Page:The Complete Peerage Ed 2 Vol 4.djvu/716

694 APPENDIX H The Facts Concerning Baronies by Writ In all the many peerage cases which have come before the ancient Earl Marshal's Court and the modern Committee for Privileges, there has never been produced a single piece of evidence that the barons of Edward I, Edward II, and Edward III, by reason of a summons to Parliament, were hereditary members of the House of Lords, which, as a matter of historical fact, did not really develop into anything nearly approximating to our upper chamber until about the end of the 14th century. (^) There is another fact which must be clearly kept in mind. There has never been discovered any instrument purporting to create a barony inheritable by heirs general. Peerage baronies in early times were created by patent, in which the limita- tion was either in tail male or all words of inheritance were omitted. That baronies inheritable by heirs general were created by writs of summons before the 16th century is a mere assumption. In their Fourth Report Lord Redesdale's Committee say: Letters patent state the extent of the grant which they create; but a writ of summons is, in itself, merely personal; and it seems to be only an Inference of law, derived from usage, which has extended the operation of such a writ beyond the person to whom it was directed. When usage is supposed to have first warranted this inference of law ... is a question which it may be fit for the House deliberately to consider; and to fix a point of time before which the evidence of issue of a writ, and of sitting in Parliament imder that writ, shall not be deemed sufficient evidence of the creation of an hereditary dignity of Peerage; otherwise claims may be made which have not been thought of for centuries. . . . The Committee who made the Report of 1 2th July 1819 have supposed that the statute of the 5 th of Richard the Second C") might be considered as tending to fix that point of time . . .(■=) (*) Writing of the parliaments of Edward II, Professor Tout says: "The actual proceedings of these disorderly gatherings, where the magnates with their armed followers had the last and the first word in each discussion, had no doubt more affinities to those of a Polish Diet than to those of the orderly parliaments of more modern date." {Idem, p. 33). C*) In this Act (Statute 2, cap. iv) it is commanded by the King, with the assent of Parliament, that all who receive a summons to Parliament shall attend, unless they can show reasonable excuse, subject to fine and punishment according to ancient custom. " Et quelconq psone de mesme le roialme qava desore la dite somonce, soit il Ercevesq, Evesq, Atebe, Priour, Due, Cont, Baron, Baneret Chivaler de Contee Citezein de Cite Burgeis de Burgfe, ou autre singulere psone ou coialtee quelconq, soi absente ou ne veigne mye a la dite somonce, sil ne se purra resonablement & honeste- ment ent excuser devs le Roi nre S', soit arnciez &' autrement puniz selonc ce q ancienement a este usez deinz le Roialme avantdit en dit cas." {Statutes of the Realm, vol. ii, p. 25). (') Fourth Report, pp. 323-4. The passage in the First Report referred to above runs as follows: "... This statute of the 5th of Richard the Second, combined with the statute of the 15th of Edward the Second before noticed, may have given a more fixed character to the legislative body than it before had; preserving ... to the temporal