But there is far more than this. The visitation is actually at variance with the proposition it was adduced to prove. It makes the two serious errors of styling Hugh Lord St John,' though he never became so, and of making Constance his heir, instead of his co-heir. Here, then, we find that the doubt suggested by the long interval of time is amply confirmed by the serious errors which the document actually contains. However anxious the heralds may be to assert the authority of these visitations, the time has come, I think, for the Crown to insist at least upon their scrutiny by an independent expert before they are accepted in evidence. Their Lordships, to judge from their observations, would probably approve this precaution. In the Burgh case Lord Robert Cecil claimed, as counsel, that it does appear that an extract from these visitation books was received in the Fauconberg case.' On the AttorneyGeneral rightly observing that it was objected to,' he replied, 'Anyhow it was accepted, and it is now printed in the evidence.' Lord Robert was misinformed. pedigree in question (that of Strangwayes) was not accepted and is not printed in the evidence. Mr Asquith claimed that it was admissible as a visitation pedigree, but the Committee were not favourable and he did not press it (Fauconberg Minutes, p. 129).

The

Lord Robert justly cited Cruise, 'a great authority on these points,' as stating that 'original visitation books, or, where the originals are lost, authentic copies of them,' are evidence. But Sir Francis Palmer is silent as to any but originals; and the phrase 'authentic copies' may have escaped attention. For the heralds' view on this point I will quote Mr Wollaston, who put it thus to the Committee:

'I should like to say, with regard to these visitations in general, I think they are considerably more accurate than Lord Sheffield has suggested. As one of his Majesty's Heralds myself, I must apologise to your Lordships if I say that some of the criticisms which have been directed against them have been directed against copies which are discovered in the British Museum, which have been altered and are not the same as the originals at the Heralds' College.'

One is familiar with this explanation, which, it will Vol. 224.-No. 444.

F

be seen, does not explain the errors above in the Hampshire Visitation of 1623. But is it, one ventures to ask, certain that all the originals' are at Heralds' College and only 'copies' at the British Museum? Mr Wollaston, indeed, may not have intended to imply so much as this; but, in case his words should be so understood, one may say something on a point which might arise before the Committee for Privileges.

As the heralds may be sensitive on this point, I will here rely on the testimony of the late Dr Marshall, who became a member of their body. In the preface to his edition of the Wiltshire Visitation of 1623 this wellknown genealogist wrote:

'The five western counties, Cornwall, Devon, Somerset, Dorset, and Wiltshire, were visited by St George and Lennard, as deputies to Camden, the two first in 1620, and the others in 1623. The original Visitations, signed for the most part by the gentry whose pedigrees were entered, are now part of the Harleian Collection of MSS in the British Museum being without question original documents, which, either from carelessness or dishonesty, have escaped from their proper custodians, the Officers of Arms.'

The Wiltshire Visitation, indeed, in the British Museum is alleged to have been admitted in evidence, as the original, at Guildford Assizes in 1718. It is also Dr Marshall who states, in his Notes on the Visitations, that the Kent Visitations of 1530 and 1592 in the College are but 'copies.' Again, the late Mr Joseph Foster, who, with the assistance of a member of the College, edited the important Yorkshire Visitation of 1584-5, observed in his preface, praised by Dr Marshall, that the original copy of Glover's Visitation was purloined from the College, and the volume now in use is a "copy" presented at a later date.' Now this is the very visitation that Mr Asquith wanted the Committee to accept in the Fauconberg case. Nay more, it is that which in the Conyers case (1798) Windsor Herald . . having been sworn. . . described to be an original Visitation of the County of York made in 1584 and 1585 by Robert Glover.' Further, it was that which in the Shrewsbury case (1857) was duly received, York Herald, who produced it, being examined by the

Attorney-General 'to satisfy himself that the return came from the Heralds' College, where it had been kept like all other visitations, having been there received as a return made under the Commission' (of Queen Elizabeth)! There is, it will be seen, a strange discrepancy between the above statements.

So long as the heralds' volumes remain jealously guarded in what Dr Marshall termed 'the hidden recesses of the venerable Institution in Doctors' Commons,' it is impossible to say how many are original and how many are copies. This, surely, confirms the view that those who represent the Crown should be given full opportunity of examining these volumes before they are 'put in.' One may also fairly inquire how 'authentie copies' are legally proved to be so, and whether original visitations preserved in the British Museum are superseded as legal evidence' by mere copies from them preserved in the College of Arms.

6

Two of the cases lately dealt with raised the question of what are known as Baronies jure uxoris, although they would be more accurately described as Baronies 'by the curtesy.' The curtesy of England—'la corteyse dengleterre,' curialitas Anglie-gave to a husband the tenure of his wife's fief for his life after the birth of a child defined in Scottish law (which long retained the principle) as 'ane barne or heire herd cryand betuix foure walls,' and in an English document of the 14th century as born 'alive, with all its members right, who received baptism.' This tenancy by the curtesy of the wife's fief might give the husband a right to a summons in respect of that fief if, on the territorial principle, its tenure gave that right. But, as this principle is no longer recognised in Peerage Law, the right has to be found in the wife's 'ennobled blood.' It is, therefore, necessary to prove the existence of a barony vested in her own ancestors and created by writ and sitting. As against this it has been argued, on behalf of recent petitioners, that a writ and sitting in the person of the husband of the heiress should be accepted as proof per se that a barony was vested in his wife. If so, the barony claimed should, it was urged, be dated back to the earliest summons of her ancestors.

At first sight this might seem to be a mere question of precedence and, as such, of little consequence to the Crown. But, as representing its interests, an AttorneyGeneral is bound to watch most jealously any attempt to establish the existence of a barony 'by writ' without producing any valid proof of sitting. I showed in 'Peerage and Pedigree' that the decision in the Fauconberg case had left the question in doubt, owing to the unexplained and unfortunate addition of the words 'in right of his wife' to the perfectly correct Resolution which was moved by the Lord Chancellor ; and I observed that, if claims were made to the baronies of Furnival and Fitzwarine, we might learn if the heiress of a non-existent barony could transmit that barony to her husband,' and how a barony can be 'vested in' a man in right of his wife, when there was no recognised barony, as the law is now settled, to which she could have succeeded. Petitions for both the above dignities have been presented since then; and in the Fitzwarine case, the later of the two to be decided, this question was the subject of a long and important judgment' by Lord Dunedin, and the Committee unanimously upheld the Crown's contention. The barony, therefore, was definitely dated, not from 1295 (or 1283, as claimed), but from the summons to and sitting of Sir W. Bourchier, Lord Fitzwaryn in 1455.' This date, however, though that of his first sitting, was not that of his first writ, 1449, which would doubtless have been allowed, in accordance with the usual practice, if it had been claimed. But the Attorney-General's report shows that the earliest writ produced to him was that of 1455, while that report and the printed case, signed by Mr Fox-Davies, show that the Parliament Roll of 39 Henry VI was actually cited for the sitting of Sir William's son Fulk, though it relates to his father, while in the printed case the Close Roll of 12 Edward IV was no less wildly cited as that of 12 Henry VI. Intolerable trouble has been caused to those who represent the Crown by such carelessness as this.

In the other case, that of Furnival, the question was no less fully argued; and it was at least established that a sitting by the husband of the heiress cannot prove per se the existence of a barony in her, but must be

supplemented by evidence, not merely of writs, but of a sitting in her own ancestry. So far, this was satisfactory; but the proof of sitting accepted was very much the reverse. The only proof vouchsafed in petitioner's printed case was the occurrence of Thomas de Furnival as a witness to a royal charter early in 1300. The Crown objected both to the proof and to the mode of proof. It was shown that the date of the charter was eight days after the prorogation of Parliament; and it was urged that such a charter could not be, in any case, a 'record of Parliament.' We may add that a previous and unsuccessful attempt had been made, in the Hastings case, to use this evidence as proof of sitting. A second string' was then unexpectedly produced to prove a sitting, namely Thomas de Furnival's attestation to a royal charter granted at Carlisle in 1307, when he had been summoned to a Parliament there held. The late Lord Ashbourne, who delivered the principal 'judgment,' held that this charter made it 'highly probable' that he sat in that Parliament; and indeed, to the lay mind even of a critical historian, it would certainly seem clear that he and his heirs were peers. Yet such a conclusion from the evidence is, if historically right, wrong in strictness of law. We had here, in fact, one instance the more that 'hard cases make bad law.' No one would allege that a royal charter is a 'record of Parliament,' or that those who witnessed it are thereby proved to have taken part in 'a parliamentary proceeding.' Wishing to do substantial justice, their Lordships were resolved that petitioner should not suffer for the want of that technical proof of sitting which the law, as long settled, undoubtedly requires. But in thus departing from the rigour of the game' and accepting such evidence as proof of sitting, they have opened the door to claims which, till then, were hopeless. Indeed the charter in question alone would supply the proof wanting for at least one barony.

Probably the most important question, alike for the constitutional historian and for the student of peerage law, which recent decisions have helped to determine, is that of the first valid Parliament' from the standpoint of the House of Lords. When Stubbs wrote his 'Constitutional History,' he cautiously observed (Ed. 1875, II,