4. THE name of vice-comes or viscount (2) was afterwards made ufe of as an arbitrary title of honour, without any fhadow of office pertaining to it, by Henry the fixth; when, in the eighteenth year of his reign, he created John Beaumont a peer, by the name of viscount Beaumont, which was the first inftance of the kind. 5. A baron's is the most general and univerfal title of nobility; for originally every one of the peers of fuperior rank had also a barony annexed to his other titles (3). But it hath k 2 Inft. 5, 6. i 2 Inft. 5. k (2) Thefe Latin and French words are the fame as sheriff in English. This proves the high refpect that was fhewn to this officer in ancient times, for his name alone was thought an honourable title of nobility. See note 8. p. 346. (3) At the time of the conqueft, the temporal nobility confifted only of earls and barons; and by whatever right the earls and the mitred clergy before that time might have attended the great council of the nation, it abundantly appears that they afterwards fat in the feudal parliament in the character of barons. It has been truly faid, that for fome time after the conqueft, wealth was the only nobility, as there was little perfonal property at that time, and a right to a feat in parliament was entirely territorial, or depended upon the tenure of landed property. Ever fince the conqueft, it has been true, that all land is held either immediately or mediately of the king; that is, either of the king himself, or of a tenant of the king, or it might be after two or more fubinfeudations. And it was also a general principle in the feudal fyftem, that every tenant of land, or land-owner, had both a right and obligation to attend the court of his immediate fuperior. Hence every tenant in capite, i.e. the tenant of the king, was at the fame time entitled and bound to attend the king's court or parliament, being the great court baron of the nation. It will not be neceffary for me here to enlarge farther upon the original principles of the feudal fyftem, and upon the origin of peerage; but I shall briefly abridge the account which Selden has given in the fecond part of his Titles of Honour, c. 5. beginning at the 17th fection, being perhaps the cleareft and moft fatisfactory that can be found. He divides the time from the conqueft into three periods : Book I. fometimes happened that, when an antient baron hath been raised to a new degree of peerage, in the course of a few generations the two titles have defcended differently; one perhaps to the male defcendants, the other to the heirs general; whereby the earldom or other fuperior title hath subsisted without a barony: and there are also modern instances, where earls and viscounts have been created without annex periods: 1. From the conqueft to the latter end of the reign of king John. 2. From that time to the 11th of Richard II. 3. From that period to the time he is writing, which may now be extended to the present time. In the firft period, all, who held any quantity of land of the king, had, without distinction, a right to be fummoned to parliament; and this right being confined solely to the king's tenants, of confequence all the peers of parliament during that period fat by virtue of tenure and a writ of fummons. In the beginning of the fecond period, that is, in the last year of the reign of king John, a distinction, very important in it's confequences, (for it eventually produced the lower house of parliament,) was introduced, viz. a divifion of these tenants into greater and leffer barons: for king John in his magna charta declares, faciemus fummoneri archiepifcopos, epifcopos, abbates, comites, et majores barones regni figillatim per literas noftras, et præterea faciemus fummoneri in generali per vicecomites et ballives noftros omnes alios, qui in capite tenent de nobis ad certum diem, &c. See Bl. Mag. Chr. Joh. p. 14. It does not appear that it ever was ascertained what conftituted a greater baron, and it probably was left to the king's difcretion to determine; and no great inconvenience could have refulted from it's remaining indefinite, for those who had not the honour of the king's letter, would have what in effect was equivalent, a general fummons from the fheriff. But in this fecond period tenure began to be difregarded, and perfons were fummoned to the parliament by writ, who held no lands of the king. This continued to be the cafe till the 11th of Rich. II. when the practice of creating peers by letters patent firft commenced. In that year John de Beauchamp, fteward of the household to Rich. II. was created by patent lord Beauchamp baron of Kidderminster in tail male; and fince that time peerages have been created both by writ and patent, without any regard to tenure or eftate. ing a barony to their other honours: fo that now the rule doth not hold univerfally, that all peers are barons. The original and antiquity of baronies have occafioned great inquiries among our English antiquaries. The most probable opinion. seems to be, that they were the fame with our present lords of manors; to which the name of court baron (which is the lord's court, and incident to every manor) gives fome countenance (4). It may be collected from king John's magna carta', that originally all lords of manors, or barons, that held of the king in capite, had feats in the great council or parliament: till about the reign of that prince the conflux of them became fo large and troublesome, that the king was obliged to divide them, and fummon only the greater barons in perfon; leaving the fmall ones to be fummoned by the fheriff, and (as it is faid) to fit by reprefentation in another house; which gave rife to the feparation of the two houses of parliament ". By degrees the title came to be confined to the greater barons, or lords of parliament only; and there were no other barons among the peerage but fuch as were fummoned by writ, in refpect of the tenure of their lands or baronies, till Richard the fecond firft made it a mere title of honour, by conferring it on divers perfons by his letters patent". HAVING made this fhort inquiry into the original of our feveral degrees of nobility, I fhall next confider the manner in which they may be created. The right of peerage seems to have been originally territorial; that is, annexed to lands, honours, caftles, manors, and the like, the proprietors and pof 1 сар. 14. m Gilb. Hift. of exch. c. 3. Seld. tit. of hon. 2. 5. 28. §66. (4) Lords of manors, who had granted to others by fubinfeudation part of that eftate which they held of the king, would neceffarily be barons; but it does not follow conversely that a baron was of neceffity a lord of a manor: for the king's tenant, who retained all the eftate granted him, and alienated no part of it, would certainly be as complete a baron as a lord of a manor. feffors feffors of which were (in right of those estates) allowed to be peers of the realm, and were fummoned to parliament to do fuit and service to their fovereign: and, when the land was alienated, the dignity paffed with it as appendant. Thus the bishops ftill fit in the house of lords in right of fucceffion to certain antient baronies annexed, or fuppofed to be annexed, to their epifcopal lands: and thus, in 11 Hen. VI, the pof feffion of the caftle of Arundel was adjudged to confer an earldom on it's poffeffor P. But afterwards, when alienations. grew to be frequent, the dignity of peerage was confined to the lineage of the party ennobled, and instead of territorial became perfonal. Actual proof of a tenure by barony be came no longer neceflary to conftitute a lord of parliament; but the record of the writ of fummons to him or his ances tors was admitted as a fufficient evidence of the tenure. PEERS are now created either by writ, or by patent: for those who claim by prescription must suppose either a writ or patent made to their ancestors; though by length of time it is loft. The creation by writ, or the king's letter, is a fummon's to attend the house of peers, by the ftile and title of that ba rony, which the king is pleafed to confer that by patent is a royal grant to a fubject of any dignity and degree of peet age. The creation by writ is the more antient way; but man is not ennobled thereby, unlefs he actually take his feat in the house of lords: and fome are of opinion that there must be at least two writs of fummons, and a fitting in two dif tinct parliaments, to evidence an hereditary barony: and therefore the moft ufual, becaufe the fureft, way is to grant the dignity by patent, which enures to a man and his heirs according to the limitations thereof, though he never himfelf makes ufe of it. Yet it is frequent to call up the eldest fon of a peer to the houfe of lords by writ of fummons, in the name of his father's barony: because in that cafe there is no danger of his children's lofing the nobility in cafe he ut ver takes his feat; for they will fucceed to their grand9 Whitelocke of parl. ch. 114. Clan. 1. 7. c. I. P Seld. tit. of hon. b. 2. c. 9. § 5. Co. Litt 16. father. father (5). Creation by writ has alfo one advantage over that by patent for a perfon created by writ holds the dignity to him and his heirs, without any words to that purport in the [401] writ (6); but in letters patent there must be words to direct the inheritance, elfe the dignity enures only to the grantee for life. For a man or woman may be created noble for their own lives, and the dignity not defcend to their heirs at all, or defcend only to fome particular heirs: as where a peerage is limited to a man, and the heirs male of his body by Elizabeth his prefent lady, and not to fuch heirs by any former or future wife. LET us next take a view of a few of the principal incidents attending the nobility, exclufive of their capacity as members of parliament, and as hereditary counfellors of the crown; both of which we have before confidered. And first we must obferve, that in criminal cafes a nobleman fhall be tried by his peers (7). The great are always obnoxious to popular envy : were they to be judged by the people, they might be in dan s Co. Litt. 9. 16. (5) And where the father's barony is limited by patent to him and the heirs male of his body, and his eldeft fon is called up to the house of lords by writ with the title of this barony, the writ in this cafe will not create a fee or a general eftate tail, fo as to make a female capable of inheriting the title, but upon the death of the father the two titles unite, or become one and the fame. Case of the claim to the barony of Sidney of Penfhurft difallowed. Dom. Proc. 17 June 1782. (6) Though this is the authority of lord Coke, it is now underfood to be erroneous; a creation by writ does not confer a feefimple in the title, but only an eflate tail general; for every claimant of the title must be defcended from the perfon firit ennobled. Woodd. 37. (7) A nobleman is tried by his peers only in treafon and felony, and mifprifion of the fame; but in all mifdemeanors, as libels, riots, perjury, confpiracies, &c. he is tried like a commoner by a jury. 3 Inft. 30. 2 Hawk, 424. VOL. I. 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