The descent of these two kinds of baronies are directed by the rules of the descent of other inheritances at common law, and consequently females are capable of succession, but with two exceptions; first, that half blood is no impediment, and consequently the half brother excludes the sister; secondly, that the honour is not divisible, and therefore, if there be two or more sisters, heiresses, the title is in abeyance, that is, is suspended, until the king makes choice of one of them and her heirs; though by constant usage the law seems to be verging fast to a constant descent to the eldest[258].
The third method of creating peers is by letters patent, which is the most usual, and esteemed the most advantageous way; because a peerage is thereby created, though the new nobleman hath never taken his seat, which is not the case of a barony by writ. As to the manner of these creations, there has a notable difference intervened since the accession of Henry the Seventh from what was the practice before Richard the Second. In his eleventh year began this method of creating by patent, in favour of John de Beauchamp, who, though summoned, never sat there, but was attainted by the next parliament, and afterwards executed. But, the attainder out of the case, his patent in law could never have been deemed valid, because Michael de la Pole was the lord chancellor who affixed the seal to it, which had been before taken from him by act of parliament, and he declared incapable of ever having it again. This, then, was a single and ineffectual attempt of that weak prince to create a new peer without the assent of parliament, which was the usual way, above thirty having been made so in that very reign. His successors were too wise to follow this example; for every barony newly created, till the union of the roses, which were about fourteen, were, every one of them, as appears on the face of the patents, by authority of parliament, if we except two or three; and even these, on a close examination, will appear not to be new baronies, but regrants of old feudal baronies by tenure, which, undoubtedly, were all in the sole disposition of the king[259].
But Henry the Seventh, having trodden down all opposition, was fortunate enough to carry the point Richard had vainly attempted, and acquired for his successors that prerogative which they have since enjoyed, of creating peers at pleasure. The descent of these titles, created by patent, is directed by the words of the creation. If heirs are not mentioned, it is only an estate for life; if to a man and heirs of his body, females are not excluded, but the general way is, to the heirs male of the body of the grantée, perhaps, with remainders over, and they descend as other estates entailed. The case of the dutchy of Somerset was singular. Edward Seymour having sons by two venters, was created duke of Somerset, and his heirs male of his second marriage, remainder to his heirs male by his first. This title continued near two hundred years in the younger branch, until, upon its failure in the late duke of Somerset, Sir Edward Seymour, the present duke, the heir by the prior marriage, succeeded by virtue of the remainder.
In the case of lord Purbeck, in Charles the Second’s reign, it was controverted whether a title could be extinguished, for as lord Purbeck had surrendered his honour by fine to the king, and there it was determined, and so the law now stands, contrary to many precedents that were produced, that the title is inherent in the blood, and while that remains uncorrupted, can by no means be extinguished by surrender or otherwise, and this, generally, whether the peerage be created by patent or by writ; for Purbeck’s was by writ. In case of a patent where the dignity is expressly entailed, it is surely as reasonable that it should be impossible for the possessor to destroy the entail, as in an estate tail of land, created by the king, and yet in old times there had been many instances to the contrary. I shall mention but two that happened in this kingdom.
Sir Thomas Butler was created baron Cahir by Henry the Eighth to his heirs general. His heirs male failed in his son Edmond, the second baron, and his nephew, Sir Theobald, was, in 1683, by queen Elizabeth created baron Cahir; but it being found that Sir Thomas left daughters, to one of whom the title ought to have been assigned by the queen, one of them, and the heir of the other, who was dead in 1685, bargained, sold, and released to Sir Theobald and his assigns, their right and title to the said honour. The other was the case of the honour of Kingsale. Charles the First, apprehending the barony of Kingsale to be extinguished by attainder, created Sir Dominick Sarsfield viscount Kingsale, but, upon lord Kingsale’s petition, and proof made by him that his barony still subsisted, it was ordered that Sarsfield should surrender his viscounty of Kingsale, and be treated viscount of Kilmallock, with his former precedence, which was accordingly done.
These two instances were, indeed, of a particular nature, and calculated to rectify grants that had arisen from error; but in England there were, in ancient times, many instances of such surrenders without error. They were, indeed, generally made in order to obtain higher titles; and therefore it is no wonder they passed sub silentio, and were never disputed. But as to the old baronies by tenure that were annexed to land, nothing is clearer than that, by the king’s consent, they might be aliened or surrendered, notable instances of which happened in the reign of Henry the Third. Andrew Giffard, baron of Pomfret, surrendered to the king; and Simon de Montfort, a nobleman of large possessions in France, had two sons by the heiress of the earldom of Leicester, in whose right he was earl of Leicester, and, having a mind to settle his second son in England, assigned the earldom over to him, as Selden says; or, which comes to the same thing (for the eldest son was equally defeated) surrendered it to the king, who granted it to the second, according to Camden.
All noblemen are equally so, and, therefore, each others peers; but they differ in rank and precedence. The ranks are five; dukes, marquisses, earls, viscounts, barons. The first duke was created by Edward the Third; the first marquiss, by Richard II.; the first viscount, by Henry the Sixth. Though their dignities are now personal, and annexed to the blood, yet as they were originally annexed to land, so much of the old form remains, that, in their creation, they must be named from some place in some county; though I do not apprehend it to be material at this day, whether there really be such a place or not. With respect to the raising a lord from a lower degree of dignity to a higher, I should observe, that long before Henry the Seventh’s time, the king had the right solely in himself, though it was frequently done in parliament; for this was not adding to the number of the peers, but an exertion of the ancient prerogative of his settling precedence according to his pleasure. This continued in England till Henry the Eighth, by act of parliament, settled it according to antiency, and it still continues in Ireland, though it has not been exerted since Henry the Seventh’s time, when lord Kingsale, a Yorkist, was obliged to change places with lord Athenry, a Lancastrian, and from first became the second baron, which hath continued his rank, till lately, that Athenry was created an earl[260].