# 1911 Encyclopædia Britannica/Peerage

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​PEERAGE (Fr. pairage, med. Lat. paragium; M.E. pere, O. Fr. per, peer, later pair; Lat. paris, “equal”). Although in England the terms “peerage,” “nobility,” “House of Lords” are in common parlance frequently regarded as synonymous, in reality each expresses a different meaning. A man may be a peer and yet not a member of the House of Lords, a member of the House of Lords and yet not strictly a peer; though all peers (as the term is now understood) are members of the House of Lords either in esse or in posse. In the United Kingdom the rights, duties and privileges of peerage are centred in an individual; to the monarchical nations of the Continent nobility conveys the idea of family, as opposed to personal, privilege.
Etymologically “peers” are “equals” (pares), and in Anglo-Norman days the word was invariably so understood. The feudal tenants-in-chief of the Crown were all the peers of each other, whether lords of one manor or of a hundred; so too a bishop had his ecclesiastical peer in a brother bishop, and the tenants of a manor their Origin of Peerage. peers in their fellow-tenants. That even so late as the reign of John the word was still used in this general sense is clear from Magna Carta, for the term “judicium parium” therein must be understood to mean that every man had a right to be tried by his equals. This very right was asserted by the barons as a body in 1233 on behalf of Richard, earl marshal, who had been declared a traitor by the king’s command, and whose lands were forfeited without proper trial. In 1233 the French bishop Peter des Roches, Henry III.’s minister, denied the barons’ right to the claim set up on the ground that the king might judge all his subjects alike, there being, he said, no peers in England (Math. Paris. 389). The English barons undoubtedly were using the word in the sense it held in Magna Carta, while the bishop probably had in his mind the French peers (pairs de France), a small and select body of feudatories possessed of exceptional privileges. In England the term was general, in France technical. The change in England was gradual, and probably gathered force as the gulf between the greater barons and the lesser widened, until in course of time, for judicial purposes, there came to be only two classes, the greater barons and the rest of the people. The barons remained triable by their own order (i.e. by their peers), whilst the rest of the people rapidly became subject to the general practice and procedure of the king’s justices. The first use of the word “peers” as denoting those members of the baronage who were accustomed to receive regularly a writ of summons to parliament is found in the record of the proceedings against the Despensers in 1321 (Stubbs, Const. Hist. ii. 347), and from that time this restricted use of the word has remained its ordinary sense.
Properly to understand the growth and constitution of the peerage it is necessary to trace the changes which occurred in the position of the Anglo-Norman baronage, first through the gradual strengthening of royal supremacy with the consequent decay of baronial power locally, and subsequently by the consolidation of parliamentaryAnglo-Norman Baronage. institutions during the reigns of the first three Edwards.
Before the conquest the national assembly of England (see Parliament) was the Witan, a gathering of notables owing their presence only to personal influence and standing. The imposition of a modified feudal system resulted in a radical alteration. Membership of the Great Councils of the Norman kings was primarily an incidentThe Saxon Witenagemot. of ​tenure, one of the obligations the tenants-in-chief were bound to perform, although this membership gradually became restricted by the operation of the Royal prerogative to a small section of the Baronial class and eventually hereditary by custom. The Norman Councils may have arisen from the ashes of a Saxon Witenagemot, but there is little evidence of any historical continuity between the two. The Church in England, as in Christendom generally, occupied a position of paramount importance and far-reaching influence; its leaders, not alone from their special sanctity as ecclesiastics, but as practically the only educated men of the period, of necessity were among the chief advisers of every ruler in Western Europe. In England churchmen formed a large proportion of the Witan, the more influential of the great landowners making up the rest of its membership.
In place of the scattered individual and absolute ownership of Saxon days the Conqueror became practically the sole owner of the soil. The change, though not immediately complete, followed rapidly as the country settled down and the power of the Crown extended to its outlying frontiers. As Saxon land gradually passed Norman Feudal Tenure. into Norman hands the new owners became direct tenants of the king. Provided their loyal and military obligations were duly performed they had fixity of tenure for themselves and their heirs. In addition fixed money payments were exacted on the succession of the heir, when the king’s eldest son was knighted, his eldest daughter married, or his person ransomed from captivity. In like manner and under similar conditions the king’s tenants, or as they were termed tenants-in-chief, sub-granted the greater portion of their holdings to their own immediate followers. Under Norman methods the manor was the unit of local government and jurisdiction, and when land was given away by the king the gift invariably took the form of a grant of one or more manors.
When he brought England into subjection the Conqueror’s main idea was to exalt the central power of the Crown at the expense of its feudatories, and the first two centuries following the conquest tell one long tale of opposition by the great tenants-in-chief to a steadily growing and unifying royal pressure. With this idea of royal supremacy firmly fixed in his mind, William’s grants, excepting outlying territory such as the marches of Wales or the debateable ground of the Scottish border, which needed special consideration, were seldom in bulk, but took the form of manors scattered over many counties. Under such conditions it was practically impossible for a great tenant to set up a powerful imperium in imperio (such as the fiefs of Normandy, Brittany and Burgundy), as his forces were distributed over the country, and could be reached by the long arm of royal power, acting through the sheriff of every county, long before they could effectively come together for fighting purposes. The tenants-in-chief were termed generally barons (see Baron) and may be regarded historically as the parents of the peers of later days. The pages of Domesday (1086), the early Norman fiscal record of England, show how unevenly the land was distributed; of the fifteen hundred odd tenants mentioned the majority held but two or three manors, while a favoured few possessed more than a hundred each. Land was then the only source of wealth, and the number of a baron’s manors might well be regarded as a correct index of his importance.
The king’s tenants owed yet another duty, the service of attending the King’s Court (curia regis), and out of this custom grew the parliaments of later days. In theory all the king’s tenants-in-chief, great and small, had a right to be present as incident to their tenure. It has therefore been argued by some authorities that as the The King’s Court. Conqueror’s system of tenure constituted him the sole owner of the land, attendance at his courts was solely an incident of tenure, the Church having been compelled to accept the same conditions as those imposed on laymen. But, as already pointed out, the change in tenure had not been immediate, and there had been no general forfeiture suffered by ecclesiastical bodies; consequently throughout the early years of William’s reign some of the English bishops and abbots attended his courts as much by virtue of their personal and ecclesiastical importance as by right of tenure. The King’s Court was held regularly at the three great festivals of the Church and at such other times as were deemed advisable. The assembly for several generations neither possessed nor pretended to any legislative powers. Legislative power was a product of later years, and grew out of the custom of the Estates granting supplies only on condition that their grievances were first redressed. The great bulk of the tenants were present for the purpose of assenting to special taxation above and beyond their ordinary feudal dues. When necessary a general summons to attend was sent through the sheriff of every county, who controlled a system of local government which enabled him to reach every tenant. In course of time to a certain number of barons and high ecclesiastics, either from the great extent of their possessions, their official duties about the king or their personal importance, it became customary to issue a personal writ of summons, thus distinguishing them from the general mass summoned through the sheriff. That this custom was in being within a century of the Conquest is clear from an incident in the bitter fight for supremacy between Archbishop Becket and Henry II. in 1164 (Stubbs, Const. Hist. i. 504), it being recorded that the king withheld the Archbishop’s personal summons to parliament, and put upon him the indignity of a summons through the sheriff. During the succeeding fifty years the line becomes even more definite, though it is evident that the Crown sometimes disregarded the custom, as the barons are found complaining that many of their number deemed entitled to a personal summons had frequently been overlooked.
The sequel to these complaints is found in Magna Carta, wherein it is provided that the archbishops, bishops, abbots, earls and greater barons are to be called up to the council by writ directed to each severally; and all who hold of the king in chief, below the rank of greater barons, are to be summoned by a general Magna Carta and Personal Summons to the Majores Barons. writ addressed to the sheriff of their shire. Magna Carta thus indicates the existence of two definite sections of the king’s tenants, a division which had evidently persisted for some time. The “greater barons” are the immediate parents of the peerages of later days, every member of which for more than four centuries had a seat in the House of Lords. As for the rest of the tenants-in-chief, poorer in estate and therefore of less consequence, it is sufficient here to note that they fell back into the general mass of country families, and that their representatives, the knights of the shire, after some hesitation, at length joined forces with the city and burgher representatives to form the House of Commons.
In 1254, instead of the general summons through the sheriff to all the lesser tenants-in-chief, the king requires them to elect two knights for each shire to attend the council as the accredited representative of their fellows. In the closing days of 1264 Simon de Montfort summoned to meet him early in 1265 the first parliament worthy of Parliament of 1254. the name, a council in which prelates, earls and greater barons, knights of the shire, citizens and burghers were present, thus constituting a representation of all classes of people. It has been argued that this assembly cannot be regarded as a full parliament, inasmuch as Simon de Montfort summoned personally only such members of the baronage as were favourable to his cause, and issued writs generally only to those counties and cities upon which he could rely to return representatives in support of his policy. Stubbs holds the view that the first assembly we ought to regard as a full parliament was the Model Parliament which met at Westminster in 1295. This Model Parliament of 1295. parliament, unlike Simon’s partisan assembly of 1265, was free and representative. To every spiritual ​and temporal baron accustomed to receive an individual writ, one was issued. Every county elected its knights and every city or borough of any importance was instructed by the sheriff to elect and to return its allotted number of representatives. Stubbs’s view (Const. Hist. ii. 223) may probably be regarded as authoritative, inasmuch as it was adopted by Lord Ashbourne in the Norfolk peerage case of 1906 (Law Reports [1907], A.C. at p. 15). Edward I. held frequent parliaments throughout his reign, and although many must be regarded as merely baronial councils, nevertheless year after year, on all important occasions, the knights of the shire and the citizens appear in their places. The parliament of Shrewsbury in 1283, for instance, has been claimed as a full parliament in several peerage cases, but no clear decision on the point has ever been given by the Committee for Privileges. It may be taken for granted, however, that any assembly held since 1295, which did not conform substantially to the model of that year, cannot be regarded constitutionally as a full parliament. The point is even of modern importance, as in order to establish the existence of a barony by writ it must be proved that the claimant’s ancestor was summoned by individual writ to a full parliament, and that either he himself or one of his direct descendants was present in parliament.
It is now convenient to consider the various grades into which the members of the peerage are grouped, and their relative positions. An examination of the early writs issued to individuals shows that the baronage consisted of archbishops, bishops, abbots, priors, earls and barons. In course of time every member of these classes Grades of Peerage. came to hold his land by feudal tenure from the Crown, and eventually in every instance the writs issued as an incident of tenure. It is therefore necessary to discover, if possible, what combination of attributes clothed the greater baron with a right to receive the king’s personal writ of summons. While the archbishops and bishops received their writs with regularity, the summonses to heads of ecclesiastical houses and greater barons were intermittent. The prelate held an office which lived on regardless of the fate of its temporary holder, and if by reason of death, absence or translation the office became vacant, a writ still issued to the “Guardian of the Spiritualities.” The abbot, on the other hand, often outside the jurisdiction of the English Church, and owing allegiance to a foreign order, was but the personal representative of a land-holding community. It has already been pointed out that the amount of land held direct from the king by individuals varied greatly, and that the extent of his holding must have had something to do with a man’s importance. A landless noble in those days was inconceivable. The conclusion, then, may be drawn that in theory the issue of a writ was at the pleasure of the Crown, and that in practice the moving factor in the case of the prelates was office and personal importance, and in the case of abbots and barons probably, in the main, extent of possession. There is nothing however to show that in the early years of the custom any person had a right to claim a writ if it were the king’s pleasure or caprice to withhold it and to treat everyone not summoned individually as being duly summoned under the general writs issued to the sheriff of the county.
The next point for consideration is when did the peerage, as the baronage subsequently came to be called, develop into a body definitely hereditary? Here again growth was gradual and somewhat obscure. Throughout the reigns of the Edwards summonses were not always issued to the same individual for successive parliaments; Hereditary Principle. and it is quite certain that the king never considered the issue of one writ to an individual bound the Crown to its repetition for the rest of his life, much less to his heirs in perpetuity. Again we must look to tenure for an explanation. The custom of primogeniture tended to secure estates in strict family succession, and if extent of possession had originally extracted the acknowledgment of a personal summons from the Crown it is more than probable that as successive heirs came into their inheritance they too would similarly be acknowledged. In early days the summons was a burden to be suffered of necessity, an unpleasant incident of tenure, in itself undesirable, and probably so regarded by the majority of recipients during at least the two centuries following the Conquest. The age of the Edwards was in the main a rule of settled law, of increase in population generally, of growing power in the large landowners and of opportunities for those about the person of the king. The times were changing, and in place of the idea of the writ being a burden, its receipt gradually came to be looked upon as a mark of royal favour, a recognition of position and an opportunity leading on to fortune. Once such a view was established it is easy to understand how desirous any individual would be to preserve so valuable a privilege for his posterity; and primogeniture with its strict settlement of estates pointed out an easy way. The Crown was itself an hereditary dignity; and what more natural than that it should be surrounded by an hereditary peerage? Thus the free and indiscriminate choice of the Crown became fettered by the custom that once a summons had been issued to an individual to sit in parliament and he had obeyed that summons he thereby acquired a right of summons for the rest of his lifetime; and in later years when the doctrine of nobility of blood became established his descendants were held to have acquired the same privilege by hereditary right.
The earl’s position in the baronage needs some explanation. Various suggestions have been made as to Saxon or Norman origin of a high official nature, but historical opinion seems generally to incline towards the theory that the term was a name of dignity conferred by royal prerogative on a person already classed among the greater barons. At first the dignity was official and certainly not hereditary, and the name of a county of which he is said to have been an officer in the king’s name was not essential to his dignity as an earl. There were also men who, though Scottish and Norman earls, and commonly so addressed and summoned to parliament, were rated in England as barons (Lords Reports, ii. 116, 120; Earldom of Norfolk Peerage Case, Law Reports [1907], A.C. p. 18). Earls received individual summonses to parliament by the name of Earl (q.v.); but there is reason to believe, as already mentioned, that in early days at any rate they sat not in right of their earldoms but by tenure as members of the baronage.
If we review the political situation at the beginning of the 14th century a great change is evident. The line between those members of the baronage in parliament and the rest of the people is firmly and clearly drawn. Tenure as the sole qualification for presence in the national assembly has disappeared, and in its place there Writ Supersedes Tenure. appears for the baronage a system of royal selection and for the rest of the people one of representation. The rules and customs of law relating to the baronage slowly crystallized so as to provide the House of Lords, the history of which for generations is the history of the peerage of England, whilst the representative part of parliament, after shedding the lower clergy, ultimately became the House of Commons.
Until the reign of Richard II. there is no trace of any use of the term baron (q.v.) as importing a personal dignity existing apart from the tenure of land, barons owing their seats in parliament to tenure and writ combined. This is borne out by the fact that a husband was often summoned to parliament in his wife’s right and name, and while she lived fulfilled those feudal, military and parliamentary obligations attached to her lands which the physical disabilities of sex prevented her from carrying out in her own person (Pike, House of Lords, p. 103).
Primogeniture, a custom somewhat uncertain in early Anglo-Norman days, had rapidly developed into a definite rule of law. As feudal dignities were in their origin inseparable from the tenure of land it is not surprising that they too followed a similar course of descent, although as the idea of a dignity being exclusively personal Peerage becomes a Personal Dignity. gradually emerged, some necessary deviations from the rules of law relating to the descent of land inevitably resulted. In the eleventh year of his reign Richard II. created by letters patent ​John Beauchamp “Lord de Beauchamp and baron of Kyddermynster, to hold to him and the heirs of his body.” These letters patent were not founded on any right by tenure of land possessed by Beauchamp, for the king makes him “for his good services and in respect of the place which he had holden at the coronation (i.e. steward of the household) and might in future hold in the king’s councils and parliaments, and for his noble descent, and his abilities and discretion, one of the peers and barons of the kingdom of England; willing that the said John and the heirs-male of his body issuing, should have the state of baron and should be called by the name of Lord de Beauchamp and Baron of Kyddermynster.” The grant rested wholly on the grace and favour of the Crown and was a personal reward for services rendered. Here then is a barony entirely a personal dignity and quite unconnected with land. From Richard’s reign to the present day baronies (and indeed all other peerage honours) have continued to be conferred by patent. The custom of summons by writ was not in any way interfered with, the patent operating merely to declare the dignity and to define its devolution. Summons alone still continued side by side for many generations with summons founded on patent; but after the reign of Henry VIII. the former method fell into disuse, and during the last two hundred and fifty years there have been no new creations by writ of summons alone. So from the reign of Richard II. barons were of two classes, the older, and more ancient in lineage summoned by writ alone, the honours descending to heirs-general, and the newer created by letters patent, the terms of which governed the issue of the summons and prescribed the devolution of the peerage in the line almost invariably of the direct male descendants of the person first ennobled. The principle of hereditary succession so clearly recognized in the Beauchamp creation is good evidence to show that a prescriptive right of hereditary summons probably existed in those families whose members had long been accustomed to receive individual writs. By the time the House of Lancaster was firmly seated on the throne it may be taken that the peerage had become a body of men possessing well-defined personal privileges and holding personal dignities capable of descending to their heirs.
The early origin of peerages was so closely connected with the tenure of land that the idea long prevailed that there were originally peerages by tenure only, i.e. dignities or titles annexed to the possession (and so following it on alienation) of certain lands held in chief of the king. The older writers, Glanville (bk. ix. cc. 4, 6) and Bracton Peerages by Tenure. (bk. ii. c. 16), lend some colour to the view. They are followed, but not very definitely, by Coke, Selden and Madox. Blackstone, who discusses the question in his Commentaries (bk. i. c. xii.), seems to believe that such dignities existed in pre-parliamentary days but says further: “When alienations grew to be frequent, the dignity of peerage was confined to the lineage of the party ennobled, and instead of territorial became personal.” The Earldom of Arundel case, in 1433, at first sight seems to confirm the theory, but it may be noted that when in later years this descent came to be discussed the high authority of an act of parliament was found necessary to confirm the succession to the dignity. The case is discussed at some length in the Lords Reports (ii. 115), the committee regarding it as an anomaly from which no useful precedent can be drawn. Other cases discussed in the same Report are those of De Lisle, Abergavenny, Fitzwalter and Berkeley. The Berkeley case of 1858–1861 (better reported 8 H.L.C. 21) is essential for the student who wishes to examine the question carefully; and may be regarded as finally putting an end to any idea of bare tenure as an existing means of establishing a peerage right (see also Cruise on Dignities, 2nd ed. pp. 60 et seq.).
The main attribute of a peerage is that hereditary and inalienable quality which ennobles the blood of the holder and his heirs, or, as a great judge put it in 1625 in the Earldom of Oxford case, “he cannot alien or give away this inheritance because it is a personal dignity annexed to the posterity and fixed in the blood” (Dodridge, J., Peerage Inalienable. at p. 123, Sir W. Jones’s Reports). Were the theory of barony by tenure accepted it would be possible for the temporary holder of such a barony to sell it or even to will it away to a stranger possessing none of the holder’s blood, with the effect that, in the words of Lord Chancellor Campbell (Berkeley case, 8 H.L.C. 77), “there might be various individuals and various lines of peers successively ennobled and created peers of parliament by a subject,” an impossible condition of affairs in a country where the sovereign has always been the fountain of honour. Moreover, while no peerage honour can be extinguished or surrendered, the owner of lands can freely dispose of such rights as he possesses by sale or transfer. Finally we may accept the verdict in the Fitzwalter case of 1669 (Cruise, ibid. p. 66), which was adopted by the House of Lords in the Berkeley case: “and the nature of a barony by tenure being discussed, it was found to have been discontinued for many ages, and not in being, and so not fit to be revived or to admit any pretence or right of succession thereupon.”
Until the reign of Edward III. the peerage consisted only of high ecclesiastics, earls and barons. The earls were barons with their special name of dignity added, and their names always appear on the rolls before those of the barons. In 1337 King Edward created his son, the Black Prince, duke of Cornwall, giving him precedence over the rest Dukes. of the peerage. The letters patent (under which the present heir to the throne now holds the dukedom) limited the dignity in perpetuity to the first-born son of the king of England. Subsequently several members of the royal family were created dukes, but no subject received such an honour until fifty years later, when Richard II. created his favourite Robert de Vere, earl of Oxford, duke of Ireland (for life). The original intention may have been to confine the dignity to the blood royal, as with the exception of de Vere it was some years before a dukedom was again conferred on a subject.
In 1385 Richard II. had created Robert de Vere marquess of Dublin, thus importing an entirely new and unknown title into the peerage. The grant was, however, only for life, and was in fact resumed by the Crown in 1387, when its recipient was created duke of Ireland. It was not until 1397 that another creation was made, this time in favour of one of Marquess. the blood royal, John de Beaufort, eldest legitimated son of John of Gaunt, who became marquess of Dorset. His title was shortly afterwards taken away by Henry IV’s first parliament. Subsequently creations were made only at long intervals, that of Winchester (1551) being the only one (of old date) under which an English marquess at present sits in the House of Lords (see Marquess).
Under the name of viscount (q.v.) Henry VI. added yet another order, and the last in point of time, to the peerage, creating in 1440, John, Baron Beaumont, Viscount Beaumont and giving him precedence next above the barons. The name of this dignity was also borrowed from the Continent, having been in use for some time as a title of honour in the king’s Viscounts. French possessions. None of the new titles above mentioned ever carried with them any official position; they were conferred originally as additional honours on men who were already members of the peerage.
The application of the hereditary principle to temporal peerages early differentiated their holders from the spiritual peers. Both spiritual and temporal peers were equally lords of parliament, but hereditary pretensions on the one side and ecclesiastical exclusiveness on the other soon drew a sharp line of division between the two Spiritual Peers, etc. orders. Gradually the temporal peers, strong in their doctrine of “ennobled” blood, came to consider that theirs was an order ​above and beyond all other lords of parliament, and before long, arrogated to themselves the exclusive right to be called peers, and as such the only persons entitled to the privileges of peerage.
In early parliamentary days it had been the custom to summon regularly to attend the Lords for deliberative purposes another body of men—the judges. Less important than the prelates, they also owed their summons to official position, and like them were eventually overshadowed by the hereditary principle. The force of hereditary right gave to ennobled blood a position never possessed by either judge or prelate. It is true the prelate, in point of antiquity, was senior to both earl and baron, and in many cases superior in extent of possessions; but these attributes belonged to his office, the resignation or deprivation of which would at any time have caused him to lose his writ of summons. The writ issued really to the office. The judge’s position was even worse. His judicial office evoked the writ, but at any moment he might be deprived of that office at the arbitrary pleasure of the Crown. It is doubtful whether the judges ever had voice and vote in the same sense as the other lords of parliament, and even if they had they soon came to be regarded merely as counsellors and assessors.
The pretensions of the lay peers were not admitted without a struggle on the part of the prelates, who made the mistake of aiming at the establishment of a privileged position for their own order while endeavouring to retain every right possessed by their lay brethren. They fell between two stools, lost their position as peers, and were beaten back in their fight for ecclesiastical privilege. In the reign of Richard II. the prelates are found clearly defining their position. Neville, archbishop of York, de Vere, duke of Ireland and others, were “appealed” for treason, and the archbishop of Canterbury took the opportunity in parliament of making clear the rights of his order. He said “of right and by the custom of the realm of England it belongeth to the Archbishop of Canterbury for the time being as well as others his suffragans, brethren and fellow bishops, abbots and priors and other prelates whatsoever, holding of our lord the king by barony, to be present in person in all the king’s parliaments whatsoever as Peers of the Realm aforesaid, and there with the other Peers of the Realm, and with other persons having the right to be there present, to advise, treat, ordain, establish and determine as to the affairs of the realm and other matters there wont to be treated and to do all else which there presses to be done.” After this he went on to say that as to the particular matters in question they intended to be present and to take their part in all matters brought before parliament “save our estate and order and that of each of the prelates in all things. But because in the present parliament there is question of certain matters, in which it is not lawful for us or anyone of the prelates according to the institute of the Holy Canons in any manner, to take part personally” we intend to retire “saving always the rights of our peerage” (Rot. Parl. 11 Rich. II No. 6—printed iii. 236–237). At the desire of the prelates this statement of their rights was duly enrolled in parliament, but their claim to be peers was neither denied nor admitted, and the proceedings went on without them. For themselves Churchmen never claimed the privilege of trial by peers. Whenever they were arraigned they claimed to be altogether outside secular jurisdiction, and it was therefore a matter of small concern to them whether they were in the hands of peers or peasants. Such was the attitude of Becket towards Henry II. (Stubbs, Const. Hist. i. 504), of Archbishop Stratford towards Edward III. (Pike, pp. 188 seq.), and it was probably with the history of these two cases in his mind that the archbishop of Richard II.’s reign speaks of the saving rights of his order. These rights were never willingly admitted in England, and as the pope’s power for interference waned so the prelates were forced under the ordinary law of the land. Henry VIII. certainly never regarded ecclesiastics as peers, as may be gathered from a grant early in his reign to the then abbot of Tavistock for himself and each succeeding abbot the right to be “one of the spiritual and religious lords of parliament.” As to abbots, the subsequent dissolution of the monasteries put an end to the discussion. In this reign also Cranmer and Fisher, though the former was archbishop of Canterbury, were tried by a common jury, and they certainly claimed no privilege of peerage. The Standing Orders of the House of Lords for 1625 contain the statement that “Bishops are only Lords of Parliament and not Peers” (Lords Journals, iii. 349). In 1640 the “Lords Spiritual” were altogether excluded from the House of Lords by act of parliament, and were not brought back until the second year of the Restoration. From that period there has been no question as to their position. Peers and holders by barony when parliaments first met, by the end of the 15th century they had put themselves outside the pale of the peerage. To-day their ancient lands are vested in trustees (Ecclesiastical Commissioners), and office alone constitutes a bishop’s qualification, and that only if he occupies one of the five great sees of Canterbury, York, London, Durham and Winchester, or is of sufficient seniority in appointment to fill one of the remaining twenty-one places on the bench of bishops in the house—for there are now only twenty-six seats for thirty-six prelates.
The reign of Henry VIII. brought about far-reaching changes in the position of the peerage. When that king ascended the throne the hereditary element was in a decided minority, but the balance was gradually redressed until at length a bare hereditary majority was secured and the dissolution of the monasteries made Henry VIII. and the Peerage. Ennobled Blood. possible. The peers, many now grown fat on abbey lands, at once began to consolidate their position; precedents were eagerly sought for, and the doctrine of ennobled blood began to find definite and vigorous expression. So long, the peers declared, as there is any ennobled blood, a peerage must exist; and it can be extinguished only by act of parliament, failure of heirs, or upon corruption of blood by attainder. Stubbs writes with some contempt of the doctrine (Const. Hist. iii. 458 n.), apparently on the ground that it is absurd to speak of ennobled blood so long as the children of a peer still remain commoners. The doctrine is neither unreasonable nor illogical. By it is meant blood in which there always exists a capacity to inherit a particular peerage, and every person in whose veins the ennobled blood runs is competent to occupy the peerage if the chances of nature should remove those who are senior to him in the line of descent. A good illustration is the popular use of the term “blood royal,” which of course does not mean that an individual of the blood royal necessarily occupies a throne but that he or she is in the line of succession to it. Similarly, persons of “ennobled blood” are not necessarily peers but in the line of descent to peerages, to which they may or may not succeed. (See Nobility.)
The English peer is not like the continental noble the member of a caste, but the holder for life of an office clothed with high and exceptional legislative and judicial attributes entirely dependent on his office and exercisable only in conjunction with his fellow peers in parliament assembled. Such privileges as he possesses are due primarily to his office rather than to his blood. His children are commoners, who though accorded courtesy titles by the usage of society have no legal privileges not shared with the humblest of British subjects. It is this peculiar official quality of an English peerage which saved England from the curse of a privileged noble caste such as that which so long barred all progress in France and Germany. As a result there are hundreds of families in the United Kingdom who, commoners there, would yet, from their purity of blood, position and influence, be accounted noble in any continental country.
From the doctrine of nobility of blood is derived the rule of law that no peerage (a Scots peerage is under Scots Law) can be surrendered, extinguished, or in any way got rid of unless the blood be corrupted. The rule is well illustrated by the earldom of Norfolk case (Law Reports [1907], A. C. 10) in which its development was Surrender of Peerages. traced, and the principle authoritatively confirmed. In 1302 the hereditary earldom of Norfolk (created in 1135) was in the possession of Hugh Bygod, one of the most powerful nobles of ​Plantagenet days. The earl got into difficulties, and as some say, for a consideration, and others, to spite his brother and debtor, surrendered his earldom and all the lands thereto belonging, to King Edward I. from whom he subsequently received it back with an altered limitation to himself and the heirs of his body. As he was a childless old man this was practically a short life interest to the exclusion of all his relatives, the nearest of whom but for the surrender would have succeeded. Soon after Bygod died, and the earldom fell into the hands of Edward II. who granted it to his brother Thomas of Brotherton in 1312. Lord Mowbray, the lineal descendant of this Thomas, recently came forward and claimed the earldom, but in 1906 the House of Lords decided against his claim on the ground that in law Bygod’s surrender was invalid, and that therefore Edward II. had no valid power to grant this particular earldom to Thomas of Brotherton. Historically there is little to support such a decision, and indeed this rigid application of the law is of comparatively recent date. Without doubt king, nobles and lawyers alike were all agreed, right down to Tudor days, that such surrenders were entirely valid. Many certainly were made, but, according to the decision of 1906, any living heirs of line of those nobles who thus got rid of their peerage honours can, if their pedigrees be provable, come to the House of Lords with a fair chance of reviving the ancient honours. Even as late as 1663 we find the Crown, naturally with the concurrence of its legal advisers, stating in the barony of Lucas patent (1663) that, on the appearance of co-heirs to a barony, the honour may be suspended or extinguished at the royal pleasure. The royal view of the law (at any rate as to extinction) was strongly objected to by the Lords, who guarded their privileges in Stuart days even more strictly than did the Commons. As early as 1626, in the celebrated dispute over the earldom of Oxford, the lord great chamberlainship and the baronies of Bolebec, Badlesmere and Sandford, Mr Justice Dodridge, who had been called in by the Lords to advise them, said that an earl could not give away or alien his inheritance, because it was “a personal dignity annexed to the posterity and fixed in the blood.” Fourteen years later, in the Grey de Ruthyn case, the Lords solemnly resolved, “That no peer of the realm can drown or extinguish his honour (but that it descends unto his descendants), neither by surrender, grant, fine nor any other conveyance to the king.” In 1678 the Lords became, if possible, even more definite, in view probably of the fact that the Crown had disregarded the Grey de Ruthyn resolution, having in 1660 taken into its hands, by surrender of Robert Villiers, 2nd viscount, the viscounty of Purbeck. In 1676 the son of the second viscount applied for his writ of summons, and on the advice of Sir William Jones, the attorney-general, who reported that “this (surrender) was a considerable question, never before resolved that he knew of,” the king referred the whole matter to the Lords. The Lords were very explicit, being “unanimously of the opinion, and do resolve that no fine now levied, or at any time hereafter to be levied by the king, can bar such title of honour (i.e. of a peer of the realm), or the right of any person claiming under him that levied, or shall levy such fine.” On these resolutions passed in the seventeenth century, the Lords of 1906 find illegal a surrender of 1302. The result seems strange, but it is, at any rate, logical from the legal point of view. It was urged that in 1302 no real parliament, in the sense applied to those of later years, was in existence; and consequently, a resolution founded on parliamentary principles should not apply. To this answer was made: Although it may be true that the law and practice of parliament had not then crystallized into the definite shape of even a hundred years later, the “Model Parliament” was summoned seven years before Bygod’s surrender, and it is necessary to have some definite occurrence from which to date a legal beginning—a point of law with which an historian can have little sympathy.
Briefly, perhaps, from the teaching of the case it may be permissible to state the rule as follows: In early days the Norman and Plantagenet kings took upon themselves to deal with the barons in a manner which, though illegal, was suffered because no one dared oppose them; but as time went on, becoming stronger and more determined to enforce their privileges and exalt their order the peers were able to compel recognition of their rights, and their resolutions in Stuart days were only declaratory of law which had always existed, but had been systematically disregarded by the Crown. This being so, resolutions of the peers deliberately and expressly laid down must, when in point, always be followed.
The application of the doctrine of corruption of blood to peerages arises out of their close connexion with the tenure of land, peerage dignities never having been regarded as personal until well on into the 14th century. Conviction for any kind of felony—and treason originally was a form of felony—was always followed Attainder and Corruption of Blood. by attainder. This resulted in the immediate corruption of the blood of the offender, and its capacity for inheritance was lost for ever. Such corruption with all its consequences could be set aside only by act of parliament. This stringent rule of forfeiture was to some extent mitigated by the passing in 1285 of the statute De Donis Conditionalibus (Blackstone’s Commentaries, ii. 116) which made possible the creation of estates tail, and when a tenant-in-tail was attainted forfeiture extended only to his life interest. The statute De Donis was soon applied by the judges to such dignities as were entailed (e.g. dignities conferred by patent with limitations in tail), but it never affected baronies by writ, which were not estates in tail but in the nature of estates in fee simple descendible to heirs general. In the reign of Henry VIII. an act was passed (1534) which brought estates tail within the law of forfeiture, but for high treason only. The position then became that peerages of any kind were forfeitable by attainder following on high treason, while baronies by writ remained as before forfeitable for attainder following on felony. In 1708, just after the Union with Scotland, an act was passed by which on the death of the Pretender and three years after Queen Anne’s death the effects of corruption of blood consequent on attainder for high treason were to be abolished, and the actual offender only to be punished (stat. 7 Anne, c. 21, § 10). Owing to the 1745 rising, the operation of this act was postponed until the decease of the Pretender and all his sons (stat. 17 Geo. II. c. 39, § 3). In 1814 forfeiture for every crime other than high and petty treason and murder was restricted to the lifetime of the person attainted (stat. 54 Geo. III. c. 145). Finally in 1870 forfeiture, except upon outlawry, was altogether abolished and it was provided that “no judgment of or for any treason or felony should cause any attainder or corruption of blood, or any forfeiture or escheat.” The necessity for ascertaining the exact condition of the law with regard to attainder throughout the whole period of English parliamentary history will be realized when it is remembered that there still exist dormant and abeyant peerages dating from 1295 onwards which may at any time be the subject of claim before the House of Lords, and if any attainders exist in the history of such peerages the law governing their consequences is not the law as it exists to-day but as it existed when the attainder occurred. The dukedom of Atholl case of 1764 is interesting as showing the effect of attainder on a peerage where the person attainted does not actually succeed. John first duke of Atholl died in 1725 leaving two sons James and George. George the younger was attainted of treason in 1745 and died in 1760, leaving a son John. James, the second son of the first duke, who had succeeded his father in 1725 died in 1764 without issue. John his nephew then claimed the dukedom, and was allowed it on the ground that his father never having been in the possession of the dukedom his attainder could not bar his son, who succeeds by reason of his heirship to his uncle. It would have been otherwise had the younger son outlived his brother, for he would then have succeeded to the dukedom and so destroyed it by his attainder.
In many cases there have been passed special parliamentary acts of attainder and forfeiture, and these, of course, operate apart from the general law. In any event, attainder and forfeiture of a dignity, whether resulting from the rules of the common law or from special or general acts of parliament can ​only be reversed by act of parliament. The procedure in reversing an attainder and recovering a dignity is as follows. The Crown signifies its pleasure that a bill of restoration shall be prepared and signs it. The bill is then brought in to the House of Lords, passed there, and sent to the Commons for assent. The last bills of the kind became law in 1876, when Earl Cowper procured the removal of the attainder on one of his Ormond ancestors and so by purging the blood of corruption became entitled to, and was allowed, the barony of Butler of Moore Park (created in 1663). There should also be noted the Earldom of Mar Restitution Act 1885, which, while mainly confirmatory of a disputed succession, at the same time reversed any attainders that existed.
The House of Lords grew steadily throughout the Tudor period, and during the reign of the first two Stuarts underwent a still greater increase. In the Great Rebellion the majority of the peers were the king’s stoutest supporters and thus inevitably involved themselves in the ruin of the royal cause. Immediately after the execution of Charles I. the Republicans proceeded Commonwealth Abolition of the Lords. to sweep away everything which savoured of monarchy and aristocracy. The House of Commons voted the Lords “useless and dangerous,” got rid of them as a part of parliament by the simple expedient of a resolution (Comms. Journs. 1648–1649, vi. 111) and placed the sole executive power in Cromwell’s hands, but there was no direct abolition of the peerage as such. Evidently it took Cromwell but little time to realize the fallacy, in practice, of single-chamber government, as he is found ten years after the “useless and dangerous” resolution busy establishing a second chamber. What to call it aroused much discussion, and eventually the unruly Commons consented to speak of and deal with “the other house.” It is very difficult to realize what was the constitution Cromwell’s House of Lords. of this body, so short was its life and so contemptuous its treatment by the Commons. The members of “the other house” were summoned by writs under the Great Seal, similar in form to those used to summon peers of past days. Some sixty writs were issued, and presumably their recipients were entitled thereby to sit for the duration of the parliament to which they were summoned; but it may be considered as certain that Cromwell’s lords were never regarded as hereditary peers. They were entitled to the courtesy appellation “Lord” and appear to have been in the main substantial men—existing peers, judges, distinguished lawyers and members of well-known county families. Judging from Cromwell’s speech at the opening of parliament, and subsequent entries in Whitelock’s diaries, the new house appears to have had revising functions both of a legislative and judicial nature and also the duty of taking cognizance of foreign affairs. Cromwell certainly issued two patents of hereditary peerage—the barony of Burnell and the barony of Gilsland (with which went the viscounty of Howard of Morpeth), but neither title was recognized on the Restoration, and it does not appear that the possession of these titles ever conferred on their holders any hereditary right to a writ of summons to sit in “the other house.” Whitelock himself was promised a viscounty by Cromwell, but no patent ever appears to have passed the Great Seal. Eventually business between the two houses grew impossible, and Cromwell was compelled to dissolve parliament. Richard’s first parliament also contained Lords as well as Commons, the latter considerately voting “to transact business with the persons sitting in the other house as an House of Parliament, saving the right of the peers who had been faithful to the parliament,” the saving clause evidently a loophole for the future. The dissolution of this parliament and the retirement of the protector Richard into private life preceded by only a few months the restoration to the throne of Charles II. With the king the peers returned to their ancient places.
From the reign of William of Orange the peerage has been freshened by a steady stream of men who as a rule have served their country as statesmen, lawyers and soldiers. Little of note occurred in the history of the peerage until the reign of Anne. By the Act of Union with Scotland (1707) the Scottish parliament was abolished; but the Scottish Representative Peers. Scottish peerage were given the privilege of electing, for each parliament of Great Britain, sixteen of their number to represent them in the House of Lords. Further creations in the Scottish peerage were no longer to be made. The effect of this act was to leave the great majority of the Scottish peers outside the House of Lords, as only sixteen of their number were to become lords of parliament. Close upon a hundred years later Ireland was united with Great Britain, the Irish parliament being merged in the parliament of the United Kingdom of Great Britain and Ireland. Twenty-eight Irish peers were to be elected for life by their order to represent it in the House of Lords. One archbishop and three bishops were also chosen in turn to represent the Irish Church in the House of Lords, but Irish Representative Peers. when that Church was disestablished in 1867 the spiritual lords lost their seats. The merger of the three kingdoms had an important effect on their peerages. Every peer in his own country had been a lord of parliament by hereditary right. The English peer (and, as the Acts of Union were passed, the peer of Great Britain and the peer of the United Kingdom) continued by hereditary right a lord of parliament. The Scottish and Irish peers lost this right though by the two Acts of Union they retained every other privilege of peerage. Henceforth they were lords of parliament only as and when their fellow peers elected them. Thus though not all were lords of parliament in esse, every one was always so in posse, and in any case it was the hereditary quality of the peerage which either actually seated its holder in the House of Lords or made it possible for him to get there by the votes of his fellows.
It now becomes possible to arrive at the modern meaning of the term “a peerage,” and we may define it as a dignity of England, Scotland or Ireland, which, by its hereditary quality, confers on its holder for the time being the right to be or not to be elected a lord of parliament. The term “peerage” Modern Meaning of “Peerage.” is also used in a collective sense.
The reign of Anne is remarkable for an attempt made by the House of Lords to limit its numbers by law. The queen, in order to secure a majority for the court party, had created a batch of twelve peers at one time, a considerable number in relation to existing peerages; and it was feared this expedient might be used as a Queen Anne and Peerage Limitations. precedent. A peerage limitation bill was introduced into the House of Lords in 1719. Six new creations were to be allowed, but after these the Crown, except in the case of royal princes, was to create a new peerage only when an old one became extinct. Twenty-five hereditary peerages in Scotland were to take the place of the sixteen representative peers for all time. The bill passed the Lords, but was eventually thrown out in the House of Commons, though not by an overwhelming majority. In 1856 it was desired to strengthen the judicial element in the House of Lords, and the Crown issued letters patent creating Sir James Parke, one of the barons of the exchequer, Baron Wensleydale and a peer “for and during the term of his natural life.” The burden of an hereditary peerage is heavy, and many men Wensleydale Case. thoroughly well qualified in legal attainments have been known to refuse it on the ground of expense alone. This life-peerage was thought to be a way out of the difficulty, and it was on Lord Chancellor Cranworth’s advice that the Crown issued the Wensleydale patent. The House of Lords at once realized that the creation of life-peers, at the will of the ministry of the day, might put the hereditary section into an absolute minority, and possibly in time, by form of law, get rid of it altogether. Eventually it was decided by the house that “neither the said letters patent nor the said letters patent with the usual writ of summons enable the grantee to sit and vote in parliament,” a formal resolution which closed the door in the face of every ​person whom the Crown might endeavour to make a life-peer. The government of the day accepted the situation, and soon afterwards a new patent was made out which followed the usual limitation to heirs-male. The precedents in favour of the Crown’s action were not strong. The essential and outstanding attribute of the house was its hereditary character. The whole balance of the constitution worked on the pivot of the independence of the peers. They existed as a moderating force in the counsels of parliament, and the alteration of the hereditary character of the House of Lords might easily have rendered it amenable to whatever pressure the government of the day might see fit to exercise. In such circumstances its position as arbiter between people and government would tend to disappear. A change fraught with so many serious possibilities ought not, it was said, to be made by the simple prerogative of the Crown. If so far-reaching an alteration in the law were justifiable it was for parliament to make it. Further, it was pointed out, there had been no life-creations for centuries, and those that are recorded to have been conferred since the crystallization of our parliamentary system were of such a nature that the grantees never sat in the house by virtue of their life-honours, inasmuch as they were existing peers or women. Soon Judicial Peers. after the Wensleydale debates the government introduced a bill into the House of Lords to authorize the creation of two life-peers, who were to be persons of at least five years’ standing as judges. They were to sit as lords of appeal but to be peers for life. Eventually the bill disappeared in the House of Commons. In 1869 Earl Russell introduced another life-peerage bill of far wider scope. Twenty-eight life-peerages might be in existence at any one time, but not more than four were to be created in any one year. The life peers would be lords of parliament for life. They were to be selected by the Crown from the peerages of Scotland and Ireland, persons who had sat for ten years in the Commons, distinguished soldiers, sailors, civil servants and judges or persons distinguished in science, literature or art. The bill received a rough handling in committee of the Lords, and the time was evidently not ripe for change, as the bill failed to pass its third reading.
In 1870 attempts were made in the House of Lords to alter the position of the Scottish and Irish representative peers. In 1876 the need of further judicial strength in the Lords was tardily admitted, and an act was passed authorizing the creation of two lords of appeal in ordinary, and power was reserved to appoint two more Suggested Reforms and Alterations. as certain judicial vacancies occurred. They were to be entitled to the rank of baron during their lives but were to sit and vote in parliament only so long as they held their judicial office. Their dignities lasted for life only. Eleven years later another act enabled all retired lords of appeal to sit and vote as members of the House of Lords for life. To those interested in House of Lords reform the pages of Hansard’s Parliamentary Debates are the best authority. In 1888 reform bills were introduced by Lords Dunraven and Salisbury, and in 1907 by Lord Newton. In December 1908 the publication of a long report with sweeping recommendations for reform ended the labours of a House of Lords committee which had been appointed to consider the question in detail. In the session of 1910, following the general election, long discussions took place in both houses of parliament. Opinion generally was freely expressed that the time had arrived for diminishing the number of lords of parliament and for putting into practice the principle that hereditary right alone should no longer confer lordship of parliament. (See Parliament.)
The Scottish peerage, like that of England, owes its origin to feudalism. In Anglo-Norman days Scotland was a small country, and for some generations after England was settled the Scottish king’s writ ran little beyond the foot of the Highlands, and even the Lord of the Isles reckoned himself an independent sovereign until the Scottish Peerage. beginning of the 15th century. The weak and usually ineffective control of the Crown resulted in opportunities for acquiring personal power which the nobles were not slow to take advantage of. Seldom accustomed to act in concert, they soon developed particularist tendencies which steadily increased the strength of their territorial position. These conditions of existence were entirely unfavourable to the establishment of any system of parliamentary government such as centralization had made possible in England, therefore it is not surprising to find that the lesser barons were not relieved of their attendance at the national assemblies until well on in the 15th century (Burton’s Scotland, iii. 111). Again, when the Scottish earls and barons came to parliament, they did not withdraw themselves from the rest of the people, it being the custom for the estates of Scotland to deliberate together, and this custom persisted until the abolition of their parliament by the Act of Union in 1707. The territorial spirit of the nobles inevitably led them to regard the honour as belonging to, and inseparable from, their land, and until comparatively late in Scottish history there is nowhere any record of the conferment of a personal dignity unattached to land such as that conferred in England on Beauchamp by Richard II. This explains the frequent surrenders and altered grants which are so common in Scottish peerage history, and which, in sharp distinction to the English rule of law, are there regarded as perfectly legal. To-day there exists no Scottish dukedom (except the royal dukedom of Rothesay), marquessate or viscounty created before the reign of James VI. of Scotland (and I. of England). Of the existing Scottish peerages sixty-three were created in the period between James’s accession to the English throne and the Act of Union. There are now only eighty-seven in all. Unlike one of the English peerages owing its origin exclusively to a writ of summons, ancient Scottish peerages do not fall into abeyance, and when there are only heirs-general, the eldest heir of line succeeds.
Whenever a new parliament is summoned, proclamation is made in Scotland summoning the peers to meet at Holyrood to elect sixteen of their number to represent them in such parliament. The Scottish peerages are recorded on a roll, and this is called over by the lord clerk register before the assembled peers seated at a long table. Each peer answers to the name of the peerage (it may be one or more) he possesses. The roll is then read again and each peer in turn (but only once) rises and reads out the list of those sixteen peers for whom he votes. Proxies are allowed for absent peers and are handed in after the second roll-call. The votes are counted and the lord clerk register reads out the names of those elected, makes a return, and signs and seals it in the presence of the peers assembled. The return eventually finds its way to the House of Lords. The Scottish representative peer so elected receives no writ of summons to parliament, but attends the House of Lords to take the oath, his right to sit being evidenced by the return made. It might be thought that the rules of election in so important a matter would be more stringent, but the fact remains that it is quite possible for an entirely unqualified person to attend and vote at Holyrood. No evidence of identity or of a man’s right to be present is required and the lord clerk register is compelled to receive any vote tendered except in respect of peerages for which no vote has been given since 1800, these being struck off the roll (10 & 11 Vict. c. 52). Any person claiming to represent such a peerage must prove his right before the House of Lords, as was done in the case of the barony of Fairfax in 1908. It is true that by the act last cited any two peers may protest against a vote at Holyrood, and the lord clerk register thereupon reports the proceedings to the House of Lords, who will consider the question if application be made for an inquiry, but nothing is done unless an application is made. The right to vote certainly needs better proof than that now accepted. For many years the House of Lords maintained that the Crown could not confer a new peerage of Great Britain on a Scottish peer, the ground being that the Scottish peerage was only entitled to the sixteen representative peers given it by the Act of Union, but eventually in 1782 in the case of the duke of Hamilton this contention was given up.
The Anglo-Norman conquerors of Ireland carried with them the laws and the system of tenure to which they were accustomed ​in England, and consequently the growth of the baronage and the establishment of parliamentary government in Ireland proceeded on parallel lines with the changes which occurred in England. Until the reign of Henry VIII. Irish Peerage. the Irish were without representation in parliament, but gradually the Irish were admitted, and by the creation of new parliamentary counties and boroughs were enabled to elect representatives. In 1613 the whole country shared in representation (Ball’s Legislative Systems of Ireland). Just as James I. had added many members to the Scottish peerage, so he increased the number of Irish peers.
In 1800 the Union of Great Britain and Ireland abolished the parliament of Ireland. By the Act of Union the Irish peers became entitled to elect twenty-eight of their number to represent them in the House of Lords. The election is for life, and only those peers are entitled to vote at elections of representative peers who have proved their right of succession to the satisfaction of the lord chancellor, who issues his notice to that effect after each individual proof. The names of such peers are added to the voting-roll of the peerage, and when voting papers are distributed—the Irish peers do not meet for election purposes as do those of Scotland—they are sent only to those peers who have proved their right to vote. If any claim to the right to vote is rejected by the lord chancellor the claimant must prove his case before the Committee for Privileges (barony of Graves, 1907). When an Irish peer has been elected a representative peer he receives, as a matter of course, a writ of summons at the beginning of each parliament. The great bulk of the Irish peerage owes its existence to creations during the last two centuries, only seven of the existing peerages dating back beyond the 17th century; of the rest twenty-two were created during the year of Union, and thirty-three have been added since that date. Some hundred or more years ago ministers found the Irish peerage a useful means of political reward, in that it was possible to bestow a title of honour, with all its social prestige, and yet not to increase the numbers of the House of Lords.
On the death of a representative peer of Scotland or Ireland a vacancy occurs and a new election takes place, but in accordance with modern practice promotion to a United Kingdom peerage does not vacate the holder’s representative position (May’s Parliamentary Practice, p. 11 n.). Scottish and Irish peers, if representative, possess all the privileges of peerage and parliament enjoyed by peers of the United Kingdom; if non-representative all privileges of peerage, except the right to a writ of summons to attend parliament and to be present at and vote in the trial of peers. A Scottish peer, if non-representative, is in the anomalous position of being disabled from serving his country in either house of parliament, but an Irish peer may sit for any House of Commons constituency out of Ireland, though while a member of the Commons his peerage privileges abate.
Though many peers possess more than one peerage, and frequently of more than one country, only that title is publicly used which is first in point of precedence. It was once argued that whenever a barony by writ came into the possession of a person already a peer of higher rank, the higher peerage “attracted” or overshadowed the lower, which thenceforth followed the course of descent of the dignity which had attracted it. This doctrine is now exploded and cannot be regarded as applying to any case except that of the Crown (Baronies of Fitzwalter, 1660, and De Ros, 1666; Collins’s Claims, 168, 261). Every peerage descends according to the limitations prescribed in its patent of creation or its charter, and where these are non-existent (as in the case of baronies by writ) to heirs-general. (See Abeyance.)
In dealing with English dignities it is essential to realize the difference between a mere title of honour and a peerage. The Crown as the fountain of honour is capable of conferring upon a subject not only any existing title of honour, but may even invent one for the purpose. So James I. instituted an order of hereditary knights which he termed baronets, and Edward VII. created the duchess of Fife “Princess Royal”—a life dignity. The dignities of prince of Wales, earl marshal and lord great chamberlain have been Creations must be according to Law. for centuries hereditary, and though of high court and social precedence, of themselves confer no right to a seat in the House of Lords—they are not peerages. The grant of a peerage is a very different matter; its holder becomes thereby a member of the Upper House of Parliament, and therefore the prerogative of the Crown in creating such an office of honour must be exercised strictly in accordance with the law of the land. The Crown’s prerogative is limited in several directions. The course of descent must be known to the law; and so, in the first place, it follows that a peer cannot be created for life with a denial of succession to his descendants (unless it be as one of the lords of appeal in ordinary under the acts of 1876 and 1887). The courses of descent of modern patents are invariably so marked out as ultimately to fix the peerage in some male line according to the custom of primogeniture, though the immediate successor of the first holder may be a woman or even a stranger in blood. The following instances may be cited; Amabell, Baroness Lucas, was in 1816 created Countess de Grey with a limitation to the heirs-male of her sister; a nephew afterwards succeeded her and the earldom is now held by the marquess of Ripon. Other courses of descent known to the law are as follows: Fee simple, which probably operates as if to heirs-general, earldoms of Oxford (1155) and Norfolk (1135), both probably now in abeyance; and Bedford (1367), extinct; to a second son, the eldest being alive, dukedom of Dover (1708), extinct, and earldom of Cromartie (1861) called out of abeyance in 1895; a son-in-law and his heirs-male by the daughter of the first grantee, earldom of Northumberland (1747); to an elder daughter and her heirs-male, earldom of Roberts (1901); to an elder or younger brother and his heirs-male, viscounty of Kitchener (1902) and barony of Grimthorpe (1886). It is, however, not lawful for the Crown to make what is called a shifting limitation to a peerage, i.e. one which might vest a peerage in an individual, and then on a certain event happening (e.g. his succession to a peerage of higher rank) shift it from him to the representative of some other line. Such a limitation was held illegal in the Buckhurst case (1864). A peerage may not be limited to the grantee and “his heirs-male for ever.” Such a grant was that of the earldom of Wiltes in 1398. The original grantee died without issue, but left a male heir-at-law, whose descendants in 1869 claimed the earldom, but the original limitation was held invalid.
There is no limitation on the power of the Crown as to the number of United Kingdom peerages which may be created. As to Scotland, the Act of Union with that country operates to prevent any increase in the number of Scottish peerages, and consequently there have been no creations since 1707, with the result that the Scottish peerage, as a separate order, is gradually approaching extinction. The Irish peerage is supposed always to consist of one hundred exclusively Irish peers, and the Crown has power to grant Irish peerages up to the limit. When the limit is reached no more peerages may be granted until existing ones become extinct or their holders succeed to United Kingdom peerages. Only four lords of appeal in ordinary may hold office at any one time. The number of archbishops and bishops capable of sitting in the House of Lords is fixed by various statutes at twenty-six, but, as pointed out previously, the spiritual lords are not now regarded as peers.
Since party government became the rule, the new peerages have usually been created on the recommendation of the prime minister of the day, though the Crown, especially in considering the claims of royal blood, is believed in some instances to take its own course; and constitutionally such action is entirely legal. By far the Growth in Numbers. greater number of peerage honours granted during the last two centuries have been rewards for political services. Usually these services are well known, but there exists several instances in which the reasons for conferring the honour have not been quite clear. Until the reign of George III. the peerage was ​comparatively small, but that monarch issued no fewer than 388 patents of peerage. Many of these have become extinct or obscured by higher titles, but the general tendency is in the direction of a steady increase, and where the peers of Tudor times might be counted by tens their successors of 1910 were numbered in hundreds. The full body would be 546 English peers. There are also 12 ladies holding English peerages. The Irish peerage has 175 members, but 82 of these are also peers of the United Kingdom, leaving 28 representative and 65 without seats in the House of Lords. Of 87 Scottish peers 51 hold United Kingdom peerages, the remainder consisting of 16 representative and 20 without seats.
As centuries have gone by and customs changed, many privileges once keenly asserted have either dropped out of use or been forgotten. The most important now in being are a seat in the House of Lords and the right to trial by peers. The right to a seat in parliament is one sanctioned by centuries of constitutional Privileges of Peerage. usage. The right of a peer in England to a seat in parliament was not, as pointed out in the early part of this article, entirely admitted by the Crown until late in the Plantagenet period, the king’s pleasure as to whom he should summon always having been a very material factor in the question. Charles I. made a deliberate attempt to recover the ancient discretion of the Crown in the issue of writs of summons. The earl of Bristol was the subject of certain treasonable charges, and though he was never put on his trial the king directed that his writ of summons should not issue. The excluded peer petitioned the Lords, as for a breach of privilege, and a committee to whom the matter was referred reported that there was no instance on record in which a peer capable of sitting in parliament had been refused his writ. There was a little delay, but the king eventually gave in, and the earl had his writ (Lords Journals, iii. 544).
At the beginning of a new parliament every peer entitled receives a writ of summons issued under the authority of the Great Seal; he presents his writ at the table of the House of Lords on his first attendance, and before taking the oath. If the peer be newly created he presents his letters-patent creating the peerage to the lord chancellor on the woolsack, together with the writ of summons which the patent has evoked. A peer on succession presents his writ in the ordinary way, the Journals recording, e.g. that Thomas Walter, Viscount Hampden, sat first in Parliament after the death of his father (Lords Journals, cxxxix. 4). The form of writ now issued (at the beginning of a parliament: for the variation when parliament is sitting see Lords Journals, cxxxix. 185) corresponds closely to that in use so long ago as the 14th century. It runs as follows:—
George the Fifth by the Grace of God of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the seas King Defender of the Faith to our right trusty and well-beloved Greeting Whereas by the advice and consent of our Council for certain arduous and urgent affairs concerning us the state and the defence of our said United Kingdom and the Church we have ordered a certain Parliament to be holden at our City of Westminster on the . . . day of . . . next ensuing and there to treat and have conference with the prelates great men and peers of our realm We strictly enjoining command you upon the faith and allegiance by which you are bound to us that the weightiness of the said affairs and imminent perils considered (waiving all excuses) you be at the said day and place personally present with us and with the said prelates great men and peers to treat and give your counsel upon the affairs aforesaid. And this as you regard us and our honour and the safety and defence of the said United Kingdom and Church and despatch of the said affairs in no wise do you omit.
Formerly all peers were required to attend parliament, and there are numerous recorded instances of special grants of leave of absence, but nowadays there is no compulsion.
After the right to a summons the principal privilege possessed by a peer is his right to be tried by his peers on a charge of treason or felony. Whatever the origin of this right, and some writers date it back to Saxon times (Trial of Lord Morley, 1678, State Trials vii. 145), Magna Carta has always been regarded as its confirmatory authority. The Peers Tried by Peers. important words are:—
“nullus liber homo capiatur imprisonetur aut disseisiatur de libero tenemento suo vel libertatibus seu liberis consuetudinibus suis, aut utlagetur aut exuletur nec aliquo modo distruatur nec dominus rex super ipsum ibit nec super eum mittet nisi per legale judicium parium suorum vel per legem terrae.”
The peers have always strongly insisted on this privilege of trial by their own order, and several times the heirs of those wrongly condemned recovered their rights and heritage on the ground that there had been no proper trial by peers (R.D.P., v. 24). In 1442 the privilege received parliamentary confirmation (stat. 20 Henry VI. c. 9). If parliament is sitting the trial takes place before the House of Lords in full session, i.e. the court of our lord the king in parliament, if not then before the court of the lord high steward. The office of lord high steward was formerly hereditary, but has not been so for centuries and is now only granted pro hac vice. When necessity arises the Crown issues a special commission naming some peer (usually the lord chancellor) lord high steward pro hac vice (Blackstone’s Comm. iv. 258). When a trial takes place in full parliament a lord high steward is also appointed, but his powers there are confined to the presidency of the court, all the peers sitting as judges of law as well as of fact. Should the lord high steward be sitting as a court out of parliament he summons a number of peers to attend as a jury, but rules alone on all points of law and practice, the peers present being judges of fact only. Whichever kind of trial is in progress it is the invariable practice to summon all the judges to attend and advise on points of law. The distinction between the two tribunals was fully discussed and recognized in 1760 (Trial of Earl Ferrers, Foster’s Criminal Cases, 139). The most recent trial was that of Earl Russell for bigamy (reported 1901, A.C. 446). Among others are the Kilmarnock, Cromarty and Balmerino treason trials in parliament in 1746 (State Trials xviii. 441), and in the court of the lord high steward, Lord Morley (treason, 1666, State Trials vi. 777), Lord Cornwallis (murder, 1678 State Trials vii. 145), Lord Delamere (1686, treason, State Trials xi. 510). Recently some doubt has been expressed as to the origin of the court of the lord high steward. It is said that the historical document upon which the practice is founded is a forgery. The conflicting views are set forth in Vernon Harcourt’s His Grace the Steward and Trial of Peers, p. 429, and in Pike’s Constitutional History of the House of Lords, p. 213. In any case, whatever its historical origin, the court for centuries as a matter of fact has received full legal recognition as part of the constitution. The right to trial by peers extends only to cases of treason and felony, and not to those of misdemeanour; nor can it be waived by any peer (Co. 3 Inst. 29; Kelyng’s Rep. 56). In the case of R. v. Lord Graves (1887), discussed in Hansard’s Parliamentary Debates, 3rd series, vol. cccx. p. 246, Lord Halsbury points out that the question of trial by peers is one of jurisdiction established by law rather than a claim of privilege in the discretion of the accused. Scottish and Irish peers, whether possessing seats in the House of Lords or not, are entitled to trial by peers, the same procedure being followed as in the case of members of the House of Lords.
Peers with a seat in the House of Lords possess practically the same parliamentary privileges as do members of the House of Commons. Among other privileges peculiar to themselves they have the right of personal access to the sovereign (Anson’s Law of the Constitution, i. 227). In the House of Lords, when a resolution is passed contrary to his sentiments, any peer, by leave of the house, may “protest,” that is, enter his dissent on the journals of the house (Blackstone, Comm. i. 162). Formerly a peer might vote by proxy (Blackstone, ibid.), but since 1868 there has been a standing order discontinuing this right. In accordance with resolutions passed by the two houses, neither house has power by any vote or declaration to clothe itself with new privileges unknown to the law and customs of parliament (Commons Journal, xiv. 555). Peeresses and non-representative peers of Ireland and Scotland have, ​with the exception of the right to sit in the House of Lords and its attendant parliamentary privileges, every peerage privilege: a widowed peeress retains her privilege of peerage while unmarried, but loses it if she marries a commoner (Co. Litt. 166; Cowley v. Cowley [1901] A.C. 450). Dissolution of marriage probably deprives a peeress of all peerage privileges which she acquired by marriage.
The children of peers are commoners. The eldest son of a peer of the rank of earl (and above) is usually known socially by the name of his father’s next peerage, but the courtesy nature of such title is clearly indicated in every public or legal document, the phraseology employed being “John Smith, Esq., commonly known as Viscount Position of Families of Peers. Blackacre.” Several cases are on record in which peers’ eldest sons have actually borne courtesy titles not possessed as peerage honours by their fathers, but inasmuch as such are only accorded by courtesy, no question of peerage privilege arises. The younger sons of dukes and marquesses are entitled to the prefix “Lord” before their Christian names, and all the daughters of earls as well as of dukes and marquesses are entitled similarly to style themselves “Lady,” on the principle that all the daughters are equal in rank and precedence. The younger sons of earls and all the younger children of viscounts and barons are entitled to the prefix “Honourable.” Usually when the direct heir of a peer dies his children are given, by the Crown, on the death of the peer, the courtesy titles and precedence they would have enjoyed had their father actually succeeded to the peerage.
An alien may be created a peer, but while remaining an alien cannot sit in the House of Lords, nor, if a Scottish or Irish peer, can he vote at elections for representative peers. Peerages may be created (1) by writ of summons, (2) by patent. The writ of summons method is not now used except in the case of calling up an eldest son in the barony of his Creation of Peerages. father. This does not create a new peerage but only accelerates the heir’s appearance in the House of Lords. On the father’s death the peerage remains vested in the son. Should the son die without heir the peerage revests in the father. The invariable method of creation in all ordinary cases is by patent. The letters patent describe the name of the dignity, the person upon whom it is conferred, and specify its course of descent.
Claims to peerages are of two kinds: (1) of right, (2) of grace. In theory the Crown, as the fountain of honour, might settle any claim without reference to the House of Lords and issue a writ of summons to its petitioner. This would not in any way prevent the House of Lords from examining the patent and writ of summons when the favoured Claims to Peerages. petitioner or any heir claiming through him came to take his seat. If of opinion that the patent was illegal the house might refuse admittance, as it did in the Wensleydale case. In the case of a petitioner who has persuaded the Crown to terminate in his favour as a co-heir the abeyance of an ancient barony and who has received his writ of summons, the matter is more difficult. The house cannot refuse to admit any person properly summoned by the Crown, as the prerogative is unlimited in point of numbers; but it can take into account the precedence of the newcomer. If he has an old barony he naturally expects its proper place on the bench of barons; but if the house thought fit they might compel him to prove his pedigree before according any precedence. If he refused to do this they would still be bound to admit him, but it would be as the junior baron of the house with a peerage dating, for parliamentary purposes, from the day of his summons. The general result is that the Crown, unless there can be no question as to pedigree, seldom terminates an abeyance without referring the matter to the House of Lords, and invariably so refers all claims which are disputed or which involve any question of law. The procedure is as follows: The claimant petitions the Crown through the home secretary, setting forth his pedigree and stating the nature of his claim. The Crown then refers the petition to its legal adviser, the attorney-general. The petitioner then in course of time appears before the attorney-general with his proofs. Finally the attorney-general reports that a prima facie case is, or is not, made out. If a case be made out, the Crown, if it does not take immediate action, refers the whole matter to the House of Lords, who pass it on to their Committee for Privileges for examination and report.
The Committee for Privileges, which for peerage claims is usually constituted of the law lords and one or two other lords interested in peerage history, sits as an ordinary court of justice and follows all the rules of law and evidence. The attorney-general attends as adviser to the committee and to watch the interests of the Crown. According to Committee for Privileges. the nature of the case the Committee reports to the house, and the house to the Crown, that the petitioner (if successful) (1) has made out his claim and is entitled to a writ of summons, or (2) has proved his co-heirship to an existing peerage, and has also proved the descent of all existing co-heirs. In the first case the writ of summons is issued forthwith, but the second, being one of abeyance, is a matter for the pleasure of the Crown, which need not be exercised at all, but, if exercised, may terminate the abeyance in favour of any one of the co-heirs. The seniority of a co-heir (though this alone is of little moment), his power to support the dignity, and the number of existing co-heirs, are all factors which count in the chances of success.
Reference has already been made in the earlier part of this article to the reply of Bishop Peter de Roches to the English barons who claimed trial by their peers, and, as was suggested the bishop probably had in his mind the peers of France. Possibly the word pares, as eventually used in England, was borrowed from this source, but this is uncertain. The great Peers of France. men known originally as the twelve pairs de France, were the feudal holders of large territories under the nominal sway of the king of France. They were the (archbishop) duke of Rheims, the (bishop) dukes of Langres and Laon, the (bishop) counts of Beauvais, Noyon and Chalons, the dukes of Burgundy, Normandy and Aquitaine, and the counts of Flanders, Toulouse and Champagne. These magnates, nominally feudatories, were practically independent rulers, and their position can in no way be compared to that of the English baronage. It is said that this body of peers was instituted in the reign of Philip Augustus, though some writers even ascribe its origin to Charlemagne. Some of the peers were present at Philip’s coronation in 1179, and later again at the alleged trial of John of England when his fief of Normandy, was adjudged forfeit to the French Crown.
As the central power of the French kings grew, the various fiefs lost their independence and became united to the Crown, with the exception of Flanders which passed into the hands of the emperor Charles V. In the 14th century the custom arose for the sovereign to honour his more important nobles by granting them the title of Peer of France. At first the grant was confined to the royal dukes, but later it was conferred on others, amongst whom late in the 17th century appears the archbishop of Paris. To several counties and baronies the honour of a peerage was added, but most of these eventually became reunited with the Crown. As a legislative body a chamber of peers in France was first founded by Louis XVIII. in 1814; it was hereditary and modelled on the English House of Lords. The revolution of 1830 reduced its hereditary quality to life tenure, and in the troubles of 1848 the chamber itself finally disappeared.
Austria, Hungary and Portugal are other countries possessing peerages which to some extent follow the English model. In Austria there is a large hereditary nobility and those members of it in whose families the legislative dignity is hereditary by nomination of the emperor sit in the Herrenhaus or Austrian Upper Chamber, together with certain prelates Other Peerages. and a large number of nominated life-members. In Hungary all those nobles who possess the right of hereditary peerage (as admitted by the act of 1885 and subsequent acts) and who pay a land tax of certain value, are members of the House of Magnates, of which they form a large majority, the remainder of the members being Roman Catholic prelates, representatives of Protestant churches and life peers. In Portugal until recent years the House of Peers was an hereditary body, but it is now practically a chamber of life-peers. (G. E.*)
* ↑ Et ab habendum commune consilium regni . . . summoneri faciemus archiepiscopos, episcopos, abbates, comites et majores barones sigillatim per litteras nostras et praeterea faciemus summoneri in generali per vicecomes et ballivos nostros omnes illos qui de nobis tenent in capite (cited in Stubbs, Const. Hist. i. 547 n.).
* ↑ Not intentional at any rate. In some cases where it was intended to call a son up in his father’s barony, a mistake in the name has been made with the result that a new peerage by writ of summons has been created. The barony of Buller, of Moore Park (cr. 1663), now in abeyance, is said to be an instance of such a mistake.
* ↑ . . . . principi et ipsius et haeredum suorum Regum Angliae filiis primogenitis (The Prince’s Case, 8 Co. Rep. 27a; 77 E.R. 513).
* ↑ Whitelock’s Memorials of English Affairs (in the reign of Charles I. and up to the Restoration) (1853 ed. iv. 313).
* ↑ This was not done in the case of the earldom of Cromartie called out of abeyance in 1895. The holder of the title being a lady the house has had, as yet, no opportunity of considering the validity of the Crown’s action.