Page:The Complete Peerage Ed 2 Vol 4.djvu/763

 APPENDIX H 741 The petitioner therefore conceiving, that by tlie same reason the hlood of lii» lineal ancestor, by that summons and sitting in parliament, in tiie time of King Edward I; being then ennobled, and there never having been any attainder in his family which might legally interrupt his claim to the honor of his said ancestor: so tiiat he had a just right and title thereunto. He therefore claimed the same place and precedence as his said ancestor anciently had and enjoyed. This petition was referred to the attorney ijeneral, sir William Jones, who made the following report on it. "I have examined the contents of this petition, and do find by a copy of the record, attested by the keeper of your majesty's records within the tower, that Raphe de Frescheville was among the barons summoned by writ to the parliament held in 25 Edward I. It also appears unto me by several pedigrees of credit and antiquity that the now lord Frescheville is lineally descended as heir, both general and male from the said Raphe de Frescheville; but it doth not appear by an)' evidence that the said Raphe or any of his descendants (till your majesty's creation ot the now lord Frescheville) were ever summoned or sat in parliament, after the said parliament of 25 Edward I. And therefore my humble opinion to your majesty is that you would be graciously pleased to refer the consideration of this petition to the peers now in parliament assembled." The petition was accordingly referred to the house of lords; where sir W. Jones was heard against the claim on behalf of the Crown. He said, that, supposing a summons to parliament by writ did give an estate of inheritance, yet this must be understood when there had been a sitting upon it. Here the not repeating the summons was an evidence of not sitting. It had been objected that there was no evidence of any sitting till the time of Henry VIII, when journals first began. But it was one thing, where writs of summons had been often repeated, another where they never issued but once. If a man sued by the name of a lord, and the defendant denied him to be a lord, this must be tried by the records of parliament. What, by the writs of summons r No, but by his sitting. The register, 287 had the form of certifying for a lord ot parliament. Quia prafatui A.B. nnus haronum ad parliamentum nostrum vrnieniium ex summonitione regia, &c. But the truth was that anciently a writ of summons and sitting upon it did not make a baron in fee. Anciently there were barons hy tenure, but it would be hard to show they were always the same. Among the spiritualty it was plain, sometimes one abbot was called, and afterwards omitted; sometimes a dean: but no such thing could be now. So likewise among the temporalty. It was a strong proof that anciently a writ of summons did not create a fee simple, nor give a right ot inheritance; for then they could not be refused to be repeated, as they often were. Dugdale's Baronage had many instances of lords once called, and then left out. And thiswas familiar with King Edward I to omit the sons if they were not answerable to their parents. On 6 Mar. 1677/8 the House of Lords resolved That the Lords Spiritual and Temporal in Parliament assembled have examined the Matter referred by His Majesty to this House upon the Petition of the Lord Frescheville's claiming a higher Place in Parliament, as Heir Male and General to Ralph Frescheville of Stavely, summoned to Parliament in 25 Edward the First, and do not find sufficient Ground to advise His Majesty to allow the Claim of the Petitioner.(») It is impossible to draw any clear inference from this resolution as to the reasons which prompted the answer of the House. The validity of (^) Lords' Journals, vol. xiii, p. 174a.