and conferred

right.

In one respect the discretion of the Crown was subject to an hereditary important limitation. A writ of summons conferred a right to be summoned upon the heirs of the first recipient of the writ, if only he had obeyed it and taken his seat. The date from which a writ of summons operates in this way so as to create an hereditary peerage has been variously stated. Lord Redesdale in the L'Isle case would fix it at the fifth year of the reign of Richard II; he regards the rule as settled by the statute 5 Ric. II, st. 2, c. 4, which Lord Coke interprets, and seemingly with good ground for so doing, to be merely declaratory of existing practice1. Mr. Hallam would place it later2. Bishop Stubbs tells us that it is convenient to adopt the year 1295 as the era from which the baron whose ancestor has once been summoned and has once sat in Parliament can claim an hereditary right to be so summoned 3. Professor

Difficulties from

mode of creation;

Freeman thinks that Dr. Stubbs fixes the date a little too rigidly, and says :—

'One may certainly doubt whether Edward I, when he summoned a baron to parliament meant positively to pledge himself to summon that baron's heirs for ever and ever, or even necessarily to summon the baron himself to every future parliament. The facts are the other way: the summons for a while still remains irregular. But the perpetual summons, the hereditary summons, gradually became the rule, and that rule may in a certain sense be said to date from 1295. That is, from that time the tendency is to the perpetual summons, to the hereditary summons; from that time anything else gradually becomes exceptional; things had reached a point when the lawyers were sure before long to lay down the rule that a single summons implied a perpetual and an hereditary summons'.'

§ 2. Legal difficulties in defining the estate of the Baronage. We may say that from 1295 onwards the general rule obtained that the Parliamentary baron acquired his rank and

1 Report of proceedings on claim to the barony of L'Isle, ed. Nicolas, p. 200. Mr. Pike, Const. Hist. of the House of Lords, pp. 94-100, seems to agree, as to dates, with Lord Redesdale rather than with Dr. Stubbs. 2 Hallam, Middle Ages, iii. 125. 3 Const. Hist. ii. 184.

* Encyclopaedia Britannica, Tit. Peerage.

his right to vote by writ of summons followed by the taking of his seat. The earl was created by formal investiture with the sword, frequently in Parliament, and he received a charter, or later letters patent, declaring the dignity conferred upon him and limiting its devolution. As the other ranks of the peerage were called into existence the grant was in like manner evidenced by charter or patent. Richard II conferred a barony in this manner. The practice was not repeated in the case of baronies until the reign of Henry VI, but thenceforth it became the usual mode of creating Parliamentary baronies as well as other ranks in the peerage, and tended greatly to simplify questions which from time to time arose as to the rights to disputed peerages.

nection

tenure.

For the patent was evidence of title and indicated the line in which the peerage was to descend, usually to the heirs male of the grantee of the patent; while the titles of from conbaronies which depended upon the writ of summons were with complicated, not merely by the greater difficulty of proof, and by the fact that they passed to heirs lineal, and were not limited to the male line, but undoubtedly by the fact that for a long time an impression prevailed that they were connected with the holding of land, and hence that they might be dealt with like so much landed property 1.

From this connection, right or wrong, of barony with tenure some curious results arose.

Prynne tells us 2, but without giving authority for the statement, that baronies by tenure were alienated by sales and gifts whereby the former barons, only by tenure, were no more summoned after such alienations, but the new tenants who purchased or possessed them.' It may not be easy to find proof of Prynne's general assertion, but at any rate there Alienaseems no doubt that holders of baronies exercised a power of baronies.

1 We may note the effect, in confirming the idea that baronies were by tenure, of the position of the mitred abbots who asked to be excused attendance on the ground that they did not hold baronies in the sense of land baronies. Stubbs, Const. Hist. iii. 443.

Brief Register, p. 239.

PART I.

tion of

Tenancy by the curtesy.

Surrender of baro

nies.

limitation so as to exclude heirs general in favour of a particular line of descent. Thus William Baron Berkeley in the reign of Henry VII, having barred the entail of the castle, lands and other hereditaments, including, as was considered at the time, the Parliamentary barony, settled the same on King Henry VII, in tail male with remainder to his own right heirs; the Parliamentary barony thereupon remained in abeyance until the death of Edward VI, when the heirs male of Henry VII failed and the remainder took effect in favour of the great-grandson of William's brother, who was then summoned to Parliament in right of the barony.

Again, until the end of the sixteenth century a commoner marrying a baroness in her own right became entitled to a writ of summons during her life. Henry VIII thought it objectionable that 'a dignity should shift from the husband on the death of the wife ',' and, in a case where a man claimed a dignity in right of his wife, laid down the rule that unless there was issue of the marriage, so as to make the husband a tenant by curtesy of England, he should not enjoy his wife's dignity. The right was thus narrowed, but until the Willoughby case (1580) it was held that a tenancy by the curtesy in a peerage existed during the lifetime of the father to the exclusion of the eldest son, though of age 3.

2

The surrender of a barony to the Crown by the process of levying a fine suggests the connection of the right or liability to be summoned to Parliament with the tenure of an estate. The surrenders of peerages which took place before the seventeenth century appear to have been surrenders either of earldoms which had the character of offices, or of peerages created by letters patent which might be returned to the Chancery whence they came. In the year 1640 a fine had been levied of a barony which was created not by letters patent but by writ, and the fine was held good.

1 Collins, p. 11, and see Pike, Constit. Hist. of House of Lords, p. 107. 2 Ibid. p. 23.

3 See Cruise on Dignities, and the cases there collected, pp. 106, 108.

The earlier practices above mentioned have ceased to be any longer lawful, not in consequence of any statute, or of any formulation of rules relating to the peerage by the House of Lords, but as a result of the gradual establishment of custom by a series of resolutions or decisions of the House on disputed peerages. In the words of Lord Campbell, It is now fully settled that the law of the peerage of England depends entirely upon usage, both as to the power of the Crown and as to any claim that may be made by a subject 1.'

seven

decisions.

The seventeenth century-and especially the latter part of Effect of the seventeenth century-may be looked upon as the period teenth when the customs of the Peerage were defined and reduced to century the form in which they appear in modern text-books. And this was done by resolutions of the House passed upon cases referred to it for consideration by the Crown, or passed independently of such reference.

Thus in 1640 the House resolved in general terms that a peerage could not be alienated or transferred to another nor surrendered to the Crown. In the Purbeck case 2 in 1678 the House definitely held that a particular peerage could not be surrendered, nor the peer divest himself of his barony by the process of suffering a fine 3.

4

In 1670 it was held in the Ruthyn case that title to a peerage must originate in matter of record; that is, by writ or by a succession of writs or by patent. Such a decision would mean that the House would not accept the fact of the seat having been taken, or a ceremonial having been passed through, unless supported by documentary evidence of a certain sort.

18 H. L. C. 79.

Collins, 306, and Lords' Rep. iii. 26. Lords' Rep. iii. 25, and see Collins, 301. It has recently been contended that a peer may evade the disabilities, without surrendering the rights, of a peerage and may continue to sit in the House of Commons if he refrains from asking for a writ of summons. This must be considered to be settled in the negative by the action of the Commons in the case of Lord Selborne. Supra, p. 78, note.

• Collins, 256.

Nineteenth

century

Life Peer

ages.

In 1673 it was held in the Clifton1 case that a man to whom a writ of summons is issued, and who in pursuance thereof takes his seat in Parliament, acquires thereby an hereditary peerage.

In 1677 comes the important decision in the case of the barony of Freschville 2, that a Parliamentary barony is not constituted by the mere receipt of a writ of summons nor is the blood of the holder ennobled thereby. Proof must be given that the summons was obeyed and the seat taken in order to perfect the title to the barony.

Two questions remained to be settled on the subject of the law of the peerage, and these were settled in very recent times. decisions. The power of the Crown to create peers for life with a right not merely to possess rank, precedence, and the other attributes of peerage, but to sit and vote as Lords of Parliament, was called in question in the year 1858 in the Wensleydale Peerage case. It was then held that the Crown had no such power. The right of a subject to claim a writ of summons in virtue by tenure. of the holding of certain lands was raised and adjudicated upon in 1861 in the Berkeley Peerage case, when the question of the existence of baronies by tenure was finally set at rest.

Baronies

So far I have tried to show how the baronage came to be an estate of the realm and a separate House of Parliament, and to point out the legal difficulties which have sprung from the customary and indeterminate character of its origin.

We now come to consider:-What are the limits on the right of the Crown to create peers;-what are the limits on the right of the Crown to summon peers ;-what disqualifications may prevent a peer, duly created and properly summoned, from sitting and voting;-what there is individual or characteristic about the mode of creation or of summons in the case of each of the classes of peers enumerated on a preceding page;-what are the privileges of the House collectively or of its members individually.