contended for by the Duke of Rutland, yet it expressed no resolution whether the Tenure of the Castle of Belvoir did or did not confer a Barony on its possessor), must, however, be considered in a great degree confirmatory of the resolution of the Privy Council in 1669, and hence it may perhaps be deemed highly improbable that any claim of a dignity by the tenure of lands will ever be admitted in this country.

In the Reports of the Lords' Committees on the Dignity of a Peer of the Realm, almost every statement on the subject admits of a conclusion against the existence of dignities by the tenure of lands, a few of which will here be cited.

After noticing the decision on the Abergavenny and Roos cases, and particularly the resolution on the Barony of Fitz-Walter, the Committees observe:

"These acts of the Crown and decisions of the House, and particularly the order of the King in Council of the 19 Jan. 1669, made with the assistance of the Lord Keeper (the Lord Ashley), the two Chief Justices (Keeling and Vaughan), and the Chief Baron Hale (who was eminently learned in the ancient records of this country), after discussing the nature of a Barony by Tenure, and declaring that it was not fit to admit any pretence of right to succession thereupon, may perhaps be considered as amounting to a solemn opinion that, although in early times the right to a Writ of Summons to Parliament as a Baron may have been founded on Tenure, a contrary practice had prevailed for ages; and that therefore it was not to be taken as then forming part of the constitutional law of the land. Indeed when the changes which apparently had taken place generally in the constitution of the legislative bodies after the charter of John, and before the 23 Edw. I. (when the Summons to Robert Fitz-Walter, under whom Mildmay claimed, appeared on record, and especially the division of the legislative body under the Crown into two distinct bodies, having separate characters, rights, and privileges, of which the Committee have found no trace before or in the charter of John), are considered; and when it is also considered that many persons might in and after the 23 of Edw. I. have claimed a right to be summoned to Parliament as Barons, if that right had depended solely upon the Tenure of Lands (a fact which the Committee apprehend

will distinctly appear in a further report which they purpose to make to this House), and that the Crown, notwithstanding, unquestionably exercised the power of calling to such assemblies as Peers of the land, persons who had no claim to that dignity by Tenure, whilst no person during the period from the 23 Edw. I. till the reign of Henry VI. appears to have distinctly claimed as a matter of right, a Writ of Summons to Parliament, deriving that right from Tenure independent of the power of the Crown; it seems that the advisers of the order of Council of the 19 Jan. 1669, had at least strong grounds for the declaration on the subject contained in that order, and for giving the sanction of their opinions to the propriety of considering the Writ of Summons to Robert Fitz-Walter in the 23d and subsequent years of Edward 1. and the Writs issued to five persons successively as his heirs in the male line, as having given a presumptive right to the dignity of a Peer of the realm capable of being transmitted by descent to Elizabeth, the only daughter of Walter, the last male in the direct line of descent from Robert, without regard to Tenure, and that the Writ of Summons to John Ratcliffe, the son and heir of Elizabeth, was founded on that presumptive right and not on Tenure; and that Mildmay being at the time of the decision the heir of Elizabeth Fitz-Walter, was entitled by the same prescriptive right to the same dignity. And although the decision in favour of Mildmay was not the judgment of the House but of the King in Council, and the King might by his prerogative have issued the Writ under which Mildmay took his seat, yet it remained for the House to judge whether that Writ did or did not give the precedence which it was intended to give; and the House having admitted Mildmay to take his seat with a precedence which the Writ under which he sat could not have given, if he had not been entitled to claim the Writ under the right vested in his ancestor in the reign of Edward the First, the House, in fact, accepted the decision of the King in Council as a proper decision, and considered the dignity vested in Mildmay as a mere personal dignity derived to him from the Writ of Summons issued in the reign of Edward the First to the person whose heir he was. It may be added, that the Lord Keeper, the Chief Justices, and the Chief Baron Sir Matthew Hale, when they advised the King in Council to declare, that on discussion of the

nature of a Barony by Tenure, it was found to have been discontinued for many ages and not in being, and so not fit to be revived, or to admit of any pretence of right to succession thereon, must have considered, that neither the case of Arundel or that of Abergavenny, as those cases then stood, could affect the question *."

In another part of the same Report the subject is thus ably noticed:

"It has been contended that tenure of land, per Baroniam,' gives the right of demanding a Writ of Summons to Parliament as a Baron of the realm, and renders the tenant of the land so holden a Baron and Peer of the realm; but it has not been distinctly stated whether that right is supposed to be attached only to the Tenure of an entire Barony, or that it may belong to the Tenure of part of a Barony; though it has rather been suggested, that it may belong to the Tenure of part of a Barony, provided the tenant of that part has what has been called the caput Baronie. If the right should be confined to the Tenure of an entire Barony, it would appear, from the Testa de Nevill, and other documents, that the number of Baronies in the time of Henry the Third and Edward the First was considerable; and the Committee propose, in another report, to give a list of such as bave occurred to them in their searches on the subject. If the right should be extended to the Tenure of part of a Barony, provided the tenant had the caput Baroniæ, the number of such rights must be equal to the number of Baronies contained in the list; as some persons amongst the various tenants in severalty of parts of a Barony must have the caput Baronia. If the right were extended to holding per Baroniam, though of any part of a Barony, the number of persons who might claim under such title must be very great, as every division of a Barony would then produce a new claimant. To prove that any land as now holden by any one, was an entire Barony, would probably be at this day a very difficult task, and therefore it would probably be deemed most prudent to limit the claim to the Tenure of that part of a Barony which contained the caput Baroniæ. This in the reigns of Edward the First, of his son, and of his grandson Edward

* I. and II. Report, pp. 446, 447.

the Third, may not have been difficult to ascertain. The Committee have therefore endeavoured to discover whether during that time, or afterwards, any such claim had been made; and if made, what was the result. They have found many instances of persons who appear to have holden lands per Baroniam, and who have probably possessed the caput Baronie, and yet were never summoned by Writ to Parliament. They have found, in other cases, persons who were summoned to Parliament having such caput Baroniæ, and whose descendants have continued to be summoned to Parliament after alienation by themselves or their ancestors of that caput Baronia, whilst the alienee has not founded any claim to such a Writ on the possession which he had acquired *."

The Committees then add, that they propose to give the result of their searches in a further Report, not having been able to make so complete an investigation of the subject as appeared desirable, and proceed to notice the claim founded in the reign of Henry VI. to the Earldom of Arundel by John Fitz-Alan, who stated in his petition that his ancestors, Earls of Arundel, Lords of the Castle, Honor, and Lordship of Arundel, had had their place to sit in Parliament and councils of the King's progenitors for time whereof memory of man did not run, by reason of the Castle, Honor, and Lordship aforesaid, to which the said name had been united and annexed for the time aforesaid, of which Castle, Honor, and Lordship the petitioner was seised. This case it is impossible to state satisfactorily in the limits to which these observations on dignities are necessarily confined, but it is sufficient briefly to offer such remarks as bear immediately on the subject of dignities being attached to the tenure of land after the reign of Edward the First. The statement in the claimant's petition, that all the persons who had been seized of the Castle and Honor of Arundel were Earls of Arundel, was not true; for the Lords' Committees, in this Report, prove that neither Fitz-Alan (the nephew, and one of the heirs Hugh de Albini Earl of Arundel, and who, in the partition of the said Earl Hugh's lands, obtained the Castle of Arundel), nor John Fitz-Alan his son, the petitioner's an

I. and II. Report, p. 404.

cestors, were styled Earls of Arundel in any contemporary record, though they were both seised of the Castle and Honor of Arundel at a period when dignities were undoubtedly attached to the tenure of lands. It would consequently appear, that the first Earl of Arundel of the family of FitzAlan, was Richard Fitz-Alan, the son and heir of John FitzAlan last mentioned, who, in record of the 16 Edward I. is merely styled "Ric'o filio Alani," but who, in the 20 Edw. 1. was styled in the Placita in Quo Warranto in Salop in that year, "Ricardus filius Alani Comes de Arundell,” and who, in the 23 Edw. I. was summoned to Parliament by that title. The conclusion therefore is, that he was created to that dignity some time between the 17 and 20 Edw. I. "but in what manner the Committee have been unable to discover *." John Fitz-Alan's petition was, however, so far admitted, as the assertion in his petition is made the consideration, though with some others not connected with the question, for the King's acceding to it with a saving, nevertheless of the right of the King, of the Duke of Norfolk who, being the heir-general of the Earls of Arundel, had opposed the Earl's claim, and of every other person; which saving clause, as the Report truly observes, "was that species of saving which in law is deemed illusory, operating nothing +." From John FitzAlan, who obtained this recognition of the Earldom, the dignity descended to Henry Fitz-Alan, Earl of Arundel, who died in 1579, without male issue, when Philip Howard, his grandson, son of Thomas Duke of Norfolk, by Mary,

* I. and II. Report, p. 420. In the list of the Earls of Arundel, p. 26, both the John Fitz-Alans are included; this was done in consequence of the decision of Parliament on John FitzAlan's petition in the 11 Hen. VI. which recognized the assertion, that every person who had been seized of the Castle of Arundel, was by the tenure thereof Earl of Arundel, and the satisfactory refutation of the position by the Lords' Committees had not then fallen under the Editor's observation. See, however, the note to p. 27, from which it appears that John FitzAlan, the father of the claimant, in the 11 Hen. VI. though never summoned to Parliament as an Earl, was, nevertheless, styled Earl of Arundel.

+ Ibid. p. 427.