creation by letters-patent is therefore the most secure way of conferring nobility on a man and his heirs, because the title is not lost by his omission to sit in Parliament. But where, as is sometimes done, the eldest son of a peer is called to the House of Lords in his father's lifetime, it is usual to call the son by a writ of summons, because there is no danger of his children losing the nobility in case he never takes his seat, for they will succeed to their grandfather (a).

The letters-patent usually limit the inheritance to the heirs general of the person ennobled; but the King may by the patent restrict the inheritance as to the heirs male, or the heirs of the body of the person ennobled (b).

If a peer, having the dignity to him and his heirs, die, leaving a sole heiress, the dignity descends to her as well as any other inheritance. But if he die leaving coheiresses, the King may, for the uncertainty, confer the dignity on which of them he please; and till he thus revives the title it is said to be in abeyance. There are several instances of a barony revived after an abeyance of several centuries (c).

Coke expressly states that the King may create either a man or a woman noble for life, and Blackstone follows him in that proposition (d). This proposition has been disputed in an important debate in the House of Lords respecting peerages for life. In February, 1856, that House referred create a barony. (Hubback on the Evidence of Succession, 152.) The reason why the creation by letters-patent is complete without sitting, is that letterspatent cannot, like a writ of summons, be countermanded by the King. (Ibid.) These letters-patent are passed under the Great Seal in pursuance of the King's warrant to the Lord Chancellor. (2 Hatsell's Precedents, 396.) (a) 1 Blackstone's Comm., 400.

Lord Clifford, son and heir of the Earl of Burlington, was called by writ, and died in his father's lifetime. The House of Lords decided, A.D. 1694, that Lord Clifford's son and heir was entitled to a writ of summons by the title of his father. (5 Clark's House of Lords' Cases, 975.)

(b) Co. Litt. 16 b. According to Mr. Hargrave's opinion, a barony may be granted to a man and his wife as joint tenants in special tail. (7 State Trials, 1571, note.)

(c) Butler's Co. Litt., 165 a, note.

(d) Co. Litt., 9 b, 16b; 1 Blackstone, Comm., 401.

to a committee the examination of the letters-patent conferring such a peerage on Sir James Parke as Baron Wensleydale. The House of Lords decided that neither the letters-patent, nor the same with the usual writ of summons issued in pursuance thereof, entitled the grantee to sit in Parliament (a). It was argued that the dicta of Coke and others, by which the prerogative claimed for the Sovereign to create peers for life is supported, were not warranted by precedents; that in the cases in remote times in which such peerages appear to have been granted, they were granted by the authority of Parliament, which of course could legalize them; that even if such a prerogative of the Sovereign ever existed, it had become obsolete, as it was certain that no life-peerages had been created for several centuries. It was also contended that a power in the Crown to grant such peerages might be attended with dangerous consequences to the independence of the House of Lords, as the advisers of the Crown might on some occasions, in order to increase their political power, advise an exercise of that power, as they would not be restrained by the fear of permanently increasing the number of peers (b). In consequence of the decision of the House of Lords, Lord Wensleydale was subsequently created an hereditary peer.

The peers of Scotland who sit in Parliament are sixteen peers, who are elected by and represent the body of the Scotch nobility, and are chosen for one Parliament only (c). The peers of Ireland who sit in Parliament are twentyeight, elected for life by the peers of Ireland. The power of the Crown to add to the number of Irish peers is limited by the fourth article of the Union with that country. A

(a) Wensleydale Peerage Evidence, p. 106; 5 Clark's House of Lords' Cases, 958.

(b) Hansard's Debates, Feb. 1856.

(c) 5 Anne, c. 8, art. 22; 6 Anne, c. 23; 10 & 11 Vict. c. 52. By the latter statute, claims to vote in respect of dormant or extinct peerages of Scotland are not to be allowed at elections of representative peers of Scotland. A Scottish peer, after being made a peer of Great Britain, cannot vote at the election of Scottish representative peers. So decided in the Duke of Queensberry's Case. (Burnet, Hist. of his own Time, a.d. 1709.)

KARY

IVERSITY

CALIFORNIA

CH. VII.] CONSTITUTION OF THE HOUSE OF LORDS

new Irish peer can be created only on certain vacancies in the Irish peerage mentioned in the article, the intent and meaning of which is declared to be to keep up the Irish peerage to the number of one hundred (a).

It has been already stated that fresh writs of summons are issued to the peers, as well as for the election of the House of Commons at every new Parliament. The Lords Spiritual and Temporal are entitled to their several writs of summons ex debito justitiæ (b). Elsynge says he could find no instance in which any baron hath been omitted if he were of full age, stood rectus in curia, and were within the land, unless he had so diminished his revenues as that he could not maintain the state of his honour, whereof there are some few unpleasing precedents (c). There are many instances of petitions to the House of Lords by peers for their writs of summons (d). In the first year of Charles I., while the Commons were proceeding to impeach the Duke of Buckingham, one of his opponents, the Earl of Bristol, was under the King's displeasure, and, by the influence of Buckingham, his summons to Parliament was withheld. Lord Bristol petitioned the House of Lords for his writ of summons, and the House addressed the Crown to send writs of summons to him and other lords from whom they had been withheld. Bristol's summons was thereupon sent; but with it a letter from the Lord Keeper, signifying the King's pleasure that he should not attend Parliament. Bristol answered the letter reasonably objecting that the writ of summons "commandeth me, upon my faith and allegiance, I fail not to come and attend his Majesty, and this under the Great Seal of England. In the other, as in a letter-missive, his Majesty's

(a) 39 & 40 Geo. III. c. 67, art. 4.

(b) 4 Coke, Inst. 1; Prynne, Plea for the Lords, 35.

(c) Elsynge's Method of Holding Parliaments, 45.

(d) May 18, 1621. The Earl of Northumberland petitions the House of Lords for his writ of summons: it is ordered to be made and sent. The Earl of Hertford also petitions: ordered to learn his Majesty's pleasure. (Parry's 'Parliaments,' 283.)

pleasure is intimated by your lordship that my personal attendance should be forborne," and he expresses a doubt which command he ought to obey (a). The doubt was not resolved, for pending the proceedings against the Duke of Buckingham, Parliament was, as we have already mentioned, abruptly dissolved.

A peer cannot divest himself of his own honour, nor can it be taken from him, except by Act of Parliament, attainder of his person, or (it has been said) scire facias to repeal his patent if the creation be by letters-patent. The King cannot countermand them, though where the creation is by writ the King may supersede the writ before the Parliament. But letters-patent being a conveyance at common law, the patentee is entitled to the grant by matter of record, which cannot be vacated except by scire facias at the suit of the King, to which the patentee may have his answer(b).

Where, upon the death of a peer, doubts arise as to the devolution of the dignity, and in all cases of long abeyance or other non-enjoyment of a peerage, the Lord Chancellor will not issue his writ of summons to a claimant without previous investigation. In the cases of Scotch and Irish peerages, this investigation is frequently necessary before a claimant's right to vote at elections of peers of those parts of the United Kingdom will be admitted.

To procure an investigation of a claim of peerage, the claimant petitions the Crown. In ancient times the claims were usually investigated in the Courts of the High Constable and Earl Marshal; now the Crown always refers the petition in the first instance to the Attorney-General, who, (a) 2 State Trials, 1267; Elsynge, 49.

(b) 1 Blackstone's Comm., 402. Opinion of Chief Justice Holt, 12 State Trials, 1190.

A scire facias is a judicial writ founded on judgments at law, letterspatent, and other matters of record, to enforce or vacate them. A scire facias to repeal letters-patent may be had by the King where his grant was founded on fraud or false suggestion; or if the letters-patent grant anything to the prejudice of a prior grantee, he may have a scire facias to repeal them. (2 Saunders's Reports by Williams, 71, 72 n.)

having received evidence of the claim, reports either in favour of or against the claim, or, as is most usual, recommends its reference to the House of Lords. The reference to the House of Lords is the usual course, but in some instances the peerage has been allowed without reference to the House (a).

It has been said, on very high authority, that the reference to the House of Lords is entirely discretionary in the Crown, and that without such a reference the House of Lords has no jurisdiction (b).

In the case of the Wensleydale peerage, however, which has been already referred to, the House of Lords referred the patent to a Committee of Privileges without a reference from the Crown. To the objection that without such reference the House could not question the validity of the peerage, it was answered that the House had a right of its own authority to inquire into a new patent, though it might not have power to examine into the claim of an old peerage, except upon reference from the Crown(c). It is to be observed also that the question which the House referred to its Committee of Privileges was not whether the Crown had power to confer the dignity of a Baron for life, but whether such dignity gave the right to sit and vote in that House.

(a) Hubback on Succession, pt. i. ch. 5.

(b) Lord Holt, C.J., in the Banbury case, 12 State Trials, 1196. Charles Knowles claimed to be Earl of Banbury, and in January, 1692, the House of Lords dismissed his claim. Subsequently he was indicted and arraigned in the King's Bench. He pleaded peerage as a bar to the jurisdiction of the court, and the court allowed his plea.

In another case (Prideaux v. Morrice, 7 Modern Reports, 13,) the court is reported to have said that the Banbury case, in which the Court of King's Bench determined a right of peerage, was a precedent not to be followed. A subsequent claim to the earldom of Banbury, in 1727, was disallowed without a reference to the House of Lords. (Hubback, ubi supra.)

(c) 5 Clark's House of Lords' Cases, 964, 967.

If any question be moved in Parliament for privilege or precedency of any lord of Parliament, it is to be decided by the lords of Parliament in the House of Lords, as all privileges and other matters concerning the Lords' House are. (4 Coke, Inst., cap. 77.)