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 *." 60. 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. 61. The ancient records or rolls of parliament seldom contain proof of the sitting in parliament of any lord. 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. * 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. infra. 62. 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. 63. 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. 64. 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. 65. 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. 66. 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 ereation and limitation in the patent, for that purpose; and as in all the patents that passed from the 20 Hen. VIII., there was not only a special clause inserted for creating the patentee's 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 personswho 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. VI., this clause was inserted in his writ,-Volumus enim vos et 1 Inst. 9 b. hæredes vestros masculos de corpore vestro legitimè exeuntes Barones de Vescy existere. 67. 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. 68. 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. 69. 4th. It appeared, from the lists of the ancient 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. 70. 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. 71. 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 ante, § 59. 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.” Vide infra, ch. 3. 72. But however strong the objections to Lard Coke's doctrine may appear, there can be no doubt but that it was fully settled, when he wrote, that a writ 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 dignity, descendible to the lineal heirs, or heirs of the body of the person so summoned; and this point has been confirmed by so many subsequent decisions, that it is not now to be shaken. Sons of 73. It has been a very ancient practice to call up Of Writs to the eldest sons of earls to the House of Lords by the eldest writ of summons, by the name or title of a barony Peers. 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. 74. 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. IV. In 16 Cha. I., 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 Mowbray, which was the most ancient title of the Norfolk family, and was placed first upon the barons bench. 75. This practice has been adopted in all other similar cases; and it has been determined, that a writ of summons of this kind creates a dignity, which is hereditary in the blood of the person so summoned. infra, e. 3. 76. It has been stated, that all dignities by tenure Dignities by were created by charter, containing a grant of the Charter. lands to which the dignity was annexed. Dignities, as personal honours, have also been created in early times by royal charter, of which Selden has published Id. § 10. several, 77. We find in the Rolls of Parliament, that in Vol. 2. 273. 36 Edw. III. the Chancellor declared to the parliament the King's intention to honour such of his sons as were of full age. That his son Lionel, who was then in Ireland, should be Duke of Clarence; his son John, Duke of Lancaster; and his son VOL. III. N |