Page:The Complete Peerage Ed 1 Vol 1.djvu/360

 33S BERKELEY. Horace St. Tai l, Bart, which Craven Berkeley was the yst. br. of the above mentioned Thomas. She was b. 28 May 1840. She however, has taken no Stepa towards the infant Lord in lofi'.i) that the Barony being one ct. by Wit (18 Edward IV.) was in abeyance between the sisters and coheirs (heirs .'/('»■) and " ought not to descend to the heir mule." The theory as to the tpccialiiy of the Barony of Berkeley seems a strange one, and somewhat analogous to Horace Walpole's division of mankind into "ilea, Women and Ifirrei/s," inasmuch as (instead of the recognised three) it divides Baronies into TOUR classes i.e. into Baronies (1) by tenure, (2) by writ, (3) by patent, and (4) by " Berltlei/." It is true that, in the anomalous descent of the Barony of Abergavenny, a seventeenth century writ issued !,, the heir turtle was held to have conferred on the person to whom it was issued the precedency of a Barony of 1302, to which he was neither heir nor coheir. Moreover, it is true that such Barony has, three times since 1041, passed to the heir matt to the exclusion of the heir i/eucrtil ; but there is this important distinction between this Barony and that of Berkeley, ri-., that (unlike the case of Berkeley) each person sum. by writ as Lord Abergavenny has in every instance been seized of the feudal ttrritorn : a good argument towards considering Abergavenny as (No. 1) a (Peerage) Barony bt/ tenure, but not for classing it as (N'o. 4) a Barony by "Jia&eteyi" The real fact, probably, is that James de Berkeley was sum. in 1421 as being the fair o/ entail ; but that as (according to the 19th century view) he had no Barony vested in him us swh heir, this writ (being directed to a Commoner) constitutes a Barony in fee. The following remarks (written by Mr. J. Horace Round, whose views the editor has, in the above note, to some extent, embodied with his own) are (cell worth reproducing. man's claim to the Barony (as Sole heir) under the writ of 142] could |K>ssiblybe resisted. For it is not alleged that it ever descended to or vested in any one but the heir geu. uf the party then summoned. A claim to a Barony under that writ cannot be affected by events pi-crtout to the issue thereof, unless the alternative be adopted that the person to whom it was addressed possessed either (1) a Barony by tenure, or (2) a Barony in tail male. Ths tirst hypothesis, after the resolution* of 1861, is untenable As to the second hypothesis (ei:. that the original Barony [1295] was descendible to heirs untie, and that, consequently, James de Berkeley in 1 121 was sum. in that capacity only) the units prolmndi would certainly rest on the party advancing such a theory, since the legal presumption is that a Barony by writ descends and can only descend tu heirs ycMrol." " I cannot admit that the Barony of Bcrgavonny is a valid exception to the above rale. In the first place no one cm read the arguments of Doddridge (who appeared for the Nevill claimant) without perceiving that he rested his client's easel not on his being heir male, but wholly on his tenure of the Gattle, indeed he admitted that had the castle descended to the heir general it would have brought her the Dignity with it. lit the second place the House refused to deckle the question and appealed to the King to effect a compromise. The eventual succession of Nevill to the Barony of Bergavenuy does not, therefore, represent a decision iu his favour, either as owner of the Castle, or, still less, as heir male, but was an arbitrary inlereenlion of the Kitt'J (to be compared with the entail, by Pari., under his successor, of the Earldom of Arundel and its accompanying Baronies) which could not establish any rule of Luu: In the third place the onhj lerjul 'dictum' on the case is, it would seem, that of Lord Ch. Justice l'opham to the etleet that there was ' no right at all in the heir male [sic] and therefore he must wholly rely on the favour of tit-: Prince; the common custom of England doth wholly favour the heir general.' If Popham was here pronouncing against the heir male ussntch, this Would explain why, when the case was subsequently brought before the House of Lords it was exclusively based on the grounds of its being a Barony by tenure. Thus, even in this anomalous instance, it may be urged that (since the action of James I) the Barony of Berg.iveuny lias descended in the Serin" family, on the same ground that it was conceded (1604) to their ancestor (Edward Nevill) nix. that of tenure. In any case its history, so far from impugning, seems, on the contrary, to establish the rule." t Compare Ultte, p. 13, note " b."
 * Supposing the pedigree to be established, it is difficult to Heft on what ground Mrs. Mil-
 * " With the rulwnes decidendi on that occasion, wu have, of course, nothing to do.