Page:The Complete Peerage Ed 2 Vol 4.djvu/730

 7o8 APPENDIX H Proof of Sitting While the proof of sitting in Parliament which is needed to make a writ of summons operative rests on no better authority than that of Coke, who has been proved by J. H. Round to have invented it,('') and though it is a very unreasonable condition, its application to the doctrine of barony by writ has served a good purpose in greatly restricting the success which might otherwise have attended many of the petitions for the determination of abeyances. The subject is of so little importance for us in this paper that we will dismiss it with the statements (i) That proof of sitting was no part of the law as to barony by writ in the year 1597. The fact is demonstrated beyond all question by the letter of Sir Robert Cccyll, printed ante, p. 701. The Queen, desiring to honour the son of Lord Thomas Howard, directed a writ of summons to Parliament to issue to the father, who could not have taken his seat as he was said to be in extremis. The writ alone, therefore, was then held to confer a barony inheritable by the son of the recipient of the writ. (2) The greater part of a century passed before the need of proof of sitting is mentioned in peerage proceedings. Abeyance Abeyance can only occur in the descent of a peerage granted in fee simple or tail general. It applies to all baronies by writ, but hitherto no legal decision has been given as to its application to any other degree of peerage. The principle on which abeyance rests is that the descent of a peerage being suspended by the existence of two or more coheirs, no one of them can make an exclusive title to the impartible inheritance. The peerage passes into abeyance, and the title to it remains for the time being in gremio legis but notwithstanding its abeyance, the peerage is still a subsisting entity. The law, however, is not without its remedy for this anomalous situation. The Crown by its prerogative can select one of the coheirs, or the heir of one of the coheirs, to take the peerage. Effect is given to the Crown's selection by the issue of a writ of summons in the case of a man, or of letters patent determining the abeyance in the case of a woman. If the coheir selected be already a peer, letters patent are issued, as in the case of a woman. Either mode of determination bestows the ancient peerage with the same limitation and with the old precedence on the person selected. If an abeyance be terminated in favour of a coheir whose issue subse- quently fails, the peerage goes to the next heir of the original grantee; and if such next heir be represented by two or more coheirs, it again falls into abeyance. (») Peerage and Pedigree, vol. i, pp. 166 et sqq.