The result of this case is commented on at some length in the Lords' Reports on the Dignity of a Peer:
This Resolution decided that a Writ of Summons, and sitting in Parliament, vested in the Person, so summoned and seated, a Dignity descendible to the Heirs of his Body, though no Words in the Writ expressed an Intent in the Crown to grant a Dignity so descendible. The Inference, that the Issue of the Writ, and sitting in Parliament thereupon, created a Dignity so descendible, must therefore have been deemed an Inference of Law, from the Facts stated.[1]
Since that Decision, the Law has been considered, in different Cases which have been before the House, as settled by that Decision; but it may be doubted what was the Extent of that Decision. It is observable, that the Opinion given by the Judges … is confined, in words, to the particular Case; … and it does not follow that the Judges meant to express an Opinion, or that the House, on the Ground of that Opinion, meant to resolve, that, in earlier Times, a Writ of Summons and sitting in Parliament had in Law the same Effect.[2]
The Committee have not discovered on what Grounds the Judges gave their Opinion.[3]
J. H. Round has answered this question conclusively.[4] He shows that the Judges got their law from Coke, who in his First Institute says:
A man may have an inheritance in title of nobilitie and dignitic three manner of wayes, by creation, by descent, and by prescription. … Creation by writ is the ancienter way. … And this writ hath no operation or effect until he sit in parliament, and thereby his blood is ennobled to him and his heires lineall; and thereupon a baron is called a peer of parliament.[5]
The use made of the resolution in the Clifton case has carried the doctrine of barony by writ far beyond anything that can be read into the simple resolution of the House of Lords; but the doctrine once launched on the world, there was nothing to stop its being developed to the most extravagant lengths.
The Clifton decision led to a claim for precedence in 1677. In that year John, Lord Frescheville of Staveley, who had been so created in tail male in 1664, petitioned for the place in Parliament of his ancestor, Ralph Frescheville, who was summoned to a Council in 1296/7. See sub Frescheville, post.
Before turning to a consideration of the doctrine of abeyance, which must next engage our attention, a few words must be said on the "sitting" in Parliament, without proof of which the summons creating a barony by writ is deemed to be inoperative.
