8 James 1., whether Edward Nevill, who was called by writ to parliament in 2 & 3 Mary, and died before the parliament met, was a baron or not. And it was resolved by the Lord Chancellor, the two Chief Justices, the Chief Baron, and divers other justices there present,-"That the direction and delivery of the writ did not make him a baron or noble, until he came to parliament, and there sat according to the commandment of the writ; for until that the writ did not take its effect. And in 39 Hen. 6. he is called a peer of parliament, which he cannot be until he sits in parliament; and he cannot be of the parliament until the parliament begin: and forasmuch as he hath been made a peer of parliament by writ, (by which implicitly he is a baron) the writ hath not its operation and effect until he sit in parliament, there to consult with the King, and the other nobles of the realm; which command, by his supersedeas, may be countermanded; or the said Edward Nevill might have excused himself to the King; or he might have waived it, and submitted to his fine: as one who is distrained to be a knight, or one learned in the law is called to be a serjeant; the writ cannot make him a knight or a serjeant. And when one is called by writ to parliament, the order is, that he be apparelled in his parliament robes; and his writ is openly read in the Upper House, and he is brought into his place by two lords of parliament, and then he is adjudged, in law, inter pares regni.” (a) 62. The proof of a sitting in parliament, by virtue 1 Inst. 16 b. of a writ of summons, must be by the records of parliament for Lord Coke says, if issue be joined in any action, whether a person be a baron, &c. or not, it shall not be tried by a jury, but by the records of parliament. 63. The ancient records or rolls of parliament seldom contain proof of the sitting in parliament of any lord. (a) There is an instance of a person's taking his seat by proxy. Vide Camden's Ann. anno 1597. Are hereditary. 1 Inst. 9 b. 16 b. No lists of the peers who attended are to be found in them, nor are the names of any of the peers who were present mentioned, except where they are appointed triers of petitions, or appear to have acted in some particular situation. 64. The printed Journals of the Lords contain lists of all the peers who attended; and though not, in strictness, records, they have been admitted by the House, in all modern cases, as sufficient evidence of a sitting. 65. Although writs of summons to parliament, whether addressed to persons never summoned before, or to ancient barons, for in both cases the writs have in general been exactly similar, do not contain any words of limitation, except in one instance, which will be mentioned hereafter; yet it appears to have been long settled, that where a person has been summoned to parliament by the usual writ, and takes his seat in the House of Lords by virtue of such writ, he acquires the dignity of a baron, not only for himself, but also for all his lineal descendants, both male and female. 66. Lord Coke was clearly of this opinion, having laid it down as fully settled in his time, that where a person was summoned to parliament by writ, and took his seat under such writ, his blood was ennobled to him and his heirs lineal. 67. This doctrine has, however, been controverted by Mr. Prynne, in his Plea for the Lords, and in his Register of Parliamentary Writs; by Mr. Elsynge, in his Manner of holding Parliaments; and by Mr. West, in his Inquiry into the Manner of creating Peers. The substance of their arguments may be thus reduced. 68. 1st, They observe, that in the writs of summons to parliament, neither the words baron, barony, nor heirs, are to be found. And as the King cannot, by his letters patent, create any man a baron or peer, in fee or in tail, without express words of creation and limitation in the patent, for that purpose; and as in all the patents that passed from the 29 Hen. 8., there was not only a special clause inserted for creating the patentees barons, but also for enabling them and their heirs, or the heirs of their bodies to hold and possess a seat and place in parliament; it seemed equally necessary, that special words of limitation should be inserted in writs of summons, to persons who were not at the time peers of parliament; such as was practised in the case of Henry Bomflete, who being summoned to parliament in 27 Hen. 6., this clause was inserted in his writ,-Volumus enim vos et hæredes 1 Inst. 9 b. vestros masculos de corpore vestro legitimè exeuntes barones de Vescy existere. 69. 2d, It was a known rule of law, that the King's grants could not enure to two intents, especially when one of them was clearly expressed, and the other not. Now if a writ of summons did create any person a baron or peer, it operated by way of grant; which must be by the implication of an intent, not only not expressed, but perfectly foreign to that which was, and therefore at least in every thing but a writ of summons, could be, in law only intended: for the intention of the King, clearly expressed in the writ, was not to create the person summoned a baron, but only to consult and treat with him concerning the affairs of the nation; which certainly might be done without his being a baron. 70. 3d, If a writ of summons alone ennobled the person to whom it was addressed, and his descendants, then were all the Judges, the King's Serjeants at law, the masters in Chancery, and several other persons ennobled; for they received writs of summons, nearly similar at one time, and exactly similar at another, to those that were issued to the earls and barons, and attended parliament in pursuance of those writs; yet they never claimed to be peers. 71. 4th, It appeared, from the lists of the ancient Ante, writs of summons, that during the reigns of the three Edwards, some persons received writs of summons only once, some twice, and some during their lives; but none were sent to their descendants. 72. It would perhaps be impossible to give a satisfactory answer to the arguments above stated, nor has it hitherto been attempted. It must, therefore, be admitted, that something more than a writ of summons and a sitting was formerly necessary to create an hereditary dignity. 73. Mr. Elsynge was of opinion, that investiture of robes was necessary to ennoble a person summoned by writ. And this idea is strongly confirmed by the resolution of the judges in Lord Abergavenny's case. "And when one is called by writ to parliament, the order is, that he be apparelled in his parliament robes; and his writ is openly read in the Upper House, and he is brought into his place by two lords of parliament; and then he is adjudged, in law, inter pares regni." 74. An ancient manuscript in the Harleian Collection, No. 5127, intituled "Of Honorary Titles in England," contains the following account of the creation of a baron by writ. "The way of making a baron by writ is after this manner. First, he is brought by garter king at arms, in his surcoat, to the Lord Chancellor, between two of the youngest barons, who bear the robe of a baron. Then he shews his writ of pre, script, which the Chancellor reads; then congratulates him as a baron, and invests him with those robes; and sends him back to his place. Then is the writ delivered to the clerk of parliament; and he, by garter shewed to the barons, is placed in the House of Peers; and from thence is the title of a baron allowed him as hereditary." 75. It must be supposed that this writ of prescript, as it is called, was not the usual writ of summons, but an additional warrant from the Crown, addressed to the Lord Chancellor, commanding him to invest the person summoned with the robes of a baron; for otherwise every person summoned by writ would have been equally entitled to investiture with robes, whereas it is quite certain this could not have been so, for the descendants of a great many persons who had been summoned by the usual writ, and had sat in parliament, were never summoned. 76. If the preceding authorities be admitted, it will follow that formerly a barony by writ was a personal dignity, unconnected with any particular castle, manor, or estate in land; which was created by a writ of summons, and a solemn investiture with robes, of the person so summoned, in full parliament. 16 b. 77. It is not known at what time the practice of investiture with robes ceased: but it appears to have been fully settled, when Lord Coke wrote, that a writ 1 Inst. 9 b. of summons to parliament, and a sitting in pursuance thereof, as a peer, except in the case of a spiritual person, operated as a creation of a barony, descendible to the lineal heirs, or heirs of the body, both male and female, of the person so summoned; and this doctrine has been confirmed by so many decisions, that it is not Infra, c. 3. now to be shaken. 78. It has been a very ancient practice to call up the eldest sons of earls to the House of Lords by writ of summons, by the name or title of a barony vested in their fathers. In all which cases they have been allowed to take their place in parliament, according to the antiquity of the barony, by the name of which they were summoned. 79. Dugdale, at the end of his summons to parliament, has given a list of those eldest sons of peers who had been summoned in this manner. The first of these was Thomas Arundel, Lord Maltravers, eldest son to Richard Fitzallan, Earl of Arundel, in 22 Edw. 4. In 16 Cha. 1., Henry Howard, eldest son of the Duke of Norfolk, was called up to the House of Lords, by writ of summons by the title of Lord Mow Writs to the eldest sons of peers. |