baronage, some theory much more definite than had been conceived by the men of those times. No statute of limitations bars the claim to a peerage, and occasionally claims based on very ancient facts have to be discussed and decided.' (p. 78.)

When all, however, has been said, the ultimate decision must rest, not with political historians or writers on the English Constitution, but with the Committee for Privileges. The St John case (1914), for instance, has shown that the question, so keenly controverted of late, as to which was the first valid Parliament, is one which must of necessity be decided by the Lords themselves. For by 'valid' they mean valid for the purposes of Peerage Law; and Peerage Law, as 'settled' and 'ascertained' by themselves, has now, perhaps, less than ever in common with historical fact.

The historian is apt to look with, at best, a goodhumoured tolerance on peerage lawyers and their ways. Their methods, indeed, are not his; their conventions strike him as absurd; and their almost superstitious reverence for Coke is enough to drive him to despair. For Coke's authority is now shattered; I have boldly exposed his 'carelessness,' his credibility' and his 'fictions'; and the more closely his statements are examined, the more untrustworthy they become. Yet the latest text-book on Peerage Law, that of Sir Francis Palmer (1907), places Coke at the head of 'writers of authority on the subject' and claims that 'his statements of the law and his opinions are entitled to the highest respect, for he is one of the chief oracles of our common law.' No one has exercised so great an influence on the moulding of our Peerage Law; indeed, the doctrine that a barony was created by writ and sitting was not merely, as Sir Francis puts it, 'fully recognised' by him; it was invented by himself. We are, however, here concerned with Peerage Law as now settled, and not with the question whether its doctrines are historically sound.

Viewing from this standpoint the cases recently heard, we must treat the claim to an earldom as belonging to a class apart. The earldom of Oxford created by the Empress Maud and her son for Aubrey de Vere and his

heirs' was held under Charles I to be descendible to the heir-male, and became extinct with the last de Vere in 1702. But the recent claim was based on the hypothesis that there were two earldoms-the original dignity, now in abeyance between the heirs-general of the above Aubrey, and a later one limited to heirs male and created in 1392. This question really turned, as in the 17th century, on the effect of the parliamentary proceedings in 1392. For the claimant it was urged that the earldom ' restored,' but in tail male, on that occasion, was legally a new creation; in the view of the Crown it was the old earldom restored with a new limitation. Now only an Act of Parliament can validate a change in the limitation of an existing dignity, as in the case of the earldom of Arundel. What, therefore, had to be decided was whether the charter of restitution'de assensu Parliamenti nostri' operated as an Act of Parliament; and, if so, whether it should be construed as restoring an ancient dignity or creating a new one. Much of the ground had been already traversed in 1625-6, but I advanced the new argument that there was a uniform formula at the time for the creation of an earl, and that this formula was quite distinct from that which is used in the charter. This was vigorously, but unsuccessfully, disputed by Sir Robert Finlay; and the Committee promptly disposed of the claim by construing the charter as a restitution of the ancient dignity. This was the same conclusion as that at which Crewe, C.J., had arrived in 1626. The case, had it proceeded, would have presented interesting features, especially the question whether an earldom could fall, like a barony, into abeyance—a point which is still an open one in Peerage Law.

Turning from the earldom to the ten baronies, these can be dealt with as a single group, for they all belong to the same class. Loosely termed 'baronies in fee,' their existence is based upon the doctrine, derived, as I have said, from Coke, that a writ of summons, if followed by a sitting under that writ, creates a barony descendible to the heirs of the party summoned and sitting. It is not easy to find a formula which shall express this doctrine in its present extended form; Sir Francis Palmer states it as above when dealing with baronies by writ,' but in a later passage holds it essential that a sitting

shall be proved under the writ of summons relied on as creating the barony.' Yet, on the one hand, a series of cases, from that of Vaux (1837) onwards, has established the principle that a writ of summons may be 'presumed' from a valid sitting; and, on the other, the Committee has repeatedly admitted baronies in which the sitting has been much later than the writ of summons relied on as creating the barony.' 'It was held,' for instance, according to Sir F. Palmer himself, that the Mowbray barony was created by summons and sitting in 11 Edw. I,' although the date of that writ of summons was 1283, while there was no proved sitting till a later generation. Of recent cases Furnival and Martin show a discrepancy of date between the creative writ and the first proved sitting. In all these cases, therefore, the claimant-or, more strictly, the petitioner'—had the same task to accomplish. He had to prove the writ and sitting by which, according to the legal theory, a descendible barony was created; and he then had to prove himself to be one of the heirs in blood of a holder of that barony. The writ usually presents little or no difficulty, but the proof of a sitting is hard to obtain in the case of early baronies, the more so as it has, in strictness of law, to be proved by the records of parliament.' It is the duty of those who represent the Crown to watch with special jealousy any attempt to obtain a relaxation of this rule, for the necessary proof of sitting is the one effective barrier against a flood of claims to medieval baronies. The pedigree, although its formal proof may involve great expense, is rarely open to question, unless there is a marriage of doubtful validity or an 'extinction' difficult to establish. Yet, even when he has surmounted his troubles, the claimant has only proved that he is one of the co-heirs, for any one of whom, if the Crown is so pleased, it can 'call out of abeyance' the dignity he seeks to obtain. Indeed, the abeyance need not be determined' (i.e. ended) at all. The baronies of Wharton (1845) and Fitzwalter (1844) are among the five cases cited by Sir Francis Palmer 'in which an abeyance has been determined'; but it was not determined in either case.

To the public at large, baronies which descend, as it is vaguely said, 'in the female line' are a cause of frequent perplexity. By the doctrine of abeyance, which

was only developed in the 17th century, baronies which were last heard of five or even six centuries ago, and the very existence of which would probably be denied by historians, can now be claimed by the heirs in blood of those alleged to have held them. This has been the subject of much ridicule; and in the case of the recent claims it would seem, certainly, that the barony of Dudley, which only fell into abeyance in the year 1757, stands on a very different footing from that of Martin, for which the last summons was in 1325, or that of 'Strabolgi,' for which the last was in 1369. In the eye of the law, however, no such difference exists.

Of the ten baronies, in recent cases, claimed as being in abeyance, that of Latymer presented no difficulty; nor did that of Dudley, as no earlier date than 1440 was claimed for its creation. The barony of Martin also was well within what one may term 'the rules of the game'; the Cobham claim was recognised as valid, subject to an unreversed attainder, but the question of its precedence gave rise to an elaborate argument by Mr Cozens-Hardy, who contended, in his own words, for the proposition:

'That where you have a recorded sitting lower down, then under the circumstances of this case (and I am not concerned with other circumstances) you can throw back the date of the creation to the date of the earlier writ, and you need not prove the sitting of the first person to whom the writ was issued.'

Earl of Halsbury: 'I do not understand the logic of that -that because there has been a sitting and there has been proof of that sitting, therefore you are entitled to date the creation of the peerage from that which you admit, and must admit, would not be proof of a peerage. What is the logic of that?'

This criticism is obviously sound; and the position, I hold, is that which was taken by Lord Cottenham in the Hastings case; but counsel, disclaiming logic, produced such a weight of usage that the Committee were induced to pass this Resolution:

"That Henry de Cobham who was summoned to Parliament by a Writ dated the 8th January 6 Edward II (1313) was entitled to a Barony by Writ descendible to the heirs general of his body.'

As there was admitted to be no sitting till the time of Henry's grandson (1377), the above Resolution, taken as it stands, certainly implies that a writ alone could vest a descendible barony in a man who never sat. There is, as Lord Halsbury pointed out, 'no logic in that'; indeed, it is the doctrine against which those who represent the Crown have to be ever on their guard.

Of the remaining claims, that to Dynaunt was abandoned almost at the outset; the claims to Furnival and Fitzwarine raised the question of barony jure uxoris, though this only affected the precedence, not the existence, of those dignities; while the only question in the claim to Burgh was whether the creation should date from the first writ (1487) or from two generations later. In spite of long and stubborn argument, the Crown succeeded in proving that the later date was the right one, and thereby established the important point that, at least in this case, a cessation of writs for one generation might involve fresh creation. The Strabolgi and St John claims will be separately dealt with below.

Before proceeding to discuss the points that arose in these cases, I may perhaps be permitted to observe that in four cases the views I had expressed, before they arose, have now prevailed. Burgh has been accepted as a new creation under Henry VIII; the Fitzwarine barony has only been allowed to date from the days of Henry VI (though 1283 was claimed); Lord Cottenham's 'judgement' in the Hastings case has been, in effect, rejected by the St John decision; and the careless acceptance, by Lord Cairns and the rest of the Committee in the Segrave case, of the Parliament of 1283 has at last, it will be seen, been dealt with and not followed. This is by no means the only point that I have deemed it necessary to criticise in the Mowbray and Segrave cases (1877); and it is not improbable that, sooner than any one imagines, the attention of the House may have to be directed to the 'judgements' of Lord Cairns, Lord O'Hagan, and Lord Blackburn on that occasion. The main cause, however, of their questionable decision was that the Attorney-General, apparently, was without proper expert advice, and therefore took no objection to three 'Parliaments,' all of which would now be questioned, and failed, which was more important, to adduce rebutting