Page:The Complete Peerage Ed 2 Vol 4.djvu/698

676 APPENDIX H had married Christine, the elder daughter of Margaret, held the esnescia, as was his right according to the law of the day. He claimed to be Earl, and to have the whole estates of the earldom, which, he contended, as a palatinate, was not subject to the ordinary law regarding partition. The other coheirs agreed that he ought to be Earl, but claimed that the estates ought to be divided. The case eventually resulted in the earldom being annexed to the Crown, the contestants being compensated with other lands. Now the great importance for us in this case lies in the fact that Coke's observations are the basis of the modern doctrine of law regarding abeyance in peerage dignities, and the point to which attention must be specially directed is that neither the Chester case nor the other case (relating to the youngest coheir) had anything to do with dignities. The right to the name of Earl was conceded to William de Forz by the other coheirs; and the second case concerned only the /am^s of a baron. (') Yet this is how Coke treated the subject: But now let us turne our eye to inlieritances of honor and dignity. And of this there is an ancient booke case, in 23. H. 3. tit. partition 18. in these words: Note, if the earldome of Chester descend to coparceners, it shall be divided betweene them as well as other lands, and the eldest shall not have this seigniory and earledome entire to herselfe; guod nota, adjudged per totam curiam. By this it appeareth, that the earledome (that is, the possessions of the earledome) shall bee divided; and that where there bee more daughters than one, the eldest shall not have the dignity and power of the earle, that is, to bee a countesse. What then shall become of that dignity? The answer is, that in that case the King, who is the soveraigne of honour and dignity, may for the incertainty conferre the dignity upon which of the daughters he please. And this hath beene the usage since the Conquest, as it is said.C") It would be difficult to imagine a more perverse distortion of the law than is represented in the above passage, and unhappily Coke's authority in legal circles overrides all historical facts which may be produced to controvert his dictum. Here he not only shows his ignorance of the law of Henry Ill's day, but also his incapacity to grasp the principle underlying it, a principle rooted in feudal tenure. In 1237, only twenty-two years after the signing of Magna Carta, tenure by barony was the ordinary tenure of an earldom, and as long as earldoms remained territorial their descent involved no great difficulty. The condition known as abeyance in dignities could not occur while the system of baronial tenure endured. There was not then that equality of right in the coheiresses to make the application of abeyance possible; the eldest daughter had a preferential claim to the esnescia, that integral part of the tenure which carried with it, according to the nature of the fief, either the right to the name of earl or the right or duty of representing all the service due from the barony of a baron. The gradual decay of the feudal system, however, wrought changes which became more marked with the (^) See, for this case, which occurred in 1218, ante, p. 654. () Coke upon Littleton, ib^a (edit. Hargrave and Butler, 1794).