The doubt of the Lords' Committees, however, shows that this is one of the many points touching the baron on which there as room for question. The practice, however, has been hitherto to admit that proof of the issuing of the writ, and of obedience to it, by taking a seat in par liament, or what is technically called proof of sitting, entitles the person who is heir of the body of a person so summoned to take his seat in parliament in the place which his ancestor occupied. Neverthe less, it would seem, from the report of the Lords' Committees, that in cases in which one person only of a family has been summoned at some remote period, and none of his known posterity near his time, this was no creation of the dignity of a baron, or of a peer in parliament, which could be chimed at this distance of time by any person, however clearly he might show himself to be the heir of the body of the person so summoned. But that, in cases in which the writ and the sitting can be proved respecting seve ral persons in succession in the same line, as in Manley, Roos, Furnival, Clifford, and many other families, there is an heritable dignity created, liable to no de feazance, and that this dignity may be claimed by any person who at this day can show himself to be the heir of the body of the person to whom the original writ issued.
In interpreting the phrase heir of the body, the analogy of the descent of the corporeal hereditaments in the feudal times is followed. That is, if a person die seised of the dignity of baron. and leave a brother and an only child, a daughter, the daughter shall inherit in preference to the brother, though the dignity has been transmitted from some person who is ancestor to them both. This fact clearly shows how close a con nexion there is between the dignity and the lands, the descent of both being regu lated by the same principle. The con sequence of this principle is, that through a portion of the baronage there has been an introduction of new families into the peerage without the sanction of the crown; for the heiress of one of these baronies may now bestow herself in marriage at her pleasure : and though it is not held that the husband can claim the benefit of the tenancy by courtesy principle (though doubts are entertained on this point), yet the issue of the husband may undoubtedly, whoever he may be, take his place in par liament in the seat which his mother would have occupied had she been a male. Practically, the effect of this upon the composition of the House of Peers has been very small indeed.
The case of co-heiresses demands a dis tinct notice, because it will lead to the explanation of a phrase which is often used by persons who seem not to have very distinct notions concerning what is im plied by it. Lands may be divided, but a dignity is by its very nature indivisible. Thus, if the representative of one of the ancient barons of parliament die, leaving four daughters and no son, his lands may be divided in equal portions among them, and would be so divided according to the principle of the feudal system. But the dignity could not be divided; and as the principle of that system was against any distinction among co-heiresses (reserving the occurrence in the course of nature of persons dying leaving no son but several daughters, to be the means of preventing the too great accumulation of lands in the same person, and of breaking up from time to time the great tenancies), it made no provision that either the caput baroniffl or a dignity that was indivisible should descend to the eldest or any daughter in preference to her sisters. It therefore
fell into abeyance. [ABEYANCE.] It was not extinguished or destroyed, but it lay in a sort of silent partition among the sisters ; and in this dormant, but not dead state, it lay among the posterity of the sisters. But if three of the four died without leaving issue, or if after a few generations the issue of three of them became utterly extinct, the barony would then revive, and the surviving sister, if alive, or the next heir of her body, would, become entitled to the dignity, and might, on proof of the necessary facts, claim a writ of summons as if there had been no: suspension. Again, it is a pirt of the royal prerogative to determine an abey ance ; that is, the king may select one of the daughters, and give to her the place, state, and precedency which belonged to her father ; and then the barony will descend to the several heirs in succession of her body, as entire as if there had never been any state of abeyance. But this does not interfere with the rights of the other co-heirs, who, and whose poste rity, remain in precisely the same position in which they stood before the king deter mined the abeyance in favour of a parti cular branch. In this way the barony of Clifford, which has several, times fallen into abeyance, has been lately givens by the king to a co-heir. The same was the case with the baronies of Roos and Ber ners, and indeed it is in a great measure to the exercise of this prerogative of the crown that we owe the presence in the House of Peers of barons who take their seats at the head of the bench, and date their sittings from the fourteenth and thirteenth centuries.
The principle of the feudal law, which was favourable to the claims of females, was fraught with ruin to noble houses. The great family which springs from Hugh Capet, and a few other great fami lies of the Continent, have had the address to escape from the operation of the prin ciple by availing themselves of what is called the Salle Law ; and to this is. owing that they still hold the rank in which we now see them, a thousand years after they first became illustrious. This must have been early perceived in England, and it was probably this consi deration which led to the introduction of a class of barons, the descent of whose dignity should not be regulated by the principle of the feudal descent of heredi taments, but should be united inseparably with the male line of persons issuing from the stock of the original grantee. This innovation is believed to have first taken place in the reign of King Richard II., who in his eleventh year created John Beauchamp of Holt a baron, not merely by writ of summons to parliament, but by a patent, in which it was declared that he was advanced to the same state, style, and dignity of a baron, and that the same state, style, and dignity should descend to the male heirs of his body. Thus and at this time the class of barons by patent arose. The precedent thus set was, with very few exceptions, followed in the subsequent reigns ; and by fist' the great majority of who now occupy the barons' peons in parliament are the male repre sentatives of persons on whom the dignity has been conferred, accompanied by a patent, which directs the course of its descent to be in the male heirs for the time being of the original grantee ; and that should it ever happen that they are exhausted, the dignity becomes extinct.