APPENDIX H 679 the terms of the earlier creation. Yet even if he were, how are we to regard the fact that he himself in the first year of his reign had conferred three earldoms in fee ? Unfortunately the destination of these earldoms — Buckingham, Northumberland, and Nottingham — leaves us in doubt as to how the limitation in their creation would have been regarded, for in the first case the grantee was attainted and forfeited, in the second he had male issue that survived, and in the third he died unmarried and under age, and his brother had a new grant in tail male. There can be little doubt, how- ever, that the terms of inheritance used were still what lawyers call "common form," but they were now being interpreted according to the caprice of the Sovereign. With the reign of Richard 11 the practice of creating earldoms in fee may be said to have come to an end; henceforth they were created for life or in tail male. And yet, though this change in practice showed clearly the Crown's objection to the existence of dignities held in fee, within fifty years of Richard's death, as is shown elsewhere, was begun a subtle campaign to obtain for the lowest degree of peerage — the barony — the most extensive and lasting terms of inheritance known to the law. Abeyance i. Earldoms (*) The impossibility of reconciling modern law with history is demon- strated very clearly when we try to apply the law regarding abeyance to ancient earldoms. The principle of this law is that as no one of the coheirs has a better title to the dignity than the others, the dignity remains in suspense until such time as the rights of all are united by the survival of one only, or the King selects one of them, as an act of grace and favour, to enjoy the title. This is now held to have been the law since the time of Richard I.C") We are at once faced with the difficulty that there was a quite different law in operation in the reign of Henry III: a law based on the system of feudal tenure which still prevailed, under which — as has already been remarked — such a condition as abeyance could not have occurred. In point of fact this law gradually became obsolete with the breakdown of the feudal system. When the caput baroni<e lost its place and importance in the fiscal and military scheme, the reason for giving priority of right to the eldest daughter disappeared. The Earldom of Pembroke is said to afford an example of the determination of an abeyance in an earldom. It descended to coheirs in 1323, and in 1339 Laurence de Hastings, grandson of the eldest coheir, received letters patent bestowing the earldom on him. The act of the King in selecting one of the coheirs gives this the appearance of the calling out of abeyance of a dignity which was in suspense, but when we examine the terms of the patent the transaction assumes a different complexion. The (*) The law of abeyance, at present only deemed applicable to baronies by writ, is fully set out post, p. 708. (*") Decision in the Earldom of Norfolk case (1906).
