Peerage. and temporal baron accustomed to receive an individual | early days the summons was a burden to be suffered of necessity, writ, one was issued. Every county elected its knights and an unpleasant incident of tenure, in itself undesirable, and cvery city or borough of any importance was instructed probably so regarded by the majority of recipients during at by the sheriff to elect and to return its allotted number of least the two centuries following the Conquest. The age of the representatives. Stubbs's view (Const. Hist. ii. 223) may prob- Edwards was in the main a rule of settled law, of increase in ably be regarded as authoritative, inasmuch as it was adopted population generally, of growing power in the large landowners by Lord Ashbourne in the Norfolk peerage case of 1906 (Law and of opportunities for those about the person of the king. Reports [1907], A.C. at p. 15). Edward I. held frequent parlia- The times were changing, and in place of the idea of the writ ments throughout his reign, and although many must be being a burden, its receipt gradually came to be looked upon regarded as merely baronial councils, nevertheless year after as a mark of royal favour, a recognition of position and an year, on all important occasions, the knights of the shire and opportunity leading on to fortune. Once such a view was the citizens appear in their places. The parliament of Shrews- established it is easy to understand how desirous any individual bury in 1283, for instance, has been claimed as a full parliament would be to preserve so valuable a privilege for his posterity; in several peerage cases, but no clear decision on the point and primogeniture with its strict settlement of estates pointed has ever been given by the Committee for Privileges. It may out an easy way. The Crown was itself an hereditary dignity; be taken for granted, however, that any assembly held and what more natural than that it should be surrounded by an since 1295, which did not conform substantially to the model hereditary peerage? Thus the free and indiscriminate choice of that year, cannot be regarded constitutionally as a full of the Crown became fettered by the custom that once a parliament. The point is even of modern importance, as in summons had been issued to an individual to sit in parliament order to establish the existence of a barony by writ it must and he had obeyed that summons he thereby acquired a right be proved that the claimant's ancestor was summoned by of summons for the rest of his lifetime; and in later years when individual writ to a full parliament, and that either he himself the doctrine of nobility of blood became established his or one of his direct descendants was present in parliament. descendants were held to have acquired the same privilege by It is now convenient to consider the various grades into hereditary right. which the members of the peerage are grouped, and their relative positions. An examination of the early writs Grades of 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 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 Hereditary Principle. was gradual and somewhat obscure. Throughout the reigns of the Edwards summonses were not always issued to the same individual for successive parliaments; 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 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 Earldoms. 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 writ the rest of the people is firmly and clearly drawn. Supersedes Tenure as the sole qualification for presence in the Tenure. national assembly has disappeared, and in its place there 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 AngloNorman days, had rapidly developed into a definite rule of law. As feudal dignities were in their origin inseparable Peerage from the tenure of land it is not surprising that they becomes a too followed a similar course of descent, although Personal as the idea of a dignity being exclusively 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 able quality which ennobles the blood of the holder and his 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." John Beauchamp "Lord de Beauchamp and baron of Kydder- | mynster, 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 king-holder of such a barony to sell it or even to will it away to a dom 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 Peerages by or titles annexed to the possession (and so following Tenure. it on alienation) of certain lands held in chief of the king. The older writers, Glanville (bk. ix. cc. 4, 6) and Bracton (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 preparliamentary 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 inalien1 Not intentional at any rate. In some cases where it was intended to call a son up ir 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. Dukes. 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 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.2 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, Marquesses. 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 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 Viscounts. 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 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 preten- Peers, &c. Spiritual sions on the one side and ecclesiastical exclusiveness on the other soon drew a sharp line of division between the two orders. Gradually the temporal peers, strong in their doctrine of " ennobled " blood, came to consider that theirs was an order 2. ... principi et ipsius et haeredum suorum Regum Angliae filiis primogenitis (The Prince's Case, 8 Co. Rep. 27a; 77 E.R. 513). above and beyond all other lords of parliament, and before long, | discussion. In this reign also Cranmer and Fisher, though the arrogated to themselves the exclusive right to be called peers, former was archbishop of Canterbury, were tried by a common and as such the only persons entitled to the privileges of peerage. jury, and they certainly claimed no privilege of peerage. The In early parliamentary days it had been the custom to summon Standing Orders of the House of Lords for 1625 contain the regularly to attend the Lords for deliberative purposes another statement that "Bishops are only Lords of Parliament and not body of men-the judges. Less important than the prelates, Peers " (Lords Journals, iii. 349). In 1640 the "Lords Spiritual " they also owed their summons to official position, and like them were altogether excluded from the House of Lords by act of were eventually overshadowed by the hereditary principle. parliament, and were not brought back until the second year The force of hereditary right gave to ennobled blood a position of the Restoration. From that period there has been no quesnever possessed by either judge or prelate. It is true the prelate, tion as to their position. Peers and holders by barony when in point of antiquity, was senior to both earl and baron, and in parliaments first met, by the end of the 15th century they had put many cases superior in extent of possessions; but these attributes themselves outside the pale of the peerage. To-day their ancient belonged to his office, the resignation or deprivation of which lands are vested in trustees (Ecclesiastical Commissioners), would at any time have caused him to lose his writ of summons. and office alone constitutes a bishop's qualification, and The writ issued really to the office. The judge's position was that only if he occupies one of the five great sees of Canterbury, even worse. His judicial office evoked the writ, but at any York, London, Durham and Winchester, or is of sufficient moment he might be deprived of that office at the arbitrary seniority in appointment to fill one of the remaining twenty-one pleasure of the Crown. It is doubtful whether the judges ever places on the bench of bishops in the house-for there are now had voice and vote in the same sense as the other lords of only twenty-six seats for thirty-six prelates. 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 and the Peerage. Ennobled 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 Henry VIII. minority, but the balance was gradually redressed until at length a bare hereditary majority was secured and the dissolution of the monasteries made 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 Blood. 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 Surrender rid of unless the blood be corrupted. The rule is of Peerages. well illustrated by the earldom of Norfolk case (Law Reports [1907], A. C. 10) in which its development was 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 ing stronger and more determined to enforce their privileges Attainder Blood. Plantagenet days. The earl got into difficulties, and as some | because no one dared oppose them; but as time went on, becomsay, 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 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. and CorConviction for any kind of felony-and treason ruption of originally was a form of felony-was always followed 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 Common- to sweep away everything which savoured of monwealth archy and aristocracy. The House of Commons Abolition of voted the Lords" useless and dangerous," got rid of the Lords. 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 Cromwell's single-chamber government, as he is found ten House of years after the "useless and dangerous" resoluLords. tion busy establishing a second chamber.1 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 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 1 Whitelock's Memorials of English Affairs (in the reign of Charles I. and up to the Restoration) (1853 ed. iv. 313). Peers. 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) Scottish the Scottish parliament was abolished; but the RepresentaScottish peerage were given the privilege of tive Peers. 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 Irish Repre parliament of the United Kingdom of Great Britain sentative 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 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. Limitation. in order to secure a majority for the court party, Queen Anne had created a batch of twelve peers at one time, a and Peerage considerable number in relation to existing peerages; and it was feared this expedient might be used as a 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. 66 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 Wensleydale exchequer, Baron Wensleydale and a peer for Case. and during the term of his natural life." The burden of an hereditary peerage is heavy, and many men 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 |