lords hereditary peers parliament house nobility peer summons barons sense
PEERAGE, the existence of the peerage, as that word is understood in the three British kingdoms, is something altogether peculiar to those kingdoms, and that it has actually- hindered them from possessing a nobility of the Continental type. Before we try to trace out the 'r history of the British peerage, it will be well to show more fully than was done in that article in what the institution consists, and in what it differs from those institutions in other countries which are most like it. And to this end we must define what we understand by the word peerage in the British sense. In its histOrical use it takes in all the members or possible members of the House of Lords and no other persons. But modern usage and modern decisions seem to limit the use of the name on one side, and to extend it on another. There is no kind of doubt that, according to the earliest precedents - precedents reaching up to the earliest official use of the word peer - the spiritual lords are equallypeers with the temporal. But it has been held, at least from the 17th century, that the spiritual lords, though lords of parliament equally with the temporal lords, are not, like them, peers. Again, in earlier times no peers were heard of except members of the House of Lords, but membership of that House, even as a temporal lord, was not necessarily hereditary. But a decision of the present reign has ruled that a life-peerage is possible, but that the holder of such a peerage has no right to a seat as a lord of parliament. And an Act of the present reign of later date has actually called into being a class of lords who, it would seem, may possibly be either lords of parliament without being peers, or peers without being lords of parliament. These doctrines, some of which trample all the facts of history under foot, but which must be supposed to declare the modern law, establish the possibility of peers who are not lords of parliament, as well as of lords of parliament who are not peers. The question whether all lords of parliament were peers has been debated for several centuries; that all peers were in esse or in posse lords of parliament, that the right to a seat in parliament was the essence of peerage round which all other rights have grown, was surely never doubted till the year 1856.
Still these later doctrines, though founded on altogether wrong historical grounds, give us a definition of peerage which is intelligible and convenient. Setting aside the possible peers who are not lords of parliament, the two decisions bet.i.:cen them rule that the parliamentary peerage is confined to the temporal lords, and that, except in the case of the very modern official lords, their peerage is necessarily hereditary. This definition is convenient in practice, because it is the hereditary temporal peerage whose growth and constitution is of that unique kind which distinguishes it from all other bodies which bear the same name or which present any likeness to it in other ways. It will save trouble in this inquiry if we use the word peerage in what - with the possible exception of the last-created official lords - seems now to be its legal sense, as meaning the hereditary temporal peerage only.
In this sense then the peerage of England - continued I after the union between England and Scotland in the peeragel of Great Britain, and after the union between Great Britain 2 and Ireland in the peerage of the -United Kingdom - is 'a body of men possessing privileges which are not merely personal but hereditary, privileges which descend in all cases according to some rule of hereditary succession, but which pass only to one member of a family at a time. In this the peerage differs from nobility strictly so called, in ] which the hereditary privileges, whatever they may con-1 sist in, pass on to all the descendants of the person first, created or otherwise acknowledged as noble. The essential and distinguishing privilege of the peer, as defined above, is that lie is an hereditary lord of parliament, that he has, by virtue of his birth, a right to a summons from the crown to attend personally in every parliament and to take his seat in the House of Lords. He is thus, by right of birth, a member of the great council of the nation, an hereditary legislator, and an hereditary judge. Whatever other privileges, substantial or honorary, the leer may possess, they have all gathered round this central privilege, which is that which distinguishes the peer from all other men. The peer of parliament thus holds a different position from the lords spiritual, equally lords of parliament with himself, but holding their seats by a different tenure from that of an hereditary peerage. He holds a different position from the possible non-parliamentary peers implied in the decision of 185G. He holds a different position from the official lords of parliament created by the last Act. The number of the peerage is unlimited ; the crown may raise whom it will to any of its ranks ; but it is now understood that, in order to make the persons so raised peers in the full sense, to 'make them lords of parliament, the creation must extend to their heirs of some kind as well as to themselves.
The special character of the British peerage, as distinguished from privileged orders in any other time or place, springs directly from the fact that the essence of the peerage is the hereditary right of a personal summons to parliament. To determine the origin of the peerage is thus to determine how a certain body of men came to possess this hereditary right of summons. But, before we enter on this inquiry, one or two remarks will be needful which are naturally suggested by the definition of peerage which has just been given.
It has been said above that the holder of a peerage as I defined is a lord of parliament in esse or in posse. it has', become necessary during the present and last centuries to,', add these last words to the definition. For it is plain I that, since the• successive unions of England and Scotland and of Great Britain and Ireland, an hereditary peerage has not always in practice carried with it a seat in the House of Lords (cf. the Lords' Report on the Dignity of a Peer, ii. 16). For since those unions certain persons, namely those peers of Scotland and Ireland who are not representative peers and who do not hold peerages of England, of Great Britain, or of the United Kingdom, have been undoubted peers, they have enjoyed some or all of the personal privileges of peerage, but they have had no seats in the House of Lords. But this is a modern accident and anomaly. The persons spoken of hold peerages which entitled their holders to seats in the parliaments of Scotland and Ireland as long as those parliaments were distinct bodies. And their present holders, if not members of the House of Lords in esse, are such in posse. They have a capacity for being chosen to seats in that House which is not shared by other persons. Their membership of the House is rather suspended than altogether taken away. Their rather anomalous case hardly affects the general principle that, as far as the hereditary peerage is concerned, peerage and membership of the House of Lords are the same thing.
A few words are also needed as to the effect of the earlier doctrine which rules that peerage is an attribute of the lords temporal only and not of the lords spiritual (see Lords' Report, i. 323, 393 ; ii. 75). This is doubtless • meant to imply a certain inferiority on the part of the spiritual lords, as not sharing in that nobility of blood which is looked on as the special attribute of the hereditary peerage. But the inferiority thus implied, as it has nothing to do with parliamentary powers, has also nothing to do with precedence. The lords spiritual as a body are always mentioned first ; one class of them, namely the archbishops, take precedence of all temporal peers who are not of the royal family, as the other bishops take precedence of the temporal barons. What the distinction is concerned with is simply certain personal privileges, such as the right of being tried by the court of our lord the king in parliament, that is by the House of Lords or some part of it, instead of in the ordinary way by a jury. The doctrine which denies " peerage " to the spiritual lords is altogether contrary to earlier precedents ; but the way in which it came about is one of the most curious parts of our inquiry. It was the natural result of the ideas under whose influence the temporal peerage grew up and put on its distinguishing character.
The use of the word peers (pares) to denote the members of the House of Lords first appears in the 14th century, and it was fully established before the end of that century. The name seems to be rather a direct importation from France than anything of natural English or even Norman growth. In the 12th and 13th centuries the great men of the realm appear under various names, English, Latin, and French, witan, sapientes, magnates, proceres, grant; and the like ; they are pares only incidentally, as other men might be. In the Great Charter the word pares, in the phrase judicium parium, has simply the general meaning which it still keeps in the rule that every man shall be tried by his peers, the peer (in the later sense) by his peers and the commoner by his. In the 13th century this seems to have still been the only meaning of the word in England. This is illustrated by the story of Peter des Roches, bishop of Winchester (see R. Wendover, iv. 277 ; M. Paris, ed. Luard, iii. 2:52 ; Stubbs, Coast. Hist., ii. 48, 183), when in 1233 the right of being tried by their peers was asserted on behalf of Richard earl Marshall, and others. The bishops and other lords exhort the king to make peace with certain of his nobles and other subjects, " quos absque judicio parium exsulaverat," &c. The Poitevin bishop, either through ignorance or of set purpose, misunderstood the phrase, and answered that in England there were no peers (pares) as there were in France, and that therefore the king might deal with all his subjects as he chose by means of his own justices only.1 The word pares is here clearly used in one sense and understood in another. The English lords used the word in its older general sense ; Peter des Roches used it in the special sense which it bore in France. Neither used it in the sense which it took in the next century. It was perfectly true that there was in England no body of men answering to the peers of France, of whom we shall speak presently. But there is every likelihood that the name, as describing a particular body of men in England, was borrowed from the peers of France.
But the thing is more important than the name. Whatever view may be taken of the constitution of the ancient Witenagemot, we may safely assume that that assembly, with whatever change in its constitution, is personally continued in the House of Lords. That house consists of two classes of men who have never lost their right to a personal summons, together with certain other classes who have acquired that right in later times. Two classes of men, namely earls and bishops, have, with a certain interval in the 17th century, sat continuously in the councils of the nation from the earliest times. These two classes are those whose presence connects the earliest and the latest English assemblies. From the time when the House of Lords began to take anything like its present shape, other classes of men, spiritual and temporal, were summoned as well as the bishops and earls, but not with the same regularity as they were. Some abbots were always summoned from the beginning, and a few other churchmen afterwards obtained the same right. But, while every bishop - except in a few cases of personal enmity on the part of the king - was summoned as a matter of course, there was great irregularity in summoning of abbots. So some barons were always summoned as well as the earls; but, while every earl was - with a few such exceptions as in the case of the bishops - summoned as a matter of course, there was great irregularity in summoning the barons. The bishops and earls in short were personages too great to be left out ; so were a few of the greatest abbots. Lesser men, spiritual or temporal, might be summoned or not according to a hundred reasons of convenience, caprice, or accident. But it is only the common tendency of things that the occasional summons should grow into the perpetual summons, and that the perpetual summons should, wherever it was possible, that is, in the case of the temporal lords, grow into the hereditary summons. In other words, the doctrine was gradually established that, when a man was once summoned, a right of summons was created for him and his heirs for ever. The establishment of this doctrine called into being a new order of men, of lower rank than the bishops and earls but of equal parliamentary power, namely the class of barons having an hereditary right to seats in parliament. Presently, in the course of the 14th and 15th centuries, the ranks of the temporal peerage were increased by the invention of new orders, those of duke, marquess, and viscount, the two former classes taking precedence of the ancient earls.
It is easy to see how the growth of these several classes of hereditary lords of parliament tended to strengthen the notion of the temporal peerage as a body by itself, apart' from all other men, even from those lords of parliament whose seats were not hereditary. Here were five classes of men who were not peers in the sense of strict equality among themselves, for they were divided by rigid rules of precedence, but who were peers in the sense of having each of them an equal right to something peculiar to themselves, something which was so far from being shared with any who were not lords of parliament that it was not shared by all who were. The archbishop took precedence of the duke, the bishop took precedence of the baron ; but duke and baron alike shared in something which archbishop and bishop had not, the hereditary right to a summons to parliament. The peerage of the temporal lord came to be looked on as something inherent in the blood, something which could not, like the official seat of the churchman, be resigned or lost by any means except by such legal processes as involved "corruption of blood." The parliamentary powers, the formal precedence, of the spiritual lords were not touched, but the idea silently grew that they were not the peers of the hereditary members of the House. In short, the doctrine grew that the temporal lords alone were peers, as alone having their blood " ennobled," which is the herald's way of saying that they held their scats by hereditary right. The extinction of so many temporal peerages in the Wars of the Roses, the creation of so many new peerages under the Tudors, while in one way they lowered the strength and dignity of the order, in another way helped more and more to mark it out as a separate order, distinct from all others.
But the spiritual lords were not the only class that lost by the growth of the doctrine of hereditary peerage. No doctrine about blood or peerage could get rid of the fact that the parliamentary position of the bishops and the greater abbots was as old as that of the earls, far older than that of the barons, to say nothing of the ranks more lately devised. But there was another body of men whom the growth of the hereditary doctrine hindered from becoming peers, and from becoming lords of parliament in any full sense. These were the judges. As the judges grew to be a distinct and recognized class, they came to be summoned to parliament like the barons. The same reason which made it expedient to summon bishops, earls, and barons, made it expedient to summon judges also. It would not have been unreasonable if, in the many shiftings and experiments which took place before the constitution of the two Houses finally settled itself, the judges had come to hold official seats in the House of Lords in the same way as the bishops. But the growth and strengthening of the hereditary doctrine hindered the judges as a body from ever winning the same position in parliament as the bishops and abbots. They had not the same antiquity ; they had not the same territorial position ; their tenure was less secure ; the spiritual lord might lose his office by resignation or by a legal process ; the judge might lose his by the mere arbitrary will of the sovereign. The bishops then could be denied the right of personal peerage ; they could not be denied their full parliamentary position, their seats and votes. But the same feeling which deprived the bishop of his personal peerage hindered the judge from ever obtaining the personal peerage, and even from obtaining a full seat and vote in parliament. Owing to these influences, the judges have ever held an anomalous position in parliament ; they came to be in a manner in the House of Lords but not of it, to be its counsellors and assessors, but not its members.
The growth of the hereditary doctrine pressed hardly, we must allow, on both bishops and judges. But its working on either of those classes has been of small moment indeed compared with the effect on the nation at large. There is no institution for which England has greater reason- to be thankful than for her hereditary peerage ; for, as we began by saying, it has saved her from the curse of a nobility. Or rather, to speak more accurately, the growth of the peerage with its comparatively harmless privileges hindered the real nobility from keeping or winning privileges which would have been anything but harmless. If the word nobility has guy real meaning, it must, according to the analogy of lands where there is a real nobility, take in all who bear coat-armour by good right (see NOBILITY). It is a remark which has been made a thousand times, and no remark can be truer, that countless families which would be reckoned as noble any where else are not reckoned as noble in England. That is to say, though they may be rich and ancient, though they may claim an illustrious pedigree and may be able to prove their claim, yet they have nothing to do with the peerage. In England no family is looked upon as noble unless its head is a peer. In other words, the idea of peerage has altogether displaced the older idea of nobility. The growth of the order of peers has hindered the growth of any nobility apart from the peerage. The hereditary dignity of the peer, the great political position which it carries with it stands so immeasurably above any hereditary dignity which attaches to the simple gentleman by coat-armour, that the gentleman by coat-armour - the noble of other lands - ceased in England to be looked on, or rather perhaps never came to be looked on, as noble at all. In other words, the growth of the peerage saved the country from the curse of a nobility after the fashion of the nobility of France or of Germany. The difference in this respect between England and other lands is plain at first sight, and there really seems no other way to explain the difference except that every notion of hereditary dignity and privilege gathered so exclusively round the hereditary peerage as to leave nothing of any account to gather round any smaller hereditary position.
But, while the growth of the peerage thus hindered the growth of a nobility of which every gentleman should be a member, it was still possible that a real nobility might have grown up out of the peerage itself. That is to say, it might have come about that, while none but the descendants of peers were privileged, all the descendants of peers should be privileged. A nobility might thus have been formed, much smaller than a nobility taking in all lawful bearers of coat-armour, but still a nobility by no means small. But in England no such nobility has ever grown up. No one has any substantial privilege except the peer himself. No one in short is noble but the peer himself. Even in common speech, though we speak of a noble family, we do not personally apply the word noble to any other member of that family, unless, in the case of the higher ranks of the peerage, to a few immediate descendants of the peer. In short, while the blood of the peer is said to be ennobled, it is ennobled with a nobility so high and rare that it cannot pass to more than one at a time even of his own descendants (see the plain speaking of Dr Stubbs, Cons& Ilist., iii. 443). The eldest son of a duke is legally a commoner ; the children of his younger sons are not only legally but socially undistinguishable from other commoners. That is to say, the hereditary possession of the peer is not nobility at all in the sense which that word bears in other lands. It is a fiction to say that the peer's blood is ennobled, when the inheritors of his blood are not inheritors of his nobility. In short, as there is no nobility outside the families whose heads are peers, neither is there any real nobility within those families. As the growth of the hereditary peerage made nobility impossible outside the families of peers, so the particular form of its growth made true nobility impossible even within those families. For, after all, the essence of peerage is simply that the peer becomes by birth what other men become either by royal nomination or by popular election. The official origin of the peer still cleaves to him. The best description of his position is that he holds a great hereditary office. His place as legislator and judge is in itself as strictly official as the dignity of the bishop or the sheriff ; but, as, unlike the dignity of the bishop and the sheriff, it has become hereditary, something of the magic sentiment of hereditary descent has spread itself over its actual holder and over a few of his immediate descendants. But, as the dignity is in itself official, the hereditary sentiment has not been able to go further than this ; it has not prevailed so far as to establish any nobility or any privilege of any kind for all the descendants of the hereditary legislator and hereditary judge.
This result was further strengthened by the peculiar nature of the office which became hereditary in the peers Of England ; it is an office which can be discharged only in concert with others ; the very essence of the peerage is the summons to take part in the proceedings of an assembly. In itself nothing is more natural than the growth of nobility out of office ; it is as one of the chief ways in which nobility has come into being. And, to take a position higher than that of mere nobility, men in other lands whose dignity was in its beginning yet more purely official than that of the peers of England, say the dukes and counts of Germany, contrived, not only to make their offices hereditary but to make at least their honorary privileges extend to all their descendants for ever and ever. That is to say, they grew into a nobility - a nobility to be sure within a wider nobility - in the strictest sense. Why did not the English peerage do the same I For two reasons, which are in truth different forms of the same reason, different results of the fact that the royal power was so much stronger in England than it was in Germany. One is because the growth of the dukes and counts of Germany belongs to a much earlier state of things than the growth of the English peerage, to a state of things when national unity and the royal authority, though much stronger than they were afterwards, were much less firmly established than they were in England in the age when the hereditary peerage grew up. But partly also, and chiefly, because the dignity and authority of the German duke or count was mainly a local and personal dignity and authority, a dignity and authority which he held in himself and exercised apart from his fellows, while the dignity and authority of the English peer was one which he could hold and exercise only in partnership with his fellows. To the German duke or count his position in the national assembly was the least important part of his powers ; to the English peer it was the essence of his whole position. After the purely official character of the earldoms had died out, the English peer was nothing apart from his brother peers. His greatness was the greatness of the member of a powerful assembly. He might be hereditary legislator and hereditary judge ; but he could not act as either except in concert with all the other hereditary legislators and hereditary judges. The earls and bishops of England, each by himself, might, if the royal authority had been weaker, have grown into princes, like the dukes and bishops of Germany. The earls, after the change in their character, and the other ranks of peerage from their beginning, were shown to be simple subjects by the very nature of their dignity and power. The position of the German duke or count doubtless came from a royal grant ; but it was from a royal grant of some distant age. The position of the English peer rested altogether on a writ from the crown, and that not a writ of past ages, but a writ which, though it could not be refused, needed to be renewed in each successive parliament. In other lands the assembly of the nobles was great and powerful because it was an assembly of great and powerful men ; in England the peer was great and powerful because he was a member of a great and powerful assembly. A parliamentary dignity of this kind, even when it became strictly hereditary, was very different from the quasi princely position of the great nobles of other lands. And, though the peer commonly had a great local position, sometimes an almost princely position, it was not as peer that he held it. Whatever might be his local dignity and local rights, they had nothing to do with his peerage ; they were shared in his degree by the smallest lord of a manor. In short, the hereditary dignity of the peer, hereditary membership of the great council of the nation, was on the one hand so transcendent as to extinguish all other hereditary dignities; on the other hand, as resting on membership of an assembly, it could not well grow into nobility in the strictest sense. The peerage therefore, the office of hereditary legislator and hereditary judge, passed, and such nobility as it conferred passed with it, to one member only of the family at a time. The other members had no share in the office, and therefore had no share in the nobility which it conferred.
It was then in this way that the peerage, growing out of the hereditary summons to parliament, hindered the growth of any nobility outside the families of peers and by the same means hindered the growth of any real nobility within their families. To the existence of the peerage then, more than I to any other cause, England owes its happy freedom from i° the curse of a really privileged class, the happy equality in the eye of the law of all men who are not actually peers, - f an equality which reaches so high that the children of the sovereign himself, whatever may be their personal honours and precedence, are, unless they are formally created peers, in the eye of the law commoners like other men. The privileges of the actual peerage have been a small price to pay for such a blessing as this. But we must remember that this happy peculiarity, like all other features in the English constitution, came about by accident, or more truly by the silent working of historical circumstances. As no English lawgiver ever decreed in so many words that there should be two Houses of Parliament and not one, three, or C four - as no lawgiver ever decreed in so many words that I one of these Houses should be elective and the other hereditary or official - so no lawgiver ever decreed in so many words that the children of the hereditary lord of parliament should be in no way partaker of his privileges. All these things came of themselves ; we cannot point to any particular enactment which established any of them, or to any particular moment when they were established. Like everything else, they grew by usage, not by enactment ; later enactments confirmed them or took them for granted (see Lords' Report, i. 47, 483 ; ii. 25). But we can see that the rule which has established but one form of real C distinction among Englishmen, that which parts the actual t peer and the commoner, grew out of the way in which the elements of the parliament finally settled themselves. The parliamentary line was in the end drawn between the a baron and the knight. One is rather surprised that it was drawn at that point. The gap between the earl and the baron, and again the gap between the knight and the citizen, might either of them seem wider than the gap between the baron and the knight. Yet in the end the barons were lifted up to the fellowship of bishops and earls, while the knights were thrust down to the fellowship of citizens and burgesses. This must have done much to hinder the knightly families, families which in any other land would have ranked as noble, from keeping or claiming any strictly hereditary privilege. On the other hand, as we have al' ready seen, the nature of that privilege of peerage which the barons were admitted to share hindered the baronial families from claiming any fresh hereditary privilege be. yond the hereditary transmission of the peerage itself.
Such is a general view of the nature and origin of peerage in England, following at greater length the lines already traced out in the article ENGLAND. This view may now be confirmed by a few of the special facts and dates which stand out most conspicuously in that course of events which led to the received doctrine of peerage. ; We assume the House of Lords as the personal continuation of the ancient II.7tenagenuit, Mrel Gemot, Magnum] Concilium, by whatever name we choose to call that immemorial body which, whatever was its constitution, was certainly not representative in the sense of being elective. Alongside of this older body grew up that newer representative and elective body which became the House of Commons. We may best place the beginnings of the peerage at the point when we can distinctly see that barons are personally summoned to the one House, while knights find their way into the other only by election. It hardly needs to be explained that the word baron, originally meaning simply man, has in itself nothing to do with peerage or with seats in parliament. Survivals of its earlier and wider meaning may still be traced in the titles of the Barons of the Exchequer and the Barons of the Cinque Ports, and in other uses of the word, more common perhaps in Scotland and Ireland than in England. Baro often translates the older English thegn., and perhaps neither of these names is very easy to define. By the 13th century the name baron had come specially to mean the highest class among the king's lay tenants-in-chief under the rank of earl ; the baron was the holder of several knight's fees. In a wider and vaguer sense, the word often takes in both the earls and the spiritual lords. In its narrower sense it means those who were barons and not more than barons. As the practice of personal summons to parliament came in, the barons formed a class of men who might reasonably hope or fear, as the case might be, that the personal summons might come to them ; and to many of them it did come. And its coming or not coming established a distinction between two classes of barons. A distinction between greater and lesser barons is implied in the Great Charter (c. xiv.), which asserts the right of the "majores barones" to a personal summons along with the archbishops, bishops, abbots, and earls, while the other tenantsin-chief - among them by implication such barons as did not come under the head of majores - were to be summoned generally by the sheriff. And this ordinance must be taken in connexion with the earlier writ of 1215 (Selden, Titles of Honour, 587; Stubbs, Select Charters, 278, and Const. Mist., i. 568), in which the sheriff is bidden to summon the knights in arms, and the barons without arms, and also four discreet men from each shire, " ad loguendnm, nobiscum, de negotiis regni nostri," that is, in other words, to a parliament. The Charter thus secures to the greater barons, as a separate class, the right of being personally summoned by the king, and not by the sheriff along with other men. It parts them off from other tenants-in-chief and puts them alongside of the prelates and earls. These two documents between them may be taken as giving us at once the first distinct approach to the notion of peerage and the first distinct approach to the notion of representation. The " majores barones " are not defined ; but the summons supplied the means of defining them, or rather it became a means of making them the only barons. As the summons became hereditary, barons came more and more to be looked on simply as a class of men who had seats in the House of Lords. The word came to mean a rank in the peerage, and it was gradually forgotten that there ever had been territorial barons who had no claim to seats in parliament. _ But it was only by slow degrees that the hereditary summons, or even the necessary summons of every man who had once been summoned, became the established rule. Throughout the 13th century the language in which the national assembly is spoken of is wonderfully shifting. Sometimes its constitution seems more popular, sometimes less so. Sometimes its more dignified members are spoken of vaguely under such names as magnates, without distinction into particular classes. But, when particular classes are reckoned up, the barons always form one class among them ; but the number of barons summoned varies greatly.
The Charter gives the majores barones the right of personal summons ; but the nuy'o•es barones are not as yet a defined and undoubted class of men like the bishops and earls. None but the holder of a barony in the territorial sense was likely to be summoned ; but the king still had a wide choice as to whom among the holders of such baronies be would acknowledge as majores barones ; and we find that dissatisfaction was caused by the way in which the king exercised this power. Tn 1255 there is a remarkable notice in Matthew Paris (v. 520, ed. Luard ; cf. Hallam, Middle Ages, ii. 153) where the" magnates " com plain that all of their number had not been summoned according to the Charter, and they therefore decline to grant an aid in the absence of their peers.' It is possible that some bishops or earls may, for some personal reason, have been left 1311SUMM oned, hut the complaint is far more likely to hare come from the barons specially so called. Here the word pares is still used in its more general sense, but it is used in a way that might easily lead to its special use. On the other hand, it has been alleged that, by a statute of the later years of Henry III., it was formally ordained that no barons, or even earls, should come to parliament, except those whom the king should specially summon (see Selden, Titles of _Honour, 589 ; Hallam, Middle Ages, ii. 142 ; Stubbs, Const. Hist., ii. 203). The existence of such a statute may be doubted ; but, as far as the barons are concerned, the story fairly expresses the facts of the case. Under Edward I. an approach, to say the least, is made to the: creation of a definite class of parliamentary barons. Dr Stubbs marks the year 1295 as "the point of time from which the regularity of the baronial summons is held to involve the creation of an hereditary dignity, and so to distinguish the ancient qualification of barony by tenure from that of barony by writ" (Const. Mist., iii, 437). Tn another passage (ii. 183) lie thus marks the general result of Edward's reign" The hereditary summoning of a large proportion of great vassals was a middle course between the very limited peerage which in France coexisted with an enormous mass of privileged nobility, and the unmanageable, ever-varying assembly of the whole mass of feudal tenants as prescribed in Magna Carta."
It may be thought that the hereditary nature of the barony is here pa a little too strongly for the days of Edward I. One may certainly doubt whether Edward, when he summoned a baron to parliament, meant positively to pledge himself to summon that baron's heirs for ever and ever, or even necessarily to summon the baron himself to every future parliament. The facts are the other way ; the summons still for a while remains irregular (see Nicolas, Historic Peerage, xxiv xxv., ed. Courthope ; lords' Report, ii. 29, 290). But the perpetual summons, the hereditary summons, gradually became the rule, and that rule may in a certain sense be said to date from 1295. That is, from that time the tendency is to the perpetual summons, to the herein tary summons ; from that time anything else gradually becomes exceptional (cf. Const. ii. 203 with iii. -139); things had reached a point when the lawyers were sure before long to lay down the rule that a single S11111111011S implied a perpetual and an hereditary summons. It is not too much to fix the reign of Edward I. as the time when the hereditary parliamentary baronage began, without rigidly ruling that the king could not after 1295 lawfully refuse a summons to a man who had been summoned already.
From this time then we may look on the class of par-] liamentary barons with succession as beginning and steadily growing. And the admission of the barons had a great!
r effect on the position of the older members of the House, the prelates and earls. It was in fact their admission which gave the English peerage its distinctive character. A house of earls, bishops, and great abbots would have remained an official house. The earldom might pass from father to son ; but it would pass as an hereditary office, entitling its holder to a seat by virtue of his office, just like those lords who held their seats by virtue of offices which did not pass from father to son. Indeed we must not forget the meaning of the word hereditary in early times. It is applied to whatever goes by succession, whether that succession is ruled by natural generation, by election or nomination, or by any other way. The office and estate of the bishop or abbot is hereditary in this sense ; it must pass to some successor, and it is therefore often spoken of as hereditary. Indeed, as long as the earl was appointed, his office was hereditary only in the same sense as that of the bishop. The only difference was that the office of the bishop could not possibly become hereditary in the modern sense, while the office of the earl easily might, and therefore did. But, if the earls had continued to have no fellows in the Upper House except the prelates, the earldom could hardly have sunk into a mere rank. It was the addition of a class which had no official position - save that which their seats in parliament conferred upon them - a class whose seats were first purely personal and then purely hereditary in the modern sense, which helped more than anything else to do away with the official character of the earls. And in so doing it helped to widen the gap between the spiritual and temporal lords. The earl and the baron alike came to be looked on as sitting by some hereditary virtue of descent ; their blood was said to be ennobled, while the bishop and the abbot still sat only by what might seem to be in some sort the lower claim of holding an elective office.
It is then to the clays of Edward I. that we are to look, not strictly for the creation of peerage in the modern sense, but for the beginning of a system out of which peerage in that sense very naturally grew. In the words of the great constitutional historian, Edward I. must, in the selection of a smaller number to be the constant recipients of a summons, have introduced a constitutional change scarcely inferior to that by which he incorporated the representatives of the commons in the national council ; in other words, lie created the 1-louse of Lords as much as he created the ]louse of Commons."
That is to say, he did not create the first elements of either, which existed long before, nor did he give either its final shape, which neither took till afterwards ; but he established both in such a shape that all later changes may be fairly looked on as merely changes in detail.
(Lords' Report, i. 313 ; Stubbs, Coast. Mist., ii. 389), when Archbishop Stratford secured the right of the peers (" piers de la terre ") of both orders to be tried only by their peers in parliament (" en pleyn parlement et devant les piers ou le roi se fait partie"). It is worth noticing that at this point the Lords' Report stops to comment at seine length on the special position of the peerage now established. As the committee puts it, "The distinction of the peers of the realm as a separate class, by privileges confined to themselves personally as peers, and not extending to any others, but throwing at the same time all the rest of the free population into one class, having all equal rights, is a singularity N•hich marks the constitution of the English government, and was first apparently clearly established by this statute to which all the other subjects of the realm gave their assent."
And again they remark (p. 314) that "the confinement of the privilege of peerage to those called the peers of the realm, as a personal privilege, giving no privilege or even legal rank to their families, and moulding all who had not that privilege, however high their birth, into the mass of the commons, has been considered an important feature in the constitution of the government of England. It may have prevailed, and probably did in some degree prevail, before ; but by this statute it was clearly and distinctly recognized."
This is true ; yet the object of the statute is not to shut out the peers' children from privilege, but to assert the disputed privilege of the peers themselves. The exclusion of the peers' children from privilege is a mere inference, though a necessary one. No legislator ever decreed in so many words the exclusion of the children of peers from privilege, because no legislator ever decreed in so many words the privileges of the peers themselves.
By this time we may look on the position of the peerage as fully established. It is now fully received, as at least the ordinary- rule, that the baron who was once summoned should be always summoned, and that his right to the summons should pass to his representative after him (Lords': Report, ii. 28). In short the parliamentary position of baron has become successive, a word answering pretty well to hereditary in the older sense. A question might now arise as to the nature of the succession, a question which could not arise as long as the person summoned had no certainty that he would be summoned again. In other words, was it necessarily hereditary in the later sense of that word That is to say, the question of peerage by tenure, or rather the question whether the succession to a peerage might be, by tenure, now sprang up. Did the right to the summons, and hereby the right to the peerage, go with the territorial barony itself, or did it go according to the line of natural descent from the first baron ? There was a good deal to be said for the first view. We cannot doubt that barony by writ arose out of barony- by tenure, that is, that the writ of summons was originally sent only to persons who held by barony, and, as the phrase " majores barones" implies, not to all of them. If then the barony and the natural line of descent of the first baron should be parted from each other, it was by no means unreasonable to argue that the writ, a consequence of the tenure, should go with the actual barony rather than follow the line of natural descent. And the same notion seems implied in the ancient practice of sending writs to the husbands of heiresses, even, by the courtesy of England, after the death of their wives (see Stubbs, Const. Mist., iii. 438 ; II;st. Peerage, xxxviii.). On the other hand the natural feeling in favour of direct hereditary succession would tell the other way, especially as soon as the doctrine of the ennobling of the blood had fully come in. It is that doctrine more than anything else which has got rid alike of peerages by tenure, of peerages for life, and of peerages held by the husbands of heiresses. If the peerage could pass by marriage or purchase, the doctrine of nobility of blood was set aside. Till that doctrine was fully established, there was nothing unreasonable in either practice. Again, as the hereditary right to the summons became the rule, writs, held to be no less hereditary than those issued to the barons by tenure, began, even under Edward I., to be issued to persons who had no baronial tenure at all (see Stubbs, Const. Mist., ii. 204; Historic Peerage, xxvi.). This practice would of course tell in favour of strict hereditary succession and against succession by tenure. The result has been that hereditary succession became the rule, but that the claim of succession by tenure was brought forward in some particular cases, as the earldom of Arundel and the baronies of Abergavenny, Berkeley, and others. The case of the earldom of Arundel (more truly of Sussex) is discussed at length in the Lords' Report (i. 405 sq.), and it is held (ii. 320) to be the only case in which peerage by tenure has been allowed. Yet nothing can be more contrary to all ancient notions of an earldom than that it should follow the possession of certain lands and buildings, as the castle and honour of Arundel. What is chiefly proved is that by the eleventh year of Henry VI. the ancient notion of an earldom had passed away, and that the earldom had sunk to be a mere rank. The succession to the earldom of Arundel was settled by Act of Parliament in 1627 (Lords' Report, ii. 242), an Act whose preamble seems to acknowledge the fact of the earldom by tenure. But succession by tenure seems as distinctly agreeable to the oldest notion of a barony as it is contrary to the oldest notion of an earldom. The tendency of later times has been against it, because it contradicts the fancy about " ennobling " of blood ; yet those who have at different times claimed a place in the peerage by virtue of baronies by tenure have not been without strong arguments in the way of precedent. The latest claim of the kind, that to the barony of Berkeley, was not formally decided. The facts and arguments will be found at great length in Appendix III. to Sir Harris Nicolas's Report on the Barony of Lisle. His conclusion is against the claim by tenure; yet it certainly seems that, when the castle of Berkeley, the tenure of which was said to carry with it the barony and peerage, was separated from the direct line of succession, as specially when the castle was held by the crown in the 16th century (see pp. 321-327), the heirs were not summoned to parliament, or were summoned as a new creation (see on the other hand Lords' Report, ii. 143). There is no strictly legal decision of the general question ; but an order in council in 1669 (Lords' Report, ii. 242) declares against barony by tenure, rather on grounds of expediency than of law. It was declared in the case of the barony of Fitzwalter that "barony by tenure had been discontinued for many ages, and was not then in being, and so not fit to be revived or to admit any pretence of right to succession thereon." And the Lords' Committee (p. 241) give their own opinion that " the right of any person to claim to be a lord of parliament, by reason of tenure, either as an earl or as a baron, supposing such a right to have existed at the time of the charter of John, may be considered as abrogated by the change of circumstances, without any distinct law for the purpose." That is to say, the claim was as legal as any other claim of peerage, resting equally on usage ; but it was inconvenient according to the new doctrine about blood being " ennobled."
The same age which saw the earls and barons put on 'f the shape of an hereditary peerage was also that which saw the order enlarged by the creation of new classes of peers. The ancient earls of England now saw men placed over their heads bearing the French titles of duke and marquess. Neither title was absolutely new in England ; but both were now used in a new sense. Duke and earl were in truth the same thing ; dux, afterwards supplanted by conies, was the older Latin translation of the English ealdornian or eorl, and eorl was the English word commonly used to express the dukes as well as the counts of other lands. So the marchio, markgraf, marquis, was known in England in his official character as the lord marcher. But now, first dukes and then marquesses come in as distinct ranks of peerage higher than earl. That the earls of England put up with such an assumption was most likely owing to the fact that the earliest dukes were the king's own sons and near kinsmen, the first of all being the eldest son of Edward III. He was created duke of Cornwall in 1337, a dukedom to which the eldest son of the reigning sovereign is born. Marquesses began under Richard II. in 1386, when Robert Vcrc, earl of Oxford, was created marquess of Dublin and directly afterwards duke of Ireland (Lords' Fifth Report, 78, 79). Lastly, in the next century, the tale of the ranks of the temporal peerage was made up by the in, sertion of another French title, that of viscount, between the earl and the baron. John Beaumont was in 1440 created Viscount Beaumont (Lords' Fifth Report, 235). The choice of a title, as concerned England, was a strange one, since, at least from the Norman Conquest onwards, viscount, vicecomes, had been the everyday French and Latin description of the ancient English sheriff (see Stubbs, Coast. Hist., iii. 436, and the patent of creation in Lords' Report, v. 235, where the new viscount is placed "super omnes barones regni "). Since that time no title conveying the rights of peerage has been devised. The Lords' Committee (i. 470) look on it as doubtful whether such a power abides in the crown, and a decision in the spirit of the Wensleydale decision would most likely rule that such a creation would at least give no right to a seat in the House of Lords. Yet, if the crown be, as lawyers tell us it is, the fountain of honour, it is hard to see why its streams should not flow as readily in one age as in another. If Henry VI. could give his new invention of viscounts seats in parliament with precedence over barons, it is hard to see why James I. might not, if he had chosen, have given his new invention of baronets seats in parliament with precedence over dukes.
The five ranks of the temporal peerage were thus established in the order of duke, marquess, earl, viscount, baron. But it must be noticed that duke, marquess, and viscount, ' are strictly speaking titles in a sense in which baron is not. Baron in truth is very seldom used as a personal description (Stubbs, Const. Mist., iii. 440), except in two or three special cases which are hard to account for, those chiefly of the baronies of Stafford and Creystock (see Lords' Report, i. 261, 394; ii. 185). The baron is commonly described by some of the endless forms of senior, or as chivaler, or sometimes - doubtless if he held that particular dignity - as banneret. To this day, though in familiar speech all ranks of peerage under duke are often confounded under the common description of lord, yet the names marquess, earl, and viscount are all far more commonly heard than the name baron, which is hardly ever used except in the most formal language. As for bannerets, though they seem sometimes to be mentioned along with various ranks of peerage (Lords' Report, i. 328), it does not appear (see Stubbs, Const. Hist., iii. 446) that banneret ever really was a rank of peerage, like the others from baron up to duke.
The invention of these new ranks of peerage undoubtedly helped to strengthen the notion of the temporal peerage as an order distinct both from all who are not lords of parliament and from the spiritual lords also. Another novelty also came in along with the dukes and marquesses. The right of the earls was immemorial ; the right of the barons had grown up by usage. Edward III. began to create earls and, when dukes were invented, dukes also, by 1 patent. They were commonly created in parliament and with becoming ceremonies. Earls were thus first created in 1328. This bestowal of an earldom as an hereditary rank is another process from granting an earldom, conceived as an office or even as an estate. Later in the century, in 1387, Richard II. began to create barons also by patent (Historic Peerage, p. xlii.), and this form of creation gradually supplanted the ancient peerage by writ. The object of this change seems to have been (see Historic Peerage, p. xxviii.) the better to mark the dignity as hereditary (for the hereditary nature of the barony by writ was after all only a matter of usage or inference), and at the same time to define the line of succession. This, in the baronies by writ, is said to be in the heirs-general of the grantee - words to be understood, as it would seem, of the heirs-general of his body only ; in a barony or other peerage conferred by patent the line of succession may take any shape that the crown chooses, the most common limitation being to the heirs-male of the body of the grantee. Very singular lines of succession have sometimes been chosen (Historic Peerage, xlv.), as specially in the case of the dukedom of Somerset in 1547, in which the line of the eldest son was placed after that of the second. And the manifest right of the crown to name no line of succession at all, that is, to create a life-peerage only, was often exercised in the first days of dukes and marquesses. A duke of Exeter was created for life as late as 1416. Perhaps the strangest case of all is the patent of the barony of Lisle in 1444, which may be called the creation by patent of a barony by tenure. The whole story of the Lisle barony has been dealt with by Sir Harris Nicolas in a separate volume (see also Lords' Report, ii. 199 sq. ; Stubbs, Con.st. Hist., iii. 437) ; but it is only this patent that concerns us. It seems to grant a barony with a seat in parliament to the grantee John Talbot and his heirs and assigns, being lords of the manor of Kingston Lisle (see the document, the language of which varies in different parts, in the Lords' Report, ii. 199 ; v. 243). This is certainly strange ; but, if we once grant the royal power to create peerages and to limit their succession at pleasure, it seems necessarily to follow that the crown may exercise that power in any way that it chooses, whether by limiting it to the grantee personally or giving any kind of remainder that it is thought good.
The temporal peerage being thus fully established on its present ground in the course of the 15th century, we come in the course of the next two centuries to see the effect of the theories under which it had grown up. A series of deductions are gradually made, naturally enough as deductions from the premises; but then the premises can be admitted only by trampling ancient precedents under foot. First of all, we have the denial already spoken of of some of the personal privileges of peerage to the spiritual lords. This was silently brought about in the Tudor times, when Bishop Fisher and Archbishop Cranmer - one might perhaps add Abbot Whiting - were tried by juries in defiance of the principle laid down by Archbishop Stratford under Edward III. Against this course no remonstrance seems to have been made ; indeed the times were not favourable for remonstrances, least of all for remonstrances made by spiritual persons. The doctrine that the spiritual lords were lords of parliament but not peers was established by a standing order of the House of Lords older than 1625, as it is referred to in the journals of the House in that year. It was then referred to a committee of privileges for further consideration, but no report is recorded (cf. Coke's Institutes, ii. 30).
Presently all the powers both of the spiritual and the temporal lords were for a while extinguished, and those of the spiritual lords by an undoubted legislative act. The Act of 1642, by which the bishops lost their seats in parliament, stands distinguished, as a real and lawful act of the legislature, from the process by which so much of the so-called law on the subject grew up through a series of resolutions, dictated mostly, we may venture to say, neither by precedent nor by written law, but by the prejudices and assumptions of a particular class of men. The exclusion of the bishops by the regular Act of 1642 was followed in 1649 by the less regular exclusion of the temporal lords also. The House of Lords was abolished by a vote of the House of Commons only. The essence of peerage was thus taken away, but the peers kept their titles and precedence, and they were allowed to be chosen to seats in the House of Commons. When the old parliamentary constitution revived in 1660, the Act of 1649 was naturally treated as null, while the Act of 1642 was of course treated as valid. In 1660 therefore a House of Lords again sat which consisted of temporal lords only. But the bishops were restored to their seats by an Act of the next parliament in 1661, and the lords again ordered a committee " to consider of an order in the standing orders of this House which mentions the lords the bishops to be only lords of parliament and not peers, whereas several Acts of Parliament mentions them to be peers." Nothing came of the labours of this second committee, and the doctrine which it was to consider has since been held for law. Both the doctrine and the reason for it have raised the indignation, not only of the two great constitutional historians, one of them himself a churchman, but of at least one great legal authority (see Blackstone, book i. c. 12, vol. i. p. 401, ed. Christian ; and contrast Stephen, Neu, Commentares, ii. 590, and Kerr's Blackstone, i. 407 ; cf. Hallam, Middle Ayes, ii. 138; Lords' Report, ii. 323, 339). The attack on the rights of the spiritual lords was carried yet further by the Commons in the case of the earl of Derby in 1679, when they objected to their voting on an impeachment even in its preliminary stages. Their right to take a part in all such proceedings up to the question which might involve life or death (a share in which on the part of churchmen would be contrary to canon law) is asserted by the eleventh article of the Constitutions of Clarendon (Stubbs, Select Charters, 133). The question now raised, which was decided in favour of the bishops, according to the terms of the Constitutions, • did not directly touch the question of the peerage of the bishops, but it had an indirect connexion with it. The denial of the bishops' peerage implied that they had no right to be tried as peers in the court of the king in parliament, as not being, as the phrase goes, "of trial by nobility." It might therefore be plausibly argued that they had no right to be judges in that court. The right of the bishops to vote on a bill of attainder, which, on any canonical ground, would seem quite as objectionable as their voting on an impeachment, was never denied, because a bill of attainder is a legislative act, and does not touch the question of peerage. Indeed, we may say that the law is still far from clear on the whole matter. The statute of 1696 (7 and S Will. III.) for "regulating of Trials in cases of Treason and Misprision of Treason" speaks of " trials of peers " and of " all the peers who have a right to sit and vote in parliament," without distinctly defining whether the word peer is meant to apply to the lords temporal only.
In the same century another step in the development of the theory of peerage was taken by the resolutions of I the lords in 1640 and 1678 that a peer could not relinquish his peerage. This inference also, whatever may be thought of it, though distinctly against earlier precedents, follows (see Lords' Report, ii. 25, 26, 4S) directly from the doctrine of "ennobling of blood."
The next point in the history of the peerage is one which, like the exclusion of the bishops in 1642, was a matter of real legislation, as distinguished from mere decisions and resolutions. This was the change in the theory of peerage which followed on the union of England and Scotland in 1707. By the treaty of union the peerage of Scotland was to be represented by sixteen of its number chosen for each parliament by the Scottish peers themselves. This amounted, as has been already set forth, to the creation of a class of men who are peers as concerns their personal privileges, but who are lords of parliament only in posse and not in esse. The Scottish peers were made incapable of sitting in the House of Commons, and the Scottish peerage was doomed to gradual extinction, as no new peers of Scotland were to be created. And further, by a resolution of the lords in 1711, it was held during the greater part of the last century that a patent of peerage of the United Kingdom granted to a Scottish peer did not give him a seat in parliament. Presently an attempt at legislation with regard to the peerage was made which, if carried, would have altogether changed its character. This was the Peerage Bill of 1719. That bill was not carried, but its proposals are worth notice, not only because they would, if they had become law, have altogether changed the nature of the peerage as a political institution, but also because they illustrate the way in which, like everything else in English constitutional history, the peerage and everything belonging to it bad grown up gradually by force of . precedent. The right of the crown to create peers at pleasure, and to entail their peerages on any line of succession that it thought good, had never been disputed, but neither had it ever been the subject of any legislative enactment. The proposed bill, in limiting both powers, would have given them their first being by formal legislation. The proposal was that the peerage of the United Kingdom should, after a creation of six peers, be confined to its existing number, with an exception in favour of members of the royal family. For the future, with that exception, no peerage could be created, except when one had become extinct. Instead of the sixteen elective peers of Scotland, the king was to bestow hereditary seats on twenty-five members of the Scottish peerage, and the number was to be kept up by a new promotion whenever any of the twenty-five peerages became extinct. It was forcibly remarked at the time that this would place the remainder of the Scottish peerage in a condition politically inferior to that of all other British subjects, as they would have been incapable both of sitting in either house of parliament and of choosing those who should sit in either. But the general effect of the bill on the constitution of the country would have been far more important. The crown would have lost one of its chief powers, and the relations between the peers and the rest of the nation would have been altogether changed. They would not have come any nearer to the strict notion of a nobility, for it was not proposed to confer direct privilege on any but the peers themselves. But the bill would have placed both the peers and their families in a wholly new position. They would have become a body into which no one could be raised, except in the occasional case of a peerage becoming extinct. It would have been impossible to move a statesman from the Commons to the Lords at any moment when it might be for the public good that he should be moved, Even the lord chancellor, the speaker of the House of Lords, could not have received a peerage unless one chanced to be extinct at the needful time. It is plain that the peers, if they did not become a nobility, would have become an oligarchy, a close body, cut off both from the crown and from the mass of the people in a way in which they had never been cut off before.
The next change in the peerage was that which followed the union with Ireland in 1800. The terms of that union, as regarded the peerage, differed a good deal from those of the union with Scotland. The twenty-eiedit representative peers of Ireland are chosen for life, and the other Irish I peers are capable of sitting in the House of Commons for I constituencies in Great Britain ; only by so doing they lose the privileges of peerage (other than mere titles and precedence) so long as they are members of that body. The Irish peerage is not doomed to extinction as well as the Scottish ; one Irish peerage may always be created whenever three have become extinct, and the Irish peerage is always to be kept up to the number of one hundred, not counting those who hold peerages of the United Kingdom.
The changes with regard to the lords spiritual intro- duced by the union with Ireland, by the disestablishment of the Irish Church, and by the increase in the number 1 of English bishoprics have affected the character of the House of Lords, but not that of the hereditary temporal peerage. By the Act of Union one Irish archbishop and four bishops - afterwards only three - were entitled to seats in rotation, changing, not from parliament to parliament, but from session to session. This arrangement was probably practically more convenient ; but it seems contrary to the nature of a summons, which must surely be a summons for the whole life of a parliament. Each Irish bishop was thus an in posse lord of parliament, like the Scottish and Irish temporal peers, only with the certainty of a seat some time, if he lived long enough. By the Act of Disestablishment in 1869 the Irish bishops lost their seats altogether. And by two Acts of the present reign the English prelates, except the holders of the two archiepiscopal sees and those of London, Durham, and Winchester, have their position completely changed. The number of bishops has been increased, but not the number of spiritual lords. The bishop therefore who holds any see but one of those five waits for his summons to parliament till he reaches it by seniority. Till then he too is a lord of parliament in posse.
In our own day too we come, in 1856, to the case of : the Wensleydale peerage, which has been already referred I to (see May, Constitutional History, i. 291-298). Sir James Parke was by letters-patent created a peer for life only, and a summons to parliament was issued to him accordingly. This was a return to the ancient practice of the 14th and lab centuries ; hut the power does not appear to have been exercised in later times except in the case of peeresses (see Nicolas, Historic Peerage, xlvi. ; May, i. 292). One hardly knows what to make of such creations as those of Lord Hay in 1606 and Lord Reede in 1644, the accounts of which in the Historic Peerage (xlvi. 243, 394) seem somewhat contradictory. But, if the creation of Lord Hay was a real creation of a peer for life, but without the right to a seat in parliament, it was so defined by a clause in the patent itself, which would seem to imply that, without such a clause, the creation would have given a right to a scat in parliament. The right of the crown to create life-peers, though not exercised, was constantly asserted by the best lawyers, and it is admitted even in the Lords' Report (ii. 37; see May, i. 294). Yet in 1856 the House of Lord' took upon itself, in defiance of the whole history of their order, to refuse admission to a baron lawfully created, lawfully summoned, merely because the crown had not bound itself, in the 19th century any more than in the 13th or 14th, to summon the representatives of the baron so created for ever and ever. This decision seems to be now accepted as law; yet it is hard to sec how, except when they have been taken away by Act of Parliament, any powers which were exercised by Edward I. can be refused to Queen Victoria. In short, the rights of the crown, the reason and expediency of the case, were all sacrificed to the superstition about "ennobling of blood." And Sir T. E. May, recording the resolution with admiration (i. 296), tells us that " by constitutional usage, having the force of law, the House of Lords had been for centuries a chamber consisting of hereditary councillors of the crown," and that "the crown could not change its constitution by admitting a life-peer to a seat in parliament." Three pages further on he found out that the House of Lords contained other members whose seats were not "hereditary" in the modern sense, and we can hardly think that he used that word in its ancient meaning. The crown yielded to the pretensions of the lords ; Lord Wensleydale received a fresh creation by a patent extending to his imaginary heirs, and it is to be presumed that he was thereby "ennobled in blood" to the satisfaction of those with whom he had to sit. While the question of life-peerage was left in abeyance, the official peerages referred to at the beginning of this article were created by an act of 1876. These are the Lords of Appeal in Ordinary, paid officers who hold their office, like other judges, during good behaviour, who are lords of parliament, with a right to a writ of summons to sit and vote so long as they hold office, and who rank for life as barons with such titles as the crown may appoint. In the case therefore of the resignation or removal from office of a lord of appeal we should have the non-parliamentary baron revived. Whether in such a case he would be entitled to be tried in the king's court in parliament does not appear. Nor does the Act rule whether the lord so created is a peer, either while he is a lord of parliament or after he ceases to be such. The doctrine of "ennobling of blood " would seem to imply that, as his title is not hereditary, he is not a peer. It would follow then that a lord of appeal who has resigned or has been removed, though "entitled to rank as a baron for life," is a baron who is neither a peer nor a lord of parliament.
A peerage, by the decisions of 1640 and 1678 (Lords' Report, ii. 25, 49) cannot be either surrendered to the crown or alienated to any other person. It can be forfeited only by attainder or by Act of Parliament. Of this last process there seems to be only one case, that of George Neville, duke of Bedford, degraded by parliament in the reign of Edward IV., as not being wealthy enough to support his dignity. This of course, like attainder by Act of Parliament, comes under the general principle that parliament may do anything. It is further held (Historic Peerage, lxviii.) that, while an attainder for high treason extinguishes a peerage of any kind, an attainder for felony only extinguishes a peerage by writ, but not a peerage by patent. A peeress in her own right by descent or creation has all the privileges of a peer, except that of sitting in parliament, which is suspended while the peerage is held by a female, but revives when it passes to a male heir. The wife or widow of a peer, not being a peeress in her own right, lies also the same privileges ; but she loses them if she marries a commoner. By social usage she keeps her title, but, if charged with treason or felony, she is tried by a jury and not by the lords. If a peerage which passes to heirs-general, like the ancient baronies by writ, is held by a man who leaves no son, but more than one daughter, the peerage goes into abeyance ; that is, it is held by no one till the abeyance is terminated. If there conies to be only one person representing the claims of all the sisters, he can claim the termination of the abeyance as a matter of right. The crown also can terminate it at any moment in favour of any of the persons between whom it is in abeyance, that is, in favour of the representative of any of the sisters. It is by this transmission through females that the ancient baronies have mainly lived on, often overshadowed by higher but more modern titles. Those peers who can show a direct succession in the male line from 1295 are few indeed. By female succession also the titles of these and other ancient baronies have in most cases got parted from the original surnames of the holders. This seems to have led to the practice, which of late has been rather the rule than the exception, of creating peers with fancy titles, often very strange ones, sometimes neither their own surnames nor the name of any place with which they have anything to do. Yet, by a survival of the ancient notion of barony, the baron is always created Lord A of B (per-baps more strictly Lord A, Baron of B), though the place named is by no means always his own manor. The earl of course could originally be only the earl of a shire - the name of the shire and of the shire-town being often used indifferently. But, as the order of earls became more numerous, and as the official character of the earldom was quite forgotten, men were made earls of places of all kinds, and in modern times a surname has often been the title of both earls and marquesses. It is needless to say that the titles of marquesses, when territorial, have had no necessary reference to the original meaning of the title, as keeper of a march. The titles of dukedoms seem always to have been territorial, unless in the singular case of "Duchess Dudley " in the reign of Charles I. Dudley was the lady's surname ; she does not seem to have been in any sense duchess of the town of Dudley. Clarendon always talks of "Duke Hamilton " ; but here the surname is taken from a place. Viscounts take their titles both from names and places ; but the viscount who has a territorial title is never spoken of as viscount of A, as the duke is always, and the marquess and the earl in language which is at all formal.
Children of peers have a definite precedence and an elaborate system of courtesy titles and epithets which 0 perplexes foreigners and sometimes natives. The eldest son of a peer ranks immediately after peers of the rank next below that of his father ; the younger sons rank after peers of the next degree below that. Thus a duke's eldest son ranks next after marquesses ; a marquess's eldest son ranks next after earls, and a duke's younger son next after eldest sons of marquesses. The precedence of daughters follows the general principle, the principle implied in the doctrine of abeyance, that all daughters rank with the eldest son. Then again the eldest sons of dukes, marquesses, and earls bear by courtesy the second title of their fathers, and the eldest sons of the eldest sons of dukes and marquesses bear what may be called the grandfather's third title. All these, though called by a title of peerage, are, as we have already had need to insist, legally commoners ; but the eldest sons of peers have been not uncommonly summoned to the House of Lords by the title of some barony held by their fathers. Their precedence is in no way affected by the title which they may happen to bear. The eldest son of a duke always ranks next after• marquesses, whether his courtesy title, that is the second title of his father, is marquess or baron. The younger sons of dukes and marquesses bear the courtesy title of Lord with the Christian and surname, and, on the principle which regulates the precedence of daughters, the title of Lady extends to the daughters of earls as well as to those of dukes and marquesses. The daughter of a peer married to a commoner keeps her rank ; but, if she marries a peer, she takes the rank of her husband, whether that be higher or lower than the rank which she has by birth. In all these matters the substantial privileges of the peerage and its mere honorary titles and precedence are often at curious cross purposes with one another. All sons of peers are esquires of right. By courtesy all children of peers who do not bear any higher title are entitled to the conventional epithet of " honourable " ; " noble " they are not in any, even conventional, sense. The style formerly was, with perfect correctness, "Hon. A B, Esq." The "Esq." is now left out ; it is not easy to see why.
It is curious to compare the peerage of England, and the peerages of Scotland and Ireland formed after its model, )1* with the famous body of the twelve peers of France, from which we cannot doubt that the name pares was transferred to the English assembly of witan, magnates, or proceres. The twelve were the archbishop and duke of Rheims, the bishops and dukes of Langres and Laon, the bishops and counts of Beauvais, Noyon, and Chtdons, the dukes of Burgundy, Normandy, and Aquitaine, the counts of Flanders, Toulouse, and Champagne. The list of the spiritual peers, a little startling at first, is easily understood when we take in the circumstances of the French kingdom in the 12th century. The six prelates are those who held of the king of the French as king ; the other great churchmen of the Western Kingdom held either of one of the vassal princes (as the archbishop of Rouen did of the duke of the Normans) or of the king as duke, as did among others the bishop of Paris, whom at first sight we might have looked for on the list.. The institution of this body is commonly attributed to the age of Philip Augustus, and indeed to that king personally ; and it can hardly be doubted that it had its origin in the romances of Charlemagne. The twelve peers are said to have appeared at Philip's coronation, and also to have formed the court by which John, duke of the Normans and king of the English, was deprived of the lands that he held in fief of the French crown. But it is certainly hard to see them all in the character of twelve peers on either occasion, though it is certain that some of them were present at Philip's coronation in 1179, and among them the then duke of the Normans and husband of the duchess of Aquitaine, Henry king of the English.1 Nor does the exact name of pares seem to be given by any contemporary writer to the body by which John is said to have been condemned, though it is so used in the next century (see Prxclara Francorum Facinora, ap. Duchesne, Rer. Franc. Script., v. 764). But