This was the commencement of a practice which was destined eventually to supersede all other modes of granting peerages, whether by oral declaration, by charter, or by writ and sitting.

of charters

In subsequent reigns the forms of peerage charters and patents Modern forms continue to grow in length and elaboration, but with the nineteenth and patents. century came a change in favour of a form of greater simplicity, as appears from the patents set out in the Appendix.

The oldest charters, with few exceptions, merely place on record the fact that the Crown has granted a peerage, indicate the limitations, and close with the common clause emphasizing the Crown's desire that the peerage shall be enjoyed in accordance with the limitation. expressed. This clause usually began with the words quare volumus. In one instance, however, the charter is not a mere record, but purported to be an actual grant of a peerage. (See infra, p. 242.)

Later on charters creating earldoms merely refer to the grant of the third penny, and appear to treat this as in some way equivalent to a grant of the peerage. (See infra, pp. 243, 245.) Such a mode of creation did not last long. The words reciting the investiture of an earl by girding with a sword first appear in the charters of Edward II.; they remained part of the customary formula for many centuries. With the charters of the time of Edward III. and Richard II. lengthy preambles and special limitations came into vogue, and these are found increasing in elaboration under the Henries IV., V. and VI.

Charters and patents often contain clauses apparently superfluous, but really formal or declaratory. The quare volumus, already referred to, is one of these. So are the clauses in use since Henry VI.'s time, and still inserted in modern patents, granting to the patentee the right to be called and styled and reputed as a peer by the name mentioned in the patent, and to have a seat and place and voice in Parliament and elsewhere.

Sometimes a clause appears in a charter which obviously has reference to a statute, and must be read in connection therewith. Thus, by 1 Hen. IV. c. 6 (1399), it was enacted to the intent that the King should not be deceived in his grants or gifts, annual or in fee, or in any office, or if they should thenceforth demand of the King any lands, tenements, rents, offices, annuities or other profits, should make express mention in their petition of the value of the thing so demanded, and also of that which they have had of the King's gift or of other his progenitors or predecessors before, otherwise the letters. patent to be void.

Statutory

condition for voiding patent for deception.

Apparently before long this statute was found irksome, and Provision accordingly, acting on the assumption that it was merely for the King's statute. waiving protection, and therefore that he could waive the disclosure required.

Whether any dignity above a barony created by writ.

Effect of

invalid grant where

by the statute, a clause was commonly inserted in petitions for grants and in the letters patent and charters, thereby waiving compliance with the statute. Thus, in the patent creating the Barony of Beaumont in 18 Hen. VI. (R. C. V. 235), the patent, after granting the peerage and an annuity, concluded with the words: "Eo quod expressa mencio de aliis donis et concessionibus eidem Johanne per nos ante hac tempora factis nec de valore eorumdem juxta formam statuti inde editi et provisi in presentibus minime facta existet non obstante."

This clause, with more or less variation, soon came into general use, and remained in use for several centuries.

Again, as to the meaning of the words "auctoritate parliamenti" at the conclusion of a charter or patent, see supra, p. 51.

As to the reference to the third penny in grants of earldoms, see supra, p. 34.

As to reference to girding and investiture, see supra, p. 33, and infra, p. 57.

Has any dignity, except that of barony, been created by writ?

There is no recorded case of a dignity above that of barony having been created by mere writ and sitting.

From the time of Edward I. a dignity above that of barony has always been created, or the creation evidenced, by charter or patent or by investiture, e.g., girding; and there has always, or almost always, been some record of the limitations of the dignity.

A mere writ and sitting might possibly be sufficient to found a presumption of a higher existing dignity having been duly created by investiture or patent.

At the present day, and as regards the past, the dearth of any evidence of a dignity, other than that of barony, having been created by summons and sitting, is significant, if not conclusive, against such creations having taken place.

A case, the converse of those just discussed, presents rather more difficulty. Suppose a patent invalidly granted, and that the grantee is summons and summoned and sits in Parliament; does that create, or has that in the sitting, query. past created, a peerage in him and his heirs or the heirs of his body? In the Wensleydale Peerage Case (5 H. L. C. 958), this point did not arise, for the patent was laid on the table. (See also Norfolk Case, (1907) A. C. 10.)

The girding

in the case of dukes.

Investiture Generally.

As appears above (p. 33), the grantee of an earldom was usually given investiture of his earldom by girding. The same ceremony seems to have been adopted in the investiture of other dignities

dukedoms and marquisates, for instance. Thus, in 11 Edw. III. the King, creating his son Duke of Cornwall, uses the words, "et gladio cinximus secut decet"; and a few years later (25 Edw. III.), in creating Henry, Earl of Lancaster, Duke of Lancaster, the creation is followed by the words, "et ipsum de nomine ducis dicti loci per cincturem gladii presenciabiles investimus."

So when his grandson, Richard II., created his uncle Edmund Duke of York, though the charter says nothing about girding, the Parliament Rolls do, and they record the ceremony thus: "Ipsumque ducem de predicto titulo nomine et honore per gladii cincturam et pillei ac circuli aurei suo capiti impositionem maturius investivit ac cartam predictam in plenum testimonium perpetuam que memoriam et fidem premissoram, manibus suis propriis eidem ducis tradidit et realiter liberavit. Et capto immediate ejus homagio pro ducatu predicto cum vultu hilari inter pares parliamenti in gradu celsiori sedere mandavit quod idem dux gestancius incontinenti fecit." See also the investiture of the Duke of Gloucester, solemnized in like manner at the same time. (V. 65.)

The making of John de Beaufort Marquis of Somerset (21 Rich. II.) is marked with the same ceremony: "Et cum de stilo titulo ac nomine et honore marchionis loci predicti per cincturam gladii investimus habentum," &c.

It will be enough to add a few more instances. They go to show that the ceremony of investiture was becoming more elaborate as time went on. Golden coronets, rings, wands, &c. are added to the simple rite of girding. Thus, in 21 Rich. II., Henry, Earl of Derby, was created Duke of Hereford with these words: "In ducem Herefordiæ cum titulo stilo ac nomine et honore eidem debitis prefecimus ac inde ibi presentialiter per appositionem cappe suo capiti ac traditionem virgæ aureæ investimus."

In the charter of 1 Hen. IV., creating the King's son Prince of Wales and Duke of Cornwall and Earl of Chester, the words are: "Per sertum in capite et annulum in digito aurea et virgam auream investimus."

When Edward IV. created his brother Richard Duke of Gloucester the words used are: 66 In ducatu illo cingendo sibi gladium ac per appositionem cappe capiti suo investivimus ut est moris."

In Edward IV.'s creation of the Marquisate of Montagu, the words V. 370. used are: 'Per cincturam gladii insignimus ac unam capam honoris et dignitatis super caput suum imponimus."

Whether in the case of baronies there was any ceremony by investi- Investiture in ture is in doubt. (See Cruise, p. 75.) The earliest patents conferring baronies say nothing about investiture.

case of baronies.

Modern patents always contain a clause dispensing with investiture. Dispensing

with

investiture.

Date of peerage.

From what date does the creation of a peerage take effect?

1. In the case of baronies by writ, the creation dates from the time when the person summoned takes his seat in Parliament as a temporal peer, such sitting, under the authorities above cited, perfecting the title.

2. In the case of peerages created by charter or patent, the creation takes effect from the date of the charter or patent, and if no date be fixed then from the execution of the charter or patent. (Infra, p. 64.)

If the charter or patent does not create but only records a creation, as was often the case in the old peerage grants, the time of the creation resolves itself into a question of fact, that is, the time at which the parol creation or investiture took place.

CHAPTER V.

CONSTRUCTION AND INTERPRETATION OF CHARTERS AND

LETTERS PATENT.

THE construction or interpretation of Royal Charters or letters patent What rules of the Crown, creating or recording the creation of peerages, is apply. governed by the same principles and general rules as govern the construction or interpretation of all written instruments, subject, however, to certain qualifications due to the fact of peerage grants being an exercise of the prerogative of the Crown.

The object of all interpretation is to ascertain the intention as expressed by the words used in the instrument, and in order to do this it is a primary rule that the whole instrument must be looked at and read together.

If the words used are clear no more is necessary to ascertain the intention; if, on the other hand, the words are not clear, or if any word, clause, or expression is equivocal or ambiguous or of doubtful import, it is for the interpreter to determine what is the true meaning of the terms used. Ordinary words must be read prima facie in their popular sense; technical or scientific terms must be read in their technical sense; words in an ancient document in the sense they bore at the date of the document.

If the words or any of them are ambiguous or equivocal, that Ambiguity. construction must be adopted most in accordance with what appears

to be the general intention of the author of the instrument as expressed

therein.

These general rules are well summed up by the judges in Shaw v. Shaw v. Wilson, 1842 (9 Cl. & Fin. 355), who also explain when extrinsic Wilson. evidence is admissible to interpret an instrument.

"It is unquestionable," said Coleridge, J., "that the object of all exposition of written instruments must be to ascertain the expressed meaning or intention of the writer, the expressed meaning being equivalent to the intention, and I believe the authorities to be too numerous and clear to make it convenient or necessary to cite them. Where language is used in a deed which in its primary meaning is unambiguous, and in which that meaning is not excluded by the