Chief Baron Parker, in giving his opinion in the Ferrers Case (2 Eden, 376), says that "this is a posthumous work printed in 1658, many years after the death of the learned judge, and so incorrectly that it is not to be depended on." John Selden. His contribution to the subject is contained in his "Titles Selden. of Honour," published in 1614, second edition 1631, and in his "Privileges of the Baronage of England," published 1642. (See Wilkes' complete folio edition of Selden's works.) Selden was born in 1584, and died 1654. He was a man of extraordinary learning, scholar, lawyer, historian, statesman, and antiquary, and this catholicity of study and research exhibits itself in his "Titles of Honour," which ranges over all countries and all ages, from the Kings of Rome to the Counts Palatine of Germany, and the Thanes and Earls of England. Sir William Dugdale, the learned writer, published in 1675 his Dugdale. valuable work intituled "The Baronage of England," &c. It is a work of infinite value, crowded with references to the records in verification of the statements contained in it. He published other works of great learning and value. Arthur Collins' (1690-1760) "Proceedings, Precedents and Argu- Collins. ments on Claims and Conclusions concerning Baronies by Writ and other Baronies," published 1734. This is a most valuable work, and is constantly referred to by the Redesdale Committee and others. Another standard work of his is Collins' "Peerage, Genealogical, Biographical and Historical," in 9 vols., 1812. Thomas Madox, who, at the close of Queen Anne's reign, was Madox. historiographer, wrote a history of land honours and baronies and tenure in capite, intituled "Baronica Anglica," &c., which was published in 1736 and re-issued in 1741. Madox was one of the most industrious of historians and antiquaries in his researches amongst original records. Comyn's Digest. This digest appeared in the year 1762 in Comyn translation from Norman-French. It was compiled by Chief Baron Comyn, and it has always been accepted as a work of very high. authority. (1 Maule & Selwyn, 363.) Lord Kenyon, in adopting an opinion expressed in it, said: "Though no authority is referred to in support of it, yet the opinion alone of so able a lawyer is of great authority" (Milner v. Milnes, 3 Durn. & E. 631), and added that he was considered by his contemporaries as the most able lawyer in Westminster Hall. So Best, C. J., citing Comyn's opinion in his Digest, said: "This he lays down on his own authority without referring to any case, and I am warranted in saying we cannot have a better authority than that learned writer." (Hudson v. Revett, 5 Bing. 387, 388.) William Cruise wrote at the commencement of the nineteenth Cruise. Redesdale century his work intituled "The Origin and Nature of Dignities or Titles of Honor." This work passed into a second edition in 1823, and the author died in 1824. The work is one of great value, and has been constantly referred to in peerage cases. In the De Lisle Case (Nicholas' Report, 204), Lord Redesdale referred to it as "an extremely useful compilation"; and in the Berkeley Peerage Case (1861, 8 H. L. C. 122), Lord St. Leonards described Cruise as a useful but not a very accurate writer. In the recent Norfolk Peerage Case his work was frequently referred to. The Reports of the Committees appointed to search the Journals of the House, Rolls of Parliament, and other records and documents for all matters touching the dignity of a peer of the realm (in this work called the Redesdale Committee). These Reports were dated as of the date when they were ordered to be printed by the House. The first Report, commonly so called, 25th May, 1820. The second, 26th July, 1820. The third, 29th July, 1822. The fourth, 4th July, 1825. It is well known that these Reports were written by the first Lord Redesdale, who died 1830, aged 81. In the Devon Peerage Case (1832, 2 Dow & Cl. 204), the Lord Chancellor said, with reference to the third Report: "It is the report of a Committee; it is the opinion of a very learned man. . . . It is the report of one of the most learned lawyers, deserving the most high and profound respect." So in the Wensleydale Case (5 H. L. C. 958), Lord Cranworth, in his speech in the House of Lords, referred to the third Report as having been prepared "under the careful supervision of Lord Redesdale," and then treats him as the author. So in the Berkeley Peerage Case (8 H. L. C. 95), Lord Cranworth referred to "the late Lord Redesdale, supposing him to be, as he is understood to have been, the author of the Reports on the dignity of a peer of the realm." Again, Lord Davey, in the Norfolk Peerage Case in 1906, said: "All the Reports were written by Lord Redesdale." The Reports are in five volumes, with valuable appendices. (1) Dealing with the decisions and resolutions of the House on (2) Dealing with the nature and origin or creation of dignities of peerage and the succession thereto. (3) Dealing with the origin of the dignity of a peer, the different degrees of the dignity, and the means by which a right to the dignity may be acquired. (4) Dealing with the subject of forfeiture for treason, &c. These Reports and the appendices represent an enormous amount of research, and form a most valuable collection of relevant facts. The conclusions of law at which the Committee arrive have, in some cases, been adopted by the House of Lords-as, for example, the conclusions as to peerages by tenure; but for the most part the Committee's conclusions or suggestions in regard to peerage law have been rejected by the House or have been otherwise proved unsound. For example, the Committee repeatedly urge that the doctrine that a writ followed by a sitting creates a peerage should not be applied earlier than, at any rate, the time of Richard II., whereas the doctrine has been subsequently held by the House to apply as from the time of Edward I., the Mowbray Case having recognized a peerage, as created by sitting, as dating as far back as 11 Edw. I. Again, the Committee emphasize strongly the danger of error which may arise from applying the rules as to land to peerages; yet the House has again and again since the Reports disregarded these suggestions and applied those rules. Again, the Committee, in effect, recognize life peerages as valid, but the House, in 1856, took the opposite view. These are only some examples of the cases in which the House of Lords has found itself unable to adopt the conclusions of the Committee. Notwithstanding the respect due to the learning and research displayed in the Redesdale Committee's Reports, the conclusions laid down therein are in no sense binding on the House of Lords. Thus, in the Devon Case (2 Dow & Cl. 200), reliance was placed by a counsel. on passages in the Reports, but the Lord Chancellor said: "The House is not bound by this. It is the Report of a Committee; it is the opinion of a very learned man; but then, if it is not binding against you, no more is it binding for you, so there is no use in citing the authority. It is the report of one of the most learned lawyers, deserving most high and profound respect." In reply to this, counsel said: "I am aware that there are many statements in these Reports which are not founded in law; at least, which are very much questioned by men of great legal judgment." The Lord Chancellor replied: "There is no doubt of that." Nevertheless the Reports of the Committee are constantly referred to in peerage cases as a great repertory of facts and information, and not the less because it commonly happens that both sides can find passages which support their diverse conclusions. 28 The Crown the creator. Earldoms. Dukedoms and Marquisates. Baronies. CHAPTER IV. MODES OF CREATION. ALL At the present day, peerages, whatever the rank they confer, are always created by letters patent of the Crown under the Great Seal, and this mode of creation has been in exclusive use for several centuries. In ancient times no such uniformity prevailed, and the mode of creation varied considerably. 1.-(a) From the Conquest downwards for several centuries the usual mode of creating an earldom was by oral grant or declaration of the sovereign, accompanied by the ceremony of girding with a sword by way of investiture. The grant, in early days, very commonly conferred the right to the third penny of the Pleas of the county (infra, p. 34), and generally there was a charter recording, directly or indirectly, the grant and the investiture. After Edward II., and until the end of the reign of Richard III., this oral declaration and investiture sometimes took place in Parlia ment. (b) An earldom was sometimes created by Act of Parliament in the form of a Royal Charter, expressed to be made with the assent of Parliament or ratified by Parliament. 2. From the time of Richard II. dukedoms and marquisates were for some centuries commonly created by charter, but, like carldoms, they were sometimes created by investiture in Parliament. 3. Viscounties have always been created by letters patent. (a) Before the time of Edward I. it is doubtful whether baronies, as separate and distinct inheritances independent of the tenure of land, existed. The tenants in capite of the Crown, or some specially qualified section, were the Barons, and it was the tenure of land which conferred the qualification for, or the right to receive, a summons to the great councils of the realm. See further as to baronies by tenure, infra, Chap. XVI. inheritances were first introduced: they were created by (c) In 1387 came the first creation by patent, next in 1433, and patent. The first case in which a peerage was created by letters patent was First peerage in 11 Rich. II., 1387, when John de Beauchamp of Holt was created by letters Lord of Beauchamp, Baron of Kyderminster, with a limitation to him in tail male (App. No. 33). The next instance was in 11 Hen. VI., 1433, when the barony of Faunhope was granted in tail male (App. No. 42). The next, in 1440, when the viscounty of Beaumont was granted by letters patent (App. No. 43), and the next in 1441 when the barony of Sudeley and Milbroke was granted. But from 24 Hen. VI. (infra, p. 55), the practice of creating peerages by charter was, for the most part, superseded by the use of letters patent. modes of The Redesdale Committee thus expressed themselves (third Report, Redesdale p. 40) on the subject: "Creation of the dignity of peerage has been Committee on said, by Sir Edward Coke, to be in two manner of ordinary ways; by creation. writ and by letters patent, and by another and extraordinary way of creation, namely, by the King in Parliament. The creations by the King in Parliament have been, as far as they appear on the Rolls, creations by parol, and by investiture with the dignity created; and upon such creations in Parliament, letters patent of the King, declaring the facts of parol creation and investiture, seem to have been generally, if not always, delivered to the person on whom the dignity was conferred; and there seems to have been no difference between such creations in Parliament and creations out of Parliament, except that in cases of creations in Parliament the assent of the Parliament to the creation is frequently stated, and the person created being present in Parliament, and there invested with the dignity, took his seat in Parliament immediately, according to the degree of dignity with which he was so invested, without any writ calling him to the Parliament by the name of dignity then given to him. If advanced only in dignity, being before a peer, he had been summoned by his former name of dignity; but if not before a peer, he was brought into the Parliament by the King's verbal order; and being invested with this new dignity, took his seat in Parliament according to the |