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the office of earl marshal were the usual authorities to whom claims were referred, but subsequently the practice of referring them to the house of Lords (the first example of which was temp. Henry VI.), became more frequent, and since the reign of Charles II. all claims have been uniformly decided by that tribunal.
When a dignity has lain dormant for any considerable period, the lord chancellor will not issue a writ of summons to the claimant without a full examination of his right to the title.
It is necessary therefore that the claimant should present a petition to the king, through the secretary of state for the home department; these petitions are in the first instance referred to the attorney-general, before whom the claimant lays a statement of his case, produces his evidence, and if necessary is supported by his counsel.
If the claim be clear, and the evidence sufficient, a writ of summons at once issues at the recommendation of the attorney-general; but if otherwise, he advises the king to refer the petition to the house of Lords. Whoever opposes any claim to a title, may enter a caveat with the attorney-general, and be heard by his agent or solicitor, and counsel ; if it turns out that others are closely interested in the dispute, it is the duty of the attorney-general to give them notice. The house of Lords therefore act not 80 much judicially, as in the capacity of advisers to the Crown, for the latter has always been the authority of dernier ressort, although its advisers have at different periods been the high constable, the earl marshal, the attorney-general, or the house of peers. When the petition is referred to the Lords, that body order it and the attorney-general's report to be considered by their committee of privileges, before whom the petitioner must substantiate his claim; the attorney-general always attending on behalf of the Crown and of the peers, to prevent the admission of any one who fails to prove an indisputable right to a dignity.
While the claim is under consideration, any person may oppose it by petition; all parties discovered by the committee to be interested in the claim are duly noticed of the nature of their interest; and on every occasion of difficulty the committee resort to the assistance of the judges.
The matters necessary to be proved of course consist in two main propositions; viz. the creation of the dignity and the pedigree of the claimant. The former is proved in titles created by writ of summons: First, by production of the writ; or, secondly, by proof of existence of the title, prior to the eleventh of Richard II. (which was the first year of the creation of a dignity by patent), and this proof must be derived from the records of parliament.
Dignities conferred by letters patent are proved, 1st, by the actual production of the original letters, or 2ndly, by proof of the enrolment of the patent.
The pedigree of the claimant must be deduced from the person first ennobled ; and in cases of baronies by writ, the extinction of all descendants of other co-heirs, or the pedigrees of existing co-heirs. must be shown, in order to clearly exhibit the relative claims. Formerly, the pedigrees were proved on the attestation of a herald; but now, the evidence must
be such as is admissible in a court of common law upon a trial involving pedigree before a jury.
Upon the abolition of military tenures at the Restoration, the parish registers became the chief source of evidence respecting baptisms, marriages, and burials, When these are produced, it must be by the vicar, rector, or other person entitled to their possession.
The official books of the Heralds' College are received, but not the private collections of any individual herald.
Wills and letters of administration, marriage settlements, and other deeds, inscriptions on tomb-stones, and, to a certain extent, hearsay evidence, are all admissible as primary or as secondary proofs of pedigree.
When the committee of privileges in the house of Lords resolve in favour of a claimant, then the Crown orders a writ of summons in accordance with their report; but the usual form of an unfavourable resolution is, that the petitioner had not then made out his claim to the dignity, thus the production of further evidence, if subsequently discovered, is by no means precluded.
PRIVILEGES OF THE PEERAGE.
“ Behold ! it is the privilege of mine honours,
King Lear, act v. sc. 3.
The privileges which belong to peers are of two kinds, viz. those which they enjoy in common with
the members of the lower house, and those which are peculiar to themselves. Such immunities as members of the house of Commons participate in are styled "privileges of Parliament," and have all an especial bearing upon the due performance of their legislative functions. These will be found under the head “ Parliament.” Not only do the members of the house of Lords, however, participate in the privileges of Parliament, but all peers, whether portions of the hereditary branch of the legislature or not, are invested with certain rights, immunities, and exemptions, which it is the purpose of the present article to detail. Although these privileges at first appear wholly unconnected with the principle of protecting public functionaries in the discharge of public duties, yet their origin is strictly of this character, and their propriety essentially dependent on this general rule. For although it is perfectly true that these privileges extend to Irish and Scottish peers, to persons in fact who have no seat in the house of Lords, yet it must not be overlooked, that all the nobles of the realm are the he. reditary councillors of the Crown. It is, however, not to be understood from this, that every peer is hereditarily a member of the Privy Council, but that they collectively constitute " the great council of peers," which the king may call together either in time of parliament, or when no parliament is in existence. Anciently conventions of peers were very frequent, and though now fallen into disuse from the regularity of the sittings of parliament, yet sufficient traces of them remain to justify the policy of peers' privileges, even on the general rule that immunities
should only accompany the exercise of important functions. Thus it is the undisputed right of every peer in the realm to demand at any time a private audience of the sovereign, and to represent, with due consideration and respect, his views of all such matters as may be important to the public welfare. The great check which this affords over the domination of any set of ministers is quite manifest, and the value which has been attached to the privilege is evidenced by the fact, that in the articles of impeachment exhibited against the Spencers in the reign of Edward II., it was proved that they prevented the king from giving any audience to his hereditary councillors except in their presence; and for this they were banished the kingdom. Though the solemn assembling of all peers in convention by writ has fallen quite into disuse, yet on several occasions the Crown has called together and consulted such of the nobility as could conveniently be assembled, as did James II. after the landing of the Prince of Orange; and the Prince of Orange himself consulted many of the nobility previous to the meeting of the Convention Parliament by which he was called to the throne.
In all misdemeanors, as libel, riot, perjury, conspiracy, &c. peers are tried like commoners by a jury, but when accused of treason or felony, or of misprision of either, a nobleman must be tried by
An essential constituent of all judicial inquiries is that the judges should be unprejudiced, and of an equal station in society with the accused. In these important cases, therefore, the nobility are entitled to trial by their peers; and this privilege,