Page:The Complete Peerage Ed 2 Vol 4.djvu/713

APPENDIX H 691 Barony by Writ and Peerage Law " Peerage law," says Sir Francis Palmer, consists for the most part of rules evidenced by long established usage — usage which has prevailed from time immemorial, or has at least the sanction of some centuries. As points of peerage law from time to time arise, the question asked is always "What lias been the usage in such cases?" Once an ancient and well-settled usage is ascertained, it will govern the case as evidencing the unwritten law. For example, the rule that an hereditary barony is created by writ and sitting thereon is the result of usage. (') Custom, which in course of time hardens into law, is long plastic. Wc cannot say with any near approach to precision when a certain custom began. It necessarily follows that as peerage law grows out of custom or usage, there must be much of it that is ill defined at different periods ot our history. Indeed, it is doubtful whether there was any fixed rule ot law governing the descent of dignities in very early days. That there was a tendency tor them to follow the lands we have seen, but inheritance was subject to the will of an arbitrary sovereign who might wish to favour a relative or friend. Even the succession to the Crown was, according to modern ideas, quite irregular. The Conqueror's first son was supplanted by William Rufus and Henry; Stephen supplanted Maud; John followed Richard I, whereas Geoffrey's son Arthur had the prior claim. The law as to baronies by writ is held to have been ascertained by the Clifton case in i674,() though, as is observed elsewhere, to arrive at this law inferences require to be drawn from a decision which was restricted to the case then under consideration. The law is well settled that if a writ of summons to Parliament, in the form usual in the case of temporal peers, has been issued to a commoner, and the person so summoned has, in response to such summons, taken his seat in the House of Lords, and it does not appear that the summons was issued to him merely as eldest son of a living peer or peeress in respect of one of his parents' peerages, the person so summoned and sitting is to be taken thereby to have acquired what is called a barony by writ descendible to the heirs general of his body, and this is so even though the summons was issued to him by mistake. (') The application retrospectively of this modern law as to peerage has forced into undue prominence certain meetings of the King and the magnates which were only steps in the development of the chambers of legislature. According to the ignorance or misunderstandings of those who had to apply a law which was based on error, the years 1265, 1283, 1290, (*) Peerage Law in England, p. 19. () See post, p. 706. if) Peerage Law in England, by Sir Francis Palmer, p. 38. In practice the law has gone further than this, for it has frequently decided that a man who was summoned but did not sit was entitled to a barony inheritable by his heirs general if one of his descendants could be proed to have sat.