in abeyance will be allowed, on petition to the House, to appear by counsel before the Lords' Committee for Privileges, to watch the evidence on behalf of a claimant whose petition to the Crown is referred to them; but if he claims the dignity he must petition the Crown. Old pedigrees produced from the custody of a person whose ancestor was connected by marriage with the family described in the pedigree are admissible as evidence to show the state of that family; and an inscription on an old portrait of one of that family, produced from the same custody, is admissible for the same purpose." The opinion of the judges having been desired as to the power of the Crown to determine an abeyance in favour of a claimant through a coheir who was attainted as above stated, Tindal, C.J., Vaughan, Bosanquet, Patteson, Williams, Coleridge, and Erskine, JJ., and Parke, Gurney, and Maule, BB., attended. Tindal, C.J., in delivering the opinion of the judges (July 15, 1839) said (6 Cl. & F. 847): "The general rule by which the abeyance of a dignity or title of honour is governed was not disputed at your Lordships' bar; it has indeed been the established and undoubted law upon this subject from a very early period of our history, that in a case of a barony descendible either to the heirs general or to the heirs of the body, if the baron die leaving only daughters or sisters, or other coheirs, the dignity is in abeyance so long as more than one of such coheirs is in existence; but so nevertheless that the Crown, the sovereign of honour and dignity, may at any time during such abeyance determine it by conferring the dignity on whichever of the coheirs it pleases; but if the Crown do not exercise such prerogative, and the lines of all the coheirs but one become extinct, then the abeyance is at an end; and such only surviving coheir is entitled as a matter of right to the enjoyment of the dignity. Lord Coke, indeed, in his 1 Inst.,(a) seems to think that such has been the law from the time of the Conquest, but it has at all events been acted upon, at the least as early as the reign of Henry 6.; who, in the case of the Lord Cromwell dying without issue male, and leaving several daughters, preferred the youngest (b); and in more modern times this exercise of the royal prerogative has been repeatedly put in force; as, amongst many others, in the case of the earldom of Oxford, in 1625, and in that of the barony of Grey de Ruthin. (b) But the great contention at your Lordships' bar has turned not upon the fact, but upon the nature and qualities of this abeyancy, and upon the legal consequences of the attainder of one of the coheirs pending such abeyance;

It may be advisable to consider, in the first place, the properties of the abeyance of a dignity, and the legal consequences which flow from such abeyance; and, in the next place, how far any right or interest which can by possibility vest in the coheir pending the abeyancy is capable by law of becoming the subject matter of forfeiture.

books of the inheritance in land or other tenements, being in abeyance, have this common property; that there is no person in existence who is capable of taking. (a) And it is an admitted consequence that where the right to the fee simple is in such abeyance, by possibility it may every hour come in esse; and there the fee simple cannot be charged, granted, or forfeited until it come in esse. (b)

"Further, the peculiar nature of the inheritance in a dignity or title of honour has an important bearing on the question whether it is capable of vesting in coheirs. That lands and tenements of inheritance vest in coheirs is undeniable; the law of parcenary is too well known to make it necessary to advert to it, but in all the instances in which inheritances are stated in our books to vest in coheirs, that is, in several persons making together one heir, it will be found the hereditament is always capable of being actually enjoyed by the coheirs. [E.g., in the cases of lands, advowsons, villeins, common without number, piscary, estovers, mills, and tolls.] But in all these cases the subject matter is capable of actual pernancy and enjoyment, and it is absolutely necessary for the purpose of having such enjoyment that it should descend to and vest in the coheirs; the inheritance, therefore, descends upon them, and they settle and arrange the mode of enjoyment amongst them selves. But far different is the case of a dignity; it is an inheritance which is peculiarly sui generis; it is not only in its nature impartible amongst the coheirs, but in its undivided state utterly incapable of being enjoyed by any one coheir. They cannot all take the barony; no one can take it by law in preference to another, nor is there any mode by mutual arrangement, concession, or otherwise by which all can enable any individual coheir to wear the dignity. The reason, therefore, fails for holding that they take the inheritance of the barony, when they cannot take it for any available purpose. And this consideration at the same time fortifies and confirms the doctrine of abeyance, as understood in ancient times, which places the inheritance anywhere rather than in the coheirs. And this mode of reasoning agrees with the law as laid down by Lord Coke(c) ; and again with that of Whitelocke(d)

"Looking, therefore, at the peculiar description and properties of a dignity or name of nobility, there appears nothing in the nature of the inheritance or in reason that should à priori cause it to descend to and vest in coheirs who are altogether incapable of taking in the only way in which the subject matter can be enjoyed, that is, by wearing the dignity; and, on the contrary, it would seem much more suitable to its nature, and more consonant to reason, that when it has arrived, in the stream of descent, at a point beyond which it can no longer proceed in its regular course, when it is confessedly by all in a state of abeyance, that it should revert

"But there is authority on this subject entitled to the greatest weight [the case of the claims of the Lord Willoughby d'Eresby and the Earl of Oxford to the office of Lord Chamberlain, and the baronies of Bolbeck, Sandford, and Badlesmere(a)]. As to the objection that there must of necessity be an actual descent and vesting in the coheirs, for on no other supposition could the only surviving coheir claim a writ of summons as a matter of right, the answer may well be, that when the number is reduced to one the only reason and cause of any suspension or abeyance is at an end, and that the reason ceasing the consequence also ceases, and the whole entire and impartible dignity may then be well supposed to fall upon the complete heir, as in the usual course of descent.

"Now if it be the law that the barony does not descend to the coheirs, and vest in each, in separate parts and shares, there is at once an answer to the question whether whilst the dignity is still in abeyance the attainder of one of the coheirs shall operate as forfeiture or extinguishment of such dignity; for upon that supposition there was nothing in the person attainted which could become the subject of forfeiture; the whole had reverted to the Crown for the preservation of the title until the coheirs were reduced to one, or until the Crown had in the meantime declared a preference, privatio præsupponit habitum; and on the supposition above made, the party who was attainted had nothing in dignity to forfeit.

[Conceding for the sake of argument that pending the abeyance the inheritance in the dignity descended to the several coheirs, on the analogy of forfeiture of land for treason or felony, only the share of the attainted coheir would be forfeited, unless from the impartible nature of the dignity the operation of the forfeiture were enlarged, which would punish the innocent coheirs for the crime of the guilty.]

"But I forbear to pursue the consideration of these additional arguments, because, as it appears to me, the very principle now under discussion, viz., that the attainder of one of the coheirs shall not operate as a bar to one claiming through another of the coheirs to the dignity, has been virtually adopted and acted upon by your Lordships' House in several cases.”(b)

The Queen against Cardinal and others. 1838, November 28, to 1839, April 8. Trial on a charge of treason of Joseph Narcisse Cardinal and others, before a court-martial, under a proclamation of Sir John Colborne, proclaiming martial law, dated November 4, 1838, and ordinances dated November 8, 1838. There is a report of the proceedings in two volumes, entitled "Report of the

State Trials before a General Court-Martial held

(a) Collins, 175, 180, 194; W. Jones, 96; Lords' Journ. April 5, 1626.

(b) Case of the Powys barony, Collins, 397; S.C. Cruise, 206; cit. 6 Cl. & F. 831. Case of the Beaumont barony, Cruise, 214; S.C. cit. 6 Cl. & F. 833.

History of the late Rebellion in Lower Canada"(a) (Montreal, 1839.). When called upon to plead Cardinal and others made certain written objections (1, 20; 1, 76; 1, 139) to the jurisdiction of the tribunal, insisting "that in their case the ordinary laws of the province cannot be repealed, nor the ordinary tribunal superseded; insisting also that the Legislature under which the authority of the present Court is constituted has been expressly restrained by the Act of the Imperial Parliament of the 1st Victoria, c. 9, from departing in any way from the practice of administering the criminal law of England as introduced into this province by the Act of the Imperial Parliament of the 14th Geo. 3. c. 83, or abrogating the Statute of Treasons of the 25th Edward 3, or any of the various legislative expositions of that statute by different laws enacted since that period(b); and contending that the offence or offences with which they stand charged are cognizable only by a jury of the country, and that by the mode of trial and the means resorted to upon the present occasion, they are deprived of all constitutional means of defence," &c. In the case of Decoigne and others the prisoners applied to the Court (1, 204) that those of them against whom the evidence was wholly insufficiently in law, and who were material witnesses, might be allowed to give evidence, referring to Stratford's case, 1 East, 313, mentioned in Petersdoff's Abridg|ment, Martial Law and Courts Martial (edn. 1829), 12, 589. The application was rejected (1, 170.) Of the prisoners found guilty some were sentenced to death and others to be transported (1, 73). Sir John Colborne (Dec. 14, 1838, 1, 111) writes: "It appears that the sentence of transportation passed on several of the prisoners cannot legally be confirmed. I am, therefore, compelled to desire that the Court may be reassembled for a purpose of revising the sentence of transportation passed on six of the prisoners." The court accordingly re-assembled and passed sentence of death with a recommendation to mercy in each case in which the previous sentence was one of transportation (1, 75). (c)

In the Matter of the Serjeants-at-Law) 1834, April 25. 1839, January 10. A warrant(d. under the sign manual of King William 4, was transmitted to the Lord Chancellor (Lord Brougham) and by him communicated to the Lord Chief Justice (Sir N. C. Tindal) and the other justices (Sir J. A. Parke, Sir S. Gaselee, Sir J. B. Bosanquet, and Sir J. Vaughan) of

(a) Trials by Court Martial for treason and other offences took place also at Toronto on March 13, 1838, and subsequent days. Upper Canada, 404, and Appendix I.

(b) See Appendix I.

(c) See as to the manner in which the prisoners were disposed of. Ann. Reg. 1838,

p. 333.

(d) The warrant was read in Court (April 25, 1834) and entered of record. It is set out in 10 Bing. 571; see also Manning's Serviens ad Legem, 2.

"Whereas it hath been represented to Us that it would tend to the general despatch of the business now pending in Our several courts of Common Law at Westminster, if the right of counsel to practise, plead, and be heard, extended equally to all the said courts; but such object cannot be effected so long as the Serjeants-atlaw have the exclusive privilege of practising, pleading, and audience during term-time(a) in the Court of Common Pleas at Westminster.

We do, therefore, hereby order and direct that the right of practising, pleading, and audience in Our Court of Common Pleas, during termtime, shall, upon and from the first day of Trinity Term now next ensuing, cease to be exercised exclusively by the Serjeants-at-law, and that upon and from that day, Our counsel learned in the law, and all other barristers-atlaw, shall and may, according to their respective rank and seniority, have and exercise equal right and privilege of practising, pleading, and audience in the said Court of Common Pleas at Westminster, with the Serjeants-at-law. And We do hereby will and require you to signify to Sir Nicholas Conyngham Tindal, Knight, Our Chief Justice, and his Companions, Justices of Our said Court of Common Pleas, this Our Royal will and pleasure, requiring them to make proper Rules and Orders of the said Court, and to do whatever may be necessary to carry this Our purpose into effect."

A petition(b) to Her Majesty was presented by the Queen's Serjeants-Taddy, Wilde, (c) Spankie, Atcherley, and Merewether, in June 1837. The petition represented that "the said mandate is illegal, inasmuch as it purports to alter the constitution and practice of one of the superior courts of justice, by the authority of the Crown alone," and that" the prescriptive privilege of the serjeants-at-law cannot be abrogated by any authority but that of an Act of Parliament."(d) The petition was referred to the Judicial Committee of the Privy Council; and the question of the legality of the warrant of April 24, 1834, was argued before the Judicial Committee (present, Lord Cottenham, L.C., Lord Wynford, Lord Brougham, Lord Denman, C.J., Lord Langdale, M.R., Sir Lancelot Shadwell, V.C., Sir N. C. Tindal, C.J., Lord Abinger, C.B., Parke, B., Vaughan, Bosanquet, and Erskine, JJ., and Dr. Lushington, Judge of the High Court of Admiralty) on January 10 and February 2, 1839, by Sir William Follett and Austin for the petitioners, and by the Attorney General(e) and the Solicitor General (f) for the

(a) See Manning's Servien ad Legem, p. 2, note (d).

(b) The petition is set out in Manning's Serviens ad Legem, p. 1.

(c) Afterwards Lord Truro, L.C.

(d) See 39 Geo. 3. c. 113; 6 Geo. 4. c. 95, and Manning's Serviens ad Legem, pp. 24, 78, and Appendix No. VI.,and below per Tindal, C.J. (e) Sir John Campbell, afterwards Lord Campbell, L.C.

(f) Sir Robert Monsey Rolfe, afterwards Lord Cranworth, L.C.

was adjourned. Subsequently the solicitors for the petitioners were informed by the clerk of the Council that no judgment would be given until further notice.(a) The proceedings before the Judicial Committee are reported in "Serviens ad Legem: A report of proceedings before the Judicial Committee of the Privy Council," by Manning, Serjeant (1840).

November 2 and 25, 1839.-Wilde, Serjeant, applied in the Court of Common Pleas on behalf of the Queen's Serjeants, Taddy, Spankie, Atcherley, and Merewether, and himself, that their Lordships should call on serjeants, and serjeants only, to plead in that Court.(b)

January 20, 1840.-Newton, on behalf of those not of the degree of the coif, opposed this application. (c)

January 21, 1840.-Tindal, C.J., having referred to the warrant, said(d): 66 At the time when this warrant from his late Majesty was openly read in Court, in the presence of all the serjeants, if any one of our learned brethren had expressed a doubt as to its validity or legality, and had called for the opinion of the Court upon that point, we should have felt it our duty to have paused before we gave effect to that warrant, and should have given our deliberate opinion upon the objections which might have been urged in argument against it. But no doubt whatever was then suggested; indeed, under the warrant, the grace and favour of the the larger number of the serjeants accepted, Crown in giving them permanent rank, with respect to any gentlemen who should hereafter be created King's counsel, (e) and those of our brethren who had previously obtained permanent rank from the Crown, and who are the only parties to this application, allowed the matter at that time to pass sub silentio. Under these circumstances it cannot be matter of surprise that the Court did not of its own authority interpose any objection to the warrant; the

(a) No judgment was given. The Attorney General in the course of the argument (Manning's Serviens ad Legem, p. 119), said, "I own that I feel very great difficulty in saying that this warrant is binding, and can be supported. As I am called upon to give my opinion to your Lordships, I am bound to state fairly the opinion to which I have come, and it is this: that this was not binding upon the Court of Common Pleas, that the Chief Justice and the other judges of the Court were not at all bound to act upon it. I have considered the question very anxiously, and I own that I do not find any principle, authority, or precedent, that can support this warrant as an obligatory instrument." See also p. 155, and remarks of Wilde, Serjeant, 6 Bing. N.C. p. 190.

(b) 6 Bing. N.C. 187; Manning, Serviens ad Legem, 316, 327.

(c) 6 Bing. N.C. 232; Manning, Serviens ad Legem, 328.

(d) 6 Bing. N.C. 236; Manning, Serviens ad Legem, 329.

(e) See warrant 10 Bing. N.C. 571.

more especially as the object which the warrant had in view-that is, the opening of the Court of Common Pleas - was that which the Common Law Commissioners had by their report (a) previously recommended to be adopted for the benefit of suitors; though certainly with a much closer limit as to extent than the warrant directs. "Still, however, notwithstanding the period of acquiescence under the operation of this warrant has been considerable, we see no legal ground upon which those who joined in this application can be held barred of their right to call for the opinion of the Court upon the validity of the warrant; and we think ourselves bound in the execution of our duty of administering justice to all, not only to the suitors of the Court, but to all officers and members of the Court, to declare our judgment upon the effect and validity of the warrant in question, when called upon so to do.

Now, we think that the question before us turns upon the single point, whether the serjeants-at-law have, by the constitution of the Court, and consequently by law, held and enjoyed the sole and exclusive privilege, by virtue of their office or degree of serjeant, of practising, pleading, and audience in the Court of Common Pleas; for if they are so entitled we think they cannot be deprived of it by a warrant from the Crown under the sign manual, nor, indeed, by any power short of an act of the whole legislature.

"That the antiquity of the state, degree, and office of a serjeant-at-law is as high, at the least, as the existence of the Court itself is evident from all the text writers and records which bear upon the point. The serjeants are mentioned in the Mirror of Justice,' (b) a book of great authority, and of the earliest, though uncertain, date; by Bracton, (c) who wrote in the time of Henry 3.; and in records which are to be found in the Tower,(d) in the time of Edward 1. They are called to the state and degree of serjeants by writ; which, of itself, is a strong argument of the antiquity of their office, the form(e) of such writ being found in the most ancient manuscript registers, in substance the same with the writ by which they are called to that degree at the present day. By their oath of office,(f) which has existed from the earliest time, an oath by which no other barrister is bound to give attendance in any particular court, they bind themselves

'to give due attendance for the service of the King's people in their causes.' As early as any authentic records exist the serjeants are to be found practising in the Court of Common Pleas ; and there is no evidence of any other barrister being allowed to practise or practising in that Court. (See the various authorities collected in the speech of Lord Commissioner Whitelocke to the newly-created serjeants in his Memorials, page 356.(a))

"We, therefore, think ourselves justified in saying that from time immemorial the serjeants have enjoyed the exclusive privilege of practising, pleading, and audience in the Court of Common Pleas. Immemorial enjoyment is the most solid of all titles(b); and we think the warrant of the Crown can no more deprive the serjeant, who holds an immemorial office, of the benefits and privileges which belong to it, than it could alter the administration of the law within the Court itself. The rights and privileges of the serjeant, and the rights and privileges of the peer of the realm, stand upon the same foundation-immemorial usage.(c)

"We hold, therefore, that the right of the serjeants to the sole and exclusive privilege, which they claim, is still in existence, notwithstanding the King's warrant; and we feel ourselves bound, in the due course of administering justice, to allow such right to be still exercised.

"Extreme cases may certainly occur in the progress of time, under which the Court might be called upon, for a time at least, to admit others to plead and practise within it, until the circumstances which created such necessity had passed over, and this, in order to prevent a failure in the administration of justice to the Queen's subjects, for which end all courts of justice were instituted. Littleton, J., in the case of Paston v. Genney, Serjeant-at-Law,(d) says:

"If all the serjeants were dead, we could hear the apprentices to plead here by necessity and in ease of the people."

"To which Bryan, C.J., answers:

Then, according to you, no serjeant shall be made for necessity.”(e)

Earl of Kinnoull, 1839. March 18 to May 3. The Presbytery of Auchterarder against This was an appeal from a decree pronounced by the judges of the First Division of the Court of Session. The case is reported in 6 Cl. & F. 646, and in 1 Macl. & Rob. 220. The head note is as follows: "The statute 10 Anne, c. 12, establishes the civil right of patronage in the Church of Scotland, and the General Assembly of that church has no authority to make any acts or regu

(a) Cited in Manning's Serviens ad Legem,

214.

(b) See Burke's Works, 10, 96.

(c) See Manning, Serviens ad Legem, p. 176. (d) Y.B. Trin. 2 Ed. 4. f. 2. pl. 4; Manning, Serviens ad Legem, 230.

(e) Within seven years after this judgment the change which the royal warrant of April 24, 1834, failed to effect was brought about by 9 & 10 Vict. c. 54, which received the royal assent August 18, 1846.

lations which may prevent the exercise of these rights. An Act of Assembly, therefore, which permitted the male heads of families in a parish to dissent, without reason assigned, from the induction of a presenter, and declared that, if the dissidents formed the majority, the Presbytery should not proceed to the trials and settlement of the presentee, was held contrary to the statute, and consequently illegal. The Court of Session is competent to entertain under such circumstances a suit by the presenter against the Presbytery for trials and settlement accordto the presentation." (a)

The Queen against Feargus O'Connor. 1839. July 19. This was a criminal information against the defendant for publishing a libel respecting the administration of the Poor Law Amendment Act in the Warminster Workhouse. The defendant was found guilty.(b) There is a shorthand note of the trial before Coltman, J., in the papers of the Solicitor of the Treasury, No. 6612. In his defence the defendant said: "The paragraph was copied from a Wiltshire newspaper, published and circulated in the neighbourhood of Warminster, and yet no information had been filed against that paper. But it was necessary, I suppose, to have a victim, and therefore the Star of Yorkshire has been transferred to the archives of Downing Street. Gentlemen, that Wiltshire paper from which this paragraph has been taken, was a paper that had no circulation; nor had I any particular connexion with Warminster at the time this publication issued. But thanks to the Queen's Attorney General, that place is now one of the strongholds of the Northern Star. If the Attorney General had known only the tender grounds on which he himself treads, and if he had known the declaration of Mr. Macaulay (who I may designate his better half) in Edinburgh as to the law of libel, (c) he would have trembled before he had ventured to have awakened the law of libel upon such slender grounds as are involved in this case. Gentle men, it is well known that at Edinburgh the other day Mr. Macaulay, in enlarging upon the unheard of blessings of the Whig Government, and in drawing a distinction between the humanity of Whigs and Tories, made it a boast(c)

(a) See as to the proceedings in the Court below in this case "Report of the Auchterarder case. By Charles Robertson, 1838" and 16 D.B.M. 661. See also Ferguson v. Earl of Kinnoull, 9 Cl. & F. 251; S.C. Bell, Sc. App. 662. () He was also convicted at York Assizes, April 27, 1840, and sentenced to imprisonment for eighteen months.

(c) "Let us see what within this island, and in the present year a good Administration has done to mitigate bad laws. For example, let us take the law of libel. I hold the present state of our law of libel to be a scandal to a civilised community. Nothing more absurd can be found in the whole history of jurisprudence. How the law of libel was abused formerly you all know. You all know how it was abused under the Administrations of Lord North, of Mr. Pitt, of Mr. Perceval, of the Earl of Liverpool; and,

that the law of libel had remained a dead letter upon the statute book in the hands of a Whig Administration.

Gentlemen, the learned Serjeant (a) has praised the new Poor Law, and therefore he should approve of physical force, as that law is supported by physical force, and by the most unconstitutional description of physical force. And yet it is called a boon, and as the people are so ignorant this boon must be crammed down their throats at the point of the bayonet. The learned Serjeant has rested his case upon the physical force of this pigmy libel, upon the word "cell" being mentioned in it, and because the workhouse had been aptly termed a Bastile. But, gentlemen, "a rose by any other name would smell as sweet." And you may call the "cells" a parlour, and the workhouse a mansion, if you please; but while its rigour remains popular hostility will continue undiminished. You have been told that you are only to deal with the legal question. But I tell you that you are to deal both with the law and the facts, and with the moral tendency of the article. You will observe how long the morality of the Attorney General has slumbered, and his censure has slept. Not that the act by keeping was heightened; but he was in hopes to catch me upon a larger hook, and has merely had recourse to this nibble in despair. The paper has been produced to you, tattered and torn from being bandied about from the Attorney General to the Government inquisitors. In fact, it bears evident marks of having been bandied about for some purpose. The Attorney General has sent it to Warminster for the guardians to see how they had been libelled, as they did not know of it before. The guardians sent it back again to

am sorry to say, it was abused, most unjustifiably abused, by Lord Abinger under the Administration of the Duke of Wellington and Sir Robert Peel. Now, is there any person who pretends to say that it has been abused by the Government of Lord Melbourne ? That Government has enemies in abundance; it has been attacked by Tory malcontents and Radical malcontents; but has any one of them ever had the effrontery to say that it has abused the power of filing ex officio informations for libel? Has this been from want of provocation? On the contrary, the present Government has been libelled in a way in which no Government was ever libelled before ! Has the law been altered? Has it been modified? Not at all. We have exactly the same laws that we had when Mr. Perry was brought to trial for saying that George the Third was unpopular, Mr. Leigh Hunt for saying that George the Fourth was fat, and Sir Francis Burdett for expressing, not perhaps in the best taste, a natural and honest indignation at the slaughter which took place in Manchester in 1819. The law is precisely the same; but if it had been entirely remodelled, political writers could not have had more liberty than they have enjoyed since Lord Melbourne came into power.". Speech at Edinburgh, May 29, 1839. Macaulay's Speeches, 177 (ed. Lond. 1854).

(a) Atcherley, Serjeant, for the Attorney General.