the lands, the descent of both being regulated by the same principle. The consequence 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 parliament 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 distinct 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 implied 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 baronic 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 part 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 posterity, remain in precisely the same position in which they stood before the king determined the abeyance in favour of a particular branch. In this way the barony of Clifford, which has several times fallen into abeyance, has been lately given by the king to a co-heir. The same was the case with the baronies of Roos and Berners, 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 families of the Continent, have had the address to escape from the operation of the principle by availing themselves of what is called the Salic 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 consideration 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 hereditaments, 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 far the great majority of persons who now occupy the barons' bench in parliament are the male representatives 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.

It is unnecessary to enter into any examination of the privileges of the barons, which in no respect differ from those of the other component parts of the House of Peers. [PEERS OF THE REALM.]

The principal writers upon the subject of this article are, John Selden, in his work entitled 'Titles of Honour,' first published in 1614; Sir Henry Spelman, in his work entitled 'Archæologus, in modum Glossarii,' folio, 1626; Sir William Dugdale, in his 'Baronage of England,' 3 volumes, folio, 1675 and 1676; and in his Perfect Copy of all Summonses of the Nobility to the Great Councils and Parliament of this realm, from the 49th of Henry II. until these present times,' folio, 1685; Proceedings, Precedents, and Arguments on Claims and Controversies concerning Baronies by Writ, and other Honours,' by Arthur Collins, Esq.,' folio, 1734; A Treatise on the Origin and Nature of Dignities or Titles of Honour,' by William Cruise, 8vo., 2nd edit., 1823; Report on the Proceedings on the Claim to the Barony of Lisle, in the House of Lords,' by Sir N. H. Nicolas, 8vo., 1829. But the most complete information on this subject is contained in the printed Report from the Lords' Committees, appointed search_the Journals of the House, and Rolls of Parliament, and other Records and Documents, for all matters touching the Dignity of a Peer of the Realm.'

The word Barony is used in the pre

ceding article only in its sense of a dig nity inherent in a person: but the ancient law-writers speak of persons holding lands by barony, which means by the service of attending the king in his courts as barons. The research of the Lords' Committees has not enabled them to trace out any specific distinction between what is called a tenure by a barony and a tenure by military and other services incident to a tenancy in chief. The Hiltons in the north, who held by barony, have been frequently called the Barons of Hilton, though they had never, as far as is known, summons to parliament, or enjoyed any of the privileges which belong to a peer of the realm. Burford in Shropshire is also called a barony, and its former lords, the Cornwalls, who were an illegitimate branch of the royal house of England, were called, in instruments of authority, barons of Burford, but had never summons to parliament nor privileges of peerage. Barony is also some times, but rarely, used in England for the lands which form the tenancy of a baron, and especially when the baron has any kind of territorial addition to his name taken from the place, and is not summoned merely by his Christian and surname. This seems, however, to be done rather in common parlance than as if it were one of the established local designations of the country. The head of a barony (caput baronia) is, however, an acknowledged and well-defined term. It designates the castle or chief house of the baron, the place in which his courts were held, where the services of his tenants were rendered, and where, in fact, he resided. The castles of England were heads of baronies, and there was this peculiarity respecting them, that they could not be put in dower, and that if it happened that the lands were to be partitioned among co-heiresses, the head of the barony was not to be dismembered, but to pass entire to some one of the sisters.

Barony is used in Ireland for a subdivision of the counties; they reckon 252 of the districts called baronies. Barony here is equivalent to what is meant by hundred or wapentake in England.

It remains to notice three peculiar uses of the word Baron:

the parents also being domiciled there, though in point of fact the first-born son, and in status and condition, by co mity, legitimate in England, will not succeed to land in England. (Doe dem. Birtwhistle v. Vardill, 5 Barn. and Cress. 438. The opinion of the judges was confirmed by the House of Lords, July, 1840.)

Legitimation per rescriptum principis proceeds on a less abstract and more generally acknowledged principle than the preceding. Though therefore it is said to have been invented by Justinian, and copied by one of the popes of Rome, yet concessions in the nature of letters of legitimation are not peculiar to the Roman law. The form of these letters seems to have been borrowed by the Scots immediately out of the old French jurisprudence: their clauses are usually very ample,capacitating the grantee for all honours and offices whatsoever, and to do all acts in judgment or outwith, and, in short, imparting to him all the public rights of lawful children and natural born subjects, together with a cession of the crown's rights by reason of bastardy; but as the crown cannot affect the rights of third persons without their consent, letters of legitimation do not carry a right of inheritance to the prejudice of lawful issue.

As in the Mosaic law a bastard was debarred from the congregation, so according to the canons he is in strictness incapable of holy orders; and, indeed, it has been the policy of most nations to incapacitate bastards in divers ways, that if men will not be deterred from immorality by a sense of the injury accruing to themselves, they may by a consideration of the evils resulting to their offspring. But whatever may be the operation of those incapacities, they are felt by all to be wrongs inflicted on the innocent; and, as Justinian properly observed when he made legitimation per subsequens matrimonium a perpetual ordinance, "indigni non sunt qui alieno vitio laborant." Accordingly this doctrine is now obsolete in England, and nearly so in Scotland. By 6 Wm. IV. c. 22, the only remaining incapacity in Scotland-the want of power to make a testament in the particular case of the bastard having no lawful issue

-was done away with; the preamble of the act reciting that it is just, humane, and expedient that bastards or natural children in Scotland shall have the power of disposing of their moveable estates by testament. Letters of legitimation were formerly necessary in all cases; but it was held that, as the crown's right of succession was excluded by the existence of issue, a bastard who had lawful issue might dispose of his goods by testament in any way he thought fit. Since the passing of 6 Wm. IV. c. 22, there is now no distinction between a bastard and another man; and so he may dispose of his heritage in liege poustie, and of his moveables intervivos, and by testament, and he may succeed to any estate, real or personal, by special destination. To his lawful children, also, he may appoint testamentary guardians; and his widow has her provisions like other relicts. It is to be noted, however, that in the eye of the law a bastard is nullius filius; and being thus of kin to nobody, he cannot be heir-at-law to any one, neither can he have such heirs save his own lawful issue. Where a bastard dies leaving no heir, the crown, as ultimus heres, takes up his property, which, if it be land holden in capite, is at once consolidated with the superiority; but if it be holden of a subject, the crown appoints a donatary, who, to complete his title, must obtain decree of declarator of bastardy, a process in the nature of the English writ of escheat, and thereupon he is presented by the king to the superior as his vassal.

But though bastards are legally nullius filii, yet the law takes notice of their natural relationship to several purposes, and particularly to enforce the natural duties of their parents. These duties are comprised under the term aliment, which here, as in the civil law, comprehends both maintenance and education; including under this latter term, as Lord Stair says (b. i. tit. 5, sec. 6), "the breeding of them for some calling and employment according to their capacity and condition." These were at least the principles on which the courts proceeded in awarding aliment to children. In determining who is the father of a bastard, the Scots courts

again proceed on the principles of the civil law. In Scotland there must first be semiplenary evidence of the paternity, and then, when such circumstantial or other proof of that fact is adduced as will amount to semiplena probatio (equivalent to the "corroborative evidence" required in England), the mother is admitted to her oath in supplement. The whole aliment is not due from one parent but from both parents. This is the principle; and therefore in determining what shall be payable by the father, the ability of the mother to contribute is also considered. The absolute amount of aliment, however, is in the discretion of the court, as is likewise its duration. Where the parties are paupers, the bastard's settlement is not the father's but the mother's parish, and if that is unknown, the parish of its birth.

The mother of a bastard is entitled to its custody during its infancy; and it would seem that afterwards the father may take the rearing of the child into his own hand, and also, perhaps, nominate to it tutors and curators. This last power has been denied; if it does not exist, it ought to be now bestowed by act of parliament.

In France the condition of illegitimate children is determined by the Code Civil (tit. vii. caps. 1 & 2, §§ 312-342). A husband can disavow a child of his wife's on proof that during a period of from three hundred to one hundred and eighty days before its birth it was physically impossible, either from absence or accident, that he could have cohabited with his wife; but impotency cannot be alleged as a cause of disavowal; nor adultery on the part of the wife, unless the birth has been concealed from the husband, in which case the matter may be decided upon its merits. A child born before the one hundred and eightieth day after the marriage cannot be disavowed if it is proved that the husband knew of the pregnancy before the marriage; if he has been present at the birth or has signed the registry of birth; or if the child is not sufficiently strong to afford hope that it will live. The legitimacy of a child born three hundred days after marriage cannot in any way be contested; and in

other cases proceedings must take place within a month if the husband is on the spot, a reasonable delay being allowed for absence. Children born out of wedlock, except those born of adulterous or incestuous connections, can be legitimated by the subsequent marriage of the father and mother, when both parents have legally recognised them before marriage, or when they recognise them by the act of marriage. The legitimation may be retrospective, and in favour of illegitimate children who have died and left descendants, and the latter will partake of the full advantage of such a step. Children legitimated by a subsequent marriage enjoy precisely the same rights as those born after marriage. A deed of recognition by the father only is binding only on him. Recognition during marriage by the husband or wife alone, in favour of an illegitimate child of either, born before their marriage, and not their joint offspring, can only affect one of them, and does not prejudice the rights of their children born in wedlock; but in case of a divorce, and if there are no other children, such recognition will be taken into account. In contested cases the question as to the putative father is interdicted and only the maternity is admitted. The rights of illegitimate children to the succession of property are defined in cap. iv. of book iii. of the Code Civil, under the head "Des Successions Irrégulières." If the father or mother has legitimate descendants, the share of an illegitimate child is one-third of the hereditary portion which it would have received had it been legitimated; one-half when there are no legitimate descendants, but only brothers or sisters or ascending relations; and three-fourths when the father or mother has neither descendants nor ascending relations, nor brothers or sisters; and an illegitimate child is entitled to inherit the whole of the property of his parents when they have no relations in a certain order of succession. The descendants of an illegitimate person deceased can claim on his behalf. The property of an illegitimate person dying without children goes to his parents, wholly to the one who recognised him by a legal act, or if both parents joined in this act, in equal parts to each;