III.

Tenure by barony appears to have been recognised by the house of lords
in the reign of Henry VI., when the earldom of Arundel was claimed as
annexed to the "castle, honour, and lordship aforesaid." The Lords'
committee have elaborately disproved the allegations of descent and
tenure, on which this claim was allowed. (Second Report, p. 406-426.)
But all with which we are concerned is the decision of the crown and of
the house in the 11th year of Henry VI., whether it were right or wrong
as to the particular facts of the case. And here we find that the king,
by the advice and assent of the lords, "considering that Richard
Fitzalan, &c., was seised of the castle, honour, and lordship in fee,
and by reason of his possession thereof, without any other reason or
creation, was earl of Arundel, and held the name, style, and honour of
earl of Arundel, and the place and seat of earl of Arundel in parliament
and councils of the king," &c., admits him to the same seat and place as
his ancestors, earls of Arundel, had held. This was long afterwards
confirmed by act of parliament (3 Car. I.), reciting the dignity of earl
of Arundel to be real and local, &c., and settling the title on certain
persons in tail, with provisions against alienation of the castle and
honour. This appears to establish a tenure by barony in Arundel, as a
recent determination had done in Abergavenny. Arundel was a very
peculiar instance of an earldom by tenure. For we cannot doubt that all
earls were peers of parliament by virtue of that rank, though, in fact,
all held extensive lands of the crown. But in 1669 a new doctrine, which
probably had long been floating among lawyers and in the house of lords,
was laid down by the king in council on a claim to the title of
Fitzwalter. The nature of a barony by tenure having been discussed, it
was found "to have been discontinued for many ages, and not in being" (a
proposition not very tenable, if we look at the Abergavenny case, even
setting aside that of Arundel as peculiar in its character, and as
settled by statute); "and so not fit to be received, or to admit any
pretence of right to succession thereto." It is fair to observe that
some eminent judges were present on this occasion. The committee justly
say that "this decision" (which, after all, was not in the house of
lords) "may perhaps be considered as amounting to a solemn opinion that,
although in early times the right to a writ of summons to parliament