• king, or he might have waived it, and submitted to "his fine, as one who is diftrained to be a knight, or "one learned in the law, is called to be a ferjeant: "the writ cannot make him a knight or a ferjeant. "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.”

What Proof neceffary.

S 52. The proof of a fitting in parliament, by virtue of a writ of fummons, must be by the records of parliament: for Lord Coke fays, if iffue be joined in any 1 Inft. 166. action, whether a perfon be a baron, &c. or no, it shall not be tried by a jury, but by the record of parliament.

$ 53. In the cafe of Norborne Berkeley Efq. claiming to be one of the coheirs of the antient barony of Botetourt, the proofs of the fitting confifted of antient records of parliament; and the following obfervations on that evidence are stated in the cafe, which is figned by the honourable Charles Yorke. "If any objection can be framed to these records, as evidence of a

fitting in parliament, fuch objection must be taken, "either to the competency, or to the effect, of fuch "evidence. An objection to the competency of the 66 evidence can only take its rife from its being ufual, "in claims of this nature, to prove the fitting by the journals of the Houfe of Lords; from whence it

99

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may poffibly be inferred, that no other evidence is "admiffible to prove a fitting in parliament.

Hab. 110.

"Anfwer 1.-It has never been laid down, that "the fitting in parliament must be proved by the

journals of the House of Lords; but all the autho"rities agree in establishing this rule, that the fitting "must be proved by the records of parliament. The "House of Lords has, in queftions of this nature,

66

given credit to their journals, where a fitting could "be proved by them. But that practice, which feems "rather an indulgence to the claimant, can never be "conftrued to establish the authority of the journals "above that of the records. For, in ftrictnefs, jour"nals are not records, but remembrances for form of "proceeding to the record: they are not of neceffity, "neither have they always been. They are not any record, but notes and memorials for the clerks to

perfect, and enter the records. But the evidence "here stated, is that of the records of parliament, the "first record being strictly an act of parliament, and

the others, full and complete records of tranfactions in parliament, all entered upon the proper rolls, "and produced from the public archives. It is there. "fore evidence, not only of an equal, but, in most

cafes, of a fuperior authority to the journals; and, "in this question, it is ftrictly and properly that evi"dence, which the law requires to fupport the inhe"ritance of a peerage.

"Anfwer 2.-The ftate of the journals is fuch, that "this objection could not be allowed, without great danger to the antient baronies. There are no jour"nals before the reign of Hen. S.,

nor are they regu

"larly

"larly preferved fince that reign. An antient letter, " prefixed to the journal book of Hen. 8., intimates, "that feveral journals were taken away, and fuppreffed "by Cardinal Wolfey. It does not seem reasonable, "that either this accident, or the neglect of a clerk "to the journals, fhould be of any prejudice to the "nobility in the inheritance of their honours; and 66 yet, if no barony could be claimed without proof "of a fitting by the journals, all thofe antient ba"ronies, which have been united with higher honours "before the reign of Hen. 8., or during thofe years "of which the journals have been fuppreffed, must be "loft.

"Answer 3.-Baronies have, in fact, been allowed, "though no fitting could have been proved by the

journals. In the cafe of the barony of Ruthin, "1640, the claim to that barony was allowed, upon

great deliberation, and very accurate inquiry; though "it is evident, no fitting could have been proved by "the journals, because there was no person summoned "under that title from the 2d year of Edw. 4.; the "Lord Grey of Ruthin being foon afterwards created "Earl of Kent. The barony of Mowbray was re"vived without objection in favour of Henry, eldest "fon of the Earl of Arundel, though no perfon had "been fummoned under that title from the 39th of "Edw. 3. Algernon, Duke of Somerset, took his feat "in the House of Peers as baron Percy, upon the "death of his mother in 1722, without objection; "though no fitting could have been shewn from the "journals,

03

Defcendible to Females.

1 Inft. 9 b. 16 b.

Collins, 24.

journals, no perfon having fat in right of the old "barony of Percy, from the 50th year of Edw. 3. "And, laftly, no fitting can be proved by the jour"nals, in the case of the barony of Le Defpencer."

§ 54. Although the writs of fummons to parliament, whether addreffed to perfons who were not at the time peers of parliament, or to antient barons, (for in both cafes the writ is exactly similar), do not contain any words of limitation (except in one inftance, which will be hereafter mentioned), to the heirs of the perfon fummoned; yet it appears to have been long fettled, that, where a perfon has been fummoned to parliament by the ufual writ, and takes his feat by virtue of fuch writ, the dignity thus acquired is defcendible to all his pofterity.

Lord Coke was clearly of this opinion; having laid it down as fully fettled, that, where a perfon is fummoned to parliament by writ, and takes his feat, his blood is ennobled to him and his heirs lineal.

§ 55. The cafe, upon which Lord Coke appears to have relied in fupport of this opinion, is that of the barony of Dacre; which, on the death of Gregory Lord Dacre, 36 Eliz., was declared and adjudged by commiffioners, nominated by queen Elizabeth, to have defcended to Margaret his fifter and fole heir, who was married to Sampfon Leonard: and in 2 James, this determination was confirmed by the Lords Commiffioners for executing the office of Earl Marshal.

$ 56. This

§ 56. This doctrine, however, has been controverted by Mr. Prynne, Mr. Elfynge, and the Author of the Inquiry into the Manner of creating Peers."

Their arguments may be reduced to the following: ift, They observe that, in the ufual writ of fummons 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 Infra. fee, or in tail, without exprefs words of creation, in the patent, for that purpose; and, as in all the patents which have paffed fince the 20th year of Hen. 8., there is not only a special clause inferted for creating the patentees barons, but alfo, for enabling them and their heirs, or the heirs of their bodies, to hold and poffefs a feat and place in parliament, it seems equally neceffary, that special words of creation fhould be inferted in writs of fummons; fuch as was practised in

the cafe of Sir Henry Bromflete, who being fummoned 1 Inft. 9 b. to parliament in 27 Hen. 6., this claufe was inferted in 7 Rep. 33 b. his writ. Volumus enim, vos et hæredes veftros mafculos,

de corpore veftro legitimé exeuntes, Barones de Vefey exiftere.

2d, If a writ of fummons alone ennobled the perfon and his defcendants, then were all the judges, the king's ferjeants at law, the mafters in chancery, and several other perfons, ennobled for they received writs of fummons to parliament, nearly fimilar at one period, and perfectly fimilar at another, to those which were iffued to the earls and barons, and attended parliament

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