio, haroniam aliquam vcl 
 Sicul. 1. 3. *• feudum tenuerit." TheTerm^ therefore of i^^rj and 
 lit. 22. Barons were antiently frequently ufed as fynonimous ; 
 for as the Barons of the Crown were indifferently fiifed 
 either Barons or Peers, (o likewife were the Freeholders 
 of every Manor, as is evident from the Phrafe of Court 
 Baron, ftill in Ufe. 
 
 Bar ens 
 'J
 
 ( n ) 
 
 Barons and Baronies (as is before obferved out of Brae- 
 ton) were of the Effence of a Gothick Kingdom, m like 
 Manner as Freeholders are eflential to a Manor. Every 
 Man has a Right to be tried by his Peers, which is a 
 Right not originally peculiar to Englijhmen, fince as to 
 Feudal Queftions it was common to all the Gothick Na- 
 tions, among whom it was an univerfally received 
 Ma-xim, that no Man could be diffeifed oi\v\sFiefhnt 
 by the Judgment of the Tenants, who were his Peers, 
 of the fame Barony or Manor of which it was held. 
 And fince all the judicial Aas of a Lord are done in a 
 Court Barcn, which cannot be held without Freeholders, 
 therefore by the Feudal La^v every Baron, or (in the 
 Senfe we -now ufe it) Lord of :xManor, was obliged to 
 keep within his Barony a fufRcient Number of Free- 
 holders ; or as it is exprefTed in French, II eftoit tenu de 
 garnirfa ccur de Pairs. Opinions are various as to the 
 precife Number that is requifite ; fome have thought 
 that in £7?^/-^^ three at leaft were necefTary to the Pre- 
 fervation oi a. Manor, fince no lefs Number admits of a 
 carting Voice, and confequently in many Cafes no 
 judgment could be given. But my Lord Chief Juftice Difc. oa 
 'Coke feems to think two to be fufficient. " For (faies Copy- 
 " he) if all the Freeholders dye but one, or if the holds, 
 •' Lord purchafc all the Freeholders Lands, or pafs away fs. 31. 
 «' or releafe all the Services of his Freeholders, the Lord 
 " in fuch Cafe has but 3. Manor in Name, becaufe the 
 »' Freeholders are wanting which are the Maintainers 
 *' oi^ Court Baron, &c." Which Doarine and Dif- 
 pute has likewife been agitated in every other Feodal 
 Country, as appears in Du Frefne\ GlofTary, verbo Par. 
 As ti.e Feudal Pofieflion of Lands was a Method 
 invented by the Conquerors to fecure their Conquefts, 
 every Man of the conquering Army (among whom 
 the Lands of the Provincials were divided) was obliged, 
 by virtue of his Tenure, to pay a military Service to 
 his General whom they had then dignified with the 
 Title of King. Which Tenure, though it was the 
 moft burthenfome, was yet the only Noble, as it dif- 
 tlnguillied, and as it we're pointed out the Conquer- 
 ors of a Country. The Conquerors cofild originally 
 truft none but their own People, and the Romans or 
 Provincials (which were fynonymous Terms) were 
 treated with the utmoft Contempt, and deprived not 
 only of their Lands, but alfo of the Liberty of bearing 
 
 Arms.
 
 ( H ) 
 
 Tit. of Arms. And therefore, as Mr. Selden obferves, the 
 Honour, word Gentletnan is derived fi om the Latin Word Genus 
 p.712 — 3. and Gentiles J which had been ufed among the Romans 
 by way of Reproach, to denote fuch Perfons as had not 
 the Honour to be Subjedls of their Empire, and which 
 were afterwards adopted by their Conqueror^, and made 
 to fignify the Aggregate Body of Nobility. 
 
 All the Tenants of the King who held by the fame 
 Service, might in a general Senfe be ftyled Convajfalli 
 Regis. But as in Procefs of Time the Term oiVaJjus 
 and VaJl'allus came commonly to denote only military 
 Tenants, and as the Word Bar ones in the fame Manner 
 came to be applied only to the chief military Tenants 
 of the fame luperior Lord, no Perfons were ftyled 
 Con'vajfaili quoad Rcgem, or Barons, but only thofe who 
 were the immediate military Tenants of the Crown, 
 that is, who held their Lands per Baroniam of the King 
 as of his Crown .; for though others might poffibly have 
 no other Lord but the King, and be therefore in fome 
 Senfe Tenants in Capite, yet their Servi.es were regard- 
 ant to fome Manor or great Seignory in Manu Regis ; 
 that is, were paid to the King, not as King, but as Lord 
 of fuch or fuch a Manor which could be alienated, and 
 confcqucntly their Services transferred and made pay- 
 able to fome other Lord ; whereas a Tenure in chief of 
 the King as of his Crown, could not be granted, but 
 was infeparably annexed to the Royalty ; and upon this 
 Circumftance it was, inter alia, that the Dignity of a 
 Baron was chiefly founded. But this leads naturally to 
 the Confideration of vl Tenant in Capite, which upon 
 this Occafion it will be neceflary briefly to explain. 
 
 Some Writers upon this Subjeft have thought ^arca 
 and Tenant in Capite to be as it were fynonymousT'l'r^^j. 
 And indeed Sir Harry Spelman does fo far incline to 
 In Glof- that Opinion as to fay, " JE\o Heorici 2di qua:vis 
 iario. '* Tenura in capite habebatur pro tenura per Baro- 
 
 *' niam." For which Senfe of the Word he vouches 
 the Stztate of Clarendon, wherein inter alia it is enadled, 
 *' Archicpifcopi, Epifcopi & univerfx perfonse Regni 
 ** qui de rege tcnent in Cnpite, habeant pofieffiones 
 *' fuas de rege ficut baroniam, & inde refpondeant, 
 *• l^c" Now what has contributed to lead People into 
 this Notion is, that in Truth, during the antieni Times, 
 ^ a great Part of the Tcr^ints in Capite were aftualiy Ba- 
 
 rons or Tenants per Baroniam^ and a great Part of the 
 
 rclt
 
 t IS ) 
 
 reft were reputed to be fo, and fome of thera, \*ho 
 really were not Barcns, are yet fo ftyled fometimes in 
 old Hiftorians ; and upon their Authority our Heralds arc 
 apt to put them into their Lifts of antient Peers. The 
 Old Hiftorians were perhaps led into their Miftake, by 
 the Difficulty there often was in diftinguiftiing between 
 a 'Tenure in Capite per Baron: am and per Ser'vitium Mi- 
 Jitis, which in fome Meafure might arife from this, 
 that the Number of Knights Fees, comprehended in a 
 Tenure per Baroniam was uncertain, and that the Service 
 of them both, when perfonally paid, was in a great many 
 Particulars very much alike. But what has confufed 
 fome modern Writers ftill more, is a Notion they have 
 entertained, that a Tenure in Capite was a diftinft kind 
 oi Tenure, or rather Service different from all others, 
 as Knight-Scrvice is from Socage, i^Sc. Whenas it is 
 a Circumftance only that may be true of all other Ser- 
 vices whatfoever ; for as the Term implies nothing but 
 an immediate Tenancy without any Mefne between 
 the Lord of the Fie/tLnd the raj/al who was feifed of 
 the Lands, it was applicable to a Tenure from any Lord 
 whatfoever, and by any Service whatfoever. As ap- 
 pears from the Formulare Anglicanum, where Alexander 
 de Budicomhe fold Lands held oi Hanvife de Gurney Lady 
 of the Fief, to Thomas Fitz Williams, to whom the Lady 
 gave Seiiin " Ad tenendum in Capite de me & de meis Pormul 
 ** hsredibus fibi & fuis hasredibus." But indeed the ^jj„j^ 
 great Matter in thefe Tenures in Capite, whether of the ^^^ ^^ 
 King or of a Common Perfon, was, that they were al- 
 ways Tenures \n Grofle, fixed to the Perfon of the Lord, 
 and therefore not fo liable to be tranferred over to any 
 other Lord ; whereas when Services were regardant to 
 a Manor, they pafled to any other Perfon by a Grant 
 of the Manor. And perhaps, to avoid this Inconveni- 
 ency, a Tenant would fometimes pay a Fine to change 
 one Lord for another, or a Tenure regardant to a Tenure 
 in grofle. Thus " Anfelmus Vic. Rhoth. r. c. de Mae. Rot. 
 " dimidia marca auri, ut teneat in capite de Epif- -_ Steph. 
 *« copo Wintonienfi terras quas tenuit de Thoma de j,, ^ ggr- 
 " Sanfto johanne." chefcira. 
 
 But further there is no Foundation for thinking 
 Barony and Tenure in Capite to be Terms fynonymous, 
 becaufe we find thofe Perfons ranked among the TV- 
 nants in Capite, who were never imagined to be Barons : 
 So that the Truth feems to be, that though every Bar-on, 
 
 properly
 
 ( i6 ) 
 
 properly Co called, was a Tenant in Capitc, yet a Tenant 
 
 in Capite was not, by Reafon of his Tenure, a Baron ; 
 
 for the Number of the Tenants in Capite was always 
 
 encreafing, but that of the Feudal Barons always de- 
 
 creafed. It was common for Men to pay Fines to the 
 
 King, that they might hold their Lands in Capite of 
 
 him, without its being ever imagined, that they were 
 
 Mae Rot. ''^^^^^X created Barons. " Ofbertus Sylvanus, r. c. 
 
 c St'enh ' " ^^ Septem Marcis Argenti, ut teneat in capite de 
 
 Rot lb ** ^^^^ feodum j militis quod fuit Willielmi fiiii Gau- 
 
 Not". & * ** ^"'^^ Johannes Efturmit. r. c. de xxs. pro 
 
 Derb " ^^* ^oliditas terrse tenerc de rege in capite . 
 
 Ibid. Rot " burgenfes de Lincolia r. c. de CC. Marcis Argenti 
 2 a' ' *' & iiij Marcis Auri, ut teneant civitatem de iGge in 
 Ibid* Rot " *^2.pite." Many other Inftances might be added, 
 j2, a ' but thefe are fufficient ; and I think that no Man can 
 fee any Thing in them that looks like an Intention to 
 ered" a Barony. The Tenants, who perhaps held their 
 Lands by different Services, and had Mefne Lords be- 
 tween them and the Crown, paid thefe Fines (without 
 any Alteration of the Services they were to render) to 
 get rid of their Mefnes, and become the immediate 
 Tenants of the King. 
 
 But as Tenijre in chief might be of any Lord what' 
 foever, fo likewife might it be by any Service whatfo-- 
 Co. Litt. ever; as my Lord Chief Juftice Coke obferves, that 
 S. 159. a Man may hold of the King in Capite as well in 
 Socage, as by Knight-Service: Which appears more 
 fully in the Earl oi Marlborough\TTcz.x.ii& of Wards 
 and Liveries, wherein he makes two diftiniSt Chapters 
 oi Tenure in Capite by Knight-Service, and Tenure in Ca^ 
 pite by Socage. Now Tenures in Capite, whether the 
 Service referved be Knight-Service or Socage, are of 
 two Sorts ; i. Where Lands are hoiden of the Perfon 
 of the King and of his Crown, as of a Seignory dif- 
 
 tinft, in grofs, and paramount all other Seignories. 
 
 2. Where Lands are held of fome Honour or Manor 
 that is in the PoffefGon or Seifm of the Crown. And 
 although that the Term oi Tenure in Capite, in the Senfe 
 now generally received, Ts moflly applicable to the 
 firft of thefe, yet, by reafon, that no Mefne Lord is in 
 Faft between the King and the Tenant, it was for- 
 merly commonly applied to the other. My Lord 
 Marlborough indeed feems to think, that the Application 
 ^ of the Term in the fecond Cafe was peculiar to thofe 
 
 Lands
 
 ( if ) 
 
 Lands that were holden of fome Honor that was ani 
 tiently annexed to the Crown, as Barkinjied, l^c. but, 
 in fadi, it was equally applied to Lands that were held 
 of any County, Barony^ or Manor^ which by Efcheat or 
 any other Way whatfoever happened to be in the Pof- 
 feflion of the Crown. As for Example, Richard de 
 Ockbeare held the fourth Part of the Manor o^ Rillatort 
 in Capite of the King, as of the County of Cornivall. 
 
 ♦' Cornubia Richardus de Ockbeare dat' Paf. fines, 
 
 ** domini regi xiis. vid. de relevio fuo ■ de &c. 9 Ed. 
 
 " quarta parte manerii de Rillaton, quam te- IL Rot. 
 
 " nuit de rege iri Capite ut de comitatu cornubia in 1I3« b. x. 
 
 '* manu regis exiilente." Though it ought to be ob- 
 
 ferved, that Coke in his 12th Report does agree this to 
 
 have been the antient Ufage of the Word, but that 
 
 however (as he adds) of latter Times, " Dicitur de Eftwick's 
 
 " rege folummodo terras teneri in capite." Cafe. 
 
 I fhall not particularly examine the Differences 
 there are between thefe two kinds oi 'Tenures in Capite^ 
 as not being neceflary to the Purpofes of the prefent 
 Difcourfe. But from what has been faid it will appear, 
 that the Notion oi Tenure in Capite has been very much 
 confufed, through the promifcuous Application of ther 
 Term to both the above-mentioned Kinds oi Tenures 
 in Capite, without diflinguifliing which was particu- 
 larly intended. Nor is it furprizing that thofc Things 
 fhould be fo obfcure at this Day, when, whilft they 
 made a great Part of the Bufinefs of the Exchequer, 
 and the Court of Wards fubfifted, very intricate Dif- 
 putes did happen concerning thefe Tenures. One of 
 the DifFeiences between theie Tenures was, that per- 
 fonal Service was more ilriftly required of the Tenants 
 in Capite ut de Corona, than of the Tenants in Capite ut 
 de Manerio, i^c. And therefore, in the ninth oi Edw. II. 
 Gerard de Wachejham petitioned the King to be dif- 
 charged from perfonal Service, and to be admitted to 
 the Payment oi E/cuage Money, which was in lieu of 
 it, upon a Suggeilion that his Lands were held in Ca- 
 pite, as of the Honor oi Hagenet. " Ad petitioneni 
 
 '• Gerardi de Wachefliam contincntem, quod Trin.B.R, 
 
 " licet ipfe teneat de rege manerium de Stanftede in g £(j^ j|^ 
 ** comitatu SufF. per fervitium unius feosi mllitis ut Rot. 58. a. 
 *' de honore de Hagenet & non de corona, per quod apud 
 
 ** fervitium aliquod corporale facere non de- Madox. 
 
 ♦• bet, fed fcuiagium regi — folvere tenetur." 
 
 D Other
 
 ( i8 ) 
 
 Other Petitions to the fame Purpofe might be mett- 
 tioned, upon all which Writs iffiied, dircded to the 
 Barons of the Exchequer, to fearch the Book of 
 Domefday, the Book of Fiefs, and other Memoranda 
 in Scaccario; and if it Ihould appear, that the Peti- 
 tioners were Tenants ir. Capite ut de tncuicrio, l3c. ^ non 
 Ht de Corona, that then the Prayer of their Petition 
 Ihould be granted. But indeed, in thofe earlier Ages, 
 they were fo far from imagining thut every Tenure in 
 Capite of the King ut de Corona amounted to a Barony ; 
 and even if it did, fo far were they from being ambi- 
 tious of that Honor, that they apprehended nothing 
 more than that the King (when any Honor efcheated 
 into his Hands) would change the Tenure in Capite as 
 of the Honor, to a Tenure in Capite as of the Cronun, 
 and therefore it was made an exprcfs Article in King 
 John's Magna Cbarta, that it fhould not be done : 
 Mag. Ch. " Si quis tennerit de aliqua efcaeta, ficut de honore de 
 Reg. Jo. " Wallingford, &c. & de aliis efcaetis qua: funt in 
 " manu regis & obierit, hseres ejus non dabit aliud 
 •• relevium, vel faciet aliud fervitium quam faccrec 
 ** baroni, & ut rex eodem moJo earn teneat, quo baro 
 ** earn tenuit." 
 
 i have been the more particular in explaining the 
 Nature of a Peer, or Baron, and of a Tenant in Capite, 
 becaufe it will enable us to apprehend what conftituted 
 an Anglo-Norman Barotiy. And I think it clear that 
 every Barony was a Tenure in Capite, but then it is as 
 clear that every Tenure in Capite was not 'uice verfd st 
 Barony. And lince the Term Tenant in Capite is, or 
 at lealt was equally applicable to all Services, what 
 diflinguifhes a Baron from all other Tenants in Capttt 
 cannot be the Want of Mefnalty between himfelf and 
 the Crown, for that is common to them all, but muft 
 be the Refervation of fome particular Services of a fu- 
 perior Nature to the others, and which were implied in 
 the Phrafc tenere per baroniam. 
 
 As I do not propofe to write a complete Diflertation 
 npon Baronies va. their full Extent, I fhall not enquire 
 particularly what thofe Services were, which were pe- 
 culiar and elTential to a Tenure per Baroniam, any fur- 
 ther than is neceffary to illuftrate, what mull be fuid as 
 to the Power of creating them. 
 
 A Barony was a Tenure in Capite, and immediately 
 fubjc^ to the Crown, as Edw. III. expreffed it. " Rex
 
 ( 19 ) 
 
 " Ijc. fclatis quod, 13 c. Richard us Comes Arundel Rot. Par. 
 
 ** 24° Odobris fecit nobis homagium pro 27 E. III. 
 
 " baronia fua de Bromfeld & Yale— — — quam idem p. 3. m. 3. 
 *' comes de nobis tenet in capita tanquam corona; 
 " noftrae AngliaE immediate fubjeftam." And there- 
 fore it often happened in t^^e Cafe of Amerciaments, 
 that when any Man thought him felf aggrieved by be- 
 ing amerced as a Baron, he would plead that he was 
 not a Baron (though at the fame Time he would admit 
 himfelf to be a Tenant in Capite), quia ml tenuit per ^ 
 haroniam. As Thomas de Furni'val, mentioned by Mr. Hid. Ex- 
 Maddox, did. " Quia dicitquod non eft baro, neque chequer, 
 " tenet, nee unquam tenuit aiiqua tenementa in com' p. 370. 
 " pra:didl. per baroniam, nee per partem baronia : 
 " Dicit enim quod tenet manerium de ShefFeld de do- 
 
 " mino rege per homagium tantum manerium 
 
 " de Wyrkfop & Grefthorp de rege ut de ho- 
 
 '•' nore de Tyckhull, &c." 
 
 It has been already obferved, that the whole of Par- 
 liamentary Bufmefsis reducible to the Heads of either 
 Advice or Confent, The firft of which is to be confi- 
 ciered as a Feudal Service payable to the King as fu- 
 perior Lord of their Fiefs : The fecond is extra-feodal, 
 and depends upon thofe Principles of Liberty that 
 were common to all the Gothick Nations. For every 
 Tenant per baroniam did Homage to the King, by vir- 
 tue of which he was obliged, whenever fummoned, to 
 attend him. The Profelfion of Homage did compre- 
 hend in it, that the Tenant was obliged, inter alia, to 
 ferve his Lord with his Counfel and Advice. And for 
 this Reafon all the ancient Writs of Summons, did run 
 in thefe Terms, ** Vob's nsandamus fide & homagio In Glof- 
 " quibus nobis tenemini." Which Words Sir Harry fario. 
 Spelman and my Lord Chief JulHce Coke think to be 4lnft.p.5. 
 relative only to the Feodal Barons. And the Cliief Juf- 
 tice adds, that the Reafon why the Barons arc now fum- 
 moned only '\Vifidei3 ligeantid, is becaufe that there are 
 wo Feudal Baronies cxX2iT).\,x)\0Vi^\t.\% certain that fcve- 
 ral Barons who were Feodal, have been alfo fummoned 
 in fide 13 ligeancia. So thai though a Summons in homagio 
 is an Argument that they were Feudal Barons, a Sum- 
 mons in^fide 13 ligeancia is no Proof they were not fo. 
 
 Whatever Notion* are now entertained of an At- 
 tendance in Parliament as an Honor, a Privilege, 13 c. 
 jn the earlier Ages of our Monarchy, it was looked 
 D 2 upon
 
 ( CO ) 
 
 upon in a quite different Light ; and was efteemed to 
 be a Service, a Burthen, incident to the Tenure of 
 their Lands, from which many were dcfirous to be de- 
 livered. The Clergy, who now think the Baronies 
 annexed to their Biftiopriclcs to be advantageous, did 
 originally complain of them as a Burthen and Jmpou- 
 tion upon the Church. " Rex Willielmus pefiimo 
 4n. 1079. *' ufus confilio (fays Mfittbe^jj Paris) ep'.fcopatus & 
 " abbatias omnes quae baronias tenebant in pura & 
 ♦' perpptua elemofyna fub fervitio ftatuit militari." 
 And therefore when they were fummoned to Parlia- 
 ISelden*s ment, many of them would petition to Idc difcharged 
 Tit. Hon. from their Attendance, upon a Suggeftion that they 
 604. a. 7. held no Lands per baroniam. My Lord C. J. Coke at- 
 4. Inft. firms, that a Regular ought of Neceflity to hold per ba- 
 44 — c. roniam, before he could be obliged to ferve in Parlia- 
 ment, fince if he did not, he could lawfully rcfufe his 
 Attendance, and go fo far as to fay, that even the 
 Charter of jfenry \ ill. to lianham Abbot of Ta-vijlocke 
 was void in Law, becaufe he was not a Tenant per ba- 
 roniam. But the Confideration of what he further adds, 
 that a Layman was obliged to attend when fummoned, 
 whether he was a Tenant per baroniam or not, jnuft be 
 referved till I come to treat of Barons by Writ. In the 
 mean Time I (hall make fome Obfervations upon the 
 original Manner of creating Barons by Tenure, by which 
 the Reader may form fome Judgment how far the 
 King had it in his Power, to encreafe ad libitum this 
 ijrft Species of Peers . 
 
 I. Baronage by Tenure is founded upon the Feu- 
 dal Law, as it was undefftood by the Normans for 
 fome Time after the Conquelt. At which Time the 
 Conqueror took into his own Hands (as his Share of 
 the Plunder) all the Deme/neLands of the Crown, and 
 whatever had belonged to, or been in the Poflellion of, 
 B.d'ward the Confeflor at the Time of his Death ; the 
 reft he divided amongft his Army, the greateft Part of 
 which had followed him with no other View than to 
 make their Fortunes. And indeed he was very liberal 
 to many of them, as for Inftance the whole County 
 of Cbtjier was granted to Hugh Lupus ; Robert Earl of 
 Moreton in Normandy, and oi' Corn-wall in England, had 
 a grant of no lefs than 793 Manors ; j^lan Earl of Brit- 
 taigne and Richemende, 442, and Geofroy Bifliop ofCon- 
 Jianct had 280. Thefe G rants of the Conqueror, though 
 
 they
 
 ( 21 ) 
 
 they were made as Reward? for Services, muft not 
 however he attributed to the Greatnefs of his Genero- 
 fity, but to the Neceffity of his Affairs, fince without 
 it, the Officers of his Army would undoubtedly have 
 mutinied, for they did never look upon them as Mat- 
 ters of Grace but of Right. At leaft the great Earl of 
 Warren thought fo, when he produced his Sword as 
 his Warranty for his Land, in Anfwer to a ^o War- Dugd. 
 ranto brought againft him, adding, " That William the Bar. Vol, 
 •• Baftard'did not conquer the Kingdom himfelf, but i. p. 79. 
 ** that his Anceftors were joint Adventurers in the 
 ** Enterprife, and Sharers and Afilllants therein." 
 
 The Services referved upon thefe Grants, are the 
 Foundations of 5^rc»a^f, and were firft enafted by the 
 Conleut of the Grantees themfelves, to which they 
 were eafily induced, through the Neceffity there was of 
 them for the Security of their new Acquifitions ; but 
 to fpeak in modern Language, Feudal Services, and 
 confequently Feudal Barons, were iirft inftituted in 
 Parliament. And indeed it was natural that the Of- 
 ficers of his Army who had obeyed him as their Ge- 
 neral, ftiould be confulted as to what Services they 
 would pay to him as the-i-r King, after that they be- 
 came the moft confiderable Land-holders in the King- 
 dom. It was natural likewife that the Conqueror 
 himfelf fhould, upon fuch an Occafion, afk their Advice 
 and Confent, fince in fo doing he did but follow the 
 Steps of his great Anceftor Rollo ; for Feudal Services 
 were, in all Probability, firft eftabliflied in Normandy by 
 him with the Confent of the Officers of his Army, by 
 whofe Alliftance he had conquered that Dutchy, if 
 we may rely upon the Authority oi Dudo Sc'tus <^tn- 
 tinus, who wrote in the Time of Richard the Firll 
 Duke of Normandy, and 200 Years before our Con- 
 quefl, " Terram fuis comitibus & fuis fideliter funi- 
 ♦* culo divifit ; fecuritatem omnibus gentibus, in fua 
 ** terra manere cupientibus, fecit. Jura lege/que fern- de Mor, 
 " piternas, ^voluntate principum fancitasl3 decretas, pie- Norman. 
 *' bi indixit." But it is not fufficient to fay that it Lib. 2. 
 is natural to fuppofe, thefe Military I enures to have 
 been firfl founded by a common Confent; let me fur- 
 ther add, therefore, that our oldeft Authors do alfo af- 
 firm it. Brailon in plain Terms affirms them to have 
 been inftituted at the Conqueft, " Regale fervitium Lib. 2. 
 ♦ * qui fpecialiter pertinet ad dominum regem & non c. i6. 
 * "ad
 
 < " ) 
 
 •' ad alium, & fecundum quod in conquellu fuit ad 
 ** inventum." In which Words he feems to refer to 
 the i;Sth Law of frUiiam I. " De clien turn feu vaf- 
 *' fallorum praeflationibus,"— wherein the Conqueror 
 himfelfowns them to have been eftablifhed by com- 
 mon Confent. '' Statuimus etiam & firmiter prxci- 
 *' pimus ut omnes cornices & barones & milites, & 
 ** fervientes & univerfi Jiberi homines totjus regni 
 ** nollri prxdifti habeant & teneant fe femper bene 
 *' in armis 8c in equis ut decet & oportet, 6c quod 
 *' fint femper prompt) & bene parati ad fervitium 
 " fuum integrum nobis explendum & peragendum 
 ** cum femper opus afFuerit, fecundum quod nobis de 
 ** feodo debent & tenementis fuis de jure facere, & 
 *' ficut illis ftatuimus/fr commune can/ilium totius regni 
 '* vojiri pncdidi, & illis dedimus & conceffimus in feo- 
 
 *' do jure hasreditario." My Lord C. J. Hales 
 
 obferves upon thefe Laws of William I. that they were 
 
 Hift. of not impofed ad libitum regis^ but that they had a Par- 
 
 i-aw, p. liamentary Authority, which he fuppofes to have been 
 
 1 08. in the Fourth Year of his Reign, in a Parliament as 
 
 fufficient and effedual, in his Opinion, as was ever held 
 
 in England. Which is fupported by the Authority of 
 
 Hoveden, who in the Life of Henry IL fpeaking by 
 
 Hrvtden, way of DigrefTion of William I. fays, that '* quarto 
 
 ** anno regni fui, confilio baronum fuorum fecit 
 
 " fummoneri per univerfos confulatos Anglis, K^c. 
 
 " elefti igitur de fingulis totius patrise comitatibus 
 
 ** viri duodecim." 
 
 Although the PofTefSon of Lands in thofe Times 
 was attended with very great Burthens, fuch as 
 Marriage, Ward, Relief, lie. yet it is not fupriz- 
 ing that the Norman Chiefs fhOuld agree to them, 
 fince they were the fame Terms and Services upon 
 Lib. 16. which they held their Lands in Normandy. What 
 ^Pclydore Virgil imagines, viz. that thefe Services were 
 introduced by Henry IIL is abfurd, fmce it is manifeft 
 *-'^P- 23, from the Cujlumiere de Normandie, in the Chapters, *• de 
 24» 25* *' garde dorpheliuSfde relief, de aides che'velxt&cc." that 
 they were in fomc meafure praftifed in Normandy be- 
 fore the Conqueft, and indeed in moll Parts of France, 
 and the Conqueror himfclf, during his Minority, was 
 in Ward to the then King of France. But it would 
 extend this Treatife to too great a Length, if I fliould 
 purfue this Subject apy further. I ihall content my- 
 
 » felf
 
 ( 23 ) 
 
 felf therefore to obferve, that this Sjmllltade of Te- 
 nures to what they were in Normandy (where, like as 
 in England, none but thofe who held in chief of the 
 Duke, as of his Dutchy, had a perfonal Right to fit in 
 the Aflembly of their States), was fowell undcrftood at 
 that Time, that an Entry in Domefday is made, that 
 fuch a one held Lands, according as it was ufed in Nor Domef- 
 
 mandy ♦* Habet- in eodcm feodo de W. Comite day. 
 
 " Radulpho de Limes 50 carucat. terrae ficut fit in 
 " Normannia." 
 
 And in Scotland likewife it feems to have had a 
 Parliamentary Original ; " Indifto ad Sconam con- , ., , 
 " ventu (fays Buchanan in the Life of Malcolm II.) ^'°- ^• 
 
 *• omnes agrcs regios eis divifit Nobilitas con- 
 
 *' tra regi conceffit, at cum corum aliquis moriretur, 
 ** liberi ad vige/imum primum astatis annum in tu- 
 " tela regia eflent." This Account, if it be true, 
 fuppofcs Ward to .have been introduced into Scotland 
 Sixty Years before our Conqueft; Malcolm II. begin- 
 ning his Reign anno 1004. Perhaps there may be fome 
 Miilake in it ; for as it is probable the Scotch did re- 
 ceive many of their Feudal Cuitoms from England, as 
 we did from France ; and Buchanan himfelf fpeaking of 
 this Cuftom in particular, admits it to have been bor- 
 rowed from the Englijh ; " Hunc morem potius ab An- Ubi fupra. 
 " glis & Danis acceptum credo :" It is not impro- 
 bable but that what is ftoried cf Malcolm II. as to this 
 Alteration of their Law, ought rather to be underftood 
 of Malcolm III. who lived quite through the Conqueror's 
 Reign, and firll introduced the Feudal Titles of Ho- 
 nor, zs of Earl, Baron, tffc. into that Kingdom. 
 
 But be that as it will, this feems to be more than 
 probable, that thefe Tenures were introduced into Eng- 
 land by common Confent, or by Parliament. Nor 
 was the Number of Teriants in Capite at firft fo nu- Domef- 
 merous, but that they might well all meet together day. 
 for the Difpatch of any Buiinefs that concerned them 
 all ; for in the Time of William the Conqueror there 
 were not quite Seven hundred Lay Tenants in Capite -y 
 who, together with the Bi/hops, Abbots, ^c. under 
 the King, held all the Lands in the Kingdom, and of 
 whom all other Perfons whatfoever held. Now of 
 thefe Tenants in Capite, the referved Service of the 
 greateft Part of them was but Petit Serjeantry, and 
 confequently the Number of thofe who held per 
 comiiatum i-el baroniam could not be very large. 
 
 But
 
 ( H ) 
 
 But befides this, that the firft Barons, or rather 
 the firft Baronial Services, were originally inftituted by 
 common Confent, that is, in Parliament, theie is an- 
 other Confideration to be added, which arifes from that 
 Portion of Power which the antient Kings of England 
 had over their Crown-Lands, or Demefne; for it was by 
 Grants of them only, that it was pofllble to encreafc 
 t\ie'H\xmhtr oi Feudal Baronies; fmce, as has been before 
 obferved, at the Conqueft, all the other Lands of Eng- 
 land were either portioned out among the Followers 
 of the Norman, or elfe the Poffeffion confirmed to 
 thofe old Saxon Proprietors, who had not been in 
 Arms againft him, with this Difference only, that 
 new Services, l^c. were referved, which were firfl 
 eilablifhed by the Normans ; and to which perhaps, 
 during their Saxon Government, they had not been 
 obliged. 
 
 In this Diflribution of Lands ample Provifion was 
 made for the Support of the Royal Dignity ; for no 
 lefs than 1422 Manors or Lordfhips, together with 
 other Lands fcattered up and down in the Counties of 
 Middle/ex, Salop, and Rutland, were appropriated to 
 the Crown, over and above fome Quit-Rents, and the 
 Services that v/ere paid out of thofe which were 
 granted away. Ordericus Vitalis fays. That the fettled 
 Rents of JVilliam I. amounted to no lefs than the Sum 
 of ic6i /. los. per Diem; which, fuppofing Money to 
 have been Ten Times the Value it is now, is near Four 
 Ord. Vit. Millions Sterling /^r Annum; " Ipfi regi 1060 libra; 
 a. 1070. *< fterilenfib monetie folidique triginta & tres oboli 
 P- 523. " exjuftis redditibus Angliae per fingulos dies red- 
 •« duntur." I think it may be here obferved, that 
 this Author relates this Paflage of the Royal Reve- 
 nue in the fame Year in which the Laws oi William 1/ 
 and Feudal Services were eitablifhed, njiz. Anno 1070, 
 the Fourth Year of the Conqueror's Reign, which be- 
 De Dom gan in the Year io66. Forte/cue therefore had fome 
 Reg & Reafon to fay, that the King of England at hrft had 
 Folic. the greateft Revenue of any Prince in Europe. Of this 
 
 ca II Revenue, fpeaking of the Article of terra regis m 
 
 Op. Poft. Domefday, Sir Robert Cotton fays, that our Forefathers 
 p. 170. thought it impious to alienate it. 
 
 And as to the Queftion, whether it was io, or 
 not? The Reader muft judge, according as he thinks 
 it either a good or bad Confequence to fay, that what 
 
 waa
 
 C 25 ) 
 
 was Part of the Coronation-Oath, was alfo Part of 
 the Law: And that was antiently to this Purpofe, 
 ** That he ihall keep all the Lands, Honours, and Coll. of 
 ** Dignities righteous and free of the Crown of Eng- Oaths, 
 *'^ land in all Manner holy, without any Manner of p. i. 
 " Minifhments, antl the Rights of the Crown hurt, 
 *• decay, or lolle, to his Power fhall call again into 
 *• the antient Eftate." Which Dodrine agrees with 
 all our antient Lawyers. For Fleta upon this Occa- 
 fion relates, that all the Princes oi Europe in the Fourth 
 Year of our Edivardl. bound themfelves in a folemn 
 Meeting at Mont-PelUer to revoke all Grants which 
 had been made of their Crown Lands. Which Story 
 (though it is by SeUen demonftrated to be impoffible to 
 have happened) does yet ftrongly fnow the Senti- 
 timents of that Author. " Res quidem corona: funt Lib. 3. 
 " antiqua maneria regia homagia libcrtates, & hu- c. 6. ff. 3. 
 *' jufmodi qux cum alienantur, rex ea revocare 
 •* tenetur, fecundum provifionem omnium regum 
 " chriftianorum apud Montem-Peflbloniara, anno 
 *• regni regis Edvardi filii regis Henrici quarto ha- 
 '* bitam." And in another Place he exprefly affirms 
 the Law fo to be ; " Antiqua maneria vel jura co- Lib. i. 
 " ronjc annexa, regi non licebit alienare ; fed omnis c. 8. 
 " rex corona fuse alienata revocare tenetur." And 
 therefore he in another Place fays, that the Officers 
 of the King were fworn never to confent to any alie- 
 nation. " Item quod nihil confentient alienari, de ^io* !• 
 " his qu2 pertinent ad antiquum dominicum corona c. 17. 
 ♦' regis." And Brafton to the fame purpofe fays, ^- 17* 
 that " Eft resquafi facra, res fifcalis quze dari non po- Lib. z. 
 *' teft, nee vendi, nee ad alium transferri a principe cap. 5. 
 *' vel a rege regnante." And Britton in the Name of 
 Ed-wanll. fays, " Rois auffi ne poiirront rienaliener cap. de 
 ** en droit de leur corone ne de lour royake que il Douns. 
 " ne foit repealable per lour fuccelTours." But this 
 Law was not particular to England, fmce it prevailed 
 in all the Feudal Countries. Hottoman affirms it to have 
 been the antient htL\ of France. " In Gallia quidem Qusefti. 
 ** noftra rex fine publico gentis concilio, quod trium Iliuft. i. 
 " ordinum conventus adpellatur, nihil nee alienare, 
 *• ac ne oppignorare quidem poteft." It is needlefs 
 to infer t more, fince I hope my Reader will believe 
 It eafy to prove it to have been the Law of all other 
 Countries. 
 
 E As
 
 ( 26 ) 
 
 As this Law is now antiquated not only in England, 
 but in all other Nations, what has been faid, can re- 
 late to the Law, only as it ftood for about 200 Years 
 after the Conqueft, during which Time, it is agreed 
 that all our Barons were Feudal. But then it obvioufly 
 follows, that during that Time, it was not poffible for 
 the Crown to increafe the Number of Baronies: For 
 all the Land of England, except what was refervcd in 
 Demcfne, being granted out to be held by different 
 Services, as/<?r Baroniam,per SernjitiumMilitis, iffc. the 
 Crown had no Land to difpofe of, but only fuch as 
 fhould happen to efcheat by the Death of any of thofe 
 Grantees without Heirs, or Forfeiture, ijfc. So that 
 in fhort this Obfervation amounts to this, that no Feu- 
 dal £aron could be without Lands, and that the King 
 had no Lands to grant but Bemefne, and that they 
 being by Law unalienable, it was only the Power of 
 regranting Efcheats that was in the Crown ; which is 
 exaftly confonant to the Feudal Law, as exprefled by 
 Molinaus, who after afferting that a King could not 
 Tit. de alienate his Demefne Lands, adds, " Feuda, fubfeuda, 
 feod.S.43. <t & alia quscunque immobilia ab eodem domanio 
 n. 18+. «« dependentia, qus ad regem jure confifcationis vel 
 " commiffi deferuntur, poflunt libere per cum alie- 
 •• nari & in perpetuum concedi." 
 
 Upon this Occafion it will iHuftrate what has heea 
 Mag. Ch. faid, to obferve, that when Lands which were Baronies 
 Joan. Reg. efcheated into the King's Hands, the Barony was not 
 fupra ci- diffolved, but fubfifted as a Barony in manu regis, and as 
 tat. fuch were to be granted over. Lands held in antient 
 
 21 Afllf. Demefne, when they devolved into the King's Hands 
 pi. 13. became Frank-fee, and as fuch were accounted for by 
 Madox the Fcrmours. But Baronies always retained their Name 
 Cap. de and Nature, and as fuch were accounted for in the Ex- 
 Efcheats, chequer : As for Example, " Willielmus le Fuher Sc 
 he. " Hugo Pincerna r. c. de L /. & via s. de firma Hono- 
 
 Mag. Rot. *« r;V Willielmi de Curci de parte ilia qux eft in manu 
 19 H. 2. •' regis." So that though the King could not increafe 
 Rot. 5 . a. the Number of Baronies, it fometimes happened that he 
 could the Number oi Barons, by a Perfon'sdying with- 
 out Heirs, y<r. who was pofTefled of feveral Baronies, 
 which in fuch Cafe might be granted ^0 feveral 
 
 Pcrfons. - 
 
 3. It
 
 ( 27 ) 
 
 3. It may be alfo further obferved, that Honor and 
 barony were formerly ufed as fynonymous Terms. 
 
 S'\T Harry Spelman fays, " Honor igitur ab Anglp-Nor- Jn Verbo. 
 *' m.mnis diftiim videtur, unius cujufque majoris ba- 
 *' ronis feodale patrimonlum feu ^aro«/«." And Ger- 
 'va/iusTiIl>uriefi/is Speaking of the Mannerof accounting 
 for the Ferms of Efcheats, fays, that if the Land ac- 
 counted for be a Barony, it ought to be cntituled, the 
 Account of fuch an Honor. " Verum dum in manu In Cap. de 
 ** regis, de hoc fic fcribetur in annali ; ille viceco- Exceden- 
 *' mes reddit compotum, de firma illius honoris, fi tibus, 
 ** baronia eil." Now in Crake's Elizabeth, it is agreed p. 38. 
 per Cur' That a Manor cannot at this Day be made by Morris v. 
 the Crown ; with whym my Lord Coke agrees in his Smith. 
 Difcourfe concerning Copy-holds, i^ alibi. And in 
 Crake's Carol' it is likewife agreed, that an Htnor con- 
 fifts of many Manors united together : from whence Seagood 
 it follows, that as the Crown cannot create a Manor, ver. Hcne ' 
 fo likewife it cannot create an Honor, and confequently & Ux'. _ 
 no Power buc that of the King in Parliament can cre- 
 ate a Barony. Confident with which Notion of the 
 Law, Henry VIII. who cannot juftly be fufpefted of 
 being a Prince willing to diminifh his Prerogative, did: 
 derive his Exercife of this Power from an Aft of Par- 
 liament ; for in 5 1 Hen. VIII, the King's own Manor of Cap. 5. 
 Hampton Court, was by Aft of Parliament made an Honor; 
 by which Aft the Manors of Byfete and WeyBriJge in 
 Com'Surr', and feveral other Manors, are made Part and 
 Parcel of that Honor. So likewife in 35 Hen. VIII. other 
 Afts to the fame Purpofe paffed in favour ef the Ma- 
 nors oi Ampthil and Grafton, by which they were made 
 Honors. And I believe that no Inftance can be given, 
 from the Conqueft unto this Day, of any Honor's being 
 erefted otherwife than in Parliament. 
 
 4. Eut to conclude this Point of Feudal Barons, I 
 fhall laflly obferve, that by Intendment of the antient 
 Common Law, e'very Baron teas Feudal, and many of 
 their Privileges were founded upon that Sappofition. 
 
 As for Inllance, their Perfons are free from Arrefts Coke 12. "^ 
 at the Suit of a Subjeft, nor will a Capias or Exigens, Rep. 
 &c. lie againft them. The plain Reafon of which Counte/s »f 
 Privilege is, that the Law fuppofes them to be of Salop'* 
 Fortunes fufficient to anfwer all Demands, which In- Ca/e. 
 tendmcnt of the Law does feem obviouHy to be 
 E z founded
 
 ( 28 ) 
 
 founded upon their being confidered in Lawasy>K- 
 
 dal, and that confequently there would be always 
 
 upon the Demefnes, &c, of their Baronies fufficient to 
 
 . diflrain for the Satiifaftion of any Debt. Another 
 
 Kegis. Privilege is, that they are not liable to ferve on Ju- 
 
 '**'"• P" ries. But the Writ for their Difcharge, does fuppofe 
 
 *79' • every Pcrfon who claims the Benefit of it, to be an 
 
 aflual Baron, fince it begins " Rex, l^c. quia Barones 
 
 *' regninoftri, Cfff." And accordingly the Judges did 
 
 aniiently fuppofe every Baron to hold /^r Baroniam, or 
 
 at leaft per partem Baronia. As for Inftance, in relation 
 
 to this very Point of their being difoharged from ferv- 
 
 22 Ed. 3. ing on Juries, 22° Ed. III. " Puis un fut cha'l' pure' 
 
 fo. \%.a. " qu'il fut a bannier' & non allocatur car s'il foit a 
 
 *' bannier' & ne tient pas par baroni, il fera in I'aflife." 
 
 And at another Time, Sir Ralph de E<verden brought a 
 
 48. Affi. Writ for his Difcharge. And Belknap " hiy oppos' s'il 
 
 p. 6. €t jjgj^j pg^ Baroni & s'il avoit tout fon temps 
 
 " ven' ail pari' come baron duifl venir. Et ildit qu'il 
 
 *' tient per certein part d'un Baroni il fut dif- 
 
 ** charge." My Lord Co/fi? explains, ne tient pas per 
 Baroni^ &c. as if it was neceflary, that befides his Te- 
 nure he ought to be a Lord of Parliament; but it 
 feems probable that this Privilege was not peculiar 
 to an Attendance in Parliament, but incident to a 
 Tenure /^r Baroniam. For although that after the 49 //. 
 in. when the majores Barones were feparated from the 
 lefs, no Baronshad a Right to come to Parliament, but 
 only thofe to whom Writs were direifled, yet the lefler 
 Barons did for fome Time prcferve all the other Privi- 
 leges that were incident to their Tenure. Of which 
 this is one, and this Cafe is a Proof of it, for this Sir 
 Ralph de E-verden, who, as the Book fays, was (per bon 
 a'vife) difcharged from ferving on the Afiife, never 
 was a Lord of Parliament, nor docs it appear by the 
 Lifts of Summons, that any Man of that Name was 
 ever Aimmoned to Parliament. 7 his Cafe is the more 
 remarkable, becaufc it is always referred to by thp 
 generality of our Lawyers, upon a Suppofition that 
 he was a Lord of Parliament. Particularly by Dodde- 
 Treatife ridge, who likcwife commits the fame Error in rela- 
 of Nobi- tion to Theobald de Bordmor, one of the Marcher Barons, 
 lity, p. who being impannelled upon a Jury claimed this Privi. 
 '3> Jcg;^' But no Man of that Name was ever fummoned 
 
 to Parliament, though in fail he was a Baron, that is, a 
 3 Te*iant
 
 ( 29 ) 
 
 Tenant per Beironiam ; for the Truth Is, that though 
 every Lord of Parliament was a Baron, yet from the 
 Time oi Henry III. every Baron was not a Lord of Par- 
 liament. And this Diflindion leads us to the Confide- 
 raiion of the fecond Species oi Peers, and that is Peers 
 by Writ. 
 
 The common Notion o^ Barons by Writ, is chiefly 
 founded upon the Authority of Sir Ednuard Coke, who j JnJl. fjj 
 does fay, that if the King calls any Lay-Man to the g^ b. and 
 Upper Houfe of Parliament generally by his Writ, fQ_ j'g^ j, 
 that he is thereby, provided he once fits, in confe- 
 quence of it, created a Baron and Lord of Parliament 
 to him and his Heirs for ever. I particularly ufe the ' 
 
 Word Lay-man, becaufe in another Place he affirms, a Inft. n, 
 that a Layman when fummoned was obliged to attend, a a 
 but that a Regular was not, unlefs he held of the King 
 per Baroniam. 
 
 The Number of the Tenants per Baroniam, was not 
 near fo numerous as it has been by fome imagined 
 (deceived by fuch Expreilions as Infinita Multitudo Ba- 
 ronum, Numero/a Noiilitas, &c.). Since, as Matthe'w 
 Paris relates. King Henry III. when he was at St. Al- 
 hans, caufed a Lift to be made of all the Baronies in 
 England, and they amounted but to the Number of 
 250, according to the Edition of 1571 (though Cawz^- 
 den's Manufcript mentioned in his^r/V/^wmar reads 150.). 
 " Nominavit idem quoque dominus rex & memoravit Matt. Pa' 
 " omncs Angliaj baronias quarum ei occurrit memoria ris. 
 " invenitque duccntas & quinquaginta." Now if it 
 be confidered that many of thefe Baronies might ef- 
 cheac into the King's Hands, and that many of them 
 might alfo be in the PofTeflion of one Nobleman, ^r. 
 it does feem very probable, that the Number of Lords 
 could not at any Time have been greater than it no\y 
 is. And if it be alfo confidered, that the Number of 
 the King's Tenants in Capite in Domefday, did not (as is 
 above-mentioned) exceed Seven Hundred, and that 
 thegreatell Part of them held by inferior Services, as 
 Petit-Serjeanty, &c. it will not be reafonable to fup- 
 pofe there ever could be more than 250 Tenants per 
 Baroniam. Which agrees with what appears in the , 
 
 Rolls above five or fix Years after. When Writs of ^"'^f" ' 
 Summons were fent to all xhe Barons of England to a:- "^"- ^°" 
 tend the King againft the Welch, cum Equis ^ Armis ; ^^> 592* 
 of thQ Temporal Barons one Hundred and Thirty- 
 three,
 
 ( 30 ) 
 
 three, and of the Spiritual Fifty, were fummoned a^f ha- 
 bendum fer-vhium fuum. During the Time that the Ba- 
 ronage fubfifted wholly upon a Feudal Foot, it is ob- ^ 
 vious that every Man who held per Baroniam Integrnm^ 
 had a Right to be fummoned to the great Councils of 
 the Nation. But as a great Number oftheni grew 
 weary of their Attendance, becaufe of the Trouble 
 and Expence of their Journies, they were in Procefs of 
 Time negledled to be fummoned. And at lall the 
 Barons of the antienteft Foundation, who had the 
 greateft Revenues, and confequently the greateft Power, 
 were ftiled Majores Barones. For (as has been already 
 obferved) the King had a Right to grant over all ef- 
 cheated Baronies, but as he was not perhaps obliged 
 to grant them upon the fame Services, it was frequent 
 to referve more burthenfome Services (as e. g. a greater 
 Number of Knights, tffc.J upon the new Infeoffment, 
 than the firft Grantee had been obliged to perform. 
 Which Circumftance was likewife common to the Te- 
 nants in Capite hy Knights-Service only, as well as to 
 the Tenants per Baroniam. And from' hence arofe the 
 Difference between ^)\tfeoda Veteris l5 Novifecfamenti, 
 which are diftinguifhed in the Account of the Aid/«r 
 Lib. rub. fiUe marier, that was granted to Henry l\. " Reg'"^!- 
 in Scac. " dus de Warrenna r. c. de ixl. & at j. de mihtibus 
 Car. ' " honoris de Wurmegai. In th. I. Sc ^ e. Idem 
 ** debet xL d- de nonjo feoffamento.'' But in order to 
 colleft this Aid the better. All the King's Tenants in 
 Capite, by what Service foever, were obliged to tranf- 
 mit Certificates into the Exchequer of what Fiefs they 
 held, which by a general Name were called Charta 
 Baronum, though they were not all Barons, as fs. g. 
 Lib. rnb. " Charta Albani de Hairun Domino fuo excellentifli- 
 '* mo Henrico regi Angliae Albanusde Hairun — — 7 
 " notifico quod in Hertfordfciri feodum unius militis 
 " de Veteri fcoffamento, de vobis principaliter teneo, 
 ** & quod de novo feoffamento nihil habeo." 
 
 But it is not only that the new infeoffed Barons were 
 not fo rich as thofe of the antient Date, but the Old 
 Barons, thinking to aggrandize their Dignity by not 
 fuffering the Grantees of thefe efcheated Barcnics to 
 be fummoned to Parliament, as Barons indifferently 
 with themfclves, did in fome Parliament (as Mr. Sel- 
 <//» judges) that preceded the Grand Charter, obtain 
 a Law, that only the Majores Barones fliould be fum- 
 moned
 
 ( 3> ) 
 
 moned for the future. But Indeed this inclination of 
 xh.Q Greater Barons fhewed itfelf ftrortgly, during the 
 i^cign of King John; in whofe Great Charter, as 
 ■^x'lnttd m Matt. Paris, and alfo in the French Copy 
 publilhed by Monf. D'Herouall, a Claufe is inferted to 
 this Purpofe. '* Ad habendum comfflunfe concilium. 
 " regni, faciemus fummoneri archiepifcdpos, epifco- 
 ** pos, abbates, comites, & Majores Barones regni figil- 
 •• latim per literas noftras." Though I think it may 
 be here obferved, that this Clauft is not in that Char- 
 ter of King John, which I have feen under the Seal of 
 that King in the Cnftody of the late learned Bifhop of 
 ■Sarum. ^ r:(j 
 
 And this was the firft Foundation of Barons by Writ 
 (as they are now called) ; though it is plain from what 
 has been faid, that th^e Writ wis not by thefe Laws 
 made any ways eflential to a Barony, but only that 
 though they were Barons, they fhould not have a Right 
 of appearing among the Greater Barons, becaufe they 
 were not particularly fummoned : So that it was not 
 their Barony, but their Right of voting in Parliament 
 that depended upon the Writ. But this Regulation 
 of the Peerage, or Barons of Parliament, was not com- 
 pleted in the Reign of King John. His Son Henry III. 
 (after the entire Defeat of the Barons at the Battle of 
 M'vejham, thereby putting him felf in a Condition xxi 
 treat the greateft Part of them as Rebels) put the 
 finifhing Hand to this Regulation, which was after- 
 wards obferved by Edijcardl. and forrie of his Succef- 
 fors. And here it muft be obferved, that //<?«ry III. 
 did not by his Law propofe to eftablifh a Prerogative 
 of creating any Perfon a Baron of Parliament by his 
 Writ, whether he was a Tenant per Baroniam, or not. 
 On the contrary, he left the being or not being a 5<7- 
 fc« upon the Foot he found it, introducing only this 
 Rule for the future, 'viz. That none of the Barons, 
 or Tenants per Baroniam, Ihould have Voice in Parlia- 
 ment, but thofe only to whom he Ihould diredl a 
 Writ of Summons; for fo are the exprefs Words of 
 the Manufcript cited by Cambden : " IIlc enim (rex j^^ Britan. 
 " fcilicet Henricus III.) poft magnas perturbationes 
 '* & enormes vexationes inter ipfum regem, Simonem 
 '* de Monteforti &: alios barOnes motas & fopitas, 
 '* ftatuit Sc ordinavit, quod omties illi comites i^ haro- 
 *' »£S Ye£ni Angli<e, quibus ipfe rex dignatus eji, brenjia 
 
 *' fun-
 
 ( 32 ) 
 
 «« fummonithnis dinger e 'venirent ad ParliameRtum/uum, 
 <* l^ non alii, nifi forte Dominus rex aha ilia brevu 
 •' eis dirigere voluiflet." This Law was probably 
 made in the Parliament held 49 Htnry III. immedi- 
 ately after the Battle oi E-veJham, to which were fum- 
 moned of the Spiritualty no lefs than 36 Priors, and 
 6c Abbots, befides the Bilhops, five Deans, and the 
 Matter of the Temple, but of the Temporalty not 30 - 
 by whom the vanquilhed Barons were forfeited, and 
 their Lands feized into the King's Hands. But this 
 Severity did not quiet the Nation, the Sufferers being 
 too many to be ufed with fuch Rigour. The diflrefled 
 Diaum de Barons again took Arms, and the Year following corn- 
 Kcnelw. pelled tht King to agree to a more reafonable Compo- 
 fition, by which they were rellored to their Eflates 
 Rot.cl.23. upon the Payment of moderate Fines And accord- 
 Ed. I. m. ingly we find, in the very next Writs of Summons hat 
 g. dor. arf extant, a greater Number of Temporal Lords fum- 
 moned.o;/*. 12 Earls, and 53 Barons. 
 
 Havine in this Manner explained what, as I appre- 
 hend, gave the firft Occafion for the Term oi Barons 
 by Wril, in order to judge more clearly what Opera- 
 tion in Law this Writ would antiently have. It niuft 
 be confidered, that it could not poffibly be direded 
 but to three Sorts of Perfons ; that is, either to fuch 
 as were tenants in Capite per Baroniam or to fuch as 
 were only Tenants in Capite by Kmghts-Ser'vtce, &c. or 
 elfe to fuch as were not the immediate Tenants of the 
 Crown at all. And as to the firll of thefe, they were 
 obliged to attend if fummoned, and as they were 
 already Barons by their Tenure, when they were in 
 Parliament, they had undoubtedly, in confequencc of 
 their Writs, a Right to vote in all Queftions whatfo- 
 Iver ^c As to the Second, they alfo, by virtue of 
 the bath of Homage, which every Military Tenant 
 made to his Lord, were obliged to -attend when fum- 
 moned; but then, when they were m Parliament, it 
 may be doubted, whether they had more than a deli- 
 . berative Voice of Counfellors, or, as it is now cxprd- 
 
 fed, whether they were more than as Affiftants to the 
 Houfe of Lords. And as to the Third they were not 
 by Law obliged to obey the Writ ; but yet it they 
 voluntarily chofe to attend they, like the Second 
 were in all Probability no oiherwife than as Aflilant. 
 to the Houfe. ^^^
 
 ( 53 ) 
 
 As to the firfl of thefe three Sorts of Perfons, iks 
 Queftion is not fo much, whether they were not, after 
 the Receipt of their Writ, intituled to all the Privi- 
 leges of Parliamentary ^(jrowj, as whether there werei 
 in fad, from the Time of Edivard the Firft's Accef- 
 fion, any Perfons who were Tenants per Barcniam, and 
 yet had not a Right to demand a Writ of Summons 
 to Parliament ? Eljynge, in his Manner of holding Par- p. a6. 
 liaments, does obferve (and truly), that it aippears by 
 the inquijitiones poji mortem, remaining in the Tower, 
 thai very much Land was antiently held/^r BaroniaMf 
 by Perfons who were never fummoned to Parliament ; 
 but his Remark, that they were therefore never reputed 
 Barons, is not well founded, as appears from the above 
 cited Cafes of Sir Ralph de Everdcn, and Theobald de 
 Bordmor, and the Ccrn^valls of Shrcpjhire, of whom 
 Sir Harry Spelman obferves, that they were Unparlia- 
 mentary Barons : " Sed villa Burford in com. Salop, In Glof; 
 reperitur per inquifitionem capt. anno 40 Ed. III. 
 teneri de rcge ad inveniend' quinque homines pro 
 exercitu Walliae & per Jervitium harcnit, dicuntur- 
 que indedomini ejus barones de Burford \ fed tamen 
 in parliamenta non prodeunt." I think it needlefs 
 to add any more ; but from what has been faid an An«- 
 fwer may be given to Jullice Dodderidge^s Objedion, Of Nobi. 
 f/x. that fuch Manors as are Tenure per Baroniam, be- », gg^ 
 ing aliened to common Perfons, do not ennoble the 
 Purchafers ; for the Purchafers were in fad Barons by 
 Tenure, fmce no one can doubt, but that their Heirs 
 mull have paid Relief, l^c. as fuch, but then they had 
 no Right of coming to Parliament, unlcfs they were 
 fummoned by fpecial Writ, in virtue of the above- 
 mentioned Laws of King John and Henry III. And the 
 obvious Reafon why, in a few Years after Henry IlL 
 we hear no more of thefe Unparliamentary Barons, is, 
 becaufe that thofe of them, who had not Interelt fuf- 
 ficient to be fummoned to Parliament as Barons (wifely ' 
 preferring a Share in the Legiflature of their Country 
 to the empty Title of a Lord without it), chofe ra- 
 ther to mix themfelves filcntly with the other Com- 
 moners of their refpedive Counties, thereby hoping, 
 when the Knowledge of their Tenure was ibmething 
 loft, to get into Parliament in the Houfe of Com. 
 mons. ■ • 
 
 F During
 
 ( 34 ) 
 
 Curing the firft Period of Time, therefore, all Peerager 
 or Baronies were Feudal ; and even the Officiary Ti- 
 tles, as of Lord High-Steward, Earl Marftal of Eng- 
 land, l^c. though by Dodderidge they are reckoned to 
 beofa Species by themfelves, were alfo Feudal. Nor 
 is there any Inftancc of any Perfon's being fummon- 
 ed to Parliament, and afting as a Lord of Parliament* 
 as High-Steward, or Marfhalfimply, but thofe Offices 
 Were always either annexed (when they were Heredi- 
 tary) to Fiefs, or elfe were beftowed on Perfons who 
 were Tenants of the Crown per Baroniam, and might 
 therefore have been fummoned to Parliament, though 
 they had never had thofe Offices. As for Inftancc, 
 4 Ihfl. the Office of High-Steward was, as my Lord Cokt fays, 
 annexed Xo the Barony of Hinckley, which was Parcel of 
 the County of Leice/er ; that is, as he explains it, the 
 Cmnty and Barony were held by the further Service of 
 executing the Office of High-Steward of £»f/<2«<2'; as 
 appears from aManufcript which he mentions, though 
 Bibl. Cot. he quotes nothing out of it, intituled, Officium Sene/calU 
 fub Effi. jinglia ; the Paffage to which he refers, I fuppofe, is 
 Vefp.B.7. this, *• Modus quo modo & quam officio uti debet, ut 
 fol. ^^. b. '• tenetur per fervitium tsf per /acrwnentum homagii, & 
 " fidelitatis fuae talis eft." 
 
 Having in this Manner explained that firft Condition 
 of Men, whom the King had an undoubted Power to 
 fummon to his Parliament, and who, when they ap- 
 » peared, enjoyed all the Rights of Parliamentary Barons, 
 it follows, in order to fpeak of thofe who, though 
 they were not Barons by tenure, yet, by reafon of their 
 being tenants in Capite by Knight Service, were obliged 
 to attend when fummoned : But as the Pretenflons of 
 thefe Perfons to the full Rights of Peerage-, are found- 
 ed upon the fame Bottom with thofe other Perfons, 
 who, though they were fummoned^ were yet under no 
 Obligation to appear, unlefs they voluntarily thought 
 fit fo to do ; it may perhaps fhorten this Difcourfe, if 
 we conAder them both together. 
 
 It being agreed, that our Nobility not only fit in 
 the Houfe of Lords as Barons, but alfo that none but 
 Barons have a Right to fit and vote there ; and the 
 Perfons we now fpeak of not being Barons by Tenure, 
 it follows, that they can only be fo in virtue of the 
 Writ that fummons them thither ; for as to the Ba- 
 rons by Patent, it will be neceffary to fpeak of them 
 6 b/
 
 ( 35 ) 
 
 by themfeltes. But that the Reader may the better 
 judge how tho Writ can operate fo far as to give the 
 Perfons fummoned by it the Right oi Barons to them 
 and their Heirs, it will be proper here to infert the 
 Writ itfelf. " Rex, &c. N. dc N. Chivalier, Qijiade 
 advifamento & aflenfu concilii noftri pro quibufdan> 
 arduis & urgentibus negotiis ilaiiim & defenfionenx 
 regni noftri Anglic concernentibus, quoddam par- 
 liamentunv noilrum apud Weftmon' die 
 
 proximo futuro tcneri ordinavimus, & 
 ibidem vobifcum, ac cum praclatis, magnatibus & 
 proceribus difti regni noftri colloquium habere & 
 traftatum : Vobis in fide & ligeancia quibus nobis 
 tenemini, firmiter injungendo mandamus, quod con- 
 fideratis diiflorum negotiorum arduitate, Sc periculis 
 imminentibus, cefTante excufatione quacunque, dic- 
 tis die & loco perfonaliter interfuis nobifcum, ac 
 cum prailatis, magnatibus ac proceribus fupradidis, 
 fuper diftis negotiis traftaturi, veftrumque confilium 
 impenfuri, & hoc, ficut nos & honorem noftrum, 
 ac expeditionem negotiorum praediftorum diligitis, 
 nullatenus omittatis. Telle, &c." 
 It has been already mentioned to have been Sir Ed- 
 ivard Coke^% Opinion, that a Peerage was gained to a 
 Man and his Heirs, by his being fummoned by (or at 
 moft once appearing in Obedience to) this Writ. Con- 
 formable to which Doftrine, Mr. Jullice Dodderidge, 
 in his Treatife of Nobility, puts thefe Queftions. 
 J. Whether a Barony, upon a Man's being once fum- P. gi. 
 moned by Writ, does delcend from the Anceftor to the 
 
 " Heir And then if to the Heir Female 
 
 ** And then if to the Hufband of fuch Heir Female, 
 
 *' during her Life?" All which he refolves in the 
 
 Affirmative ; but for fuch Reafons as (I own) I think do 
 no Ways anfwer the Charafter of the Man's Learning. 
 I hope the Reader will forgive me, if, notwithftanding 
 the current Opinion to the contrary, I mention fome 
 Confiderations which perhaps may mal?e him doubt, 
 whether (till within thefe few Years paft) the Law 
 was fo or not ? 
 
 And iirll, as to the Inheritance in the Honour that 
 is fuppofed to be gained by it, let any Man but look 
 into the Writ (that can conftrue it), and he will find 
 jt to be entirely perfonal to the Man to whom it is 
 direded, and that it is fo far from creating a Barony tq 
 F z him
 
 ( 36 ) 
 
 him and his Heirs, that neither the Words Baron, Ba- 
 rony, nor Heirs, are to be found in it. It is agreed, 
 that the King cannot by his Letters Patent create any 
 Man a Baron or Peer, cither for Life, in Tail, or in 
 Fee Simple, without exprefs Words of Creation in the 
 Patents for that Purpofe. Beyond which, in all the 
 Patents that have paffed fince the 20th of Henry VIIL 
 there is not only a fpecial Claufe inferted for the crea- 
 ting the Patentees 5«ro7;j, ^f. but alfo for enabling 
 them and their Heirs (according as the Limitation is) 
 to hold and pofiefs a Seat and Place in Parliament. 
 It may not perlwips be unreafonable to think, that it 
 feems equally ncceffary, that fpecial Words of Crea- 
 tion ought likewife to be inferted in the Writ, or that 
 othcrwifc the Writ cannot operate fo as to create a 
 Baron : Such as, for ]nftancc, was praflifed in the Cafe 
 cf Sir Henry dc Bromflcte, who being fummoned to Par- 
 jiament 27 Henry VI. this Claufe was inferted into his 
 Writ ; " Volumus enim vos & haeredes vertros maf- 
 *• culos de corpore vcllro legitime exeuntes barones 
 «' de Vefcy, exiitcrc." Now as this Writ has given 
 great Surprise to many Perfons, by Reafon of its being 
 the only Writ in which fuch a Claufe is to be found, 
 I (hall make feme Obfervations upon it. It has bee« 
 already faid, that about the 49th or 50ih oiHenrylW. 
 12 Rep. a Law/ was made (and the above-mentioned Paflhge out 
 -o. Ld! of C«OT(^d'^«'s Manufcript is quoted by my Lord Co^^ 
 Aburga- as an Aft of Parliament now in Force), by which it 
 veny's was enaded, that none oilhe Tenants per Baroniam, 
 Cafe, or Barons who had all a Right to be fummoned before, 
 
 Ihould for the future have Voice in Parliament, but 
 only thofe that fhould be fummoned by the King's 
 fpecial Writ. The Confequence of which was, that 
 the neglefted Barones Minores foon mingled themfelves 
 with the other Commons of their feveral Counties, and 
 the Term Baron, in Procefs of Time, came to be appro- 
 priated only to thofe Majores Barones, who were con- 
 liantly fum;noned to Parliament, but yet the Tenure 
 of the neglefted Barons ftill fubfifted. ' The Peerage 
 of this very Sir Henry de Bromefiete is an Inllance 
 and Proof of it, fince he was one of thofe who 
 hcld/<r Baroniam, but had been negleftcd to be fum- 
 moned to Parliament, as appears by the Title of rty?/, 
 which he afiumed. For hvo de Vejci was one of the 
 Barons who v.-cre inftituted at the Conqueft, and who 
 
 had
 
 ( 37 ) 
 
 had married the Daughter and fole Helrefs o( William 
 i'yfon a Saxon, who was the Son and Heir of Gilbert 
 tylon, who was killed on HaroU'% Side, in the Battle ^ugd. 
 aeainft William the Conqueror, by which Means he Baron, 
 became pofTefled of thofe Lands that were afterwards Vol. i. 
 (upon the additional Services being impofed) known p. 89, 
 by the Name of the Baronies oi Alntvicke in Northum- 
 berland, and Maitcn in Torkjhire. Now by the Genea- 
 logy of the FeJ'cy's, it appears that the Lands and Ho- 
 nors of that Family by Female Heirs came to veft in 
 one Gilbert de Aton ; and Sir Henry de Brontfete was the Vol. 2. 
 Son and Heir of Mrtr^^r^^ Daughter and Heir ofJna- p. 234.. 
 /?a/a, the Wife of Sir John Saint John, Knight, who was 
 Daughter and Heir of William de Aton, the Son and 
 lie'ir of Gilbert de Aton laft mentioned. Which Gilbert 
 and William de Aton had indeed been both (but not 
 conftantlv) fummoned to Parliament, wz. Gilbert was 
 fummoned to the Parliaments held i8ch oi Ed. IL to Rot. claaC 
 the I ft of Edivard III. and to the i6th of Ed-ivard the 18 Ed. 2. 
 Third, and William was only fummoned to the Parlia- dor. m. 
 ment held 44° Ednjcard III. and never fummoned to 21 idem, 
 any other Parliaments; now Sir Harry de Bromfiete \ Ed. 3. 
 died in the 8th of Edward \}ac Fourth, feized (as it p. i. dor. 
 appears by the Inquifitions taken) of the above-men- m. 2. idem, 
 tioned Lordfhip <oX Barony oi Malton. As this Writ has 16 Ed. 3. 
 been hitherto generally fuppofed to have been an ori- p. 2. dor. 
 ginal Creation of a new Barony, I hope this digreffion m. 38. 
 will be excufed, in order to fhow that no Barony at Rot. clauf. 
 all was created by it, but that it was only an Exercife 45 Ed. 3. 
 of that Power, which (as is before faid) the King had dor. m. 3, 
 of calling any Tenant per Baroniam whatfoever to the 
 Houfe of Lords. 
 
 2. It is a known Rule in Law, that the King's Grant Plowd. 
 cannot enure to two Intents, efpecially when one of 333. 4. 
 them is clearly exprefled, and the other is not. Now Cok. i. 
 if this Writ of Summons does create any Perfon a Rep. 48. 
 Baron or Peer, it operates by way of Grant, which muft 32. 
 be by the Implication of an Intent, which is not only 3 R^P- 73* 
 not exprefled, but which is alfo perfeftly foreign to 74, <5c. 
 th-.t which is, and which therefore (at leaft in every 
 Thing but this Writ) could be in Law only intended. 
 For the Intention of the King clearly exprefl'ed in the 
 Writ, is not to create the Perfon fummoned a Baron, 
 but only to ccnfult and treat with him concerning the 
 Afiairs'of the Nation, which certainly may be done 
 
 without
 
 ( 38 ) 
 
 '(vlthont his being a Baron. " Vobifcum" (by which 
 the Pcrfon fummoned feems to be exprefsly dillinguifhed 
 from the Prelates and Baron) that follow) " et cum 
 " pr?elatjs, magnatibus, l^c. colloquium habere k 
 *• traftatum." Thefe are the Words of the Writ, and 
 I mull own that I do not comprehend what Magick 
 there is in them, to make them perform what no Man 
 will pretend to fay they fignify. And as to the othpr 
 Claufe by which the Perfon is fummoned to be per- 
 fonally prefent with the King and Lords, " didlis djc 
 •• & loco perfonalitcr interfitis nobifcum &: cum prac- 
 *' latis, l^c. veftrumque confilium impenfur' cifr." 
 the Reader muft judge if there is any more force in 
 that than there is in the laft. Nor is there any Thing 
 more in it than what the Judges, i^c. are commanded 
 and aftually do every Parliament, for they as well as 
 the Barons or Peers are conftantly fummoned «</ confiliuvi 
 impendend\ Not that I imagine the judges (who are 
 agreed to be only fummoned as Affiilants to the 
 Houfe) to be Barons of Parliament ; but only that 
 thofe who think other Perfons fummoned by Writ, to 
 have been antiently confidered as Barons of Parliament, 
 would refleft and determine with themfelves, which 
 Part of the Wjrit it is that made them fo. For if ic 
 was the firft Part of the Writ, that runs, " Vobijcum ac 
 *' cum pralatis, magnatibus, tS proceribus, &c." that 
 created them Barons ; How comes it that the Judges are 
 not likewife Barons? Since in the 49th of Henry VI. 
 12th oi EilivardlY . zzd oi Ed-wardiY . and indeed in 
 almoft all their Writs of Summons to Parliament, that 
 Claufe is inferted. And as to the Second Claufe, that 
 runs, " ^od. Sec. perj'onaliter interfitis. Sec." that alfo 
 is common to the 'judges, as well as the Barons. My 
 4 Inft. 10. Lord Coke does in feveral Places obferve, that the Writ 
 & alibi. of Summons to Parliament is unalterable, otherwife 
 than by Authority of Parliament, though (perhaps if it 
 was worth while) it might be Ihown that till within 
 this laft Two hundred and fifty Years, there fcarcely 
 ever was Two of them together alike. And indeed 
 he himfelf, upon another Occafion, does feem to be 
 fenfible of it. For he fays, that one of the Differences 
 between the Writs to the Lords and the Writs to the 
 Judges t was that, that to the Lords did run, " ^od — 
 *' interfitis nobifcum ac cum cateris pralatis, magnatibus , 
 ** ^rV." aud was peculiar to the Lords, the Judges be- 
 ing
 
 ( 39 ) 
 
 ir.g only rummoned. " ^oJ interjith nohifaim ae cum 
 ' ' caUris de concilto nojiro ;" and yet that Word cceteris is 
 not in the Writ, which in the Lord Ahurga'veny\ Cafe 12 Rep, 
 he himfelf commends as excellently well drawn. But 
 however, if it be this Second Claufe that creates them 
 Barons, why then in the 24th of Edward the 3d, Wil- Ve. fum- 
 llam de Share/hall and Twelve other Perfons, of whom mon. ad 
 Four were but Serjeants at Law, were created Barons i Parliam. 
 for their Writ, diredlly contrary to my Lord CoAe^s 
 Aflertion, runs io that Stile which he fays is peculiar 
 to the Lords of Parliament. Others have thought that 
 the putting in or leaving out of the Word ^-^^/mj was the 
 peculiar Mark of DiiUndlion. And yet in the 25th of Rot.dauf. 
 Edivard the F'lrA, the Judges were fummoned bydireft- 25 Ed. i. 
 ly the fame Writ that the Barons of Parliament were. dor. 
 And on the other Hand, by a Writ of Prorogation in 
 the 3^d Year of Edivard the Firft, as alfo by a follow- Rot.clauf. 
 ing Writ of Summons in the fame Year, l^c. it appears ^3 Ed. i. 
 that the Bifhops and Temporal Lords were fummoned m. 9, 10. 
 by Writs that ran ^' Quod — interfitis nobifcum ac 
 '•' cum caJteris de concilio noftro." But to conclude 
 this Point, I fliall only add fome few Inftances in fe- 
 veral Reigns of the Judges and Barons of Parliament 
 being fummoned by the very fame Writs. In the ift Rot. claaf, 
 o( Edtvardll. after the Writs to the Barons, the fame 1 Ed. 2. 
 Writs follow to above Thirty other Perfons as Aflift- dor. m. 
 ants, with this DLilerence only, that the Words " /» 11. 
 *' fide^ homagio," (as at this Day they were conftantly 
 done) are left out, and the Note at the End of it is 
 remarkable. " Nota quod in hac fummonitione ja- 
 *• ititiarii ac alii de concilio domini regis, intermixti 
 *' tunc cum baronibus." And likewife in the 5, 8, 
 9, l\^ 12, 13, 14th of Edtvard U . the fame Writs are 
 direfled to both Judges and Barons, fo likewife in the 
 2, 3, 4, 5, 6, nth, ^c. of Edv:ard IK. the fame Writs 
 are direded to both Judges and Barons ; I could add 
 many more Inliances, bud think it neediefs. And now 
 if the Diredion of the Writ created Barons, thefe 
 Gentlemen were all made fuch, yet the fame Mea 
 were at other Times fummoned as the Judges now are 
 to be, but 2L%de concilio regis in Parliamento. It is true, 
 however, that from the 47th of Edtvard III. the Writs 
 to the Barons and Judges have been generally different, 
 though fometimcs they have been the fame. But then 
 the Difference is fo fmall as to Words of Creation, that 
 
 I be-
 
 { 40 5 
 
 I believe it would be very difficult for any Man tofhow 
 how one fhould create a Peer or Baron, and the other 
 fliould not. And from the Inftances I have mentioned, 
 I think it appears that the Barotis is perfedlly diftindt 
 from the Writ of Summons ; for if it is not, why are 
 not thofe Perfons ranked among the Barons F Since no 
 Reafon can be given, why the fame Writ fhould make 
 one Man a Baron, and not another. 
 
 3. It has been already obferved that my Lord Cokr 
 affirms, that if the King does by Writ fummon a Lay- 
 man to the Houfe of Lords, he cannot refufe the Ser- 
 vice. But that if he called an Abbot, or any other 
 Regular, he could refufe to ferve unlefs he held per 
 Saroniam. But yet the Reafon of the Law feems to be 
 the fame in the Cafe of a Layman, as of an Abbot, 
 l^c. For every Writ Mandatory, as a Writ of Sum- 
 mons to Parliament is, fuppofes the Perfon to whom 
 it is direfted to be under an Obligation to obey it. 
 I am fenfible that it may here be objefted, there is no 
 fear of any Man's Difobedience, and in modern Prac- 
 tice it is certainly true. But then it is as true that 
 the Law is not founded upon modern Ufage, but upon 
 antient Cuftom, when Men were not To ambitious 
 of being Barons as they now are, but were often, upon 
 their own Requeft, difcharged from any Service of that 
 Nature. And therefore if a Layman, who holds not 
 per Baroniam, be as much at Liberty to refufe his At- 
 tendance as a Regular, it follows that the Direftion of 
 a Writ to him, does not make either him or his Heirs 
 Barons, or Lords of Parliament. Jt is true, that if a 
 Man accepts of a Patent by which he is created a 
 Baron, he by his own voluntary Acceptance becomes 
 obliged for the future to attend in Obedience to all 
 Writs that fhall be dircfted to him. But what makes 
 this Obfervation fomething ftronger is, that every 
 Lord who being fummoned, abfcnts himfelf without 
 the King's Leave, is liable to be fined, which it is un- 
 reafonabJe to fuppofe he can be, unlefs he be under a 
 legal Obligation to obey the Writ. The only rea- 
 fon my Lord Ccke gives, for a Regular's not being 
 obliged to obey the Writ is, becaufc he does not hold 
 per Baroniatn, which feems to be equally ftrong in the 
 SeUen'i Cafe of a Layman. The Abbot of St. y^w/s A^<jr//;»- 
 tit. 0^^°- ampton, being fummoned in the Twelfth of EdnvarJ 
 "®''' the Second, pctiti9ned to be difcharged upon a fug- 
 
 geftion
 
 peftion that he was not a Tenant /•/- Baroniam, the 
 Words are, '* Non tenet /fr baroniam nee de rege in ca- 
 " fite, fed tatuam in puram & perpetuam eleeniofy- 
 " nam, & nee ipfe abbas ncc predecefTores (in fuerunt 
 " ad pari in men turn citati hucufque. UnJe petit rerne- 
 '• dium l^ habuit.^' But here it may be obicrved that 
 this Paffage julhfies what I before faid, that not only 
 the Tcnzntsper Beironiam, but alfo the other Tenants in 
 Cupite, &c. were obliged to attend in Parliament when 
 fummoned. And therefore this Abbot excufes himfelf 
 as well upon the account of nul tenure en chief, as mil 
 tenure per Baroni. Again, in the 26th Year of Edzv. III. 
 the Abbot of Lticefer was, by Patent under the great 
 Seal, upon his Petition and Suggeftion that he was not 
 a Tenant per Baroniam, difcharged from all Attendance 
 in Parliament. The Patent is per Petitionem de Par- 
 liamento. And firft recites as follows, " Supplicavit Rot. Pari. 
 
 " nobis Abbas de Leiceftria ut cum aliqua ter- 26Ed.IiI. 
 
 " ras vel tenementa de nobis per Baroniam, feu alio p. 2. m. 
 " modonon teneat per quod ad parliamenta feu confi- 22. 
 
 " lia noftra venire teneatur Nolentes ipfum ab- 
 
 " batem indebite Jic 've.^ari, conceflimus quod idem 
 " Abbas, i5c. de vcniendo adparliamentum, l£c. qui- 
 " eti fint &: exonerati in perpetuum." Now thefe 
 two Perfons being upon this only Account difcharged 
 from their Attendance in Parliament, and the oblig- 
 ing them to attend being ftiled an undue Vexation, be- 
 caufe they did not hold per Baroniam, feems in feme 
 Meafure to be a Proof (the Reafon in both Cafes being 
 ti)e fame), that neither a lay nor religious Perfon are 
 obliged to attend in Obedience to the Writ, ur.lefs 
 they are Tenants /^r Baroniam. But further, tiiis Pa- 
 tent to the .*ibbot of Lenejier, fhows how there came 
 to be fo many Clergy fummoned to the Parliament of 
 the 49th of Hen. ill. as before-mentioned, and yet 
 not above One Third of them either then or afterwards 
 were really Barons of Parliament. It is before faid, 
 that thofe who were not Tenants per Baroniam, or by 
 Knight-Service, &:c. might refufe to attend, unlefs rhey 
 voluntarily thought (it ib to do. And accordingly it 
 follows in this Patent, by way of Reafon why the 
 then Summons of the Prcdece/Tor of the Abbot of Z<r/- 
 cfjier Ihould ncc bind him, that he was voluntarily 
 fummoned. " Quo anno (fell. 49. //. III.) omnes ab- 
 '* bates &. priores rcgni nottri Anglis ad p;irliameii- 
 G " turn
 
 c ^ } 
 
 " turn ejufdem proavi noftri tunc tentum voluntaric 
 *' fummoniti fuerunt." 
 
 4. But that the Reader may the better judge, how 
 far the Direaion of a Writ of Summons to any Man, 
 who was not a Tenant per Earoniam, could be thought 
 to create him a Baron of Parliament, either for Life, 
 or to him and his Heirs, if^c. I Ihall mention a few 
 Particulars that appear upon View of the Writs of 
 Summons that are extant. If it be true that every 
 Man (though he be not a Baron either by Tenure or 
 Patent) ought, upon the Receipt of his Writ, to enjoy 
 the Dignity and Honor of a BaroK-, how is it that 
 fo many Abbots and Priors as were fummo-ned 49° 
 kenry III. were never reckoned among the Spiritual 
 Barons ? Nor can I think it a fufEcient Anfwer to fay,, 
 that though they yNtxeBarons, yet as <vokntinonjit injuria, 
 Vifc. their naroniei were by their own Confent defeated and 
 
 Furbeck's taken away ; fince, according to a late Refolution of 
 Cafe. the Houfe of Lords, though a Peerage may be forfeited, 
 
 it cannot by any other Aft whatfoever (but an Ad of 
 Parliament) be either furrendered, defeated, or extin- 
 cuilhed. But I ftiall not infift upon what was done 
 curing the moft confufed Part of Henry the Third's 
 Rot.cbuf. Reign. In the i8th of Edru:ardll. Writs were d,- 
 18 Ed II reded to the Arch-Deacon of Ngrtbampton, and to the 
 dor c" " Dean of the Arches London, &c. who therefore, ac- 
 * cording to this Rule, ought to have been reckoned 
 
 among the Spiritual Barons of the Kingdom, though no 
 Writs were, for ought appears, ever directed to them 
 afterwards. The like Inllances might be given in the 
 Cafes of Guardians of the Spiritualities of vacant Bi- 
 fnopricks, Vicars General, tiSc. who have been "frt- 
 quently fummoned to Parliament by thefc creating 
 Writs, without its being ever fufpefted that they were 
 thereby created Barons, either for Life or otherwife. 
 A. Inft But my Lord C. J. Coke further informs us, thnt 
 
 ' every Temporal Lord who fits in the Houfe, ought ex 
 debito Jupti^ to have a Writ of Summons direfte'd to 
 him every Parliament. Nor can they therefore by 
 Law, either with or without their Confents, be ever 
 left out of the Lifls of Summons. And the Lords 
 have in all Ages refented any OmiCion of that Nature 
 asthehighcft Breach of their Privileges As in the 
 Year 1255, the Barons refufed to grant any Aid, or to 
 iranfaa any Bufinefs, becaufe all the Barons were not 
 
 fummoned
 
 ( 43 ) 
 
 fumnwnrd according to the Tenor of Magna Charta, Matth. 
 *' Quod omncs tunc temporis non fuerunt juxta teno- Paris^ 
 *' rem Magna; ChartJe fuai vocati. Et idee fine pari- 
 *' bus Aiis tunc abfentibus, nullum voluerunt tuncre- 
 ** fponfum dare vel aujcilium concedere vel prasrtare." 
 And it was frequent in fub/equ-ent Parliaments, to 
 prorogue or adjourn for fonie ihort Time at the Be- 
 ginning of a Seflion, in order to give Time to fuch 
 Members of either Houfe as were abfent, to arrive, 
 before they would enter into any Bufinefs. I think I 
 need' net quote Precedents for what is fo generally 
 known. Every Reader will doubtlefs believe il na- 
 tural, that each Houfe fhould concern itfelf for its 
 own Members ; but what is more, the Commons 
 when they have thought the Houfe of Lords too thin, 
 though the Peers acquiefced themfclves, have yet re- 
 fufed to proceed on Bufmefs, till all thofe Writs of Sum- 
 mons which of Right ought to have been fent to the 
 Lords, were aftualiy ilTued. As for Inftance, in the Rot, Parl- 
 20th of RJc'jardll^ the Commons, before they would 20 Ric. 
 enter upon the Bufinefs propofed to them by the 2. n, 8. 
 Chancellor in the King's Name, petitioned that all the 
 abfent Bifhops and Lords might be fent for to Parlia- 
 ment. And of later Times, in the Cafes of the Earls 
 of Arundel and Brijlol, upon their Confinement, the Rofiiw. 
 Houfe of Lords adjourned themfelves from Day to Coll, 
 Day, with a Refolution not to enter upon any Buu- 
 refs till th-ey had Satisfadlion in relation to thofe two 
 feers. Now if it be admitted for Truth, that the Di- 
 redlion of a Writ of Summons to any Perfon creates 
 him a Peer to him and his Heirs, and that every Peer 
 has a Right to demand a Writ of Summans to every 
 Parliament ; it follows, that every Man to whom fuch 
 a Writ was ever direSed, was thereby created a Baroit 
 to him and his Heirs, who had confequently a Right 
 to dexTiand their Writs of Summons, And yet if the 
 Lills of the Names of thofe who have been fummoned 
 to Parliament be confidcred, it will not be very eafy 
 to conceive how the Notion of a Writ's creating a 
 Peerage in Fee ever came into the World. For from 
 the 4gth oi Henry \\\. to the 23d oi Ed^ardV-J . (from 
 which Time the Summons have been more regular), 
 not fewer than 98 Laymen have been fummoned to 
 Parliament one fmglc Time, by the very fame Writs 
 by which the Earis and the other undoubted Barons ^ 
 G 2 were.
 
 ( 44 ) 
 
 were fummoned, and yet neither themfclves, nor any of 
 their Name or Pofterity, were ever afterwards fum- 
 moned to any Parliament or Great Council. Now is it 
 jioflible, if thefc Gentlemen had, by their being thus 
 once fummoned, gained a Peerage in Fee, that thefloufe 
 of Lords, -fo juftjy jealous of its Liberties, and fo 
 conllantly ready to vindicate the Rights of any one 
 ©fits injured Members, fhould pafs over in Silence 
 the Omiflion in all future V/rits of Summons of fo 
 many t'lghiiai Barons ? And is it conceivable, that fo 
 many Barons and their refpective Heirs fhould never 
 complnin of fuch an Injury, nor ever put in a Claim 
 to their Unextinguijhahle Baronies ? What therefore can 
 
 ^ be concluded from fuch Facts? If their Writs 
 
 did not create them Barons, they could only be fum- 
 moned as Afliflants to the Houfe of Lords, and as dt 
 conjilio regis in parliamento. 
 
 But here it will be ufeful to recoiled what has been 
 before obferved, 'viz. That the whole of Parliamentary 
 Bufinefs may be reduced under the two general Heads 
 oi Adaiice and Confent. Every Tenant hy Knight- Service, 
 as well as per Baroniam, did owe Homage to the Lord 
 of whom he held his Lands; and the Oath of Homage 
 did comprehend in it, that the Tenant was obliged 
 to give to his Lord the beft Counfel and Advice he was 
 able, and alfo that he fhould keep fecret all fuch Coun- 
 fels as fhould be communicated to him, which by the 
 Way is One Reafon why all Firfs were originally Maf- 
 culine, and could not defcend to the. Heirs Female. 
 Lib. Feu. '* Hoc autem notandum eft, quod licet filias, ut maf- 
 Tit. 1. '• culi patribus fuccedant, legibus tamen a fuccef- 
 " fione feudi removentur." Of which Law Zajiusy 
 a very confiderable Feudal Writer, afiirms the Reafon 
 to be, that by Intendment of Law a Woman was in- 
 capable of keeping a Secret, and therefore could not 
 fucceed to a Fief. Now the Tenants /;; Capite of the 
 Crown, who were obliged to fwear Homage, were 
 either Tenants per Comitatum, Baroniam, i5c. or by 
 Knight-Seri'tce, and who, by virtue of their Homage 
 (as is before faid), were equally obliged to attend when 
 fummoned to Parliament: The Difference therefore 
 that there was between them arofe from the Difference 
 of their Tenure ; and as they could not be Peers to each 
 other, by reafon that they were nox^ per idem fernjitium 
 con-jajfallit it feems reafonable to conclude, that their 
 
 Bufinefs
 
 ( 45 ) 
 
 Biifinefs and Rights in Parliament were difFerent. In 
 Matters of meer Advice to the Kinp, the Tenants per 
 Jlaioniam and by Knighi-Sernjice might act iiidiirerently 
 together ; but when any Thing was demanded of the 
 Bare;:!, properly fuch, I cannot but thinic the Tenants by 
 Knight-Ser'vice aded only as Council to the King, to 
 advii'e him in the Management of his Affairs ; fince it 
 feems to be abfurd to imagine, that in Cafes like that 
 of 13 Edw. III. when the Barcns granted the Tythe of 
 the Grain, i^c. gro.ving upon the Demefne of their 
 Baronies, the Barons would fufFer the King to call by 
 Writ a Pofle of Tenants by Knight-Service, or other 
 Perfons who were no ways concerned in the Payment, 
 to vote a Tax upon others, who held per Baroniam. 
 
 In other Affairs likewifc, which might be mentioned, 
 wherein the Barons afled as the Regalis Curia Regis 
 AnglifT, it feems reafonable to believe, that thofe Te- 
 nants by Knight-Service only, i^c. who by Writ 
 were fummoneJ to Parliament, were confidered only 
 (as the Judges at this Day are) as Counfellors to the 
 King and Barons. If what I have now faid be thought 
 true, in relation to the Tenants by Knight-Service 
 who were obliged to attend when fummoned, it "is 
 much more fo, in relation to the third Species of Men, 
 who could only be 'voluntarie J'ummoniti. But before I 
 proceed any further, I fhall Ihortly examine whether 
 the Fafts of Parliamentary Hiftory will anfwer to this 
 ^otion. 
 
 And firft, to refieft only upon what has been already 
 faid : This feems to the only Way of accounting for 
 the Barcns or Lords having never taken Exceptions to 
 the King's fummoning fo great a Number of Men 
 only Qnce to ferve in Parliament, and then omitting 
 them and their Heirs for ever after : Which it is im- 
 pofTible fliould not have been done, had the Perfons 
 fummoned been thereby really created Barons. But 
 upon Confideration of the Liils of Summons this fur- 
 ther Remark may be made, that thefe Perfons were 
 always treated exadily in the fame Manner as the 
 Judges and Serjeants were, who were yet never fuf- 
 pjfted by virtue of their Writs to have been created 
 Barons. And as to them, every one knows, that they 
 were never antiently either regularly or conltantly 
 fummoned; the King always, by fpecial Writs, fum- 
 moning only fuch and fo many of them, whofe Counfel 
 
 and
 
 ( 46 ) 
 
 and Advice he thouglit fit to ufe. And therefore it 
 lometimes happened, that if the King had no great 
 Opinion of their Capacities, or thought the Advice of 
 other People might be more ufeful to his Affairs, he 
 would negled them all. As for Inftance, Edi.u. J. in 
 the 28th Year of his Reign, though he did not negleft 
 his Judges, yet Writs were directed to the two Ur.i- 
 verfities, commanding them to fend forae of their baft 
 Rot. Cla. Civilians to advife the King in Parliament ; *' Rex, &c. 
 28 Ed. I. <■< Cancellar' & Univerfitat* Oxon' vobis mandamus, 
 dorf. 3. €1 ^(.^ Quod quatuor vel quinque de difcretioribus & 
 ** in jure fcripto magis expertis Univerfitat' pra:di£l' 
 ** ad parliamentum noftrum apud Lincoln' mittatis, 
 •* &c." But however, as the Judges and thofe other 
 Perfons, who were fummoned only as Affiflants to the 
 King and Lords in Parliament, never pretended that, 
 becaufe the fame Writs were fometimes direfted to 
 them as to the Barom, therefore they were thereby 
 created Barms : The Lords never concerned ihemfelves 
 at their being (according to the King's Pleafure) fome- 
 times fummoned to Parliament, and at other Times to- 
 tally left out ; fmce as thofe Men, by not being aftu- 
 ally Barons, had not a Right of voting among them in 
 Matters of Co«/^«/ (as^.^. in Grants of Aids, Altera- 
 tions of Laws, ^c), the Lords were no ways interefted, 
 and therefore could not attempt to inter;^ofe in rela- 
 tion to fuch Perfons as the King thought fit to fum- 
 nxon, to advife and confult with, as to granting or not 
 granting the Royal Aflent to any Thing that might be 
 propofed to him in Parliament. 
 
 Now, if we fee other Perfons fummoned in the fame 
 Manner as the Judges were, or if poflible in a worfe, 
 that is, at the Diftance of feveral Years, and feveral 
 Parliaments one Time from the other, and this without 
 any Complaint of their being thus either fummoned 
 Or left out, is it not reafonable to conclude, that their 
 Bufmefs likewife in Parliament was onlv as Afliftants, 
 in the fame Manner as the Judges are by all allowed 
 to be ? For during the fame Period of Time which we 
 laft mentioned, that is from 49 Hen. IIL to 23 Ed. IV. 
 there were no lefs than fifty Perfons fummoned in that 
 Manner by general Writs, and their Names lifted (as 
 frequently the Names of the Judges were) among the 
 Temporal Barons : As for Example, William de Aide- 
 burghe, Nicholas de Staphton, and many other Perfons 
 7 who
 
 ( 47 ) 
 
 who might be named, were fummoned to feveral Par* 
 liaments, by fpecial Writs, not immediately fucceed- 
 ing each other, but at a Diftance of Years, during 
 which many Parliaments had intervened, to which net- ' 
 ther of them had been fummoned, and then at laft to- 
 tally left out, and none of their Poilerity have beea 
 ever fummoned fince. William dt Aldehurgbe was fum- 
 mcned to the Parliaments held Anttis, 44, 49, 50. of 
 Ednx:ard\\\. but was omitted in the Parliaments of 4.5, ^ 
 46, y /V^rtfw 46 y 47. o'i Ed-u:ardll\. And NicJ!fo- 
 las de Stafleton (whofe Father had been indeed fum- 
 moned 6 and 7 Edtu. 11. and died in the eighth Year 
 of that King's Reign, leaving his Son of full Age) 
 was yet never fummoned to Parliament till 16 Ed. III. 
 and dying in the feventeenth left his Son Miles of full 
 Age, who however was not fummoned to Parliament 
 till the 3 2d Ediu. III. (It feems Dugdale could not find 
 the Bundle of this Year, fince in his Summons to 
 Parliament he makes this Note, NulU fummoniiiones in 
 annis 32 tff 33.), and then was never fummoned more, r)„_ t. 
 though he lived until 47 Ed^. III. nor any of his Pof- Vol T 
 terity, though he left Heirs. So likewifc John Strivelin i" 
 was fummoned, as Dugdale fays in his Baronage, from ^' '°* 
 the 1 6th to the 44th of EdTvardlU. inclufive, but in 
 Faa, according to his own Lifts of Summons, he was 
 only fummoned in amis 16, 37, 38, 39, 42 ^ 44. 
 Edzu. III. I think it needlefs to incumber the Reader 
 with more Cafes to this Purpofe, fince every Man 
 upon once looking upon the Lifts of Summons may 
 obferve Numbers of them. 
 
 From all thcfe Particulars therefore, and much more 
 that might be added, it feems reafonable to believe, 
 that as the King's Writ to th« Judges did not confti- 
 tute either ihem or their Heirs F£trs or Barons of the 
 Realm, fo neither did the fame Writ, direfted to any 
 other Pcrfons, create them Peers or Barom, either for 
 Life or othcrwife, unlefs they were fuch as were Te- 
 Tnzxifi per Buroniam, and had been neglected as being 
 inter Larones Minores, as is before obierved. But what 
 has now been faid will not appear fo furprizin?, if it 
 be confjdered, thac the Judges did formerly make a 
 much greater Figure in Parliament than they now do; 
 for when the Commons contented themfelve's with Pe- 
 titioning, and the Lords with Anfwering, leaving it 
 to the Judges to draw their Petitions and Anfwers 
 
 iti'o
 
 ( 48 ) 
 
 Snto the Form of Statutes, they were in fome Meafure 
 concerned in the Legiflature of the Kingdom. Many 
 Particulars might be mentioned upon this Occafion, 
 but I for Shorcnefs omit tfiem, though however it 
 ought to be obferved, that it is very difficult, from old 
 Books which mention the Tranfadions in Parliament, 
 and the Names cf the Perfons molUy concerned 
 (though doubtlefs it was well known at the Time of 
 Aftion), at this Time to diftinguifti the real Barons 
 from thofe who were only as Affiftants in Parliament. 
 And befides, it was ufual formerly, when any Matter 
 was under Confideration in the Houfe of Lords, to 
 commit it indifferently to any Perfons who were fum- 
 moned to the Houfe, without diftinguilhmg who were 
 or who were not Barcns. The modelling or contriving 
 a Bill, l^c. in Parliament being altogether Matter of 
 Advice, was therefore common to all who (like the 
 Judges) were by the Claufe Fejirumque Confilium tm- 
 pcnfuri, fummoned to give Coanfel and Advice to the 
 King. But then (as 1 think) when they came to re- 
 folve upon the Bills, I3.c. paffmg, which is purely 
 Matter of Confent, none had the Right of voting but 
 thofe who were aftually Barons. The Ufage at this 
 Day is for the Houfe of Lords to refer Bufinefs by 
 Order, to the Judges, who report to the Houfe 'their 
 Opinion cdncerning it. But formerly the Judges have 
 been made Joint Committees with the Lords, and that 
 Journal fo late as the Reign of Queen Elizabeth ; tor 26 Jan. 
 Dom' 1 1:63 the Bill againft forging Evidences, tffr. was com- 
 
 Proc. mitted to the Archbifhop of York, the Duke of T^^r/J/f, 
 
 ic6?. the Marquis oi Northampton, ^c. to the Chief Julhce 
 
 of the Queen's Bench, the Chief Baron of the Lxche- 
 quer, and to the Queen's Solicitor. On the 20th of 
 March following, the like Cafe again happened ; and 
 indeed it was very frequently pradtifed in all her Par- 
 liaments, until the 39th Year of her Reign from which 
 Time, though I cannot pretend to tell the Realon, it 
 has been been difufed. Now according to the Notions 
 and Praaice of the prefent Age (did we not certainly 
 know how Things ftood in the Reign of Queen hhza- 
 beth),vjt^o\x\d. without Hcfitalion conclude all Joint- 
 Committees to be Peers, and therefore we ought much 
 lefs, when the Quefticn is concerning much more an- 
 cient Times, and of which no Journal Books arc extant, 
 to fancy that all Men who were fummoned by V/nt to 
 ' Par-
 
 ( 49 ) 
 
 Parliament, were equally Peers of the King'om, wheft 
 in faft fome who were lummoned by thofe Writs, are 
 agreed irever to have been thought fuch. And there- 
 fore, if it be true, that if the Writ makes one Man a 
 Baron, it mull alfo make every Man fo to whom it is 
 direfted, and that being manifeftly not true in refpeft 
 to the Judges, i^c. it from thence follows, that a Ba- 
 rony is fomething dilHnft from the Writ, and that caa 
 only be Tenure per Baroniam. ' 
 
 But laftly, that we may not too long infill upon 
 thefe Barons by Writ, it fliall be obferved, that though 
 tlie common Notion is otherwife, yet even modern 
 Practice has not been fo inconfiltent with what has 
 been before explained, as is generally imagined. But 
 here it will be proper to take Notice, that aDilHndion 
 mull at this Day be raad« between the Perfons to 
 whom thefe Writs are direfted ; for they are either to 
 the elder Sons of Peers, who are fummoned by the 
 Title of fome Barony aftually in the Father, or elfe 
 they are direfted to Commoners who have no Right of 
 Succeflion to any Peerage whatfoever. And as to the 
 lall of thefe Perfons, there is no Doubt, but that if 
 the Writ does any Thing, it mull operate by Way of 
 Creation ; but as to the firfl, even as the Law is now 
 fiippofcd to Hand, fome Doubt may be made of it. 
 Every Peer in the Houfe of Lords has Precedence 
 according to the Seniority of his Creation ; now it is 
 obvious, that ii the Writ does in both Cafes equally 
 operate by way of Creation, that then the eldeft Son 
 of a Peer, as well as any other Commoner, when he 
 is by Writ fummoned to Parliament, would be the 
 Puifne Baron, and would coafequently give place to 
 all others, yet the Ufage of the Houfe of Lords is 
 contrary : For if the eldell Son of a Peer be fummoned 
 by Writ, it is generally by the Stile of fome Barony 
 that is in his Father; and his Place in the Houfe is 
 regulated according to the Antiquity of that Barony: 
 As for Inllance, fuppofe the eldell Son of a Duke of 
 Norfolk be fummoned by the Title of Lord Aloivirayy 
 his Place on the Barons Bench is that of the antienc 
 Barons of Mozuiray ; and accordingly, in the Lills of 
 Summons of the ^id of Charles II. Henry Hoiuard, 
 Lord Moi.vbray, is placed as the firll Baron of England, 
 ;vhich i.< in fuch Cafe fuppofed, by the Confent of 
 the Father, to be veiled in the Son. The Writ of 
 H Sum-
 
 ( 50 ) 
 
 Summons therefore feems not fo much tp be confidereJ 
 as the Creation of a Baron, but only as an Injirument 
 of Conveyance, or Method of transferring a Barony or 
 Honour from one Perfon to another ; for if it is not fo, 
 what Reafon can be given, why the eldeft Son of 
 one Earl, fummoned by the Stile of his Father's Ba- 
 rony, (hall have Precedence according to the Rar.k 
 and Antiquity of that Barony? And that the eldell 
 Son of another Earl, if he be by Patent created to a 
 Title or Barony foreign to his Family, ftall be confi- 
 - dered as the youngefl Baron, and take his Place in the 
 Houfe accordingly. I fpeak (and I think every Man 
 ought) with great Submiffion upon this Subjeft; but (if 
 I niiftake not) the Law even at this Day is, that though 
 the lall of thefe Perfons takes a Barony in Fee, or 
 otherwife, according to the Limitation of it, yet 'the 
 firft, upon whom the Writ operated only by way of 
 Inftrument or 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 Eftoyle, 
 Tayle, Cfff. in the Barony, the Eftate of the Son, though 
 fummoned by Writ, is not enlarged, nor made a Fee, 
 and defcendibie to his Heirs general. Now it cannot 
 be pretended (as I have fometimes heard) that as the 
 eldeft Son of a Duke, tfc, does out of Parliament take 
 Place of a. Baron, when he is fummoned to Parliament, 
 the Barons for that Reafon yield Precedence to him in 
 the Houfe ; for if that was the Cafe, he would like- 
 *ife in Parliament take place of all the Vifcounts and 
 Esrls, which is never done; according to the Refolu- 
 fournal tion 6 Henry VIIL in the Cafe of the Earl of Surrey, 
 Dom' ^ho pretending to take place in Parliament r.bove all 
 
 Pfov'. ^^^ ^^rls, as Son to the Duke of Aor/o/^, it was re- 
 
 folved that he fhould be ranked only according to the 
 Time of his being created Earl of Surrey. If the Writ 
 was therefore to be confidered as creatory of a new 
 Barony, it feems more than probable, that a like Re- 
 folution would have been taken for ranking the Perfon 
 fummoned among the Barons according to the Time of 
 his Creation : Which not being done, manifeftiv Ihows 
 the Wnt to be no more than an Inflrument of Con- 
 veyance ; for there can be no more Reafon for the 
 eldeft Son of a Duke's taking place of the Barons, when 
 he is created a Baron, than there is for his taking place 
 Ot the Earls, when he is created an Earl. 
 
 When
 
 ( St ) 
 
 "When therefore the eldeft Son of a Nobleman is fufli- 
 moned to the Houfe of Peers by the Title of his Fa- 
 ther's Barony, there is not a new Barony created ; but hf 
 the Operation of the Writ* according to the Cuftom of 
 Parliament (which is Part of the Law of the Land)* 
 the Barony of the Father is transferred to the Son : 
 From whence (if this Notion be true) it evidently 
 appears, that the Number oi Barons in Fee is not near 
 fo large, as it has been by fome late Writers repre'- 
 fented to be, upon an Imagination that the eldelt 
 Sons of Peers, when they are by Writ fummoned to 
 Parliament by the Stile of their Fathers Baronies, do 
 thereby gain an Eftate in Fee-Simple in the Honour, 
 fo as to make it defcendible to their fieirs general, and 
 that confequently their Peerages are not fo liable to 
 be exdnguilhed, as they were before. But here it will 
 not be improper to obviate an Obje<flion that may be 
 made, 'vix. That fince all the Peers are agreed to fit 
 and vote in the Houfe only as Barons, the Writ can- 
 not operate by way of Conveyance of the Father's 
 Barony to the Son ; becaufe that, if it did, the Father 
 would have no Barony left whereby he could be inti- 
 tled to fit in the Houfe, and that therefore the Writ 
 muft operate by way of Creation. In Anfwer to 
 which it muft be obferved, that a DiiHndlion is to be 
 made between the Writ's being direded to the eldell 
 Son of an Earl, i^c. and to the eldeft Son of a Baron ; 
 for, as I take it, though an Earl be poflefTed of only one 
 Barony, yet may his eldeft Son be fummoned by that 
 Title, and the Father ftill retain in himfelf all the 
 Rights oi Barony : But a Baron muft regularly have 
 feveral Baronies centering in him to enable bis eldeft 
 Son to be called by Writ, becaufe that in fuch Cafe, 
 though one of them be transferred to the Son, yet a 
 Barony does ftill aftually remain in the Father. That 
 Earldoms as well as Barcnics were originally Feudal, is 
 certain ; and every Tenure per Ccmitatum was to a 
 Tenure per Baroniam, exadlly as a Tenure per Baroniam 
 was to Knight'Seruice ; and therefore as every Tenure 
 per Baroniam was a Tenure by Knight-Ser-vice and more, 
 fo like wife was a Tenure per C ami tat urn, a Tenure per 
 Baroniafn and more, that is, as a Tenure per Barcnian 
 implied Knight-Ser-vice, a Tenure per Ccmitatum did 
 ^mply Barony : From whence a Reafon may be gathered 
 of this Dift'crence; for though the fingle(perhaps) Ba- 
 ll 2 rans
 
 •< 52 ) 
 
 «,/ of an Earl be transferred to the Son, yet the Earf- 
 dom, which implies a Barony, ftiH remains in the Fa- 
 ^^x/""'/I!r ''''''/.^ underflood in Antiquity, frnce the 
 Word Honour, which, as is before obfcrved, was fyno- 
 nymous to Barony, was in the fame Feudal Senfe ap- 
 plied to Earldoms, with this only Diftinaion, that it 
 ^^^^^\\c6.Cowitalis Honor., as appears from this, that 
 in me old Charters for the Creation oi Earb, befides 
 the Annuity, which was to be paid to them nomine 
 Lcmitaius it was frequent to add a C^aafe to enable 
 them to hold a great Part of their Eftates M Comitaii 
 Honore ; by which thofe Lands became, as it were., 
 Farce] of their EarUoms, which was the beft Way 
 of entailing, fmce thereby they became like their 
 Honors, unalienable by their Heirs. As for Irftance 
 (not to multiply Precedents) in the Patent that 
 pafled for creating Henry Piercy Earl of Northum- 
 i> . r% fe ' l^" 9^^"^^ '' i"<"e«ed, after the Grant of 
 rI. ir Z'^o"^ ^°""'^' '"""'"' Comitatus; " Et quod omnia 
 
 iKic.lI. Caftra, &c. quae jure hsreditario vel ad- 
 
 n- 3'- quiiitione propria perantea tenuit & poffedit, vel 
 
 *• impofteram eft habiturus fub Honore Comitaii, Sc 
 •' tanquam parcella; difti comitatus teneantur, &c." 
 But further, the Pradice has been conformable to this 
 IV otion, though by the Way it may be obfcrved, that 
 this Pradice is not of a very old Date, fince the firft 
 inltance of it was (if I am not mijch deceived) in the 
 22d oiEd-w. IV. in Favour o^ Thomas Arundel, eldeft 
 bon to Richard Eitz-Jlan Earl of Jmndel, who was 
 lummoned to Parliament by the Name of Lord Mai- 
 travers, and in his Cafe (which perhaps was the Found- 
 ation of their Ufagc) he is not placed as junior Baron 
 upon the Lifts of Summons, but between the Lords 
 Zouch znd Dacre of G'i lie/land ; but as they were not 
 then probably lo nice in entering the Names ofthePeers 
 jis they have been of later Times, I fliall not offer to 
 infer any Thing from it. The fummoning the eldeft 
 Sons of Earls by Writ is fo common, that it is need- 
 lefs to mention any of them ; but the eldeft Sons of 
 Marons have very rarely had that Honour, there being 
 J believe but two, who were ever fummoned by Writ, 
 bummon. both whofe Fathers at the fame Time had in them fe- 
 1 Jac. xeril Baronies ; the fifft of whom was /T///. Par/ier, the 
 
 JCc. I. eldeft Son of Ed'ward Lord Morly and Montegle, by the 
 Name of Lord Montegle, and in the UUof Summon* 
 6 he
 
 ( ?^ ) 
 
 }ie is placed between the Lords D arete efe Tfarcie and 
 Saudvs de Vyne. The Second was Cottiers DarciCy cldeft 
 Son of the Lord Darcie, Meynill, and Conyers, by the 
 Nnmeof Lord Darcie, and was upon his I irlt Summons, 
 \rhich was anno 3 z CaroUll. l fuppofe through Miftake) 
 placed as junior Baron upon the Lift; but in the Par- 
 liament of I yac. IL that Error is amended, for he is 
 then entered between the Lords ^/oar/sw and CrowTuell. 
 As to the Commoners to whom Writs have Jilcewifc 
 been directed (unlefs they were fome of the before- 
 mentioned neglefted baront by Tenure J, there is no 
 Doubt but their Writs, if they became Peers in confe- 
 quence of them, mull have operated by way of Crea- 
 tion. But then it ftrongly appears, that that Method 
 has not been much efteemed; for (as i believe) it is 
 row above a hundred Years finc6 any Man was made 
 a Peer by that Means ; and as to thofe wIk) are fup- 
 pofed to have been created Barons by Writ before that 
 Time, it muft be obferved that all the antient Writs of 
 Summons did conftantly run " in fide & homagio 
 " quibus nobis tenemini;" as Dugdale and all other 
 Authors agree. But during the Time that Phrafe was 
 cfed, my Lord Coke and Sir He7iry Spehnan both aflert 4 Inft, ie 
 the PeiTons fummoned to Parliament as Peers, to have in Glof. 
 been undoubtedly ^arow^ only by Tenure: And there- 
 fore (if that Obfervation be allowed to be true) it de- 
 iVionltrabiy follows, that there could not pofHbly be 
 any Barons by Writ, in the Senfe the Term is now 
 ttCed, before the 25th of Edivard III. fince all the 
 Writs antecedent to that Time have that Phrafe regu- 
 larly inferted in them : Though if we coniider whathas' 
 been before obferved, that Homage was equally inci- 
 dent to a Tenure per Baroniam, and by common Knight- 
 Ser'vice, and therefore the Writ might with the fame 
 Propriety bediredled to them both,itmanifeftlyappears, 
 that the Direftion of luch a Writ to any Man does not 
 prove him to be a Baron at ail, fince it only fuppofes 
 him to be a Tenant in Capite by One of the above- 
 mentioned Services : And as to what my Lord Chief 
 fuitice Coke further obferves, that the Reafon of 
 changing that CFaufe iiuo the other of /;: f.de Sff li- 
 geaneid, was, becaufe the greateft Part of the Perfons 
 lummoned after the 25 ih of Ed. III. were not Tenants 
 per Baroni.un, I cannot but doubt the 'i'ruth of it, 
 iince I believe no Man can fliow, that ever any Man 
 
 was
 
 ( 54 ) 
 
 was fummoned to Parliament by Writ, from the j\.gih 
 oi Henry III. until the ift of Hen. VJI. who was not a 
 Tenant per Baroniam, or at leaft in Capite by Knight- 
 Ser'vice, and confequently the Phrafe in Fide ^ Ho- 
 fhagio, was as applicable to every Man who was fum- 
 moned after the 25th o( Edauardlll. as it was before. 
 But, indeed, after that Time the Phrafes feem to 
 have been ufed indifferent^, and as if they were fy- 
 nonymous to each other. For fometimes the one 
 Phrafe, and fometimes the other, are to be found in 
 Writs directed to Perfons, who were andoubtedly 
 Barons by Tenure. And then further, fince that Time 
 frequent Homages for Dutchies, Earldoms, and Baronies^ 
 are upon Record to have been done by Perfons who 
 were at other Times fummoned by the Phrafe, in Fide 
 l£ Ligeancia. The Oeremony of it is kept up unto 
 this Day, when, upon a Coronation, the Peers in a Body 
 are faid to do Homage to the King. Though the Bi- 
 fliops are now the only Perfons who regularly do it 
 upon Livery of their Temporalities, before they are 
 
 admitted into the Houfe of Lo^ds. 
 
 Having in this Manner, as fully as the Limits pre- 
 fcribed to this Difcourfe would permit, exprefled my 
 Thoughts concerning Barons or Peers, both by Tenure 
 and by Writ ; it will be neceflary before I can pro- 
 ceed to the Confideration of Peers by Patent, to pre- 
 mife fomething concerning that Prerogative, which 
 the Crown has fometimes claimed, not only of Sum- 
 moning thofe Perfons to Parliament (as its Council), 
 who were Tenants in Capite by Knight-Service, Once 
 or Twice, and then neglecting them for the future, 
 but alfo of fummoning, in the fame Manner, thofe 
 who were adlually Tenants /^r Baroniam^ fometimes to 
 one Parliament and fometimes to another, and leaving 
 them out of the Lifts of Summons afterwards, whenever 
 the King thought convenient. 
 
 It has been already obferved, that Attendance in 
 Parliament, was originally to be in a great Meafure 
 confidered as a Service incident to the Tenure of 
 Lands. And that upon the Defeat of the Barons at 
 Evejham, a Law was made, by which no Baron had a 
 Right to come to Parliament, unlefs he was fummoned 
 by particular Writ ; which as it was the Occafion of 
 what was afterwards called Barony by Writ, fo likewife 
 the Praftice which was for fome time afterwards ufed.
 
 ( 55 ) 
 
 in fummoning the Barons to Parliament, was probably 
 the Caufe of introducing Barcns by Patent. The 
 Claufe in the above-mentioned Magna Charta of King 
 John is, •' Ad habendum commune concilium regni, 
 •' faciemus fummoneri archiepifcopos, epifcopos, ab- 
 *• bates, comites, & majores barones regni iigillatim 
 ** per litteras noflras." In which it is obfervable, that 
 though the ArchbifhopsjBifliops, Abbots, and Earls, are 
 enafted to be conflantly fummoned to Parlinment, yet 
 the fumn oning of the Barons was left in fome Uncer- 
 tainty, by reafon of its not being determined who 
 fhould, or who fhould not be comprehended within 
 the Term of Majores Barones, which Uncertainty was 
 perhaps the Foundation of thofe Difputes that after- 
 wards happened between the King and the Barons, upon 
 Account that all the Majores Barones were not fum- 
 moned. But however this Difpute, if the Manufcript 
 Author before cited out of Cambden be to be depended 
 on, was, by the Succefs of Henry the Third's Arms de- 
 termined very much to the Advantage of the Crown, 
 as appears by the Words before tranfcribed. By which 
 Statute (as my Lord Coke calls it) it was enafted, that 
 no Earls or Barons indefinitely fhould come to Parlia- 
 ment, but only thofe to whom the King fhould direft 
 particular Writs of Summons ; by which Law it was 
 pretended, that the Determination of who were, or 
 who were not, to be reckoned inter Majores Barones, 
 was left abfolutely in the Power of the Crown. But the 
 King's Succeffors to Hen. III. carried it yet further, 
 explaining it by the Charter of King ^o^w ; and claim- 
 ing a Power to fummon ad arbitrium, any Tenant per 
 Baroniam to Parliament, without being by Law obliged 
 to fummon him to any future Parliament ; and the 
 Writ accordingly (as is before obferved) contains n6 
 Words in it, by which it was antiently underftood that 
 the Perfon fummoned was created a Parliamentary 
 Baron for Life, and much lefs to him and his Heirs. 
 Thus Henry Pe'verell is upon the Lifts, as being once •-. 
 fummoned to Parliament in the 32d ofEdivardllh and j t"* 
 was never fummoned again, though there were no lefs „" 
 than four of that Name, who before the 49th of ^^"°^* 
 Henry 111. were Tenants per Baroniam ; fo likewife 
 ydbn de f'e/ci was fummoned infer Majores Barones 49** 
 Henry III. (and whofe Barony by Tenure is before men- 
 tioned to have defcended to Sir Henry dt Bromflete) ; but 
 
 whether
 
 ( S6 ) 
 
 whether he was ever fummoned again is uncertain, by 
 reafon the Rolls of Summons undl his Death, which 
 was in the \yth of Edivar^ the Firft, are loft; how- 
 ever his Brother and Heir Jfilliam, though 40 Yeiirs of 
 Age at the Death of John, was not fumrnoned until 
 the 23d of Ednxjardl. and was then not fummoned 
 again until the • th oi Ednuard II. bV. Many InRances 
 of this Nature might be added, but thefe are fuffici- 
 ent to let the Reader fee, that the King not only 
 claimed, but alfo praftifed this Prerogative. But then 
 it muftbe confidered, that the leaft confiderable of the 
 Barons were always the Subjefts of it, for there is no 
 Inftance of any Earls being ever omitted, nor indeed 
 any very confiderable Baron. And they, as they were 
 the only Perfons who could diftrefs the Kinj^ (being 
 fure fo long as their Power continued, of being fum- 
 moned thenifelves), never concerned themfelves to re- 
 medy or redrefs the Injuries done to Perfons of lefs 
 Confcquence, until they alfo began to be affefled. 
 And as for the others, they would not complain, fmce, 
 during the firft and middle Ages of our Monarchy 
 (and before that Methods were found out to make 
 Men think a long and expenfive Attendance worth 
 their while), the Privilege of attending now and then 
 in Parliament, was not [wot could it be) thought by 
 a Man of a fmall Income, to be a fufficient Equivalent 
 for the Burthen of thofe other Services that were in- 
 cident to a Tenure per Baroniam. 
 
 The Humor of our Englijh Gentlemen is certainly 
 very much changed from what it antiently was ; fince 
 formerly Men were fo far from being fond of coming 
 to Parliament, that even thofe who were aftually 
 fummoned, and by virtue of their being Tenants in 
 Capite per Baroniam, were obliged to attend, did fo fre- 
 quently abfent themfelves, that it was found necelTa- 
 ry to pafs an Aft of Parliament, more cfFeaually to 
 force People to attend in Obedience to their Sum- 
 mons. And therefore it is enaded by the 5th of 
 Cap JL, Richard the Second, " That if any Perfon, which 
 ** from henceforth fhall have the faid Summons, be 
 •' he Archbifhop, Biftiop, Abbot, Prior, Duke, Earl, 
 *♦ or Baron, l5c. do abfent himfelf — — he (hall be 
 ♦* amerced and otherwife punifhed, l3c." It is no 
 Wonder therefore that it was common for Perfons 
 who were not confiderable enough to difpute with 
 
 the
 
 i ;? ) 
 
 the Crown upon their being either inferted or left oat 
 of the Writs of Summons to Parliament, or who, 
 though they might be fummoned, were not (upon other 
 Accounts) very defirous of that Honour, to do all 
 that lay in their Power, to fupprefs fo much as the 
 very Knowledge of their being Tenants in Capite per 
 Barcniam. For thofe Tenants per Baroniam, who were 
 never fummoned to Parliament, as they were (as is be- 
 fore-mentioned) entitled to all the Privileges of Ba- 
 rons, as, e. g. Exemption from ferving on Juries, ^c. 
 which were not fimply incident to, and the pure Con- 
 fequence of Attendance in Parliament, as, e. g. their 
 Domefticks being in Seflion Time free from Arrefts, 
 i^c. fo likewife were they bound to the Performance 
 of all Baronial Services whatfoever, excepting only 
 that of Attendance in Parliament. 
 
 It is known, that the Relief of Earldoms and Baro- Mag.' 
 nies, was uncertain till the Time of the Grand Chart. 
 Charter. As appears from GlanviU, " Dicitur ratio- cap. 2. 
 " nabile relevium alicujus juxta confuetudinem regni Lib. 9. 
 
 " de feodo unius militis C. folid. de Baro- cap. 4. 
 
 *• niis vero nihil certum llatutum eft." But yet 
 notwithftanding that by the Charter of Henry III. the 
 Relief of an Earl was fettled at One hundred Pounds, 
 and the Relief of a Baron at One hundred Marks, af- 
 ter that Time the Barons did frequently pay the Re- 
 liefs at One hundred Pounds. As for Example, in the 
 Cafe of William Longe/peye, Son and Heir of Tdonea, a 
 Tenant per Baroniam, " Et poftea fcrutatis rotulis de Mem. in 
 " Scaccario inveniebatur quod praedifta Ydonea te- Scacc. 
 
 *' nuit de rege in capite duas baronias et 40 H. 3. 
 
 ** ideo confideratum eft per barones, quod praidiftus Rot. 12. b. 
 " Willielmus refpondeat domino regi de 200 lib. pro 
 " relevio fuo." Now the Payment of this Relief 
 was common to all the Tenants per Baroniam (who 
 were confequcntly all equally Barons within the 
 Charter of Henry the Third) without Diftinftion, whe- 
 ther they were fummoned to Parliament or not. But 
 that it may not be faid this Hundred Pound Relief 
 paid by William Longrfpeye, was in the confufed Time of 
 Henry the Third, I add, that in the Reign oi EJavard 
 the Firft (our Englijh Jujiinian, as he is called by my 
 Lord C. J. Ccke), the like Relief, contrary to the ex- 
 prefs Terras of iV/<7o^/;« C^ar/fl, was paid, ** Robertas 
 I " filiuj
 
 '( 58 ) 
 
 xvr- I, «* filius Walter! qui habet in uxorem Dervorguliam 
 
 7^ " unam filiarum & hrcredum Johannis dc Burgo filu 
 
 Commu- ^^ ^ hsredis Hawifia: de Launvaley, qua: de rege 
 
 pj' ^^' ♦' tenuit in capita per baroniam, dat regi quinqua- 
 
 S '' *' Eintalibras pro relevio fuo de medieiate baronia; 
 
 ■u *j^* •• prxdiace." But this laft Cafe does not only prove, 
 
 '" I that in the Reign of £^^«r^.the Firft, one hundred 
 
 ii' '^' Pound was paid for Relief inftead of one hundred 
 
 '• Marks, but alfo that it was paid by Perfons who were 
 
 not (at leaft regularly) fummoned to Parliament ; for 
 
 this Roiert Fitz Walter was not fummoned until the 
 
 27d oiEd-ward the Firft, that is nine Years after this 
 
 Payment. Since in the Year preceding, n.nz. the zzd 
 
 oiEdnj^ard the Firft, his Name is not to be found upon 
 
 the Lift of Summons. . , ^ 
 
 I believe I need not multiply Precedents to prove 
 this Point, fince the Reader will eafily believe, that 
 though the King was willing enough not to be troubled 
 with more of them in Parliament, than fuch as he Ihould 
 think particularly to fummon by Writ, that yet he 
 was not inclined to releafe to thofe Tenants per Baro- 
 niam, whom he did not fummon any Part of their 
 other Baronial Services, nor (much lefs) to rehnquifti 
 any Method which the Crown was poffeffed of, for 
 xaifine Money from them. As it would fwell this 
 Difcourfe to too great a Length, I wave the entering 
 into the Detail of thofe Reafons, which might engage 
 all thofe Tenants per Baronia^n, who had no 1 roipedt 
 ofbeing regularly fummoned to Parliament, tnterBa- 
 rones Majores, or who, if they were now and then fum- 
 moned, the very Attendance even in Parliament was 
 a Burthen to them, to defire the Extingiiidiment of fo 
 much as the Knowledge of their being r.«««/x/^r Ba~ 
 roniam, and to be confequently delivered from al 
 thofe burthenfome Services that were incident to that 
 
 '^ As"this Prerogative, therefore, which the King exer- 
 cifed of fummoning a Man as a Baron for two or three 
 Parliaments, and then, ad arbitrrum, to leave him out 
 of the Lifts of Summons for the future, inclined the 
 Indigent, and every Way mmres Barones, to get nd ot 
 their r.««r. per Baroniam, fo on the other Hand it en- 
 gaeedthe Barons of better Fortunes, and more power- 
 ful Families, to think of fome Method to prevent their 
 being negleaed, and to engage the Crown .^f-h a
 
 C 59 ) 
 
 Manner, as that, without difputing the Legality of 
 the above-mentioned Prerogative, the King might be 
 under a legal Neceflity of conftantly fummoning 
 them to all Parliaments. And this perhaps was the 
 iirll Original of Patents: Which they underflood to 
 be (as it were) in the Nat\ire of a Recognition upon 
 Record on the Part of the Crown, of their being inter 
 Majores Barones, and that confequently they had a 
 Right to be conilantly fummoned to all Parliaments. 
 But however, as this is a Speculation that I can only 
 mention as probable, having not feen Fafts fufficient 
 to enable me to evince the Truth of it, I Ihall not 
 now fay more of it ; but proceed to what I think 
 more certain in relation to our Barons by Patent. 
 
 And under this Head likewife, of Barons by Patent, 
 my firll Enquiry will terminate at tie Beginning of 
 the Reign of Henry the Seventh, fince it will be ne- 
 ceflary for me afterwards to take fome fhort Notice of 
 thofe Alterations, which, fince his Time, have been 
 introduced into the Peerage ; and of which he laid the 
 firll: Foundations, and lome of his Succeflbrs have 
 pradifed in fuch a Manner as that they have become a 
 Grievance. But as the Patents that pall'ed before 
 the Acceffion of Henry the Seventh (moft of which* 
 that are extant, or elfe attelled Copies of them, taken 
 from and collated with the Records, I have both (text 
 andperufed), this preliminary Obfervation and Dif- 
 tinc'tion mull be made, 'viz,. That they are either Pa- 
 tents creating Perfons who were Barons before, Fif- 
 counts or Earls, &c. or elfe they are Patents creating 
 Perfons Barons, or per faltum Vifcounts or Earls, &c, 
 who were perfeiSl Commoners before. The Reafon of 
 which Dillindion is, that I think a great Difference 
 is to be made between thofe Patents, which only 
 grant to a Man, who is already a Peer or Baron, an 
 Advancement in the Peerage, and thofe which, being 
 made to mere Commoners, are introdudlory of new 
 Peerages. For the Body of the Peers are manifeftly 
 much more concerned in thelaft of thefe, than in the 
 firll. 
 
 It is fo long fince our Nobility has ceafed to be Feu- 
 dal, that the very Notion of an officiary Earl is al- 
 moll loil in England, though yet the Privileges of thofe 
 Perfons whofe Titles are fingly owing to their Pa- 
 tents, are founded upon the Conftitution, as it was 
 I 2 framed
 
 ( ^o ) 
 
 framed and underftood by their Feudal Predeceflbrs. 
 Now ^s Dukes, Marq^tfes and Ft/counts, are b^t modern 
 Titles in comparHon of Earls and Barons, I Ihall 
 chiefly confider, only the Patents by which the two laft 
 were created fince the Right of creating the others 
 will naturally be determined by the fame Rules and 
 Methods of Proceeding, in which the Prerogative of 
 making Edrls and Barons was exercifed. That an Earl- 
 dom was originally Ofliciary and Feudal (that is, fince 
 the Conqueft), is certain ; and his Office by the Com- 
 "Nevill's mon Law was (as my Lord Coke fays) to be the great 
 Cafe. Confervator of the Peace in his County. And. zi Ba- 
 
 ron and Barony, fo alfo were Coujit or Earl, and County 
 Jiot only correlative Terms but Things, nor could 
 one properly fubfift without the other. And while 
 Earldoms were upon this officiary Foot, as it highly 
 concerned the Inhabitants of their refpeftive Coun- 
 ties that they Ihould not too much depend upon the 
 Prince, fo their Fees or Salaries were not precarious, 
 nor derived from the good Pleafure of the Crown, but 
 confifted of the third Part of the Profits of the Pleas, l^c. 
 of their Counties, to which by common Law, and qua 
 Comites, they were entitled. Nor was it an inconfi- 
 derable Sum in thofe Times, when, as my Lord C. J. 
 Hift. of Hales obferves, the Bgfinefs of the County Courts was 
 %\xc Law. not fubtrafted frpm them, but Fines were there le- 
 vied, PoJlfaes,JIne! pro licentia concordandi,pro inquijitio- 
 nibus habendis, &c. the Profits arifing from all which, 
 made Part of the ^\\tnS%"TtxT[i de proficuis comitatus. 
 Before the Conqueft, thefe Offices were at moft but 
 for Term of Life ; but by the Conqueror they were 
 made Feudal and Hereditary, but without the Intro- 
 duftion of any other Difference ; for the Office ftill 
 continued the fame, and if we confider the extant 
 prants of Earldoms, that pafTed during a long Time 
 after his Reign, we ihall find that the tertius denarius 
 was confidered in Law, as it were effenual to the Dig- 
 nity of an Earl. 
 
 Earldoms and Baronies were, by Intendment of Law 
 (as is before obferved out of the Mirror of Juftices), 
 eftablifhed for the Defence of the Realm ; and the 
 Feudal Nations had no more Notion, after they were 
 formed into a Civil Government, that a Kingdom could 
 fubfift without Earls and Barons, than they had while 
 they were but the Body of an Army, that thur Con- 
 
 quefts
 
 ( 6i ) 
 
 qoefts coiild be carried on, and a proper Difcipline 
 maintained among them, without General and other 
 fubordinatc Officers. And therefore when any Earl- 
 doms or Baronies efcheated, the King had not only (as 
 is above mentioned) a Right to grant them to other 
 Perfons, but was in all Probability under the fame 
 Neceflity and Obligation to do it, as while he was as 
 yet confidered but only as a General or Commander in 
 Chief, he was under to fill up the vacant Commiflions 
 of Officers in his Army. But to return to our officiary 
 Earldoms ; the King did not antiently grant Nomen, 
 Jiylum iff titulum comitis, but ipfum comitatum ; by 
 which Words the teriius denarius unde comites erant 
 (as it is exprefled in fome old Charters), did pafs by 
 Operation of Law, without any exprefs Words for the 
 Grant of it. But here I think it may be obferved, 
 that there are but very few Patents (that is, not above 
 feventeen or eighteen) extant antecedent to the nth 
 of Ed-iv. III. all of which are of Feudal Earldoms; 
 for as yet the Creation of Barons by Vatent had not 
 been thought of, but the Livery of Lands, iffc. held 
 per Baroniam, and the receiving the Homage of the ^ 
 
 Tenant (which all together made a Ceremony fome- 
 thing like the Modern German Inveftitures), was all 
 that went to the makii;g a Baron. The fix firft of 
 thefe antient Patents, that is, from the Grant of the 
 Em profs Maud to Geofroy de Magnavilld. of the Earldom 
 of EJix, into the firft of King yoin, have the teriius 
 Denarius regularly inferted in them ; and in particular, 
 that of the Earldorn of EJfex has thefe remarkable 
 Words, which make us know, beyond all Poffibility 
 of Doubt, how the Law was underllood in thofe 
 
 '1 imes : " Ego Matildis, l^c. do & coi?cedo Apud Sel. 
 
 *' Gaufredo de Magnavilla ut fit comes de 
 
 " Efiexia, '<3 habeat tertium denarium 'uice-comitatus de 
 " placitis, Jlcut comes habere debet in comitatit JuOy &c.'* 
 YJingyohn firft introduced another Method of creating 
 Earls, though yet he preferved them officiary, the 
 only Difference that he made relating wholly to the 
 third Part of the Profits of the Counties, which he 
 thought too much to be granted away; and there- 
 fore fome little Lawyer of that Age invented the 
 Method of granting ten or twenty Pounds percipiend* 
 de tertio denario comitatus in lieu of it, thereby referv- 
 ing to himfelf all the .other Profits of the Countjj. 
 
 But
 
 ( 62 ) 
 
 But then it is remarkable, that in this Grant of King 
 John, which was in the firft Year of his Reign, to 
 Humphry de Bohun Earl of Hereford, there is, as it were, 
 a tacit Confeflion of its not being entirely legal and 
 regular ; for the King (jealous left the Law ftiould 
 adjudge his Grant of the Earldom to be good, and 
 the Refervation of the Profits to himfelf void, and 
 that the Earl might notwithftanding be entitled to, 
 and claim the third Part of the Profits of his County) 
 took collateral Security from the Earl, that he fhould 
 never, in the Right of his Earldom, claim any Thing 
 more than the twenty Pounds exprefsly granted to him 
 in the Patent, as appears from the following Words, 
 Rot. Ch. recited in the Preamble to it ; " Et ipfe nobis char- 
 1 Jo. p. 2. '♦ tarn fuam fecit, quod ipfe vel hzeredes fui nihil cla- 
 ^^ j--^ <* mabunt unquam de nobis vel hsredibus noftns." 
 All the reft of the Patents, during the before-men- 
 tioned Time, are alfo Feudal and Officiary, and the 
 Tertius Denarius ftill granted in fome ; but by the 
 others it may be obferved, that the Example fet by 
 Xing John was thought fit to be imitated by his 
 Succeflbrs : But yet, after all, that could not well be 
 confidered otherwife than as a Slight of Law ; for even 
 after that Time the Opinion of Earl and Earldoms be- 
 ing necefTarily relative to one another, continued for 
 fome Ages in the World ; and therefore the Grant of 
 this Money (which at this Day is called Creation Mo- 
 ney) was in the old Grants fo worded, as that it 
 mi<^ht, if poflible, be confidered in Law fub raticne 
 tertii Denarii ; for which Reafon it was made payable 
 out of that third Part of the Profits of the County, 
 which of Right ought have belonged to the Earl. 
 This it was that made the Comitalis Honor ; though 
 fometimes the Patentees would, after that the Earls 
 were ftripped of their Tertius Denarius, for the better 
 Support of their Dignity, get their Lands to be an- 
 nexed to, and made Parcel of it. Till the eleventh 
 oiEdav.lll. this Money was almoft conftantly made 
 payable out of the Profits of the County, of which 
 the Patentee was made Earl; as in the Patent to 
 Robert de Vfford, Earl of Suffolk, his Grant of twenty 
 Rot. Ch. Pounds is, " Percipiend' dc exitibus comitat' predift 
 n Ed.in. «' fub nomine Iff honore comitis Suffolcia ;" but fince 
 n.52. that Time the Method (which at laft has univerfally 
 
 prevailed) is to grant fome fmall Annuity for the 
 '^ belter
 
 ( 63 ) 
 
 better Support of the Dignity, payable at the Exche- 
 quer. It would be endlcfs to enumerate the various 
 Forms that have been ufedin the Creation of this Sort 
 of Earls ; but the Reader, who defires to be more fully 
 informed of it, may confult the learned Mr. SeUen'^ 
 elaborate Treatife of Titles of Honour. Befides, it mult 
 be obferved, that the Method ufed in the Creation ef 
 the other Earls, <£c. who were not fo exactly Feudal, 
 is much more to the Purpofe of what we are now 
 fpeaking. 
 
 It is a known Privilege of the Lords, that they are 
 not triable otherwife than by their Peers ; but there is 
 this remarkable Difference between their Trial ptr 
 Pares and thar of Commoners, that they cannot chal- 
 lenge any of the Perfons by whom they are to be tried ; 
 from whence it fcems manifellly to follow, that every 
 fingle Lord is much more concerned in Interefl; in the 
 Creation of a new Peer, than he poflibly could be in 
 the Queftion, whether an Honour could be furrender- 
 ed, or not ; and yet that Queftion was refolved by the vif. Pur- 
 Houfe in the Negative, upon Confideration, that becke's 
 every Lord, and even the whole Kingdom, was con- Cafe. - 
 cernedin the Extinguifhment by Surrender, Fine, Wf. 
 of every Lordfhip. The Admifllon of all new Te- 
 nants in any common ordinary Manor was always 
 tranfafted in the Prefence of the other Tenants of the 
 Manor, who antiently had a Negative upon every Man, 
 who was propofed by the Lord to be admitted ; which 
 is exaftly confonant even to the very Text of the 
 Feudal Law, *' Ad probandam novam inveftituram. Feud. 
 " femper pares curiae funt neceflarii ; & fi fine eis Lib. ii. 
 *' fafta fit inveftitura, etiamfi dominus confiteatur xit, 32. 
 ** faftam : Quia tamen fine hac folemnitate fafta eft, 
 ** non valet, etiamfi probari poffit per breve teftatum.'* 
 The Reafon of which was, that every Tenant of a 
 Manor was in all Feudal Controverfies, between him- 
 felf and any other Tenant of the fame Manor, to be 
 bound by the Judgment of the Tenants of the Manor; 
 and therefore was it reafonable, that he fhould be 
 confulted in the Admifllon of Perfons who were to be 
 his Judges. How far any Thing of this Nature may 
 be applied to the Houfe of Lords, which is (as before 
 is obferved) the Great Court Barcn of the Kingdom, 
 I muft leave to every Reader himfelf to judge, after 
 
 that 
 
 I
 
 ( 64 ) 
 
 that he has perufed what will further be added upcfn 
 this Subjeft. 
 
 It is very common for anticnt Statutes to be in the 
 8 Report. Form of Patents ; and in the Prince's Cafe, where this 
 Matter is at large explained, it is refolved, that all 
 Patents which pafs the Great Seal, and are fubfcribed 
 de authoritate Parliamenti, or per ipfum regem in Par- 
 liamento, have the full Strength and Authority of Afts 
 of Parliament : Now the Refolution of that Cafe be- 
 ing undoubtedly Law, I cannot but own myfelf to 
 have been very much furprifed, when, upon Infpeftion 
 of the various Creations of Pf^rithat paJTed between 
 the eleventh of Ediv. III. and the firft of Henry VII. 
 1 found them (1 think) almoft all (except fome that 
 were Grants of efcheated Feudal Honours, and even the 
 moft Part of them were fo alfo) to have been made and 
 pafled by the Authority of, and in full. Parliament. 
 I believe that upon this Occafion fome of my Readers 
 will be as much furprized as I was ; for which Rea- 
 fon therefore, and alfo that they may the better judge, 
 in what Manner this Prerogative of creating Peers 
 by Patent was originally exercifed, I fhall mention 
 fome of the mofl remarkable Circumllances that I ob- 
 ferved of feveral Patents that were pafled in each Reign. 
 Rot. Ch'. In the eleventh oi Ed-w. III. Henry o^ Lane after was 
 1 1 Ed. III. made Earl oi Derby ^ according to the exprefs Words 
 n. 34. of the Patent, de definito parliamenti confilio. And in 
 
 Rot. Ch. the fame Year William de Clynton was made Earl of 
 1 1 Ed. III. HuKti?!gdon, William de Bohun Earl of Northampton, Ro- 
 m. 23. bert de Ufford Earl of Suffolk, and Edvjard Duke of 
 n. 41, 49, Cornnjuall, all of them by Aflent of Parliament, de 
 52, 60. ajfenfu tff confilio pri later urn, comitum, baronum l£ 
 aliorum de concilia noftro in prafenti parliamento. 
 
 It is remarkable of Edward III. that in order to 
 Hrengthen his Intereft, and carry on his Defigns in 
 France, he married his Daughter Ifahtl to a French 
 Nobleman called the Baron de Coucy (and had adtu- 
 ally treated for the Marriage of another with the Sire 
 de Albret). Now (after his Marriage) the King even 
 applied to Parliament, to be enabled :o make him a Peer 
 oi England, which could not be, becaufe the Baron was 
 a Foreigner, fince he had a very large Eilate in Land 
 in England: But what makes this Cafe the more re- 
 markable is, that the particular Confent of each fingle 
 
 Lord
 
 ( ^5 ) 
 
 tiOrd was afked, as appears by the following Words 
 
 of the Parliament Roll, " Les prelacz, dues, Rot. Pari, 
 
 *' counts, barons, l^c. efteantz en lachambre blanche 4oEd. Ill, 
 *' luez devant eux mefmes les ordenances & afTents, m. 13. 
 ** le Chariceller monflra a les grantz & communes, 
 " coment le roy avoit mariez fa fille Izabelle a Seig- 
 •' neur de Courcy, qui avoit belles terras en Angle* 
 ** terre & aillours, & per caufe il elicit fi pres fon al- 
 
 *• liee il ferroit feant au roy de luy nomer & 
 
 ** faire counte, eftoit demande a eux lour avys & 
 ** afl'ent ; queux grauntz che/cun per foy, &c les Com- 
 ** muns de un' aflent, accorderent, &c." The Baron J^ot. Ch* 
 was afterwards made ^d.x\ 0^ BetJ/ord, but yet by the ■:5n & 40 
 Patent which paffed, it would be impoflible to dif- £. l\\, n, 
 cover whether the Parliament had been confuhed in 12. 
 it, or not. Upon which Account, and fome other 
 Inftances of the like Nature, it may not be unrea- 
 fonable to believe, that all the Patents of Earldoms, 
 ijc. were, during this Period of Time, pailed in Par- 
 liament, notwithllanding that there are fome few 
 Patents paffed, in which the Parliament is not men- 
 tioned, fince (if I am notmiftaken) there are not above 
 Ten of thofe, to above one hundred of the other Sort ; 
 and of thofe Ten, not one during the long Reign of 
 E(hv. III. 
 
 In the Rpign of Richard 11. above thirty Perfons 
 were made Dukes or Earls, " de ajfenfu pralatorum, 
 " ducum, comitum, baronum 55* co7nmunltatis regni in 
 *' parliamento •" and, what is very remarkable, his 
 Uncle, 'Thomas Earl oi TVode/Ioke, who in the firft Year 
 of his Reign had been created Earl of 5«c/{j without 
 Parliament in the 14th Year of his Reign, had a new 
 Patent paffed for the fame Earldom, which is faid in Rot. Ch, 
 the Patent to be for the Security of his faid Uncle ; 14 R. li« 
 ' Nos ^roy^r«r/Va/f ipfius avunculi noftri Thomaj, l£c. n. 5. 
 " ac de afl'enfu & confilio omnium praelatorum, mag- 
 
 ** natum & procerum, i^c. ac aliorum de confilio 
 
 " noftro necnon ad fpecialem requifitionem & 
 
 *' de affenfu totius communitatis ejufdem regni nolbi 
 ** in parliamento, i^c" 
 
 In the Reign of Henry IV. there were but two Rot. Cb, 
 Patents, of which one was to Thomas of Beaufort, his 13 & 14 
 Brother, creating him Earl of Dorfet, the other to H. IV. p. 
 his Son Thomas of Lancafer, of tht Earldom oi Jlh- 1. n. 2, 3, 
 & marl*
 
 ( 65 ) 
 
 mark and Dutchy of Clarence ; and therefore confider- 
 ing how near thofe two Princes were related to the 
 Crovyn, it is no ways furprizing, that the Confent of 
 Parliament is not particularly mentioned in the Pa- 
 tents. But here I would obferve to the Reader, that 
 when I mention any Patents wherein the Parliament is 
 not mentioned, all that I can do is, not to affirm them 
 to have been pafled in Parliament, fince 1 muil own 
 that I think it more than probable, that they were' 
 alfo pafled ; it often happening, that by the Parlia- 
 ment-Rolls it fhall appear, many Patents were pafled 
 in Parliament, in which however no Mention is made 
 of the Parliament; fo that if the Parliament-Roll 
 fhould happen to be lofl:, it would be for ever impof- 
 fible to ftaow, the Parliament was any ways concerned 
 in the pafling them. 
 
 The bravefl: of our Princes have always preferved 
 
 the befl: Underftanding with their Parliaments, and 
 
 therexbre the Patents of Peerage, which were pafled 
 
 Rot. Pat. l>y Henry V. (excepting only one Patent of Reflitution 
 
 2 H. V. 10 Henry Pier cy Earl oi Northumberla7id, and another of 
 p. 2.m. 2. ^^ Feudal County o^ Richmond to John of Lancajier, 
 Rot. Ch. " Cajiriy comitatus, honoris, fff dominii de Ricbemonde") 
 
 3 &4H. were all pafled in Parliament; as appears from the 
 V. n. 6. Entries upon the Rolls of Parliament, of which, not 
 
 to multiply Precedents, this is one Inftance ; ** Item 
 Rot. Pat. " fait aflavori que noftre treflbverain feigneur le 
 2 H. V. " roy, feiant en parlement, en fa fee royalle a la 
 p. I. n. 8. " requefte des feigneurs fpirituels & temporels, & 
 Rot. Pat. " de fcs communes en mefme le parlement afl'emblez, 
 2 H. V. " crealt & prefift Johan. de Lancaftre, fon frere, eii 
 p. I. m. '* Count de Kendale & Due de Bcdeford, and Humfry 
 36. fcff. " de Lancaftre, fon autre frere, en Count de Pem- 
 " broke & Due de Glouceftre, iSc." But I cannot 
 quit the Reign of Henry V. without obfervinp-, that 
 this Paflage out of the Rolls does in fome Meafure 
 juftify what I have before faid (by way of Diftinaion) 
 of Feudal ar.'i Hcnorary Earldoms ; for it appears, that 
 in the fame Year in which Henry \. by Parliament, 
 created his Brother Duke of Gloncejfrc, he without 
 Parliament granted him the Feudal County of Ricbe- 
 monde. 
 
 In the Reign of Henry VI. likewife above twenty 
 Patents for the Creation of Dukes, Earls, ^V. were 
 
 pafled
 
 ( (>! ) 
 
 paiTcd in Parliament ; and, as I before obferved, that 
 many Patents appear by the Parliament-Rolls, to have 
 been palled in Parliament, in which no Mention of, 
 the Parliament is made, fo here it muft be obferved, 
 tiiat upon the Patent-Rolls ic appears, that many Pa- 
 tents were pafTed in Parliament, of which no Mention 
 is made upon the extant Rolls of Parliament; both 
 which being confidered together, feem to make it ftill 
 more probable, that all Patents of this Nature were 
 paffed de Authoritate Parliamenti : I could mention ^ 
 great Number of them (was it neceflary), which ap- 
 pear not upon the Parliament-Rolls, which yet are 
 all fubfcribed, per bre've dc pri'vato Jigillo \£ de data 
 prrediSla authoritate parliamenti. 
 
 In Edvjard the Fourth's Reign alfo, to conclude this 
 Head, there are above a dozen Patents of this Nature, 
 which by their Subfcription appear to have been pafled 
 by Authority of Parliament ; but what is fomething 
 remarkable in this Reign is, that in one Patent, by Rot Ch. 
 which John, the King's Brother's Son, was created 7 Ed; IV. 
 Earl oi Lincoln, the Parliament not being concerned in n. 40. 
 the Creation, a Clau/e of non ohjlante, any Cuftom or 
 Ufage to the contrary (which Claufe I take to be the 
 firft of the Kind) is inferted into it. 
 
 From what has been now faid in relation to the 
 creating of Earldoms, l£c. I think I need not go about 
 to draw any Conclufions, but leave it to every Reader 
 to judge what the natural Confequence is. Now if 
 this was the Cafe in relation to Patents, by which an 
 Advancement only in the Peerage was granted, it may 
 well be expefted, that the fame Method was alfo ob- 
 ferved in the creating of Barons, by which the Voters' 
 in the Houfe of Lords were increafed, and every par- 
 ticular Lord had a new unchallengeable Judge impofed 
 upon hiin. Nor does the Pradice deceive our Expec- 
 tation ; for during all that Time, that is, from the 
 49th of Henry III. unto the firft of Henry VII. (what- 
 ever Exception there may be to the contrary as to 
 Earldoms), there is notone Inftance (unlefs the firft be 
 allowed to be fo) of a Barents being created by Patent 
 othcrwife than in Parliament: And indeed it feems 
 reafonable that it fhould be fo ; for a Barony (as before 
 is obferved) was originally founded altogether upoa 
 Realty, and all the Dignity and Privileges of the Lords 
 
 K 2 were
 
 ( 68 ) 
 
 were derived from their being Tenants per Barontam } 
 What iefs therefore, than a Patent pafied in Parliament, 
 can make a Man, who was not a Tenant #?r Baroniar,t, 
 be confidered in Law as if he was ? for fiich was tiic 
 EfFedt and Operation of their Patents : And the Lords, 
 even unto this Day, notwithftanding that all Baronial 
 Services, iffc. are by Statute taken away, muft in a 
 great many Particulars be confidered as fuch. But I 
 forbear entering further into any Confiderations of this 
 Nature, and proceed to give an Account of thofe Pa- 
 tents that have been psfled for the Creation oi Barons, 
 and the Reader will perhaps be again furprized, when 
 I tell him, that during all that Time there were but 
 fifteen Patents pa/Ted for that Purpofe. 
 Rot. Pat. The firft Perfon (as every Body knows) who was 
 ^I Ric. II. created a Baron by Patent, was John de Beauchampe in 
 p.I.m.I2. 11 Rich. II. but then it is remarkable, that he never 
 fat in Parliament as a Baron (though his Name is upon 
 the Lifts of Summons to Parliament in the Year of his 
 Creation); for in that very Parliament he was attainted, 
 as being one of the Accomplices of the Earl oi Suffolk 
 and Duke oi Jrelavd, i^c. befidc- which it is alio to 
 he obferved, that when his Patent paflbd, Michael de la 
 Pc/if had the Keeping of the Great Seal, and for that 
 Reafon his Patent could never have been allowed in 
 Parliament ; for in the Parliament held in the preced- 
 ing Year, the Great Seal had been taken av/ay from 
 ]\iichael de la Pole, and he was declared incapable of 
 ever having it again ; and therefore one of the Articles 
 againft this John de Beauchampe was, that he had coun- 
 felled the King, contrary to the Declaration of Par- 
 |tot. Pari. Uament, to give the Seals again to him, I'iz. *' Item 
 
 n Ric. JI. " la ou a Darrein Parlement Michel de la 
 
 *f Pole pur diverfes caufes dedioneftes feuft 
 
 ♦* difcharge del office de chanceller & le grant fele 
 *' le roy feuft pris de luy les dits (of which John de 
 " Beauchampe is one) luy fift reavoir le gran t fele ■• 
 
 i' Quel feuft fubvcrficn de toute la ley du royaulme, 
 *• ij^c." This Patent therefore was no other than 4 
 vain Attempt for the Creation of a Baron, which ne- 
 ver took place ; nor was he ever more fummoncd tp 
 Parliament, but in fome few Years afterwards exe» 
 cuted. Another Reafon alfo of the Animofuy the Ba- 
 fons ftiowed againft this John de Beauchampe, was, hi? 
 
 bein§
 
 ( ^9 ) 
 
 being a Confederate with Sir Nicholas Srembre, Mayor 
 
 of London, in whofe Favour that weak Prince Richard 
 
 the Second had intended to change the Name of the 
 
 City, and to create him Duke of New-Troy. " Hie fi 
 
 ** vixiffet (fays Henry de Knighton), Dux Troja per re- Knighton 
 
 *' gem faftus fuiflet. Nam ab antiquo civitas Lon- inter de- 
 
 *' donienfis, Troia Minor vocata eft. Et fic dux de cem Scr. 
 
 ** Londoniis effet mutato nomine Londoniarum in p. 2727. 
 
 *' nomen Troja:. 
 
 2. The Second Baron who was created by Patent, 
 was Sir John Cornnvall, in whofe Patent (fpr the firft 
 
 Time at leaft that I have feen), the Phrafe of the Three Rot. Pat, 
 States of Parliament is ufed. " In trium ftatuum ii H. 6. 
 •* cjufdem parliamenti prjefentia de gratia fua fpeci- p-i.m, i6« 
 .** ali & ex certa fcientia fua ac de advifamento Sc 
 " confenfu ducis Glouceller' & Cardinalis Winton'ac 
 ," cxterorum dominorum fpiritualium & tempora- 
 " lium in parliamento." 
 
 3. The third was Sir Ralph Botillery who was ere- Rot. Pat. 
 ated Baron of Sudley, " De advifamento concilii nof- 20 H. 6. 
 " tri, ^c." and the Patent was paffed, '* Per breve de m. 2^, 
 
 *' privato figillo & de data prsdidl. authoritate parlia- 
 .** menti," 
 
 4. In the Parliament Roll of the 20th of Henry the Rot. Pari, 
 Sixth, there is aMemorandam of the King's having alfo 20 H. 6<,. 
 created the above-mentioned Sir John Corn^vall Baron ^- 10. 
 
 of Milbroke, " De advifamento & confenfu domino- 
 *' rum, i^c. creavimus, i^c. in Baronem indigenatn reg- 
 ** ni fui Angliae per nomen, ^c. Baronis de Milbroke." 
 
 5. The fifth was in favour of John Talhot, Son of the Rot. Cart, 
 Earl of Salop by Margaret his Second Wife, eldcft 21 & 22. 
 Daughter and Coheirefs of Richard Earl of /F<3;au/V>f, H.6. n.2i# 
 by Elizabeth his Wife, the Daughter and Heir of M^rr- 
 
 garct (the Wife of Thomas Lord Berkeley )y who was the 
 Daughter and Heir of Warin Lord Lijle. The Patent 
 is per brefve de privato Jigillo ^ de authoritate Parlia - 
 mentiy and is to this Purpofe. ** Nos nedum prasmif- 
 ** fa— verumetiam qualiter prasfatus Warinus & om- 
 '• nes anteceffores fui ratione dominii & manerii 
 I" pra:dift. (IT. Kingefton Lifle in Com. Berkes) no- 
 •' men & dignitatem baronis & domini de Lifle a tem- 
 ?* pore quo memoria hominum non exiftit, optinue- 
 ** runt & habuerunt, ipfe & omncs fucceflbres fui ab 
 *' eodem tempore per hujufmodi nomen loca & feffi- 
 7 ** ones
 
 ( ?=> ) 
 
 f ones & alias prseeminentias in parllamentis, & com- 
 '* ciliis regiis ut cacteri barones regni Angliu; a toto 
 '• tempore prardido habuerunt & optinuerunt.— — — 
 ** Ne propter temporis prolixitatcm aut fucccffionis 
 " variationem aliove modo de hujufmodi ftylo, no- 
 
 « " mine, & dignitate dubitari pofi'et." ^And 
 
 then reciting that the faid Barony or Manor o'l Khige- 
 Jion Lijle, was by the Confent of his Mother in the pof- 
 Icflion of the faid John Talbot, it follows, " Ad remo-r 
 " vendum omnem dubitationis fcrupulum ipfum, ^r. 
 " creamus, d^fc." It is to be obfervc-d that this Baroiiy 
 was altogether Feudal, and therefore (confidering 
 what has been before faid) the Reafon why the Au- 
 thority of Parliament was wanting in this Cafe may 
 ppfiibly be, that his Mother being then alive, the Ba- 
 rony was aftually in her, and could not be transferred 
 to the Son otherwife than by Parliament. 
 Rot. Pat. 6. The fixth was Sir John Beaucha?npe, who by Pa- 
 
 25 H. 6. tent was created Baron Beauchampe of Bonjuycbe. 
 
 p. 2. m.33. 7. The feventh was Sir John Siourton, who was cre- 
 H or. Pat. a ted Baron St our ton. 
 
 26 li. 6. 8. The eighth was Sir Thomas Hoo, by the Name of 
 p. 2. m. 6. Baron Hoo de Hajiyng., 
 
 ibid. m. 9. The ninth was Sir Richard Wyd'vilU, by the Name 
 
 23. of Baron and Lord Ry<vers. 
 
 ibid. m. 4. 10. The tenth was Sir Thomas Grey, by the Name of 
 
 Rot. Cart. Baron of Richmonde Grey. 
 
 28 H. 6. II. The eleventh was Sir Thomas Percy, by the Style 
 
 n. 35. of Baron of Egremont. 
 
 Rot. Pat. 12. The twelfth was Sir Richard Fenys, who in the 
 
 28 H. 6. Right of his Wife Johanna, Daughter and Heir of 
 
 p. I. m.io. Thomas, the eldeft Son and Heir of the Lord Dacre is 
 
 Rot. Pat. declared, ^c. Lord Dacre. 
 
 37 H. 6. 13. The thirteenth was ^\x Humphry Stafford, by the 
 
 p. I . m.20. Name of Baron Southnvyke. 
 
 Rot. Pat. 14. The fourteenth was Sir Walter Blount, by the 
 
 4 Ed. 4. i^SLVnt of Lord Mount] oy. 
 
 p. I. m.17. ic. The fifteenth was Sir Ed-ivard Grey, who in the 
 Rot. Pat. Right of his Wife, the Sifter and Heir of the before- 
 
 5 Ed. 4. mentioned yc/;-;/ Lord Talbot, was declared Lord LiJJe. 
 p. I. m. 6. I believe thefe are all the Patents for Baronies that 
 15 Ed. 4. were pafled before the firft of Henry the Seventh, and 
 
 they are all pafled per bre've de prinjato figillo l£ dc au- 
 thoritate farliamenti, and confequently had all of theni 
 
 the
 
 ( 71 ) 
 
 the force of Acls of Parliament. It is lilcewife furthef 
 to be obferved, that in every one of thefe Patents 
 (except two or three), there are Words which either 
 exprefly, or by the lirongelt Implication imply a 
 Ri<Tht to demand a Writ of Summons to all future 
 Parliaments. Since the Middle of the Reign oi Henry 
 the Eighth, a particular Claufe has been conftantly in- 
 ferted for this Purpofe, " Didtus A. B & haeredes, i^c. 
 *' & eorum quilibet habeat teneat & pofTideat fedem, 
 *' locum & vocem in parliamentis publicis comitiis 
 ** & confiliis nollris, i^c. inter alios barones, ut ba- 
 *' rones parliamentorum, &c." The conftant Ufe of thi» 
 or the like Claufe, which is aim oft as old as the Crea- 
 tion oi Barons by Patent itfelf, does in fome Meafure 
 juftify what I before obferved in relation to Barons by 
 Tenure, 'viz. that though every Lord of Parliament was 
 a Baron, yet every Baron was not a Lord of Parliament; 
 but what further evinces that for fome Time, even after 
 Henry the Seventh, the Notion prevailed, or rather ftill 
 continued, that a Seat in Parliament was perfeaiy 
 diftina from Barony, is, that if a Man was by Patent 
 created z Baron without a Claufe in it, granting him a 
 Seat and Voice in Parliament, he had not a Right to 
 demand a Writ of Summons. At leaft two fuch Ba- 
 rons have been by Patent created, one by Henry the 
 Eighth, by Name Robert Cur/on, who had before been 
 created a Baron of the Empire by the Emperor Maxi- 
 milian, the other by King James the Firft, whofe 
 Name was Thomas Arundel, and who likewiie had been 
 created a Baron of the Empire. Thefe two Gentle- 
 men feem to have been pretty much in the Cafe of the 
 above-rtientioncd Barones Minores ; they were Barons to 
 all Intents and Purpofes, and wanted nothing but a 
 Writ to make them Lords of Parliament. 
 
 I believe it no ways neceflary to make any particu- 
 lar Remarks upon the Patents of Honor that were 
 pafied during the Reigns of Henry the Seventh and 
 Eighth, Ednuard the Sixth, Queen Mary, Queen 
 Elizabeth : Since every one knows that from the Reign 
 oi Henry the Seventh, the Crown has got Ground in 
 this Refpeft, and gone on ftill more and more to ex- 
 ercife the Prerogative of creating Peers. It is noto- 
 rious that in Parliament, each Branch of the egifla- 
 ture are poffelTed of what may be called Peculiars. 
 ^ That
 
 ( 1^ ) 
 
 That Is, that Laws of a particular Nature do not re- 
 gularly, nor according to the eftablifhedCourfe of Par- 
 liamentary Proceedings, take their Rife or Commence- 
 ment but in one Houfe or the other, according to 
 the Tendency of the Bill propofed. Thus (for In- 
 ftance) a Money Bill, a Bill for regulating Eledions, 
 l£c. always begins in the Houfe of Commons, and, on 
 the other Hand, Bills relating particularly to the 
 Peers, as for Inftance, the now depending Bill of 
 Peerage, 8cc. as are conftantly begun in the Houfe of 
 Lords. And Adls of Grace, general Pardon, iffc. do 
 with the fame Regularity always receive their firft 
 Beginning from the Crown. Which Method of Pro- 
 ceeding does in no wife abridge or limit the Power 
 of refufmg the Bill propofed, which is, and always 
 inuft be in the other Branches of the Legiflature. I 
 have taken Notice of thefe Particulars, becaufe from 
 what has been before faid, upon the Subjedl of Pa- 
 tents for Baronies, conftantly pafiing in Parliament, it 
 feems not an unlikely Suppofition, that during the 
 Time thofe Parliamentary Patents were the conllant 
 Ufagc, that they were of the Nature of Afts of Grace ; 
 that is, that though they could be propofed but only by 
 the King as the Fountain of Honor, yet the Lords 
 had perhaps a Negative upon all Patents of that Na- 
 ture, juft as they now have upon all Adls of Grace. 
 The Reader muft judge how far the prefent Cuftom 
 of all Patents being firft read in the Houfe of Lords, 
 before the Patentees are admitted to aft as Barons, 
 does feem to favour the Notion. But if the Lords 
 ever had fuch a Right, I own myfelf ignorant of any 
 Law by which they could have loft it. It is true, 
 however, that they have not for more than this hun- 
 dred Years cxercifed it, and (with whatever Intention 
 feveral Peers may poffibly have been created), by their 
 admitting of all new created Peers into their Houfe, 
 they have confented as a Body to their Peerage, and 
 aftually given them a parliamentary Right and Title 
 to their Honours. 
 
 The greateft Change that ever happened in the 
 Conftitution of England, was in the Reign of Henry 
 the Seventh. Nor is there any ftronger Jnftance of 
 the Truth of that Maxim, i[\zx Ponver is really fcunJcd 
 upon end iii/efarably /ollov:s Property. For before the 
 
 Reiga
 
 ( 73 ) 
 
 Re'i'rn of that Prince, the Balance of Power agalnil the 
 Crown was in the Lords, and it cannot be well dif- 
 puted, but that the Crown had antiently, as """"[•it-, 
 ed a Power to ereft Burroughs, as to create Peers. And 
 therefore it is that until his Time, the Lords did not 
 fuffer the Prerogative of creating Barons to be exerciJed 
 otherwife than in Parliament, though at the »ame 
 Time they were not very unwilling the Crown fhould 
 create Burroughs, which the Commons had not always 
 Strength enough to hinder, and which by being tre- 
 quentlv fituated upon the Lands of the Lords, were 
 no inconfiderable Increafe of their Power. But fince 
 that Reign the Lords having been fet at full Liberty 
 to alienate their Eftates, Power has with the PofTeffion 
 of Land fhifted itfelf to the Commons, and accord- 
 incly they have been ever fince the only formidable 
 Curb upon the Crown. Until the End of Queen 
 Elixabethh Reign, though the Prerogative of creating 
 Peers ftill grew, yet, as it was not exercifed in a Man- 
 ner any Thing grofs, it was not complained ot ; but 
 James I. finilhed the Power of the Commons by part- 
 ing with his Fee-Farm Rents, Court of Waras, t5f. 
 Lords he created innumerable, and fome Burroughs ; 
 but the Crown foon found it convenient to quit that 
 Praaice; and now the Commons (juft as the Lords 
 did with relation to Peerages, while the Barons were 
 Feudal) begin openly todilpute the Power of creating 
 Burroughs ; and I believe every Reader will agree, that 
 if a Burrough was now to be erefted, its Members 
 would find it pretty hard to gain Admiffion into the 
 Houfe of Commons. „ , i.r j 
 
 But to conclude this Enquiry, it muft be obfervcd, 
 that in every Reign fince that of James I. there have 
 unhappily been perpetual Difputes between the Crown 
 and the People, concerning the Bounds of Liberty and 
 Prerogative ; and therefore, to an impartial Confiderer 
 of the Conftitution, it will feem reafonable in a Que- 
 ftion, relating to the Conjiitution as fuch, to examine 
 how it was underftood before his Accefiion ; a View 
 of which, fo far as it relates to the Peerage, I have 
 endeavoured, as fully as 1 was able, to prelent to the 
 Reader : And as for what has happened fince the Ac- 
 ct^ion oi James I. in relation to the numerous Crea- 
 tion oi Peers, I fhall only add, that it has been com- 
 
 L plained
 
 ( 74 ) 
 
 pfalncd of in every Reign. It was an Article agalnft 
 the Great Duke oi Buckingham, the powerful Favourite 
 of two Kings ; and by fevcral Protefts in the Journals 
 of the Houfe of Lords, during the Reign of Char/es II. 
 It is manifeft that the Increafe of the Peerage was by 
 them then thought a Grievance ; and every Man re- 
 members, that the laft Inftance of the Abufe of this 
 Prerogative was, by the now fitting Houfe of Com- 
 mons, made an Article of Impeachment againft th^ 
 prefent Earl of Oxford. 
 
 FINIS,
 
 UNIVERSITY OF CAUIFORNIA AT UOS ANGELES 
 
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