GIFT OF 
 MICHAEL REESE 
 
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Digitized by the Internet Archive 
 
 in 2007 with funding from 
 
 Microsoft Corporation 
 
 http://www.archive.org/details/constitutionalhiOOpikerich 
 
CONSTITUTIONAL HISTORY 
 
 OF THE 
 
 HOUSE OF LORDS 
 
 FROM ORIGINAL SOURCES 
 
 BY 
 
 LUKE OWEN PIKE, M.A. 
 
 of Lincoln's inn, barrister-at-law, assistant keeper of the public records, editor of the 
 
 'year books' published under the direction of the master of the rolls 
 
 author of *a history of crime in england,' etc. 
 
 CALIFORNIA^ 
 
 London 
 
 MACMILLAN AND CO. 
 AND NEW YORK 
 
 1894 
 
 i 
 

 iS3ff 
 
UNIVERSITY 
 
 PREFACE 
 
 Though there are many Constitutional Histories 
 of England and Histories of Parliament, there has, 
 it is believed, hitherto been no Constitutional His- 
 tory of the House of Lords. The reader in search 
 of information could only extract it laboriously from 
 disconnected passages in works of great length, or 
 find it shaped as ammunition for the purposes of 
 party warfare in political treatises. The scope of 
 the present work is different from that held in view 
 by such well-known historians as Hallam, May, 
 Gneist, or Bishop Stubbs, or in the polemical essays 
 of Prynne or Freeman. The materials used, though, 
 to some extent, necessarily the same as those upon 
 which they relied, have been largely drawn from 
 other sources, and have been wrought to other 
 ends. Statements of fact are consequently often 
 inconsistent with those made in preceding works on 
 the Constitution, but the original authorities on which 
 they rest have been indicated. It has, therefore, 
 been thought needless to point out the variations, 
 except in some very remarkable instances. 
 
 One example may, perhaps, suffice to show that 
 the reasons for differing from previous authors of 
 
vi PREFACE 
 
 repute could not always be set forth with a due 
 regard for space, and may at the same time serve to 
 illustrate the principles of original research on which 
 the book has been written. 
 
 It was stated by Blackstone, nearly a century and 
 a half ago, that the whole Act for the Uniformity of 
 Common Prayer was passed ' with the dissent of all 
 the Bishops' and that the words 'Lords Spiritual' 
 were, for that reason omitted throughout. The 
 statement has been repeated again and again in 
 successive editions of his Commentaries, and in 
 the latest editions of Commentaries founded upon 
 his. Hallam also has asserted in his Constitutional 
 History that ' all the Bishops ' protested against the 
 Bill. 
 
 Blackstone and his followers give as their authority 
 Gibson s Codex Juris Ecclesiastici. Gibson, however, 
 says not that the whole Act, but only that a portion 
 of it, was passed by the ! Lords and Commons ' with- 
 out any use of the word ' Spiritual,' ; because all the 
 Bishops present dissented/ and he cites D'Ewes's 
 Journals in support of his proposition. In the 
 edition of the Statutes entitled the ' Statutes of the 
 Realm,' it is again said that a portion of the Act was 
 passed without the assent of the Lords Spiritual, and 
 again upon the authority of D'Ewes's Journals. 
 
 Upon reference to the passage cited it is found 
 that D'Ewes does not speak either of all the Bishops, 
 or even of all the Bishops who were present, as 
 dissenting either from the whole or from any portion 
 of the Bill, but mentions only the Archbishop of 
 York and eight Bishops. 
 
 Hallam's authorities are the Parliamentary His- 
 tory and Strype's A finals. The Parliamentary 
 
PREFACE vii 
 
 History affords no warrant for the assertion ; Strype's 
 Annals show only the names of the dissenting Arch- 
 bishop and eight dissenting Bishops, though they 
 are in one passage described as ' all the Prelates.' 
 
 D'Ewes, who professes to have obtained his 
 information from the original Journals of the House 
 of Lords, alleges that the Bill was read a third time 
 on the 28th of April, 1559. When, however, the 
 printed Journals of the House of Lords are con- 
 sulted it is seen that there is no record of any sitting 
 between April 22 and May 1. So far, therefore, as 
 printed documents are concerned, there is absolutely 
 no authority for a very important statement which 
 has passed unquestioned during some five genera- 
 tions. The statement is, however, not improbable 
 in itself, and the question naturally arose whether it 
 could be established by any Journals of the House 
 of Lords which have, for any reason, not been 
 printed. 
 
 Mr. E. Fairfax Taylor, of the Judicial Office of 
 the House of Lords, whose very able Calendar of 
 documents of the House is in course of publication, 
 for the Historical MSS. Commission, has most kindly 
 instituted a search, and I cannot too warmly 
 express my thanks for the courtesy he has shown 
 and the pains he has taken. He has succeeded in 
 tracing the MS. Journal for the year 1559, which has 
 served as the basis of the printed Journal. As in 
 the latter, so in the former, the days between 
 April 22 and May 1 are missing. The pages, how- 
 ever, are in due order of succession, and there is 
 no reason to suppose that the MS. ever contained 
 anything which has not been printed. 
 
 It is not known that the original Journals of the 
 
viii PREFACE 
 
 period are in existence elsewhere. In the library of 
 the Inner Temple there are some copies of so-called 
 Journals of the House of Lords which I have in- 
 spected, and in which the missing days are included. 
 They do not, however, give the names of the Lords 
 who were present. They show that the Bill was 
 read a third time on April 28, and that the nine 
 prelates dissented, but nothing more. They are 
 evidently taken from the document with which 
 D'Ewes and Strype were acquainted, which must 
 have been merely a short note or abstract, and not 
 a true Journal of the House in the ordinary sense 
 of the term. D'Ewes, indeed, complains, in one 
 passage, of the carelessness shown by the Clerk 
 of the Parliaments, and it seems more than probable 
 that no complete Journal was ever drawn up. In 
 that case it would be impossible to prove the asser- 
 tions made by Blackstone, Gibson, and Hallam, 
 which have, in any case, been made on insufficient 
 authority. 
 
 The omission of the words ' Spiritual Lords ' 
 from any particular Act, or portion of an Act, in the 
 reign of Elizabeth, affords no safe ground for an 
 argument that they all dissented. It was at that 
 time a common practice to omit all mention not 
 only of the Lords Spiritual, but also of all the 
 Estates of the Realm from individual Acts or 
 Chapters of a Statute, a not unusual form being 
 4 by the authority of this present Parliament.' 
 There was, however, a general heading to the 
 Roll of Parliament, upon which all the Acts of 
 a Session were enrolled ; and the heading to the 
 roll of 1559 is to the effect that the Act for 
 the Uniformity of Common Prayer was passed, 
 
PREFACE ix 
 
 like the rest, ' with the common assent of all the 
 Lords, as well Spiritual, as Temporal, and of the 
 Commons.' 
 
 Having arrived at these curious and somewhat 
 contradictory facts, I had to decide whether the mode 
 in which the Act was passed should be mentioned 
 in support of a portion of the text (p. 327), in which 
 the relation of the Spiritual Lords to legislative 
 power is considered. I came to the conclusion 
 that (except the general heading of the Parliament 
 Roll; there was not sufficient evidence on which to 
 base any definite statement. The heading, however, 
 might be a mere form implying no more than the 
 consent of a majority of the House of Lords. The 
 number of the Bishops present, and their action, 
 could be authoritatively ascertained only from the 
 original Journal of the House ; and the condition 
 in which the Journal is found is of itself sufficient 
 to suggest the necessity of the utmost caution. 
 
 I hope, therefore, I may venture to ask those who 
 find some familiar statement omitted, or meet with 
 a statement which they did not expect, to believe 
 that the cause is not in every case inadvertence. 
 
 The publication of this book at a time when 
 there is some political agitation in reference to the 
 House of Lords is an accident. The work has 
 been written without any political intention, and, 
 to the best of my belief, without any political bias. 
 I trace back the first idea of it to a question which 
 a learned friend asked me, long ago, as to the 
 mode of trying John Fisher, sometime Bishop of 
 Rochester. In the course of the twelve years 
 during which I have been Editor of the Year Books, 
 many points relating to the peerage have forced 
 
x PREFACE 
 
 themselves upon my attention. I have found 
 Bishops and Abbots commonly described as Peers 
 of the Realm, and, for that and other reasons 
 I have had to consider the status of Peers in 
 general, their original position in the constitution, 
 and the changes which it has undergone. 
 
 In excluding politics I have been compelled to 
 exclude many matters of controversy. It could, 
 I think, serve no good purpose to mention all the 
 Bills which have been accepted in the House of 
 Commons and rejected by the House of Lords, or 
 which have been first brought into the House of Lords 
 and have been sent thence to the House of Commons. 
 I could not presume to say that either House had 
 acted rightly or wrongly. In each case one party 
 might hold one opinion, another party another 
 opinion. To set down a bare catalogue of measures 
 would be both wearisome and useless. I have 
 even refrained from giving an account of the one 
 Act which has acquired the special title of ' The 
 Lords' Act' — that which was passed in 1758, for the 
 relief of imprisoned debtors, and which, as its name 
 imports, had its origin in the House of Lords. I 
 have departed from the general rule only in cases in 
 which the constitution of the House of Lords itself 
 was affected, or appeared to be threatened with 
 change. 
 
 For similar reasons I have noticed the increase of 
 the peerage since the accession of George III in 
 general terms only, and without reference to the 
 real or supposed motives of particular Ministers, in 
 which, perhaps, one party might see the highest 
 political virtue, another the lowest political de- 
 pravity. 
 
PREFACE xi 
 
 The orthography of early names is of no great 
 importance in relation to the subject of the book. 
 I need only say that I prefer Rollo to Rolf, Canute 
 to Cnut, Ethelred to ^Ethelred, for two very simple 
 reasons. I know that classical English writers have 
 written the words as I have written them, and I do 
 not know that there was any settled and invariable 
 spelling when Rollo, Canute, and the Ethelreds 
 lived. It is possible that '^Elfred ' may be good 
 Englisc, but I think it can hardly be denied that 
 'Alfred' is good English. 
 
 Since the manuscript of the work left my hands, 
 many events have happened which it has been 
 impossible to notice in the text. A new ' Peers 
 Disabilities Removal Bill' has been introduced into 
 the House of Commons, but has not proceeded 
 further. Important questions have arisen out of 
 the death of Lord Coleridge, and the subsequent 
 acceptance of the office of Steward of the Chiltern 
 Hundreds by his eldest son and heir ; but the 
 evidence laid before the Committee of the House 
 of Commons on the mode of vacating seats has not 
 yet been officially published. There have been some 
 remarkable discussions in the House of Lords on 
 a Finance Bill; and a Report of the Judicial Com- 
 mittee of the Privy Council made in 1886, in 
 relation to the Legislative Assembly of Queensland 
 and Money Bills, has been brought into singular 
 prominence during the arguments. 
 
 Some of these matters belong, perhaps, quite as 
 much to the domain of modern politics as to history. 
 None of them appear, thus far, to call for any 
 modification of the following pages. That which 
 has occurred in the past cannot be undone by the 
 
xii PREFACE 
 
 re-assertion of old or the development of new 
 opinions or principles in the future : 
 
 to yap 
 (pavQev tls ai> Svvair aykvvr\rov Troieiv ; 
 
 I can only hope that the imperfections which may 
 be noticed in my story, as I have told it down to 
 the beginning of the present year, may be excused. 
 The number of widely different subjects which it 
 has been necessary to investigate must have given 
 many opportunities for those errors which it is the 
 innate human tendency to commit ; but if revision 
 after revision of the text, and verification after 
 verification of the references are of any avail, the 
 statements of fact should, at any rate, be in the 
 main, correct. 
 
 August 27, 1894. 
 
CONTENTS 
 
 CHAPTER I. 
 The Pre-Norman Period. 
 
 PAGl 
 
 The origin of temporal titles of honour i 
 
 Roman Counts and Dukes in the Western Empire, and in Roman 
 
 Britain in particular r 
 
 The signification of Comes or Count 2 
 
 The jurisdiction of the Dux or Duke 2 
 
 Gap in the history of Britain after the departure of the Romans . . 3 
 Differences between the condition of Britain and that of Roman Pro- 
 vinces on the Continent 3 
 
 Augustine's mission : Bishops and Abbots -4 
 
 No firmly established kingdom of England before the Conquest . . 4 
 The sees of the early Bishops represented the petty kingdoms, or 
 
 principalities, into which England was divided .... 5 
 Earls took the place of petty princes or kings : the Earl and the 
 
 Bishop in the County Court £ 
 
 Earls, Bishops, and Abbots among the Witan 5 
 
 The titles of Lord and Earl : Lords and lordless men ....£> 
 
 Ealdorman, or Alderman and Earl 6 
 
 Alderman and Dux or Duke 7 
 
 Territorial jurisdiction of Alderman or Earl 7 
 
 Earldoms before the Conquest not strictly hereditary .... 8 
 
 Absence of settled principles in England before the Conquest . . 8 
 
 CHAPTER II. 
 
 The Ideas of Nobility and Succession brought by the 
 Conqueror from France, and their Sources. 
 
 Necessity of considering the ideas brought from France ... 10 
 Roman Comiles and French Counts : the Counts and the Missi . . 10 
 Roman Duces and French Dues . . . . . . . .11 
 
 The German Comites of Tacitus : the German Heretogs, or leaders of 
 
 armies n 
 
 Gere/a and Graf: Grimm's etymology untenable 13 
 
xiv CONTENTS 
 
 PAGE 
 
 No German literature previous to German contact with the Roman 
 
 Empire 14 
 
 Similarity of laws wherever Teutons settled in the Roman Empire . 14 
 Identity of early titles and terms of respect in France, Italy, and 
 
 Spain : all of Roman origin ........ 14 
 
 The French Seigneur : Seigneur and Lord of Parliament ... 15 
 Adoption of the Roman religion by the barbarian invaders ... 15 
 
 Power acquired by the Bishops and Abbots 16 
 
 Dukes and Counts, Bishops and Abbots, throughout the Teutonic settle- 
 ments in the Western Empire 16 
 
 Parallel between the occupation of Neustria by the Northmen and of 
 
 portions of the Roman Empire by earlier invaders . . 17 
 
 The Normans accept the religion and language of France . . .17 
 The hereditary principle in France : succession of the Counts and 
 
 Dukes of Normandy 18 
 
 Contrast between the principles accepted in Normandy and those 
 
 accepted in England 18 
 
 CHAPTER III. 
 Effects of the Conquest from William I to Henry I : 
 
 THE 'WlTAN* AND BARONAGE MAINLY FOREIGNERS. 
 
 The Conqueror assumes the part of rightful sovereign, recognizing the 
 
 privileges of his English subjects . .20 
 
 Delusive character of the assumption ; Lords gradually become sei- 
 
 gneurs, and lordship seignory .20 
 
 If William was elected King in a Witenagemot, it was not a Witen- 
 
 agemot of Englishmen alone 22 
 
 Gradual substitution of foreign for native dignitaries, both lay and 
 
 ecclesiastical 22 
 
 A 'Parliament' of William the Conqueror : its judicial functions . 23 
 
 Its constitution : Archbishops, Bishops, Abbots, Earls, and other 
 
 1 Principes ' of the realm, or ' Proceres ' 23 
 
 Foreigners were now of the nobility of England, and described as 
 
 1 Witan ' 25 
 
 The Witan, baronage, or ' Parliament ' chiefly foreigners in the reign of 
 
 Henry I 26 
 
 CHAPTER IV, 
 
 The King's Court or Curia Regis : ' Parliament ' : 
 Councils and their subdivisions. 
 
 The Curia Regis or King's Court: Royal Court, and Court of Justice . 27 
 Cases heard in the King's Court or ' Parliament,' William I to Henry I 28 
 Judicial functions of the Curia Regis in the reign of Henry II : indica- 
 tions of division 29 
 
 Delegation from the King's Court ; early origin of the Justices in Eyre 30 
 
CONTENTS xv 
 
 PAGE 
 
 The eighteen Justices in Eyre, and six Circuits of the year 1176 . 31 
 
 The Eyre of 1176 terminated; five Justices appointed to hear the 
 
 plaints of the people in 11 78 . . . . . . 31 
 
 The Court of Common Pleas (with a jurisdiction delegated from the 
 
 Curia Regis) now practically in existence ..... 32 
 
 But still moveable with the King's Court 32 
 
 In 1 1 76 there were Justices of the Curia Regis, distinguished from the 
 
 Curia Regis as a whole, and from the Justices in Eyre . . 33 
 
 The Eyre of 11 79 : The Lord High Treasurer and a Bishop among the 
 
 Justices 34 
 
 The Justices of one Circuit were the Justices of Common Pleas . . 34 
 Indications of the existence, by delegation, of the Court Coram Rege 
 
 (afterwards known as the King's Bench) in 1184 .... 35 
 The delegated jurisdiction of the Court of Common Pleas, as described 
 
 by Glanvill in 1187 35 
 
 The Capitalis Curia Regis of Glanvill, and its two divisions, Coram 
 
 domino Rege and Coram Justiciis . . . ... . -37 
 
 Glanvill's distinction between the jurisdiction of the King's Court and 
 
 that of the Sheriff 37 
 
 The jurisdiction of the Common Bench inferior to that of the King's 
 
 Bench, and to that of the Eyre 38 
 
 The full Curia Regis still hears causes of great importance : Case of 
 
 the Kings of Castile and Navarre in 1 177 ..... 38 
 Barons still occasionally sat in Courts with delegated jurisdiction . 39 
 An Earl and Barons in the Court of Common Pleas in the reign of 
 
 Richard I 39 
 
 The full Curia Regis or Common Council of the Realm, acting as 
 a Court superior to the more limited Curia Regis in the reign of 
 John ............ 40 
 
 Various senses in which the terms Curia Regis and Council are used 
 
 in Chronicles and Records 40 
 
 The severance of the Courts of King's Bench and Common Pleas 
 from the full Curia Regis long incomplete, though commencing 
 
 earlier than commonly supposed . 41 
 
 'The Council,' the 'Whole Council,' and the Court Coram Rege; 
 records of cases before these tribunals on the same rolls in the 
 
 reign of Henry III 41 
 
 So also in the reign of Edward I . 43 
 
 The Courts of the King in his Council in his Parliament,' and of the 
 
 King's Bench, in the reign of Edward I 43 
 
 The Curia Regis, Council, and King's Bench in the reign of Edward II 44 
 The King's Great Council and Secret Council : remarkable case of 
 
 Henry de Beaumont 45 
 
 The King's Bench and Chancery Rolls used to record proceedings 
 before the Council : the Council not fully separated from other 
 
 Courts before the reign of Richard II 45 
 
 The several kinds of Councils enumerated 46 
 
 The Common Council of the Realm, the Chancery, and Original Writs 47 
 The ' Parliament ' and the framing of writs . . . • 47 
 
 Various significations in which the word ' Parliament ' was used . 48 
 
xvi CONTENTS 
 
 PAGE 
 
 The word applied to Councils, but not to every kind of Council . . 49 
 
 Meaning of • the King in his Council in his Parliament ' precisely 
 
 ascertained 49 
 
 Control of the King in his Council in his Parliament over the proceed- 
 ings of the Court of Common Pleas : case in illustration . . 50 
 
 Control of the King in his Council in his Parliament over the proceed- 
 ings of the Court of King's Bench 52 
 
 The Chancery was the office of the King in his Council in his Parlia- 
 ment 53 
 
 The Council in Chancery, and the King's High Court of Chancery . 53 
 
 The Treasurer : the Barons of the Exchequer Peers of Earls and other 
 
 Barons 54 
 
 The Court of Exchequer from William I to Edward III : Bishops and 
 
 others, ' the King's Barons,' sitting in it 55 
 
 CHAPTER V. 
 
 Earldoms as Offices: Growth of Hereditary Earldoms : 
 Earldoms by Tenure, and Dukedoms. 
 
 Necessity of details relating to the classes of which the King's Court, 
 
 Councils, Parliament, and House of Lords were composed . . 57 
 
 An earldom an administrative office, not strictly hereditary, imme- 
 diately after the Conquest 57 
 
 The Earldom of the Northumbrians 58 
 
 The Earldom of the East Angles 59 
 
 Earldoms granted to ecclesiastics 59 
 
 No difference, during the Conqueror's reign, between the status and 
 
 privileges of Lords Spiritual and those of Lords Temporal . . 59 
 
 The first known grant of an earldom with limitation to the grantee and 
 
 his heirs made in the reign of Stephen 60 
 
 The hereditary succession to an earldom at first qualified by the neces- 
 sity that the heir should be girt with a sword by the King: 
 instances 60 
 
 Another principle distinguishable in the reign of Henry III : earldoms 
 associated with an estate of inheritance in lands : the earldom of 
 Lincoln 62 
 
 Partition between coheirs : a county might be allotted to one if the 
 others received lands of equivalent value : effect of one county or 
 earldom alone falling to coheirs : the Earldom of Chester . . 64 
 
 The title to the County of Chester, in the sense of the lands and 
 possessions of the earldom, regarded as identical with the title to 
 the earldom itself, from Henry III to Richard II . . . .65 
 
 The Earldom of Pembroke held to be the right of one who succeeded 
 
 to a part of the inheritance as descendant of an eldest sister . 66 
 
 Earldoms by tenure in the reign of Edward I ..... 67 
 
 The Earldoms of Gloucester and Hertford settled by a settlement of 
 
 the lands 67 
 
CONTENTS (XTNIVE] xvii 
 
 PAGE 
 
 Case of Joan, widow of Gilbert, Earl of Gloucester and Hertford, 
 tenant in special tail of the lands, married to Monthermer, 
 
 a commoner 68 
 
 Gilbert, the heir, did not, on his father's death, succeed to the earldoms 70 
 Indications that the earldoms were earldoms by tenure ... 70 
 Gilbert, heir in special tail of the lands, is recognized as Earl only 
 
 after his mother's death 71 
 
 Monthermer then ceased to be summoned as Earl, and was subsequently 
 
 summoned as a newly created Baron ...... 72 
 
 Hugh de Courtenay ; the Earldom of Devon declared to follow an 
 
 estate of inheritance in the lands in the reign of Edward III . 72 
 The conveyance of the lands to a stranger might perhaps deprive the 
 
 heir of the earldom without conferring it upon a stranger . . 75 
 It was a recognized doctrine in the reign of Edward III that an Earl 
 
 must have lands to support his earldom 75 
 
 The first Duke {of Cornwall) girt with a sword like an Earl : lands 
 
 inseparably attached to the dukedom . . .... 76 
 
 Acts of Parliament to restrict the grant of Crown Lands in the reign of 
 
 Henry IV 77 
 
 They had little effect at first 78 
 
 Grants of lands associated with dignities in Normandy in the reign of 
 
 Henry V 78 
 
 The Earldom of Pembroke still associated with the county in the 
 
 reigns of Henry V and Henry VI 79 
 
 The Earldom of Arundel held to depend upon an estate of inheritance 
 
 in the Castle and Honour of Arundel in the reign of Henry VI . 80 
 It was an accepted opinion in the same reign that there could not be 
 
 an earldom without lands 81 
 
 Grant of the reversion of the Earldom and County of Pembroke, with 
 
 a ' notwithstanding ' clause referring to the Acts in restraint of the 
 
 grant of Crown Lands ......... 81 
 
 The clause afterwards became merely formal, and was introduced 
 
 when no lands had been granted .82 
 
 Illustration from the case of George Neville, Duke of Bedford, in the 
 
 reign of Edward IV 82 
 
 He was degraded by Act of Parliament because he had no estate to 
 
 support his dukedom . 82 
 
 His dignity was purely personal 84 
 
 All subsequent creations purely personal 84 
 
 CHAPTER VI. 
 
 Early Baronies : Tenure. 
 
 Barons distinguished from Earls as having no official dignity . 86 
 
 Thanes sometimes described as Barons 86 
 
 Difference between the Pre- Norman Thanes and the Barons of the 
 
 French type 87 
 
 b 
 
xviii CONTENTS 
 
 PAGE 
 
 The Baronage, after the Conquest, consisted of the great tenants-in- 
 chief of the Crown, owing military service to the King, and suit 
 
 to his Court 87 
 
 The Baronies were hereditary, but subject to the payment of the feudal 
 
 relief 88 
 
 The Baron a holder of an entire barony or of part of a barony . . 88 
 His military character : • the strength of war ' ..... 89 
 Tenants by Grand Sergeanty not of necessity Barons, nor of necessity 
 
 summoned to Parliament : an instance 89 
 
 The character of Baronies and Barons not altered in the reign of 
 
 Henry III 90 
 
 As yet no individual title of Baron : descent of lands .... 90 
 A barony did not necessarily give ■ a voice in Parliament ' . . .92 
 No evidence in Charters from Henry I to Henry II, that a summons 
 
 to the Common Council of the Realm was regarded as a privilege 92 
 Even the summons conceded by John's Magna Chatia was desired as 
 
 a protection against extortion rather than as an honour . . 92 
 
 The Barons had not yet acquired the position of hereditary legislators 93 
 In the reign of Edward I, the reason expressly alleged for the grant 
 
 of baronies (in the sense of lands) was that the grantees might be 
 
 liable to a summons to Parliament 
 
 All holders of baronies were, however, not necessarily summoned 
 
 The summons was at the discretion of the King .... 
 
 In the reign of Edward III a Baron could not prove his status without 
 
 showing that he held by barony or by part of a barony 
 Stages of transition from burden to privilege 
 The number of barons summoned capriciously variable in the reign of 
 
 Edward I 
 
 And in the reign of Edward II 
 
 Similar irregularity in the early part of the reign of Edward III 
 
 The normal number of Barons to be summoned ranged, about the 
 
 middle of the reign, from fifty to fifty-five .... 
 The number reduced in succeeding reigns, and the summons to Parlia 
 
 ment hereditary 
 
 The word Baron still not used as a term of individual dignity 
 
 An Earl had always to be described as Earl in legal proceedings, but 
 
 not a Baron as Baron . 
 
 A Baron need not be so described even in the reign of Henry VI 
 
 In early times a Baron was not so described even in Parliament itself 
 
 The holder of a barony, having originally military but no official duties 
 
 was regarded, after knighthood, as a ' chivaler' . 
 A Baron's dignity long not exclusively personal 
 Husbands summoned to Parliament in virtue of the lands, but 
 
 the dignities of their wives 
 
 Instances : Hugh Stafford, and Lewis Robsart . 
 
 Other cases of a less simple character : Robert Hungerford, 
 
 Molines ' 
 
 Edward de Grey • Lord Ferrers of Groby . 
 
 Henry Percy ' Lord Poynings ' 
 
 William Bourchier ' Lord Fitz-Warine ' 
 
 not of 
 
 Lord 
 
 93 
 94 
 94 
 
 95 
 95 
 
 95 
 96 
 
 97 
 
 99 
 
 99 
 100 
 
 100 
 
 101 
 
 IOI 
 
 102 
 102 
 
 103 
 
 103 
 
 104 
 104 
 
 105 
 105 
 
CONTENTS xix 
 
 PAGE 
 
 In each case the husband may have been summoned in virtue of the 
 
 wife's lands, or there may have been a new creation . . . 106 
 
 The particular titles were given to distinguish the bearers from other 
 
 Peers of the same families ........ 106 
 
 Probable want of precise doctrines in the reign of Henry VI . . 107 
 
 The doctrine as to the curtesy of England laid down b}' Henry VIII . 107 
 
 CHAPTER VII. 
 
 Barony by Patent : Barony by Writ : Precedence : 
 Abeyance. 
 
 Late growth of the doctrine that a writ of summons to Parliament, 
 
 followed by a sitting, conferred hereditary dignity . . . 108 
 
 Gradual transition from burden to privilege : attendance in Parliament 
 
 obligatory on the first Baron created by patent in 1387 . . 108 
 
 The * Barons ' of Stafford, and Greystock : ' Baron ' a surname . . 109 
 
 Importance of Lord Beauchamp's creation by patent in relation to the 
 
 theory of barony by writ . . . . . . . . 1 10 
 
 Ideas of precedence grew up with the idea that summons to Parlia- 
 ment was an honour rather than a burden . . . . .111 
 
 Places of the Lords of the several degrees in Parliament in the four- 
 teenth century . . . . . . . . . .111 
 
 No precedence among Barons as yet indicated . . . . .112 
 
 Creation of the first Viscount by Henry VI : questions of precedence 
 
 come into prominence : Dukes and Marquesses . . . . 113 
 
 The doctrine of hereditary barony by writ was now becoming possible 114 
 
 The doctrine not clearly established in the reign of Henry VI : some- 
 times confused with the doctrine of abeyance : barony of St. Amand 114 
 
 Power assumed by Henry VI of giving precedence in ranks above that 
 
 of Baron . 115 
 
 Creation of a Baron to hold to him and his heirs being lords of the 
 
 manor of Kingston Lisle . . . . . . . .116 
 
 The tenure of the manor 116 
 
 Recitals in the charter : the new creation made to remove doubts 
 
 respecting the ancient barony of Kingston Lisle . . . . 117 
 
 No definite order of precedence mentioned in this charter, or as yet 
 
 indicated elsewhere ii£__ 
 
 Precedence o f Barons according to ' ancienty ' recognized in the reign 
 
 of Henry VIII, but without explanation . . . . .119 
 
 The De la Warr case in 39 Elizabeth, the first in which an express 
 
 decision was given : its origin . . . . . . .119 
 
 William West, heir in tail male to the lands of the barony, disabled 
 
 for life by Act of Parliament in the reign of Edward VI . . 120 
 
 Attainted for High Treason in the reign of Queen Mary . . . 120 
 
 Explains his position to Cecil on the accession of Elizabeth . 121 
 
 Restored in blood by Act of Parliament, but his life-disability as to 
 
 inheritance not removed ........ 122 
 
 b2 
 
CONTENTS 
 
 l'AGE 
 
 The barony of De la Warr was in abeyance according to modern ideas, 
 
 but the doctrine of abeyance was not yet recognized . . . 122 
 William West summoned to Parliament as Lord De la Warr : a new 
 
 creation 123 
 
 A summons at this time held to create an hereditary peerage : the 
 
 ' views of Sir Edward Coke 124 
 
 Thomas, the son of William, held to have inherited the older Barony 
 
 with precedence as well as the new dignuy 125 
 
 The old idea of barony by tenure apparently not yet extinct . .125 
 The place of Lord De la Warr in Parliament appeared ' by record ' : 
 
 question as to the nature of the record 127 
 
 The Rolls of Letters Close, the Rolls of Parliament, and the Journals 
 
 of the House of Lords 127 
 
 Proofs of precedence of Barons : practically none before the reign of 
 
 Henry VIII 128 
 
 Special importance of the De la Warr case ...... 129 
 
 Barony by tenure declared to be no longer in existence in 1669 . . 129 
 Hereditary barony by writ more fully recognized in 1674 . . . 131 
 The doctrine of abeyance had not arrived at maturity in Coke's time . 131 
 Case of the Earl of Oxford : a barony descending to coheirs held to be 
 
 absolutely at the disposal of the Sovereign in the reign of Charles I 132 
 Something like the principle of abeyance appears to be first recognized 
 
 in the case of Lord Windsor in the reign of Charles II . . 133 
 
 According to a recital in his Patent of Restitution, it was for the King 
 
 to declare which of two coheirs should enjoy a dignity . . 134 
 
 There was no express legal decision on the point even in the case of 
 
 Lord Windsor 134 
 
 The right of a survivor of coheirs to a barony not acknowledged by 
 
 the Lords until 1695, and then not unanimously .... 135 
 Later statements as to the doctrine of abeyance : the barony of Camoys, 
 
 1839 136 
 
 Dubious cases used in support : the barony of Cromwell . . . 136 
 
 The barony of Charleton de Powys 137 
 
 Declaration in 1877, by a Committee of Lords, that an abeyance 
 
 occurred in the reign of Edward IV: baronies of Mowbray and 
 
 Segrave 137 
 
 Paucity of cases subsequent to that of Lord Windsor, except in the 
 
 years from 1829 to 1841 138 
 
 CHAPTER VIII. 
 The Doctrine of Blood. 
 
 Blood after the Conquest : Corruption of Blood 140 
 
 The doctrine of the ennobling of blood intelligible and consistent with 
 
 itself Hi 
 
 The inheritance of lands inseparable from blood before the reign of 
 
 Henry VIII 141 
 
CONTENTS xx i 
 
 PAGE 
 
 Seignory of lands held in frankalmoign inalienable and ineradicable 
 
 from the blood . 142 
 
 The descent of lands : common law doctrine as to the half-blood . 143 
 
 The reasons assigned for it . . . . . . . . 143 
 
 1 Possessio /rain's ' . 144 
 
 1 Possessio fratris ' inapplicable to any dignity except barony by tenure 145 
 
 Reasons for the different descent of lands and dignities . . . 145 
 The law not fully settled before the reign of Charles I . . .146 
 
 Original effects of attainder and corruption of blood .... 146 
 
 Effect of the creation of estates tail, until the reign of Henry VIII . 147 
 
 Forfeiture of baronies for high treason 147 
 
 Forfeiture of earldoms and other dignities for high treason . . . 147 
 Question as to the effect of entails upon attainder of high treason, 
 
 between 1285 and 1534 148 
 
 An entail saves the rights of the heir to a dignity after an attainder of 
 
 felony 149 
 
 Illustration from the barony of Stourton ...... 149 
 
 Prospective legislation, in 1708, to save the rights of heirs of persons 
 
 attainted of high treason . . 150 
 
 Restriction of forfeiture in 1814, and practical abolition, in 1870, of 
 
 attainder and corruption of blood . . . . . . . 150 
 
 CHAPTER IX. 
 The Position of the Spiritual Lords. 
 
 Anomalous position of the Bishops : their election . . . . 151 
 
 The Spiritualities and the Temporalities 151 
 
 Similar position of Abbots 152 
 
 The power of the Crown in relation to Prelates ..... 152 
 
 Bishops holding by barony after the Conquest ..... 153 
 
 The Bishops had no desire to be summoned to the early Parliaments . 154 
 
 The Praemunientes clause in the writs of summons to them . . . 154 
 The summons to the Guardian of the Spiritualities during the vacancy 
 
 of a bishopric . 155 
 
 It issued solely because he alone had power to call the rest of the 
 
 Clergy of the diocese 155 
 
 Abbots and Priors summoned only as holding by barony, and excused 
 
 when not so holding 156 
 
 They begin to claim the position of Peers of the Realm as holding 
 
 by barony 157 
 
 The first use of the expression 'Peer of the Realm ' in 1322 . . 157 
 The Prelates, though Spiritual Lords, were Peers only by virtue of 
 
 their temporal possessions . 158 
 
 They enjoyed certain privileges of Peers, as holding by barony . .159 
 They define their own claim to the peerage, as holding by barony, in 
 
 the reign of Richard II 160 
 
xxii CONTENTS 
 
 PAGE 
 
 They were never in the same position as Temporal Lords even with 
 
 regard to their lands 161 
 
 No corruption of blood affected the succession to their lands or 
 
 dignities 161 
 
 A Bishop did not even necessarily hold his particular dignity of Bishop, 
 
 or his lands, for life 162 
 
 The peculiar tenure of the Spiritual Lords not necessarily a disqualifi- 
 cation for complete peerage: the Prior of St. John of Jerusalem . 162 
 
 The Lords Spiritual let fall their claims to peerage : while the Prior 
 of St. John was Baron and Peer in the reign of Henry VII, an 
 Abbot was styled only a Lord of Parliament .... 163 
 
 Grant to the Abbot of Tavistock to be a Lord of Parliament in the 
 
 reign of Henry VIII 163 
 
 The doctrine that a Spiritual Lord was a Peer of the Realm was now 
 
 extinct . 164 
 
 The Prelates continued to be Lords of Parliament in respect of their 
 
 ancient baronies 165 
 
 Dissolution of Monasteries : loss of power by the Spiritual Lords . 165 
 
 They continued to grow relatively weaker in the House of Lords . 166 
 
 Some Bishops are now no longer even Lords of Parliament . . 166 
 
 The ancient baronies in virtue of which Bishops claimed to be Peers 
 
 now vested in the Ecclesiastical Commissioners .... 167 
 
 CHAPTER X. 
 
 Judgement by Peers to the Reign of Richard II : 
 
 End of 'Appeals' in Parliament: 
 
 Beginning of Impeachments. 
 
 Judgement of Peers in King John's Great Charter .... 169 
 
 It had no connexion with Trial by Jury 169 
 
 It had reference to matters connected with feudal tenure . . .170 
 
 Suit of Court: the Pares Curtis or Curiae 170 
 
 The Court Baron and the Writ of Right for under-tenants . . . 171 
 
 The Praecipe in capite or Writ of Right for one holding in chief . . 171 
 In the latter the King's Courts (over which the Curia Regis or House 
 
 of Lords retained control) had exclusive jurisdiction . . .172 
 
 Feudal rights affected by forfeiture or escheat for Treason or Felony . 173 
 Earls and Barons to be judged by Earls and Barons (when disherison 
 
 was in question) in the reign of Henry III 173 
 
 This judgement by Peers not identical with the later Trial by 
 
 Peers 174 
 
 Courts differently constituted according to gradations in Treason . 174 
 Mode of trial still not settled in the reign of Edward II : Gaveston's 
 
 case x 74 
 
CONTENTS xxiii 
 
 PAGE 
 
 Banishment of the Despensers by Peers of the Realm . . .175 
 
 The Earl of Carlisle degraded, and then sentenced as a traitor, without 
 
 trial or judgement by Peers . . . . . . . .176 
 
 Case of the Earl of Lancaster 177 
 
 The Despensers sentenced to death — a ' Knight ' presiding in the 
 
 Court ............ 177 
 
 Cases of the Earl of Kent and of Mortimer: judgement but not trial by 
 
 Peers . . .178 
 
 No clear distinction between proceedings on indictment, on impeach- 
 ment, and by Bill of Attainder, when Edward III ascended the 
 
 throne 178 
 
 Trial of Spiritual Lords 179 
 
 From the time of the Conquest they had attempted to escape from lay 
 
 jurisdiction: instances . . . . . . . . . 179 
 
 Doubts in the reign of Henry III ....... 180 
 
 Langton, Bishop of Coventry and Lichfield, tried before Justices of 
 
 Oyer and Terminer . 181 
 
 Benefit of Clergy in 9 Edward II . r8r 
 
 Case of Adam de Orleton, Bishop of Hereford ..... 182 
 
 The Commission to enquire, and indictment ..... 182 
 Orleton refuses to answer in the King's Bench . . . . .182 
 Refuses to answer in Parliament, because a Bishop : case remitted to 
 
 the King's Bench 183 
 
 Is convicted by a jury, but has benefit of clergy ..... 183 
 
 Inaccurate account of the matter sent to the Pope .... 184 
 The judgement reversed by Parliament in the reign of Edward III, but 
 
 without reference to any question of trial by Peers . . . 185 
 
 The Peers object to giving judgement on any but Peers . . . 185 
 Case of John de Stratford, Archbishop of Canterbury : he refuses to 
 
 go to the King when summoned ....... 186 
 
 His excommunications . 187 
 
 The King declares their object to be to stir up sedition . . .187 
 The Archbishop declares that, if accused of Treason, he denies the 
 
 jurisdiction of any secular judge ....... 188 
 
 Impossible story of a monkish historian as to Stratford, the Parliament 
 
 of 1341, and the Exchequer . 189 
 
 Stratford, according to the Rolls of Parliament, asked to be arraigned 
 
 before the Peers, because he was •' notoriously defamed ' . . 190 
 Statements of later historians that Stratford had first appeared, on 
 
 a charge of Treason, in the Exchequer 190 
 
 The Exchequer had, in fact, no jurisdiction in Treason . . . 191 
 
 The origin of the story ......... 191 
 
 The Rolls of the Exchequer show that Stratford merely appeared 
 
 there in relation to a trivial matter of account, by attorney . . 191 
 
 Further proceedings in Parliament ....... 192 
 
 These were brought into prominence by Bishop Stillingfleet in the 
 
 seventeenth century . 193 
 
 His statements were inaccurate ........ 193 
 
 He misled Jeremy Collier and others 193 
 
 Stratford was never arraigned, much less tried, before the Peers . 194 
 
xxiv CONTENTS 
 
 PAGE 
 
 A committee, including Bishops, Earls, Barons, and Judges appointed 
 
 to report on judgement by Peers in 1341 . . . . 194 
 
 The report was made without the assent of the Judges : it applied to 
 
 all cases in which the King was a party ..... 195 
 Protest of the Chancellor, Treasurer, and Judges against the Act which 
 
 followed 195 
 
 The Act declared null by the King and Council ..... 196 
 
 The Act formally repealed by Parliament 197 
 
 Magna Charta the only written law for the trial of Peers by Peers . 197 
 As yet no settled principles as to trial or matters to be tried by Peers 197 
 
 The Statute of Treasons in 135 1 198 
 
 An Abbot, whose predecessor had been summoned to Parliament, 
 
 tried for Treason in the King's Bench, and sentenced to death 
 
 in 1357 198 
 
 The Lords claim to judge Peers with others, in crimes against the State. 
 
 in 1387 199 
 
 Appeal of Treason against the Archbishop of York, and Peers, and 
 
 Commoners 200 
 
 The Judges and lawyers (including civilians) declare the appeal to be 
 
 not in accordance with law 200 
 
 Reason for consulting the civilians: the Court of Chivalry . . . 20T 
 The Lords, with the King's assent, pronounce the appeal good 
 
 according to the laws and course of Parliament .... 201 
 The Appeal proceeds in Parliament ....... 201 
 
 Sentences 202 
 
 Trial by battle refused to one of the appealed, on the interposition of 
 
 the Commons . 202 
 
 Impeachments of Treason by the Commons heard by the Lords . 202 
 
 The Lords again assert their claim to judge in all matters of great 
 
 moment affecting Peers ........ 203 
 
 Diminished power of the Judges in Parliament 203 
 
 The rights of the Lords as ' Lords of Parliament ' not as ancient as 
 
 they supposed 204 
 
 No superior tribunal to call in question the principles which they laid 
 
 down 204 
 
 ' Impeachment ' of recent growth, and not yet defined as in after- 
 times 205 
 
 The Commons have their right to impeach recorded on the Roll of 
 
 Parliament in 1397 206 
 
 They impeach the Archbishop of Canterbury of High Treason . . 206 
 The Procurator of the Clergy represents the Spiritual Lords at the 
 
 trial ............ 207 
 
 Another Appeal of Treason in Parliament : a better system needed . 207 
 
CONTENTS 
 
 CHAPTER XI. 
 
 Trial by Peers from the Reign of Henry IV : Court 
 
 of the Lord High Steward: Trial of Spiritual 
 
 Lords : Trial of Peeresses : Impeachments. 
 
 PAGE 
 
 Abolition of accusation by « Appeal ' in Parliament .... 209 
 
 The first reported trial in the Court of the Lord High Steward . . 209 
 The accused identified as John Holland, Earl of Huntingdon . .211 
 Difficulties and contradictions with regard to the case . . .211 
 Subsequent judgement by the Lords Temporal with the assent of the 
 
 King 212 
 
 The Spiritual Lords were not tried by Peers of the Realm . . . 213 
 
 Thomas Merkes, Bishop of Carlisle, indicted of High Treason . . 213 
 
 Arraigned in a Court of Oyer and Terminer 213 
 
 Pleads, with a saving only for his ecclesiastical liberty, and is convicted 
 
 by a Jury 214 
 
 Is pardoned by the King ......... 214 
 
 Never claimed privilege of peerage . . . . . . .215 
 
 Absence of settled rules for trial by Peers ...... 215 
 
 Act of Henry VI for the trial of Duchesses, Countesses, and Baronesses, 
 
 by Peers 216 
 
 No trial by Peers in procedure by ' Appeal ' of murder, &c. . . 217 
 Court of the High Steward, apart from Parliament, hardly recognized 
 
 in the reign of Edward IV ........ 217 
 
 Right of Spiritual Lords to be present by one Procurator, throughout 
 
 the trial of a Peer, still recognized 218 
 
 The Court of the Lord High Steward fully recognized in the reign of 
 
 Henry VII : how constituted . . . . . . .218 
 
 The Spiritual Lords not represented in it : their fall from the status of 
 
 peerage 219 
 
 Case of Fisher in the reign of Henry VIII 220 
 
 He was not a Bishop when tried for High Treason .... 220 
 Cranmer, in the reign of Mary, was tried, while Archbishop of 
 
 Canterbury, and sentenced for High Treason, in a Court of Oyer 
 
 and Terminer . . . . . . . . . .221 
 
 It has since been settled law that the Bishops have no right to be tried 
 
 by Peers of the Realm 221 
 
 No instance in which a Spiritual Lord indicted of Treason or Felon}' 
 
 has been tried by Peers of the Realm 222 
 
 Effect of the abolition of feudal tenures on the Bishops after the 
 
 Restoration 222 
 
 The privileges of peerage afterwards held to depend on blood . . 222 
 
 And among them the privilege of Trial by Peers of the Realm . . 223 
 Survival of the Court of the Lord High Steward as it had been in the 
 
 reign of Henry VIII 223 
 
 Privilege of Trial by Peers guarded in successive Acts . . . 224 
 
 f ^ or the r \ 
 (UNIVERSITY) 
 
xxvi CONTENTS 
 
 PAGE 
 
 Act of William III : all the Peers to be summoned on trial of a Peer 
 
 for certain Treasons only 224 
 
 Extended under Queen Anne 225 
 
 The trial of Peers of Great Britain committing Treason or Felony in 
 
 Scotland : Acts of Queen Anne and George IV . . . . 225 
 Privilege confirmed in 1862, in relation to offences under the Mutiny 
 
 Acts 226 
 
 Question whether the privilege of Trial by Peers can be waived . . 227 
 In trials of Peers, on indictments of Treason or Felony, the judgement 
 
 always that of the Temporal Lords alone 227 
 
 Doctrines as to impeachment after the reign of Richard II . . . 228 
 Bill of Attainder the more common mode of proceeding . . . 228 
 Hesitation as to the mode of conducting the impeachment of Mom- 
 
 pesson in 1621 .......... 229 
 
 Proceedings on the impeachment of Francis Bacon, Viscount St. 
 
 Albans 229 
 
 Discretion of the Lords as to punishment 230 
 
 This discretion questioned by Lord Clarendon in the case of the Earl 
 
 of Middlesex 231 
 
 Case of Fitz- Harris, a commoner, impeached of High Treason, in 1681, 
 
 but not tried by the Lords 231 
 
 Sir A. Blair and other commoners impeached of High Treason, and 
 
 tried by the Lords in 1689 232 
 
 A pardon cannot be pleaded in bar of an impeachment . . . 233 
 Question whether prorogation or dissolution can end an impeachment : 
 
 contradictory resolutions 233 
 
 The doubt removed by special Acts of Parliament in the cases of 
 
 Warren Hastings and Viscount Melville 234 
 
 CHAPTER XII. 
 
 Rights and Privileges in general of the House of 
 Lords, and of its Members : Disabilities. 
 
 Modern and ancient privileges not all identical 235 
 
 ^T Right to sit in the House of Lords an instance 235 
 
 Efforts of lay Barons to escape summons and sitting : instances . 235 
 
 Efforts of Prelates to obtain exemption ; instances .... 236 
 
 Act of Richard II to enforce attendance 237 
 
 The idea that the summons was a right associated with later ideas of 
 
 precedence in the Realm ........ 237 
 
 The ' right ' to the writ of summons in the time of Charles I : case of the 
 
 Earl of Bristol 238 
 
 "> The question whether a Peer can abandon his peerage by omitting to 
 
 demand a summons 239 
 
 Proof of peerage necessary when privilege was claimed in Courts . 239 
 
 The Crown officially informed as to the heir by the feudal inquisition . 239 
 
CONTENTS xxvii 
 
 PAGE 
 
 The modern practice of application to the Chancellor for a sum- 
 mons .......••••• 2 4° 
 
 >s The summons to the House of Lords and the seat in the House of 
 
 Commons 2 4° 
 
 The questions hence arising seem to be for the advisers of the Crown 
 
 and the House of Lords 240 
 
 Non-attendance in Parliament supposed to be punishable in the King's 
 Bench in the reign of Edward III : case of the Bishop of Win- 
 chester 2 4 r 
 
 Later orders made by the House in relation to attendance . . . 242 
 ^ Privilege of making proxies ; gradually restricted and at last discon- 
 tinued 243 
 
 Growth of the practice of entering dissent upon the Journals . . 245 
 /<. Privilege of being attended in the House by the Judges and others . 246 
 The privilege of late growth : the Judges formerly sat in the House 
 
 of Lords 247 
 
 Order for Judges to attend as Assistants in the reign of Charles II . 247 
 The House of Lords can now call for their assistance .... 248 
 Breach of Privilege of Parliament : opinion of the Judges in 1453 . 248 
 Remarkable features of the case, as affecting the Speaker . . . 248 
 The Lords then supreme arbiters of Privilege as affecting both 
 
 Houses . 249 
 
 Matters touching either House afterwards decided by that House 
 
 alone ............ 250 
 
 x Power of the House of Lords to determine all cases of Privilege on 
 
 appeal from inferior Courts ........ 250 
 
 ;< Privilege with regard to Conferences . . . . . . .251 
 
 y, Privileges external to the House : the Lords regarded as counsellors 
 
 of the Sovereign . 251 
 
 The Lords at York in 1640, and at the Guildhall in 1688 . . . 252 
 Their acts not to be confounded with addresses from the House of 
 
 Lords in Parliament ......... 252 
 
 Privilege of audience of the Sovereign : its historical foundation . 252 
 
 Opinions on the subject in the reign of George IV ... 253 
 
 How exercised by the Duke of Newcastle 254 
 
 Privileges in the King's Courts : amercement of Earls and Barons by 
 
 their Peers 254 
 
 This privilege at least as early as the reign of Richard I : instances . 254 
 The Barons of the Exchequer, or the King's Council acted as Peers 
 
 for the purposes of the assessment 256 
 
 Amercements according to a fixed scale about the time of Edward I : 
 
 Earls and Barons amerced in ordinary Courts of Justice . . 256 
 A Baron's word sufficient in the Exchequer in the reign of Henry II . 258 
 Earls and Barons exceptionally treated when ' Essoiners ' . . . 258 
 When a Lord was a party in a civil action there had to be Knights 
 
 upon the Jury until the year 1751 258 
 
 Freedom from arrest in civil actions : little now remaining of this 
 
 privilege 259 
 
 Freedom from outlawry in civil actions : the privilege ceased with the 
 
 abolition of the outlawry in 1879 . 260 
 
xxviii CONTENTS 
 
 PAGE 
 
 Other former advantages in Courts of Common Law .... 260 
 
 Exemption from service on Juries, and appearance at Sheriffs' Tourns 260 
 
 ^Privileges of Peers in relation to recognizances to keep the peace . 261 
 
 Privilege conferred in the reign of Edward VI : Benefit of Clergy . 261 
 
 A Peer might commit highway robbery, &c, once, without punishment 262 
 Benefit of Clergy until its abolition in 1827 ; special Act in 1841 to 
 
 make Peers punishable as other subjects ..... 263 
 
 Disability for life for contempt of Chancery or Council in 1452 . . 263 
 Subsequent privileges in the Court of Chancery : their disappearance 
 
 under new practice 264 
 
 Privilege in relation to slander : Scandalmn Magnatum : legislation 
 
 from Edward I to Elizabeth . 264 
 
 Abolition of the privilege by repeal of Statutes in 1887 : it was never 
 
 exclusively a privilege of Lords of Parliament .... 266 
 
 ^•Privilege in the King's Forests . 267 
 
 No exclusive privilege to individual Lords of Parliament, except their 
 
 seats, since the Union with Scotland 267 
 
 Lords of Parliament might formerly vote at elections of Knights of the 
 
 Shire ............ 267 
 
 Resolutions of the Commons that the Lords have no right to vote or 
 
 interfere in elections ......... 268 
 
 No power now in either House to create new privileges . . . 269 
 
 Peers may be County Councillors by Act of Parliament . . . 269 
 Early doctrine that the higher dignities of the Peerage could be lost by 
 
 surrender : instances 269 
 
 This did not necessarily involve loss of the status of Peer . . . 270 
 The fine levied of the Barony of Stafford in the reign of Charles I : 
 
 Resolution of the House of Lords 271 
 
 The Lords and the lawyers at variance 271 
 
 The Purbeck case : Final resolution of the House of Lords in 1678, that 
 
 no fine could bar a title of honour . . . . . .271 
 
 Question whether the Lords have the power to preclude the Crown 
 
 from receiving a surrender 272 
 
 Instance of the transfer of an Earldom from subject to subject : it was 
 
 only by favour of the King 272 
 
 No transfer of a barony 273 
 
 Resolution of the House of Lords in 1641 that no Peer could transfer 
 
 an honour 273 
 
 Effect of calling up to the House of Lords the eldest son of a Peer in 
 
 his father's barony 273 
 
 Change in the law of Attainder : greater security to heirs . . . 274 
 
 Traitors and felons disqualified ........ 274 
 
 Aliens disqualified .......... 275 
 
 Bankrupts disqualified 275 
 
 Disqualification of minors 275 
 
 Exclusion by the House ......... 275 
 
 Disability under Acts relating to Oaths 276 
 
 Disqualification specially affecting Peers of Scotland .... 276 
 
 Schemes of 1888 and 1889, to disable Peers for disgraceful conduct . 276 
 
 Peers' Disabilities Removal Bill of 1893 277 
 
CONTENTS xxix 
 
 CHAPTER XIII. 
 The Judicature of the House of Lords in general. 
 
 PAGE 
 
 Successive changes in the judicial functions of the Lords . . . 279 
 The Act of 14 Edward III : new Court representing the King in 
 
 Council in Parliament 279 
 
 The Act of 25 Edward III, restricting the original judicial power of the 
 
 Council 280 
 
 Separation of the Council from the Parliament 280 
 
 Little civil jurisdiction of first instance left to the House of Lords : 
 
 disputes in the seventeenth century . . . . . .281 
 
 Limitation of criminal jurisdiction : uncertainty prevailing in the 
 
 seventeenth century ......... 282 
 
 Controverted elections of members of the House of Commons decided 
 
 by the Lords in the reign of Henry V . . . . . . 284 
 
 Subsequent changes 284 
 
 Jurisdiction in Peerage cases on reference from the Crown . . 285 
 
 Jurisdiction in relation to representative Peers of Scotland . . . 286 
 
 And in relation to Representative Lords of Ireland .... 287 
 Jurisdiction of Parliament in error : cases in which the Commons 
 
 seem to have a voice ......... 287 
 
 No such cases without political significance ..... 288 
 
 Parliament retains the jurisdiction when the Council separates from it 288 
 The general principles laid down by the Judges just before the separa- 
 tion 289 
 
 The Commons not concerned with the judgements of the Lords in the 
 
 reign of Henry IV .... 290 
 
 Case of the Earl of Salisbury in the reign of Henry V . . . . 290 
 
 Error in Parliament : confusion of ideas 291 
 
 The case has no bearing on the authority of the Lords over Courts 
 
 below 291 
 
 Jurisdiction of the House of Lords over error in the King's Bench 
 
 from the time of Henry IV downwards ..... 292 
 History of the jurisdiction in error of the House of Lords over the 
 
 Exchequer as a Court of Law ....... 293 
 
 Importance of the form of Writs of Error to Parliament . . . 294 
 
 The House of Lords practically described as Parliament . . . 295 
 Jurisdiction of the Lords in Appeals from Chancery: early relations of 
 
 the Chancery with the Parliament 295 
 
 Growth of the equity jurisdiction of the Chancery .... 296 
 Jurisdiction of the Lords in Appeals from Chancery at one time 
 
 doubted 297 
 
 But fully admitted since the reign of Charles II 298 
 
 The Equity side of the Exchequer 298 
 
 Appeal thence to the House of Lords 299 
 
 Form of Equity Appeal : ' To the Lords Spiritual and Temporal in 
 
 Parliament assembled ' 299 
 
CONTENTS 
 
 PAGE 
 
 Effect of the Union with Scotland 299 
 
 And with Ireland 
 
 300 
 
 Kings of England at first Lords, afterwards Kings of Ireland . . 300 
 Early relations of the Courts of Justice and House of Lords in Ireland 
 
 to the Courts of Justice and House of Lords in England . . 300 
 
 Restrictions upon the power of Irish Parliaments .... 301 
 
 The House of Lords of Ireland declared to have no jurisdiction in 
 
 Error or Appeals in the reign of George I 302 
 
 The appellate jurisdiction over Irish causes taken from the House of 
 
 Lords of Great Britain in 1783, and transferred to Ireland . . 302 
 But restored to the House of Lords of the United Kingdom by the Act 
 
 of Union 303 
 
 Wide range of the Lords' jurisdiction in Error and on Appeal . . 304 
 Threatened loss of jurisdiction in 1873 : Supreme Court of Judicature 
 
 Act 304 
 
 The operation of the Act twice deferred 305 
 
 The jurisdiction at last saved by another Act 305 
 
 A new form of Appeal : a happy historical adaptation . . . 305 
 
 Provisions for sittings during prorogation or dissolution . . . 306 
 
 Provisions as to ' Lords of Appeal ' 306 
 
 The House of Lords not the only final Court of Appeal : jurisdiction 
 
 of the Privy Council 307 
 
 CHAPTER XIV. 
 Legislative Power. 
 
 The legislative power before Commons were summoned to Parliament 310 
 
 The early Charters subsequent to the Conquest 310 
 
 The King, Prelates, and Proceres establish the Constitutions of 
 
 Clarendon in the reign of Henry II 311 
 
 The legislative power in the King and baronage 312 
 
 Magna Charta and its confirmations 312 
 
 The confirmation of 49 Henry III recognizes a previous power of 
 
 legislation in the King and his Council 313 
 
 This confirmation made with the assent of the Commons . . . 314 
 But hardly by assent of the Commons as a distinct Estate of the Realm 314 
 The ' people ' which may have been present at earlier assemblies had 
 
 no representative character . . . . . . . . 315 
 
 The word ' Parliament ' not originally used in the modern sense : the 
 
 'Provisions of Merton' 315 
 
 The Statute of Westminster the First: the initiative with the King 
 
 and Council, the Magnates and Commonalty assenting . . 316 
 
 The Statute De Bigamis : the King's Council, and the Council of the 
 
 Realm 3 l6 
 
 Other so-called Statutes of the reign of Edward I enacted without 
 
 any express mention of the Commons 317 
 
CONTENTS xxxi 
 
 PAGE 
 
 The Commons never, the Lords often initiated legislation in the reign 
 
 of Edward I '. • • • 3H 
 
 Lords and Commons in the reign of Edward II . . . . . 318 
 The Lords and Council had lost the exclusive power of initiation in the 
 
 reign of Edward III 3*9 
 
 At first the Commons initiated only by petition 319 
 
 King and Council and King and Lords still retained the power of 
 
 making some laws without the assent of the Commons . . 320 
 
 Ordinance and Act of Parliament 3 2 ° 
 
 Separation of the Council from the Parliament in the reign of Richard II : 
 
 end of the exclusive legislative power once belonging to the King 
 
 and his Court, or to the King and his Council .... 321 
 Question as to the separation of the two Houses of Parliament . . 322 
 The expression < Lords Spiritual and Temporal ' does not occur before 
 
 the reign of Richard II : the earlier phrases 323 
 
 The expression occurs in the commencing words of an Act for the first 
 
 time in 4 Henry IV 324 
 
 Question with regard to the ' two estates ' of ' Lords Spiritual ' and 
 
 < Lords Temporal ' : the idea probably of ecclesiastical origin . 324 
 The Assent of the Commons recognized by Henry V as necessary to 
 
 any law binding them 325 
 
 Substitution of Bills (in the form of Acts) for Petitions in the reign of 
 
 Henry VI 3 2 5 
 
 The Assent of the Lords Spiritual, as such, not necessary : growth of 
 
 the doctrine 3 2 6 
 
 The ' Lords Spiritual ' excluded from Parliament in 1640 . . . 327 
 The Commons assume the whole legislative power .... 327 
 Oliver Cromwell's ' Other House,' or House of Lords, without Bishops 327 
 The Acts of the Convention Parliament, 12 Charles II, by consent of 
 
 King, Lords, and Commons, without Bishops .... 329 
 It did not repeal the Act of 1640, which excluded the Bishops . . 329 
 The Parliament of 13 Charles II, without Bishops, confirmed the Acts 
 
 of the Convention Parliament 329 
 
 It afterwards repealed the Act of 1640, and the Bishops were then 
 
 summoned 330 
 
 Many subsequent changes in detail, but no subsequent changes in 
 
 principle 330 
 
 The legislative power as affected by the duration of Parliaments . . 330 
 Disregard of the Acts for annual Parliaments before the Great 
 
 Rebellion 33° 
 
 Act of 1640 to prevent intermissions of Parliament for more than three 
 
 years 33 1 
 
 Power given to the Peers to summon a Parliament, failing other means 331 
 The Act of 1640 did not establish triennial Parliaments . . . 331 
 Act of 1664 for holding Parliaments once in three years at least . . 332 
 The duration of a Parliament not thereby restricted .... 332 
 
 Effect of long intervals between Parliaments 332 
 
 The Act of 1694 for triennial Parliaments : how it affected the Lords 
 
 in theory 333 
 
 The Act of 17 15 for septennial Parliaments 333 
 
xx.xii CONTENTS 
 
 PAGE 
 
 The annual sitting of Parliaments depends not on Statutes but on 
 
 supplies and their Appropriation ....... 334 
 
 Prerogative of the Crown : Dissolution of Parliament .... 334 
 
 Power of either House to initiate, amend, or reject a measure . . 335 
 Action of King, Lords, and Commons, in relation to the Reform Bills 
 
 of 1831 335 
 
 Custom of Parliament in relation to Bills affecting the Peerage, &c. . 335 
 Disabilities of the Lords in relation to Money Bills : their probable 
 
 origin : supplies by the Burgesses before the institution of the 
 
 House of Commons 337 
 
 Bargains with the Crown : grants of money in return for concessions 
 
 in 1225 337 
 
 The principle of the bargain still accepted after the House of Commons 
 
 was established 339 
 
 Ordinary grants of supplies in early times : Convocation . . . 339 
 
 Constitutional struggle in the reign of Henry IV 340 
 
 The principles then accepted with regard to supplies . . . . 341 
 
 Grants of supply by Acts of Parliament 342 
 
 Financial effect of the abolition of feudal tenures .... 342 
 
 Dispute between the two Houses in 1661 34 2 
 
 Resolutions of the Commons, in 1671 and 1678, in relation to the 
 
 Lords and Money Bills 343 
 
 The restriction on the Lords has since been practically acknowledged 343 
 
 New Resolutions of the House of Commons in i860 .... 344 
 
 Present position of the power of the Lords to reject a Money Bill . 344 
 
 CHAPTER XV. 
 
 Changes in the Component Parts of the 
 House of Lords. 
 
 PART I. 
 
 The Feudal Period : Disappearance of the Abbots : 
 
 The Position of the Chancellor: Abolition of 
 Feudal Tenures : Commencement of a New System : 
 Peerages as Rewards for Political Service. 
 
 Composition of the assembly of 1265 34 6 
 
 And of the Parliament of 1295 347 
 
 Uniformity in the writs of summons to Bishops 347 
 
 But not to Priors and Abbots before the reign of Edward HI . . 347 
 
 The dignities held by the Temporal Lords at various times . . . 348 
 
 Majorities of Spiritual Lords through extinction of peerages . . 34 8 
 
 The dissolution of the Greater Monasteries 349 
 
CONTENTS xxxiii 
 
 PAGE 
 
 The Act relating to those which were surrendered .... 350 
 
 The Act relating to those which came to the King's hands by attainder 350 
 Practical destruction of the power of one of the so-called Estates of the 
 
 Realm 35* 
 
 The Act ' for placing of the Lords ': the Chancellor . . . .351 
 The early Chancellors were ecclesiastics : they received a summons 
 
 only when Bishops 352 
 
 As Chancellors they attended Parliament ex officio .... 353 
 
 The first lay Chancellors attended, but were not summoned . . 353 
 
 A Baron Chancellor summoned only among the Barons . . . 353 
 
 The place of the Chancellor in the House, if a Commoner . . . 354 
 
 Chancellor, Keeper, and Commissioners of the Great Seal . . . 354 
 
 They cannot be Roman Catholics 355 
 
 The character of the House underwent little change between the reign 
 
 of Henry VIII and that of James I 355 
 
 Increase of the Peerage in the latter reign 355 
 
 The events of the reign of Charles I and the Commonwealth . . 356 
 
 The abolition of feudal tenures 356 
 
 Its effect in relieving the Peers of their burdens 356 
 
 Their titles of honour preserved by special enactment .... 357 
 The newer creations thenceforth of a different character : rewards for 
 
 political service 357 
 
 CHAPTER XV. 
 
 Changes in the Component Parts of the 
 House of Lords. 
 
 PART II. 
 
 Introduction of the principle of Representation among 
 Peers : the Union with Scotland : Attempts to 
 limit the Peerage : the Union with Ireland. 
 
 The Union with Scotland 358 
 
 No addition of Spiritual Lords to the House of Lords .... 358 
 
 Election of sixteen representative Peers for each Parliament . . 358 
 
 The Chancellor of England becomes Chancellor of Great Britain . . 359 
 
 Privileges of the Peers of Scotland 359 
 
 A new principle of representation now introduced .... 360 
 Absence of provisions relating to extinction of old or creation of new 
 
 peerages of Scotland : consequences 360 
 
 Ineffectual attempts to exclude from the House of Lords Peers of 
 
 Scotland who were created Peers of Great Britain by Patent . 361 
 
 They now sit without question 361 
 
 Peers of the United Kingdom cannot sit as representative Peers of 
 
 Scotland 3 02 
 
 C 
 
CONTENTS 
 
 PAGE 
 
 But, as Peers of Scotland, they may vote for representatives . . 362 
 Attempts of the Lords to restrict the creation of peerages, and alter 
 
 the terms of the Union 363 
 
 The attempts defeated by the Commons 363 
 
 The Union with Ireland : two new representative elements added . 363 
 
 Union of the Churches of England and Ireland 364 
 
 Four representative Bishops to sit by rotation of sessions . . . 364 
 
 Twenty-eight representative Temporal Lords to be elected for life . 365 
 
 Privileges of the Lords Spiritual and Temporal of Ireland . . . 365 
 Restriction of the number of Peerages of Ireland : provisions for new 
 
 creations 366 
 
 Position of Peers of Ireland as members of the House of Commons . 366 
 The Spiritual Lords of Ireland excluded from the House on the Dis- 
 establishment of the Church of Ireland 366 
 
 Changes proposed in relation to the representative Peers of Ireland in 
 
 the same year 367 
 
 And in relation to the representative Peers of Scotland . . . 367 
 
 The proposals not carried 367 
 
 CHAPTER XV. 
 
 Changes in the Component Parts of the 
 House of Lords. 
 
 PART III. 
 
 Rapid increase in the Number of Peers : Modern At- 
 tempts TO EXCLUDE THE BlSHOPS : PEERAGES FOR 
 
 v Life : Conclusion. 
 
 The number of Temporal Lords at the accession of George I . . 368 
 Continual increase in the number of Peers: the Reform Bills of 
 
 1831 368 
 
 Abortive projects to exclude the Bishops from the House: 1834-1837 369 
 
 The question as to peerages for life : an historical retrospect necessary 369 
 Robert de Vere, when made Marquess of Dublin and Duke of Ireland 
 
 for life, in the reign of Richard II, was already a Peer . . . 369 
 Edward, son of Edmund, Duke of York, created Earl for the term of 
 
 his father's life .......... 370 
 
 Promotion of Peers in the reign of Richard II 370 
 
 Degradation of the same Peers in the reign of Henry IV 371 
 Promotions in the Peerage not subject to the same rules as new 
 
 creations of Peers 371 
 
 Case of Thomas Beaufort, Duke of Exeter, in the reign of Henry V . 371 
 Peeresses for life : these do not affect the constitution of the House 
 
 of Lords 37 2 
 
CONTENTS xxxv 
 
 FAGE 
 
 Contradictory statements of Coke as to life-peerages .... 372 
 
 Obiter dictum as to creation of Earls for life 373 
 
 It had no relation to Peers in general, but only to Earls in an official 
 
 capacity 374 
 
 Lords for life without peerage 374 
 
 No early instance of the creation of a new peerage, for his life only, in 
 
 the person of a man 375 
 
 Difference between creation of a Peer for life and creation of a peerage 1 
 
 for life 375 
 
 Attempt to give a life-peerage only to Sir James Parke, as Baron 
 
 Wensleydale, in 1856 376 
 
 Proceedings of the Lords : Resolution that the grantee could not sit 
 
 and vote in Parliament 376 
 
 Protest by dissentient Lords 377 
 
 Second Protest 377 
 
 Third Protest, partly on the ground that the Judges had not been 
 
 asked to advise 378 
 
 Hereditary peerage in the end given to Lord Wensleydale . . . 378 
 
 A subsequent life-peerage Bill miscarries ...... 379 
 
 Earl Russell's Bill for the creation of life-peerages in 1869 . . . 379 
 
 The Scheme as amended by Lord Cairns 380 
 
 The Bill rejected . .381 
 
 Proposal of 1870 to exclude future Bishops from the House . . 382 
 
 1 Lords of Appeal in Ordinary ' made Lords of Parliament during tenure 
 
 of office, in 1876 382 
 
 The Earl of Rosebery's motion touching 'the efficiency' of the House 
 
 in 1884. 383 
 
 Lords of Appeal in Ordinary made Lords of Parliament for life, in 1887 383 
 The Earl of Rosebery's motion touching the constitution of the House 
 
 in 1888 384 
 
 The Earl of Dunraven's scheme of 1888 384 
 
 The Marquess of Salisbury's scheme of 1888 386 
 
 The classes of which the House of Lords now consists . . . 387 c 
 
 The numbers in each class 387 
 
 Conclusion : changes in the meaning of constitutional terms, and, in 
 
 particular of Parliament 388 
 
 Changes in the constitutional position of the Peers .... 388 
 
 Yet the House of Lords is the result of a natural process of development 389 
 
 Its ranks have been recruited from representative men . . . 389 
 The national habits have commonly been reflected in new creations of 
 
 Peers 390 
 
 The House is a link between the Present and the Past . . . 391 
 
CONSTITUTIONAL HISTORY 
 
 THE HOUSE OF LORDS 
 
 CHAPTER I. 
 
 The Pre-Norman Period. 
 
 IN tracing the history of the House of Lords, as con- Chap.]. 
 sisting of two estates of the Realm — of the Lords 
 Spiritual and the Lords Temporal — it is unnecessary to 
 consider in very minute detail the events which preceded 
 the Norman Conquest. There are, however, without doubt, 
 some broad and well-marked features of earlier periods 
 which can be recognized as persisting through the modi- 
 fications caused by the lapse of time and the mutability of 
 human affairs, and which, therefore, cannot be dismissed as 
 absolutely irrelevant. 
 
 The titles of honour of the Temporal Lords are derived, The origin 
 in the first instance, from titles associated with some kind ^ m o p f oia 
 of service to the State or to the Sovereign — military service, honour, 
 or administrative service, or judicial service, or some com- 
 bination of the three. This statement applies equally to 
 Duke, Marquess, Count (or Earl), Viscount, and Baron. 
 
 Comes, Comte, or Count may, perhaps, be regarded Roman 
 as the earliest of these titles. Even during the Roman ^Dukes 
 occupation there were in Britain two Comites — one the in the 
 
 B 
 
CONSTITUTIONAL HISTORY OF 
 
 Chap. I. 
 
 Western 
 Empire, 
 and in 
 Roman 
 Britain. 
 
 The signi- 
 fication of 
 Conies or 
 Count. 
 
 The juris- 
 diction of 
 the Dux or 
 Duke. 
 
 Comes Saxonici Littoris per Britanniam, the other the 
 Comes Britanniarum. The former, the Count of the Saxon 
 Shore, had a military jurisdiction, which extended from 
 Brancaster, in Norfolk, past Caistor and Yarmouth, round the 
 Isle of Thanet (with garrisons at Reculver and Richborough) 
 to Dover, and thence to Shoreham, with probably inter- 
 mediate stations at Lymne, Hastings, and Pevensey. His 
 power may possibly have extended further westward, but, as 
 four out of his nine fortresses were almost certainly in Kent, 
 it is clear that his chief strength was concentrated there. 
 His nine castles are delineated in his ensign in the Notitia 
 Utriusque Imperii* 1 . The Comes Britanniae, or Britanni- 
 arum, had a much wider, if not a supreme militaryjurisdiction 
 in Britain His ensign was one large fortress on an island 
 somewhat in the shape of Great Britain ; and it is distinctly 
 stated that he had under his disposition the Provincia 
 Britanniac* . 
 
 At different periods of Roman history the word Comes 
 had different significations, but the only three which it is 
 necessary to bear in mind are that of an officer having 
 military authority, that of an officer having administrative 
 jurisdiction, and that of the companion of the Sovereign. 
 At the time of the compilation of the Notitia there 
 appear to have been six Comites rei militarist in the Western 
 Empire, of whom two were the Counts in Britain already 
 mentioned. There were many more in the Eastern Empire; 
 and both in the Code of Theodosius and in the Code of 
 Justinian there are divisions relating to these Counts for 
 military affairs, and to the Counts who govern provinces 4 . 
 , The title which seems to be next, if not equal in antiquity, 
 is that of Duke, which is also of Roman origin. There 
 was during the Roman occupation of Britain a Dux 
 
 1 Notitia Occidentis, cap. xxv, ed. Booking, vol. ii. p. 80*, and Notes, 
 p. 580* et seq. 
 
 2 Jb., cap. xxvi, ed. Booking, ii. 82*. 
 
 3 lb., cap. i, ed. Booking, ii. 4*. 
 
 4 Comites qui provincias regunt. Cod. Theod. lib. vi. tit. 14 and 17 ; 
 Cod. Justin, lib. xii. tit. 12 and 14. 
 
THE HOUSE OF LORDS 3 
 
 Britanniarum. His ensign, like that of the Count of the Chap. I. 
 Saxon Shore, was an island with castles upon it, but he had 
 fourteen, while the Count had only nine. He had fourteen 
 prefects under his command, in addition to those holding 
 fortified posts along the line of the wall of Severus 1 . 
 He was, like the Counts, a military officer, and his chief 
 duty was apparently to guard the northern frontier. He 
 was the only Duke in Britain ; but there were eleven others 
 in other parts of the Western Empire 2 . 
 
 Little or nothing is known from contemporary evidence Gap in the 
 of the events which happened in Britain for some genera- Britain 
 tions after the Romans finally abandoned the island. In after the 
 
 departure 
 
 that part of it which was subsequently called England the of the 
 Roman language seems to have been effaced by Teutonic Romans - 
 forms of speech as effectually as the language of Gaul had 
 in an earlier age been supplanted by the Roman language 
 itself. The Christian religion, which must also have pene- 
 trated into Britain during the Roman occupation, was, so 
 far as is known, destroyed in the same district by the 
 invading Angles, Saxons, Frisians, and Jutes, who conquered 
 the land. The fate of the previous inhabitants must always 
 remain uncertain. It has been the theme of endless con- 
 jectures, of which probably the best are those founded on 
 the analogy of other countries, where Teutonic tribes came 
 into contact with Roman civilization. 
 
 Roman Britain, however, differed in one very important Differences 
 point from those continental provinces of the Roman the^ondi- 
 Empire which were overrun by Teutonic invaders. Being tion <? f 
 farther from Rome it was farther from the influence of the that of 
 Roman Church. The Christian religion in Britain appears Rom . an 
 
 ° rr provinces 
 
 at a very early date to have differed in some points from on the 
 the Roman doctrines, and, having less support, fell an easier Contment 
 prey to the invaders. The course of history was consequently 
 somewhat different. The language and the religion natu- 
 rally perished together from similar causes. 
 
 1 Notitia Occidentis, cap. xxxviii, ed. Booking, ii. 112*. 
 
 2 lb., cap. i. 
 
 B 2 
 
CONSTITUTIONAL HISTORY OF 
 
 Chap. I. 
 
 Augus- 
 tine's 
 mission : 
 Bishops 
 and 
 Abbots. 
 
 No firmly 
 established 
 kingdom of 
 England 
 before the 
 Conquest. 
 
 An interval of more than a century and a half passed 
 between the departure of the Roman legions and the arrival 
 of the Roman missionaries under Augustine, by whose means 
 the inhabitants of the country which had been Roman Britain 
 again became Christians. This was a very important epoch, 
 not only in church history, but also in constitutional history, 
 because bishops and abbots were to play a very important 
 part in the moots, councils, and parliaments of a future age. 
 Bishop and Abbot, like Count and Duke, were Roman 
 words, but Roman only by adoption from other tongues. 
 Bishop, the Latin Episcopus, came from the Greek 'Ettlo-kottos, 
 an overseer. The word has gone through many changes in 
 many languages, but both the English Bishop, and the 
 French £veqiie, though they have not a single letter in 
 common, can be traced historically to the common ancestor, 
 the Episcopus. Abbot is said to be derived originally from 
 the Syriac and Chaldee Abba, a father, but the word became 
 thoroughly Romanized in the form Abbas, from which it 
 has grown into modern European languages. 
 
 When Christianity was at length firmly established in 
 England, the Bishops and Abbots, but at first more par- 
 ticularly the Bishops, began to be leading men in the State. 
 The sees, however, differed from those of later times. It is, 
 indeed of importance to remember that before the con- 
 quest of England by William the Conqueror there had 
 not practically been any firmly established kingdom of 
 England. The petty principalities into which we find it 
 divided when it first appears in history had never lost their 
 distinctive names, and had never been firmly united under 
 one dynasty. The first king of England was Athelstane, 
 rather than Egbert ; and he died only a hundred and 
 twenty-six years before the battle of Hastings. His English 
 successors had but an unquiet time for half a century, when 
 the invasions of the Danes ended in the recognition of Canute 
 as king in 1016 ; and England remained under the sway of 
 the Danes until the time of Edward the Confessor, who, if 
 of English blood, was hardly English in his sympathies. 
 
 The early bishoprics represented the successive conver- 
 
THE HOUSE OF LORDS 5 
 
 sions of the petty chieftains who held sway in different Chap. I. 
 parts of England, and of their subjects. Canterbury and Th 
 Rochester represented the conversion of Kent ; London the early 
 the conversion of the East Saxons and Middle Saxons ; re pr e ° S e nted 
 York the conversion of Northumbria ; Dorchester in Oxford- the petty 
 shire the conversion of Wessex ; Lichfield (at one time oTprinti- 5 
 made an Archbishopric) the conversion of Mercia ; Dunwich p ali ties 
 (afterwards Elmham, and Thetford, and still later Norwich), England 
 the conversion of East Anglia ; and Selsey (afterwards Jf. as : , , 
 Chichester) the conversion of Sussex. 
 
 New sees were subsequently created, and some re- 
 distributions of dioceses were effected, but originally each 
 little king of the Heptarchy, or Octarchy, had a Bishop, 
 who was the head of the Church in his little kingdom, 
 and who was his adviser in all religious affairs. From 
 a superior knowledge of letters the bishop also acquired 
 an influence which extended beyond his spiritual authority ; 
 and, though somewhat changed in relative value, the 
 authority and the influence remained when England was 
 nominally united under one government. 
 
 Where once there had been petty kings or princes, there Earls took 
 were in later generations Earls, owing some sort of allegiance of e D e tt aee 
 to the King of England. Where there had been one Bishop princes or 
 or Archbishop, there were bishops in greater number. Earfand 6 
 Still, there always remained a practice that the Bishop the Bishop 
 should be the associate of the Earl, though his relative County 
 importance diminished, as the Earls continued to be few Court 
 and the Bishops became many. At the Shire Moot, or 
 County Court, the Earl was supposed to be present with 
 the Bishop ; but a single Earl must have sat in many Shire 
 Moots, while the Bishop had a seat in one only, or, at any 
 rate, in fewer than the Earl. 
 
 These lay and ecclesiastical magnates not only sat to Earls, 
 administer such law as was known in those times, in their Bl j h ??l' .. 
 
 ' # and Abbots 
 
 respective districts, but were summoned as Witan or wise among the 
 men to advise the King of England. Abbots also, or Xltan ' 
 some of them, at times formed part of the King's Council, 
 as well as other persons, of whom a greater or less number 
 
CONSTITUTIONAL HISTORY OF 
 
 Chap. I. appear to have attended, or to have been summoned to 
 attend, according to circumstances or to the particular object 
 in view at the particular moment. 
 
 The titles 
 of Lord 
 and Earl : 
 Lords and 
 lord less 
 men. 
 
 Ealdorman 
 or Alder- 
 man and 
 Earl. 
 
 The origin of the two titles of Lord (Hlaford) and Earl 
 (Eorl) is lost in the obscurities of an unlettered age, and the 
 two words have become the playthings of rival philologists. 
 Of the Saxon or ' Englisc ' lords little is known with 
 certainty except that which may be learned from the 
 Saxon laws. Every man was supposed to have a lord 1 : 
 and a lordless man was in evil plight 2 . Lords, too, might 
 have over-lords, and the over-lord of all was the king. 
 From one point of view the lord stood in a personal relation 
 of superiority to those who were his men or vassals. From 
 another point of view he was a land-holder who exacted 
 services from his undertenants or his slaves. But there 
 is nothing to show that every person who might be 
 called lord was entitled or summoned to sit among the 
 Witan ; and it seems to be as a term of respect that 
 the expression endured after the Conquest rather than 
 as a term implying any right to legislate or to be the 
 King's Counsellor. 
 
 Earls, however, were in a different position, and it may 
 be necessary to say a few words as to their early functions 
 and status. Before the time of Canute the various divisions 
 or shires appear to have been under the lay jurisdiction of 
 an officer called Ealdorman or Alderman, whose authority 
 was both military and civil. He appears to have been 
 responsible for the military array of his particular shire, 
 and to have sat with the Bishop in the Shire Moot for 
 various legal and administrative purposes. His title is almost 
 the exact equivalent in signification of the French Seigneur, 
 each implying, in the first instance, seniority, and then, 
 derivatively, respect and authority. While, however, the 
 
 1 Ancie?it Laws and Institutes of England. There are abundant 
 illustrations from the time of Wihtred (about 700 A. D.) downwards. 
 
 2 He might be slain as a thief. Laws of King Athelstane I. Ancient 
 Laws and Institutes, p. 85. 
 
THE HOUSE OF LORDS 7 
 
 French Seigneur became a term implying chiefly lordship Chap. I. 
 over land, the Alderman, though no doubt usually a land- 
 owner, was, as Alderman, only an officer having certain 
 duties and responsibilities. As land-owner the English 
 equivalent of the French Seigneur was Lord. 
 
 The Alderman's title does not appear to have been strictly Alderman 
 hereditary, though it may often have remained in the same j^nke!'* 
 family. The lands which an Alderman held he might have 
 held by inheritance, but he was not necessarily land-owner 
 over the whole of his shire, and consequently his honours 
 did not necessarily descend with his lands. When he 
 attested a charter in the Latin language he often called 
 himself Duke, or rather Dux, the word being used perhaps 
 as the equivalent of Heretoga, or military leader \ more 
 probably in imitation of Roman fashions. He was not, 
 however, a Duke in the modern sense, possessing hereditary 
 dignity without official responsibility. It was essential that 
 he should be capable of service in the field, and if at his 
 death he left only an infant son, that son would be wholly 
 incapable of performing his duties either in the field or in 
 the Shire Moot. 
 
 The territorial jurisdiction of the Alderman extended Territorial 
 sometimes over a large district, sometimes over a com- f Alder- 
 paratively small district. It is not known with certainty mar * or 
 when the country was first divided into ' shires ' ; it 
 is hardly certain that any Alderman ever presided over 
 a shire of exactly the same extent as one of those which 
 are seen to be in existence in Domesday Book. He 
 seems more frequently to have had the command over 
 a territory representing one of the earlier kingdoms, as, for 
 instance, Northumbria, Mercia, or East Anglia. The point 
 is, however, of but little importance, because the title 
 practically disappeared with the Danish supremacy under 
 Canute. From that time forward the officer who exercised 
 a similar jurisdiction was called Eorl, the modern Earl. 
 
 1 See, for instance, Kemble's Codex Diplomaticus, charter No. 219, 
 and see The Saxons in England, ii. 129, note. 
 
CONSTITUTIONAL HISTORY OF 
 
 Chap. 1. 
 
 Earldoms 
 before the 
 Conquest 
 not strictly 
 hereditary. 
 
 Absence oi 
 settled 
 principles 
 in England 
 before the 
 Conquest. 
 
 His authority also was not usually restricted to a single 
 shire, as the shires are set forth in Domesday Book. In 
 some parts of the country it seems to have been of variable 
 extent, in others more nearly uniform from one generation 
 to another. Sometimes one Earldom appears to have been 
 more or less subordinate to another, and at other times to 
 have been in no such subordination. Sometimes the Earldom 
 passes from father to son, as if hereditary; sometimes, 
 though not from father to son, yet from one member of 
 a house to another member of the same house. 
 
 There has been some evidence produced to the effect 
 that, before the Norman Conquest, the Aldermanship or 
 Earldom of Chester passed from father to son for seven 
 successive generations 1 ; but if so, the case was quite 
 exceptional. The Earldom of Northumbria affords perhaps 
 another illustration of the office or dignity being frequently 
 in the hands of members of the same family. It does not, 
 however, show an absolutely continuous hereditary descent, 
 and it did not always pass as an undivided Earldom 2 . 
 
 An Earldom, being a military, judicial, and administrative 
 office, was necessarily subject to the inevitable rule that it 
 must be in the hands of some person capable of executing 
 it. The throne itself was not strictly hereditary, much less 
 the official rank of an Earl. Moreover, the country had, 
 since the departure of the Romans, never been in a con- 
 dition sufficiently settled or even sufficiently civilized to 
 render men familiar with the idea of definite principles 
 
 1 The pedigree which is not, perhaps, to be taken otherwise than 
 cum grano salts is appended to a MS. of Florence of Worcester 
 cited by Dugdale, Mon. Angl. iii. 192, as belonging to the Archbishop 
 of Armagh. I am indebted for the reference to Sir Francis Palgrave's 
 Rise and Progress of the English Commonwealth, Part 2 (Proofs and 
 Illustrations), p. ccxci. 
 
 2 The genealogist may be interested by the comparison of the 
 pedigree given by Florence of Worcester (English Hist. Soc), ii. 
 251-2, with that given by Simeon of Durham (Rolls Series), ii. 197-9 
 and 382-4. Not only does one differ from the other, but neither agrees 
 with the statement in the A. S. Chronicle, anno 1016, as to Eric the 
 Dane having then become Earl. 
 
THE HOUSE OF LORDS 
 
 remaining fixed from generation to generation. After the Chap. 
 Conquest there was some clamour for ' the laws of Edward 
 the Confessor,' but not for laws rendered venerable by 
 a higher antiquity. The six centuries which had elapsed 
 since the last of the Roman legions left the island had not 
 sufficed for a reconstruction of the warring elements within 
 it, or even greatly changed the external conditions. The 
 country had never been free from intestine strife, and never 
 secure against the attacks of invaders from the Cimbric 
 Chersonese and its neighbourhood. A strong hand, a stern 
 discipline, and a genius for organization were required to 
 convert England into a homogeneous whole. They came 
 not from within, but from without. Harold's deficient 
 and comparatively ill-trained levies were as little able to 
 resist the French chivalry, under William of Normandy, as 
 any king reigning, or seeming to reign, in England, had 
 been able to mould his subjects into a well-governed 
 nation. 
 
CHAPTER II. 
 
 The Ideas of Nobility and Succession brought by the 
 Conqueror from France, and their Sources. 
 
 Chap. II. 
 
 Necessity 
 of con- 
 sidering 
 the ideas 
 brought 
 from 
 France. 
 
 Roman 
 Comites 
 and French 
 Counts ; 
 the Counts 
 and the 
 Missi. 
 
 AS it was necessary to give some slight account of the 
 position of the Bishops, the Abbots, the Earls, and 
 the Lords whom William the Conqueror found when he 
 made himself master of England, so also it is necessary 
 to give some account of the organization and the ideas of 
 nobility which he brought with him from Normandy. This 
 can hardly be rendered intelligible without casting a retro- 
 spective glance at a far more remote period, and bringing 
 to mind once again the Counts and Dukes (the Comites 
 and Duces) of the Roman Empire. 
 
 After the successful invasion of Gaul by Clovis in the 
 year 486, and the establishment of his kingdom, the 
 conquered territory was divided into districts which were 
 placed under the government of Counts. Thus the old 
 Roman term was preserved and applied to the divisions 
 of the Frankish kingdom. It was for many centuries 
 afterwards associated with a territorial jurisdiction in 
 France, though the country passed through innumer- 
 able vicissitudes. The jurisdiction was not only military 
 but civil, and in the time of Charlemagne there was 
 an organization which very much resembles in prin- 
 ciple, though not in the intervals of time, that of the 
 County Court in relation to the Eyre in England in 
 the thirteenth and fourteenth centuries. Charlemagne's 
 
THE HOUSE OF LORDS . n 
 
 Missi, or Justices specially delegated, were four times Chap. II. 
 a year to hold pleas with the several Counts in some 
 convenient place, while each Count was in the intervening 
 time to hold his own pleas and was himself to do justice *. 
 
 The title of Duke also became early associated in France Roman 
 with territorial jurisdiction, and there seems, indeed, to breach* 
 have been in some cases but little distinction between Dues. 
 2l Duke and a Count, though in others the area of the 
 Count's authority was far more limited. The French Due 
 derived his designation etymologically from the Roman 
 Dux, and there is every reason to believe historically also, 
 though he at length impressed upon it a more permanent 
 character than that of the Roman Dux in a Roman 
 Province. 
 
 It has, indeed, been suggested that the titles of Count The 
 and Duke are historically of Teutonic, and not of Roman ^»5SJ of 
 origin, though no one has yet been bold enough to deny Tacitus; 
 that the words can be clearly traced downwards from German 
 the times of the Roman Empire. The tribes which over- Heretogs, 
 ran Romanized Gaul, as well as the tribes which overran of armies. 
 Romanized Britain, had, in their own dialects, a word which 
 was nearly the equivalent of the Roman Dux in its original 
 sense of the leader of an army. This took various forms, 
 Here tog, Her tog, Heertog, Here toga, Heretocha, or, in High 
 German, Herzog. It does not appear, however, that before 
 any contact of Teutonic peoples with the Romans, the term 
 implied any territorial jurisdiction. Every fighting tribe 
 or nation must, of course, have had a leader of its forces, 
 but only a great and long established Empire like that 
 of Rome could, in the first instance, have given the 
 leaders of its forces a clearly defined territoral jurisdiction 
 passed on from one leader to his successor. A Duke of 
 the Frankish Empire or Kingdom had more in com- 
 mon with a Roman Dux, such as the Dux Mauritauiae 
 Caesarzenszs, the Dux Pannoniae Secundae, the Dtix Belgicae 
 
 1 Car oli Magni Cafiitularia, ed. Pertz, Capitular e Aquisgrane?ise 
 (a.d. 812), § 8 (vol. i. p. 174). 
 
12 CONSTITUTIONAL HISTORY OF 
 
 Chap. ii. Seetmdae, the Dux Germaniae Primae, or the Dux Britan- 
 niarum 1 whose head-quarters were at York, than with 
 a general of forces destined for the invasion of the lands of 
 a neighbouring tribe or of the Roman Empire itself. 
 
 There are some often quoted passages in the Ger mania 
 of Tacitus from which it has been argued that the con- 
 tinental title of Count is of purely Teutonic origin. The 
 words of Tacitus, if they could be rightly interpreted to 
 support this remarkable proposition, could with equal 
 propriety be adduced to prove that the worship of Mercury 
 was learned from the Germans (who offered human sacri- 
 fices to that god) as well as the worship of Hercules and 
 Mars, to whom the Germans sacrificed animals 2 . Accord- 
 ing to this author, who nowhere states the sources of his 
 information, the German tribes or nations had kings who 
 were chosen by reason of noble birth, and Duces or leaders 
 who were chosen for their valour. These kings had not 
 absolute power ; and the leaders were popular in proportion 
 to the distinction of their services in the field 3 . There 
 were councils of two kinds, those in which the principes or 
 chiefs took part, and those in which the whole tribe was 
 present. In the former, matters of smaller moment were 
 settled ; matters of greater importance were decided in the 
 latter, though discussed in the former. The chiefs or 
 principes were elected in council and their function was 
 to administer justice in different districts. 'A hundred 
 Comites, from among the people, attend upon each, at once 
 constituting his council and lending him authority.' A very 
 young man of princely rank might, without degradation, 
 be one of the Comites of another chief 4 , and there were 
 various degrees of Comites regulated according to the 
 pleasure of the chief whom they followed. 
 
 1 Notitia Utriusque Imperii, cap. v, ed. Booking, vol. ii. p. 23*. 
 
 2 Tac. Germ., cap. 9. Caesar's description is entirely at variance 
 with that of Tacitus. According to him the Germans had no gods but 
 the Sun, the Moon, and Vulcan or Fire, and had never heard of 
 any others. Caesar, Comm. de Bell. Gall. vi. 21. 
 
 3 Tac. Germ., cap. 7. 
 
 4 lb., caps. 11-13. 
 
THE HOUSE OF LORDS 13 
 
 On these passages which are in themselves very obscure, Chap. II. 
 has been built the theory that the mediaeval Counts are 
 the representatives of the Comites or ' Companions ' who 
 attended the German Principes. There is however, not 
 the slightest evidence to show that any one of these 
 companions ever had any territorial jurisdiction whatever. 
 It was the Princeps, whatever he may have been, who had 
 jurisdiction. His Comites or companions were young men, 
 or men of martial prowess, and not sage elders. In epigram- 
 matic language Tacitus says ' the Principes fight for victory, 
 the Comites for the Pr weeps 1 .' 
 
 Attempts have been made to show a connexion between Gere/a and 
 the High German Graf (the modern High German c^mm's 
 equivalent of the French Comte) and the English or rather etymology 
 ' English Gerefa {Reeve), and to make both equivalents 
 of the dignity to which Tacitus gives the name Comes. It 
 is not by any means certain that there is any affinity 
 between Gerefa and Graf and it appears highly improbable 
 that the word Graf which is always associated with the 
 name of a place, can in any way be traced back to the 
 Comes or companion of a German Princeps. The most 
 remarkable effort in this direction was made by the dis- 
 tinguished philologist Grimm 2 , who derived Gerefa from 
 Rof a roof, suggesting apparently that Gerefa and Graf 
 meant a companion in the sense of a person who shared the 
 same roof, just as Gefahrte means a person who travels 
 with another, or is his travelling companion. The deri- 
 vation, it is true, was put forward only interrogatively ; but 
 in all its vagaries philology probably never wandered 
 further astray than in this conjecture. The last thing 
 of which, according to Tacitus, one of the ancient German 
 Comites, as the Roman called them, would have thought, 
 was a roof. Not only were his dominant ideas those of 
 glory in the field, but he and his fellow-countrymen had 
 no knowledge of the use of mortar or tiles 3 . 
 
 1 Tac. Germ., cap. 14. 
 
 2 Deutsche Grammatik, ii. 737, < Rof (Tectum) daher Gerefa (Socius, 
 Comes)?' * Tac. Germ., cap. 16. 
 
14 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. II. 
 
 No German 
 literature 
 previous to 
 German 
 contact 
 with the 
 Roman 
 Empire. 
 
 Similarity 
 of laws 
 wherever 
 Teutons 
 settled in 
 the Roman 
 Empire. 
 
 Identity 
 of early 
 titles and 
 terms of 
 respect in 
 France, 
 Italy, and 
 Spain : 
 all of 
 Roman 
 
 The slender, vague, and contradictory notices in the works 
 of Caesar and Tacitus cannot be supplemented by any 
 German writings of the same period, or of any period within 
 some hundreds of years afterwards. There is no German 
 literature of any kind whatever of earlier date than the 
 translation of portions of the Bible into Gothic by Ulfilas 
 near the end of the fourth century ; and this, of course, 
 throws not the least light upon German manners and 
 customs. It tells us, indeed, that German literature began 
 when Germany had felt the influence of the Roman Empire, 
 and through the Roman Empire, of Christianity. 
 
 The first real glimpse which can be obtained of Teutonic 
 laws presents itself to us after the Teutonic tribes had 
 settled in portions of the Roman Empire, and then, so far 
 as the continent is concerned, they have, for the most part, 
 arrayed themselves in the Latin language. As might have 
 been expected a priori, these laws of kindred tribes, settled 
 in different portions of the same empire, have much in 
 common, though differing in many of their details There 
 is a family likeness between the laws of the Visigoths in 
 Spain, those of the Lombards in Italy, and those of the 
 Burgundians, and those of the Franks, whether Ripuarian 
 or Salic, in Gaul. 
 
 While, however, there is only similarity in laws there is 
 absolute identity in titles and terms of respect, and they 
 are, without exception, of Roman origin. As in France, so 
 in Spain and Italy, the two Roman titles of Dux and Comes 
 were perpetuated, with an uninterrupted succession, from 
 the time of the Roman Empire into times when the 
 imperial ideas of government and of society had given 
 place to ideas wholly different and even utterly opposed. 
 The Duque and the Conde in Spain survived the Vandals, 
 the Visigoths, and the Moors. The Duca, the Doge, and 
 the Conte — titles which had had their origin in Italy itself 
 — were preserved in Italy through successive generations. 
 They were different, it is true, from the Roman Duces 
 and Comites, but different only as a descendant differs 
 from an ancestor. 
 
THE HOUSE OF LORDS ' 15 
 
 Concurrently with the titles of Count and Duke there Chap. II. 
 must have continued in Gaul, Italy, and Spain another The 
 Roman term of great significance — that of Senior, used French 
 originally in the sense of an elder, afterwards in the sense s^^ur ' 
 of one entitled to respect — the French Seigneur, the Italian and Lord 
 Signor, the Spanish Sehor. Like many other words it ment . 
 probably existed in conversational Latin, or the Latin of 
 the lower classes, and asserted itself when the Empire had 
 fallen on evil days, when literature had decayed, and when 
 the colloquial speech of the inferior population alone re- 
 mained to perpetuate the imperial language. It probably 
 descended from a very remote period when the Senate 
 consisted of a Council of Elders, and when one of the 
 qualifications for the rank of Senator was that of being 
 a Senior 1 . 
 
 Whatever the origin of the word, however, it is of im- 
 portance in the sense which it acquired in France, of lord, 
 or person having seignory in the legal sense of the term. 
 It came to be used in Law French in England, sometimes 
 in this sense, and sometimes also in the sense of a Lord of 
 Parliament. 
 
 In Spain, Italy, and Gaul, the barbarian invaders very Adoption 
 soon adopted, not only the language and the titles which jf ^ n 
 they found existing in the conquered lands, but the religion religion 
 also. They came as heathens, they remained as Christians, barbarian 
 While however they adopted the titles and the faith which invaders, 
 they found in the conquered lands, the form of government 
 was necessarily modified by new conditions. The new 
 
 1 It is curious to find in Livy the Patres Conscripti or Senators 
 divided into Seniores and Juniores, the greater respect being for the 
 Seniores : — ' consulibus et senioribus patrumj Liv. ii. 30 ; ' Consulares 
 ac Seniores} Livy iii. 41. It has been suggested that Dominus, lord, 
 was replaced by the Latin Senior only as a translation of the 
 German Elder. — Professor Max Miiller's Lectures on the Science of 
 Language, i. 229. This theory is noted ; but it would be a very 
 remarkable coincidence if all the tribes which invaded France, Italy, 
 and Spain, always used the word elder, as the only word expressing 
 lordship, and if all the inhabitants of all those countries translated 
 it by the same Latin word. 
 
i6 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. II. 
 
 Power 
 
 acquired 
 
 by the 
 
 Hishops 
 
 and 
 
 Abbots. 
 
 Dukes and 
 Counts, 
 Bishops 
 and 
 
 Abbots, 
 
 through- 
 
 comers did not rule, as Rome had ruled, by an organi- 
 zation having their ancient home for its centre. When 
 Romans conquered a province they conquered it for Rome ; 
 when the barbarians conquered a province they conquered 
 it for themselves, made it their habitation, and severed 
 themselves from their mother country for ever. 
 
 The outcome was everywhere very similar and very 
 remarkable. The Church acquired an extraordinary power 
 over the invaders, or, at any rate, the descendants of the 
 invaders who had come in without any knowledge of the 
 Christian religion. It is said that in their native wilds 
 the Teutonic chieftains never had absolute power. They 
 certainly had not when they settled in foreign lands and 
 accepted a foreign faith. They had always, perhaps, been 
 controlled by a council of some kind ; they may possibly 
 have taken advice of some of their pagan priests in their 
 northern homes ; but until they reached their new settle- 
 ments their acts and their counsels were never influenced 
 by a hierarchy which, in spite of occasional bursts of heresy, 
 acknowledged the Roman Pontiff as its head. They im- 
 posed a yoke on those who had once been subjects of the 
 Roman emperors, and themselves accepted the guidance of 
 Bishops who represented a spiritual instead of a temporal 
 Roman Empire. 
 
 The power of the Bishops, supplemented by that of the 
 Abbots, varied in different kingdoms or dukedoms, and at 
 different times, but the prelates everywhere succeeded in 
 obtaining a place in the councils of the sovereign, and in 
 the deliberative assemblies of the nation — in France no less 
 than elsewhere. The barons or lay tenants-in-chief also 
 had their place in these councils and assemblies, but it 
 appears to have been usual to give the prelates precedence, 
 as they are commonly mentioned first when any council or 
 assembly is noticed. 
 
 It thus appears that, wherever there was a Teutonic 
 settlement in a portion of the Western Empire, the form 
 of government and the social condition differed alike from 
 those of imperial Rome and from those which, according 
 
(TTN. 3ITTJ 
 
 THE HOUSE OF LORDS 17 
 
 to Tacitus, existed in ancient Germany. In names or titles, Chap. II. 
 however, the old Roman influence prevailed. Dukes and out the 
 Counts, Bishops and Abbots were borne above the deluge Teutonic 
 
 • -r. 1 settlements 
 
 of foreign invasion ; and although Barons, and at a later m the 
 period Marquesses were added to their ranks, a majority ^ s J r r e n 
 of Roman appellations has always been maintained on the 
 continent. 
 
 Some four hundred years after the Western Empire had Parallel 
 perished, Rollo the Northman fell upon a province of t i le oc _ 
 France, very much as the Franks and other tribes had cupationof 
 
 J r _ Neustna 
 
 fallen upon Roman Gaul. Then occurred a very curious by the 
 repetition of history. The Normans who overran and ^Jfo™ 611 
 settled in Neustria accepted the language, the religion, and portions of 
 even the political institutions of the French, just as the Empire by 
 Franks and other tribes had a few centuries before accepted earlier 
 the language and the religion of the Romans. Normans 
 became French Counts and afterwards Dukes, like other 
 French Counts and Dukes with a territorial jurisdiction. 
 It might indeed almost be said that they became more 
 French than the French themselves, and gave increased 
 vitality to the feudal system which they adopted. 
 
 Though less than two centuries elapsed between the The 
 descent of Rollo the Northman upon Neustria in 876, and acce^fthe 
 the battle of Hastings in 1066, the interval sufficed not only religion 
 to efface the differences between the inhabitants of Normandy language 
 and the inhabitants of the rest of France, but even to ofFrance - 
 render the inhabitants of Normandy proud of the title of 
 Frenchmen. They called themselves not Normans, but 
 Frenchmen, and it was as Frenchmen that they dis- 
 tinguished themselves from the English whom they had 
 overcome and in whose land they had settled. In most 
 of our records 1 , when occasion arises to draw a distinction 
 
 1 The Dialogns de Scaccario, lib. i. cap. 10, may perhaps be cited as 
 an exception. The Francigenae are there called Normanni ; but the 
 Dialogus, though appearing in the Red Book and in the Black Book 
 of the Exchequer, is not a record of legal proceedings. It is merely 
 a treatise which has been bound up with other matter relating to the 
 Exchequer. The term used in rolls and charters is Francigenae ; 
 
 C 
 
t8 CONSTITUTIONAL HISTORY OF 
 
 CiiAr. II. between the two populations, the English are described 
 as Angli or Angligenae, the invaders from Normandy 
 and their descendants as Fraud or Francigenae. 
 The The ideas which William the Conqueror brought with 
 
 principle 7 ^' im were ' therefore, the ideas of Frenchmen. The feudal 
 in France : system had reached maturity in France, and William him- 
 of the se lf held his Duchy of Normandy as a fief of the French 
 Counts and crowrL The principle of hereditary succession appears to 
 Normandy, have been now accepted in relation to the kingdom of 
 France itself, to the great French fiefs, of which the Duchy 
 of Normandy was one, and to the lands held of the greater 
 feudatories by subinfeudation. Hugh Capet had trans- 
 mitted the crown of France to his son, to his grandson, 
 and to his great grandson, Philip I ; and it was destined 
 to be transmitted to his descendants for many generations 
 afterwards. In the County, or, as it afterwards became, 
 the Duchy of Normandy, the principle had been recognized 
 without interruption from the time of Rollo. Rollo, on his 
 abdication, was succeeded by his son William, and William, 
 who left no legitimate issue, by his natural son (though 
 a minor) Richard I. Richard II (though also a minor) 
 succeeded his father Richard I, and was, in turn succeeded 
 by his eldest son Richard III. On the death of Richard 
 III, apparently without issue, he was succeeded by his 
 brother Robert, who left no legitimate offspring. Robert's 
 natural son, William II, however, was, like Richard I, 
 recognized as the heir, though a minor only some nine 
 years of age. 
 Contrast In Normandy, it will be observed, the succession from 
 
 thTprin- father to son was maintained in the most adverse circum- 
 ciples ac- stances, the omission of the marriage ceremony by the 
 Normandy parents not being regarded as an objection to the child when 
 and those the child was duly recognized by the father. William the 
 
 TcccDtcn in 
 
 England. Second of Normandy was William the Conqueror — William 
 the First of England. According to our later law he would 
 
 the latter term is more correct in every way, as the Conqueror's 
 followers were not all from Normandy. 
 
THE HOUSE OF LORDS 19 
 
 have been styled ' no man's son' (nidlius films). He, Chap. 11. 
 however, represented, in his own person, according to the 
 manners and customs of the age, two principles which had 
 been consistently followed since the time of his ancestor 
 Rollo — the principle of hereditary succession, and the 
 principle that the rights of a minor were not to be set 
 aside. 
 
 The principles which were observed in the case of the 
 Norman Counts and Dukes, who held of the King of 
 France, were without doubt observed in the case of the 
 vassals who held of the Duke of Normandy. In both 
 cases they may have had to undergo the strain of an 
 ambitious and turbulent nobility always ready for war and 
 always seeking self-aggrandizement. In France they bore 
 the strain and survived ; in England they never completely 
 asserted themselves before the time of the Conquest. Of 
 the two previous kings of England one (Edward the Con- 
 fessor) was not the direct heir to the throne, and the other 
 (Harold) had no title but that of election. 
 
 C 2 
 
CHAPTER III. 
 
 Effects of the Conquest from William I to Henry I 
 
 THE WlTAN AND BARONAGE MAINLY FOREIGNERS. 
 
 Chap. III. 
 
 The 
 
 Conqueror 
 assumes 
 the part 
 of rightful 
 sovereign, 
 recogniz- 
 ing the 
 privileges 
 of his 
 English 
 subjects. 
 
 Delusive 
 character 
 of the as- 
 
 THE Conqueror, though he had no sort of hereditary 
 right to the throne, had, as was alleged, the expressed 
 wish of Edward the Confessor that he should succeed, and 
 had, after the battle of Hastings, the assent of the majority 
 of the people. He took the coronation oath which appears 
 to have been usually taken by English kings. He assumed 
 at first the position of lawful successor to Edward, of a vic- 
 torious and rightful sovereign who had delivered his country 
 from the usurper Harold. Except those who had borne 
 arms against him, he did not immediately dispossess the 
 English landholders of their lands. Though he regarded 
 Stigand, the English Archbishop of Canterbury, with dis- 
 favour, he did not immediately dispossess the English 
 bishops of their bishoprics. He accepted his consecration 
 at the hands of Aldred. the English Archbishop of York, 
 sent his greeting to the Londoners in their own language, 
 confirmed their privileges and those of other townsmen, and 
 even extended the hand of friendship to Edgar the Atheling, 
 who, if the principles of hereditary succession had been 
 followed in England as they were in Normandy, would now 
 have been King. 
 
 Partly for these reasons and partly because^ there is 
 a fashion in history, as in most mundane affairs, there has 
 
THE HOUSE OF LORDS 21 
 
 of late years been a tendency to minimize the effects of the Chap. III. 
 Conquest. The natives of England continued to speak of sumption . 
 Earls after the Conquest as they had spoken of Earls Lords 
 before. They spoke of William meeting his Wit an just as become Y 
 they had spoken of Edward the Confessor and of earlier seigneurs, 
 kings. There were still Sheriffs in the shires, and Moots ship 
 still assembled in them. Sac and soc, tol and team, infan- sei s nor y- 
 genetheof and utfangenetheof, and many other words of 
 sound as sweet to native ears were still applied to native 
 customs not yet extinct. How then did the Conquest 
 change the government of England ? 
 
 At first sight the answer to this question might seem 
 to be that no change of great importance was effected. 
 And if mere words were regarded, instead of the facts 
 underlying them, the same answer might be given even 
 after closer inspection. Any person, however, writing the 
 Englisc language of the day could only express himself as 
 that tongue permitted him. According to his education 
 there was but one word to convey all that was signified by 
 the Latin Dux, Comes, or Princeps, by the French Due or 
 Comte, and that word was Eorl. According to his ideas the 
 persons who constituted the council of a sovereign or quasi- 
 sovereign were Witan, and any assembly of such persons 
 was a Witenagemot. William himself, regarded as Duke of 
 Normandy, or rather of the Normans, was Eorl\ and 
 whenever he held a council it was necessarily a Witena- 
 gemot or Council of Witan. When a French follower of 
 the Conqueror became possessed of an English lordship he 
 became possessed of all its incidents. It was nothing to 
 him that the natives called them by the accustomed names, 
 for which he had the most profound contem'pt. He took 
 his privileges and his profits, his sac and his soc, his tol and 
 his team, his infangenetheof and his utfangenetheof. The 
 greater the privilege and the greater the profit, by whatso- 
 ever names they might be called, the better he was pleased. 
 
 1 A. S. Chron. A. D. 1052. See also A. D. 1031, 'Robert Eorl of 
 Normandi,' and A. D. 1087, where William's eldest son Robert is 
 ' Eorl on Normandi. 5 A foreign Count is always ' Eorl 3 in the Chronicle. 
 
22 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. III. 
 
 If William 
 was elected 
 King in a 
 Witen- 
 agemot, it 
 was not a 
 Witenage- 
 mot of 
 English- 
 men alone. 
 
 Gradual 
 substitu- 
 tion of 
 foreign 
 for native 
 dignitaries 
 both lay 
 and ec- 
 clesiastical. 
 
 The natives, whose master he had become, may have called 
 him lord, as they had previously called the native lord who 
 had been ousted. He did not so style himself. He was 
 their Seigneur, his right was seignory, and as seignory it 
 was known ever afterwards in the laws of the country. 
 
 The Witan assembled after the Conquest \ but they were 
 never again the Witan which had assembled before. The 
 Englisc words Witan and Witenagemot conceal a revo- 
 lution under identity of expression. From the very moment 
 of William's coronation there was a change which became 
 greater and greater during his reign and those immediately 
 succeeding. His title, if not that of the sword, or of the 
 bequest of Edward the Confessor, was elective ; but his 
 election was not in an English Witenagemot. The French 
 invaders were present as well as the English Witan, and 
 though the Archbishop of York asked the English whether 
 they would have William for their king, the Bishop of 
 Coutances put the same question to the French 2 . His 
 election was an election by both, but, so far as the English 
 were concerned, practically under compulsion. The Council 
 of the Conqueror was never wholly English, and in the time 
 of his son Henry I the process of denationalization was 
 almost complete. 
 
 Nothing, perhaps, reveals more clearly than contempo- 
 rary charters the policy of the Conqueror and the yoke 
 under which the English were being passed. They show 
 by their attestations the persons by whom he was sur- 
 rounded, and who constituted his Council. He would have 
 been more than human had he not more trusted those who 
 had supported him in his enterprise, and to whom he owed 
 his success, than those whom he had vanquished, and who 
 would have expelled him as an usurper had they only had 
 the power. Before he had been fifteen years upon the 
 throne he had abandoned all pretence of recognizing native 
 laymen as his councillors, and he had made great progress 
 
 1 A. S. Chron. a.d. 1085, and even A. D. 1100. 
 
 2 Gul. Pict., Gesta Guillelmi Ducis, pp. 205-6. 
 
THE HOUSE OF LORDS 23 
 
 in placing the highest dignities of the English Church in the Chap. III. 
 hands of foreigners. Lanfranc, the Archbishop of Canter- 
 bury, was an Italian from Milan ; Thomas, the Archbishop 
 of York, was a Frenchman from Normandy, and other 
 English sees had also foreign occupants. The Abbeys and 
 Priories alone appear for some time to have retained native 
 English Heads. 
 
 By a reflected light, as it were, the word ' Parliament ' A ' Parlia- 
 may be carried back to the reign of the Conqueror — to the William 
 year 108 1, though it does not seem to have come into use the Con- 
 
 r . r , - iit-i 1 queror : its 
 
 for some time afterwards. An assembly which was then judicial 
 held is described in a law report of the reign of Edward III 1 functlons - 
 as a Parliament. It was not, nor was it represented as 
 being a Parliament in the modern sense, but it was that 
 kind of Parliament to which the term has for centuries been 
 applied when reference was made to the judicial functions 
 of the House of Lords. 
 
 On May 31, in the fifteenth year of the Conqueror's reign, 
 was decided a very important cause arising out of a dispute 
 between the Abbot of Bury St. Edmund's and Arfastus or 
 Herfastus, Bishop of Thetford, to the effect that the Bishop 
 could not exercise the rights of Ordinary over the Abbot. 
 The judgement was then embodied in the form of a charter 
 with a recital of the proceedings 2 , the names of various 
 persons being appended as those of witnesses. 
 
 The persons who were present in the ' Parliament ' are Its con- 
 described in the later law report as ' the Archbishop of Arch- " 
 Canterbury, and all the other Bishops of the land, Earls, and bishops, 
 
 1 Year Book, 21 Ed. Ill, fo. 60 (No. 7). 
 
 2 The instrument has been printed several times. It appears in the 
 editions of Dugdale's Monasticon Anglicamcm, and in the recently 
 published Memorials of St. Edmund's Abbey (Rolls Series) vol. i. 
 pp. 347-50. The charter itself was, in the form of attestation, not unlike 
 those immediately preceding the Conquest, and there is one (of the 
 year 1021) to the same Abbey which is very similar, though no 
 Chancellor there appears. It is the recital of the judicial proceedings 
 and judgement by ' Parliament' (as the assembly is styled in the Year 
 Book) which gives importance to the Conqueror's charter to the Abbey 
 of Bury. The proceedings are described in the Memorials, i. 65-67. 
 
2 4 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. III. 
 
 Bishops, 
 Abbots, 
 Earls, and 
 other 
 Principes 
 of the 
 Realm, or 
 Proceres. 
 
 Barons,' though they were not described precisely in those 
 words in the charter itself. In one part of the charter they 
 appear as the Archbishops of Canterbury and York, Odo 
 (the King's half-brother), Bishop of Bayeux and Earl of Kent, 
 several other Bishops, the King's son Robert and ' other 
 principes of our realm (regni nostri)! In another part they 
 are mentioned as ■ Archbishops, Bishops, Earls, and other 
 our faithful knights {aliorumque milittim nobis fideiium)! 
 The King himself impressed the sign of the cross upon the 
 charter in token of confirmation. The witnesses were the 
 Queen, Matilda, the Archbishops of Canterbury and York, 
 Odo, Bishop of Bayeux. and the Bishop of Coutances, the 
 Bishops of London, Winchester, Worcester, Lindisfarn (or 
 Holy Island), ' Bath,' Exeter, Chester, Thetford (party in 
 the cause), Rochester, Salisbury, and Hereford, and the 
 King's three sons, Robert, William, and Henry. All of 
 these added some word of agreement, consent, or appro- 
 bation. The Chancellor, Maurice, added that he had read 
 the document and sealed it. The following witnessed the 
 instrument without further remark : the King's chaplain, 
 the Abbots of St. Augustine's (Canterbury), Chertsey, 
 Westminster, Glastonbury, Evesham, Ramsey, and Peter- 
 borough (who for the most part bore English names) ; Roger, 
 Earl of Montgomery ; Hugh, Earl of Chester ; Alan, Earl 
 of the East Angles ; Aubrey, Earl of the Northumbrians ; 
 Robert de Beaumont, and Hugh de Montfort. Richard, 
 son of Earl Gilbert, added the word consignavi, and follow- 
 ing him, without comment, are his brother Baldwin, Henry 
 de Ferrers, Hugh de Grentmesnil, and Walter GifTard. 
 
 It is not certain that the Avhole of these witnesses were 
 present in the Council or ' Parliament ; ' but all those who 
 were present were regarded as being either Prelates or 
 Principes (who were also knights) ; and these Principes were, 
 in the time of Edward III, understood to be Earls and 
 Barons. The Conqueror in his charter describes himself as 
 King of the English and Princeps Normannorum. He was 
 a Princeps in relation to the crown of France. The lay 
 members of his Council, perhaps the whole of the members 
 
THE HOUSE OF LORDS 25 
 
 (for that is a question of construction), were Principes of his Chap. III. 
 Realm, and, although the expression ' Peers of the Realm ' 
 had not yet come into use in England, it is not difficult to 
 see how the Principes of the realm of one reign became 
 the Peers of the realm of another. In the writ 1 which 
 followed the judgement and was addressed to Roger 
 Bigod as Sheriff, the assembly is described as having 
 consisted of the ' Archbishops and Bishops, Abbots and 
 Earls, and other my Proceres! In later times, and down 
 even to the present day, the Latin equivalent for the House 
 of Lords has been Domus Procermn. 
 
 Though the Council or ' Parliament ' which heard and Foreigners 
 determined the cause may have included persons whose ofthe 
 names do not appear as witnesses to the charter, and though ^^^ 
 it is possible that some of the witnesses to the charter may and de- 
 not actually have sat in the Council or ' Parliament,' there ^^ as 
 is no reason to suppose that the two classes were very 
 widely different. One of the most remarkable facts to be 
 observed in the list of persons is that some are identical 
 with those who attended William's Council in Normandy 
 before the final decision was taken to risk the invasion of 
 England. Both Odo, Bishop of Bayeux (and now Earl of 
 Kent), and Roger, Earl or Count [Comes) of Montgomery, 
 had given their advice in favour of the undertaking, and 
 Walter Giffard was, if not the same person, a son of the 
 Walter Giffard who was present on that occasion 2 . These 
 and others had now become English nobles, as possessing 
 English lands, and were among the Witan of the King of 
 England, as they had been and still were among the 
 Council of the Duke of Normandy. Thus the first assembly 
 in England to which the word ' Parliament ' has been 
 applied by any legal authority, was an assembly resembling 
 the House of Lords in its constitution., but consisting largely 
 of foreigners. 
 
 1 Printed in Memorials of St. Edmund's Abbey (Rolls Series), vol. i. 
 
 2 Gul. Pict, Gesta Guillelmi Ducts, p. 197 ; Wace, Roman De Rou 
 (ed. Pluquet), 11124-11130. 
 
26 
 
 THE HOUSE OF LORDS 
 
 Chap. III. 
 
 The 
 Wita.7i, 
 baronage, 
 or Parlia- 
 ment, 
 chiefly 
 foreigners 
 in the 
 reign of 
 Henry I. 
 
 When all the Earls and greater Barons, and most of the 
 Bishops were foreigners, the Abbeys and Priories could not 
 long retain native Heads. Many vacancies had occurred 
 during or before the reign of Henry I, and had not been 
 filled up ; but when that King was about to embark for 
 Normandy in the year 1 1 1 4 he bethought him of making 
 good the omission. It is expressly stated that what he did 
 was done by the advice of his Bishops and Principes. The 
 Bishops and Principes, not being of English extraction, did 
 not wish men of English extraction to be advanced to high 
 places. All the new Abbots were foreigners, not one of 
 English birth. If any man was an Englishman, piteously 
 complains the chronicler of the day, no merit could aid 
 him to be considered worthy of any honour. If any man 
 was a foreigner, he was straightway thought worthy of the 
 highest honours of all l . 
 
 Thus the King's Council, his Witan, his baronage, and, 
 according to the ideas of a somewhat later time his Parlia- 
 ment, had almost wholly ceased to be English. He had 
 advisers of the same class as Ethelred II, but advisers who 
 were in a different position with regard to the lower popu- 
 lation. They were the foreign advisers of a foreign king 
 ruling a subject people, the ruler and the ruled speaking 
 different languages, and having no sympathies in common. 
 
 The upper classes by degrees adapted themselves to the 
 situation. They learned to speak French, intermarried with 
 their rulers, had their children baptized with names imported 
 from France, and at last became indistinguishable from the 
 French themselves. This fusion among the higher ranks is 
 said to have been complete towards the end of the reign of 
 Henry II, though it had not affected the serfs, villeins, or 
 unfree people, who retained their native language 2 . In 
 their case the difference of race did not cease to be recog- 
 nized until the reign of Edward III, when the ' Presentment 
 of Englishry/ the last badge of subjection, was abolished 3 . 
 
 1 Eadmer, Hist. Nov. in A?igl. (Rolls Series), p. 224. 
 
 2 Dialogus de Scaccario, lib. i. cap. 10. 
 8 14 Ed. Ill, stat. 1. cap. 4. 
 
CHAPTER IV. 
 
 The King's Court or Curia Regis-. 'Parliament': Councils 
 and their Sub-Divisions. 
 
 TO the Curia Regis 1 (or King's Court) may be traced Chap. IV. 
 a great part of our early constitution. The expression, The Curia 
 however, was used in various senses, and the institution de- Regis^ or 
 veloped in various directions. The King was, in the early Court : 
 days after the Conquest, as well as before it, in the habit ^ oyal , 
 of holding his Court (in Englisc his hired) at different places Court of 
 and times, though usually the times were coincident with J 11 ^ 106 - 
 the three great festivals of the Church. The Court was an 
 assemblage of the principal persons of the realm, lay and 
 ecclesiastical — of the Earls and Barons, of the Bishops and 
 Abbots, and of'the great officers of state. Its meeting was 
 the opportunity f#r them to pay respect to the Sovereign, 
 as at a modern Court, though many kinds of business were 
 also transacted. It is often indistinguishable from the Com- 
 mune Concilium, or the ' Englisc ' Witenagemot, at which 
 advice might be taken, and aids granted. It was moreover 
 a Court in the legal sense of a Court of Justice 2 . 
 
 1 With regard to judicature it is not unusual to find Aula Regis, or 
 Aula Regia, used by modern writers as a synonym for Curia Regis. 
 The Aula was at most but a small part of the Curia Regis, in any of 
 its senses, and had relation to the household of the King. There are 
 still extant Placita Aulae of various reigns. The proceedings were 
 before the Steward and Marshal of the Household. 
 
 2 In the Reports from the Lords Committees, touching the Dignity 
 of a Peer of the Realm, vol. i. p. 20, it is suggested that 'the Supreme 
 
28 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. IV. 
 
 Cases 
 heard in 
 the King's 
 Court or 
 ' Parlia- 
 ment/ 
 William I 
 to Henry I. 
 
 In the latter sense it was a Supreme Court, having within 
 itself the powers of a court of first instance, of a court to 
 which causes could be removed from courts below, and of 
 a court of error or appeal It had. in an inchoate form, all 
 the functions subsequently divided between the Court of 
 Common Pleas, the Court of King's Bench, the Privy 
 Council, the Exchequer Chamber, and the House of Lords. 
 The Court of Exchequer seems to have been distinguished 
 in very early times from the King's Court as a whole, because 
 when not mentioned simply as the Exchequer, it is described 
 as the King's Court at the Exchequer 1 . The Chief Justiciary, 
 however, sat there as well as in other courts. The time at 
 which the division of jurisdiction (apart from that of the 
 Exchequer) began is not easily to be fixed with precision. 
 It can, however, be show r n to have begun much earlier than 
 the date usually assigned — than the granting of Magna 
 Charta by King John. 
 
 We have already seen how the King's Court, or Curia 
 Regis, was exercising judicial functions in the reign of the 
 Conqueror, and how the lawyers of the reign of Edw r ard III 
 were unable to distinguish it from a Parliament. In the 
 year 1096, William II and all his Optimates, or Witan, were 
 at Salisbury, where Geoffrey Bainard accused William de Eu 
 of conspiring against the King. The fact was decided by 
 battle, and the King passed sentence against the offender 2 . 
 Rufus also held his Court for the first time in the new Hall 
 a_t Westminster in 1099 3 . In the reign of Henry I it is 
 found that the Earls and Barons of all England assembled 
 at Salisbury in the year 11 16, and there heard the cause 
 
 Court of Justice denominated Curia Regis ' was the King's ' Select 
 Council '—a small body chosen by the King, and consisting, in the 
 main, of the judges and great officers of State. Sufficient evidence will 
 be adduced in the following pages to show that the original Curia 
 Regis was not so limited, and that the real fountain of justice was 
 the Commune Concilium Reg?ii, which afterwards became ' the King 
 in his Council in his Parliament.' 
 
 1 Curia Regis ad Scaccarium. 
 
 2 A. S. Chron., A. D. 1096. Hoveden (Rolls Series), vol. i. p. 151. 
 :i A. S. Chron., A. D. 1099. 
 
THE HOUSE OF LORDS 29 
 
 between the Archbishop of Canterbury and the Archbishop Chap. IV. 
 elect of York K In the year ] 1 23 the King held a Court, 
 Council, or, as the native writer calls it, gewitene mot, at 
 Gloucester in which was elected an Archbishop of Canter- 
 bury (William de Corbeuil), though apparently there were 
 many dissentients, including Earls and Barons. In the 
 year 11 24 King Henry I was in Normandy, but in his 
 absence a gewitene mot was held under Ralph Basset 
 (presumably Chief Justiciary), at which sentence was passed 
 on a great number of thieves, of whom forty-four were 
 hanged and six mutilated 2 . 
 
 Up to this point it is, perhaps, equally difficult to prove judicial 
 and to disprove that there was any division of jurisdiction, & e gJJ^ 
 except in so far as Justices in Eyre or Justices Itinerant Regis in the 
 may have carried a delegated authority into the shires. H^nryll: 
 Legal or constitutional reforms were hardly possible during indications 
 the disturbed reign of Stephen. )4 In the time of Henry II, 
 however, it may be considered certain that the whole of the 
 functions of the Curia Regis were not discharged by one 
 undivided Court. Still there are instances in this, as indeed 
 in subsequent reigns, in which the King's Court is seen to 
 be constituted as the full King's Court had been continuously 
 since the Conquest. A famous meeting at Clarendon in the 
 year 1 1 64, at w r hich the Earls and Barons were present, and 
 from which Becket, Archbishop of Canterbury, withdrew, is 
 distinctly called the Court K In the same or following year 
 King Henry II assembled a Great Council at Northampton, 
 but the Archbishop sent to the King a message that he would 
 not come to the Court except under special conditions. 
 On the morrow of the meeting, however, he came to the 
 King's Court, in his chapel, and was then required by the 
 King to answer charges made against him. In the end the 
 Barons of the King's Court (Curiae Regis) adjudged him to 
 be in the King's mercy 4 . 
 
 1 Hoveden (Rolls Series), vol. i. p. 170. 
 
 2 A. S. Chron., A. D. 1123 and 11 24. 
 
 3 'Recessit Archiepiscopus a Curia,' Hoveden (Rolls Series), vol. i. 
 p. 222. * Hoveden (Rolls Series), vol. i. pp. 224- 225. 
 
30 CONSTITUTIONAL HISTORY OF 
 
 Chap. IV. During all or a portion of this time, however, there is 
 D . . some reason to believe that delegates from the King's Court 
 from the were sent into the shires, partly, perhaps, in aid of the local 
 Court- jurisdictions, partly, perhaps, to check them. In France, if 
 early origin not in England, a similar practice had existed since the time 
 Justices in of Charlemagne, and. if it was unknown in England before the 
 E y re - Conquest, it could hardly have failed to be introduced soon 
 
 afterwards. As there are no judicial records earlier than 
 the reign of Richard I, and no Exchequer records between 
 Domesday Book and the Great Roll of the Exchequer of 
 31 Henry I, the point must always remain in some obscurity. 
 There are, however, in the Great Roll of Henry I some 
 indications of the Eyres, which are known to have been 
 definitely established in the reign of Henry II. It is there 
 apparent that one of the persons who holds pleas (G. de 
 Clinton) 1 travels over no less than twelve counties. The 
 names of others appear in as many as six counties. So also 
 in the time of Henry II, before the famous Assize of North- 
 ampton in 1176, there are entries in the Great Rolls of the 
 Exchequer which it is difficult to explain otherwise than 
 by the assumption that Justices were sent from the King's 
 Court into the counties, as Missi, Justices Itinerant, Justices 
 Errant, or Justices in Eyre. Numerous instances have been 
 collected which appear to show the existence of these Missi, 
 or Justices in Eyre, in the twelfth, thirteenth, and fourteenth 
 years of the reign 2 . In the sixteenth year (1170) some 
 ' Barons in Eyre ' 3 were sent [Missi) into the several 
 counties to make enquiry as to the conduct of Sheriffs. 
 Among them were an Earl and two Abbots 4 . 
 
 1 He appears to have acted as Chief Justice under some Commission, 
 as the pleas are sometimes described as Placita G. de Clintona, some- 
 times (e.g. in the part of the roll relating to Yorkshire) as Placita G. 
 de Clintona et Sociis ejus. 
 
 2 The Great Rolls of the Exchequer, under the heads of the 
 several counties in the years mentioned. The passages are cited 
 in the notes to Madox's History of the Exchequer, cap. iii. § 10, 
 adfin. 
 
 3 Barones Errantes. 
 
 4 Gervase of Canterbury (Rolls Series), A. D. 1170. The instructions 
 
THE HOUSE OF LORDS 31 
 
 In the year 11 76, we are told, the kingdom was divided Chap. IV. 
 into six parts, to each of which were to be sent three The 
 Justices, or eighteen in all. This, indeed, is the date eighteen 
 
 Tustices in 
 
 commonly assigned to the creation of Justices in Eyre, Eyre, and 
 though it is clear that there were Missi long before. On six Circuits 
 
 <> ° f of the year 
 
 this occasion, however, if not on previous occasions, the 1176. 
 appointment was in very solemn form, the King holding 
 a ' Great Council ' touching the laws or statutes of his 
 realm, at which were present the Archbishops, Bishops, 
 Earls, and Barons of the Realm, and the decision was taken 
 by common counsel of them all l . 
 
 In the absence of contemporary judicial records, it is The Eyre 
 impossible to form a sound opinion as to the conduct of 2^]^^, 
 these eighteen Justices. The Eyre, so far as the Crown five 
 part of its jurisdiction was concerned, was always unpopular, appointed 
 and complaints appear to have been made before the year to ™ax ** 
 1 178. In that year Henry II, having returned from abroad, the people 
 4 made enquiry touching the Justices whom he had ap- inII 7 i - 
 pointed in England, and whether they had treated the 
 people of the realm well and with moderation. He learned 
 that the realm and the people had suffered grievances 
 through the great multitude of Justices, they being eighteen 
 in number. Then, by advice of the Sapientes ( Witan) 
 of his realm, he chose five only, two ecclesiastics and three 
 laymen, and these were all of his private household. And 
 he ordained that these five should do right, and should 
 not depart from the King's Court, but should remain there 
 to hear all the claims or plaints of the people. Nevertheless, 
 if any question should come before them which could not 
 be brought to an end by them, it was to be presented to 
 the King's hearing and determined as should please him 
 and the Sapientiores ( Witan or wise men) of the realm ' 2 . 
 
 Thus the particular Eyres of the year 11 76 were brought 
 
 to enquire are printed also from Rawl. C. 641, in Bishop Stubbs's 
 Select Charters, p. 148. 
 
 1 Bened. Abb. (Rolls Series), vol. i. p. 107 ; Hoveden (Rolls Series), 
 vo . ii. pp. 87-8. 
 
 2 Bened. Abb. (Rolls Series), vol. i. p. 207. A portion of this 
 
 UNIVERSITY 
 
32 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. IV. 
 
 The Court 
 of Common 
 Pleas with 
 a jurisdic- 
 tion dele- 
 gated from 
 the Curia 
 Regis) now 
 practically 
 in exis- 
 tence. 
 
 But still 
 moveable 
 with the 
 King's 
 Court. 
 
 to an end, to be succeeded from time to time by new Eyres 
 under new Commissions. It will be observed that the five 
 Justices of the King's Court appointed at this time are not 
 said to have any authority in Crown matters. They are only 
 to hear the claims or plaints of parties, and not even to deter- 
 mine the plaints if any special questions should arise. Here, 
 to all appearance, the Court of Common Pleas comes 
 into being. It is, at any rate, in being here. The disputes 
 between party and party are to be brought not before the 
 King and his Witan, or Common Council, in the first 
 instance, but before his Justices. Through the Court of the 
 Eyre the public had already become familiar with the 
 idea of a delegated jurisdiction, away from the King's Court, 
 in pleas both civil and criminal. By the appointment of 
 Justices to sit in the King's Court and hear causes between 
 plaintiff and defendant, or between demandant and tenant, 
 they became familiar with another though similar kind 
 of delegation. 
 
 The Justices in Eyre were sent partly, it is true, for Crown 
 purposes, but partly in aid of the local jurisdiction for civil 
 causes. It would obviously be inconvenient for the King 
 and all his Court of Archbishops, Bishops, Earls, and 
 Barons to hear every small cause which might commence 
 in the Curia Regis or be removed into it from local courts. 
 Consequently, when there were no Eyres in Commission, 
 it was a very natural idea that causes which were not 
 
 passage has been frequently used with the object of proving a totally 
 different argument, which it in no way warrants. Mr. (afterwards 
 Sir Thomas) Hardy in his Introduction to the Close Rolls, p. xxv, 
 says 'the Court of Judicature which sat in the Curia Regis or the 
 King's Court is also presumed to have been instituted by the same 
 Prince [Henry II] in consequence of complaints made to him of the 
 partiality of the Justiciae resiant in his Court, the number of whom 
 he reduced from eighteen to five, and enacted ' quod illi quinque,' &c, 
 as above. Resiant is a technical word not exactly applicable to 
 Justices in Eyre. It is strange that neither Mr. Hardy, nor the many 
 writers on the Curia Regis who have copied him, should have per- 
 ceived that the eighteen Justices were the Justices in Eyre, and that 
 no other eighteen are mentioned by Benedictus Abbas. 
 
THE HOUSE OF LORDS 33 
 
 of exceptional importance should be heard by persons Chap. IV. 
 deputed for the purpose. There is not the slightest in- 
 dication in the words used, that these deputies or Justices 
 were to remain in any fixed spot. They were to remain in 
 the Kings Court and not depart from it. As the King's 
 Court was moveable so also must they have been, but they 
 were not to move independently, as Justices in Eyre. This 
 was, no doubt, a great inconvenience, and finds its place in 
 that part of King John's Magna Charta which provides 
 that Common Pleas are not to follow the King's Court. 
 The Justices, however, who were not to move except with 
 the King's Court, were, there can be little doubt, those who 
 were soon after called 'the Justices of the Lord the King of 
 his Bench ' — ' the Bench ' meaning invariably not, as might 
 be supposed by laymen rather than lawyers, the King's 
 Bench, but the Common Bench or Court of Common 
 Pleas. 
 
 About the time of the appointment of the Justices in In 1 176 
 Eyre by Henry II in 1176, and even a little earlier, it j^ric^of 
 
 becomes apparent that there were also Justices of the Curia the Curia 
 
 Rc°is dis- 
 Regis as distinguished from the ancient Curia Regis re- tinguished 
 
 garded as a whole. Many of them were the same persons £°^ he 
 
 as the Justices in Eyre, but were clearly acting in a different Regis as 
 
 capacity, and not acting solely within the limits assigned ^ f ° ^ 
 
 to them respectively in their circuits as Justices in Eyre, the Justices 
 
 Thus, in Yorkshire pleas, William Fitz-Ralph, Bertram de 
 
 Verdun, and William Basset Y acted as Justices of the Curia 
 
 Regis in 1176, whereas Ranulf de Glanvill, Robert de Vaux, 
 
 and Robert Pikenot were the Justices in Eyre for the same 
 
 county 2 . So also, in the pleas of Buckinghamshire and 
 
 Bedfordshire, Fitz-Ralph, Verdun, and Basset are found to 
 
 be Justices of the Curia Regis even in the preceding year 3 , 
 
 1 Great Roll of the Exchequer, 22 Hen. II, Yorkshire; and again 
 the Roll of 23 Hen. II (both cited by Madox, Hist. Exch., cap. iii. § 5, 
 notes). 
 
 2 lb. ; Bened. Abb. (Rolls Series), vol. i. p. 108. 
 
 3 Great Roll of the Exchequer, Bucks and Beds, 21 Hen. II (cited 
 by Madox, as above). 
 
 D 
 
34 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. IV 
 
 The Eyre 
 of 1179: 
 the Lord 
 High 
 Treasurer 
 and a 
 Bishop 
 among the 
 Justices. 
 
 The 
 
 Justices of 
 one Circuit 
 were the 
 Justices of 
 Common 
 Pleas. 
 
 and the same persons (Verdun and his companions) again in 
 1176 l , whereas the Justices in Eyre for those counties were 
 in 1 1 76 Walter Fitz-Robert, Hugh de Cressi, and Robert 
 Mantell 2 . 
 
 The creation of a limited Curia Regis as distinguished 
 from the whole Court known by that name was, therefore, 
 not as has sometimes been supposed, merely the outcome 
 of the suppression of the Eyres of 1176. Those Eyres in 
 fact had barely been ended before new Eyres were put in 
 commission. In the year 1179 the kingdom was divided 
 not into six, but into four circuits, and Justices to the 
 number of no less than twenty-one were divided among 
 the four districts — six Justices to one, and five to each 
 of the others. The names are of singular interest as show- 
 ing how some, though not all, of the Justices in Eyre must 
 have been members also of the great Curia Regis, while 
 others apparently were not qualified to be members, unless 
 indeed there was already arising a Council within a Council. 
 In three out of the four circuits a Bishop presided, in one 
 of the three the Treasurer was one of the Justices, in the 
 second the King's Chaplain, and one of the King's Clerks, 
 and in the third also one of the King's Clerks. There is 
 nothing to show that the other Justices in these three 
 divisions were Bishops, Abbots, Earls, or Barons. 
 
 The fourth division, however, was the most remarkable 
 of all. There were in it six Justices, not one of whom 
 appears to have been Bishop, Abbot, Earl, or Baron, and 
 of these six it is said that they were also appointed Justices 
 in the King's Court {Curia Regis) to hear the claims or 
 plaints (clamor es) of the people 3 . The Justices to hear 
 the claims of the people can only be, under another name, 
 the Justices to hear Common Pleas, as distinguished from 
 those who had jurisdiction in Pleas of the Crown. As 
 
 1 Great Roll, 22 Hen. II, Bucks and Beds (cited by Madox, as above). 
 
 2 The same Great Roll; also Bened. Abb. (Rolls Series), vol. i. 
 p. 107. 
 
 3 Bened. Abb. (Rolls Series), vol. i. pp. 238-9 ; Hoveden (Rolls 
 Series), vol. ii. pp. 190-1. 
 
THE HOUSE OF LORDS 35 
 
 Justices in Eyre in the Northern Counties the six would Chap. IV. 
 have both jurisdictions v As Justices of the King's Court 
 to hear the plaints of the people they had only one^ 
 
 Shortly afterwards Ranulf de Glanvill, who was tone of Indications 
 these six Justices, became Chief Justiciary (in A.D. u8o)\ ex i st e nC e 
 and partly from what has been told of him, partly from b y delega- 
 what he has told us himself, it is possible to discern the Court 
 Court Coram Rege, afterwards known as the King's Bench, ? r w^ ft 
 having by delegation a distinct existence apart from the wards 
 Court of Common Pleas. In the year 11 84 it would seem th n e °™ n ^ s 
 that the expression Coram Rege (before the King) no Bench) in 
 longer signified necessarily before the King in person. In 
 that year one Gilbert de Plumpton was accused of felony 
 Coram Rege. In this case the action of the Court is clearly 
 seen to be distinguished from that of the King. Plumpton 
 was condemned either by or at the instigation of Glanvill, 
 who was his enemy. The King, however, afterwards re- 
 mitted the capital punishment by advice 2 . The King's 
 Court Coram Rege still followed the King, and was held in 
 the place in which he might happen to be. He was often, 
 no doubt, present in Court, but not always, and his presence 
 was perhaps beginning v to become one of the fictions of 
 the law, though. the Court of King's Bench was always 
 known as ' trie Court of our Lord the King before the 
 King himself 
 
 In the year 11 87 (the thirty-third year of the reign of The 
 Henry II) the Court of Common Pleas was also in existence ju^tc- 1 
 still more plainly than in previous years, as will be apparent tion of the 
 to any one who is familiar with the style of the Court, and common 
 with its junsdictioii; It was always known as 'the Court Pleas, as 
 
 described 
 
 of our Lord the King of the Bench, and its Justices as ' the by Glanvill 
 Justices of our Lord the King of the Bench.' The expression m Il87# 
 
 1 Hoveden (Rolls Series), vol. ii. p. 215. 
 
 2 Hoveden (Rolls Series), vol. ii. p. 286. His diction is a little 
 obscure. The story is somewhat differently told by Benedictus Abbas 
 (Rolls Series), vol. i. pp. 314-317. The latter makes Glanvill exhort 
 those who were to give judgement in the case to pass sentence of 
 death. In either case the King was not present at the trial. 
 
 D 2 
 
36 CONSTITUTIONAL HISTORY OF 
 
 Chap. IV. ' King's Bench ' does not seem to have been known before 
 the reign of Edward I. The Common Bench in later times 
 had jurisdiction in real actions, and it was the Court in 
 which fines of land were levied. So also it was, though 
 not with an exclusive jurisdiction, in 1187, according to the 
 testimony of Glanvill himself. The 'concord ' or the ' fine,' 
 which was to be the end of the proceedings in any action, 
 was to be put into writing by mutual consent of the parties ; 
 it was to be brought before the Justices of the Lord the 
 King sitting 2 on the Bench ; and a counterpart was to be 
 delivered, in the presence of the Justices, to each of the 
 suitors. The form of the concord is set out and is obviously 
 the foundation of the fines of lands of later date. The 
 concord might be made in the King's Court, or made else- 
 where, and afterwards recorded and enrolled in the King's 
 Court ; but the King's Court was, in both cases, not the 
 full Curia Regis of previous reigns and of the early part of 
 the reign of Henry II, but the King's Court of the Bench, 
 before the King's Justices of the Bench. When the final 
 concord was made in the King's Court, it was, according to 
 the form given by GlanvilL made before the chief Justiciary 
 and four persons named, together with some others. When 
 it was made elsewhere, it was to be recorded in the King's 
 Court at Westminster before persons named (two Bishops and 
 the Chief Justiciary, in the form given) being then and there 
 present. There is no longer any suggestion that the King in 
 person and all the Bishops, Earls, and Barons constituted 
 the Court. The Court was the Court of Common Pleas, of 
 which the Justices might or might not have been trained 
 lawyers, but of which, except in exceptional cases to be here- 
 after noticed, the number of Justices might be limited 2 . It 
 differed from the later Court of the same name chiefly in 
 the fact that one of its constituent members was the Chief 
 
 1 Residentibus. This was the term commonly used at the time to 
 express 'sitting,' not necessarily, as has been sometimes supposed, 
 residing. 
 
 2 Glanvill, lib. viii. caps. 1, 2, 3. 
 
THE HOUSE OF LORDS 37 
 
 Justiciary who presided also over the Court Coram Rege, Chap. IV. 
 and that the Court Coram Rege and even the Exchequer 
 seem also to have had a concurrent jurisdiction. 
 
 In these times the Fine of Lands was regarded not as The 
 the conclusion of a fictitious action on a writ of covenant, Quria " 
 but as an agreement between the parties in an action Re S is °[ 
 which had really been commenced and come into Court, and its two 
 A similar agreement might at this time be made in actions divisions, 
 
 b m & _ m Coram 
 
 other than those relating to land *, and might be made in Domino 
 the Court Coram Rege ; and the distinction between the J^ Coram 
 two Courts is again clearly drawn by Glanvill. ' Whatso- Justitiis. 
 ever anyone has acknowledged that he has to do, whether 
 Coram Domino Rege (that is to say, in the Court sub- 
 sequently known as the King's Bench) or in the Common 
 Bench [Coram ejus Jtisticiis). thereof let him keep his 
 engagement -.' The two Courts taken together were dis- 
 tinguished by Glanvill from the Court before the Justices 
 in Eyre as the Head or Chief Court of the King 3 . The 
 two branches, however, not only were, but continued to be 
 distinct ever afterwards. In the Eyre Rolls of the reign of 
 Richard I (to which the name of Rotuli Curiae Regis was 
 assigned by some person who made a calendar of them 
 long ago, and whose error has been perpetuated to the 
 present time) there is frequent mention of ; the Bench,' the 
 invariable title for the Common Bench or Court of Common 
 Pleas 4 . 
 
 A cause of confusion has arisen from the fact that in Glanvill's 
 Glanvill's time, and subsequently, the King's Court [Curia between the 
 Regis) was commonly mentioned in contradistinction to the jurisdiction 
 County Court or Court of the Sheriff. Glanvill, in fact, King's 
 uses as the heading of his first book the words ' Of the Court and 
 pleas which belong to the King's Court or to the Sheriff.' sheriff. 
 The expression ; the King's Court ' has generally been 
 supposed to mean a single and indivisible Court. It is 
 
 1 Glanvill, lib. viii. cap. 1. 
 
 2 Id., lib. viii. cap. 5. 
 
 3 lb. 
 
 4 Rot. Cur. Reg. (ed. Palgrave), vol. i. 217, &c. 
 
38 CONSTITUTIONAL HISTORY OF 
 
 Chap. IV. clear from the evidence given above, that this is not the 
 
 meaning. Such an interpretation would be as little 
 
 warranted as would be the interpretation that 'the Sheriff' 
 
 means only one Sheriff with one Court. The respective 
 
 jurisdictions of the two Courts (Coram Rege and Coram 
 
 Justiciis) may not have been so sharply defined in 
 
 Glanvill's time as in the time of Edward I — could not have 
 
 been, indeed, when the same Justiciary sat in both. Yet 
 
 this very fact illustrates the growth of the two Courts and 
 
 explains how in later times a writ of Error lay from the 
 
 Court of Common Pleas to the Court of King's Bench over 
 
 which the Chief Justice of England presided. 
 
 The The inconvenience of the Common Pleas following the 
 
 of the ° n King's Court, or, in other words, of the Court of Common 
 
 Common Bench sitting only when and where the King held his 
 
 inferior to Court (the word Court being used in more senses than one) 
 
 that of the was f e i t an( j rem edied before the time of John's Great 
 
 King s , J 
 
 Bench, and Charter. It was remedied, to some extent, by the appoint - 
 
 theEyre! ment of Justices in Eyre, who heard common pleas as well 
 
 as pleas of the Crown. They, as delegates from the King's 
 
 Court to carry justice into the Shires, took with them the 
 
 full jurisdiction. The Court of Common Pleas was inferior 
 
 to the Court of the Eyre, just as it was inferior to the Court 
 
 of King's Bench. When the Eyre was in any county, the 
 
 jurisdiction of the Common Bench immediately ceased in 
 
 that county, and the common pleas of the county were at 
 
 once removed into the Court of the Eyre. 
 
 The full The King's Court itself, however — the full Court — appears 
 
 Re<ris still to nave still retained its original constitution for occasions 
 
 hears anc j causes of great weight and moment. In the year 1.177 
 
 causes O^ 
 
 great im- the Kings of Castile and Navarre submitted their disputes 
 portance ; to j-j^ judgement of the ' Court of the King of England.' 
 Kings of This Court, to which the term ' General Council ' was also 
 NavarreTn^ applied, consisted, when it first assembled, of the Arch- 
 il 77- bishop of Canterbury, several Bishops, and Abbots, Priors, 
 Earls, and Barons of England. The disputants were 
 required to put their respective cases in writing, because, 
 until that was done, ' neither the King nor the Barons of 
 
THE HOUSE OF LORDS 39 
 
 the Court ' could understand the matter of complaint. Chap. IV. 
 Afterwards, ' the Earls and Barons of the Court of the King 
 of England ' x gave judgement, which was embodied in the 
 form of a charter, just as decisions in the Court, Council, or 
 Parliament of the Conqueror had been embodied before. 
 The Charter was described as a ' Charter of Henry, King 
 of England, touching the judgement given in his Court 
 between the King of Castile and the King of Navarre V It 
 was attested by the Archbishop of Canterbury, fourteen 
 Bishops, seven Earls, nine Barons named, and others of the 
 clergy and laity. 
 
 Even when there began to be other Justices besides the Barons 
 Chief Justiciary and the Justices in Eyre, the Barons might JjJJ^w*" 
 still constitute a part of the King's Court. Thus when sat in the 
 Robert de Aubeney quit-claimed, released, or surrendered with 
 Didcot to Henry II, it was ' in the King's Court at West- delegated 
 
 J . junsdic- 
 
 minster ; before the King and his Barons and Justices then tion. 
 
 and there present 3 .' 
 
 The Court of Common Pleas (the Court before Jus- An Earl 
 
 tices and not before the King himself), also retained for ** t h e ar ° nS 
 
 a time some of the characteristics of the old undivided Court of 
 . . ... Common 
 
 Curia Regis, when cases of exceptional importance were pi eas m 
 
 to be heard, or concords or fines of exceptional importance ^^^^ 
 
 to be recorded. Thus in the ninth year of the reign of 
 
 Richard I, in a case in which a demand was made against 
 
 the Prior and Convent of Christ Church, Canterbury, and 
 
 considerable interests were involved, there were not only 
 
 Justices constituting the Court, as well as the Chief 
 
 Justiciary, but also an Earl and various Barons and others 
 
 of the King's lieges. A concord or fine was made Coram 
 
 Justiciis, but not Coram Rege. Here the Court was the 
 
 King's Court, but the Court of his Bench, though Barons 
 
 1 Comites et Bar ones Regalis Curiae Angliae. 
 
 2 Benedictus Abbas (Rolls Series), vol. i. pp. 138-154; Hoveden 
 (Rolls Series), vol. ii. pp. 1 20-1 31. 
 
 3 This appears from a recital of a charter produced in Court in the 
 eighth year of the reign of King John. Printed Placitorum Abbre- 
 viation 54 b. 
 
4° 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. IV. 
 
 The full 
 Curia 
 Regis or 
 Common 
 Council 
 of the 
 Realm, 
 acting as a 
 Court 
 superior to 
 the more 
 limited 
 Curia 
 Regis in 
 the reign 
 of John. 
 
 Various 
 
 senses in 
 
 which the 
 
 terms 
 
 Curia 
 
 Regis and 
 
 Council 
 
 are used in 
 
 Chronicles 
 
 and 
 
 Records. 
 
 again sat as they had sat in the original King's Court 
 of old 1 . 
 
 The distinction between the old and full Curia Regis, 
 however, and the Courts Coram Rege and of the Bench 
 was, in the reign of King John, becoming marked by the 
 use of the Council of the Realm, which was in fact the 
 ancient full Curia Regis, as a superior Court — if not a 
 Court of Appeal, certainly one into which causes could be 
 removed from the Courts or branches below. It was laid 
 down by Glanvill that all actions touching Baronies must 
 be tried in the King's Court 2 . In the reign of Henry II 
 a convention, agreement, or fine had been made touching 
 a Barony, but not in the King's Court. The person who 
 had agreed to the transfer, afterwards, in the reign of King 
 John, redemanded the Barony on this ground, in the King's 
 Court. The matter was not then settled in ordinary form 
 but by the Council of the Realm and the will of the 
 King 3 . 
 
 In the division of functions now becoming manifest there 
 appears also, not perhaps unnaturally, a great confusion of 
 terms, a confusion from which even the records are not 
 free, but which is most conspicuous in the writings of the 
 Chroniclers. The King's Court is a term used sometimes 
 to express the Common Council of the Realm, sometimes 
 the King's Council, sometimes the Court Coram Rege, 
 afterwards called the King's Bench, and sometimes the 
 Court of Common Pleas. The Council means sometimes 
 the Common Council of the Realm, sometimes a Court 
 sitting to hear causes which it might have been supposed 
 would be brought before the Court of Kings Bench or 
 the Court of Common Pleas, and sometimes a committee 
 of the Common Council of the Realm appointed to con- 
 sider petitions. 
 
 1 Printed in Madox's History of the Exchequer (cap. iii. § 7, note), 
 from one of the original Feet of Fines among the archives of Christ 
 Church, Canterbury. 
 
 2 Glanvill, lib. i. cap. 3. 
 
 3 Hoveden (Rolls Series), vol. iv. pp. 11 7-8. 
 
THE HOUSE OF LORDS 41 
 
 It was established, as already mentioned, in 1178, that Chap. IV. 
 the permanent Justices of the Common Bench, or those who The 
 had to hear the ordinary causes between party and party, severance 
 were not to proceed in important or difficult cases without Courts of 
 referring the matter to the King and his Sapientes or Witan. {f lng h s 
 On these occasions the Court would naturally be reinforced Common 
 by members of the fuller Curia Regis, which had merely ^J^f™" 1 
 delegated its functions in relation to minor causes. In like Curia 
 manner the functions of the Court Coram Rege, afterwards incomplete, 
 called the King's Bench, were not at first absolutely severed though 
 from the full Curia Regis. Thus, even in the reign of mencing 
 Henry III, when an advowson was given and granted to earller j^ an 
 the Bishop of Bath in frank-almoign, this was done Coram supposed. 
 Rege ct Magnatibus, and seisin was given Coram Rege by 
 a pair of gloves l . 
 
 In the time of Henry III, the Council, not qualified by 'The 
 any epithet, is seen to be exercising various functions, thet w n 'ole 
 some perhaps, peculiar to itself, others of the same nature Council; 
 as those exercised by the Court of King's Bench, and the court. 
 Court of Common Pleas. In the twenty-first year of the c ° ram 
 
 Rege ; 
 
 reign there are records of cases before the Lord the King at records of 
 Worcester. In one of these 2 it was pleaded, under Magna these*** 01 * 
 Charta, that Common Pleas ought not to follow the King, tribunals 
 from which fact it is clear that the distinction between the same ro u s 
 Court Coram Rege, and the Court of Common Pleas was in tne . 
 
 1 1 • • reign of 
 
 fully recognized. In another case the decision appears to Henry III. 
 have been given by the King and his Council under the head 
 of the Court Coram Rege 3 . In the twenty-seventh year 
 of the reign the Council, without any mention of the King, 
 takes cases of Quo Warranto 4 . The Archbishop of York 
 and the Council, in the same year, deal with an action of 
 
 1 Rot. Lit. Pat., 10 Hen. Ill, m. 5. Printed in Madox's Hist. Exch., 
 cap. iii. sec. 7, note. 
 
 2 Placita coram Rege, 21 Hen. Ill, R°. 3, printed in the Plac. Abbr., 
 p. 105 a. 
 
 3 lb., in relation to a claim of the King of Scotland, touching the 
 Earldom of Huntingdon. 
 
 4 Placita coram Concilio Domini Regis, 27 Hen. Ill, R°. 2, printed 
 in the Plac. Abbr., p. 1 18 b. 
 
42 CONSTITUTIONAL HISTORY OF 
 
 Chap. IV. assise *, and with some real actions between party and 
 party, as well as with cases of Quo Warranto and various 
 matters in which the King was interested 2 . In the thirty- 
 eighth year the Council hears (among others more im- 
 mediately affecting the Crown) a number of cases of 
 trespass and of offences against the peace which might 
 in later times have been determined in the Court of Kings 
 Bench 3 . In the fifty-sixth year of the reign there were 
 pleas Coram Rege (the style of the Court of King's Bench 
 of later reigns), and among them occurs a case in which 
 a writ was directed to the Justices of the Bench (Common 
 Pleas) requiring them to send the records of two cross 
 actions which were before them to the King. They sent 
 the records before the King and his Council. The parties 
 afterwards came before the King and Council, by whom 
 judgement was given 4 . 
 
 In the forty-third year of the reign is a remarkable 
 intermixture of the Court Coram Rege or King's Bench, 
 • the King's Council,' and ' the King's whole Council.' 
 In an assize of Novel Disseisin it appeared that the King's 
 interests might be affected. The cause was adjourned in 
 order that the King might be consulted, and a day was 
 given, Coram Rege ubicumque, &c. On the appointed day 
 the King ' before his Council ' d at Westminster acknowledged 
 and recorded certain matters. There was again an ad- 
 journment, and a day was again given Coram Rege ?cbi- 
 cnmque, when the plaintiff appeared in the King's presence. 
 There were further adjournments, and at length the plaintiff 
 came before the whole Council of the King 6 , and prayed 
 seisin. It was then ordered that the rolls of the Exchequer 
 should be searched as to certain facts, and that the Magnates 
 
 1 Placita coram Concilio Domini Regis, 27 Hen. Ill, R°. 3 d, printed 
 in the Plac. Abbr., p. 1 18 b. 
 
 2 lb., R i8 . 7-24, printed in the Plac. Abbr., pp. 119-20. 
 
 3 lb., Mich., 37-38 Hen. Ill, R is . 5-1 1, printed in the Plac. Abbr., 
 pp. 129-131. 
 
 4 Placita coram Rege, Hil., 56 Hen. Ill, printed in the Plac. Abbr., 
 p. 182 a, b. 
 
 5 Coram co?icilio ejus. 6 Coram toto concilio Domini Regis. 
 
THE HOUSE OF LORDS 43 
 
 of the Council should be certified thereon, and there was Chap. IV. 
 again an adjournment Coram Rege ubicumque \ or into the 
 King's Bench, as the Court was subsequently called. 
 
 The proceedings of the Council, indeed, seem to be 
 indistinguishable from those of the Court Coram Rege or 
 King's Bench. In the forty-fifth year of the reign of 
 Henry III, among a number of cases headed 'Pleas before 
 the Lord the King,' it appears that Isabella de Fortz, 
 Countess of Albemarle, comes before Hugh le Despenser, 
 the King's Chief Justiciary, and other Magnates of the 
 Council of the Lord the King, and there prefers her claim 
 to a wardship. Judgement was given in her favour 2 . 
 
 In the time of Edward I, ' the whole Council ' was So also in 
 stated to include, though not to consist exclusively of, EdwardY* 
 the Chancellor, the Treasurer, the Justices of the two 
 Benches and the Barons of the Exchequer 3 . In a roll 
 of pleas, Coram Rege, of the thirty-third year of that 
 reign, James, formerly Seneschal or Steward of Scotland, 
 acknowledged a certain instrument to be his deed, before 
 the Chancellor of England, the Chief Justice of England, 
 the Justices of the two Benches, the locum tenens of the 
 Treasurer, John de Berewyk, and several others of the 
 King's Council, and the Barons of the Exchequer 4 . 
 
 We know from a different source 5 that ' the Court of The Courts 
 the King in his Council in his Parliament.' was now in ° n h J lng 
 existence, and that in it sat Prelates, Earls, Barons, Pro- Council in 
 ceres, and other learned persons. There doubts respecting went ] and 
 judgements were determined, there new remedies were °5. the , 
 
 J . kings 
 
 established for new wrongs, and there justice would be Bench, in 
 awarded to every one according to his deserts. A truly Sj^USi 
 perfect Court ! From the same source we know that the 
 Court of King's Bench, though recognized as a separate 
 Court, still had only an inferior jurisdiction, which was, to 
 • 
 
 1 Plac. Abbr., pp. 145-6 (43 Hen. III). 
 
 2 Placita coram Rege, Mich., 44-45 Hen. lll,pnntedP/ac.Addr.,p. 151. 
 
 3 Plac. Abbr., p. 260 b, Easter, 35 Ed. I. 
 
 4 Placita coram Rege, Mich., 33 Ed. I, Plac. Abbr., p. 298 b. 
 
 5 Fleta, lib. ii. cap. 2. 
 
44 CONSTITUTIONAL HISTORY OF 
 
 Chap. IV. some extent, concurrent with that of the King's Court in 
 his Council in his Parliament. The Justices of that Court, 
 ' as well Knights as Clerks,' were the King's locum tenentes. 
 The King was always supposed to be in the place in which 
 they were sitting, and they were supposed to sit only in 
 the place in which the King was. They had criminal 
 jurisdiction, and jurisdiction in false judgement and error, 
 and their jurisdiction was exclusive, except in so far as it 
 was shared by and subordinate to that of the King and 
 Council, and that of any special commissioners appointed 
 for special purposes. 
 The Curia At a still later date the Curia Regis makes it appearance 
 Council, m close connexion with the Council on the one hand, and 
 and Kings w ith the King's Bench on the other. The Court of King's 
 the reign of Bench had in the reign of Edward II a well-established 
 Edward II. jurisdiction in cases of error from the Court of Common 
 Pleas. In cases of exceptional difficulty and importance, 
 however, the Council was still called in, and not only the 
 ordinary official Council 1 but the Barons and Magnates as 
 well. Thus, when a fine of lands had been levied in the 
 Court of Common Pleas and the family of the Despensers 
 was interested, error was alleged, and the case was in the 
 usual course brought into the King's Bench. It was not, 
 however, settled by the ordinary Judges of the Court. 
 Frequent deliberation was had with the Justices of both 
 Benches, the Chancellor, the Treasurer, and the Barons of 
 the Exchequer, as well before them all as before the Barons 
 
 1 The expression, ' ordinary official council,' has been used here, 
 and elsewhere, not in any technical sense, but to distinguish this more or 
 less official or legal body from ' the whole Council.' The term Concilium 
 Ordi?iarium is used by Sir Matthew Hale in a different and apparently 
 more technical sense, but there appears no sufficient warrant for his 
 two divisions, Concilium Privatum and Concilium Ordinarittm, taken 
 as legal definitions. His third division, the Magnum Concilium, had 
 an existence in the reign of Edward II, as distinguished from the 
 SecretiiJ7i Concilium, which he does not mention. His fourth division, 
 Commune Concilium, which, as he alleged, consisted of the two Houses 
 of Parliament, was in existence before the House of Commons came 
 into being. See Ha\e, Jurisdiction of the Lords' House, p. 5, et seq. 
 
THE HOUSE OF LORDS 45 
 
 and other Magnates of the King's Council V Thereupon Chap. IV. 
 it appeared to the King's Court [Curiae Regis) that the fine 
 ought to be annulled. 
 
 A remarkable illustration of the variety of Councils and The King's 
 of their connexion both with the Court of King's Bench council, 
 and with the Chancery occurs in the sixteenth year of and Se .cret 
 Edward II. The King, being at Bishopthorpe near York, remarkable 
 caused to be summoned before him to his Council there ?? se of , 
 
 Henry de 
 
 the Archbishop of York, the Bishop of Norwich who Beaumont, 
 was also Chancellor, the Bishop of Exeter who was also 
 Treasurer, Edmund Earl of Kent the King's brother, the 
 Earl of Pembroke, Hugh le Despenser Earl of Winchester, 
 the Earl of Athol. Hugh le Despenser the younger, William 
 de Ros of Hamelak, and several other Barons and Nobles 
 (Nobiles) of his realm, together with the Justices of both 
 Benches, the Barons of the Exchequer { and others of his 
 Council.' Among the Nobles (Nobiles) was Henry de Beau- 
 mont, a Baron, and one sworn of the Great and of the 
 Secret Council of the King. When asked for his advice, 
 Beaumont disrespectfully refused to give it. He was 
 angrily commanded by the King to quit the Council ; 
 and, as he went, he said, in the same tone as before, that 
 it would please him much better to be out of the Council 
 than in it. The King then bade the Magnates and others 
 of the Council to consider what judgement should be passed 
 on him, inasmuch as being the King's liege, and a Baron, 
 and sworn of the King's Secret Council, he had refused 
 to give his advice and used opprobrious words. The 
 Magnates and the rest of the Council, after careful delibera- 
 tion, and after he had been called back into their presence 
 and that of the King, passed judgement that he should be 
 committed to prison for contempt and disobedience 2 . 
 
 The Court of King's Bench was at this time at York, The King's 
 
 1 Placita coram Rege, Hil., 8 Ed. II, Plac. Abbr., 320 a. 
 
 2 Rot. Lit. Claus., 16 Ed. II, m. 5 d (printed in Parliamentary 
 Writs, vol ii. div. 2. part 1. p. 285). Placita coram Rege, Trin., 16 
 Ed. II (printed in Plac. Abbr., p. 342). 
 
46 CONSTITUTIONAL HISTORY OF 
 
 Chap. IV. following the King ; and the rolls of the Court were used, 
 Bench and as * n s0 manv earlier cases ; for the purpose of recording 
 Chancery the judicial proceedings of the Council. The Chancery 
 to record a ^ so followed the King, as had recently been declared 
 proceed- anew T ; and the rolls of the Chancery were used in like 
 
 ings before it-,. , • • -r-, 
 
 the manner both in this and in other instances The result 
 
 Council: j n ^his instance is a double enrolment The matter is of 
 
 the Council 
 
 not fully some little importance because no separate records of the 
 from'other proceedings of the Council of earlier date than the tenth 
 Courts be- year of the reign of Richard II are known to be in ex- 
 reign of istence. The natural inference seems to be that the absolute 
 Richard II. separation of the Council from the original Curia Regis, or 
 from the Court about the King, or from the Courts of 
 Justice which followed the King, or from the Parliament, 
 was not complete much before this time. There are many 
 other facts which point to the same conclusion. 
 The several It is clear from the records to which attention has been 
 Councils drawn that there were many kinds of Council known to 
 enumer- the law. There was the Common Council of the Realm 
 summoned, perhaps, only on great occasions ; there was 
 the Great Council, which must have been a different and 
 a more permanent body because a Baron could be sworn of 
 that Council ; there was the Secret Council which must 
 have been different, not only from the last-mentioned, but 
 also from the official, legal, or ordinary Council, because 
 we find a Baron, without office or technical qualification, 
 belonging to it ; there was the ' Whole Council ' which 
 may or may not have been identical with the Great 
 Council and which seems to have included necessarily the 
 Chancellor, the Treasurer, the Justices of the two Benches, 
 and the Barons of the Exchequer, if not others ; and there 
 was the Council without any qualifying epithet, which may 
 have been sometimes the last-mentioned body, sitting with 
 a part only of its members, or sometimes any Council 
 except the Common Council of the Realm. 
 
 Thus far the King's Court and Council have been traced 
 
 1 28 Ed. I, stat. 3. cap. 5. 
 
THE HOUSE OF LORD<K^C.< 47 
 
 in detail only in relation to the Court of King's Bench and Chap. IV. 
 the Court of Common Pleas. A very important attendant The 
 at the King's Court and member of his Council, however, Common 
 was, during the earliest times after the Conquest, the Chan- f tne 
 cellor. He seems always to have had charge of the Great R ealm > the 
 Seal. From the Chancery issued the Original Writs, duly and 
 sealed, for the trial of actions in the King's Courts of ^JjJ 1 
 Justice. The Chancery, moreover, appears to have been, 
 from the first, an office of the Common Council of the 
 Realm, as afterwards it was an office of Parliament. Even 
 the Original Writs did not issue on the authority of the 
 Chancellor alone. Some writs were ' writs of course,' and 
 could be had in the prescribed form upon application 
 in the Chancery, but even these were originally allowed 
 and approved by the Common Council of the Realm 1 . 
 
 In the reign of Edward I, power was given to the clerks The 
 of the Chancery to issue writs ' in consimili casu ' where ' ™ * a and 
 matters fell under the same law and required like remedy, the framing 
 If, however, the clerks could not agree upon the form, they 
 were to refer the cases to the next Parliament so that 
 a writ might be framed by men learned in the law 2 . This 
 provision, with its reference to the sages of the law, ob- 
 viously has reference not to a Parliament in the modern 
 sense of the term, but to one of those other bodies or 
 councils to which the term ' Parliament ' was commonly 
 applied in the reign of Edward I, and for some time 
 afterwards. It clearly was not the intention that writs 
 should be considered and framed by the Lords Spiritual 
 and Temporal, and the Commons in Parliament assembled, 
 but by a body possessing special aptitude for the task. 
 That body, there can be little doubt, was ' the King in his 
 Council in his Parliament,' the resolutions of which, when 
 promulgated, had the authority of the whole assembly. 
 It would seem to follow that this later expression furnishes 
 the interpretation of the phrase ' the Common Council of 
 
 1 Bract. 413 b. 
 
 2 Stat. 13 Ed. I (Westm. 2), cap. 24. 
 
4 8 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. IV. 
 
 Various 
 signifi- 
 cations in 
 which the 
 word ' Par- 
 liament ' 
 was used. 
 
 \ 
 
 the Realm.' The body which was to devise new writs in 
 the reign of Edward I, must have been, allowing for differ- 
 ences of phrase and circumstances, the body which had 
 framed the recognized ' writs of course ' current in the reign 
 of Henry III. Great attention had been given to the study 
 of the law in the interval, and a class of men had arisen 
 who were experts in the subject. To them naturally fell 
 the actual task of settling the forms to be used, but their 
 authority alone was not considered sufficient. They were 
 summoned to the so-called Parliament, as members of 
 the Council, but Archbishops, Bishops, Earls, and Barons 
 were summoned also, and gave additional solemnity to the 
 additions which were to be made in the Chancery Register 
 of Original Writs. 
 
 About the reign of Edward I a new cause of confusion is 
 introduced by the use of the word ' Parliament ' in more 
 senses than one, but a confusion through which it is, 
 perhaps, possible to arrive at clearness. It is sometimes 
 a Parliament, in the modern sense of the term, to which 
 Lords Spiritual and Temporal and Commons are summoned. 
 Sometimes it is a different kind of assembly. Thus in the 
 twenty-third year of the reign the Archbishops and Bishops, 
 and other Prelates, including forty-two Abbots and eleven 
 Priors, were summoned, together with sixty-four Earls and 
 Barons, to a 'Parliament' which was to meet on August i. 
 The Justices of both Benches, the Justices in Eyre, the 
 Justices of Assize, the Deans sworn of the Council, and 
 other Clerks of the Council were also summoned \ but 
 not the Commons. 
 
 According to the marginal description on the roll, 
 a ' Parliament ' was to meet at Salisbury, on February 27, 
 in the twenty-fifth year, to which neither Prelates nor 
 Burgesses were summoned, but only ninety-four Earls, 
 Barons, and Knights 8 , In the same year there were sum- 
 
 1 Rot. Lit. Clans., 23 Ed. I, m. 9 d (printed in Parliamentary Writs, 
 ed. Palgrave, vol. i. pp. 28-9). 
 
 2 Rot. Lit. Clans., 25 Ed. I, m. 25 d {Pari. Writs, vol. i. p. 51 et seq.). 
 
THE HOUSE OF LORDS 49 
 
 moned to attend the King's son, on September 30, five Chap. IV. 
 Bishops, two Earls, two Barons, two Archdeacons, eight 
 Clerks of the Council, six Justices, and two Friars, and by 
 other writs the Archbishop of Canterbury, six other Bishops, 
 seventeen Abbots, four Priors (as well as in particular the 
 Prior of St. John of Jerusalem), the Master of the Knights 
 of the Temple, eight persons who were apparently Barons, 
 and two more Earls. In the margin of the writ to the 
 Archbishop of Canterbury this assembly also is called 
 a Parliament 1 . 
 
 The word Parliament, however, does not appear to have The word 
 been used in relation to every kind of Council, and, in par- councils° 
 ticular, not to the official or legal Council. Thus in the but not 
 
 ,,.,.. to every 
 
 twenty-sixth year of the reign, when twenty-two persons ki n d f 
 only were summoned, the assembly was described as a Counci1 
 Council in the margin of the roll. It consisted of the 
 Bishops of London and Ely, nine other ecclesiastics, the 
 Justices of the .two Benches, and the Barons of the Ex- 
 chequer 2 . 
 
 In the following year nearly all the same persons were Meaning of 
 called, as members of the Council, to attend a ' Par- in h e is m§ 
 liament.' The Bishop of London was summoned, but Council 
 simply in the capacity of Bishop. The Bishopric of Ely Hament' 
 had fallen vacant. Of the rest seventeen were summoned P reclsel y 
 
 ascer- 
 
 as of the Council, with four others, among whom was tained. 
 John de L'Isle, a newly-appointed Baron of the Exchequer. 
 Two out of these four had been mentioned in earlier 
 writs as being of the Council. The distinction between 
 this assembly and that of the twenty-sixth year lies in 
 the fact that the Council was now summoned to meet 
 at the same time as the Prelates and Proceres, among 
 whom were two Archbishops, eighteen Bishops, thirty-five 
 Abbots, four Priors, eleven Earls, and seventy-nine Barons. 
 In the margin of the roll the meeting is described as 
 
 1 Rot. Lit. Clans., 25 Ed. I, m. 6 d. (printed Pari. Writs, vol. i. pp. 
 
 55-56). 
 
 2 lb., 26 Ed. I, m. 12 d (printed Pari. Writs, vol. i. p. 65). 
 
 E 
 
50 CONSTITUTIONAL HISTORY OF 
 
 Chap. IV. a Parliament, though the Commons were not in atten- 
 dance 1 . The appointed day was Sunday, March 8. On the 
 twenty-fifth day of the same month the Mayor and Alder- 
 men of London elected certain persons to further the 
 business of the city 'before the King and Council in Parlia- 
 ment,' which had commenced its sittings on the previous 
 ninth of March 2 . The body before which the representa- 
 tives of the city of London were to appear could only have 
 been that which was to attend the King at London on 
 March 8. It follows, therefore, that we know precisely 
 what was meant by the expression ' the King in his Council 
 in his Parliament/ which is of frequent occurrence in the 
 records of important cases reported in the Year Books. 
 This kind of Parliament was not necessarily a Parlia- 
 ment including the Commons, but a Parliament of Lords 
 Spiritual and Temporal with the King and his Council 
 sitting therein. 
 
 In this assembly (the King in his Council in his Parlia- 
 ment) it seems, too, that we must recognize the ancient 
 Common Council of the Realm, modified, it may be, by time 
 and circumstances but still the nearest equivalent of that 
 Common Council of the Realm which Bracton mentioned as 
 the necessary authority for the form of an original writ. 
 It was, as will presently appear, known by the name of 
 ' full Parliament.' It was the fountain of justice, the source 
 to which men commonly went if they felt aggrieved by the 
 manner in which their causes were being heard in the Court 
 of Common Pleas, or in the Court of King's Bench. It had 
 not, even as late as the reign of Edward III, lost its hold 
 over the Courts which had sprung from it, but controlled 
 their proceedings, before judgement was pronounced or 
 error alleged, and it gave its directions to those Courts 
 on petitions made by the parties. 
 
 Control of It is sometimes possible, with the aid of the Year Books 
 
 the King 
 
 1 Rot. Lit. Clans., 27 Ed. I, m. 18 d (printed Pari. Writs, vol. i. 
 pp. 78-80). 
 
 2 Lib. C. in Archivis Civitatis Loiid. fol. 28 (extracted and printed 
 in Pari. Writs, vol. i. p. 80). 
 
THE HOUSE OF LORDS 51 
 
 (or early law reports), the records of the Courts of Common Chap. IV. 
 Pleas and King's Bench, and the rolls of Parliament, to in hig 
 follow out the whole mode of practice. There was in the Council in 
 reign of Edward III a family dispute which must have ment over 
 caused no little anxiety to the disputants. One Geoffrey the pro- 
 
 1 /-. n ceedings of 
 
 de Staunton brought an action in the Court of Common the Court 
 Pleas against one John de Staunton and Amy his wife. In p^ a ° mmon 
 the course of the pleadings the question whether a certain case in 
 averment was admissible or not was warmly disputed. l 
 Geoffrey presented a petition to the King in his Council in 
 his Parliament praying, among other matters, a decision on 
 the point. It was agreed in Parliament that the averment 
 was admissible, and a writ was sent to the Justices of 
 the Common Pleas instructing them to proceed. Nothing, 
 however, was done ; and a second writ was sent directing 
 the Justices either to proceed, or to signify the reason why 
 they did not. Upon this there was a new argument in the 
 Court of Common Pleas. It was urged that the decision in 
 Parliament, having been given in the absence of one of the 
 parties, was unjust, and the Chief Justice of the Common 
 Pleas declared it to be altogether bad law. An acting 
 and a late Chief Justice of the King's Bench were consulted, 
 and differed in opinion from each other. The result was 
 that no judgement was given, and the Justices did not, as 
 they had been directed, signify the cause. 
 
 Geoffrey then presented another petition to the Council 
 praying that they would command the Justices of the 
 Common Pleas either to give judgement or else to bring 
 their rolls, record, and process, into Parliament, so that 
 judgement might be given, one way or the other, before 
 the end of term. It was thereupon ' agreed by all in full 
 Parliament, and command was given by the Prelates, Earls, 
 Barons, and others of the Parliament to Sir Thomas de 
 Drayton, Clerk of the Parliament, that he should go to 
 Sir John de Stonore, and his companions, Justices of the 
 Common Bench ' and tell them to proceed to judgement 
 before the rising of the Bench, without further adjourning 
 or delaying the parties. In case they should be unable to 
 
 E 2 
 
5 2 CONSTITUTIONAL HISTORY OF 
 
 Chap. IV. agree they were to come into Parliament, and the Chief 
 Justice was to bring with him the rolls and the record of 
 the plea into Parliament, there to take final agreement 
 what judgement should be given. 
 
 Stonore and his companions did bring the record into 
 Parliament, where were assembled the Chancellor, the 
 Treasurer, the Justices of both Benches, the Barons of 
 the Exchequer, and others of the King's Council. The 
 process and record were viewed and read in Parliament, 
 and it was there agreed at length that Geoffrey should 
 recover against John and Amy. The decision was 
 entered upon the Common Pleas roll thus: — 'and there- 
 upon advice having been had as well of the Prelates and 
 Magnates, as of the Justices and others of the Council of 
 the Lord the King being in the full Parliament last 
 held,' judgement is given according to the direction of 
 Parliament. 
 Control of j^- m ight have been supposed that the matter was now 
 in his at an end, but it was not. The Court of King's Bench 
 
 inhis ^ a d jurisdiction in error over the Court of Common Pleas. 
 
 Parliament After all these delays, after the exertion of all the powers 
 proceed- °f tne Council in Parliament, and after judgement had 
 rags of the been given in accordance with the opinion of the highest 
 King's legal and other authorities, there comes, in legal phrase, 
 tfench. t jj e i ame an( ] impotent conclusion that 'a writ of error 
 was sued.' 
 
 The stages of the hearing in the King's Bench dragged 
 on as slowly as those in the Court below, and were inter- 
 rupted by similar petitions. John and Amy presented a 
 petition to the King in his Council in his Parliament, repre- 
 senting that the Justices of the King's Bench had delayed 
 proceeding to the correction of the errors assigned. This 
 called forth a writ directing the Justices of the King's Bench 
 to proceed after consultation with those of the Common 
 Bench and others learned in the law. The cause, how- 
 ever, was again and again adjourned, and petitions were 
 again presented to the King in his Council in his Parlia- 
 ment, both by Geoffrey on the one hand, and by John and 
 
 
THE HOUSE OF LORDS 53 
 
 Amy on the other. In the end John and Amy abandoned Chap. IV. 
 the case, and did not appear when called in Court. Geoffrey 
 then prayed execution of the original judgement, and 
 had it \ 
 
 In the case of the Stauntons, though the matters in The 
 dispute were brought before the King in his Council in ^ u ^ ry 
 his Parliament, the petitions when presented remained 'in office of the 
 the Chancery 2 .' The plea is described as having come council 
 into the Chancery 3 , and one of the King's writs directed to in his 
 
 , T . . , .*.,.. , , Parlia- 
 
 the J ustices contains a clause in which it is expressed that me nt. 
 the record and process had been brought 'before us in our 
 Chancery 4 .' It is to be observed too, that the petitions 
 presented, during the progress of the case, to the King 
 in his Council in his Parliament have a resemblance in 
 form to the Petitions or Bills presented to the Council, and 
 in later times addressed to the Chancellor, for the purpose 
 of commencing a suit. They have the characteristic words 
 ' pur Dieu ' (for God's sake). The Chancery is the office of 
 the King in his Council in his Parliament The writs 
 issuing from it issue in virtue of that higher authority. 
 If the usual forms prove insufficient, justice has to be 
 aided by the source from which it originally flows — the 
 King in his Council in his Parliament — though the Chancery 
 is used as the channel. 
 
 It is not necessary for the purposes of this history to The 
 trace the whole of the steps by which the functions of the chancer^ 
 Common Council of the Realm in relation to the Chancery and the 
 were gradually delegated to the Council of another kind — Hig| S 
 to the official or legal Council of men learned in the law — or £? urt of 
 
 r 1^-1 Chancery. 
 
 to show the growth of common law practice in the Chancery, 
 
 1 The facts in relation to the very illustrative case of the Stauntons 
 have been put together from the following sources : — The Year Book, 
 Mich., 13 Ed. Ill, No. 15 ; the Placita de Banco, Mich., 13 Ed. Ill, 
 R°. 107 d; the Rolls of Parliament (printed 2 Rot. Pari. 122-125); 
 and the Placita coram Rege, Hil., 15 Ed. Ill, R°. 41. See also the 
 introduction to the volume of Year Books, 13-14 Ed. Ill (edited by the 
 present writer in the Rolls Series), pp. xxxvi-xliii. 
 
 2 Rolls of Parliament, vol. ii. p. 123 a. 
 
 3 lb. 4 lb., p. 125 b. 
 
54 CONSTITUTIONAL HISTORY OF 
 
 Chap. IV. and the development out of it of the equity practice l . 
 It is necessary, however, to bear in mind that the Chancery, 
 like the Courts of King's Bench and Common Pleas, was 
 the King's Court, and owed its existence to that greater 
 King's Court or Curia Regis of which the Chancellor was 
 a member. By degrees it became the custom for the King's 
 Council — his legal or official council — to hear certain causes 
 in the Chancery. Parties were required to appear ' before 
 our Council in our Chancery/ and ' to do and accept as Our 
 Court shall adjudge V Here we see the Council in Chancery 
 recognized as the King's Court or Curia Regis, and when 
 petitions at a later date were addressed directly to the 
 Chancellor and he decided causes on the principles of 
 equity, it was in the King's High Court of Chancery. 
 The Like the Chancellor, the Treasurer was a high officer 
 
 Treasurer: CO mmonly attendant on the King from the Conquest 
 of the downwards, and so, in a certain sense, one of the King's 
 
 Veexsof** Court. It has been disputed whether the Exchequer can 
 Earls and be traced back, with a separate existence, as far as the 
 Barons. Conquest, or was only a later outgrowth of the Curia Regis. 
 The question is not of much importance in the present 
 history, except in relation to the fact that Barons of the 
 Exchequer were Peers for the purpose of assessing the 
 amercements of Earls and Barons, and that the Treasurer 
 and Barons usually formed a part of the King's Council, 
 and of his Council in his Parliament. It may, however, be 
 worth noting that as soon as there was a Treasurer he must 
 have had a department, with subordinates, just as the 
 Chancellor had. There is consequently nothing unreason- 
 able in the supposition that there was an Exchequer as well 
 as a Treasurer in the time of the Conqueror, and it is quite 
 possible that some matters relating to the revenue may even 
 then have been brought before the Treasurer and some 
 
 1 As to this, see an article by the present writer in the Law Quar- 
 terly Review, vol. i. p. 443. See also below, p. 296. 
 
 1 This form appears on Rot. Lit. Clans., 20 Ed. Ill, p. 2, m. 4 d, 
 whence it has been cited in Palgrave's Original Authority of the 
 King's Council^ p. 132. 
 
THE HOUSE OF LORDS 55 
 
 selected Barons, though the Chief Justiciary may have had Chap. IV. 
 the supreme jurisdiction in the absence of the King. 
 
 There was, no doubt, a tradition in the Exchequer, as The Court 
 early as the reign of Edward III, that its special laws, °j f ^*" er 
 customs, and privileges grew up (inoleverunt) in the time of from 
 William the Conqueror, and were used and reduced to to Edward 
 writing in the times of his successors. These privileges J* 1 : 
 included the right of the officers of the Exchequer to plead and others, 
 in the Exchequer itself touching all wrongs and trespasses B^! ^ 1 » ng,s 
 against themselves. In case error should be alleged, the sitting i n it. 
 Barons of the Exchequer themselves, having some of the 
 King's lieges associated with them, were to consider and 
 amend the error if necessary 1 . This is a very elaborate 
 organization for the time of the Conqueror, and it is to 
 be observed that, when the Barons of the Exchequer 
 living in the reign of Edward III specify particular 
 kings in whose reigns these privileges existed, they men- 
 tion none earlier than Henry III. It is most probable 
 that, although the Exchequer, and even the Court of 
 Exchequer, may have existed under William I, various 
 changes were effected analogous to those which clearly 
 distinguished the Court of Common Pleas from the Court 
 of King's Bench, and that the various branches of the 
 Exchequer, including the Exchequer of Pleas, did not all 
 spring simultaneously ready-armed from the head of the 
 Conqueror. It does, however, seem clear that, in the 
 comparatively early stages of development, the Exchequer 
 possessed some judicial functions, and was a King's Court. 
 In the reign of Henry II 2 we find an account of a con- 
 
 1 This appears in a certificate of the Barons of the Exchequer sent 
 to the King and enrolled on the Lord Treasurer's Remembrancer's 
 Remembrance Roll, Hil., 11 Ed. Ill, ' Adhuc recorda? The certi- 
 ficate is also enrolled on the King's Remembrancer's Roll of the same 
 term. There is another copy of it in the Rubeas Liber of the Ex- 
 chequer, but this, as it now stands, was not inserted before the reign 
 of Henry VI, and is not, in all respects, perfectly accurate. 
 
 - Reg. Roffen. ff. 47-8, cited in Madox's Hist. Exck., cap. iii. sec. 2, 
 note. It has been doubted whether the Exchequer may not here be 
 interpreted to mean the place of sitting rather than the Court. A simi- 
 
56 THE HOUSE OF LORDS. 
 
 Chap. IV. cord or fine at Westminster at the Exchequer, as well as 
 instances of Pleas at the Exchequer. We also find sitting 
 at the Exchequer certain Bishops and others the ' King's 
 Barons.' Some of the nobles about the King, those of his 
 Court in the general sense of the term, were thus delegated 
 to perform certain functions in the Exchequer ; and so 
 the Barons of the Exchequer were then and for some time 
 afterwards the peers of Earls and Barons in general. 
 
 lar case, however, occurs ' coram Baronibus de Scaccario ' in the Great 
 Roll of the Exchequer, I John, London and Middlesex. 
 
CHAPTER V. 
 
 Earldoms as Offices : Growth of Hereditary Earldoms : 
 Earldoms by Tenure, and Dukedoms. 
 
 THUS far we have traced only the outlines of events Chap. V. 
 down to the reign of Henry I, and the consti- N { 
 tutional details affecting the Royal Court, the Councils, of details 
 and the 'Parliaments,' down to the reign of Edward III. J© the* 
 The status of the classes and individuals composing those classes of 
 assemblies has hardly been touched in the foregoing King's 
 pages. It is a subject necessarily involving the considera- ^ ourt '., 
 tion of some details which may, at first sight, appear to be and Par- 
 of no great importance, but the statement of which is ^ere*** 
 essential for the full comprehension of principles relating composed, 
 to the growth of the House of Lords. 
 
 The hereditary principle, which, in one sense, appears to An earl- 
 have been firmly established in Normandy before the administra- 
 Conquest, could not, in the nature of things, be said to tive office, 
 have become as firmly established in England immediately heredkar/ 
 after it. When Englishmen were dispossessed by French- j,™ m( r* 
 men the latter held their newly acquired lands and titles of after the 
 honour by purchase (to use a later legal phrase) and not by Con q uest - 
 inheritance, and the terms in which the grants were made 
 have in most instances not been handed down. An earldom 
 seems to have been still regarded as an office, which might 
 indeed descend by hereditary succession, but which did not 
 so descend of necessity. 
 
 If we turn to Northumbria we find Copsi, or Copsig, 
 apparently with the assent of the Conqueror, expelling 
 
58 
 
 CONSTITUTIONAL HISTORY OF 
 
 The 
 
 Earldom 
 of the 
 Northum- 
 brians. 
 
 Chap. V. Osulf. the previous Earl, by force of arms, only to be him- 
 self defeated and put to death by Osulf. It is said that 
 Robert Comyn or de Comines was the next nominee of the 
 Conqueror ] ; but, at any rate both he and Osulf were 
 killed very soon after the death of Copsi. The earldom, it 
 is said, was then bought of the Conqueror by Cospatric, 
 a descendant of that Northumbrian house of which mem- 
 bers had frequently held the earldom before the Conquest. 
 He took, however, not by right of inheritance, but. in every 
 sense of the term, by purchase, and, as the chronicler ex- 
 presses it, k administered the earldom ' He fell away from 
 his allegiance, and the earldom was then conferred by the 
 Conqueror upon Waltheof,a son of Earl Siward by a daughter 
 of Earl Aldred (both Northumbrian Earls before the Con- 
 quest). Waltheof, like many of his predecessors, met a violent 
 death, and then the earldom was given to Bishop Walcher. 
 He, in his turn, was killed, and Alberic, or Aubrey, whose 
 name appears as a witness to a charter already cited, was 
 set in his place. Aubrey, it is alleged, resigned, and was 
 succeeded by Robert de Mowbray, from whom the earldom 
 was taken by William Rufus, and retained in the hands 
 of the Crown 2 . During the Conqueror's reign the Earls 
 appear to have been officially known as Earls not of 
 Northumbria but of the Northumbrians. It would probably 
 be difficult to prove that either Earl Aubrey or Robert de 
 Mowbray did or did not leave heirs but after Robert de 
 Mowbray's time the earldom seems to have remained in the 
 hands of the Crown, or to have been non-existent, during 
 many years. Before Aubrey became Earl, however, the 
 principles, if they deserve the name, on which the earldom 
 devolved, in Northumbria, from one person to another, 
 were practically indistinguishable from those which pre- 
 vailed before the Conquest. They may be summed up as 
 a regard for the claims of certain houses or families, 
 
 1 Simeon of Durham (Rolls Series), vol. i. pp. 98-99, 245 ; A. S. 
 Chron., aimo 1068. 
 
 2 Simeon of Durham, vol. ii. pp. 197-199, 382-384 ; Flor. Wore, 
 vol. ii. pp. 251-252. 
 
THE HOUSE OF LORDS 59 
 
 tempered by the military exigencies of the position, and Chap. V. 
 a due consideration of the necessities of finance. 
 
 The official character of the earldom which seems to be The 
 marked in the title Earl of the Northumbrians, rather than of c the East 
 of Northumbria, is marked in a similar manner in the title Angles. 
 of Alan Earl of the East Angles— not, be it observed, of 
 Norfolk and Suffolk. This earldom also appears under the 
 same name in the hands of Hugh Bigod during the reign of 
 Stephen though Hugh Bigod was subsequently created Earl 
 of Norfolk by Henry II. 
 
 There is no known instance of the creation of an Earl Earldoms 
 by patent, or by any written instrument, before the year fcclesl- 
 1140, and consequently no distinct proof of limitation to astics. 
 the heirs of the grantee. The Earldom of Chester offers, 
 perhaps, the nearest approach to a grant of this kind in the 
 time of the Conqueror, because the terms of its grant to 
 Hugh d' Avranches were, as alleged, to hold as freely by the 
 sword as the King himself held England by the Crown. 
 A County Palatine, however, was in a position different 
 from that of other Earldoms, and the principles applicable 
 to the one were not necessarily applicable to the others. It 
 must, indeed, be accepted as certain that an earldom was 
 not regarded as being absolutely hereditary in the early 
 days succeeding the Conquest, because earldoms were 
 commonly granted to ecclesiastics, as in the case of Odo 
 Bishop of Bayeux and Earl of Kent, and in the case of 
 Bishop Walcher, Earl of the Northumbrians 1 . 
 
 At this time also it would seem that, so far as the King, No differ- 
 the Earls, and the Barons were concerned, there was no thTcon- nS 
 difference of privilege or of status suggested between those queror's 
 who at a later period were designated Lords Spiritual and between 
 those who were designated Lords Temporal. The Church the . sta * u . s 
 
 r and. privi- 
 
 was one of the roads of promotion to secular offices — to the leges of 
 
 1 The charter of William de Warenne to the Priory of Lewes, in 
 which it is recited that William Rufus made him Earl of Surrey, 
 does not prove an express limitation to his heirs, though his heirs did 
 in fact have the third penny of the county of Surrey. The charter is 
 printed in Dugd. Monast., v. 12. 
 
6o 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. V. 
 
 Lords 
 Spiritual 
 and those 
 of Lords 
 Temporal. 
 
 The first 
 known 
 grant of an 
 earldom, 
 with limi- 
 tation to 
 the grantee 
 and his 
 heirs, 
 made in 
 the reign of 
 Stephen. 
 
 The 
 
 hereditary 
 succession 
 to an 
 earldom 
 at first 
 qualified 
 by the 
 necessity 
 that the 
 heir should 
 
 highest secular offices in the land — to that of Chief Jus- 
 ticiary, to that of Chancellor, and to that of Earl. The 
 Bishops certainly had it in their power to secure absolute 
 equality with the Earls in all points, and might have secured 
 the right of trial by Peers at a later period had they not 
 thought fit to struggle for immunity from all secular juris- 
 diction. But the clergy had already entered on a conflict 
 with the lay authority, in an attempt to secure exceptional 
 privileges. It will, however, be most convenient to trace 
 the course and issue of this policy in a later chapter, when 
 the efforts of Becket and Stratford on behalf of their order 
 are considered. 
 
 As the growth of hereditary earldoms cannot be distinctly 
 traced before the reign of Stephen, it may be suspected 
 that the exigencies of the war between him and the Empress 
 Maud, daughter of Henry I, gave a stimulus to royal 
 generosity. The first known documents which prove quite 
 clearly that an earldom was conferred upon the grantee 
 and his heirs are charters of King Stephen and the 
 Empress Maud. Geoffrey de Mandeville had creations or 
 grants from both to the effect that he and his heirs should 
 be Earls of Essex '. Maud also created Milo (or Miles) 
 de Gloucester Earl of Hereford, giving him the castle of 
 Hereford, and the ' third penny ' of the pleas of the County 
 Court in fee and inheritance 2 . 
 
 From this time onwards the creation of Earls to hold to 
 the grantees and their heirs is common. There is. how- 
 ever, apparent a very remarkable feature which still to 
 some extent qualifies the hereditary succession. In the 
 reign of Henry II Hugh Bigod was created Earl of Norfolk, 
 receiving the third penny from Norwich and Norfolk. He 
 and his heirs were to hold of the King and his heirs 3 . His 
 
 1 The two charters have been printed by Mr. Round (the one from 
 Cott. Chart., vii. 4, the other from Cott. Chart., xvi. 27, collated with the 
 Dugdaleand Ashmole MSS.) in Geoffrey de Mandeville, pp. 51 and 88. 
 
 2 Rymer's Foedera (1816), i. 14, from the Cotton Collections. 
 
 3 Cartae Antiquae, S. n. 13, printed in Reports on the Dignity of 
 a Peer, vol. v. p. 2. 
 
THE HOUSE OF LORDS 61 
 
 son Roger Pigod was nevertheless created Earl of Norfolk Chap. V. 
 by Richard I, just as if he had no right of inheritance 1 . It b irt 
 is, indeed, possible that Hugh may in this case have been with a 
 considered to have forfeited his earldom for traitorous t ^ e ^' . 
 practices, and that Roger may have been restored by instances. 
 a new grant. But there are other examples which show 
 that the son did not at any rate become a full Earl upon 
 the death of his father. 
 
 Geoffrey Fitz-Piers or Fitz-Peter, Earl of Essex, died, it 
 is said, in the year 1213. He had been girt with the sword 
 of the earldom, at the Coronation of King John 2 , and he 
 appears as a witness to several charters by the designation 
 of Earl of Kssex. He had married a grand-daughter of the ' 
 heiress of William de Mandeville. Earl of Essex, but it is not 
 clear that he was supposed to have a title to an hereditary 
 earldom. His eldest son, Geoffrey, was eventually recog- 
 nized as Earl of Essex, but not immediately after his death. 
 The fact is curiously shown by the record of a cause of 
 Michaelmas term in the fifteenth year of John's reign 
 (a. D. 1 214). Geoffrey de Say demanded the manor of 
 Pleshey, together with the honour which had belonged to 
 William de Mandeville, Earl of Essex. Geoffrey de Man- 
 deville (the son of Geoffrey Fitz-Piers) pleaded that much 
 was wanting to him of the honour which had belonged to 
 Earl William, that William was Earl of Essex and girt 
 with the sword of an Earl, and in receipt of the third penny, 
 whereas Geoffrey de Mandeville was neither an Earl, nor 
 girt with the sword, nor in receipt of the third penny 3 . 
 
 At the beginning of the reign of Henry III also it seems 
 that the son and heir of a deceased Earl did not immediately 
 become Earl, and that he was not even in full possession 
 of his earldom after having had livery of his lands. 
 Thomas, son and heir of Henry Earl of Warwick, appears 
 to have had livery of his lands in the thirteenth year of the 
 
 1 The second grant is printed in the Reports on the Dignity of a 
 Peer, vol. v. p. 4, from Cart. Antiq., 1 Ric. I, S. n. 14. 
 
 2 Hoveden (Rolls Series), vol. iv. p. 90. 
 
 3 Printed in the Plac. Abbr., p. 93. 
 
62 CONSTITUTIONAL HISTORY OF 
 
 Chap. V. reign, but it was not until the seventeenth year (four years 
 afterwards) that the following precept was sent to the 
 sheriff of the county of Warwick: 'The King hath girded 
 Thomas de Warwick with the girdle of the Earldom of 
 Warwick, and the sheriff of Warwick is commanded that 
 he cause the same Earl to have of the County aforesaid 
 that which he ought to have in the name of Earl of Warwick 
 and whereof his predecessors. Earls of Warwick, were seised 
 as belonging to them in the name of the Earldom of 
 Warwick V 
 
 It might have been supposed a priori that when it was 
 necessary for an Earl to be girt with the sword by the 
 sovereign, the girding of the ancestor could not enure (or 
 operate) to the benefit of the heir. When the heir of any 
 tenant in capite had to sue out livery of the land held by 
 his ancestor, it could hardly be possible that the heir of an 
 Earl could gain possession of his Earldom without the 
 ceremony of girding with the sword. The instances above 
 cited are probably sufficient to prove the point, and the 
 point when proved goes far to qualify the principle of 
 absolutely hereditary succession. The succession was 
 hereditary, but subject to the approval of the sovereign as 
 expressed by the ceremony of investiture with the sword 
 and belt. 
 Another There was, however, another principle coming into opera- 
 
 duSnguish- ^ lon m the reign of Henry III, and one closely associated 
 able in the w [th the doctrine of barony by tenure. Every Earl, as 
 
 reign of . 
 
 Henry III : forming part of the baronage, was a baron also. A man 
 earldoms w j 10 succeec j ec j to an estate of inheritance in a barony 
 with an appears to have been subject to the burdens and to have 
 inheritance na< ^ a right to the privileges of his predecessor. The theory 
 in lands : that an Earl had a purely official or administrative rank was 
 dom of now on the wane, though not yet extinct. The theory that 
 Lincoln. t he ran k followed an estate of inheritance in the lands seems 
 now to have been entertained, though not yet fully estab- 
 
 1 Cited in Dugdale's Antiquities of Warwickshire, p. 270, from 
 Anon. Evesh. MS. (in the Bodleian Library), fo. 50 a. 
 
THE HOUSE OF LORDS 63 
 
 lished. Thus Ranulf Earl of Chester and Lincoln, executed Chap. V. 
 a deed conveying to his sister, Hawise de Quency, the 
 county (comitatum) of Lincoln (so far as it belonged to 
 him), to hold to her and her heirs, of the King and his heirs, 
 with all its appurtenances and with all the franchises thereto 
 belonging, in order that she might be Countess thereof 
 (inde Comitissa) 1 . The 'county, so far as it belonged to' 
 Ranulf, can in this instrument hardly mean anything but 
 those possessions in the county which had been held by the 
 Earls of Lincoln. The word comitatus has sometimes been 
 otherwise translated — sometimes as the earldom in the 
 sense of the dignity 2 , and sometimes as the third penny 
 attaching to the earldom 3 . It is, however, impossible that 
 the word could have been used in either of those two senses. 
 Ranulf wished his sister to be Countess of Lincoln, not 
 Countess of the earldom, which would be a phrase without 
 meaning. He wished her to have not barely the third of 
 the proceeds of the County Court, but an estate of in- 
 heritance also in the lands with which the earldom of 
 Lincoln was associated ; and although comitatus is a word 
 used to express the County Court as well as the county, 
 it would not be used to express a third part of the 
 proceeds alone. 
 
 Hawise de Quency, it appears, wished her son-in-law, 
 John de Lacy, to be recognized as Earl of Lincoln in her 
 lifetime, and King Henry III, at her instance, granted to 
 him the third penny of the County Court of Lincoln, as 
 previously received by Ranulf Earl of Chester and Lincoln. 
 It is mentioned in the grant that Ranulf had in his lifetime 
 given this third penny to his sister. The royal grant, 
 however, differs from the terms of the deed made by Ranulf. 
 According to the latter the comitatus or county was con- 
 veyed to Hawise in fee simple. Henry's grant settled the 
 
 1 The deed is printed in Selden's Titles of Honour ^ p. 653. 
 
 2 E.g. in Cruise on Dignities (2nd edition), pp. 109-111. 
 
 3 E.g. in the Third Report on the Dignity of cl^Bm^oM ift. 1 ": 
 
 'tjnive: 
 California 
 
6 4 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. V. 
 
 Partition 
 between 
 coheirs : 
 effect of 
 one county 
 or earldom 
 alone 
 falling to 
 coheirs : 
 the Earl- 
 dom of 
 Chester. 
 
 third penny in special tail to John de Lacy and his heirs 
 by Margaret his wife, daughter of Hawise l . 
 
 It is sufficiently clear from these transactions that the 
 word county or comitatus in a conveyance was held not to 
 be, but to include the third penny received by the Earl 
 from the proceeds of the County Court. It seems clear 
 also that the third penny could not be treated as a charge 
 on the issues of the County Court which might be conveyed 
 away at his pleasure by a person having the fee simple. 
 A licence to alienate was of course necessary, and the 
 Crown could therefore interfere to prevent any alienation 
 which had not the royal approval, and would certainly 
 regard with a very jealous eye any alienation which affected 
 a part of the royal revenue. 
 
 If an Earl held a county, together with lands in other 
 counties, and died without male heir, partition could 
 be made between his female coheirs, and one of them 
 could receive the ' county ' as her share, though many cases 
 show that, for some centuries after the Conquest, the death 
 of an Earl who was Earl of one county only, and left only 
 female coheirs, was a cause of perplexity. In the twenty- 
 third year of the reign of Henry III it was decided that ; if 
 the Earldom of Chester descend to coparceners, it shall be 
 divided between them just as other lands, and the eldest 
 shall not have that seignory (or lordship) entirely to herself 2 .' 
 The confusion, in this passage, between the earldom and 
 the lands of the earldom is a sufficient indication that 
 there was some connexion between the two. There is no 
 evidence that the first Earls of Chester after the Conquest, 
 though invested with the sword, held a dignity apart from 
 the lands. They must, indeed, having Palatine rights, 
 have been in the same position with regard to the lands of 
 the county, as the King with regard to the lands of 
 England generally, and have been chief lords over them all. 
 
 1 Rot. Lit. Pat., 17 Hen. Ill, m. 9, No. 35 (printed in Reports on 
 the Dignity of a Peer, vol. v. p. 8). 
 
 2 Fitzherbert's Abridgement, Partition, 18 (23 Hen. Ill), and see Co. 
 Litt. 165. 
 
THE HOUSE OF LORDS 65 
 
 When the lands were held to be partible (a.D. 1239), the Chap. V. 
 point must have arisen in view of the recent decease of 
 John the Scot, Earl of Chester, without heir male. He had 
 himself succeeded ] to the earldom in right of his mother, 
 one of the coheirs of Ranulf, Earl of Chester. Partition of 
 lands had been made between Ranulf s sisters and coheirs, 
 or their representatives, and the whole County of Chester 
 had been allotted to the eldest sister Matilda, John's 
 mother, the other sisters receiving lands of proportionate 
 value 2 . When John died, however, it was no longer 
 possible to make partition between his sisters, or their 
 representatives, in such a way as to give the County of 
 Chester to one, because the other possessions of Ranulf had 
 already been allotted. According to strict law, therefore, 
 the county would have had to be divided, or otherwise to 
 be held in coparcenary. The difficulty, however, was 
 evaded by giving other lands as compensation to the 
 coheirs, and by retaining those of the earldom in the 
 hands of the King 3 . 
 
 In the reign of Richard II, it is clear, the legal mind The title 
 was familiar with the idea that the earldom was to be J? th< ; , 
 
 County of 
 
 identified with the County or Comitatus, and that the Chester, in 
 County or Comitatus was equivalent to the possessions the lands ° 
 attaching (and, as it would appear, inseparably attaching) and P os - 
 
 i\i -T-i • , 1 1 -i , sessions 
 
 to the earldom. The same idea was then also attributed of the 
 to lawyers as far back as the time of Henry III. earldom, 
 
 ' J regarded as 
 
 Richard wished to establish his right to nominate a identical 
 person to receive a pension or annuity from the Priory of ^J{ e \ ^ he 
 Coventry. The Prior disputed the claim on the ground earldom 
 that the Priory (or, as it had once been called, the Abbey) Henry III 
 was not of royal foundation. According to the plea on his j° Richard 
 
 1 Successit is the word used both in Wendover (Rolls Series), 
 vol. iii. p. 40, and in Knighton (Rolls Series), vol. i. p. 211, though it is 
 sometimes said that John was created Earl. 
 
 2 Rot. Lit. Pat., 22 Hen. Ill, m. 4, and m. II, and 25 Hen. Ill, 
 m. 1, and Rot. Lit. Clans., 22 Hen. Ill, m. 12 (cited in Dugdale's 
 Baronage, vol. i. p. 46), and Knighton (Rolls Series), vol. i. p. 212. 
 
 3 Rot, Lit, Pat., 31 Hen. Ill, m. 6 (cited in the Third Report on the 
 Dignity of a Peer, vol. ii. p. 130). 
 
 F 
 
66 CONSTITUTIONAL HISTORY OF 
 
 Chap. V. behalf, the House had been founded before the Conquest, 
 and the advocatio, advowson. or patronage had always been 
 with the Earls of Chester. It is not necessary to accept as 
 accurate the pedigree by which the inheritance is traced 
 from Leofric, who was Earl of Chester before the Conquest, 
 through Hugh d'Avranches, as a son of Leofric's sister, to 
 Ranulf, the last of that name who was Earl of Chester and 
 Lincoln, and from Ranulf to his four sisters. The pedigree 
 differs in many particulars from the facts as stated in 
 contemporary documents. The principle enunciated, how- 
 ever, was very clear, and was not disputed. On Ranulf 's 
 death, it is said, the advowson or patronage of the Priory, 
 together with the whole county ( Comitatus) of Chester and 
 its appurtenances, was allotted to Matilda, one of Ranulf 's 
 sisters, in satisfaction of her share, while various other 
 castles, manors, lands, and tenements were allotted to the 
 other sisters. The advowson or patronage, it is said, 
 ' together with the whole County of Chester,' descended 
 from Matilda to her son John the Scot Earl of Chester. 
 It is also said that John afterwards gave the advowson, 
 together with the whole County of Chester, to King 
 Henry III, and the devolution (always including the whole 
 County of Chester) is then traced through successive Kings 
 to Richard II 1 . It thus appears indisputable that from 
 the time of Henry III to that of Richard II the title to 
 the county (or possessions of the earldom) of Chester 
 was regarded as identical with the title to the earldom 
 itself. 
 The A different course was taken in relation to the Earldom 
 
 Pembroke °f Pembroke (like that of Chester,, a Palatine earldom) in 
 held to be t j ie re ip-n of Edward III, but here also it is evident that the 
 
 the right of b ' 
 
 one who descent of the earldom was associated, according to the 
 to^art* P reva l ent ideas, with the inheritance of the lands. The 
 of the in- inheritance of Aymer de Valence, Palatine Earl of Pem- 
 as descent- broke, devolved upon his sisters, to be divided between 
 them and their heirs in due proportion. Nothing appears 
 
 1 Placita coram Rege, Hilary, 14 Richard II, Rex, R°. 2c. 
 
THE HOUSE OF LORDS 67 
 
 to have been done with regard to the earldom immediately, Chap. V. 
 but Lawrence de Hastings, who succeeded to part of the dant of an 
 inheritance, as descendant of the eldest sister, was held by eldest 
 the lawyers to be entitled to the ' prerogative of the name sl 
 and honour.' The name of Earl of Pembroke was therefore 
 confirmed to him by the King ' willing and granting that 
 Lawrence do have and hold the prerogative and honour of 
 Earl Palatine in the lands which he holds of the inheritance 
 of the said Aymer, as fully and in the same manner as 
 Aymer had and held them at the time of his decease V It 
 was clearly in virtue of his part of the inheritance that his 
 claim to the earldom was recognized. 
 
 It is probable that as early as the reign of Edward I the Earldoms 
 ceremony of girding a newly-created Earl with a sword i/t^e™ 16 
 enured to his heirs without the absolute necessity of a new reign of 
 ceremony on succession. It is probable also that the idea 
 of an earldom by tenure, or associated with the holding of 
 certain lands, was not unfamiliar at this period, and had 
 grown up since the Conquest. In this reign an Earl was 
 summoned to Parliament in a manner which can hardly be 
 reconciled with any other hypothesis than that of holding 
 the earldom by tenure of the lands. 
 
 Gilbert de Clare, Earl of Gloucester and Hertford, The 
 married, as his second wife, Joan, a daughter of King of ar oms 
 
 1 There are some curious mistakes with regard to the authority for 
 this matter in the Third Report on the Dig7iity of a Peer (vol. ii. 
 pp. 180-181). It is there said that the Letters Patent are cited in 'the 
 third Institute ' but that they had not been found on the Roll. They 
 are in fact cited in 4 Inst. 221, and they do appear on the Roll 
 of Letters Patent, 13 Ed. Ill, Part 4, m. 12. Coke's reference is 
 perfectly correct with the exception that he omitted to insert the 
 words ' Part 4 ' ; but the omission would cause little difficulty to 
 any one who is familiar with records. It is suggested in the same 
 passage, in the Third Report on the Dignity of a Peer, ' that there 
 was a difference between the term ' Earl of Pembroke,' and the 
 term 'Earl Palatine,' and that the dignity of Earl was something 
 different from the prerogative and honour of Earl Palatine ; but the 
 words 'prerogative and honour' are used in relation to the Earl of 
 Pembroke, and there does not seem to be any ground for this very 
 subtle distinction. 
 
 F 2 
 
68 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. V. 
 
 Gloucester 
 and Hert- 
 ford settled 
 by a settle- 
 ment of 
 the lands. 
 
 Case of 
 Joan, 
 widow of 
 Gilbert, 
 Earl of 
 Gloucester 
 and Hert- 
 ford, tenant 
 in special 
 tail of the 
 
 Edward I. Upon that occasion he surrendered his lands to 
 the King, and new settlements were made, the terms of 
 which are fully set out in the Charter Roll of the time 1 . 
 The lands in Ireland were settled in one form, those in 
 England and Wales (with which alone we are now con- 
 cerned) in another. All the castles, manors, and lands in 
 England and Wales, with all their appurtenances, were 
 granted and confirmed by the King to the Earl and his 
 wife, and the heirs of their bodies, to be holden by the 
 same services as before the surrender, as freely, fully, and 
 honourably {Jwnorifice) in all rights, royalties, honours, lord- 
 ships, free customs, and all other things appertaining to 
 the castles, manors, and lands as the Earl held them on the 
 day of the surrender, without any reservation. If the Earl 
 should die without heir of their two bodies, or if the heirs 
 of their bodies should die without heirs of their bodies, and 
 Joan should survive, she was to have and to hold, at her 
 will for ever all the castles, manors, and lands, with all their 
 appurtenances, rights, royalties, liberties, and all other things 
 appertaining thereto as her own inheritance. If, however, 
 there should be heirs of their two bodies, Joan was to have 
 no power to make any alienation of the lands, and if she 
 should die without heirs of their two bodies, and the Earl 
 should survive, all the castles and lands were to * remain and 
 wholly revert ' to him and his heirs as if the surrender and 
 settlement had not been made. 
 
 The Earl died, leaving (with other issue) a son, Gilbert, 
 by his wife Joan. She was then, according to the terms of 
 the settlement, tenant in special tail of the castles, lands, 
 and everything granted according to the King's charter. 
 During her widowhood she was attracted by the manly and 
 graceful appearance of one Ralph de Monthermer, who. at 
 that time, was not a peer, or even a knight 2 . She married 
 
 1 Charter Roll (Chancery), 18 Ed. I, nos. 59 and 60. These 
 are cited, but not by any means correctly, in Dugdale's Baronage, 
 which has served as the basis of statements in many subsequent 
 Peerages. 
 
 2 Trokelowe, Annales (Rolls Series), p 27. 
 
THE HOUSE OF LORDS tg 
 
 him without asking her father's consent. Apart from any Chap. V. 
 question of want of filial respect, this was a serious offence , , 
 from a feudal point of view, as Joan w r as what was termed married to 
 a King's widow — the widow of one holding in capite, who hermer a 
 could not, except at her own risk, marry without the commoner. 
 King's licence. The lands were consequently seized into 
 the King's hands. The King, however, was afterwards 
 appeased, and the lands were restored. 
 
 According to the law of the period, though Joan was now 
 tenant in special tail, it was only in subordination to her 
 husband, who held the lands in her right, without whom 
 she could not sue or be sued, and who was bound to perform 
 the services by which the lands were held. Ralph de 
 Monthermer, however, was not only summoned to perform 
 military service, but was summoned as Earl of Gloucester 
 and Hertford 1 . He was also summoned as Earl of 
 Gloucester and Hertford to give his advice in Parlia- 
 ment 2 . 
 
 It is usually said that Monthermer was summoned as 
 Earl in right of his wife, but before that proposition can 
 even be entertained it must be clearly proved that the 
 wife herself had an earldom. If she had it. she could 
 certainly have had it only as an appurtenance or part of 
 the castles, lands, and rights previously the inheritance of 
 her first husband, her estate in which was acquired by the 
 King's charter effecting the new settlement. In that charter 
 there is no express mention of any earldom, and, if any 
 passed by the terms of the grant, it could have passed 
 only in one of two ways — either as included in some of 
 the other terms used, or as included under the word ap- 
 purtenances. These two ways, however, resolve themselves 
 into one only, for it matters little whether an earldom 
 could pass under words relating to lands by various desig- 
 nations or under the word appurtenances. As there was 
 
 1 Rot. Lit. Claus., 2, Ed. I, m. 9 d (printed in Repoits o?i the Dignity 
 of a Peer, vol. iii. p. 112. 
 
 2 Rot. Lit. dates., 28 Ed. I, m. 17 d ; and subsequent years (printed, 
 p. 113, &c.J. 
 
7 o 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. V. 
 
 Gilbert, 
 the heir, 
 did not, on 
 his father's 
 death, 
 succeed 
 to the 
 earldom. 
 
 Indications 
 that the 
 earldoms 
 were 
 earldoms 
 by tenure. 
 
 no express mention, if any earldom passed at all, it passed 
 with the lands and castles. 
 
 Another consideration also suggests itself here. Gilbert, 
 son of Gilbert de Clare and Joan, was the heir to the 
 earldoms, and must have succeeded on his father's death, 
 if the earldoms were strictly hereditary, and not capable 
 of being made the subject of a new settlement. What, 
 then, happened after the settlement was made upon the 
 marriage of his father and mother ? What was his position, 
 with regard to the earldoms, when his father died ? When 
 Ralph de Monthermer was recognized as Earl, were there 
 two Earls of Gloucester, or only one? Clearly, if there 
 was only one, the succession to the earldom was interrupted 
 by the settlement of the lands ; and it is absurd to suppose 
 that Gilbert and Ralph were both Earls of Gloucester at 
 the same time. 
 
 The difficulties, however, vanish at once on the theory 
 that the earldoms of Gloucester and Hertford were earl- 
 doms by tenure. On that supposition, but on no other, 
 Ralph de Monthermer was in the same position with 
 regard to the earldoms as with regard to the lands. As 
 long as his wife lived, he had, by law, the same rights and 
 the same liabilities (including that of summons to Parlia- 
 ment) in respect of the lands as the wife would have had 
 if a male. If a male holder of the land in fee tail, or 
 otherwise having an estate of inheritance, would have been 
 an Earl, then her husband was of necessity an Earl also ; 
 but she could not, apart from the lands, give him any 
 dignity as an Earl, because her legal status would have 
 been only Joan., wife of Ralph de Monthermer. Contem- 
 porary records, however, show that her status actually was 
 Joan, wife of Ralph, Earl of Gloucester and Hertford 1 — not, 
 be it observed, Joan, Countess of Gloucester and Hertford, 
 wife of Ralph de Monthermer, for such a designation was, 
 at that time, unknown to the law. 
 
 1 In Michaelmas Term, 28-29 Ed. I, Ralph de Monthermer and 
 Joan his wife were defendants. The case is printed in the Plac. Abbr. } 
 p. 242. They are mentioned, under the same description, on p. 255. 
 
THE HOUSE OF LORDS 7 1 
 
 There are several cases, in the reports of the period, Chap. V. 
 which prove the same point, and show incidentally that the 
 Earl suing with Joan, as wife, claimed the rights of the 
 preceding Earl and his ancestors 1 . Of course the husband 
 was liable for the military services due in respect of the 
 lands which he held in right of his wife, and everything in 
 relation to Monthermer's position is perfectly intelligible, 
 and quite usual except the application to him of the title 
 of Earl of Gloucester and Hertford. 
 
 It is not known that Ralph de Monthermer was created 
 Earl by patent, or girt with the sword of earldom by the 
 King, nor is it in the least degree probable that he ever 
 was. He had no estate of inheritance in the earldoms, as 
 they went to Gilbert, heir of Gilbert de Clare. He had not 
 even the earldoms for life, as they departed from him as soon 
 as his wife died. As long only as his wife lived, her estate 
 of inheritance in the lands was for all practical purposes his, 
 and for that reason, to all appearance, he enjoyed the 
 earldoms. 
 
 When Joan died, the lands, under the settlement, im- Gilbert, 
 mediately became the right of young Gilbert de Clare, son ,5^3 tail 
 of her and her first husband, and heir in special tail. He of the 
 was a minor, and the wardship of his lands belonged to the recognized 
 King. Ralph de Monthermer, being no longer in possession as Ear J 
 of the lands, and having in his own person no claim to an hismother's 
 estate of inheritance, ceased to be Earl 2 ; and this fact in death * 
 itself affords a very strong presumption that the earldoms 
 followed an estate of inheritance in the lands. Edward II 
 
 1 E.g. Year Book, E, 32 Ed. I, pp. 177-9, an ^ T > 3 2 Ed. I, pp. 
 209-213. 
 
 2 Some very curious mistakes in relation to this point appear in 
 the First Report o?i the Digtiity of a Peer, p. 432, where it is said 
 that Ralph de Monthermer was summoned as Earl of Gloucester 
 during the minority of his 'son-in-law,' 'the son-in-law, after he 
 attained his age, being summoned as Earl of Gloucester.' Gilbert, 
 the heir, was not son-in-law, but step-son, of Monthermer. The fact 
 of his being step-son has no direct relation to the subject, and, as 
 will be seen, his summons to Parliament preceded his attainment 
 of full age. 
 
72 CONSTITUTIONAL HISTORY OF 
 
 Chap. V. who had just succeeded to the throne showed great favour 
 
 to his nephew. Gilbert's lands were restored, while he was 
 
 yet a minor, in order that he might be knighted 1 . He was 
 
 summoned as Earl of Gloucester and Hertford, in January 
 
 1307-8, when he was not yet seventeen years of age. to 
 
 be present at his uncle's coronation 2 . He was summoned 
 
 to Parliament as Earl of Gloucester and Hertford, one day 
 
 later 3 , and he was summoned, as Earl of Gloucester, to 
 
 perform military service against the Scots, on June 
 
 21, 1308, when he had just completed his seventeenth 
 
 year 4 . 
 
 Monther- If further proof were needed that the earldoms followed 
 
 ceasedto ^ e estate °f inheritance in the lands it would be shown in 
 
 be sum- the fact that after Joan's death Monthermer ceased for 
 
 Earl, and a snor t time to be summoned to Parliament at all. In 
 
 was sub- March 1309, however, he was again summoned, no longer 
 
 summoned as an Earl, but among the Barons 5 . According to modern 
 
 as a newly- id eas fa{ s summons followed by a sitting in Parliament, 
 
 Baron. was Monthermer's creation as a Baron. 
 
 Hugh de Another instance of earldom by tenure, an instance in 
 
 the U Earl- y; wmcn an earldom followed an estate of inheritance in 
 
 dom of certain lands, may be discerned in the early Earldom of 
 
 declared to Devon. William de Fortz (or Fortibus), Comte d'Au- 
 
 follow an marie G married as his second wife Isabella daughter of 
 estate of 
 
 1 Rot. Lit. Clans., 1 Ed. II, m. 15. 
 
 2 lb., 1 Ed. II, m. I2d. •' lb., 1 Ed. II, m. 11 d. 
 4 lb., 1 Ed. II, m. 2 d. 5 lb., 2 Ed. II, m. 11 d. 
 
 6 He was Comes Albae Marline, of which the French translation is, 
 no doubt, Comte d'Aumarle or Aumale. Whether the expression can 
 rightly be translated Earl of Albemarle, may, perhaps, be open to 
 doubt, as the title was of French origin, and the place from which it 
 was taken in Normandy. The succession to that title is, in itself, 
 a subject of much interest, but, in the absence of proof that it relates 
 to an English earldom, it would hardly be relevant to enlarge upon 
 the subject. In more instances than one, the husband of an Albemarle 
 heiress became Comes Albae Marliae. Thus after Hawise, daughter of 
 William le Gros, Comes Albae Marliae, married William de Mande- 
 ville, he was ' /actus Comes Albae Marliae ' (Chronicle of Robert de 
 Torigny, Rolls Series, p. 282). Her third husband, Baldwin de 
 Bethune, was Comes Albemarliae, dono Ricardi Regis (Hoveden, Rolls 
 
THE HOUSE OF LORDS 73 
 
 Baldwin de Ripariis, Redvers, or Rivers, Earl of Devon. Chap. V. 
 On the death of her brother who had succeeded to the inheritance 
 earldom, she inherited his lands, and with them apparently p the lands 
 the earldom. This happened after her husband's death, reign of 
 and she was then described sometimes as Countess of war 
 Albemarle, sometimes as Countess of Devon, and some- 
 times as Countess of Albemarle and Devon. In the fifty- 
 second year of Henry III she brought, as Countess of 
 Albemarle and Devon, an assise of Mort d 'Ancestor 
 against the Prior of Brommore, as Countess of Albemarle 
 an action against one Adam de Newmarch and others, and 
 as Countess of Devon against one Roger de Lancashire and 
 others l . It is probable that there was in each case a reason 
 for the particular description, and one connected with the 
 tenure of lands, for in the following reign, when the King 
 asserted his right of presentation to a church, as having in 
 his hands by escheat the lands of the Earl or Count of 
 Albemarle, it was disputed whether the lands to which the 
 advowson appertained belonged in fact to the Earl of 
 Albemarle or to the Earl of Devon 2 . 
 
 Her children died during her lifetime without issue, and 
 her next heir was Hugh de Courtenay, a descendant of Mary, 
 daughter of William de Redvers (or Vernon), Earl of Devon, 
 who died in the year 1216. The fact that he was heir does 
 not appear to have been at any time disputed, but when he 
 claimed certain lands held by Isabella de Fortz, and in 
 particular the whole of the Isle of Wight, his claim was 
 contested on the ground that she had conveyed these 
 particular lands to the King for the sum of six thousand 
 marks. The proceedings appear in the rolls of Parliament 
 of the eighth year of the reign of Edward II, when the 
 matter was held over for further consideration 3 . 
 
 Series, iii. 306). In both cases the title seems to have been given by 
 the Crown. Hawise's second husband, William de Fortz, was also 
 Comes Albae Marliae, as was their son after her death. 
 
 1 Mich., 52 Hen. Ill, printed in Plac. Abbr., pp. 172-3. 
 
 2 Placita coram Rege, Easter, 24 Ed. I, R°. 2. Plac. Addr., p. 262. 
 
 3 Pot. Pari., 8 & 9 Ed. II, No. 1 (printed, vol. i. pp. 334-6). 
 
74 CONSTITUTIONAL HISTORY OF 
 
 Chap. V. It was probably by reason of doubts and disputes relating 
 to portions of the inheritance that Hugh de Courtenay was 
 not for some time recognized as Earl of Devon, though 
 he was summoned to Parliament among the Barons as 
 early as February 6, 1298-9 (27 Ed. I) and for many 
 years afterwards. Though not called Earl, however, he 
 received the third penny (or third part of the proceeds of 
 the County Court) of Devonshire, in the same way as 
 the Countess and previous Earls had received it. An 
 objection was at length made that a person who was not 
 an Earl ought not to receive this third penny. The 
 payment ceased and the claim was disallowed. 
 
 Courtenay, however, in the reign of Edward III had had 
 his right recognized if not to the whole of the lands which 
 Isabella had held, at any rate to so much of them as con- 
 stituted the inheritance of the Earls of Devon. He then 
 presented a petition to the King in relation to this matter 
 of the third penny, and the King caused enquiry to be 
 made at the Exchequer. The Treasurer and Barons of the 
 Exchequer certified that the money had been withheld 
 because Courtenay had not used the name and title of 
 Earl. The King thereupon sent a writ or ' letter close ' to 
 Courtenay, reciting the facts, and commanding him to take 
 the name and honour of an Earl, for certain reasons, which 
 deserve attention. ' Because the inheritance of the Countess 
 and of her and your predecessors, Earls of Devon, has des- 
 cended to you by right of inheritance, and you at this present 
 
 do hold the inheritance we will and command you that 
 
 you cause yourself henceforward to be called Earl of Devon.' 
 The King promised that the third penny should in future 
 be paid to him as it had been paid to the Earls of Devon 
 his predecessors l . The King also directed a writ to the 
 Sheriff of Devonshire to make proclamation that Courtenay 
 was to be esteemed and called Earl of Devon, and directed 
 
 1 Rot. Lit. Ctaus.y 9 Ed. Ill, m. 35 d. It is erroneously stated in 
 the Reports on the Dignity of a Peer, vol. ii. p. 176, that the declaration 
 was by Letters Patent. This is a very serious mistake, as Letters 
 Patent might imply a new creation. 
 
THE HOUSE OF LORDS 75 
 
 the Treasurer and Barons of the Exchequer to cause the Chap. V. 
 third penny to be paid to him, by the name of Earl, in the 
 same manner as to his ancestors. 
 
 It is difficult to interpret the reasons given by the King 
 in any other sense than that the earldom followed or ought 
 to follow the rest of the inheritance. Courtenay was to 
 take the title of Earl of Devon, not because that dignity 
 itself and by itself had descended to him, but because the 
 inheritance of the Earls of Devon had so descended and 
 was already held by him. There was no new creation, no 
 investiture or girding with a sword, but a simple direction 
 to assume the name in virtue of the inheritance already 
 held. 
 
 Erom one point of view this may be regarded as a re- The con- 
 cognition of an earldom by tenure, but not as a recognition of ^e 
 of the proposition that the earldom absolutely followed lands to a 
 the lands. The descent to the Earl by right of inheritance might 
 
 is an essential feature of the reasons given, and it does not g ^ 
 follow that a purchaser of everything included in the in- the heir 
 heritance of the Earls of Devon would acquire the earldom earldom 
 by the purchase. It does, however, seem to follow that without 
 a conveyance of the lands to a stranger in fee would k upon the 
 deprive an heir of his succession to the earldom. stranger. 
 
 While some earlier earldoms had thus come to be It was a 
 associated with the tenure of certain lands, some later SSSSb 
 earldoms were associated with the grant of lands to the reign of 
 support them. Thus when William de Bohun was created m t h at a n 
 Earl of Northampton in the year 1337. he had not only Earl must 
 
 r 1 1 r 1 1 • V. have lands 
 
 a hxed charge of twenty pounds per annum on the issues of to support 
 the county 1 , but also a grant to him and the heirs male J}"^" 1 " 
 of his body of various castles and manors 2 . In the same 
 year several other Earls were created, and at the same time 
 commonly received lands to the value of a thousand marks 
 per annum, as well as a certain sum from the revenues of 
 
 1 Rot. Chart., 11 Ed. Ill, no. 49 (printed in Report on the Dignity of 
 a Peer, vol. v. p. 30). 
 
 2 Originalia Roll, Exchequer, 11 Ed. Ill, R°. 50 (cited in Madox's 
 B aroma, p. 149). 
 
CONSTITUTIONAL HISTORY OF 
 
 Chap. V. 
 
 The first 
 Duke (of 
 Cornwall) 
 girt with 
 a sword, 
 like an 
 Earl; lands 
 inseparably 
 attached 
 to the 
 dukedom. 
 
 the county. William de Clinton was made Earl of 
 Huntingdon on those terms \ Robert de UfTord Earl of 
 Suffolk 2 , and William de Montague Earl of Salisbury 3 . 
 In each case certain specified lands were assigned in whole 
 or part satisfaction of the claim thus given to a thousand 
 marks per annum. In each case the lands were given to 
 the newly-created Earl and the heirs male of his body, with 
 reversion to the Crown, though, whether from inadvertence 
 or otherwise, the rent charged upon the county was to be 
 held by the Earl and his heirs, of the King and his heirs, for 
 ever. 
 
 All these Earls were created and belted in ' Parliament,' 
 but not all in the same kind of Parliament. The Earl of 
 Huntingdon, the Earl of Northampton, and the Earl of 
 Suffolk were so made by the common consent and advice 
 of the Prelates, Earls, Barons, and others of the Council in 
 Parliament. The Earl of Salisbury was so made at the 
 request of the Prelates, Proceres. and Commonalty of the 
 realm in Parliament. In each of these instances, however, 
 it was clearly recognized on all hands that an Earl must 
 have lands to support his earldom. 
 
 The subject receives further illustration from the terms 
 in which the first Duke was created. He was Edward the 
 Black Prince, son and heir of Edward III. His charter 
 was constructed on lines similar to those of the Earls newly 
 made in the same year. His dukedom was in fact only 
 a superior kind of earldom. It was conferred, like most of 
 the earldoms of the period with the common consent and 
 advice of the Prelates, Earls, Barons, and others of the 
 King's Council in Parliament, and without any reference 
 to the Commons. He was girt with a sword in the same 
 manner as the Earls. He had the shrievalty of Cornwall 
 
 1 Rot. Chart., n Ed. Ill, nos. 34, 41, and 42 (printed in Rep. Dig. 
 Peer, vol. v. pp. 27-30). 
 
 2 lb., 11 Ed. Ill, nos. 51 and 52 (printed in Rep. Dig. Peer, vol. v. 
 pp. 31 and 38), and Rot. Lit. Pat., 11 Ed. Ill, part i. m. 5 (printed, 
 
 P. 33). 
 
 3 lb., 11 Ed. Ill, nos. 54 and 55 (printed, pp. 32 and 34). 
 

 THE HOUSE OF LORDS 77 
 
 granted to him in such a manner that he could constitute Chap. V. 
 a Sheriff of Cornwall at his pleasure. In this respect he 
 had the functions of an Earl of the olden time, his nominee 
 being the Vice-Earl, as the Sheriff always should have been 
 according to the etymology of his Latin and French de- 
 signations 1 . Vast possessions were also assigned to him, 
 but only as Duke of Cornwall 2 ; and they were annexed and 
 united to the dukedom for ever, and made inseparable 
 from it 3 . The grant of them was only to the Black Prince 
 and the first-born sons of him and his heirs, being Kings of 
 England, and to Dukes of Cornwall by succession of in- 
 heritance. Thus there could be no Duke of Cornwall 
 without the lands assigned to the dukedom, and the lands 
 assigned to the dukedom must always be in the hands of 
 the Duke when not in the hands of the Sovereign 4 . 
 
 The grants of lands by the King, though probably not Acts of 
 usually made without due consideration, occasionally gave ^^5^^ 
 rise to disputes in matters of detail. Sometimes, it was the grant 
 said, the King was ' deceived in his grants.' For this Lands in 
 reason it was enacted in the year 1 390 that he should £ e rei S" T of 
 
 Henry IV. 
 
 always have the advice of the sages of his Council with 
 regard to matters touching his estate and that of the 
 Realm. All persons asking for lands, rents, offices, or 
 other profits from the King were also to make, in their 
 petitions, express mention of the value not only of those 
 lands or profits, but also of any others which they might 
 have had by gift from the King or any of his predecessors. 
 
 1 Vicecomes, Vicounte. 
 
 2 ' Sub 7iomine et honore Duct's dicti loci? 
 
 8 ' Quae quidem omnia . . . praedicto ducatui praesenti carta 
 nostra pro nobis et hercdibus nostris annectimus et unimus eidevi in 
 petpetuum remansura, ita quod ab eodem ducaiu aliquo te??ipore 
 nullatenus separentur, nee alicui seu aliquibus aliis quam dicti loci 
 Ducibus per nos vel heredes nostros donentur seu quomodolibet conce- 
 dantiir! 
 
 4 Rot. Chart., 11 Ed. Ill, no. 54 (printed, Rep. Dig. Peer, vol. v. 
 pp. 35-38). It is said in the Third Rep. Dig. Peer (vol. ii. p. 108), 
 that ' the dignity of the Duke of Cornwall . . . was clearly personal,' 
 but the actual words of the grant do not seem to warrant the state- 
 ment 
 
78 CONSTITUTIONAL HISTORY OF 
 
 Chap. V. Failure to comply with this condition was to render void 
 any letters patent of grant r . A remedy was at the same 
 time provided for persons wrongfully dispossessed by 'colour' 
 of such letters patent 2 . Grants of lands by the King were 
 further restrained in the year 1402, by the provision (some- 
 what difficult of interpretation) that none were to be made 
 except to deserving persons 3 ; but in the year 1404 the 
 Queen and princes of the blood were exempted from the 
 provisions of the Act of 1399 relating to petitions for 
 grants 4 . In the year 1429 it was enacted that all lands 
 which had been seized into the King's hands should be 
 retained until a month had elapsed after the return of the 
 Inquisitions in which the facts were set forth. Any letters 
 patent of grant made before that time were to be void, in 
 order that any one disputing the King's title might have 
 due opportunity of proving his case 5 . 
 
 They had The effect of these Acts there can be little doubt, was 
 
 Irtfost to cnec k by degrees the grant of Crown lands, and so to 
 prepare the way for the grant of the higher dignities of the 
 peerage without any corresponding assignment of lands. 
 It was not, however, until the fourth year of the reign of 
 Henry V that the Acts appeared to have had any effect 
 upon official instruments relating to the creation of Dukes, 
 Marquesses, and Earls. The Sheriff of Devonshire having 
 been commanded to pay to the Duke of Exeter forty 
 pounds per annum out of the issues of his county, a clause 
 was at the same time introduced (apparently with reference 
 to the Act of 1 Henry IV), ' Notwithstanding the preferment 
 of ten thousand pounds made in our Parliament lately held 
 at Westminster .' 
 
 Grants of The English successes in France were followed about 
 
 associated this time b ^ the £ rant of> various dignities in Normandy to 
 with men of English birth. John de Gray obtained the county 
 
 Nwmandy of Tancarville in terms which indissolubly associated the 
 
 1 Stat. 1 Hen. IV, cap. 6. 2 Stat. 1 Hen. IV, cap. 8. 
 
 3 Stat. 4 Hen. IV, cap. 4. 4 Stat. 6 Hen. IV, cap. 2. 
 
 5 Stat. 8 Hen. VI, c. 16. 
 
 6 Rot. Lit. ClaUS., 4 Hen. V, m. 10 {Rep. Dig. Peer, vol. v. p. 183). 
 
THE HOUSE OF LORDS 79 
 
 dignity with the lands l . The Earl of Salisbury acquired Chap. V. 
 the county of Perche 2 , and William Bourchier the county in the 
 of Eu 3 , in a similar manner. So also Gaston de Foix was reign of 
 created Comte de Longueville, and had a grant of the 
 county of Longueville in support of it 4 . It is apparent 
 from these instances how familiar the minds of men living 
 in the reign of Henry V must still have been with the idea 
 of a county or earldom associated with the tenure of 
 lands. 
 
 It was not until Henry VI had been more than ten years Theearl- 
 upon the throne that distinct references began to be made p em b ro ke 
 to the Statutes in restraint of the grants of lands in the still asso- 
 hands of the King. Humphrey, Duke of Gloucester, a son the county 
 of Henry IV, presented a petition to the King; in Parliament. ln . the . 
 
 J ' r r & reigns of 
 
 He had, it seems, been created Earl of Pembroke and Duke Henry V 
 of Gloucester, for life, by his brother Henry V 5 , who granted Henry VI. 
 to him and the heirs of his body, just before the creation, 
 the county of Pembroke with all its issues and profits under 
 the name of the Castle and Lordship of Pembroke, and the 
 Castle and Lordship of Tenby. Through some inadver- 
 tence a grant had been made, out of the issues of the same 
 county, of twenty pounds per annum for the better support 
 of the earldom, and of forty pounds per annum for the 
 better support of the dukedom, and this of course was 
 nugatory, since the Duke, as Earl of Pembroke, already 
 enjoyed the whole of the county revenue. The possessions 
 of the alien Priories having been seized into the King's 
 hand in the eighth year of the reign of Henry V, the Duke 
 now prayed that he might have a grant of the possessions 
 
 1 Rot. Lit. Pat. Norm., 6 Hen. V, part ii. m. 41, no. 78 (printed, 
 Rep. Dig. Peer, vol. v. pp. 186-7). 
 
 2 Lb., 7 Hen. V, part i. m. 63, no. 232 (printed, Rep. Dig. Peer, 
 vol. v. p. 187). 
 
 :: lb., 7 Hen. V, part i. m. 4 (printed, Rep. Dig. Peer, vol. v. 
 p. 188). 
 
 4 lb., 7 Hen. V, part i. m. 35, no. 64 (printed, Rep. Dig. Peer, 
 vol. v. pp. 188-9). 
 
 5 Rot. Lit. Pat., 2 Hen. V, part i. m. 36 (printed, Rep. Dig. Peer, 
 vol. v. p. 171). 
 
8o 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. V. 
 
 The earl- 
 dom of 
 Arundel 
 held to 
 depend 
 upon an 
 estate of 
 inheritance 
 in the 
 castle and 
 honour of 
 Arundel in 
 the reign of 
 Henry VI. 
 
 of the alien Priory of Pembroke, to him and the heirs male 
 of his body in satisfaction of the sums of twenty and forty 
 pounds per annum which had been granted to him, and 
 from which he had received no profit. He at the same 
 time prayed that he might have a grant of the earldom 
 and dukedom to him and the heirs male of his body 
 instead of for life only. Here he introduced a clause which 
 recurs again and again in the same or similar form in later 
 grants of dignities — ' Notwithstanding that express mention 
 is not made in this petition of the true value of the priory, &c, 
 or of that which the petitioner has of your gift or the 
 gift of your progenitors, and notwithstanding any statute or 
 ordinance to the contrary.' He obtained the earldom and 
 dukedom in the terms desired, but the priory during the 
 King's pleasure only \ These very instructive transactions 
 tell us how the Earldom of Pembroke was still associated 
 with ^he county of Pembroke in the reign of Henry V, 
 and lead us almost insensibly to that new state of affairs 
 in which earldoms and higher dignities became strictly 
 personal. 
 
 One of the great essentials of earldoms by tenure seems 
 to have been that the holder must have taken the lands 
 by inheritance, and not by purchase, except of course when 
 he acquired them directly from the Crown. Thus in the 
 famous case of the Earldom of Arundel, when John 
 Fitz-Alan, the heir in tail male of Richard Fitz-Alan, and 
 tenant in tail male of the castle and honour of Arundel, 
 was admitted in Parliament to be Earl of Arundel, he was 
 so admitted, not simply as being in possession of the castle 
 and honour, but because they had descended to him by 
 special right of inheritance 2 . The admission, too, was 
 evidently made with much hesitation, not because there 
 was a doubt whether any one having by descent the fee 
 simple of the castle and honour was Earl of Arundel, but 
 because John Fitz-Alan's estate of inheritance was not a fee 
 simple like that of Richard Fitz-Alan, from whom he derived 
 
 Rot. Pari., II Hen. VI, no. 36. 
 
 lb., 11 Hen. VI, nos. 32-35. 
 
f ^ OP THE ' r \ 
 
 (university) 
 the house of lords v ^ 8l 
 
 his title. It was probably for this reason that a clause was Chap. v. 
 introduced to save the right not only of the King, but also 
 of John Mowbray Duke of Norfolk (then a minor), who, as 
 the representative of one of Richard's daughters and coheirs, 
 opposed Fitz-Alan's claim. 
 
 The doctrine that the Earldom of Arundel was an Earldom 
 by tenure seems to have been, at this time, admitted on all 
 sides. The opposition of the Duke of Norfolk was itself 
 made on the ground that Fitz-Alan's title to the castle 
 and honour was not good, and that, if he were recognized 
 as Earl, those who had'V better claim would be prejudiced. 
 
 In the fourteenth year of the reign of Henry VI, it is It was an 
 clear, the common opinion was that there could be no Earl 0^^ m 
 without lands. In a case which was then argued it was the same 
 stated by counsel that proceedings to outlawry could not t ™^ CO u^ 
 be taken against an Earl in a civil action because it was not be an 
 a principle of law that, unless he had lands, a man could without 
 not be understood to be an Earl. Counsel on the other lands - 
 side did not dispute the proposition, and merely said that 
 this was not the only cause which exempted an Earl from 
 proceedings to outlawry, but that another cause existed in 
 the dignity of his name, as such proceedings could not 
 be taken against a Duke, an Earl, or a Baron 2 . 
 
 Seven years later the reversion of the Earldom of Pern- Grant of 
 broke was granted by the King to William de la Pole, sLYoftii'e 
 Earl of Suffolk, and Alice his wife, and the heirs male of Earldom 
 their bodies, should Humphrey, Duke of Gloucester, die of Pem™ 1 Y 
 without heir of his body. They were also to have, with br ° ke > with 
 the same limitations, the castle and lordship of Pembroke, standing' 
 and the castle and lordship of Tenby, under which de- ^ we . 
 scription the county of Pembroke had passed to Humphrey, the Acts in 
 Duke of Gloucester. The earldom and the county were the^ant. 
 
 1 Subsequent disputes respecting this earldom were settled by Act 
 of Parliament (3 Charles I, cap. 4). It seems unnecessary to discuss 
 this particular case at greater length, because the general principles 
 affecting earldoms and lands are capable of better illustration from 
 cases which have not given rise to heated controversies. 
 
 2 Year Book, 14 Hen. VI, no. 9. fo. 2. 
 
 G 
 
82 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. V. 
 
 of Crown 
 
 lands. 
 
 The clause 
 
 afterwards 
 
 became 
 
 merely 
 
 formal, 
 
 and was 
 
 introduced 
 
 when no 
 
 lands had 
 
 been 
 
 granted. 
 
 Illustration 
 from the 
 case of 
 George 
 Neville 
 Duke of 
 Bedford, 
 in the 
 reign of 
 Edward IV. 
 
 He was 
 degraded 
 by Act of 
 Parliament 
 
 thus still united, but the ' notwithstanding ' clause was 
 introduced into the patent ' ; and the Acts to restrain the 
 grants of Crown lands seem afterwards to have had some 
 effect in dissociating dignities from lands. 
 
 For the ancient custom of granting to an Earl the 
 third part of the proceeds of the county court, there 
 had long been substituted the practice of granting a fixed 
 annual sum to be paid out of the issues of the county to the 
 Earl, Marquess, or Duke. This continued to be the custom 
 long after the ' notwithstanding ' clause was introduced into 
 the patents or charters of creation, but it soon came to be 
 the only mark of territorial connexion between the Earl, 
 Marquess, or Duke, and any county from which he might 
 happen to take his title. At first the clause had reference 
 to actual grants of lands made in connexion with the 
 creation of the Earls and others. It was afterwards in- 
 troduced, as a mere form, in accordance with precedent, 
 in cases in which there had not in fact been any grant of 
 lands, or even of other profits, beyond the conventional 
 allowance out of the revenues of a county, known as creation 
 money. In this way also it seems to have been used in 
 some of the creations of baronies by letters patent. 
 
 When, in the reign of Edward IV, a marriage between 
 George Neville and the King's daughter Elizabeth was in 
 contemplation, the King created his proposed son-in-law 
 Duke of Bedford. He and the heirs male of his body 
 were, as usual, to have forty pounds a year out of the 
 revenues of the counties of Bedford and Buckingham. The 
 ' notwithstanding ' clause was introduced into the charter 2 , 
 according to the usage, but subsequent events show that it 
 was, in this case, founded on a fiction. 
 
 In virtue of this charter George Neville bore for some 
 years the title of Duke of Bedford, but eventually lost it 
 because he had not lands to support it. His case is unique 
 
 (printed, Rep. Dig. Peer, 
 i Ed. IV, no. 3 (printed, Rep. Dig. Peer, vol. v. 
 
 1 Rot. Lit. Pat., 21 Hen. VI, part ii. m. 
 vol. v. p. 240). 
 
 2 Rot. Chart., 
 pp. 377S78). 
 
THE HOUSE OF LORDS 83 
 
 in the history of the peerage. He did not marry the King's Chap. v. 
 daughter, and he did not obtain any grant of lands. At because he 
 the time of the proposed marriage ' for the great love ' the ha(1 no 
 
 r r ° ° estate to 
 
 King bore to George's father, he ' intended to have given support his 
 to the said George, for sustentation of the same dignity, dukedom - 
 sufficient livelihood.' George's father, John Neville, Mar- 
 quess of Montague, however, was concerned with the Earl 
 of Warwick in restoring Henry VI to the throne, and fell 
 at the battle of Barnet, fighting on the Lancastrian side. 
 He was attainted after his death, and, by corruption of 
 blood, George became incapable of inheriting his lands or 
 his dignities. An Act was therefore passed in the seven- 
 teenth year of the reign of Edward IV, to degrade George 
 Neville from his dukedom. Its English words are re- 
 markable : ' For so much as it is openly known that the 
 same George hath not, nor by inheritance may have, any 
 livelihood to support the said name, estate, and dignity, 
 or any name of estate, and oft times it is seen that when 
 any Lord is called to high estate, and have not livelihood 
 conveniently to support the same dignity, it induces great 
 poverty, indigence, and causes oft-times great extortion, em- 
 bracery, and maintenance to be had, to the great trouble of 
 all such countries where such estate shall hap to be inhabited. 
 Wherefore the King by the advice and assent of his Lords 
 Spiritual and Temporal and the Commons in this present 
 Parliament assembled, and by authority of the same, 
 ordaineth, establisheth, and enacteth that from henceforth 
 the same erection and making of Duke, and all the names 
 of dignity given to the said George or to the said John 
 Neville his father be from henceforth void and of no effect, 
 and that the same George and his heirs from henceforth 
 be no Dukes, nor Marquess, Earl, nor Baron, nor be reputed 
 nor taken for no Dukes nor Marquess. Earl, nor Baron, for 
 no erection or creation afore made, but of that name of 
 Duke, and Marquess, Earl and Baron in him and his heirs 
 cease and be void and of none effect, the said erection or 
 creation notwithstanding V 
 
 1 Rot. Pari., 17 Ed. IV, no. 16 (printed, vol. vi. p. 173). 
 G 2 
 
84 CONSTITUTIONAL HISTORY OF 
 
 Chap. V. Thus it was admitted that George, Duke of Bedford, 
 His dignity cou ld bear the title as a personal dignity not associated 
 
 was purely v^ith the tenure of lands, and without any means of sup- 
 personal. . , , -ill 
 porting the honour. It was at the very same time declared 
 
 to be inconvenient and mischievous that he or others of 
 
 high estate should be in such a condition. The remedy of 
 
 degradation had never before been applied for the same 
 
 cause ; it could hardly have been then applied had the 
 
 earlier course been followed and a grant of lands been 
 
 made to support the dukedom at the time of its creation. 
 
 All sub- The degradation of the Duke of Bedford for want 
 
 creations of means was never used as a precedent. The form 
 
 purely Q f cre ation used in his case was, however, followed in 
 
 personal. ' 
 
 subsequent grants of earldoms, and dignities of higher 
 grade. The clause ' notwithstanding,' as in the charter to 
 George Neville, was uniformly introduced in the later 
 creations of the reign of Edward IV. It appears in the 
 Letters Patent making Edward Plantagenet Earl of Salis- 
 bury l . It appears in the charter by which William 
 Herbert was created Earl of Huntingdon on surrendering 
 the Earldom of Pembroke 2 . It appears in the charter by 
 which Edward, Prince of Wales, son of Edward IV, was 
 created Earl of Pembroke 3 , and in the charter by which 
 he was created Earl of March 4 . It appears in the charter 
 by which William. Lord Berkeley, was created Viscount 
 Berkeley 5 , and in the charter by which Lord Lovel was 
 created Viscount Lovel 6 . In these cases there had not 
 been, it is believed, any specific grant of lands preceding 
 and relating to the grant of the dignity 7 . 
 
 1 Rot. Lit. Pat., 17 Ed. IV, part ii. m. 16 (printed, Rep. Dig. Peer, 
 vol. v. p. 413). 
 
 2 Rot. Chart., 15-22 Ed. IV, no. 11 (printed, Rep. Dig. Peer, vol. v. 
 pp. 417-418). 
 
 3 lb., no. 10 (printed, Rep. Dig. Peer, vol. v. p. 419). 
 
 4 lb., no. 9 (printed, Rep. Dig. Peer, vol. v. p. 419). 
 
 5 lb., no. 6 (printed, Rep. Dig. Peer, vol. v. pp. 420-421). 
 
 6 lb., no. 1 (printed, Rep. Dig. Peer, vol. v. p. 421). 
 
 7 Castles and lands in Wales and the Marches were granted to the 
 Prince of Wales just before he was created Earl of March, but they 
 
THE HOUSE OF LORDS 85 
 
 As soon as the ' notwithstanding' clause had become chap. v. 
 a mere form, and the grant of lands in association with 
 a dignity a fiction, a newly-created title of honour could 
 have been only personal. In this light it must have been 
 regarded, so far as grades in the peerage above that of 
 Baron were concerned, at the end of the reign of Edward IV. 
 The transition from the idea that newly conferred dignities 
 were personal to the idea that all were personal alike was 
 natural, and, indeed, inevitable. 
 
 were not expressly associated with any dignity. Rot. Lit. Pat., 
 17 Ed. IV, pt. 2. m. 24). And, four years after he was created Earl of 
 Pembroke, an exchange was effected between him and William 
 Herbert, Earl of Huntingdon, in virtue of which the castle, town, and 
 lordship of Pembroke, and various lands became annexed to the 
 Duchy of Cornwall, but they were no longer described as ■ the County 
 of Pembroke.' {Rot. Pari., 22 Ed. IV, no. 12.) 
 
CHAPTER VI. 
 
 Early Baronies : Tenure. 
 
 Chap.VI. 
 
 Barons dis- 
 tinguished 
 from Earls 
 as having 
 no official 
 dignity. 
 
 Thanes 
 sometimes 
 described 
 as Barons. 
 
 THE history of earldoms, and of the manner in which 
 they became hereditary, and became associated with the 
 tenure of land, may be of some service as a guide in tracing 
 the hereditary dignity of Baron, and its early association 
 with the tenure of land also. It must, however, be re- 
 membered that a Baron, merely as Baron, never had, like 
 an Earl, any official position, and consequently never had, 
 like an Earl, an official dignity. 
 
 It has been sometimes supposed that the Thanes who 
 existed in England before the Conquest were in a position 
 similar to that of the Barons who existed ^afterwards. 
 Unfortunately the writers who lived near the time of the 
 Conquest, whether French or English, made somewhat 
 rough and ready translations of words in the two languages. 
 The French authors who lived a little later than the 
 Conquest, naturally also reduced the events they were 
 describing as far as they could into the language of their 
 own time. We thus find the higher grades of society in 
 England, during and even before the reign of Edward the 
 Confessor, described precisely as if they were Norman 
 or other French nobles. When Earl Godwin was brought 
 to trial, according to Geoffrey Gaimar : 
 
 'There was present a great Baronage, 
 Earls, and Barons, and many a Sage 1 .' 
 
 The accusation was described by the French word appcl, or 
 
 1 * Isci aveit mult grant Barnage, 
 Contes, Barons, maint home sage.' 
 
THE HOUSE OF LORDS 87 
 
 appeal, and with regard to that and his answer Godwin was Chap. VI. 
 made to say, ' Let all these Barons speak what is just V 
 
 As there were Earls before the Conquest so there were Difference 
 Lords to whom their ' men ' owed a certain obedience, the Pic- 
 There was thus a kind of likeness between some, at any Norman 
 rate, of the Thanes and the Norman Barons. The Thanes the Barons 
 who were great landholders might, so long as they retained ° f the , 
 their possessions, naturally be called Barons by the French, type. 
 and, when the French gained the same possessions, they 
 too, were naturally called Barons. There appears, however, 
 to have been this great distinction, that before the Conquest, 
 the Thanes or other Lords did not hold their land by 
 knight-service as the Barons did after the Conquest. The 
 word Baron did not exist in the English (or rather Englisc) 
 language before the Conquest, but was introduced from 
 France. With it came tenure in chivalry, or by knight- 
 service, together with all the feudal incidents. 
 
 In this fact we have the key to the position of the early The 
 Baronage in England — to the position of the great tenants- ?£ roi J? ge 
 in- chief of the Crown — who were landholders owing military Conquest 
 service to the King, and suit to his Court. It is true that of^he eC 
 the change was not complete on the morrow of the battle g reat 
 of Hastings, and that, in the absence of records, the process chief of the 
 by which it was effected cannot be traced in detail with Cr ? wn < 
 
 * owing 
 
 absolute precision. There is, however, no doubt, as has military 
 already been shown, that the Baronage had practically ^eKm? 
 become denationalized in the reign of Henry I. It con- and suit to 
 sisted chiefly of foreigners owing allegiance to a King who 
 was the son of the Conqueror by a daughter of Baldwin, 
 Comte de Flandre. Their ideas of government, of the 
 tenure of land, and of the administration of justice, were 
 French. 
 
 A few of the Barons were Earls also, who, having 
 originally an official dignity, differed in that respect from 
 
 1 Geoffrey Gaimar (Rolls Series), 11. 4900-4916. The last passage 
 is in French : 
 
 ' De vostre apel et de mon respons 
 Dient en dreit tut ces barons.' 
 
88 CONSTITUTIONAL HISTORY OF 
 
 Chap. VI. their compeers. The Barons, however, merely as Barons, 
 The held no office, and the descent of their lands was un- 
 
 Baronies trammelled by any of the difficulties incident to the 
 
 were 
 
 hereditary, descent of offices. The hereditary principle which pre- 
 but subject vailed in Normandy was naturally applied to the lands 
 payment of acquired by the new comers in England. As soon as we 
 
 reTie f f Udal find anv clear Ji S nt u P on tne subject, we find the barony 
 descending to the heir without doubt or question, but 
 subject of course to the usual feudal burden of relief. ' As 
 soon,' says Glanvill, who lived in the reign of Henry II, 
 ' as one of the King's chief Barons dies, the King im- 
 mediately retains the barony in his hand until the heir 
 (though of full age) has given sufficient security for his 
 relief 1 .' The amount payable for a barony in chief was 
 at the pleasure and mercy of the King 2 . This restraint 
 on the succession seems to have constituted one of the 
 grievances of the Barons in the reign of King John. It 
 was provided in his Great Charter that, when one of the 
 King's Earls or Barons died, and the heir was of full age, 
 he should have his inheritance on payment of the ancient 
 relief, which was defined to be one hundred pounds for 
 the entire barony, whether of an Earl or of any other 
 Baron 3 . 
 The Baron This was in the transition period before the earldom 
 anentfre ^ ad * ost * ts °^ c ^ a ^ character, and become more closely 
 barony or associated with the tenure of lands of the county. Similar 
 barony. a wor ds were introduced into the Great Charter of the ninth 
 year of the reign of Henry III, though the readings of the 
 various manuscripts vary. According to the better text, 
 which agrees with the words of Bracton, the Earl had 
 then to pay one hundred pounds as the relief for an entire 
 county (or earldom), and the Baron one hundred marks 
 as the relief for an entire barony 4 . As, however, it rarely 
 happened that the possessions of an Earl (except in the 
 case of a county Palatine) were exactly co-extensive with 
 
 1 Glanvill, lib. ix. cap. 6. 2 lb. cap. 4. 
 
 3 Magna Charta (King John), cap. 2. 
 
 4 Magna Charta, 9 Hen. Ill, cap. 2 ; Bract. 84. 
 
THE HOUSE OF LORDS 89 
 
 the boundaries of a county, it can hardly be said that very Chap. VI. 
 great precision was attained by the words of the later 
 charter with regard to earldoms. With regard to baronies 
 other than earldoms, the words are, if possible, still more 
 obscure, because, although Barons are again and again 
 described as tenants- in-chief of the King as of his Crown, 
 it does not appear that there was any uniform rule to 
 determine the extent of their holdings. It would also seem 
 that whatever may have been at first supposed to constitute 
 an entire barony, it was quite possible for any Baron to 
 hold either less or more. In later times, when the burdens 
 of a Baron were in question, it was necessary for any one 
 wishing to escape them to prove that he did not hold 
 either a barony or part of a barony. 
 
 Whatever vagueness, however, there may be with regard His 
 to details, it seems perfectly clear that until the end of ^raSer : 
 the reign of Henry III, at any rate, a Baron was a person ' the , 
 
 1 1 ,. 1 1 r 1 ^ 1 m. • strength of 
 
 holding lands of the Crown, and owing military service to war .' 
 the King. It is hardly necessary to consider the etymology 
 of the word, which is, perhaps, the equivalent of ' man.' 
 According to Bracton it meant 'the strength of war 1 ,' 
 and the use of this expression shows with sufficient plain- 
 ness that the Baron was a great landholder, bound by 
 the feudal obligations under which he held his posses- 
 sions, to bring into the field a force proportionate to their 
 extent. 
 
 It has sometimes been maintained that the Greater Tenants by 
 Barons of the reign of John and of previous reigns were s e r r ~ c anty 
 those only who held by Grand Sergeanty 2 . This has, not of 
 however, not been proved, though the tenure was in later Barons/ 
 times held in the highest estimation, and though it survived nor of . 
 
 necessity 
 
 the Act of Charles II which changed other tenures into summoned 
 socage. There is no proof that Grand Sergeanty was in ^ e „ " *„ 
 equal honour in the time of Edward I, and still less that it instance, 
 gave the sole claim to the degree of a Greater Baron in 
 earlier times. It is not even clear that a tenure by Grand 
 
 1 Bract. 5 b, ■ robur belli' 
 
 2 Nicolas, Historic Peerage of England, ed. Courthope, p. xviii. 
 
go 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. VI. 
 
 The 
 
 character 
 of Baronies 
 and Barons 
 not altered 
 in the 
 reign of 
 Henry III. 
 
 As yet no 
 
 individual 
 title of 
 Baron : 
 descent of 
 lands. 
 
 Sergeanty was at first necessarily a tenure of the King 
 in capite, though in Littleton's days it was l . Britton, on 
 the contrary, refers by implication to cases in which fees 
 are held by Grand Sergeanty, but not directly of the King 2 , 
 and Bracton uses similar language. It is, however, certain 
 that the lineal descendant and heir of a Baron who held by 
 Grand Sergeanty in the time of the Conqueror was not 
 necessarily summoned to Parliament as a Baron in the 
 time of Edward I. Reginald de Argenton, for instance, 
 held by Grand Sergeanty 3 in the reign of Richard I. He 
 was the son of a Reginald de Argenton who lived in the 
 reign of Henry I, and the grandson of another Reginald 
 de Argenton who had a grant from the Conqueror 4 . Yet, 
 the descendants of these Barons were not summoned to 
 Parliament in later reigns, and if any descendant and heir 
 were now living, he would have no right to the hereditary 
 dignity of a Baron on the ground of his descent from 
 a Baron by writ of summons. 
 
 It is usual to describe the Barons, who in legal documents 
 are styled ' the King's Barons,' or ' the King's Chief Barons,' 
 or ' the Greater Barons ' as ' Barons by tenure ' until the 
 reign of Henry III, and then to assume a violent change of 
 status, and to regard all Barons as ' Barons by writ/ until 
 one was created by Patent in the reign of Richard II. 
 There is, however, no evidence of any such revolution. 
 The idea seems to have sprung from a misconception — 
 itself arising out of a tendency to forget the difference 
 between ancient and modern conditions of society. 
 
 It is the fact that persons holding land under certain 
 conditions were collectively known as Barons. It is the 
 fact that they were regarded as men of power subordinate 
 to the King 5 . It is not the fact that each of them had 
 
 1 Litt. Sec. 156. 
 
 2 Britton, lib. iii. cap. 4. sec. 4 ; Bract. 35 b. 
 
 1 Per serganHam Pincerniae, Eyre Roll, Hertford, 10 Ric. I (printed 
 in ' Rotuli Curiae Regis,' i. 162 J. 
 
 4 'Rotuli Curiae Regis,' 1 John (printed, vol. i. p. 392). 
 
 5 Bract. 5 b. 
 
THE HOUSE OF LORDS 91 
 
 individually a title of honour as Baron A, or Baron B. Chap. VI. 
 
 Each of them was liable to perform certain duties, and, as 
 
 will be shown in a subsequent chapter, enjoyed certain 
 
 privileges, but he bore hardly any resemblance to a Baron 
 
 of the nineteenth century. His lands, subject to the feudal 
 
 relief, descended to his heir, and with them his duties and 
 
 his privileges. They might even descend to a female heir, as 
 
 when he left only one daughter, or to female coheirs, as when 
 
 he left several daughters. They might be divided, with the 
 
 restriction that where there was only one castle, or capital 
 
 messuage or dwelling of any earldom or barony, it was not 
 
 partible but went to the eldest of the coheirs, as a symbol of 
 
 indivisible strength descending from a time when it was 
 
 said that the realm was composed of earldoms and 
 
 baronies 1 . The military services for the lands had to be 
 
 rendered whether in the hands of one person or of many. 
 
 The King could summon to his Court, his Council, or his 
 
 Parliament the husband of any of the coheirs if he saw fit. 
 
 In certain cases he had even greater power. There was an 
 
 important difference between the case in which a Baron, 
 
 tenant in fee. died leaving three unmarried daughters, and 
 
 the case in which he left two elder married daughters and 
 
 one youngest unmarried daughter as his coheirs. In the 
 
 latter case the marriage of the unmarried daughter of one 
 
 of the King's Barons who held of the King in chief belonged 
 
 to the King. He could give her, together with the whole of 
 
 the inheritance of which her father died seised, to any one of 
 
 his knights whom he might select, and her sisters could not 
 
 recover anything against her during her life. This was the 
 
 law at the beginning of the reign of Henry III, and it was 
 
 then believed to have prevailed since the time of the 
 
 Conquest 2 . 
 
 In this instance it will be observed that there was no 
 separation of the dignity from the inheritance. The 
 
 1 Bract. 76-76 b ; Britton, lib. iii. cap. 8 ; Fleta 313. 
 
 2 Fitz-Herbert's Abridgement, Tit., Prescription, 56 (3 Henry III). 
 This case is cited in Co. Litt. 165 a, but the use there made of it is 
 hardly warranted by the actual words of the report or abridgement. 
 
9 2 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. VI. 
 
 A barony 
 did not 
 necessarily 
 give ' a 
 voice in 
 Parlia- 
 ment.' 
 
 No 
 
 evidence 
 from 
 
 Henry I to 
 Henry II 
 that a 
 summons 
 was re- 
 garded as a 
 privilege. 
 
 Even the 
 
 summons 
 
 conceded 
 
 by John's 
 
 Magna 
 
 Charta, 
 
 youngest daughter remained, as it is expressed in the report, 
 ' in her father's inheritance.' The husband of course repre- 
 sented her in all rights and liabilities, and, as her estate was 
 regarded as an estate of inheritance so was that of the 
 husband so long as they both survived. 
 
 Though, however, the appellation 'Baron' was thus 
 indissolubly associated with the tenure of lands, that 
 tenure could not have had the effect which has sometimes 
 been attributed to it. The theory that 'till the time of 
 King Richard I, or of King John, each man to whom the 
 Crown gave lands to hold by knights service in capite was 
 thereby made a Baron and Peer of the Realm, and had 
 a voice in Parliament,' may at one time have been the 
 ' received orthodox opinion amongst all heralds and anti- 
 quarians 1 ,' but it has no solid basis of fact. It is doubtful 
 whether, in those early days after the Conquest, there was 
 any such right as a right to a voice in Parliament, and 
 it has yet to be proved that the term ' Peer of the Realm ' 
 was known in England. 
 
 There is no trace of any desire on the part of the Barons 
 to be summoned to the King's Great Council as a privilege 
 and an honour before the reign of John. Earlier charters 2 
 contain many of the points for which the Barons then con- 
 tended, but not any reference to the summons to the 
 Common Council of the Realm, which was a prominent 
 feature in John's Charter. 
 
 Even in John's reign, too, the summons was desired not 
 as an honour but as the means of mitigating demands for 
 money :) . It was only when an exceptional aid or scutage 
 was to be assessed that the Barons wished to be called 
 
 1 John Smyth, of Nibley, Lives of the Berkeleys (ed. Sir John 
 Maclean), vol. ii. p. 50. 
 
 2 For instance, the Charter of King Henry I, a. d. ii 00. See also 
 the two Charters of King Stephen, and the Charter of King Henry II, 
 in all of which the Charter of Henry I is mentioned. These have 
 been conveniently brought together in the notes to Blackstone's 
 Tracts, 286-288 (The Great Charter). They are also printed in the 
 Statutes of the Realm. 
 
 3 King John's Magna Charta, cap. 12 and cap. 14. 
 
THE HOUSE OF LORDS 93 
 
 together. In that case the King agreed that he would Chap. VI. 
 cause the Archbishops, Bishops, Abbots, Earls, and Greater was desired 
 Barons to be summoned individually, and that he would as a . 
 also cause to be summoned collectively, by his Sheriffs and against 
 Bailiffs, all those who held of him in capite, that in every rath^Than 
 summons he would express the reason for which it was as an 
 made, and that the particular business in hand should 
 proceed on the appointed day, and be settled by the advice 
 of those present. 
 
 The classes of persons to whom the separate writs of The Barons 
 summons were to be directed were, no doubt, the classes yet ac _ 
 of persons who were subsequently known as Peers of quired the 
 the Realm, and constituted the House of Lords. They hereditary 
 had already acquired some privileges which were after- le g lsl ators. 
 wards enjoyed by Peers, but it does not, therefore, follow 
 that the laymen among them had as yet attained the 
 position of hereditary legislators, or legislators by tenure. 
 That was gained by a sort of prescription in a later 
 generation. 
 
 The doctrine that between the accession of King John In the 
 and the death of King Edward I (or as it is sometimes more E^ard I 
 precisely stated, in the reign of Henry III 1 ), the position of the reason 
 
 expressly 
 
 a Baron ceased altogether to depend upon territorial alleged for 
 possessions and became merely personal, is contradicted * h e grant of 
 
 * J r baronies 
 
 by the strongest evidence. At the very time at which this (in the 
 change has been said to have been complete, there issued, ^ndsWas 
 by royal authority, a famous law book, in which there is that the 
 a passage not to be reconciled with the theory that m^ght^e 
 a Baron's dignity was independent of lands held by barony. liable to a 
 
 -iv • 1- • /-I- /-, summons 
 
 Kings may not ahene the rights of their crown or of their to Parlia- 
 royalty so as not to be revocable by their successors. It ment 
 is nevertheless permissible for baronies and other demesnes 
 and liberties to be granted by Kings, sometimes in frank- 
 almoign, and sometimes in order to have the prelates, and 
 the other discerning persons of the realm as part of the 
 
 1 The statement is made in the preface to Camden's Britannia, but 
 the existence of the alleged law is not precisely indicated, and it has 
 never been traced to any document of authority. 
 
94 CONSTITUTIONAL HISTORY OF 
 
 Chap. VI. Council, in such manner that they may be capable of being 
 
 summoned to the King 1 .' 
 All holders From this important and authoritative statement of the 
 
 were"™ 165 law lt ls c ^ ear ^^ as * ate as t ^ le twenty-second year of the 
 however, reign of Edward I the summons to any Council, whether 
 necessarily tne Common Council of the Realm or any other, was, if 
 summoned, regarded as a privilege, certainly regarded not less as 
 a burden, incident to the possession of land. It is also 
 clear that the King might summon as a Baron whomsoever 
 he pleased, if the person was liable to the summons by 
 reason of holding a barony, but there is not the least 
 indication that a person holding a barony could claim to be 
 summoned, or would even wish to be summoned on all 
 occasions, if the King did not desire his presence. When 
 the object for which the Common Council of the Realm, or 
 Parliament, was called together was the grant of an extra- 
 ordinary aid to which the Baron would have to contribute, 
 it might seem that he would have the right to be summoned 
 under the provisions of King John's Magna Charta, if he 
 ranked as one of the Barones Majores, but this provision 
 had already disappeared from Magna Charta as confirmed 
 by Henry III 
 The Particular instances are found to be in harmony with the 
 
 waTa°the g enera l principles involved in Britton's statement of the 
 discretion law. It would be very difficult to show that any of the 
 King. laymen beneath the rank of Earl who were called to advise 
 
 the King in the reign either of Henry III or of Edward I 
 did not hold a barony or part of a barony. It may be 
 true that some of those who were summoned on any 
 occasion held less land, than some others who were not 
 summoned, but the reason is apparent. In times of 
 trouble and danger a wise King, such as was Edward I, 
 would not wish for the advice of men deficient in wisdom. 
 He probably knew personally or by repute the character 
 and abilities of his Barons, he probably had his own likes 
 
 1 Britton, lib. ii. cap. 3. sec. 3. There are similar passages in Bracton, 
 14, and in Fleta, 3, 4, 183, though not so clearly expressed. 
 
THE HOUSE OF LORDS 95 
 
 and dislikes, and he probably desired the presence of those Chap. VI. 
 who were agreeable and who might be expected to be useful 
 to himself. When wars arose, moreover, it was useless to 
 send a formal summons for attendance in Parliament to 
 men whose services were required in the field. 
 
 For many generations the best proof that a man was In the 
 a Baron was the proof that he held lands by barony. Edward III 
 When Barons wished to assert their privilege of exemption a Baron 
 from being sworn on juries even at the end of the reign of prove his 
 Edward III, the mere summons to Parliament was not st ^ s 
 
 without 
 
 sufficient to prove their right. Ralph de Everden, knight, showing 
 brought into the Court of Common Pleas a writ from the Jjjjd £ 
 Chancery, and also a writ of Privy Seal, reciting that he barony or 
 was a Baron, and commanding the Justices to discharge a barony. 
 him from taking any oath on any jury whatsoever. The 
 Chief Justice examined him, enquiring whether he held by 
 barony, whether he and his ancestors had always held by 
 barony, and whether they had always come to Parliament 
 as a Baron should. He answered that he held by a certain 
 part of a barony, and that he and his ancestors had so held 
 always. And thereupon, after good consideration, he was 
 absolutely discharged 1 , or, in other words, his privilege as 
 a Baron was admitted. 
 
 According to the established legal opinions, therefore, 
 a Baron was still a person whose status could be proved 
 only by his tenure. This rendered him liable to military 
 and Parliamentary service ; this gave him any privileges 
 which, as a Baron he was entitled to enjoy. 
 
 The transition from the stage in which the summons to Stages of 
 Parliament was regarded solely as a burden to that in which, frorn ltlon 
 though still associated with the tenure of lands, it was burden to 
 regarded as a privilege may be traced, in one way, by the 
 transition from the period when the number of Barons 
 summoned appears merely capricious to that in which it 
 becomes nearly uniform. 
 
 The number of Barons summoned in the reign of The , 
 
 number of 
 
 1 Year Book, M., 48 Ed. Ill, fo. 30. no. 18. 
 
96 CONSTITUTIONAL HISTORY OF 
 
 Chap. VI. Edward I varied with almost every Parliament, even when 
 Barons tne word Parliament is interpreted according to modern 
 summoned ideas, and not according to the far less precise use of the 
 
 capri- . . x 
 
 ciously term in the contemporary records. For the Parliament (in- 
 in the le cludm g Lords Spiritual and Temporal, and Commons), which 
 reign of was to meet on November 13, 120^, there were nine Earls 
 and forty-one Barons summoned 1 , but for the Parliament 
 which was to meet on November 3, 1296, only six Earls 
 and thirty-seven Barons 2 . For the Parliament which was 
 to meet on March 6, 1 299-1300, there were eleven Earls 
 and ninety-nine Barons summoned 3 ; but for the Parliament 
 which was to meet on January 20, 1306-1307, only 
 eighty-six Barons,- with twelve Earls, including the Prince 
 of Wales, as Earl of Chester 4 . 
 And in the In the first year of the reign of Edward II (1307) 
 Edward II. a Parliament was to meet on October 13, but only nine 
 Earls and seventy-one Barons were summoned 5 . For the 
 Parliament to meet on April 27, 1309, nine Earls were 
 summoned and eighty-one Barons . Towards the end of 
 the reign of Edward II (when a Parliament was to meet 
 on July 15, 1321), nine Earls and ninety Barons were 
 summoned 7 . To the Parliament which was to meet on 
 November 14, 1322, ten Earls were summoned and fifty-two 
 Barons 8 ; and one Earl (of Surrey), whose name has not 
 
 1 Rot. Lit. Claus., 23 Ed. I, m. 3 d (printed in Pari. Writs, ed. Pal- 
 grave, vol. i. p. 31, as well as in Reports o?i the Dignity of a Peer). 
 
 - lb., 24 Ed. I, m. 7 d (printed, Pari. Writs, vol. i. p. 42, as well 
 as in Rep. Dig. Peer). 
 
 3 lb., 28 Ed. I, m. 17 d (printed, Pari. Writs, vol. i. pp. 82-83, as 
 well as in Rep. Dig. Peer). 
 
 4 lb., 34 Ed. I, m. 2d (printed, Pari. Writs, vol. i. pp. 181-182, as 
 well as in Rep. Dig. Peer). 
 
 5 lb., 1 Ed. II, m. 19 d (printed, Pari. Writs, vol. ii. div. ii. p. 2, as 
 well as in Rep. Dig. Peer). 
 
 6 lb., 2 Ed. II, m. 11 d (printed, Pari. Writs, vol. ii. div. ii. 
 pp. 25-26, as well as in Rep. Dig. Peer). 
 
 7 lb., 14 Ed. II, m. 5 d (printed, Pari. Writs, vol. ii. div. ii. p. 235, 
 as well as in Rep. Dig. Peer). 
 
 8 lb., 16 Ed. II, m. 26 d (printed, Pari. Writs, vol. ii. div. ii. p. 262, 
 as well as in Rep. Dig. Peer). 
 
THE HOUSE OF LORDS 97 
 
 been found among the writs of summons, sent a proxy l . Chap. VI. 
 To the Parliament which was to meet on February 23, 1323- 
 
 1324, ten Earls were summoned but only forty-nine Barons 2 . 
 To the Parliament which was to meet on November 18, 
 
 1325, only four Earls and forty Barons were summoned 3 . 
 In each of the cases mentioned the Parliament was 
 a true Parliament from the modern point of view, as it 
 included the Lords Spiritual and Temporal and the 
 Commons. 
 
 At the beginning of the reign of Edward III a similar Similar 
 uncertainty still prevailed with regard to the number of ["the^arly 
 Lords Temporal who were to come to Parliament. Thus in part of the 
 the first year six Earls, and forty-six persons who were pre- Edward 
 sumably Barons 4 were summoned to meet with the Prelates IIL 
 and Commons at Lincoln on September 15. To the 
 Parliament which was to meet in the following February 
 (in the second year) at York, six Earls were summoned, 
 and fifty Barons 5 . In the fourth year eleven Earls and 
 fifty Barons were summoned to a Parliament to meet at 
 Winchester, in January 6 . In the seventh year twelve 
 Earls and sixty-three Barons were summoned to a Parlia- 
 ment to meet at Northampton, in the February of the eighth 
 year 7 . In the eleventh year there was summoned to meet 
 in September an assembly which it is difficult to distinguish 
 from a Parliament in the modern sense of the term. Writs 
 issued to all the counties for the election of knights of the 
 shire and burgesses. The Bishops were summoned in the 
 
 1 Original Proxies preserved among Parliamentary Petitions (printed, 
 Pari. Writs, vol. ii. div. ii. p. 267, no. 30). 
 
 2 Rot. Lit. Clans., 17 Ed. II, m. 27 d (printed, Pari. Writs, vol. ii. 
 div. ii. p. 289, as well as in Rep. Dig. Peer). 
 
 3 lb., 19 Ed. II, m. 27 d (printed, Pari. Writs, vol. ii. div. ii. pp. 334- 
 335, as well as in Rep. Dig. Peer). 
 
 4 lb., 1 Ed. Ill, part ii. m. 16 d (printed in Rep. Dig. Peer, vol. iv. 
 P- 377)- 
 
 5 lb., 1 Ed. Ill, part ii. m. 3 d (printed in Rep. Dig. Peer, vol. iv. 
 
 PP. 379-38o). ><S"8E LIBR^ 
 
 lb., 4 Ed. Ill, m. 41 d (printed, pp. 392-393). f ^ of the 
 
 7 lb., 7 Ed. Ill, part ii. m. 3 d (printed, pp. 422-424). f TJNI VERSIT 
 
98 CONSTITUTIONAL HISTORY OF 
 
 Chap. VL usual form, and Abbots also. Thirteen Earls were sum- 
 moned and only thirty-three Barons l . In some subsequent 
 years we find the number of Earls who were summoned 
 varying from eight to thirteen, and the number of Barons 
 rising again to more than forty. In the twentieth year, 
 however, there were but five Earls and eleven Barons 
 summoned to the Parliament which was to meet at West- 
 minster in September 2 . The reason, no doubt, was that 
 many of those who would otherwise have been called, 
 were engaged with the King in military service in ' parts 
 beyond the sea.' It is quite possible, too, that in previous 
 years the wars with Scotland and France, as well as, 
 perhaps, in some cases other political events may have 
 caused, wholly or in part, the striking differences in the 
 numbers of the Temporal Lords who were required to attend 
 successive Parliaments. 
 
 In the twenty-first year of Edward III, eleven Earls and 
 thirty Barons were summoned to meet in Parliament at 
 Westminster, in the February of the following year 3 . The 
 same numbers occur in the first writs of summons to 
 Parliament in the twenty-second year ; but somewhat later, 
 fifty-six Barons were summoned to meet at Westminster 
 in the following February, and again when Parliament was 
 prorogued. This prorogation, caused by the Black Death, 
 was followed by another, which was a postponement sine 
 die*, and the notification of which was addressed to fifty-five 
 Barons. In the twenty-fourth year fifty Barons were sum- 
 moned to the Parliament to meet at Westminster in the 
 February of the following year 5 , the reduction in numbers 
 having been caused probably by the ravages of the 
 pestilence and the minority of some of the heirs of the 
 Barons previously summoned. 
 
 1 Rot. Lit. Clans., u Ed. Ill, part ii. m. 40 d (printed in Rep. Dig. 
 Peer, vol. iv. pp. 479-481). 
 
 2 lb., 20 Ed. Ill, part ii. m. 25 d (printed, p. 559). 
 
 3 lb., 21 Ed. Ill, part ii. m. 9 d (printed, pp. 573-574)- 
 
 4 lb., 23 Ed. Ill, part i. m. 19 d (printed, p. 585). 
 
 5 lb., 24 Ed. Ill, part ii. nor. 3 d (printed, pp. 588-589). 
 
THE HOUSE OF LORDS 99 
 
 About this time, however, there appears to be a more Chap. VI. 
 definite principle at work in the issue of writs of summons. The 
 The same names occur again and again, and the omission of normal 
 a familiar name can usually be explained by the minority Barons to 
 of the heir or by some grave reason of state. In the twenty- be sum * 
 fifth year of the reign of Edward III a Parliament was ranged, 
 summoned to meet at Westminster in the February of the ^dle^f 
 following year. Those who received a summons were the the reign, 
 Duke of Cornwall (Prince of Wales), the Duke of Lancaster, to °fif t y-n^e. 
 eleven Earls, and fifty-two Barons 1 . It thus seems that 
 the normal number of Barons to be summoned about the 
 middle of the reign of Edward III ranged between fifty and 
 fifty-five, when there were no special circumstances to 
 diminish it. The special circumstances, however, and notably 
 the wars with the French, were frequently in operation. 
 Thus in the thirty-fourth year of the reign only twenty 
 Barons and only four Earls were summoned to the Parlia- 
 ment which was to meet at Westminster in May 2 . In the 
 same year, however, after the return of the King to England, 
 writs of summons issued in November for a Parliament to 
 meet in the following January, and were directed to the 
 Prince of Wales, the Duke of Lancaster, eleven Earls, and 
 forty-four Barons 3 . During the remainder of the reign 
 the Barons summoned commonly fell short of the normal 
 number, and sometimes very far short. 
 
 In the reign of Richard II it becomes apparent that The 
 the normal number of Barons summoned had undergone ^Jed in 
 a permanent diminution as compared with the early part succeeding 
 of the reign of Edward III. During the first nine years ancfthe 
 of Richard's reign the number of Barons called to Par- summons 
 
 i- • 1 1 r r , r . to Parlia- 
 
 liament varied between forty-four and forty-nine. In the ment 
 tenth year it fell to forty-two. In the eleventh year hereditaI 7- 
 it rose to forty-five, and was destined in the end to rise 
 much higher from a new cause which first came into 
 
 1 Rot. Lit. C/aus., 25 Ed. Ill, m. 5 d (printed in Rep. Dig. Peer, 
 vol. iv. pp. 591-592). 
 
 2 lb., 34 Ed. Ill, m. 35 d (printed, p. 623). 
 
 3 lb., 34 Ed. Ill, m. 4 d (printed, pp. 625-626). 
 
 H 2 
 
ioo CONSTITUTIONAL HISTORY OF 
 
 Chap. VI. operation in that year — the creation of Barons by Patent. 
 Partly, however, through the protracted civil wars, and 
 partly from the sparing use of the modes of creating new 
 Barons, either by writ or by patent, the number summoned 
 fell rather than rose in the reigns immediately following. 
 Thus the summons to Parliament gradually became heredi- 
 tary, and no longer dependent on the caprice of the 
 Sovereign. 
 The word During all this time there appears nothing to show that 
 not^sed 1 t ^ ie wol "d Baron was known to the law as a term of indi- 
 asatermof vidual dignity before the creation of a Baron by Letters 
 dignity. Patent in the reign of Richard II, or that it was even then 
 a description necessary for purposes of legal identification. 
 There is, indeed, a very strong presumption to the contrary. 
 Cases occur in the ' Year Books ' or old Law Reports in which 
 writs are held to be bad because the i addition ' of ' Earl ' has 
 been omitted, but no cases have been found in which a writ 
 failed for want of the ' addition ' or description of ' Baron.' 
 This, however, is not all. When an Earl sues, or is sued, 
 his dignity is always stated, or. if not. counsel raises an 
 objection. No cases have been found in which the addition 
 of Baron occurs, and no cases in which any exception is 
 grounded on the omission. Persons who were summoned 
 to Parliament as Barons were of course frequently engaged 
 in law-suits, and it is consequently impossible that the term 
 Baron should have been universally omitted when they 
 were concerned, and that no exception should have been 
 grounded on the omission, if the word had been, in law, 
 a name of dignity in the same manner as the word Earl. 
 An Earl In order to establish a proposition which may, perhaps, 
 
 Jjhe W * 3r * be somewhat startling, it may be necessary to cite a case in 
 described which the omission of an Earl's dignity proved fatal to 
 fegafpro" a writ > as wel1 as a case in which a Baron sued without any 
 ceedings, name of dignity, and in which nevertehless neither counsel 
 Baron as nor judges raised any technical objection. In the fourteenth 
 Baron. y ear Q f E c ] warc i HI an action of replevin was brought 
 against Hugh de Audley, Earl of Gloucester, and another. 
 In the writ the Earl was described simply as Hugh de 
 
THE HOUSE OF LORDS 101 
 
 Audley. Counsel at once took exception, on the ground that Chap. VI. 
 he was not described as Earl ; and the writ failed as against 
 him, though held good as against the other person joined with 
 him as defendant K On the other hand, when Henry Fitz- 
 Hugh, of Ravensworth (who is described in the Peerages 
 as Baron Fitz-Hugh, and who was in fact summoned to 
 Parliament as Henry Fitz-Hugh 2 ), brought an action of 
 ravishment of ward in the same year :5 , he is nowhere 
 described as a Baron in the reports of the case or in the 
 corresponding record. No exception was taken on the 
 ground of the omission, which, in the case of an Earl, would 
 have been a simple and sufficient reason for abating the 
 writ ; but, on the contrary, exception was taken on another 
 point of a far more difficult and technical character. 
 
 Long after the reign of Edward III, too when the wars a Baron 
 of the Roses were giving new power to the Barons, the old ^ ee s c J ) not 
 ideas still prevailed in the Courts of Justice, and a Baron described 
 was still not as another peer. As late as the eighth year of rJSr/of 
 Henry VI it was expressly decided that there was a differ- Henry VI. 
 ence between a lord who was only a Baron and a lord who 
 was an Earl or a Duke, and that when a writ was brought by 
 or against an Earl or Duke, he must be named by his name 
 of dignity, but not when the writ was brought by or against 
 a Baron 4 . In this case the plaintiff, 'Lord' Lovel. was 
 described as knight or ' chivaler,' as persons not of higher 
 rank than Barons commonly were in the summonses to 
 Parliament. This word ' chivaler,' however, was itself a 
 name of dignity 5 , and the omission of it in a case in which 
 the party was entitled to it was fatal to a writ in which the 
 omission occurred 6 . 
 
 Moreover, it was not only in the superior Courts of In early 
 
 1 Year Book, T., 14 Ed. Ill, no. 34. 
 
 2 Rot. Lit. Claus., 14 Ed. Ill, m. 33 d (printed in Rep. Dig. Peer, 
 vol. iv. p. 517). 
 
 3 Year Book, M., 14 Ed. Ill, no. 45. 
 
 4 lb., 8 Hen. VI, no. 22, fo. 10. 
 
 5 Fitz- Herbert's Abridgement of the Law, Nomen Dignitatis, 3. 
 
 6 Year Book, H., 14 Hen. IV, no. 26, fo. 21. 
 
102 CONSTITUTIONAL HISTORY OF 
 
 Chap. VI. Justice that the designation Baron was usually omitted 
 times a when particular individuals who were summoned among 
 Baron was the Barons were described. The individuals are corn- 
 described monly mentioned without the description of Baron, and 
 even in almost as commonly without the description of Lord, in the 
 
 Parliament J r 
 
 itself. Rolls of Parliament themselves. Thus as late as the ninth 
 
 year of the reign of Edward II, Hugh le Despenser, the 
 younger, having been accused in Parliament of an assault in 
 Lincoln Cathedral, was committed to the custody of the 
 marshal. He was afterwards released on bail or mainprise, 
 and his sureties or mainpernors were all noblemen of such 
 rank as a summons to Parliament among the Barons could 
 confer on them or their ancestors. Yet not one of them 
 was called in the Roll of Parliament either Baron or Lord, 
 though one, who was an Earl (a Scottish Earl) had due 
 recognition of his title (Robert de Umfravill, Earl of Angus). 
 The rest were called simply Roger de Mortimer of Chirk, 
 Theobald de Verdon, Ralph Basset, William de Ferrers, 
 and Robert de Hastings 1 . 
 The The most reasonable explanation of these facts appears 
 
 a°barony, to be that an Earl was originally described as Earl in Par- 
 having liament and Courts of Justice by reason of his official 
 military dignity, but that a Baron was not usually so called because 
 b ^ ?° he was regarded only as the holder of a barony or part of 
 duties, was a barony. Ranks in the peerage above that of Earl were, 
 affeT C as has been shown, but superior kinds of earldoms, asso- 
 knighthood dated at first with lands in the counties, from which they 
 ?chivaler.' took their titles. Though, however, Barons never had any 
 official duties, their military duties were of great impor- 
 tance, and it was, perhaps, for this reason that their ordinary 
 legal designation, as soon as they had received the necessary 
 knighthood, was ' chivaler V 
 A Baron's The dignity of a Baron could not have been considered 
 
 1 Rot. Pari., 9 Ed. II, no. 2 (printed, vol. i. p. 352). 
 
 2 Even this, however, was omitted until the end of the reign of 
 Edward III. In the reign of Henry VI it came into common use. 
 It afterwards survived even the abolition of feudal tenures, and was 
 handed down to modern times. 
 
THE HOUSE OF LORDS 103 
 
 exclusively personal until a comparatively late period, and Chap. VI. 
 still less the right to sit in Parliament. The fact that ,. 
 
 & dignity 
 
 husbands were summoned to Parliament, as it is commonly long not 
 
 expressed, in right of their wives, is alone sufficient evidence personaf/ 
 
 on the point. 
 
 Husband and wife, it is true, were one person in law ; Husbands 
 
 by marriage the husband became the owner of the wife's to^arlk- 
 
 chattels, and acquired power over her realty during the ment in 
 
 time of coverture. The reason of this, however, was that t h e lands 
 
 her personality was lost in that of her husband, not that but not 
 
 his personality was lost in hers. It was an established dignities 
 
 principle in the reign of Edward III that when a woman of . their 
 r l ° wives. 
 
 married she lost every surname except that of 'wife of her 
 husband 1 . It would be altogether inconsistent that the 
 husband should take a name of dignity as husband of 
 the wife. The husband's powers over the wife's lands were, 
 however, in the first instance acquired because he was capable 
 of performing the military and other services by which the 
 lands were held. It was therefore quite reasonable that he 
 should receive a summons to Parliament to which a male 
 holder of her lands would be liable. It must originally 
 have been the land which was subject to the burden of the 
 summons, whether to military service or to attend in 
 Parliament. 
 
 Hugh Stafford, who was summoned to Parliament in the instances: 
 twelfth year of the reign of Henry IV 2 , and subsequently, Stafford 
 apparently on the ground that he had married Elizabeth, the and Lewis 
 daughter and heir of Bartholomew Bourchier, was summoned 
 simply as Hugh Stafford, without any mention of a Bourchier 
 peerage. Bartholomew Bourchier had been summoned 
 simply as Bartholomew Bourchier in the first, second, third, 
 fifth, seventh, eighth, and eleventh years of the reign. In 
 modern times both Bartholomew Bourchier and Hugh 
 Stafford are often described as Lord Bourchier. On the 
 death of Hugh Stafford, his widow married Lewis Robsart, 
 
 1 Year Book, T., 14 Ed. Ill, no. 51, p. 323. 
 
 2 Rot. Lit. Claus., 12 Hen. IV, m. 2 d (printed in Rep. Dig. Peer, 
 vol. iv. p. 810). 
 
104 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. VI. who in his turn was summoned to Parliament, apparently 
 by reason of his marriage, in the third year of the reign of 
 Henry VI *, and subsequently, but simply as Lewis Robsart, 
 though he, too, is often described as Lord Bourchier. In 
 each of these cases the summons to Parliament is a striking 
 illustration of the legal doctrine that a wife could not confer 
 a name (either of dignity or otherwise) upon a husband, 
 though during her life he gained the benefits and was subject 
 to the burdens attaching to her lands. 
 
 There are, however, some cases, usually regarded as cases 
 in which a husband was summoned as a Baron to Parliament 
 in right of his wife, which are of a different character. 
 They are cases in which the right of the Crown to summon 
 had been in disuse, and was exercised anew in respect of an 
 heiress's husband. Thus it is commonly said that Robert 
 Hungerford was summoned to Parliament as Lord Molines in 
 the twenty-third year of Henry VI, because he had married 
 Eleanor, heiress of William Molines. It is true that he was 
 summoned to Parliament as Robert Hungerford, knight, 
 Lord (or lord of) Moleyns 2 . He is the only person of all 
 those summoned among the Barons to whom the word 
 dominus, or lord, is applied on the same occasion ; and if the 
 word were to be accepted as a title of honour it might 
 at first sight seem to follow that he was the only lord 
 summoned to meet the Dukes, Earls, and Viscount. His 
 wife's father had not even been summoned to Parliament, 
 nor had any of her ancestors since the twenty-first year of 
 Edward III, when one was summoned as John de Molyns 3 . 
 In this case it would seem either that Hungerford was 
 held liable to a summons by reason of his wife's lands, or 
 that he was newly created a Baron. 
 
 In the twenty-fifth year of the reign of Henry VI, how- 
 ever, Robert Hungerford was again summoned, and again 
 styled dominus de Moleyns. On this occasion two other 
 persons were summoned, to whom also, and to whom alone 
 
 1 Rot. Lit. dates., 3 Hen. VI, m. 9d (printed, p. 861). 
 
 2 lb., 23 Hen. VI, m. 21 d (printed, p. 908). 
 
 3 Jb., 21 Ed. Ill, part i. m. 28 d (printed, p. 563). 
 
THE HOUSE OF LORDS 105 
 
 among all the other barons, the word dominus was applied. Chap. VI. 
 Each had married an heiress. One was Edward de Grey. 
 He had married Elizabeth, grand -daughter and heiress of 
 William Ferrers of Groby, who, and some of whose ancestors, 
 had been summoned to Parliament. William de Ferrers 
 had been summoned as ' William de Ferrers, of Groby, 
 knight.' The words 'of Groby' formed part of his descrip- 
 tion, because other members of the Ferrers family had 
 for many generations been described as of other places. 
 When Edward de Grey married the heiress Elizabeth, 
 he also became 'of Groby,' and he was summoned as 
 Edward de Grey, Lord of (dominus de) Ferrers, of Groby, 
 knight 1 . In this case it might, perhaps, be maintained, 
 with some show of reason, that Edward de Grey had 
 acquired, in some manner, the title of Lord Ferrers of 
 Groby. 
 
 The other person summoned after having married an Henry 
 heiress was Henry Percy, Lord (dominus de) Ponynges or <Lord 
 Poynings. In this case ' Poynings ' might have been re- Poynings.' 
 garded as a territorial designation, and Henry Percy only as 
 the holder, in right of his wife, of Poynings in Sussex, and 
 not as Lord Poynings according to modern ideas. It might 
 be that the reason for designating him, as well as the two 
 others who had married heiresses, by the title of dominus 
 was that he was summoned to Parliament simply as lord 
 of certain lands. It might, however, be that the three 
 ' lords ' had the title affixed to their names to show that they 
 were, by courtesy or otherwise, to be called Lord Molines, 
 Lord Ferrers of Groby, and Lord Poynings. 
 
 Two years later a case occurs which hardly admits of any William 
 doubt as to the meaning of the description. William < i°ord Fitz- 
 Bourchier, a knight, had married Thomasine Hankford, Wcirine.' 
 daughter of Elizabeth Fitz-Warine by Richard Hankford. 
 There had been nine generations in which the name of 
 Fulk Fitz-Warine had been borne successively by trans- 
 mission from father to son. Elizabeth was the sister of 
 the last of this line. Bourchier was summoned to Parlia- 
 1 Rot. Lit. Claus., 25 Hen. VI, m. 16 d (printed, p. 916). 
 
io6 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. VI. 
 
 In each 
 case the 
 husband 
 may have 
 been sum- 
 moned in 
 virtue of 
 the wife's 
 lands, or 
 there may 
 have been 
 a new 
 creation. 
 
 The 
 
 particular 
 titles were 
 given to 
 distinguish 
 the bearers 
 from other 
 Peers of 
 the same 
 families. 
 
 ment as ' William Bourchier, knight. Lord Fitz-Waryn V 
 As Fitz-Warine is a purely family name, and no question 
 of mere lordship over certain lands can arise, it is clear 
 that ' Lord Fitz-Warine ' must have been a name of dignity, 
 and not a territorial designation. Even here, however, 
 many difficulties arise. Richard Hankford was never sum- 
 moned to Parliament, and no Fulk Fitz-Warine had been 
 summoned to Parliament since the year 1336 — for more than 
 a century preceding the summons to William Bourchier. 
 
 A careful consideration of the facts — of the fact that 
 among the Barons summoned to one Parliament the only 
 persons who were styled domimis were those who had 
 married heiresses, and of the fact that in two at least of 
 these cases there is no proof of the existence of a barony, 
 apart from the lands, in the blood of the heiress — suggests 
 a conclusion quite opposed to the usual statement that 
 husbands are to be regarded as acquiring the dignity of 
 Baron in right of their wives. There are two possible 
 alternatives ; one is that the husbands were summoned 
 because liable to the summons by reason of the lands of 
 their wives, though the summons in respect of those lands 
 had been for some time intermitted ; the other is that in 
 each case there was a new creation. 
 
 The reason for designating each of these lords by a par- 
 ticular title appears to have been a desire to prevent confusion. 
 Hungerford had to be called by some name other than 
 Hungerford, because he was summoned to Parliament during 
 the lifetime of his father, who was also summoned among the 
 Barons. Ferrers of Groby was a title which had already been 
 used to distinguish the various branches of the Ferrers family 
 in which there were peerages. Percy was summoned during 
 the lifetime of his father, Henry Percy, Earl of Northum- 
 berland, and not unnaturally took a distinguishing title. 
 Bourchier, who, two years later, was summoned as Lord 
 Fitz-Warine, had to be distinguished from his brother, who 
 (being also Comte d'Eu) was successively Baron Bourchier, 
 Viscount Bourchier, and Earl of Essex. 
 
 1 Rot. Lit. Claus., 27 Hen. VI, m. 24 d (printed, p. 919). 
 
THE HOUSE OF LORDS 107 
 
 In other instances also in which there is a summons to Chap. VI. 
 Parliament of a Baron ' as in right of his wife,' whether his 
 barony is described by his wife's family name or otherwise, 
 the summons, if not in virtue of the lands held by the wife, 
 indicates a new creation. It is almost impossible to dis- 
 tinguish between the one intention and the other. In either 
 case it cannot be maintained that a Baron really enjoyed 
 his dignity in right of a dignity possessed by his wife, 
 because, according to law, her status as his wife was her 
 only status, and because a new creation by summons would 
 ennoble the blood of the husband and not of the wife. 
 
 It is nevertheless probable that there were no very Probable 
 precise doctrines on the subject in the reign of Henry VI, p^Le 
 and that, as sitting in the House of Peers came to be doctrines in 
 regarded more and more in the light of a privilege, its Henry VI. 
 original association with land and land- burdens began to be 
 forgotten. 
 
 In the reign of Henry VIII the summons directed to the The 
 husband of a woman inheriting a barony appears to have ^othe 
 been associated with the idea of tenancy by '' the curtesy of ' curtesy 
 England.' Mr. Wimbish, the husband of Elizabeth, daughter ° an d" g ~ 
 and heiress of Gilbert, Baron Talboys, of Kime, claimed the laid down 
 
 by Henry 
 
 dignity. He had no issue by her, and the King took upon vill. 
 himself to pronounce that ' neither Mr. Wimbish nor none 
 other from henceforth should use the title of his wife's 
 dignity but such as .by curtesy of England had also right 
 to her possessions for term of his life.' This was a recog- 
 nition of the earlier principle, but with a limitation which 
 had not previously existed. In former times the husband 
 was summoned, though he had no issue, as was clearly shown 
 in the cases of Hugh Stafford and Lewis Robsart Each 
 was summoned as the husband of Elizabeth, heiress of the 
 barony of Bourchier, though both lived and died childless. 
 The acceptance of the new doctrine laid down by Henry VIII 
 was an important step towards the extinction of the older 
 doctrine that the possession of land involved the burden or 
 the privilege of a summons to Parliament. 
 
CHAPTER VII. 
 
 Barony by Patent: Barony by Writ: Precedence 
 Abeyance. 
 
 Chap. VII. 
 
 Late 
 growth 
 of the 
 doctrine 
 that a writ 
 of sum- 
 mons to 
 Parliament, 
 followed 
 by a sitting, 
 conferred 
 hereditary 
 dignity. 
 
 Gradual 
 transition 
 from 
 
 burden to 
 privilege : 
 attendance 
 
 THE doctrine of the creation of an hereditary peerage by 
 the summons of a man to Parliament, without any men- 
 tion of his heirs, is of far later growth than the early writs of 
 summons by which peerages are said to have been created. 
 It has already been shown that in the reign of Edward I. and 
 for some time afterwards, the number of persons summoned 
 among the Barons varied very widely. This fact in itself 
 is almost sufficient to prove that the idea of the creation of 
 an hereditary barony could not have been in the mind of the 
 sovereign at the time at which the summons issued. We 
 find that men were summoned to one Parliament and not 
 to another ; we find that their heirs were sometimes sum- 
 moned and sometimes not. All this is quite inconsistent 
 with the theory that a single summons to Parliament, 
 followed by a sitting in Parliament, gave a peerage to the 
 person summoned and the heirs of his body. It is not, 
 however, at all inconsistent with the theory that persons 
 holding in chief of the King, as of the Crown, and therefore 
 holding, according to the Constitutions of Clarendon, as by 
 barony, were liable to a summons which might issue or not 
 at the King's pleasure. 
 
 The whole of the ideas relating to the creation of a Baron 
 by writ could not have reached maturity until men had 
 forgotten that the summons to Parliament was a burden as 
 inseparable from their lands, as the burden of military service, 
 
THE HOUSE OF LORDS 109 
 
 or until they had come to regard it as an essential part of Chap. VII. 
 their dignity. The transition was very gradual. It was in p ar i ia . 
 beginning, perhaps, at the time when English Peers first m «nt 
 spoke of themselves as Peers of the Realm, in the reign G n the first 
 of Edward II. It had, perhaps, made some progress when Bar( J n 
 Richard II created John de Beauchamp (who was Steward patent in 
 of the King's Household) 'one of the Peers and Barons of I3 7 ' 
 the Realm . . . willing that he and the heirs male of his 
 body should have the status of Barons, and should be called 
 Lords de Beauchamp and Barons of Kidderminster V 
 
 The reasons assigned for this creation were the services 
 and personal merits of Beauchamp himself, the nobility and 
 fidelity of the family from which he had sprung, and the 
 position which he was to take in future Councils and 
 Parliaments. Attendance in Parliament in obedience to 
 the King's summons was thus still one of the duties 
 obligatory upon a Baron, though in Beauchamp's case 
 obligatory not in virtue of his lands but in virtue of his 
 dignity. None of his compeers can be shown to have held 
 their baronies on the same terms. 
 
 It might perhaps be suspected that as the StafTords and The 
 the Greystocks commonly had, unlike the rest of the Barons, Stafford 
 a summons directed, ' Baroni de Stafford ' or ' Baroni de and Gre y- 
 
 stock : 
 
 Greystock,' there had been in each of those families a creation < Baron ' a 
 of a Baron by Letters Patent never yet brought to light. surname - 
 This conjecture, however, is not only improbable in itself, 
 but is refuted by the fact that when Beauchamp, Baron of 
 Kidderminster, was himself summoned to Parliament, he 
 was summoned merely as John de Beauchamp, of Kidder- 
 minster, while the summons to Greystock was in the form 
 ' Radulfo Baroni de Greystock V The reason for the 
 application of the expression ' Baron ' to members of the 
 families de Stafford and de Greystock has never yet been 
 discovered, but it is possible that the word may be only a 
 
 1 Rot. Lit. Pat., 11 Ric. II, part i. m. 12 (printed in Rep. Dig. 
 Peer, vol. v. p. 8i)f 
 
 2 Rot. Lit. Claus., 11 Ric. II, m. 24 d (printed in Rep. Dig. Peer, 
 vol. iv. p. 725). 
 
no CONSTITUTIONAL HISTORY OF 
 
 Chap. vil. part of the surname in each case, and may have no reference 
 
 to the dignity of a Baron. It is true that early instances 
 
 of hereditary surnames are extremely rare, and that the 
 
 Barons of Greystock and Stafford can be traced back to 
 
 the reign of Edward I. Apart from the question of descent 
 
 from father to son, however, there is ample evidence that 
 
 ' Baron ' was used merely as a cognomen without any 
 
 reference to status or dignity. As early as the reign of 
 
 King John, one ' Odardus Baro' was a juror 1 , and Roger 
 
 Baron appears as an essoiner in the reign of Henry III 2 . 
 
 An exact parallel to the names Baron of Greystock and 
 
 Baron of Stafford occurs among the sureties for a knight 
 
 of the shire for the County of Lincoln in the reign of 
 
 Edward I. One was Robert Baron of Wilesthorpe, and 
 
 another William Baron of the same place 3 . None of these, 
 
 it need hardly be said, were ever summoned to Parliament. 
 
 The creation of John de Beauchamp as Lord de 
 
 Beauchamp, Baron of Kidderminster, and his summons to 
 
 Parliament simply as John de Beauchamp of Kidderminster 
 
 are very apt illustrations of the legal doctrine that Baron 
 
 was not a necessary addition to the name of an individual 
 
 Lord of Parliament summoned among the Barons. John 
 
 de Beauchamp's title was Lord de Beauchamp ; and the 
 
 words 'of Kidderminster' were added apparently only to 
 
 distinguish him from other members of the numerous family 
 
 of Beauchamp. 
 
 Importance The Letters Patent by which he was. created are, however, 
 
 Beau*-™* °^ i m P ortance m relation to the doctrine of barony by writ 
 
 champ's of summons The dignity was limited in a manner different 
 
 patenUn y from that which the later lawyers attributed to the ordinary 
 
 relation summons of a Baron. This was held to operate in favour 
 
 theory of of the heirs general of the body of the person receiving the 
 
 barony by sum mons, whereas Beauchamp's creation was in favour only 
 
 writ. ' r J 
 
 of him and the heirs male of his body. Beauchamp was, 
 
 1 Roll of Easter, n John (printed, Plac. Abbr., 66 b). 
 
 2 Roll of 32 Hen. Ill (printed, Plac. Abbr., 126). 
 
 8 Return endorsed on writ to the Sheriff of London, 26 Sep., 
 28 Ed. I (printed in Pari. Writs, i. 97). 
 
THE HOUSE OF LORDS in 
 
 however, afterwards summoned in precisely the same terms Chap.vii. 
 
 as the other Barons ; and, if the summons operated in favour 
 
 of the heirs general in one case, it is not clear why it should 
 
 not have had the same consequences in another case. The 
 
 only reason that can be assigned is that the effect of the 
 
 writ of summons was governed by the Letters Patent ; but 
 
 the admission of one exception to the ordinary effect of the 
 
 writ of summons at once suggests the possibility of other 
 
 exceptions, and the necessity of a very stringent examination 
 
 of the general rule. 
 
 Beauchamp's creation as Lord de Beauchamp is the first 
 undoubted instance of a barony conferred as a dignity apart 
 from any considerations relating to the tenure of land. We 
 do know for certain that his title of honour was conferred 
 as a personal distinction in tail male, but we have no certain 
 knowledge that the dignity of any other Baron was as yet 
 supposed to be merely personal, and, if it was, we have no 
 means of explaining why the inheritance should be to the 
 heirs general by virtue of a summons directed to a particular 
 individual. 
 
 With the idea that a summons to Parliament gave dignity ideas of 
 to the person summoned, there naturally sprang up the idea P recedence 
 that there were degrees of precedence among those who sat with the 
 in the same House. When the only temporal Lords were summons 
 Earls and Barons, the writs of summons to the Earls were to Parlia- 
 always placed on the roll before the writs of summons to an honour 
 Barons, but there does not seem to have been any definite ra J her , than 
 
 i-i i i 1.1-11 / a burden. 
 
 rule with regard to the order in which the writs of summons 
 to the Barons were entered. The creation of Dukes and 
 Marquesses, however, who took precedence of Earls, and 
 the creation of a Viscount who took precedence of Barons, 
 must almost of necessity have suggested questions con- 
 cerning the precedence of Barons among themselves. 
 
 There is extant a treatise on the mode of holding pi aC es of 
 Parliament, which, if of no authority in relation to the times the Lords 
 
 or the 
 
 immediately following the Conquest, must, at any rate, several 
 possess some value in relation to the period at which it was p^amem 
 written. In its earliest form it appears to have been in the 
 
112 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. VII. 
 
 fourteenth 
 century. 
 
 No pre- 
 cedence 
 among 
 Barons 
 as yet 
 indicated. 
 
 composed about the beginning of the fourteenth century, 
 but there are later copies of it which show important 
 variations. The Earls and Barons are mentioned as persons 
 having lands and rents to the value of an entire earldom 
 or an entire barony, and they, it is said, ought to be sum- 
 moned and to come to Parliament. The place of the Lords 
 Spiritual in Parliament is described in the earliest copies, 
 but not the place of the Lords Temporal. ' The King 
 shall sit in the middle of the Greater Bench ' on his right 
 the Archbishop of Canterbury, on his left the Archbishop 
 of York, and behind them the Bishops, Abbots, and Priors. 
 Below the King and to his right were to sit the Chancellor, 
 the Chief Justice of England and his companions (the puisne 
 Judges of the King's Bench) ' and their clerks who were of 
 the Parliament.' Below the King and to his left were to 
 sit the Treasurer, the Chamberlain, the Barons of the 
 Exchequer, the Justices of the Common Bench, and their 
 clerks who were of the Parliament V 
 
 In later copies (which, however, must refer to a period 
 before the creation of Dukes, Marquesses, and Viscounts, as 
 they are not mentioned) a somewhat different account is 
 given of the Lords Spiritual and a place is assigned to the 
 Lords Temporal. On the King's right were to sit the 
 Archbishop of Canterbury, and the Bishops of London and 
 Winchester, and behind them the other Bishops, Abbots, 
 and Priors. On his left were to sit the Archbishop of York, 
 and the Bishops of Durham and Carlisle, and behind them, 
 in rows or in succession 2 , the Earls, Barons, and Lords. 
 ' such division being always observed 3 .' 
 
 The passage is unfortunately vague, but it does not 
 necessarily indicate any order of precedence among the 
 Barons. It rather shows that the Lords Spiritual were to 
 be kept distinct from the Lords Temporal, and the Earls 
 from the Barons. It might, perhaps, even be inferred that 
 there were Lords who were Peers and inferior to the Barons, 
 
 1 Modus tenendi Parliamentwn (ed. T. D. Hardy), p. 37. 
 
 2 Seriatim. 
 
 3 Modus tenendi Parliamentwn (ed. T. D. Hardy), p. 37. 
 
THE HOUSE OF LORDS 113 
 
 and that they also were to have a distinct place assigned to Chap. VII. 
 them. As, however, Baron was not a necessary addition, it 
 is more probable that the ' Barons and Lords ' were only the 
 Barons who were Lords, and the Lords who were Barons, 
 just as we find in the two first creations of Barons by patent 
 that each of them was to have the status of Baron, and to 
 be called a Lord 1 . Verbiage and grandiloquence have 
 always flourished in the warm and sunny regions of the 
 peerage ; and from a very early time the nobles were called 
 Proceres et Magnates, though the term Proceres by itself or 
 the term Magnates by itself would have been quite sufficient 
 to designate them. 
 
 Thus far there is no certain sign that one Baron could Creation 
 claim precedence over another. It was not until the reign viscountby 
 of Henry VI, that the first Viscount was created (John de Henry VI: 
 Beaumont, Viscount Beaumont)?, and it was not until G fpre- 
 the same reign that questions of precedence came into ceden ce 
 
 . , . come into 
 
 prominence. In Viscount Beaumont s patent it was ex- promin- 
 pressly stated that he was to have a place in Parlia- i^£ e : sand 
 ments. Councils, and other assemblies above all the Barons Mar- 
 of the Realm. This appears to be the first instance in 
 which precedence in Parliament was thought of sufficient 
 importance to be mentioned in the patent of creation. The 
 earliest Dukes— the first Dukes of Cornwall and of Lancaster 
 — being of royal blood, had precedence of the Earls, as 
 a matter of course, though the point was not touched in 
 their patents. The first Marquess, Robert de Vere, had 
 a charter 3 in which no mention was made of precedence in 
 
 1 It might, of course, be argued that Lords, other than Earls and 
 Barons, are the bannerets, of whom there is occasional mention in the 
 Rolls of Parliament. The word ' banneret,' however, occurs on so few 
 occasions that it is difficult to arrive at any satisfactory generalization. 
 It is possible that they may have been summoned when special advice 
 was required on special subjects. See Rot. Part., 18 Ed. Ill, no. 6 
 (printed, vol. ii. p. 147), 46 Ed. Ill, no. 7 (printed, vol. ii. p. 309), &c. 
 
 2 Rot. Lit. Pat, 18 Hen. VI, part ii. m. 21 (printed in Rep. Dig. Peer, 
 vol. v. p. 235). 
 
 3 Rot. Chart., 9 & 10 Ric. II, m. 13 (printed in Rep. Dig. Peer, 
 vol. v. p. 78). 
 
 I 
 
ii 4 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. VII. 
 
 The 
 
 doctrine of 
 hereditary 
 barony 
 by writ 
 was now 
 becoming 
 possible. 
 
 The 
 
 doctrine 
 not clearly 
 estab- 
 lished in 
 the reign of 
 Henry VI : 
 sometimes 
 confused 
 with the 
 doctrine of 
 abeyance : 
 the barony 
 of St. 
 Amand. 
 
 Parliament, though the King directed that he should have 
 place below the Dukes and above the Earls l . The charter 
 was cancelled almost immediately afterwards, and Robert 
 de Vere was created Duke of Ireland 2 . 
 
 The more men struggled, however, for precedence as 
 Peers, the more they forgot the old idea that the summons 
 to Parliament was a burden. The legal doctrine that the 
 summons followed by a sitting was equivalent to the 
 creation of a Peer with inheritance to the heirs of his body 
 was now becoming a possibility. It was not a possibility 
 so long as attendance in Parliament was considered only 
 an irksome duty ; it was not a possibility in the reign 
 of Edward I, to which the lawyers of a later time have 
 traced back the origin of many so-called baronies by writ. 
 It grew out of the prescription in accordance with which 
 the representatives of the same families were called to 
 Parliament, generation after generation. 
 
 Even as late as the reign of Henry VI. it is by no means 
 clear that the writ of summons to an ancestor was held 
 to give a peerage to the descendant. This theory has 
 been unfortunately somewhat intermixed with the theory 
 that in cases in which the descent was to co-heiresses 
 the peerage fell into abeyance, but could be called out 
 of abeyance by the Crown. Aymer de St. Amand had 
 been summoned to Parliament in the reign of Edward I. 
 His lands descended to his brother John, who was also 
 summoned to Parliament, as were successively John's son 
 Aymer, and Aymer's son Aymer. The last Aymer died 
 in 1403. He had no male issue but two daughters, one 
 by his first wife, one by his second. It does not appear 
 that there was any summons to Parliament of any Lord 
 St. Amand between the time of Aymer's death and the 
 summons of the husband of his elder daughter's grand- 
 daughter in 1449. It is commonly said that the barony 
 was in abeyance, and so, according to modern ideas, it 
 
 1 Rot. Pari., 9 Ric. II, no. 17 (printed, vol. iii. p. 210). 
 
 2 Rot. Chart., 10 Ric. II, no. 2 (printed in Rep. Dig. Peer, vol. v. 
 P- 79)- 
 
THE HOUSE OF LORDS 115 
 
 may have been until the death of the younger daughter, Chap. VII. 
 
 in or before the year 1426. Upon her death without issue, 
 
 however, the abeyance must, according to modern ideas, 
 
 have ceased, and no act of the Crown was necessary to 
 
 terminate it. There is consequently nothing to show that 
 
 when William de Beauchamp, the husband, was summoned 
 
 among the Barons to Parliament as { Lord de St. Amand V 
 
 he was not summoned merely to perform a service incident 
 
 to the lands which had become the right of his wife, or 
 
 that he was not summoned in virtue of a new creation. 
 
 The doctrine that a mere summons to Parliament, .followed 
 
 by a sitting, conferred a descendible dignity cannot be 
 
 proved from this and similar cases to have as yet come 
 
 to maturity. 
 
 When the power of the Crown had been weakened by Power 
 the incapacity of the King, and by disputes touching the by Henry 
 succession, the power of the Bar"onage as a whole was X 1 of 
 increased, and each individual member of it was more precedence 
 disposed than before to assert his own dignity. The Kin^, m , rank * 
 
 1 ,1 , r ^ , 1 -^ above that 
 
 however, was still the fountain of honour, and the Baron of Baron, 
 who wished to obtain precedence above his fellow Barons 
 could attain his end only with the King's assistance. 
 Among the Peers of ranks higher than that of Baron, Henry 
 VI assumed, if in fact he had not, the power of giving pre- 
 cedence without regard to priority of creation. To Henry 
 Beauchamp, Earl of Warwick, he gave, by charter, pre- 
 cedence over all other Earls -. When the Earl was 
 created Duke, three days later, his position was assigned 
 as next to that of the Duke of Norfolk, and before that 
 of the Duke of Buckingham 3 . The Duke of Exeter, who 
 had been recently created, was given precedence by patent 
 next to the Duke of York 4 . The Duke of Buckingham 
 
 1 Rot. Lit. Claus., 27 Hen. VI, m. 24 d (printed in Rep. Dig. Peer, 
 vol. iv. p. 919). 
 
 2 Rot. Chart., 22 Hen. VI, no. 35 (printed in Rep. Dig. Peer, vol. v. 
 p. 242). 
 
 3 lb., 21-24 Hen. VI, no. 24 (printed, p. 244). 
 
 4 Rot. Lit. Pat., 22 Hen. VI, part i. m. 13 (printed, p. 248). 
 
 I 2 
 
n6 CONSTITUTIONAL HISTORY OF 
 
 Chap. vil. shortly afterwards obtained a charter to the effect that, 
 except in the case of descendants of Henry VI or his 
 successors, no Dukes subsequently created should have 
 precedence of him or his heirs *. 
 
 When civil war is actually existing or impending the 
 
 laws are apt to be strained, if not broken, and it has often 
 
 been remarked that statements made or acts done in the 
 
 reign of Henry VI should not be regarded as evidence of 
 
 settled principles. It must, however, be remembered, on 
 
 the other hand, that times of absolute tranquillity in 
 
 England had always been rare. Since the granting of 
 
 Magna Charta the only two Kings who had sat firmly 
 
 on their thrones for any considerable length of time were 
 
 Edward I and Edward III. The constitution had grown 
 
 up amidst wars and rumours of wars. The events which 
 
 actually occurred in the reign of Henry VI are as much 
 
 a part of history, and of constitutional history, as the 
 
 events of any other reign. The statements relating to the 
 
 past which were then made are of no value if at variance 
 
 with the contemporary documents of the earlier time. 
 
 Creation of We know from records of the time of Henry VI, that 
 
 to hold 1 to t * ie Crown assumed in certain cases the power of giving 
 
 him and grants of precedence, and that the assumption passed 
 
 being lords without dispute. We know, on the other hand, that many 
 
 of the . statements were made which it may seem difficult to 
 
 manor of .... . . ~. 
 
 Kingston reconcile with documents of higher authority. Thus when 
 Lisle. John Talbot was created Lord and Baron Lisle by Henry 
 
 VI, we know from the charter itself 2 that the creation 
 was to him and his heirs being lords of the manor and 
 The tenure lordship of Kingston Lisle We know, further, that he 
 manor ne ^ tne manor an d lordship in fee, by conveyance from 
 his father, the Earl of Shrewsbury, and his mother, Mar- 
 garet, one of the coheirs of Elizabeth, daughter and heir 
 of Margaret the daughter of Warine the last Lord Lisle. 
 His mother Margaret, the wife of the Earl of Shrewsbury, 
 
 1 Rot. Chart., 25 & 26 Hen. VI, no. 31 (printed, p. 257). 
 
 2 lb., 21-24 Hen. VI, no. 23 (printed, pp. 244-246). 
 
THE HOUSE OF LORDS 117 
 
 had held the manor and lordship of Kingston Lisle in Chap. VII. 
 
 virtue of a partition of lands made between her and her 
 
 sisters and coheirs. The conveyance made to John Talbot 
 
 was ' to hold _ of the chief lord s of the fee by the services 
 
 due and of right accustomed.' The condition on which 
 
 he and his heirs were to be Barons and Lords Lisle 
 
 was therefore that of holding the lords hip and manor of 
 
 Kingston, and not of holding it in chief of the King. This 
 
 was a creation of a very remarkable character, but there 
 
 is no doubt whatever that it was actually made, and no 
 
 reason to doubt that the King had the right to make it. 
 
 When a history of the barony of Kingston Lisle, as Recitals 
 existing before the new creation, is set forth in the charter, barter: 
 it becomes open to criticism on historical principles, the new 
 Warine, Lord Lisle, it is asserted, and all his ancestors, ma( i e to 
 from time immemorial had had the name and dignity remove 
 of Baron and Lord Lisle, in right of the manor and respecting 
 lordship of Kingston Lisle. The alleged terms of the the ancient 
 
 r fc> fc> barony of 
 
 conveyance of the manor to John Talbot show that the Kingston 
 tenure of the manor was not supposed t o he of the King 
 in chief, as of the Crown. The barony, therefore, was, 
 according to the charter, not a barony by tenure in the 
 ordinary sense, but a baronyjajz-toiu re of an exceptional 
 character - a barony inherent in the blood of a particular 
 fajnily holding a particular manor of any person whatsoever- 
 Much labour has been expended with the object of showing 
 that the manor of Kingston Lisle was not in fact held 
 directly of the Crown by the family of Lisle, and that 
 the barony of Lisle was therefore never in fact a barony 
 by tenure 1 . As, however, it is nowhere stated in the 
 charter that the manor was held of the King, but the 
 contrary is implied in the document itself, the evidence 
 that the Lisles held of a 'mesne' (or intermediate) Lord, 
 however interesting from a genealogical and antiquarian 
 point of view, does not in any way invalidate the state- 
 ments made in the instrument. The jeaj ^question at issue 
 
 1 Third Rep. Dig. Peer, vol. ii. pp. 199-208. 
 
u8 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. VII. is whether one holding of a mes ne Lord could be a Baron 
 b y virtue of his tenure of particuj ar_lands. T hat ques tion 
 is answered in the affirmative in the charter, but with full 
 recognition of the fact that there were doubts and scruples 
 on the point. The outcome is, therefore, that nojsarony 
 by tenure ^ of a mesne L ord has ever been recognized in the 
 person of the possessor except in this one case. I n this 
 case, too a new"creation was made in order to meet the 
 objections of those who did not assent to the principle, 
 for which the Constitutions of Clarendon, at any rate, afford 
 no warrant. 
 
 It is, perhaps, reasonable to infer that the doctrine of 
 barony b^tenure_was_st ill so familiar, that -even 4ong^ tenure 
 of a mesneJLord was. in one instance at any rate, supposed^ 
 to be evidence of a right to a barony of j^pa rticular design" 
 nation It is not, however, impossible that the persons 
 now styled Barons and Lords Lisle were in previous times 
 tenants in chief of other lands, though they held the 
 manor of Kingston Lisle of a mesne Lord. It was pro- 
 bably to end this, among other doubts and difficulties, that 
 the new creation was made. 
 
 Though, as we have seen, the Crown interfered in many 
 instances with regard to the precedence of Earls and 
 Dukes, yet neither in ^this c ase n or in re lation to other 
 baronies is any precedence of one B aron over_ _another men- 
 tioned in the reign of Henry VI. John Talbot, Baron 
 and Lord Lisle was to have his seat in Parliaments and 
 Councils • amongst the other Barons of the Realm,' just 
 as Warine and his predecessors had had it, but no attempt 
 is made to define the exact position. It is probable enough 
 that 'ancienty' may have determined, at this time, the 
 relative position of the Barons, but, if so, it is quite clear 
 that the first writ of summons to Parliament could not 
 have been the one determining t est of a ncienty. Whatever 
 the precedence of any previous Lord Lisle may have been, 
 he must have held it on some ground different from that 
 of the date of a summons ; and the only reasonable con- 
 clusion is either that there was not as yet any definite rule 
 
 No definite 
 order of 
 precedence 
 mentioned 
 in this 
 charter, or 
 as yet 
 indicated 
 elsewhere. 
 
THE HOUSE OF LORDS 119 
 
 of precedence between Barons, or that, if there was, it Chap.VH. 
 depended on some principle not yet ascertained^ 
 
 In the reign of Henry VIII the precedence of Barons Precedence 
 (as well as of Peers of other ranks) according to their according 
 ' ancienty ' was recognized by Act of Parliament x (the to 
 consent of the King, however, being given only as an act recognized 
 of grace), but no definition or explanation of ' ancienty ' in . the 
 was set forth. In many cases probably a Baron of one Henry 
 family had allowed precedence to a Baron of another ^khou^ 
 family, for many generations, without thought or question explana- 
 of the original right, and for no other reason than that 
 his father had done likewise. It was only when a dispute 
 arose and was settled, and when the decision was recorded, 
 that any principle could be said to be established. 
 — The earliest case in which an express decision was given The De la 
 appears to be that of Thomas son of William West, Lord in ^ e case 
 De la Warr ; which occurred in the thirty-ninth year of the reign of 
 reign of Elizabeth 2 . His great grandfather Thomas, who the first in 
 had been summoned to Parliament in the third year of which an 
 
 express 
 
 Henry VIII, had by a first wife a son Thomas, a younger decision 
 son who died without issue, and four daughters. By a ^ s or f^ n n: 
 second wife he had three sons, Owen, George, and Leonard. 
 After his death, which occurred in February, 1525-6*, his 
 eldest son Thomas was summoned to Parliament. This 
 Thomas also died without issue in the year 1554. His 
 eldest brother of the half-blood, Owen, had already died 
 in the year 1551 3 , leaving two daughters but no male 
 issue. His second brother of the half-blood, George, had 
 also died in the year 1538 '\ leaving issue, William and 
 
 1 Stat. 31 Hen. VIII, cap. 10. 
 
 2 There is in the Third Rep. Dig. Peer (vol. ii. pp. 142-145) a long but 
 inconclusive disquisition on the barony of La Warr and the precedence 
 supposed to attach to it before it was enjoyed by the family of West, 
 but no reference is made to the later and very remarkable details set 
 forth below. 
 
 3 These dates are given in Collins's Peerage, vol. v. pp. 12-17, as 
 founded on the probates of the respective wills, and so far as they are 
 material, are confirmed by the documents mentioned below. 
 
120 CONSTITUTIONAL HISTORY OF 
 
 Chap. VII. another son. Leonard also had issue both male and 
 female. 
 
 In the time of the first mentioned Thomas, Lord 
 
 Lawarre, or De la Warr, the greater part of his lands 
 
 had been settled on his son Thomas in tail male, with 
 
 successive remainders in tail male to his three other sons. 
 
 Owen, George, and Leonard. Upon the death of the 
 
 second Thomas, without issue, the lands would, in the 
 
 absence of any settlement, have descended to his sisters 
 
 of the whole blood, or their representatives, to the exclusion 
 
 of his half brothers. After the death of George, however, 
 
 in 1538, and of Owen in 155 1, George's son William 
 
 became the heir in tail male according to the terms of 
 
 the settlement. 
 
 William William, being then a very young man, and being 
 
 in' T 'i male anx i° us to expedite his succession to the inheritance, 
 
 to the lands mixed some poison in a cup with drink for his uncle Thomas, 
 
 barony, Dut na ^ ^ G misfortune, or the good fortune, to be detected 
 
 disabled before it was administered. Upon complaint made in 
 
 Act of' Parliament by his uncle an Act was passed by which 
 
 Parliament, William was disabled for life from claiming or enjoying 
 
 reign of ' any dignity or lordship in any right or estate by descent, 
 
 EdwardVI. remainderj or otherwise V 
 
 Attainted In the troubled times which ensued during the reign 
 
 for high Q f Queen Mary, William suffered attainder for high treason, 
 
 treason in ^ ' ( < & 
 
 the reign of and this further complicated the position. He was, how-. 
 
 Mary 1 ever, in favour with Queen Elizabeth, and at the beginning 
 of her reign we find him corresponding with Secretary 
 Cecil in relation to his affairs. His statement can, perhaps, 
 best be given in the words of his letter to Cecil of March 19, 
 I55 8 ~i559 :— 
 
 1 1 1 Rep. 1. The title of the Act is given among the ' Private Acts ' 
 of 3 & 4 Edward VI in the Statutes at large, but it was in fact never 
 certified into the Chancery, and does not appear on the Parliament 
 Roll either of 2 & 3 or of 3 & 4 EdwardVI. Its validity, however, 
 was never questioned, and it is mentioned in the Calendar of Acts 
 passed in the Session in the Lords' Journals of 3 Edward VI (vol. i. 
 P. 389). 
 
[V N - y ) 
 
 THE HOUSE OF LORDS "V^C ^LiFORNl^ ^ I21 
 
 'May it please you to understand that where your Chap. VII. 
 
 pleasure is to know what lands I have in possession and E lains 
 
 in reversion and who be my heirs, you shall perceive that his position 
 
 .to Cecil 
 
 my late uncle had licence by Act of Parliament to dispose on the 
 his lands at his will and pleasure during my natural life, accession of 
 
 7 . ,. r Elizabeth. 
 
 who in his last will gave unto me yearly during my hie 
 £350 in annuity, with the manors of Offington and Ewhurst 
 and the parks to the same appertaining, with a house in 
 London, being together of the value of £132 by the year. 
 The residue of his manors, lands, and tenements he willed 
 to his executors to be and go to the performance of his 
 last will and testament during my life, and after my 
 decease the whole to remain to my son according to the 
 remainder in the said Act expressed, who cannot receive 
 the same unless it might please the Queen's Majesty of her 
 mere goodness to restore me and my children in blood by 
 Act of Parliament. And if he be not restored it comes by 
 the said Act to my brother and to his heirs males lawfully 
 coming, and for want of such issue to my uncle [Leonard] 
 West and his heirs male lawfully begotten, who by reason 
 of my said attainder are my next heirs. And also my 
 living before expressed by meane of my attainder came 
 unto the Queen's hands that dead is. And in the time of 
 my trouble Her Majesty gave unto my wife for the relief 
 of her and her children one hundred marks yearly out 
 of the Exchequer, and did let to farm to my said wife 
 the said manors of Offington and Ewhurst with the house 
 in London, paying yearly the said sum of ^132 for the 
 same, which grant was but during the Queen's pleasure, 
 and now by her death frustrate and void. So that is 
 all the land I have in possession, paying for it yearly yet 
 the foresaid sum. The rest of my uncle's lands that went 
 to the performance of his will do yet remain to that use, 
 the doing whereof the executors presently after my uncle's 
 death, by earnest request, resigned over to me, finding 
 them two sureties which be bound for me to save and 
 keep them harmless, and yearly to yield unto them a true 
 and a just account of my doings in that behalf, the which 
 
CONSTITUTIONAL HISTORY OF 
 
 Chap. VII. estate I assigned over to my sureties for their safety 
 immediately upon the receiving of it out of the executors' 
 hands, the same yet resting with them for that my uncle's 
 will is not fully performed. And after the performation 
 thereof the profits of the said lands yearly to be by the 
 said executors equally divided to my uncle's kinsfolk at 
 the discretion of the said executors. And thus, good 
 Mr. Secretary, is both the whole state of my living and 
 the order of my uncle's will. Beseeching you for that 
 my special trust is in you so to stand my good Master 
 in my cause to the Queen's Highness, that I may be able 
 the better to serve Her Majesty and have just cause (as 
 I have already) to pray for you, life enduring. From my 
 poor house the 19th of March. 
 
 Yours always to command, 
 
 Wyllyam West 1 . 
 
 Restored 
 in blood 
 by Act of 
 Parlia- 
 ment, but 
 his life 
 disability 
 as to 
 
 inheritance 
 not 
 removed. 
 
 The barony 
 ofDela 
 Warr was 
 in abey- 
 ance 
 
 according 
 to modern 
 ideas, 
 but the 
 doctrine of 
 abeyance 
 
 William's application was successful, and an Act was 
 passed for his restitution in blood in the fifth year of 
 Elizabeth 2 . The attainder for high treason in the reign 
 of Mary is recited, but no reference is made to the Act 
 of Edward VI by which William West was disabled. He 
 is described as the eldest son of Sir George West, Knight, 
 whom we know to have been dead from William's letter. 
 Sir George is described as ' son and next heir male unto 
 the Right Honourable Sir Thomas West, Knight, deceased, 
 late Lord Lawarre, father unto the Right Honourable 
 Sir Thomas West, Knight, late Lord Lawarre, also 
 deceased V 
 
 Upon the death of the second Thomas Lord De la Warr 
 (of those above mentioned) it must now be asked what 
 became of the dignity ? According to the legal doctrines 
 of a later period it would appear to have fallen into 
 abeyance between the daughters of Thomas's eldest half- 
 brother Owen. If it did not so fall into abeyance, it 
 must either have followed the lands or have reverted to 
 
 1 State Papers, Domestic, Eliz., 1559, vol. iii. 
 
 2 Rot. Pari., 5 Eliz., no. 38. 
 
THE HOUSE OF LORDS 123 
 
 the Crown, and have been at the absolute disposition of Chap. VII. 
 the Sovereign. When the De la Warr case was argued, was not yet 
 it was already becoming an accepted doctrine that the recognized, 
 descent of the dignity of Baron differed from the descent 
 of lands held in fee simple. When lands were so held, 
 and the holders died without issue, leaving sisters of the 
 whole-blood, and a brother of the half-blood, the sisters 
 inherited to the exclusion of the half-brother. ' Of 
 dignities,' however, ' whereof no other possession can be 
 had but such as descend to a man and his heirs, there 
 can be no possession of the brother to make the sister 
 to inherit, but the younger brother being heir to the 
 father shall inherit the dignity inherent to the blood, as heir 
 to him that was first created noble V It seems to follow 
 that the daughters of the first mentioned Thomas, sisters 
 of the whole-blood to the second Thomas, had no claim 
 to the dignity, though in the absence of a settlement they 
 would have inherited the lands. It is, however, clear from 
 subsequent events not only that no title to the barony 
 was supposed to exist in them or their representatives, 
 but also that no such title was supposed to exist in the 
 daughters and coheirs of Owen, who would, if living, have 
 succeeded to the dignity as heir. 
 
 Nine years after his restitution in blood, William was William 
 summoned to Parliament as Lord De la Warr 2 . This .SSL^ 
 
 summoned 
 
 was regarded as a new creation, and William took his to Parlia- 
 seat in the House of Lords as a puisne Baron :i . As, 1 OT ^ D e 
 however, the designation of De la Warr was accorded l aWar r: 
 to him, it must certainly have been supposed that no right creation, 
 to it existed anywhere if not in him and his heirs. 
 
 William died leaving a son Thomas who was under no 
 
 1 Co. Li//., 15 b. Some doubts on the subject appear to have been 
 entertained as late as the year 1641. It was ordered by the House of 
 Lords that the Judges should deliver their opinions on the point ; 
 and they delivered their unanimous opinion that there could not be 
 a ' Possessio frat?'is, in point of honour.' Journals of the House of 
 Lords, 29 Jan. and 1 Feb. 1640-1641 (vol. iv. pp. 147, 149-150). 
 
 2 Dugdale, Summons to Parliament, p. 526 (14 Eliz.). 
 
 3 II Rep. 1. 
 
124 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. VII. 
 
 A sum- 
 mons at 
 this time 
 held to 
 create an 
 hereditary 
 peerage : 
 the views 
 of Sir 
 Edward 
 Coke. 
 
 disability of any kind. He was free from all corruption 
 of blood by virtue of the Act of the fifth year of Elizabeth. 
 The disability by which his father was affected through 
 the Act of Edward VI was for life only, and in no way 
 affected himself. He was summoned to Parliament as 
 Lord de la Warr, and it is clear from subsequent events 
 that the summons to his father was held to be the creation 
 of a heritable dignity. It is clear also that this was 
 generally considered good law in the time of Elizabeth, 
 as it finds its place in Coke's Institutes, though not in 
 the great work of Littleton who lived in the reign of 
 Edward IV. ' When a man is called to the Upper House 
 of Parliament by writ,' said Coke, 'he is a Baron and hath 
 inheritance therein V If a man be * called by writ to the 
 Parliament he hath a fee simple in the barony without 
 any words of inheritance.' ' This writ hath no operation 
 or effect until he sit in Parliament, and thereby his blood 
 is ennobled to him and his heirs lineal, and thereupon 
 a Baron is called a Peer of Parliament V 
 
 It will be observed that there is a very curious con- 
 tradiction in Coke's own words a contradiction which is 
 of. special importance as he was the counsel of Thomas, 
 son of William, Lord De la Warr, in a successful claim 
 of precedence 3 . It is obvious that, if a mans blood was 
 ennobled only to him and his heirs lineal, he had not 
 a fee simple in the dignity, and these very loose ex- 
 pressions, when used by a great lawyer, go far to show 
 that the law, as it subsequently existed, had not yet been 
 quite clearly defined. Coke's own view, indeed, that the 
 possessio fratris did not apply to the descent of a dignity 
 is only a statement in another form, that in a dignity there 
 was no fee simple. 
 
 The claim of Thomas, son of William Lord De la Warr, 
 
 1 Co. Litt., 9 b. 
 
 2 Co. Litt., 1 6 b. This was, of course, law in Coke's time, but a 
 reference which he gives in support shows clearly that it was not law 
 in the latter part of the reign of Edward III. 
 
 3 ii Rep. 3. 
 
THE HOUSE OF LORDS 125 
 
 was embodied in a petition to Queen Elizabeth, in which Chap. VII. 
 he prayed to have the same place in Parliament as his Thomas, 
 great grandfather, Thomas, between the Lord Willoughby the son of 
 de Eresby and the Lord Berkeley. The petition was re- held to ' 
 ferred by her to the House of Lords. A committee was £ a ^ e m " th 
 then named. The committee had the assistance of the older 
 Chief Justice of England, the Chief Justice of the Court w 5[ h 01 JJ e . 
 of Common Pleas ; and other Judges, and, as has already cedence, as 
 been mentioned, Coke was counsel for Lord De la Warr, the new 
 and won the case. It was objected, in the first place, that dl s nlt y- 
 the disability of William by virtue of the Act of Edward VI, 
 prevented the descent to his son Thomas of the dignity 
 enjoyed by William's grandfather. As, however, it was 
 distinctly expressed in the Act that William's disability 
 was personal and for life only, the Judges held that 
 Thomas might claim as heir to him or to any of his 
 ancestors. It was objected, in the second place, that 
 William had accepted a new creation from the Queen, and 
 that the new dignity had descended to his son Thomas, and 
 could not be waived. The Judges held that on William's 
 death both the dignity enjoyed by his grandfather and 
 the new dignity conferred upon himself descended to his 
 son Thomas. The Committee reported accordingly to 
 the House of Lords, and the House of Lords to the 
 Queen. In the end ' the Lord De la Warr in his Parlia- 
 ment robes was by the Lord Zouche (supplying the place 
 of the Lord Willoughby then within age), and the Lord 
 Berkeley, also in their robes, brought into the House and 
 placed in his said place . . . Garter King of Arms attending 
 upon them and doing his office V 
 
 No more solemn recognition of Lord De la Warr's right The old 
 could have been made ; yet it is not manifest on what b d ^. a of , 
 principle the precedence was allowed. It is perfectly clear tenure 
 that the summons of William followed by a sitting in not yS" Y 
 Parliament, was held to create an hereditary peerage, extinct. 
 
 1 Journals of the House of Lords, 14 Nov. 1597 (vol. ii. p. 197), and 
 11 Rep. 1-3. 
 
126 CONSTITUTIONAL HISTORY OF 
 
 Chap. VII. although he could not. in consequence of his disability, have 
 had any lands in barony. The grounds on which it was 
 held that his son had the barony of his grandfather can 
 only be conjectured. 
 
 According to more recent doctrines the barony enjoyed 
 by the first Thomas was in abeyance, and the third 
 Thomas (of those above mentioned) had no right to it. 
 According to the alternative theory (sometimes advanced) 
 that a barony descending to coheirs lapsed to the Crown, 
 the third Thomas had still no right to it. and the new 
 creation in favour of his father gave him his only claim 
 to be a Baron. If, again, an old barony, revived after 
 reversion to the Crown, carried the ancient precedence, 
 William himself would have had it, notwithstanding his 
 disability to inherit ; and his son's petition would have 
 been unnecessary. The only clue that we have to the 
 thoughts which passed through the minds of the Judges 
 and of Coke is to be found in the references which Coke, 
 in his commentaries on Littleton, gives in relation to the 
 subject ; and the only reference of importance is to the 
 report of the forty-eighth year of Edward III already 
 noticed '. In that report, tenure by barony is distinctly 
 shown to be essential in the case of any one claiming 
 privilege as a Baron. It would therefore seem to follow 
 that in relation to an ancient barony, or barony by pre- 
 scription, as distinguished from one newly created, the 
 lawyers had not even yet shaken themselves free from the 
 doctrine of barony by tenure. Thomas, son of William, 
 Lord De la Warr, held the lands of his ancestors, and it is 
 extremely difficult to see any other reason for assigning 
 to him the precedence which his ancestors had enjoyed. 
 It may, perhaps, be objected that he did not hold the 
 lands in barony — that he did not hold them in chief, as of 
 the Crown. This is true, in a sense, because tenant-in-tail 
 held in theory of the donor or his heirs, and not of the 
 Crown directly. When, however, the donor was dead, and 
 
 1 Year Rook, Mich., 48 Ed. Ill, fo. 30. no. 18. 
 
 
THE HOUSE OF LORDS 127 
 
 the coheirs were incapable of sitting in Parliament, it does Chap. VII. 
 not seem unreasonable that the tenant-in-tail male, being 
 of the blood of the original tenant-in-chief, should enjoy 
 the dignity and privileges and perform the services 
 attaching to the lands. 
 
 There is yet another point in relation to this case of The place 
 Lord De la Warr which seems worth attention. It is said " a X y^ r e 
 in the Journals of the House of Lords, that the place in Parlia- 
 of Thomas, Lord De la Warr, the grandfather of William, appeared 
 appears by record l . The question which naturally arises ' b y 
 is : what record ? Coke tells us that when issue was joined question 
 in any action, whether a person was a Baron or not. it ^tunfof 
 could not be tried by a jury, but must be tried ' by the the record. 
 record of Parliament, which could not appear unless he 
 were of the Parliament V The ' record of Parliament ' 
 might at first sight appear to be in early times the Rolls 
 showing the proceedings in Parliament, in later times the 
 Journals of the House of Lords. It is not, however, quite 
 clear from Coke's Reports in what sense he at any rate, 
 used the expression. If persons ' be Lords of Parliament,' 
 he says. ' it appears by record and therefore by record, 
 viz. by the King's writ, it ought to be certified V Else- 
 where he uses language which also lacks precision : ' If 
 a Baron, Viscount. Earl, or other Lord of Parliament, and 
 Peer of the Realm be plaintiff in any action, and the 
 defendant will plead that the plaintiff is not a Baron, 
 Viscount, Earl, &c, this . . . shall be tried by the record 
 in Chancery which imports by itself solid truth V 
 
 The Chancery was regarded as an office of the Parlia- The Rolls 
 ment, and, before the Journals of the House of Lords ciose^the 
 began to be kept in a separate form, in the reign of Roll . s of 
 Henry VIII, the record in Chancery might have been ment, and 
 interpreted to mean either the Roll of Parliament or the t T he , r 
 
 Journals of 
 
 1 Journals of the House of Lords, 14 Nov. 1597 (vol. ii. p. 196). 
 
 2 Co. Litt., 16 b. 
 
 3 6 Rep. 53, the Countess of Rutland's case in the Star Chamber, 
 Mich., 3 James I. 
 
 4 12 Rep. 96, the Countess of Shrewsbury's case, 10 James I. 
 
128 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. VII. 
 
 the House 
 of Lords. 
 
 Proofs of 
 precedence 
 of Barons : 
 practically 
 none before 
 the reign 
 of Henry 
 VIII. 
 
 Roll of Letters Close, on which the writs of summons to 
 Parliament were enrolled. After that time, the Rolls 
 of Parliament began to be merely enrolments of Acts of 
 Parliament without any account of the proceedings. In 
 relation to individual Peers, therefore, it might seem that 
 in Coke's time the record in Chancery could have been 
 only the Roll of Letters Close. It must, however, be 
 remembered that, when he wrote, the change in the char- 
 acter of the Parliament Rolls was comparatively recent. 
 A writ of summons enrolled on the Close Roll affords no 
 evidence of a sitting in the House of Lords, as do some- 
 times the earlier Rolls of Parliament ; and Coke himself 
 says, 'this writ hath no operation or effect until "the 
 person summoned " sit in Parliament.' It would, therefore, 
 seem erroneous to suppose that the record by which the 
 issue could be tried is the Roll of Letters Close alone, 
 though this appears to be the view taken of Coke's words 
 in some of the text books \ 
 
 A far more precise and intelligible statement of the law 
 was made in later times. When a party in a cause claims 
 to be a Peer by patent the claim is triable by the patent 
 itself; when by descent or prescription, the claim is triable 
 by a jury ; when by writ ' he is not a Peer until he has 
 taken his seat : that is to be tried by the record of Par- 
 liament *.' That which has to be tried, therefore, is clearly 
 not whether he was summoned, but whether he sat. 
 
 It seems to follow that the record to which reference 
 is made in the Journals of the House of Lords of the 
 year 1597, in relation to Lord De la Warr, is either the 
 Parliament Roll or the earlier journals of the House. As 
 Thomas, Lord De la Warr, the grandfather of William 
 was living when the journals of the House had begun to 
 show the sittings in order of precedence, there can be little 
 doubt that the place of Thomas in Parliament was that 
 which was assigned to him in the Journals of the Lords. 
 
 1 E.g. Hubback, Evidence of Succession. 
 
 2 2 Barn, and Cres. 871-875. 
 
THE HOUSE OF LORDS 129 
 
 This fact, however, brings us to a very important con- Chap. VII. 
 elusion with regard to the precedence of Barons. The 
 Journals of the Lords commence only in the reign of 
 Henry VIII, and the first day on which the names of 
 those present are set down in order is February 6, in 
 the third year of the reign. It would, therefore, seem to be 
 impossible to prove the precedence of a Baron as existing 
 in earlier times, and no question of precedence of Barons 
 appears in fact to have been expressly decided before that 
 date. 
 
 It was, of course, well understood that Dukes had pre- 
 cedence of Marquesses, Marquesses of Earls, Earls of 
 Viscounts, and Viscounts of Barons ; but the creations of 
 Dukes, Marquesses, Earls, and Viscounts were by solemn 
 investiture, by charter, or by letters patent. The Barons, 
 however, were in a different position. It is, without doubt, 
 possible to show from the Rolls of Letters Close that the 
 ancestor of one Baron had an enrolled summons to Par- 
 liament before the ancestor of another, but this is not 
 necessarily a proof of precedence in all cases, though it is 
 commonly accepted as sufficient. The names of the Barons 
 do not always appear in the same order on those Rolls, 
 and it is sometimes possible to show that a Baron sat in 
 a Parliament when the Roll fails to show his summons. 
 
 The case of Thomas, son of William Lord De la Warr, Special im- 
 is thus in many ways a landmark in the history of the P° ^De 
 peerage. It is one of the most striking cases in which la Warr 
 a claim of precedence on the part of a Baron was settled ; 
 it is, perhaps, the first case in which a mere summons to 
 Parliament, followed by a sitting, was held to confer an 
 hereditary dignity ; and it is closely associated with Sir 
 Edward Coke, whose statements concerning the law on 
 this subject appear to have been the ground of subsequent 
 decisions. 
 
 The tree of the later law on barony by writ was now Barony by 
 planted and destined to bear fruit in future reigns. Some ^Tciared 
 time, however, was yet to elapse before the doctrine of to be no 
 barony by tenure was declared to be no longer in force, 
 
 K 
 
130 CONSTITUTIONAL HISTORY OF 
 
 Chap. VII. and even before the doctrine of hereditary peerage by writ 
 existence was fi na Uy accepted as a principle. In the year 1669, 
 in 1669. when Benjamin Mildmay was claiming the barony of 
 Fitz-Walter in opposition to Robert Cheeke, there as 
 a discussion on the subject in the Privy Council, be e 
 which the matter was brought by order of the King. Then 
 barony by tenure ' was found to have been discontini 
 for many ages, and not in being, and so not fit to 
 revived, or to admit any pretence of right to success! 
 thereupon V The Council had the assistance of Sir Jo 
 Kelyng, Chief Justice of England ; Sir John Vaugh; 
 Chief Justice of the Common Pleas ; Sir Matthew Ha 
 Chief Baron of the Exchequer ; the King's Chief Serje?- 
 at-Law, and the Attorney and Solicitor- General, 
 opinion has, therefore, the highest legal authority of 
 time, and we may feel sure that a few years after 1 
 restoration of Charles II, the only recognized roots .• 
 title to a barony were writ of summons to Parliament, an 
 creation by letters patent or charter. 
 
 This most important Order in Council, however, is for 
 many reasons of little value in relation to earlier times. 
 The words ' many ages ' are too vague to be of any prac 
 tical use in history. There had been two great revolution 
 in less than a quarter of a century, and the events of the 
 earlier part of the reign of Charles I may well have 
 seemed ages apart from the events which occurred after 
 the Restoration. The whole theory of tenure had also 
 been changed. Tenure by military service had been swept 
 away by the men of the Commonwealth ; and the men 
 of the Restoration had followed their example. When 
 tenure by military service was gone, barony by tenure 
 had become an anachronism, and the opinions of Kelyng, 
 Vaughan, and Hale were only the natural expression of 
 the sentiments of the time. From the historical point of 
 view the most remarkable fact is that there is no judicial 
 
 1 Order in Council, 19 Jan. 1669, Privy Council Office (printed in 
 Rep. Dig. Peer, vol. iv. app. iv. p. 1008). 
 
THE HOUSE OF LORDS 131 
 
 decision adverse to barony by tenure, until a statute had Chap.vii. 
 put an end to tenure by barony *. 
 
 In the year 1674 the judges expressed an opinion that Hereditary 
 G -vase Clifton (who was summoned to Parliament in the ^^orl 
 i. th year of the reign of James I), was by virtue of the fully 
 writ of summons and sitting in Parliament > a Peer and j n jf-^ 2 
 fcron of this kingdom, and his blood thereby ennobled,' 
 d that ' his honour descended from him to Katharine, 
 s sole daughter and heir, and successively after several 
 ascents to the petitioner' who was his great grand- 
 aughter. The House of Lords thereupon resolved 'that 
 ^e claimant (Katharine O'Brien) had right to the barony 
 Clifton 2 .' Even this was rather a decision upon a par- 
 ilar case than the enunciation of a general principle 
 appears, however, to have been a sufficient precedent 
 r all subsequent cases in which the circumstances were 
 he same, but to have left open the question of the period 
 .t which a summons to Parliament followed by a sitting 
 first operated to create an hereditary barony. 
 
 The doctrine that a barony may be in abeyance, for an The 
 indefinite time, between coheirs or their representatives abeyance° f 
 ioes not appear to have arrived at maturity when Sir had not 
 Edward Coke wrote his Institutes. He had an idea that maturity 
 the King might confer the dignity upon any daughter j n Coke's 
 of an Earl or Baron who might be one of the coheirs 3 , 
 but he does not distinctly affirm that the King might not 
 confer it on a stranger in blood. He does not use the 
 word abeyance in relation to this subject, and he does 
 not say that when there are two or more coheirs, and 
 one alone, or a representative of one alone survives, the 
 
 1 The question was raised again as late as 1 861, in the Berkeley 
 Peerage case, when, after reference to them by the Crown, the Lords 
 held that a writ of summons to Parliament could not be claimed on the 
 ground of holding certain lands. 
 
 2 Journals of the House of Lords, 7 Feb. 1673-1674 (vol. xii. 
 pp. 629-630). 
 
 3 Co. Litt., 165 a. The case which he cites has been mentioned, 
 and its effect described above, p. 91. 
 
 K 2 
 
 time. 
 
132 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. VII. 
 
 Case of 
 the Earl of 
 Oxford : 
 a barony 
 descending 
 to co-heirs 
 held to be 
 absolutely 
 at the 
 disposal 
 of the 
 Sovereign 
 in the 
 reign of 
 Charles I. 
 
 one or the representative of the one becomes entitled 
 to the dignity. It is therefore necessary to seek in 
 some more recent period for the full development of the 
 idea. 
 
 A little later — at the beginning of the reign of Charles I 
 — the doctrine had not made further progress. A very 
 important case was then decided with regard to the earl- 
 dom of Oxford, and the baronies of Bolbecke, Sandford, 
 and Badlesmere. In the sixteenth year of the reign of 
 Richard II, the earldom had by Act of Parliament been 
 conferred in tail male upon Aubrey de Vere, after the 
 attainder of his nephew Robert in the eleventh year. 
 From this Aubrey the earldom descended, according to 
 the limitation, to another Robert de Vere, who was held 
 to be the rightful heir in the year 1626. The baronies, 
 however, not being included in the entail, descended, 
 in a different manner, to the heirs general. Aubrey had 
 a son Richard who had two sons, John and Robert. 
 John had a son John, who had issue a son John, and 
 three daughters, Dorothy, Elizabeth, and Ursula. The last 
 mentioned John succeeded, in his turn, to the earldom, 
 but died without issue. The earldom then fell, according 
 to the limitation, to the male heir of Richard's son Robert, 
 as was reported to the House of Lords by the Lord 
 Chief Justice of England, on behalf of himself and other 
 Judges 1 . 'And as touching the baronies,' to use their 
 own words, 'their opinion is that the same descended to 
 the general heirs of John the fourth Earl of Oxon, who had 
 issue, John the fifth Earl of Oxon, and three daughters, one 
 of them married to Lord Latimer, another to Winckfield, 
 and another to Knightly: which John, the fifth Earl, dying 
 without issue, those baronies descended unto the said 
 daughters as his sisters and heirs; but, those dignities 
 being entire and not dividable, they became uncapable of 
 the same, otherwise than by gift from the Crown ; and 
 
 1 Journals of the House of Lords, March 1, 1625-1626 (vol. iii. 
 p. 510), and Collin s's Collections, pp. 269-275. 
 
THE HOUSE OF LORDS 133 
 
 they, in strictness of law, reverted unto and were in the Chap. VII. 
 disposition of King Henry VIII V 
 
 There is no sign of the doctrine of abeyance in these 
 words. When the dignities reverted to the King, it is 
 obvious that they were at his absolute disposal. He could 
 renew them or not at his pleasure, and give them to 
 whomsoever he pleased. The coheirs were ' uncapable ' of 
 inheriting them, and if any one of the coheirs received 
 any one of them it would be not in virtue of any right but 
 as a gift (or in other words a new creation) from the 
 Crown. The evidence, moreover, that there was as yet 
 no conception of the principle of abeyance does not rest 
 here. The Judges added that the Earls of Oxford who 
 had succeeded John the fifth Earl had assumed the titles 
 of the baronies in various documents, and their eldest 
 sons, while they lived, had been styled Viscount Bolbecke. 
 It seems, therefore, to be as clear as anything can be that 
 neither in the popular ideas of the day, nor in the tra- 
 ditions of the family of de Vere, nor in the learning of 
 the Judges, had that which is now called 'abeyance' any 
 place. The Lords themselves accepted the opinion of the 
 Judges, reporting to the King that the baronies ' are wholly 
 in your Majesty's hands to dispose at your own pleasure 2 .' 
 
 In the reign of Charles II, however, there does at length Something 
 appear to be an acknowledgement by the King, not only principle of 
 that when a barony descends to female coheirs he may abeyance 
 declare which of them shall have the dignity, but also by be P fire? 
 implication that his power in relation to the barony does yecognized 
 
 11 11 1 • 11. . ln the case 
 
 not extend beyond the coheirs and their representatives, of Lord 
 
 Thomas, Lord Windsor, died in the troubled times of ^^nof 
 
 Charles I without issue. He had two sisters, the elder of Charles II. 
 
 whom (Elizabeth) married Dixie Hickman and had issue, 
 
 a son Thomas. Immediately after the Restoration the 
 
 services of the Windsor family were rewarded by the 
 
 restitution to Thomas Hickman of the barony of Windsor. 
 
 1 Journals of the House oj Lords, March 20, 1625-1626 (vol. Hi. p.535). 
 
 2 lb., April 5, 1626 (vol. iii. p. 552). 
 
134 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. VII. 
 
 According 
 to a recital 
 in his 
 patent of 
 restitution, 
 it was for 
 the King to 
 declare 
 which of 
 two coheirs 
 should 
 enjoy a 
 dignity. 
 
 There was 
 no express 
 legal 
 
 This was effected by letters patent which Dugdale pro- 
 fesses to have seen \ and which Collins cites without any 
 definite reference. There is no doubt that they did actually 
 pass the Great Seal, though it is difficult to find an 
 enrolment of them. On June 18, 1660, the new Lord 
 Windsor ' brought in [to the House of Lords] his patent 
 of restitution to the title and degree of a Peer of this 
 Realm, which was read. And he took his place as Lord 
 Windsor V 
 
 The effect of the patent is set out with sufficient clear- 
 ness in the contemporary Docket Book of the Privy Signet 
 Office, an entry in which appears in the following words : — 
 ' Lord Windsor. — A Grant (reciting that Henry Windsor 
 had and enjoyed the dignity of Baron Windsor to him and 
 his heirs and that he had issue Thomas, Lord Windsor, his 
 son and heir [who died without issue] and two daughters, 
 the eldest whereof married Dixy Hickman, Esq., who are 
 both deceased, leaving issue Thomas Windsor alias Hick- 
 man their son, who now enjoys a great part of the ancient 
 patrimony of the Lord Windsor, and reciting that it be- 
 longeth to his Majesty to declare which of the said coheirs 
 shall enjoy the dignity of their ancestors) of restoration 
 and confirmation of the said Barony and of the title and 
 dignity of Baron Windsor, which the said Henry and 
 Thomas successively enjoyed, unto the said Thomas Wind- 
 sor alias Hickman and his heirs, in the place of the said 
 Lord Windsor, To hold to him and his heirs for ever, and 
 to have the same precedency and place in Parliament and 
 elsewhere within the Kingdom of England as the said 
 Henry and Thomas Barons Windsor (whilst they lived) 
 successively enjoyed, and all other dignities and pre- 
 eminences to a Baron of England belonging 3 .' 
 
 Even in this case the contemporary Index to the Docket 
 Book describes the patent as a ' creation,' and thus shows 
 
 1 Dugdale, Baronage, vol. ii. p. 309. 
 
 2 Journals of the House of Lords, June 18, 1660 (vol. xi. p. 67). 
 
 3 Signet Office Docket Book, June, 1660. 
 
THE HOUSE OF LORDS 135 
 
 how new was the idea out of which has sprung the modern Chap. VII 
 doctrine of abeyance. If, however, it only belonged to the decision on 
 King ; to declare which of the coheirs should enjoy the the point 
 dignity of their ancestors,' it would appear that the dignity else of 
 was now thought to be in the blood of the coheirs, and J*** 
 
 ,1 71^ 1. Windsor, 
 
 was not held to have reverted to the Crown as at an earlier 
 
 time. Still it must not be forgotten that the words of the 
 Patent do not embody any judicial decision. The Journals 
 of the Lords are silent, except in so far as they tell how 
 the Patent was brought into the House. It was by the 
 grace and favour of the Sovereign, and not by any opera- 
 tion of law, that Lord Windsor gained his dignity and 
 place in Parliament, and there is still no trace of the 
 doctrine that upon the death of all the coheirs but one, 
 or the extinction of all their lines but one, the surviving 
 coheir or representative has a right to the barony. 
 
 It was not until the year 1 695 that this right was The right 
 definitely though not unanimously acknowledged. In ofa . ,. 
 
 J ° J ° survivor of 
 
 February of that year, a motion was made in the House coheirs to 
 
 of Lords to appoint a day for the consideration of some \ ™° u ^ 
 
 points which had been raised in relation to the descent acknow- 
 
 ledp'cd bv 
 
 of baronies by writ. The matter was debated on the the Lords 
 following March 19. The question was then put un * lJ l6 95> 
 ' whether, if a person summoned to Parliament by writ, not unani- 
 and sitting, die leaving issue two or more daughters, who mous y ' 
 all die, one of them only leaving issue, such issue has 
 a right to demand a summons to Parliament.' It was 
 resolved in the affirmative l . Even then, however, some 
 of the Lords dissented, being of opinion that the barony 
 still remained at the King's disposal. As has already been 
 shown, they had, beyond doubt, the earlier precedents in 
 their favour. In later times, nevertheless, the resolution of 
 the majority of the Lords has been held to be law, and the 
 doctrine then asserted has been attributed to previous 
 ages. 
 
 1 Journals of the House of Lords, March 19, 1694- 1695 (printed, 
 vol. xv. pp. 552-553). 
 
136 CONSTITUTIONAL HISTORY OF 
 
 Chap. VII. In the year 1839 a barony was called out of abeyance 
 
 Later state- which was represented as having been in abeyance for no 
 
 ments as less than four hundred and thirteen years. In the Minutes 
 
 doctrine of of Evidence given before the Committee of Privileges, to 
 
 the baro^ wnom tne Petition of Thomas Stonor claiming to be senior 
 
 of Camoys, coheir to the Barony of Camoys was referred, appears ' the 
 
 1 39 * unanimous opinion of the Judges,' as delivered by the Lord 
 
 Chief Justice of the Court of Common Pleas (Sir. N. Tindal) 1 . 
 
 He laid down the following general rule as being of great 
 
 antiquity : — ' In the case of a barony descendible either to 
 
 the heirs general or the heirs of the body, if the Baron die, 
 
 leaving only daughters, or sisters, or other coheirs, the 
 
 barony is in abeyance so long as more than one of such 
 
 coheirs is in existence, but so, nevertheless that the Crown, 
 
 the Sovereign of honour and dignity, may, at any time 
 
 during such abeyance, determine it by conferring the 
 
 dignity upon whichever of the coheirs it pleases ; but if 
 
 the Crown do not exercise such prerogative, and the 
 
 lines of all the coheirs but one become extinct, then the 
 
 abeyance is at an end, and such only surviving coheir is 
 
 entitled, as a matter of right, to the enjoyment of the 
 
 dignity.' 
 
 Dubious The Chief Justice was alone responsible for the reasons 
 
 cases used ass jcrned, and presumably also for the actual words of 
 
 in support : «• r J 
 
 the barony the report. He, therefore, may have introduced the very 
 well 10 " 1 dubious cases upon which he relied as precedents. He 
 said, for instance, that Henry VI, 'in the case of the Lord 
 Cromwell dying without issue male and leaving several 
 daughters, preferred the youngest.' The statement is in no 
 sense correct. The last Lord Cromwell of the family in 
 question died leaving his sister Maud his heir. She married 
 Sir Richard Stanhope and had issue two daughters. Maud 
 and Joan. The second daughter, Joan, married Sir 
 Humphrey Bourchier and he was summoned to Parlia- 
 ment, in the second year of the reign of Edward IV, but 
 apparently not before, as Humphrey Lord Cromwell, 
 
 1 Minutes of Evidence, as above, pp. 314-321 (504-511). 
 
THE HOUSE OF LORDS 137 
 
 'chivaler 1 .' He was also summoned in the sixth and ninth Chap. VII. 
 years of the reign of Edward IV as Humphrey Cromwell, 
 'chivaler 2 ,' and in the forty-ninth year of the reign of 
 Henry VI, as Humphrey Bourchier de Cromwell, 'chivaler 3 .' 
 There is nothing whatever to show that the barony was 
 supposed to be in abeyance between the two daughters of 
 Maud, or that the King had not absolute power to dispose 
 of it as he pleased, or to create a new barony of the same 
 name. 
 
 The Chief Justice also asserted that ' John Grey, the The 
 descendant of one of the coheirs of Edward Charleton, charleton 
 Lord Powys, was summoned to Parliament in the twenty- de Powys- 
 second year of Edward IV, after the attainder and before the 
 restoration in blood of John, Lord Tiptoft, the other coheir, 
 enjoying, upon that writ of summons, the seat and precedence 
 of his ancestor.' This statement again is not borne out by 
 the facts. The ancestor had been summoned as Edward de 
 Charleton de Powys. The descendant was summoned as 
 John Grey de Powes 4 , and there is nothing to show that 
 he had any particular seat or precedence. No reliance can 
 be placed on the varying order in which the names occur 
 on the Roll of Letters Close, and, if it could, the Roll 
 would rather tend to show that ' John Grey de Powes ' 
 took his seat as a junior Baron. There is no reason to 
 suppose that, when John Grey de Powes was summoned 
 to Parliament, the summons effected anything but a new 
 creation. 
 
 In a much more recent peerage case there was a reso- Declara- 
 lution of a Committee of the House of Lords declaring that : 8 77 by a 
 an abeyance occurred in the reign of Edward IV. It must, Committee 
 however, be submitted, with all respect, that an opinion that an 
 given in the year 1877 is not conclusive with regard to the occurred in 
 
 1 Rot. Lit. Claus., 2 Ed. IV, m. 5 d (printed in Rep. Dig. Peer, 
 vol. iv. p. 958). 
 
 2 lb., 6 Ed. IV, m. 1 d (printed, p. 966), 9 Ed. IV, m. 23 d (printed, 
 p. 970). 
 
 '* lb., 49 Hen. VI, m. 6 d (printed, p. 977). ^*f5£fcSE U&HAfiy? 
 4 lb., 22 & 23 Ed. IV, m. 10 d (printed, p. 98] 
 
138 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. VII. 
 
 the reign of 
 
 Edward 
 
 IV: 
 
 baronies of 
 
 Mowbray 
 
 and 
 
 Segrave. 
 
 Paucity of 
 cases sub- 
 sequent to 
 that of 
 Lord 
 Windsor 
 except in 
 the years 
 from 1829 
 to 1841. 
 
 opinions entertained in the year 1481. In relation to the 
 barony of Mowbray a Committee of the House of Lords 
 resolved on July 26, 1877, 'that on the death of Anne 
 Lady Mowbray and Segrave, Duchess of York and 
 Norfolk, in 1481, the baronies of Mowbray and Segrave 
 fell into abeyance between John Lord Howard and William 
 Viscount Berkeley, as the grandsons and the then coheirs 
 of Thomas the first Duke of Norfolk.' and further ' that 
 the abeyance of the said baronies was subsequently, and 
 previously to the reign of Queen Elizabeth, determined in 
 favour of the Howard family 1 .' It is obvious, from the 
 words of the resolution that both the abeyance and the 
 calling out of abeyance had been merely inferred from the 
 evidence laid before the Committee 2 . The correctness of 
 the inference must be judged not by the application of 
 modern doctrines to ancient facts, but by the application 
 of the doctrines of the time to the facts of the time. There 
 is no proof whatever that the doctrine of the abeyance of 
 a barony was in existence in the reign of Edward IV, and 
 there is evidence that it was not in existence at a much 
 later period. 
 
 The earliest case in which anything like the doctrine of 
 abeyance was recognized was, it is almost certain, that of 
 Lord Windsor, in the reign of Charles II. The coheir then 
 had given to him not only the barony but also the precedence 
 and place in Parliament of previous Lords Windsor. Even 
 since the time of Charles II, the instances in which a barony 
 has been called out of abeyance have been rare. In the 
 hundred and sixty-nine years, from 1660 to 1829, there 
 were but eleven; and two of these related to the same 
 barony (of Zouche). From 1829 to 1841 it was the fashion 
 to call baronies out of abeyance ; and no less than eight 
 (one of which, the barony of Berners, appears on two 
 
 1 Journals of the House of Lords, July 27, 1877 (vol. cix. p. 339). 
 
 2 There is a monograph on the determination of the Mowbray 
 Abeyance by Mr. J. H. Round in the Law Qicarterly Review, vol. x. 
 p. 68. 
 
THE HOUSE OF LORDS 139 
 
 occasions) enjoyed that distinction in twelve years 1 , the Chap.vii. 
 fortunate Barons taking the precedence enjoyed or sup- 
 posed to have been enjoyed by their predecessors. Since 
 1 84 1 the determination of abeyance has been less frequent, 
 but the principle has not been disputed. It cannot 
 claim a very high antiquity, but it has probably been 
 accepted sufficiently often during the last two centuries 
 to give it an established legal position. The practice, 
 however, has varied even since the year 1660. Lord 
 Windsor then had a declaratory Patent. In more recent 
 times the usage has been (except when a barony has been 
 confirmed by patent to a Peer already holding a higher 
 dignity) to call a barony out of abeyance simply by the 
 issue of a writ of summons to Parliament. 
 
 1 Return of Baronies called out of Abeyance, H. L., Session 1858, 
 no. 289. 
 
CHAPTER VIII. 
 
 The Doctrine of Blood. 
 
 Chap. 
 VIII. 
 
 Blood 
 after the 
 Conquest : 
 corruption 
 of blood. 
 
 NO history relating to the hereditary peerage would be 
 complete without some reference to the remarkable 
 doctrine as to blood which appears to have been a develop- 
 ment of the ideas brought into England at the time of the 
 Conquest, and which was. at any rate, firmly established early 
 in the reign of Edward III. We have seen how the succession 
 of the Counts and Dukes of Normandy continued in the blood 
 of Rollo, how child succeeded to father, though the union 
 of the parents had not received the sanction of the Church. 
 The late period at which Neustria was conquered by the 
 Northmen, and consequently at which they accepted Chris- 
 tianity, may possibly have been one of the causes which 
 subjected Dukes of Normandy and William the Conqueror, 
 among the number, to the aspersion of being bastards. 
 
 The French conquest of England was effected at a time 
 when the power of the Church was increasing, and for that 
 reason, perhaps, no descendant of William not born in 
 Christian wedlock ever ascended the throne. For many 
 centuries afterwards no form of marriage was recognized in 
 England except that which was recognized by the Church. 
 The lawyers, acting in agreement with the ecclesiastics, 
 evolved the doctrine that a child not born in lawful wedlock 
 was fatherless, nullius films, no man's child. Subject, how- 
 ever, to the restriction that all blood had, as it were, to be 
 church-marked, blood became of almost as much impor- 
 tance in law as in later times it has been held by men of 
 
THE HOUSE OF LORDS 141 
 
 science to be in physiology; and there is the closest possible Ch. vill. 
 resemblance between the doctrine of the physiologists and 
 the doctrine of the lawyers. Blood, according to both, had 
 properties and capacities transmissible from generation to 
 generation, and could, according to both, be corrupted with 
 the gravest consequences to the offspring. 
 
 It has been said by an eminent writer on the history of The 
 the Constitution that the doctrine of the ennobling of the f tJie 
 blood of a Peer is an absurdity, chiefly, as it seems, because, ennobling 
 according to his view, a younger son does not become intelligible 
 ennobled when his father has a peerage which is hereditary. a . nd con ". . 
 
 1 ° J sistent with 
 
 Regarded, however, as part of a general principle, the itself. 
 doctrine is no absurdity at all, but one which is perfectly 
 intelligible, perfectly consistent with itself at all points, and 
 as scientific as anything to be found in mediaeval or even 
 modern literature. 
 
 Whenever any person, not being a corporation, held land The in- 
 in fee simple, there existed in his blood a capacity of of \ Kb ^- 
 inheritance — a capacity not limited to his eldest son, but inseparable 
 pervading the whole of his descendants, and, in the absence before the 
 of descendants, extending still further. It was a capacity T ^s n of 
 which he himself had no power to destroy. He could not, vill. 
 before the reign of Henry VIII (except in virtue of certain 
 local customs) affect the disposition of the land after his 
 death by will. If he died seised of his estate in fee simple, 
 the land could go only to his heir, who might be his eldest 
 son, or the issue of his eldest son, or failing them a younger 
 son, or failing a younger son and his issue a daughter or 
 daughters, and so on according to the law of descent in 
 relation to consanguinity. He was absolutely powerless 
 to affect the inheritance or to destroy the virtue of his own 
 blood. He could affect his heirs only by affecting himself. 
 He could convey away his land during his lifetime ; and, 
 in that case, it would of course no longer go to his heir, 
 but solely because it was not his when he died. He in no 
 way affected the capacity of the blood to inherit that which 
 he held himself. There were some things of which a man 
 could not divest himself at all in favour of another, and 
 
142 CONSTITUTIONAL HISTORY OF 
 
 Ch. viii. which, whether he would or not, must of necessity remain 
 
 in his blood, unless destroyed or extinguished. 
 Seignory of If a man gave lands to a Religious House, to hold of him 
 in frankal- and m * s neirs in frankalmoign, the seignory of those lands 
 
 iUaif nabie waS SO fixed in his blood tnat it: could never afterwards be 
 
 and in- in any blood but his. No conveyance of the seignory to 
 
 from die 16 another person, no forfeiture, no recovery by action at law 
 
 blood. could affect it. As long as one drop of his blood existed 
 
 on earth, so long did the seignory, if also in existence. 
 
 attach to' it 1 . This particular seignory could be destroyed 
 
 or extinguished only by failure of his blood, by release to 
 
 the tenant, or by the tenant's alienation of the lands 2 . 
 
 The tenant then ceased to hold in frankalmoign of the 
 
 donor or his heirs, and the particular tenure was at end. 
 
 As soon as hereditary peerage was established as a per- 
 sonal dignity, it bore a very strong resemblance to seignory 
 of lands held in frankalmoign, especially in cases in which 
 the inheritance was to the heirs general. It was from one 
 point of view less absolutely in the blood than the seignory. 
 because it was subject to forfeiture by the holder, the 
 corruption of whose blood by attainder would extend the 
 forfeiture to his descendants. From another point of view 
 it was more absolutely in the blood than even the seignory, 
 as soon as the doctrine was accepted that a Peer could not 
 surrender or extinguish his dignity, though not before 3 . It 
 exactly resembled the seignory in that it could not pass 
 directly from the holder to a stranger in blood by any form 
 of conveyance. In both cases we see a capacity or property 
 inherent in the blood analogous to that which causes the 
 posterity of a human being to be human, and the posterity 
 of an individual of another species to be of that other 
 species. As any one who is in the possible line of descent 
 of the Crown is said to be of the blood royal, so any one 
 who is in the possible line of descent of any peerage is of 
 the inheritable blood in which that peerage runs. 
 
 1 Year Book, Hil., 14 Ed. Ill, no. 19, pp. 268, 2S0-283. 
 
 2 Litt., sec. 139, 141 ; 2 Inst. 502. 
 
 3 See below, chapter xii. pp. 271-273. 
 
THE HOUSE OF LORDS 143 
 
 Until very recent times (January 1, 1834 1 ) the doctrine Ch. VIII. 
 of blood was applied in a very remarkable manner so as to 
 exclude the half-blood from the inheritance of lands. When The 
 the right of females to inherit was recognized, the capacity i an( j s : 
 to inherit might be transmitted to the offspring either from common 
 the blood of the father or from the blood of the mother, doctrine as 
 The mother, it is true, during the period of her coverture, £j th ^ 
 had no status except as the wife of her husband, and 
 he might even dispose of her lands. From the moment of 
 his death, however, her rights of blood reasserted them- 
 selves, and the lands could be recovered by her or her 
 heirs. Upon her death the lands descended to her heirs, 
 subject only to the life estate of her husband, known as 
 the ' curtesy of England,' should he happen to survive her. 
 If she had two sons by her first husband, and the elder 
 inherited after her death, and died without issue, the 
 younger son was his heir, as being his brother of the whole 
 blood. If she had only one son by a first husband, and 
 another by a second husband, and the elder son became 
 seised of the inheritance and died without issue, the younger 
 son being only of the half-blood did not inherit. It might 
 seem, at first sight, that in this case the younger son, having 
 the mother's blood equally with the elder, should inherit on 
 his brother's death. According to the old law, however, 
 the descent, as it was called, was traced directly from 
 brother to brother, and not backwards from the elder son 
 to the mother, and from her to the younger son. The same 
 principles were applied when the inheritance was on the 
 father's side. His younger sons by his first wife were heirs 
 to their elder brothers in succession when their elder 
 brothers died seised without issue, but his sons by a second 
 wife could never inherit from their elder brothers of the 
 half-blood. 
 
 If no explanation of this curious rule could be found the The 
 doctrine might thus seem to be at variance with itself, assigned 
 because the younger son of the half-blood, possessing in for it. 
 
 1 Stat. 3 & 4 Will. IV, cap. 106. 
 
144 CONSTITUTIONAL HISTORY OF 
 
 Ch. vill. each case the blood of the parent to whom the inheritance 
 had belonged, in an equal degree with his elder brother, was 
 yet excluded from that very inheritance in favour of a more 
 remote kinsman. The reason usually assigned is, however, 
 one which is consistent with the doctrine of blood in its 
 most rigid application. Although it may be true that, upon 
 the death of any particular person, there could hardly be 
 a doubt whether he inherited from his father or his mother, 
 yet, when the kinship had to be traced further back, the 
 true source of inheritance might well be in doubt as between 
 a husband and wife in some remote past generation. If, 
 for instance, upon failure of all issue in the direct line, 
 a descent had to be traced from a great-uncle, who died 
 seised, it might, in the unlettered age of the earlier fiefs, 
 have been uncertain whether he inherited from his father or 
 from his mother. I f he inherited from his mother, no half- 
 brother on his father's side could possess that inheritable 
 blood which would give a title to succeed. If, however, 
 he had a brother of the whole blood, it is obvious that 
 this brother must have possessed the true inheritable blood, 
 whether the inheritance descended from the father or from 
 the mother. The descendants of this brother of the whole 
 blood would consequently inherit. The principle, framed 
 in all probability in the interest of the sovereign or other 
 lord, in order that he might not be defrauded of his escheat 
 upon failure of heirs, had thus some plausibility as applied 
 to distant consanguinity, and, perhaps for the sake of 
 uniformity, perhaps still in the interest of the lord, it was 
 also applied where the same grounds could not be alleged. 
 Posscssio The exclusion of the half-blood sometimes had the effect 
 
 fratns. ^ causing a female to succeed to the inheritance instead of 
 a male. Thus if any one died seised of land, leaving a son 
 and a daughter by a first wife, and a son by a second wife, 
 and the elder son inherited and died seised without issue, 
 the daughter then inherited and not the younger son. This 
 fact was expressed in the well-known legal maxim, Possessio 
 fratris facit sororem esse heredem. 
 
 It would appear to follow from this doctrine that when 
 
THE HOUSE OF LORDS 145 
 
 any one was summoned to Parliament, as in the older times, Ch. vill. 
 to perform the service due for any land, the summons Possessio 
 would follow the law applicable to the descent of lands, the fratris in- 
 sister of the whole-blood would inherit, to the exclusion of to any* 
 the brother of the half-blood, and, when she married, her dignity 
 
 CXCCDt 
 
 husband would have to perform the service, or in other barony by 
 words to attend in Parliament. As, however, the idea of tenure - 
 barony by tenure faded away, and the idea gained ground 
 that to be a Baron was to enjoy a dignity, the lawyers did 
 not hold the principle of Possessio fratris to be applicable 
 to an honour. 
 
 As early as the time of Sir Edward Coke it was held that 
 there could be no possession of a brother which could cause 
 a sister of the whole-blood to inherit a dignity to the 
 exclusion of a brother of the half-blood. The descent was 
 considered to be to the heir of the person first created noble 
 and not directly to the heir of the last possessor of the 
 dignity. On the death of an elder brother, his younger 
 brother of the half-blood, though incapable of inheriting 
 his lands, might nevertheless inherit the dignity from their 
 common father, in whose blood it was supposed to be in- 
 herent. This doctrine was applied to all ranks among the 
 temporal lords, to Dukes, Marquesses, Earls, Viscounts, and 
 Barons 1 . 
 
 Several reasons were assigned for this later diversity Reasons 
 between the descent of lands and the descent of dignities, different 
 Noblemen in the higher grades of the peerage held their descent of 
 honours in virtue of charters or letters patent, Barons in dignities, 
 virtue of letters patent or writs of summons. In all these 
 cases the title to the peerage could be proved only by 
 record in the Chancery, which necessarily showed who was 
 the first holder, and consequently in whose blood the dignity 
 must descend. There was no possibility of a doubt whether 
 the inheritance was on the father's side or the mother's. 
 The person claiming either was or was not the heir of the 
 first of the family created or summoned. If both brother 
 
 1 Co. Hit., 15 b. 
 L 
 
146 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch. VIII. 
 
 The law 
 not fully 
 settled 
 before the 
 reign of 
 Charles I. 
 
 Original 
 effects of 
 attainder 
 and corrup- 
 tion of 
 blood. 
 
 and sister were of his blood, the brother was of course 
 preferred. 
 
 The Lords themselves, however, seem to have been per- 
 plexed by doctrines of succession as late as the reign of 
 Charles I. In a peerage case then under consideration the 
 Lords submitted to the Judges the question 'whether 
 a possessio fratris can be upon a barony by writ.' The 
 Judges were unanimously of opinion ' that there cannot be 
 a possessio fratris in point of honour V A special reason 
 said to have been assigned by the Judges for this opinion was 
 that no entry could be made upon the dignity of a Baron, and 
 no profit derived from it, and that in these respects it differed 
 from land upon which entry might be made, and from which 
 the person in seisin derived ' esplees ' or profits 2 . However 
 applicable this argument might be to a barony just before 
 the Great Rebellion, it certainly could not have been appli- 
 cable to earldoms of the twelfth century, a common feature 
 of which was that the Earl received the third penny (or one- 
 third of certain revenues) derived from his county. The 
 principle of an Earl receiving profit from his office had 
 without doubt fallen into oblivion, just as the idea of barony 
 by tenure was, a few years later, held to be an anachronism. 
 
 Upon attainder for any kind of felony (in which treason 
 was originally included) the blood of the offender imme- 
 diately became corrupted, and its capacity of inheritance 
 was lost for ever, except, as we have seen, in relation to 
 seignory of lands granted in frankalmoign. The lands 
 reverted to the lord of whom they were held, and who, in 
 the case of tenants-in-chief, was of course the King. On 
 attainder for high treason all lands in possession were for- 
 feited to the King directly. The effect of corruption of 
 blood was not only that no one could inherit from the 
 person attainted, but also that he could not himself inherit 
 
 1 Journals of the House of Lords, Feb. I, 1 640-1641 (vol. iv. 
 pp. 1 49- 150) . 
 
 2 Collins's Proceedings on Claims, p. 256. Paper said to have been 
 obtained from the son of Chief Justice Brampston, one of the Judges 
 whose opinion was given. 
 
THE HOUSE OF LORDS 147 
 
 from an ancestor. His incapacity thus affected all his Ch. VIII. 
 descendants, and they were debarred from deriving a title 
 through him from an ancestor more remote. 
 
 The law of forfeiture and attainder was to some extent Effect 
 mitigated by the creation of estates tail 1 , because when f ? ~* 
 
 o J ' creation 01 
 
 a tenant in tail was attainted, the forfeiture extended only estates tail, 
 to the term of his life. As he did not possess the fee simple JJ^, of e 
 he could not forfeit it, and thus the lands of many persons Henry 
 attainted of high treason remained in the same family, 
 even when there was no reversal of attainder. In the reign 
 of Henry VIII, however, an Act was passed which had the 
 effect of bringing estates tail within the law of forfeiture for 
 high treason 2 . 
 
 According to the older doctrine that a Baron was one Forfeiture 
 who held in chief, or by barony, no one could have continued f or h i<rh 
 to be a Baron after his lands were forfeited. It has, indeed, treason, 
 sometimes been maintained that all the dignities of the 
 peerage, including baronies, are within the category of 
 1 offices of trust and confidence V In that case they could 
 not of course be held after conviction of high treason. It 
 has been shown, however, in this history, that although 
 Earls commonly held baronies, the origin of the dignity of 
 a Baron was entirely different from that of an Earl, and 
 had not any relation to any administrative office. When 
 the Baron acquired a prescriptive right to be summoned to 
 Parliament, and with it a personal dignity, he was not 
 bound to perform any duties which had not been performed 
 in earlier times. He was. however, subject to the same law 
 of forfeiture in respect of his lands, and according to the 
 ancient precedents the dignity was lost at the same time. 
 
 When an earldom was an office under the Crown, it was Forfeiture 
 of course forfeited for treason to the Sovereign ; and the an( j ot h er 
 precedent sufficed to ensure its forfeiture in later times, dignities 
 when it was an office no longer 4 . The higher ranks in the treason. 
 
 1 Stat. De Bonis Conditionalibus (Westm. 2.), 13 Ed. I, cap. 1 ; Co. 
 Litt., 392 b ; BL Com., ii. 116. 
 
 2 Stat. 26 Hen. VIII, cap. 13. sec. 5 ; and see Stat. 5 & 6 Ed. VI, 
 cap. 11. sec. 9. 
 
 3 Fourth Rep. Dig. Peer, vol. ii. p. 312. 4 7 Rep. 33. 
 
 L 2 
 
148 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch. VIII. 
 
 Question 
 
 as to the 
 
 effect of 
 
 entails 
 
 upon 
 
 attainder 
 
 of high 
 
 treason 
 
 between 
 
 1285 and 
 
 1534. 
 
 peerage naturally followed the same rule ; and thus, as 
 a broad general principle, all dignities were forfeited upon 
 attainder of high treason. 
 
 The doctrine of corruption of blood was also applicable, 
 and the temporal lord lost his dignities not only for himself 
 but also for his heirs for ever, or until the attainder was 
 reversed by Act of Parliament. The only possible exception 
 was in the case of a dignity held in tail, with regard to which 
 there has been some difference of opinion. A dignity could 
 be entailed \ but only by the Crown. The earlier Barons 
 and their descendants were, after a time, mostly recognized 
 as Barons only in virtue of the writ of summons, which, 
 when held to give an hereditary right, was held to give it to 
 the heirs general of the body. This, however, was no entail, 
 as there was no specific gift or grant to the person summoned 
 and the heirs of his body, which was the essential condition 
 of an estate tail. There had been but few patents of baronies 
 before the statute of Henry VIII, which placed estates tail 
 in the same position as estates of fee simple with regard to 
 forfeiture. So also, though other dignities of the peerage 
 had been created with limitations by charter, or letters 
 patent, they were comparatively few in number, and circum- 
 stances rarely occurred in which the dignity could be claimed 
 by virtue of an entail, after the attainder of the last possessor, 
 and in the absence of any reversal of attainder. The nar- 
 rowness of the field of search (extending only from the 
 year 1 285, when the law of entails 2 begins, to the year 1534, 
 when an entail ceased to afford any protection in attainders 
 of high treason) renders the task of finding illustrative 
 instances extremely difficult 3 . 
 
 2 Stat. Westm. 2 (13 Ed. I), cap. 1 (De Bonis Conditionalibus). 
 
 3 Neville's case (7 Rep. 33) is sometimes cited in relation to this 
 subject. It does not, however, really bear upon the question whether 
 an entail protected a dignity between 1285 and 1534. A claim to 
 the Earldom of Westmoreland was set up in 1604 by Edward Neville. 
 The previous Earl, Charles Neville, had been attainted of high treason 
 in 1570. Edward relied upon the grant in tail male to Ralph NevilJe 
 in 1397, whose heir according to the entail he represented himself to 
 
THE HOUSE OF LORDS 149 
 
 The Peer who was attainted of felony also suffered Ch. vill. 
 corruption of blood. His lands, if not entailed, escheated An entail 
 to the superior lord, who was commonly the King ; he lost saves the 
 his dignity, and his issue could not inherit. The Act of t he heir to 
 Henry VIII, by which all estates of inheritance (including a dignity 
 estates tail) were rendered subject to forfeiture for high attainder 
 treason, did not render them subject to forfeiture or escheat ° e ony * 
 for felony ; and consequently it seems that a dignity entailed 
 would descend to the heirs of the body of the person 
 attainted, if a dignity were subject to the same law of 
 entail as lands. 
 
 The best illustration in support of this doctrine is, per- Illustration 
 haps, the case of John, Baron Stourton, whose ancestor barony of 
 John had been created a Baron in tail male by Henry VI *, Stourton. 
 His father, Charles, Baron Stourton, had been attainted of 
 felony in the reign of Philip and Mary. He, however, was 
 summoned to Parliament, and took his seat on February 11, 
 1575-6 2 . On the following March 6 a Bill was introduced 
 for the restitution in blood of him and of his brethren 
 and sisters, and was read a third time on the following day :i . 
 That Bill, however, never became an Act 4 , and he, never- 
 theless, continued to sit in the House of Lords. He must, 
 therefore, have enjoyed the dignity by inheritance, not- 
 withstanding any corruption of his father's blood, or he 
 must have enjoyed it as a new creation in virtue of the 
 writ of summons. In the latter case he could have been 
 succeeded only by the heirs of his body. He died, how- 
 ever, without issue, and his brother Edward was summoned 
 in his stead. In this case, therefore, as in some others, 
 
 be. He was unsuccessful ; but it is not certain that, had the case 
 occurred eighty years earlier, he might not have succeeded. 
 
 1 Rot. Lit. Pat., 26 Hen. VI, part ii. m. 26. 
 
 2 Journals of the House of Lords (vol. i. p. 731). 
 
 3 lb., March 6 and 7, 1575-6 (vol. i. pp. 742 and 743). 
 
 4 If such an Act had passed, it would be upon the Parliament Roll 
 of 18 Elizabeth. There is no such Act upon that Roll, nor does it 
 appear that any such Act was passed during the reign. It is said in 
 D'Ewes's Journals of the Commons (pp. 264-265) that the Lords would 
 not accept a proviso inserted in the Bill by the Commons. 
 
150 THE HOUSE OF LORDS 
 
 Ch. VIII. it seems that the grant of a dignity to a man and the heirs 
 male of his body had the effect of saving it for the heir when 
 the holder was attainted of felony. 
 Prospective In the reign of Queen Anne (shortly after the Union with 
 in S i 1S 7oMo Scotland) an Act was passed with the object of abolishing, 
 save the at a future time, the effects of corruption of blood upon 
 heirs of attainder for high treason. It was enacted that, after the 
 P ers . 01 ? s d death of the Pretender James, and three years after the 
 of high accession of the Queen's successor to the throne, no 
 treason. attainder for treason should cause any heir to be dis- 
 inherited, or prejudice the right of any person but the 
 actual offender 1 . When, however, in the year 1744 a rising 
 was expected under Charles Edward, son of the elder 
 Pretender James, it was enacted that the operation of the 
 Act of Queen Anne should be postponed until the decease 
 not only of James but of all his sons 2 . 
 Restriction Thus the old law, as it was after the Act of the reign of 
 ture°in ei " Henry VIII, by which estates tail were brought within the 
 1814, and doctrine of forfeiture for high treason, remained practically 
 
 ■Dricticil 
 
 abolition, unchanged in England, though it did not extend to Scot- 
 attamd°er° f * anc * 3 - * n t ^ ie y ear 1 ^ I 4» however, forfeitures for felonies 
 and comip- in general, though not for high treason, petty treason, or 
 blood murder, were restricted to the life-time of the person 
 
 attainted 4 . Forfeiture, except when consequent upon out- 
 lawry, was altogether abolished in the year 1870, when it was 
 enacted that no judgement of or for any treason or felony 
 should ' cause any attainder or corruption of blood, or any 
 forfeiture or escheat 5 .' 
 
 1 Stat. 7 Anne, cap. 21, sec. 10. 
 
 2 Stat. 17 Geo. II, cap. 39. sec. 3. 
 
 3 The law had been otherwise in Scotland before the Union, and the 
 rights of heirs in tail were guarded shortly afterwards by the 7 Anne, 
 cap. 21. sec. 4. 
 
 4 Stat. 54 Geo. Ill, cap. 145. 
 
 5 Stat 2>Z & 34 Vict. cap. 23. sec. 1. 
 
I 
 
 CHAPTER IX. 
 
 The Position of the Spiritual Lords. 
 
 T has already been shown that in parts of the Roman Chap. IX. 
 empire which the barbarians overran, the Bishops Anoma j ous 
 
 commonly became advisers of the Crown as soon as the position 
 conquerors accepted Christianity. Their position was Bishops: 
 anomalous, because, although in feudal times they had t] } eiT 
 
 r t • i • • r 1 T7- • i election. 
 
 investiture of their temporalities from the King, they 
 obtained their offices by election, and not, like Earls or 
 Counts, on the nomination of the Crown. In the reign of 
 Henry I, after a struggle with Archbishop Anselm, a com- 
 promise was effected, in accordance with which the previous 
 mode of investiture was abandoned, and the King received 
 the homage of the Bishops. At the same time the election 
 of Bishops, which had previously been in the Curia Regis 
 by clergy and laity, was placed in the hands of the clergy 
 alone. This arrangement was confirmed by successive 
 charters, and notably by one of King John, in which he 
 undertook not to withhold his licence for the election (conge* 
 d'e'lire), or refuse approval afterwards, without just cause 1 . 
 
 After election, if followed by the King's assent, the The 
 Bishop elect was confirmed by the Metropolitan, and then s P ir . ltu ~ 
 had restitution of the spiritualities, or ecclesiastical juris- and the 
 diction, which had rested, during the vacancy of the see, ^1^" 
 with the Guardian of the Spiritualities. This, however, did 
 not place him in possession of the temporalities of the see. 
 
 1 The charter is printed in the Statutes of the Realm^ vol. i. p. 5. 
 There was a confirmation by the 25 Ed. Ill, St. 6 (Provisors). sec. 3. 
 
152 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. IX. 
 
 Similar 
 position of 
 Abbots. 
 
 The power 
 of the 
 Crown in 
 relation to 
 Prelates. 
 
 He was not yet a Baron, for he had not yet obtained those 
 lands which were held in barony in right of the bishopric. 
 He could have livery of the temporalities only on making 
 an oath of fealty to the King. This was commonly done 
 before his consecration, after which he had all the liabilities 
 and privileges of Bishop and Baron, including that of the 
 writ of summons to Parliament. 
 
 The proceedings by which an Abbot was made were 
 similar in cases in which the Abbey was of royal foundation ; 
 and this would probably be assumed when successive 
 Abbots of the same House were summoned to Parliament 
 for a long period of time. The Crown sometimes, indeed, 
 asserted a royal foundation, for purposes of its own, when 
 the Abbots warmly disputed the fact l . Licence to elect, 
 election by the Convent or members of the religious House, 
 the royal approval, and restitution of the temporalities, 
 which had been taken into the King's hand when the 
 vacancy occurred, were all necessary before the new Abbot 
 could be in full possession of his abbacy or of the lands held 
 in its right. 
 
 There is no need to trace in detail the attempts which 
 were made by Popes to obtain the power of appointing 
 English Bishops. They belong to the domain rather of 
 the history of the Church than to that of constitutional 
 history. They were never more than partially successful, 
 and, while they continued, they were merely an indication 
 of the power of the Church, which was exerting its influence 
 over England in various other ways. Had they been 
 carried so far as seriously to threaten alien interference in 
 the King's Council and Parliament, the Crown had a 
 remedy. It could always withhold approval of the election, 
 and retain the temporalities of the vacant see or abbey in 
 its hands. Such an extreme measure would, no doubt, 
 have added one to the many quarrels which English kings 
 had with the Church. The mere possibility of it, however, 
 must to some extent have acted as a check upon papal 
 
 E.g. Year Books, Trin., 14 Ed. Ill, no. 46. 
 
THE HOUSE OF LORDS 153 
 
 pretensions, and generally have secured the appointment of Chap. IX. 
 a prelate who was not at the moment altogether obnoxious 
 to the King. Henry VIII succeeded very adroitly in 
 obtaining for the Crown the power of nominating the 
 Bishops. In his reign it was enacted that when any 
 see became vacant the King might send to the Prior and 
 Convent or the Dean and Chapter (as the case might 
 be), which had the power of election, his conge d'elire, 
 together with a Letter Missive containing the name of the 
 person to be elected. Should they defer the election 
 beyond twelve days, the King had power to nominate and 
 present by Letters Patent under the Great Seal \ 
 
 Thus, until the power of the Church was broken about 
 the time of the Reformation, all the Lords Spiritual sat in 
 the House of Lords, only after election. Whatever in- 
 fluences might have been brought to bear before they were 
 elected, they might be regarded as representatives of those 
 who elected them. In their case the King was not the 
 fountain of honour ; and although they could not obtain 
 possession of the baronies belonging to their sees without 
 his consent, it was not he whom they had to thank for 
 their elevation. 
 
 Bishops and Abbots, it is well known, were summoned, 
 before the Conquest, to the Witenagemot, and it has some- 
 times been inferred that they were called to later English 
 Parliaments by reason of their spiritual office, and not solely 
 in virtue of the baronies which they held by military service 
 after the Conquest. It has even been denied that the 
 Conqueror applied military tenure to Church lands. There 
 is, however, no doubt that Bishops and Abbots did, after 
 the Conquest, hold baronies in chief of the Crown by mili- 
 tary service ; and although strictly contemporary evidence 
 may be wanting as to the exact date at which they began 
 to occupy this position, there does not appear to be any 
 strong reason against the date assigned by Matthew Paris. 
 According to him, the Conqueror placed under military 
 
 } Stat. 25 Hen. VIII, cap. 20. sec. 4. 
 
154 CONSTITUTIONAL HISTORY OF 
 
 Chap. IX. service all bishoprics and abbeys holding baronies in the 
 year 1070, setting down at his pleasure the number of 
 knights to be supplied by each 1 . The statement accords 
 extremely well with the fact that no uniformity can be 
 discovered with regard to the number of knight's fees in 
 a barony, whether lay or ecclesiastical. It is confirmed by 
 testimony which is clearly independent— b>y the Chronicle 
 of Abingdon 2 and by the History of Ely 3 . It is in har- 
 mony with the position of the Bishops in the King's Court 
 according to the Constitutions of Clarendon. It agrees with 
 the remarks of Bracton made in the reign of Henry III, that 
 the King had power to direct process against Bishops by 
 reason of their baronies 4 . It is also quite consistent, as will 
 hereafter be shown, with the subsequent claims of Bishops 
 to be considered Peers of the Realm on the ground of 
 holding by barony. 
 
 The To speak of a seat in Parliament as a privilege enjoyed 
 
 Bishops . , , • . • , . , rr? 1. m. 
 
 had no by layman or ecclesiastic, in the early days of Parliaments, 
 desire to be j s to con f use modern with mediaeval ideas. No baron, lay or 
 
 summoned ,.,.♦, . 
 
 to the early clerical, wished to be summoned, except to protect himself 
 ments against inordinate taxation. No Bishop, as Bishop, wished 
 
 to be summoned except in the interests of his order. 
 The When the Archbishops and Bishops were summoned to 
 
 entes clause a Parliament including Lords Spiritual and Temporal and 
 in the Commons, it was usual, from the time of Edward I, to insert 
 
 summons a clause in the summons directed to each of them which is 
 to them. commonly called the Praemunientes clause. The Arch- 
 bishop of Canterbury, for instance, was commanded to 
 warn the Prior and Chapter of his Church and all the 
 Clergy of his diocese to attend with himself — the Prior and 
 Archdeacons in person, the Chapter by one Procurator, and 
 the Clergy by two. In other sees the warning was to be 
 
 1 Matt. Par., Historia Anglorum (Rolls Series), vol. i. p. 13. 
 
 2 Chro7iicle of Abingdon (Rolls Series), vol. ii. p. 3 et seq. 
 
 3 Historia Eliensis (Anglia Christiana Society), p. 276. The 
 coinciding evidence of the three sources of information has been pointed 
 out by Mr. J. H. Round in his essays on the introduction of knight 
 service into England in the English Historical Review. 
 
 4 Bract. 427, 442 b. 
 
THE HOUSE OF LORDS 155 
 
 given to the Deans also to be present in person. It will be Chap. IX. 
 observed that this summons, affecting the whole body of 
 the Clergy, resembles the summons to Convocation of 
 a later period. The summons, however, was to Parlia- 
 ment, as it is distinctly expressed that the clerical persons 
 and representatives who were to accompany the Bishops 
 were to treat, ordain, and act with the King and with the 
 rest of the Prelates, the Proceres, and the other inhabitants 
 of the Realm, and generally to give their consent. 
 
 The object, there can be no doubt, was to have the assent The 
 of the Clergy to the taxes which were to be imposed upon to t ^ e 
 them. It was also with the same object, there can be as Guardian 
 
 ,.,,,,,., r • ° fthe 
 
 little doubt, that, during the vacancy of sees, writs were sent Spiritual- 
 to the Guardians of the Spiritualities of the dioceses com- ^ ies dunn s 
 
 * the vacancy 
 
 manding them to come, or send a procurator or proxy, and of a 
 warn the other ecclesiastics to be in attendance as usual. IS oprlc ' 
 The fact that the Guardians of Spiritualities received 
 a summons has sometimes been used as an argument to 
 show that, even when the Bishops held baronies, their 
 summons was in virtue of their ecclesiastical status, and 
 that they came to Parliament as Sapientes or Witan, quite 
 independently of their lay possessions. The summons to 
 a Guardian of the Spiritualities during the vacancy of a see, 
 however, cannot have any relation to the supposed wisdom 
 of a Bishop when the see is filled. The Guardian of the 
 Spiritualities had spiritual jurisdiction in his diocese, and 
 he alone could direct the necessary warning to the rest of 
 the Clergy. The temporalities being in the King's hand, 
 the Guardian of the Temporalities had to account at the 
 Exchequer for the profits derived from them, until they were 
 sued out of the King's hand, but he had no power whatever 
 to summon the Clergy or to bind the incoming Bishop. 
 
 The most conclusive proof, however, that the summons It issued 
 to the Guardian of the Spiritualities was solely for the because he 
 purpose of ensuring the consent of the Clergy to taxes or alone nad 
 other matters ' to which their sanction was desired, appears call the 
 
 1 It appears from Rot. Lit. Ctaus., 21 Ed. Ill, part ii. m. 21 d 
 
156 CONSTITUTIONAL HISTORY OF 
 
 Chap. IX. in the fact that no such summons was sent without the 
 rest of the Praemwiientes clause. When the King required the Bishops, 
 Clergy of as persons of wisdom or discretion, to attend a Council, 
 ' he summoned, as might naturally have been expected, the 
 Bishops themselves, but not any Guardians of the Spiri- 
 tualities of vacant Bishoprics in that capacity. When 
 there is a Praemwiientes clause the Guardians of the 
 Spiritualities receive a summons ; when there is no such 
 clause they do not. So also when the see was not vacant, 
 but the Bishop was abroad (in remotis agens), there was an 
 alternative summons to him or his Vicar- General 1 , with the 
 Praemunientes clause, not on account of the wisdom of the 
 Vicar-General, but in order that the rest of the Clergy of 
 the diocese might be duly warned, and might duly vote the 
 supplies. It is true that the clause was preserved in the 
 writ of summons, as a form, long after the persons who 
 were to be warned had ceased to come to Parliament, and 
 had attended Convocation instead. This fact, however, 
 does not in any way disprove the origin of its insertion, or 
 tend in any way to prove the superior discretion of the 
 Guardian. 
 Abbots With regard to Abbots and Priors, it is quite clear that 
 
 summoned ^^ were r ightly summoned to Parliament only because 
 only as they held by barony, and that, if they did not hold by 
 barony^ Y barony, they could claim to be excused as late as the reign 
 and excused f Edward III. This, indeed, is what might have been 
 
 when not 
 
 so holding, inferred from the passage of Britton already cited. The 
 point is, however, made perfectly plain by the case of the 
 Prior of Spalding. He, like his contemporaries, regarding 
 attendance in Parliament not as a privilege but as a burden, 
 represented that the lands of the Priory were held in 
 frankalmoign of the Countess of Lincoln, and not of the 
 King by barony or part of a barony. Neither he nor his 
 
 (printed, Rep. Dig. Peer, vol. iv. p. 573) that on one occasion at least 
 the clergy were to be summoned in virtue of the Prae?nunientes clause, 
 when no aids, tallages, or other taxes were to be imposed. 
 
 1 Rot. Lit. Clans., 1 Ed. Ill, part ii. m. 16 d (printed, Rep. Dig. 
 Peer, vol. iv. p. 376). 
 
hsitt) 
 
 THE HOUSE OF LORDS ORNJ^^*' 157 
 
 predecessors had been summoned to Parliaments or Councils Chap. IX. 
 before the second year of Edward II. They had not been 
 summoned uniformly, but only at intervals, and not of right, 
 but only when they were willing (yoluntarie). The Prior, 
 complaining of the expense and trouble of coming to Par- 
 liaments or Councils, prayed a remedy. The facts, as 
 alleged by the Prior, were established by inspection of the 
 rolls of Chancery, and by certificate of the Treasurer and 
 Barons of the Exchequer. The latter showed in particular 
 that the ' Prior did not hold of the King by barony or 
 by part of a barony, or in any other manner in virtue of 
 which he ought to be summoned to such Parliaments or 
 Councils.' The King therefore, after advice with his 
 Council, and full deliberation, and in consideration of an 
 immediate aid for the war in France, granted, for himself 
 and his heirs, that the Prior and his successors should not 
 be summoned to the King's Parliaments and Councils, ' but 
 should be discharged and quit for ever from coming 
 thereto V 
 
 When a special meaning became attached to the ex- They begin 
 pression { Peer of the Realm,' the Bishops and the most *? claln J. 
 powerful of the Abbots began to take precautions that of Peers of 
 there should be no derogation from their dignity as Peers. as holding 
 Under the Constitutions of Clarendon they had been °y barony, 
 required, as tenants in capite, or holding by barony, to do 
 suit to the King, much against their will, and to attend 
 with the rest of the Barons in the King's Court. By 
 degrees they came to regard these irksome duties as badges 
 of temporal superiority, which might be used with effect on 
 certain occasions. If a temporal lord holding by barony 
 was a Peer of the Realm, they may have argued, so also 
 must be a spiritual lord holding in like manner by barony. 
 
 The earliest known use of the expression ' Peer of the The first 
 Realm,' or Pier de la Terre, occurs in a document of the useofthe 
 year 1322 (15 Edward II) : ' For the honour of God and of ' Peer of 
 Holy Church, and of our Lord the King, and for his profit i n e i 32 e 2 am 
 
 1 Rot. Lit. Ctaus., 15 Ed. Ill, part ii. m. 14 (printed, Rep. Dig. Peer, 
 vol. iv. pp. 535-536)- 
 
158 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. IX. 
 
 The 
 
 Prelates, 
 though 
 spiritual 
 lords, were 
 Peers only 
 by virtue 
 of their 
 temporal 
 possessions, 
 
 and that of his realm, and for the maintenance of peace and 
 tranquillity among his people, and for maintenance of the 
 estate of the Crown, show unto the King, the Prelates, 
 Earls, and Barons, and the other Peers of the Land, and the 
 Commons of the Realm,' certain charges against Hugh de 
 Despenser the father, and Hugh de Despenser the son. 
 One of the accusations was that the elder Despenser, by 
 procurement of the younger, had caused the King to revoke 
 a grant which had been confirmed in his Parliament at 
 Lincoln ' at the request and with the assent of the Peers of 
 the Land.' Another was that they had caused lands to be 
 forfeited, and had not instead suffered the King 4 to take 
 reasonable fines from the Peers of the Land and others 
 within his fee, as had been accustomed: The charges were 
 found to be true upon ' examination by the Earls, Barons, 
 and other Peers of the Land/ and judgement was given by 
 ! us, Peers of the Land, Earls, and Barons, in the presence of 
 our Lord the King.' The Despensers were to be banished 
 out of the realm of England, and never to return ' except 
 with the assent of our Lord the King, and with the assent 
 of the Prelates, Earls, and Barons, and that in Parliament 
 duly summoned 1 .' 
 
 It will be observed that among these five passages in 
 which the word ' Peers ' occurs there is not more than 
 one in which it is quite clearly applied to the spiritual 
 lords, and there are two in which the spiritual lords cannot 
 be included in the term. They cannot be among the 
 1 Earls, Barons, and other Peers of the Land,' as spiritual 
 lords are always mentioned before temporal lords. Still 
 less can they be among 'us, Peers of the Land, Earls and 
 Barons/ They do seem to be included as Peers in the 
 first passage, ' Prelates, Earls and Barons, and the other 
 Peers of the Land,' though even here the grammatical con- 
 struction might leave a doubt. The true explanation 
 seems to be that the Prelates, though recognized as spiritual 
 
 1 Printed in the Statutes of the Realm, vol. i. pp. 181-184, from Rot. 
 Lit. Clans., 14 Ed. II, m. 14, Cedilla. 
 
THE HOUSE OF LORDS 159 
 
 lords, were not spiritual peers, and, so far as they were Chap. IX. 
 peers at all, were entitled to the name only in virtue of 
 their temporal possessions, or baronies. The Bishops and 
 Abbots are classed together under the one head of Prelates, 
 and their title to the peerage must have been the same. 
 
 For most purposes, nevertheless, both Bishops and They 
 Abbots summoned to Parliament were, a few years later, certain 
 regarded as Peers. In the year 1329 (3 Edward III) the privileges 
 Bishop of Winchester was described in a law report l as as holding 
 one of the Peers and Judges of Parliament. In like b ? baron y- 
 manner the right both of Bishops and of Abbots to some 
 of the privileges enjoyed by Peers in civil actions was 
 undisputed. The privilege of having knights on the jury 
 when a Peer was a party was claimed by a Bishop in the 
 thirteenth year of the reign of Edward III. It was allowed 
 by the Court, and there was not even so much as a sug- 
 gestion that, for this particular purpose, the Bishop was 
 not to be regarded as a Peer 2 . In the same year another 
 privilege relating to a ' day of grace ' was claimed by the 
 Abbot of Ramsey on the ground that he held by barony 
 and was a Peer of the Realm. He failed, for other reasons, 
 to obtain that which was prayed on his behalf, but it was 
 not denied either that he was a Peer, or that his peerage 
 was consequent on his holding by barony 8 , The case of 
 Stratford, Archbishop of Canterbury, in 1341, has some 
 bearing on the claim of the Prelates to be regarded in all 
 respects as Peers of the Realm, and will be considered in 
 relation to the question of trial by Peers. 
 
 It was stated by counsel, and to all appearance admitted, 
 in the reign of Edward III that when any question arose as 
 to a name of dignity, there was an important distinction 
 between that of Abbot or Prior and that of Earl. The 
 question whether a man was an Earl could be determined 
 only by record in the Chancery ; the question whether 
 > he was ' Abbot or Prior lay in the cognizance ' of the 
 
 1 Year Book, Easter, 3 Ed. Ill, no. 32, rT°. 18-19. 
 
 2 lb., Trinity, 13 Ed. Ill, no. 2. p. 291. 
 
 3 lb., Easter, 13 Ed. Ill, no. 24. p. 223. 
 
160 CONSTITUTIONAL HISTORY OF 
 
 Chap. IX. country/ or (in other words) could be tried by a jury 1 . 
 This shows, as clearly as can possibly be shown, that Abbots 
 were not summoned to Parliament in virtue of any eccle- 
 siastical dignity, with which the Chancery (the office 
 whence the summons was directed) was not concerned, but 
 solely in virtue of the baronies which the Abbots held. 
 They In the reign of Richard II the Prelates defined their 
 
 ownclaim" c ^ a i m to De °f tne peerage in very clear terms. The occa- 
 to the sion was the ' appeal ' brought in Parliament against 
 
 holding by Alexander Neville, Archbishop of York ; Robert de Vere, 
 tfSref noi Duke of Ireland 5 Mi chael de la Pole, Earl of Suffolk; 
 Richard II. Robert Tresilian, Chief Justice of England, and others. 
 The Archbishop of Canterbury then made solemn declara- 
 tion that ' of right, and by 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 the 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 deter- 
 mine 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.' With regard to all and each of these matters, 
 he protested that he and they intended to be present, and 
 take part in that 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 any one of the Prelates, 
 according to the Institutes of the Holy Canons, in any 
 manner, to take part personally,' we intend to retire, ' saving 
 always the right of our peerage V The Bishop of Durham, 
 on his own behalf, and the Bishop of Carlisle, also on his 
 own behalf, made like declaration. The Archbishop of 
 
 1 22 Li. Ass. 24. 
 
 2 Rot. Pari., 11 Ric. II, no. 6 (printed, vol. iii. pp. 236-7). 
 
 
THE HOUSE OF LORDS 161 
 
 York was of course unable to say anything in relation to Chap. IX. 
 himself or the Prelates of his Province as he was one of the 
 persons accused, and did not appear. 
 
 We thus know precisely what position the Prelates took 
 up in the reign of Richard II, and that they did not 
 advance any claim to the peerage, except as holding of the 
 King by barony. They did not assert that they were Peers 
 in virtue of any spiritual office, but, on the contrary, ex- 
 pressly saved the rights of their order, whatever those 
 rights may have been, and so drew a distinction between 
 their position as Prelates and their position as the King's 
 tenants by barony, and Peers. They were, no doubt, 
 covertly asserting their ancient pretensions to be as nearly 
 as possible free from all lay jurisdiction when put upon 
 their trial. The assertion made by themselves that they 
 were Peers of the Realm was neither denied nor admitted 
 on this occasion, as they withdrew immediately after making 
 their declaration or protest. 
 
 The doctrine as to blood and its capacities is of great They were 
 
 importance in relation to the position of Lords Spiritual as J^^me 
 
 compared with Lords Temporal. It is, as we have seen, position as 
 
 not to be disputed that Spiritual Lords were in the reigns Lords even 
 
 of Edward III, and Richard II, described as Peers of the with regard 
 zj , _ . , . ' .'«,*., to their 
 
 Realm. It is, however, certain that neither during those lands. 
 
 reigns nor at any other time were they in the same position 
 
 as the Temporal Lords with regard either to their peerages, 
 
 or to the lands in virtue of which some or all of them 
 
 were recognized as Peers. 
 
 A Spiritual Lord held lands by barony, but yet his estate No corrup- 
 
 in his lands was never the same as that of a Temporal Peer. b °Q ° 
 
 It differed in relation to the most important legal doctrine affected the 
 
 of blood. No Spiritual Lord could, as such, transmit his to their 
 
 lands or his dignity to an heir. After his death his lands ^ ncl ^P r 
 
 & J dignities. 
 
 and his dignity went to his successor. If he committed 
 treason or felony and was attainted, the corruption of his 
 blood had no effect on the succession of his lands or of his 
 dignity. Whether Bishop or Abbot, a Spiritual Peer was 
 always a corporation, either a corporation sole or the head 
 
 M 
 
162 CONSTITUTIONAL HISTORY OF 
 
 Chap. IX. of a corporation aggregate ; and the blood of a corporation 
 could not be corrupted, or rather a corporation had no 
 blood to corrupt. A corporation aggregate could not 
 commit either treason or felony, and could not therefore be 
 subject to the penalties following upon the commission. If 
 a person who, in his official capacity, was a corporation sole, 
 committed treason or felony, he committed it as an in- 
 dividual and not as a corporation, and it was only as an 
 individual that he could suffer the penalty. A parson 
 might be attainted for treason, and executed, but the glebe 
 and the tithes were not forfeited to the Crown. A Bishop 
 or an Abbot might also be attainted, but the temporalities 
 of the bishopric or abbey, though seized into the King's 
 hand during vacancy, still remained the right of the abbey 
 or bishopric, and the succeeding Abbot or Bishop was 
 summoned to Parliament. 
 A Bishop Regarded from one point of view a Bishop did not even 
 even n0t hold either his particular dignity of Bishop or the lands 
 necessarily attached to his bishopric for life. He was subject to 
 particular deprivation, in which case his lands and his dignity went 
 dignity of to hjg successor. He might be translated to another see, 
 
 Bishop or & 
 
 his lands in which case the lands and the dignity of his first see went 
 or hfe. to j^g successor during his own life, and he acquired new 
 lands and a new dignity. His dignity, however, was purely 
 ecclesiastical ; his summons to Parliament, after the Con- 
 quest, was solely in consideration of the lands which he 
 held in barony. He was a Lord of Parliament, and was 
 styled a Spiritual Lord. He was a Peer, but not a Spiritual 
 Peer, as he derived his only claim to that title of honour 
 from his lay fees. He was not summoned and could not 
 sit in Parliament until he had obtained possession of the 
 temporalities of his bishopric. 
 The There is nevertheless good reason to believe that the 
 
 tenure" nature of their tenure would not have disqualified Bishops 
 of the anc j Abbots from being Peers in every sense of the word, 
 
 Lordsnot had they been prepared to act as other Peers on all 
 necessarily OCC asions. The Prior of the Knights of St. John of 
 
 a disquah- 
 
 fication for Jerusalem in England, held his lands in the same manner 
 
THE HOUSE OF LORDS 163 
 
 as any Abbot, and he was not only a Peer in all other Chap. IX. 
 senses, but sat in the Court of the Lord High Steward as com j 
 Baron and Peer, and gave his verdict of Guilty or Not peerage: 
 Guilty when a Peer of the Realm was there brought to ofStTohn 
 trial 1 . The Bishops and Abbots might have been no less of Jeru- 
 fully recognized as Peers of the Realm had the canons of 
 the Church not forbidden them to be present where judge- 
 ments of life or member were concerned, and had they not 
 attempted to render themselves exempt from all secular 
 jurisdiction. They missed their opportunity by grasping 
 at too much. 
 
 One of the most remarkable facts in the history of the The Lords 
 Bishops and Abbots, considered as Spiritual Lords, is that iJ^feii* 
 they ceased to be regarded as Peers of the Realm, while their claim 
 
 to DCf^rs-P^c * 
 
 the Priors of the Knights of St. John of Jerusalem, who w hn e the 
 were not fettered, like them, by the canons of the Church, £ rl ° r , of 
 
 bt. John 
 
 were not only Barons but Peers to the last. The practice was Baron 
 of trying Peers in the Court of the Lord High Steward, in ^.^0" 
 which the Lords Spiritual could not say Guilty or Not Henry vil, 
 Guilty, or pass sentence, and to which, as a necessary was styled 
 consequence, they were not summoned, was probably one only a Lord 
 of the factors in the exclusion of the Lords Spiritual from ment. 
 the rank of Peers. They still held by barony, but as the 
 idea of tenure by barony among laymen gradually died 
 out, the tenure ceased to be of itself a sufficient title to 
 peerage. In the very year in which John Kendall, Prior of 
 the Knights of St. John of Jerusalem, sat among the Barons 
 who tried the Earl of Warwick, the Abbot of St. Albans 
 was, in a law report, styled not a Peer of the Realm but 
 only a Lord of Parliament 2 . 
 
 Early in the reign of Henry VIII the position of the Grant to 
 Spiritual Lords received a very curious illustration in ^T^vis^ 
 a grant to the Abbot of Tavistock. His predecessors had tock to be 
 been frequently summoned to Parliament at various times Parliament 
 
 1 Baga de Secrelis, Pouch II (15 Henry VII), Pouch IV, Bundle 5 
 (13 Henry VIII). 
 
 2 Year Book, Trin., 15 Hen. VII, fo. 9. no. 12. 
 
 M 2 
 
164 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. IX. 
 
 in the 
 reign of 
 Henry 
 VIII. 
 
 The 
 
 doctrine 
 that a 
 Spiritual 
 Lord was 
 a Peer of 
 the Realm 
 was now 
 extinct. 
 
 down to the twenty-third year of Edward III \ but so far 
 as is known, not afterwards. In the recital of the grant 
 it appears that Henry wished c the Abbey or Monastery 
 to enjoy the honour, privilege, and liberties of the Spiritual 
 Lords of Parliament' He therefore granted to Richard 
 Banham, then Abbot of Tavistock, that he and each 
 succeeding Abbot of Tavistock should be ' one of the 
 spiritual and religious Lords of Parliament,' and enjoy all 
 the honour, privileges, and franchises attaching to the rank. 
 It was, at the same time provided that should any Abbot 
 of Tavistock be absent from Parliament, when summoned, 
 he should pay for every absence during any whole Parlia- 
 ment the sum of five marks 2 . This provision was set forth 
 in the light of a favour allowed by reason of the distance 
 which the Abbot might have to travel. 
 
 The doctrine that a Spiritual Lord was a Peer of the 
 Realm was now evidently extinct. He was a Lord of 
 Parliament, and nothing more. The Abbot of Tavistock 
 was in the same condition as many other Abbots whose 
 predecessors had been sometimes, but not always, sum- 
 moned to Parliament, whose predecessors had had the 
 burden of a summons, and had not recognized the dignity 
 conferred by it. It can, perhaps, hardly be said that Henry 
 created the Abbot of Tavistock a Lord of Parliament, as 
 his remote predecessors had sat among the Prelates. But 
 Henry did, at the least, declare that he and his successors 
 should be considered Lords of Parliament, whether they 
 came to Parliament or not. Had the same policy been 
 pursued in relation to other Abbots, the power of the 
 Church would have been greatly increased in the House of 
 Lords, notwithstanding the denial of the coveted title of 
 Peer of the Realm. The dissolution of the greater monas- 
 teries, however, a few years later had a directly opposite 
 effect. 
 
 1 Rot. Lit. Clans., 23 Ed. Ill, part 1. m. 19. d (printed, Rep. Dig. 
 Peer, vol. iv. p. 584). 
 
 2 Originalia Roll (Lord Treasurer's Remembrancer of the Ex- 
 chequer), 5 Hen. VIII, Ro. 12. 
 
THE HOUSE OF LORDS 165 
 
 The Spiritual Lords themselves appear to have now Chap. IX. 
 accepted their position as merely Lords of Parliament, and Th 
 not Peers of the Realm. . Archbishop Cranmer made no Prelates 
 claim of peerage when brought to trial in the reign of £, be Lords 
 Queen Mary. Staunford, who was a Justice of the Court of Parlia- 
 of Common Pleas in the time of Philip and Mary, and respect 
 whose recollection must have extended many years back- of t } iel J' 
 
 J J ancient 
 
 wards, compiled an excellent treatise on Pleas of the Crown, baronies. 
 Bishops and Abbots, he there wrote, ' enjoy the name of 
 Lord of Parliament .... not in respect of their nobility, 
 but in respect of their possessions — of the ancient baronies 
 annexed to their dignities V Sir Edward Coke also wrote 
 to the same effect 2 . In later times this appears to have been 
 held as settled law. The point is of importance, however, 
 chiefly in relation to the mediaeval doctrine of Blood, and to 
 the right of Trial by Peers. Further reference is made to it 
 in the chapter on the latter subject. 
 
 Though not in all respects on the same footing with the Dissolu- 
 Temporal Lords, the Spiritual Lords had an equal amount jj^f 
 of power until the greater monasteries were dissolved by asteries: 
 
 loss of 
 
 Henry VIII. Upon inspection of the earlier writs of power 
 summons it will be seen that the number of Bishops, tyfi* 
 Abbots, and Priors summoned to Parliament was some- Lords, 
 times in excess of the number of the lay Peers, and that 
 sometimes the conditions were reversed ; but after the reign 
 of Henry III there was never a very large majority on 
 either side except, perhaps, when the laymen were absent 
 on military service. New lay Peers were created, but on 
 the other hand lay peerages became extinct, while there 
 was always a successor to the ecclesiastical baronies which 
 were held in mortmain. Just before the dissolution of the 
 monasteries there appear to have been twenty-six Abbots 
 and two Priors who were summoned to Parliament. After 
 the dissolution six new bishoprics were created, and of those 
 six one (that of Westminster) ceased to exist on the trans- 
 lation of the first Bishop to another see in the reign of 
 
 1 Staunford, Les Flees del Coron, lib. iii. p. 153. 2 3 Inst. 30. 
 
i66 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. IX. 
 
 They 
 continued 
 to grow 
 relatively 
 weaker in 
 the House 
 of Lords. 
 
 Some 
 Bishops 
 are now 
 no longer 
 even Lords 
 of Parlia- 
 ment. 
 
 Edward VI. The strength of the Spiritual Lords was thus 
 diminished by twenty-three votes. 
 
 The Church never regained any of its lost power in the 
 House of Lords, but on the contrary became continually 
 weaker as new lay peerages were created in greater 
 numbers. In the time of Sir Edward Coke the House 
 consisted of twenty-four Spiritual Lords (the Archbishops 
 and Bishops), sitting by succession in respect of the baronies 
 which were ' parcel of their bishoprics/ and one hundred and 
 six Lords Temporal sitting by reason of the dignities 
 which they held by descent or creation 1 . In the reign of 
 Henry VIII the number of the Temporal Lords had been 
 computed to be about fifty-five, and it had thus nearly 
 doubled in about three-quarters of a century. The subse- 
 quent changes of proportion are shown more in detail in 
 the chapter on the Changes in the Component Parts of the 
 House of Lords. It may, however, be mentioned here that 
 another blow was given to the status of the Spiritual Lords 
 when it became law that not even the whole of the Bishops 
 should be entitled to a seat in the House. 
 
 In the year 1847 it was enacted 2 that when any vacancy 
 occurred in any see except those of Canterbury, York, 
 London, Durham, or Winchester, the Bishop elected to the 
 vacant see should not immediately be entitled to a writ of 
 summons to the House of Lords, unless translated from the 
 see of a Bishop actually sitting as a Lord of Parliament. 
 The Bishopric of Manchester had then been newly created, 
 and it was specially provided that the number of Lords 
 Spiritual sitting and voting as Lords of Parliament should 
 not be increased by the creation. There would thus be 
 always one English or Welsh Bishop without a seat in the 
 House of Lords. A Bishopric of St. Albans was created 
 in the year 1875, and it was again provided that the 
 number of Lords Spiritual sitting and voting as Lords of 
 Parliament should not be increased, and that when a vacancy 
 occurred in any see except the five previously excepted, 
 
 1 4 Inst. 1. 
 
 Stat. 10 & 11 Vict., cap. 108. sec. 2. 
 
THE HOUSE OF LORDS 167 
 
 a writ of summons should issue to the ' longest appointed Chap. IX. 
 Bishop ' who had not previously been entitled to it l . The 
 same words were used when the new Bishopric of Truro 
 was created in the following year 2 . In the year 1878 no 
 less than four new Bishoprics were created (Liverpool, 
 Newcastle, Southwell, and Wakefield), and with similar 
 provisions regarding the seat in the House of Lords 3 . 
 There are thus always seven Bishops without a seat, and 
 waiting their turn for a writ of summons according to 
 seniority. 
 
 In relation to the indisputable fact that Bishops once The 
 claimed to be Peers of the Realm in virtue of the baronies baronies 
 which they held, the comparatively recent transfer of the "* jrirtiie 
 
 1 r • t- 1 • • 1 •-> • • r Of Which 
 
 lands of the sees to Ecclesiastical Commissioners is of some Bishops 
 interest. The Ecclesiastical Commissioners were first in- ? al ^ ie f s to 
 corporated in the year 1835 4 . Powers were given to them now vested 
 to prepare schemes in accordance with the recommendations J^esiastical 
 contained in the reports of Commissioners ' to consider the Com- 
 state of the several dioceses in England and Wales with 
 reference to the amount of their revenues ' and other 
 matters 5 . It had been recommended that there should be 
 certain rearrangements of the various dioceses, and that, in 
 order to provide for the augmentation of the incomes of the 
 smaller bishoprics, such fixed annual sums should be paid 
 to the Ecclesiastical Commissioners, out of the larger sees, 
 as should leave an average annual income to the Arch- 
 bishop of Canterbury of fifteen thousand pounds, to the 
 Archbishop of York and the Bishop of London of ten 
 thousand, to the Bishop of Durham of eight thousand, to 
 the Bishop of Winchester of seven thousand, to the Bishop 
 of Ely of five thousand five hundred, to the Bishop of 
 St. Asaph and Bangor of five thousand two hundred, and 
 to the Bishop of Worcester and the Bishop of Bath and 
 Wells of five thousand each. Out of the fund thus accruing 
 
 1 The Bishopric of St. Albans Act, 1875, sec. 7. 
 
 2 The Bishopric of Truro Act, 1876, sec. 5. 
 
 3 41 & 42 Vict., cap. 68. sec. 5. 
 
 * Stat. 6 & 7 Will. IV, cap. 77. sec. 1. 5 lb., sec. 10. 
 
168 THE HOUSE OF LORDS 
 
 Chai\ IX. fixed annual payments were to be made by the Ecclesias- 
 tical Commissioners so that the average annual incomes of 
 the other Bishops should not be less than four nor more 
 than five thousand pounds. The scale of payment was to 
 be subject to revision at the end of every seven years 1 . 
 
 Various modifications were effected by subsequent Acts, 
 and in the year i860 it was enacted that upon the first 
 avoidance of the see of any Archbishop or Bishop in 
 England all the lands belonging to it (except lands attached 
 to residences in a scheme sanctioned by Order in Council) 
 should become vested absolutely in the Ecclesiastical Com- 
 missioners ~. It was also provided that after the lands of 
 a see had become vested in the Commissioners an arrange- 
 ment should be made for assigning to its Archbishop or 
 Bishop such lands as might be convenient, and as would 
 secure, as nearly as possible, a net annual income equal to 
 that named in any Act of Parliament or Order in Council 
 in force, and no more 3 . Archbishops and Bishops were 
 further restrained from granting any of the lands assigned 
 as their endowment except from year to year, or for a term 
 of years in possession not exceeding twenty-one 4 . To this 
 low worldly estate fell the successors of those Archbishops 
 and Bishops who had once proudly boasted that they held 
 by barony and were Peers of the Realm. 
 
 1 Stat. 6 & 7 Will. IV, cap. 77. sec. 1. 
 
 2 Stat. 23 & 24 Vict., cap. 124. sec. 2. 
 
 3 lb., sec. 3. 4 lb., sec. 8. 
 
CHAPTER X. 
 
 Judgement by Peers to the Reign of Richard II : End of 
 Appeals in Parliament : Beginning of Impeachments. 
 
 i 
 
 F a passage in the so-called Laws of Henry 1 1 may be Chap. X. 
 disregarded, the first mention of the ' Judgement of judgement 
 Peers ' in England occurs in the Great Charter of King John, of Peers 
 
 .11 . in King 
 
 ' No free man is to be taken, or imprisoned, or disseised, or out- John's 
 lawed, or in any way destroyed, nor will we proceed against ^5 ea [ 
 him, or direct proceeding against him, except in accordance 
 with the judgement of his peers, or in accordance with the 
 law of the land 2 .' It would, perhaps, be impossible to 
 exaggerate the importance of these provisions for the pro- 
 tection of the subject ; but the words 'judgement of his 
 peers ' must, at the time, have had a more restricted 
 application than is commonly attributed to them. 
 
 It is often asserted, and still more often assumed, that the It had no 
 judgement of a man's peers, in the case of a person of lower ^ith Trial 
 estate than that of a Peer o.f the Realm, must have been, in by Jury, 
 some way, the equivalent of trial by jury. It is absolutely 
 impossible, for two distinct reasons, that the words can have 
 had any such sense. In criminal cases, trial by jury had 
 not even been instituted, and the only modes of trial were by 
 ordeal, by compurgation, and by battle. From the time when 
 trial by jury first commenced, either in civil or in criminal 
 cases, to this present end of the nineteenth century, no jury 
 
 1 Leges Henrici Primi, Regis Angliae, cap. 31. 
 
 2 King John's Great Charter > cap. 39. 
 
170 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. 
 
 It had 
 
 reference 
 
 to matters 
 
 connected 
 
 with 
 
 feudal 
 
 tenure. 
 
 Suit of 
 Court : 
 the Pares 
 Curtis or 
 Curiae. 
 
 ever did or could give judgement on any matter whatso- 
 ever. The one persisting function of every jury (except 
 the accusing, presenting, indicting, or ' Grand ' Jury) is, and 
 always has been, to find a verdict, and not to give a judge- 
 ment — to inform the Court of the facts, in order that the 
 judgement may be pronounced by the Court. 
 
 King John bound himself in such a manner as to show 
 that 'judgement of peers' was one thing, the ' law of the 
 land ' another. The ' judgement of peers ' was, as will 
 presently be shown, a very simple matter and well under- 
 stood at the time. The ' law of the land ' included all legal 
 proceedings, criminal or civil, other than the judgement of 
 peers. The judgement of peers had reference chiefly to the 
 right of land-holders to their lands, or to some matters con- 
 nected with feudal tenure and its incidents. Thus in another 
 part of the charter a special remedy is provided for cases 
 in which any one ' had been disseised ' or removed by the 
 King ' without lawful judgement of his peers, from his lands, 
 his castles, his franchises, or his rights l .' So also in the 
 case of Welshmen disseised or removed without lawful 
 judgement of their peers, any dispute was to be settled by 
 lawful judgement of their peers in accordance with the law 
 (or particular custom) in Wales, England, or the Marches, 
 as the case might be 2 . 
 
 The judgement of peers in the case of persons holding 
 their lands not directly of the Crown, but of a mesne lord, 
 was the judgement of the other tenants of that lord, who 
 owed suit to the same Court, and were in that respect all 
 peers, or equals. A tenant in chief, holding of the Crown 
 a wide expanse of land, usually (until restrained by the 
 Statute of Quia Emptores) enfeoffed persons, to hold of 
 him, as their lord, by certain services. One of these services 
 was almost invariably Suit of Court, or the obligation to 
 attend the Lord's Court at stated times, if summoned, — 
 ordinarily once in three weeks. The Court was described 
 as the Baron's Court, or in the French of the period as Court 
 
 1 King John's Great Charter, cap. 52. 
 
 2 lb., cap. 56. 
 
THE HOUSE OF LORDS 171 
 
 Baron. The Peers of the Court [Pares Ctiriae or Pares Chap. x. 
 Curtis) were known wherever the feudal system prevailed '. 
 
 At the time when John granted his Great Charter, the The Court 
 remedy for the recovery of land by the possessory action of the Writ 
 Assise of Novel Disseisin was still comparatively new, of Right 
 
 , for under- 
 
 though it already formed a part of ' the law of the land, tenants. 
 Judgement in assise was given by the King's Justices. The 
 higher remedy, however, had been, was, and long continued 
 to be the Writ of Right, the essential feature of which was, 
 when tenants not holding in chief were concerned, that it 
 had to be brought in the Court of their superior Lord. It 
 issued out of the Chancery and purported to be a command 
 from the King to the Lord to do full right 2 . In later times, 
 the cause was commonly removed, after commencement in 
 the Lord's Court, by due process, into the County Court, and 
 thence into the Court of Common Pleas. In John's reign, 
 however, the Court Baron was of more importance than it 
 was when the King's Courts had obtained their full develop- 
 ment ; and the cause of a vassal which had relation to his 
 feudal rights was commonly decided by his fellow-vassals — 
 by his peers — in the Court of their common lord. 
 
 The rights of the Barons in relation to their Courts were The 
 most jealously guarded in the Charter. ' The writ called in^aMe, 
 
 Praecipe shall not henceforth be made out for any one in or Writ 
 r -i i_ <• °f Right 
 
 respect of any tenement in such a manner that a free man f or one 
 
 can lose his Court V This writ, known in later times as h °! d r m s m 
 
 _. . chief. 
 
 Praecipe in capite, was the Writ of Right applicable to 
 a tenant in chief of the Crown as distinguished from an 
 undertenant owing suit to the Court of his Lord. The 
 effect of using the Praecipe in capite in the first instance as 
 
 1 Edict. Conrad II (Pertz, ii. 39) ; Constit. Fred. I (Pertz, ii. 114). 
 See also Cujacius, De Feudis, lib. i. tit. i., &c. ; J. A. de Sancto 
 Georgio, col. 299, &c. Even in Domesday Book, among the C/amores 
 of Yorkshire (printed, vol. i. p. 374 a), William de Perci calls his peers 
 to witness that he was seised of Bodetone, and held it, while William 
 Malet was living and had the shrievalty of the county. 
 
 2 Registrant Brevium Originalttmi, 1 ; Fitzherbert's Natura 
 Brevium, 1-10. 
 
 3 Cap. 34. 
 
172 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. 
 
 In the 
 lntter the 
 King's 
 Courts 
 (over 
 which the 
 Curia 
 Regis or 
 House 
 of Lords 
 retained 
 control) 
 had ex- 
 clusive 
 juris- 
 diction. 
 
 a remedy for an undertenant, without licence from the lord, 
 would, of course, have been to deprive the lord's Court of 
 its jurisdiction ; and the Barons were evidently as anxious 
 to preserve the courts held under them as to secure the 
 right of themselves and others to judgement by peers. 
 
 When the Common Bench was fully established as 
 a distinct Court, it had exclusive jurisdiction (except in 
 counties in which the Court of the Justices in Eyre was 
 sitting), in all writs of Praecipe in capite, or Writs of Right, 
 in which the demandant claimed to hold in chief, as of the 
 Crown. It might consequently appear, at first sight that 
 undertenants suing in the Court of their lord, had the 
 judgement of their peers, while the tenants in chief, or 
 Barons, who were also equal among themselves, and Peers 
 of the King's feudal Court, failed to secure the same 
 privilege. All the King's superior Courts, however, were, 
 as has already been shown, only offshoots of the original 
 Curia Regis, to which the tenants in chief, or barons, owed 
 suit, just as the undertenants owed suit to the Court of the 
 Baron of whom they held. The original Curia Regis, or 
 that part of it, which was in later times known as the 
 Parliament, or House of Lords, always remained the Court 
 of final jurisdiction, when any error was alleged in Courts 
 below, and, for a very long period (as has been proved in 
 another chapter) retained a hold upon them, and directed 
 their course of proceeding when petitions were made to it 
 during the progress of an action. It was also expressly 
 provided in John's Great Charter 1 that amercements in 
 Court should not be enforced against Earls and Barons 
 except by their peers. Thus, although the pressing affairs 
 of state, and the increase of legal business caused law 
 proceedings in detail to be entrusted to special courts, those 
 courts were subordinate to the higher jurisdiction of the 
 suitors to the King's Court, or of the House of Lords. 
 Matters affecting the Earls and Barons could therefore never 
 be finally decided otherwise than by their peers, except 
 
 1 Cap. 21. 
 
THE HOUSE OF LORDS 173 
 
 through their own acquiescence in the decisions of a Chap. X. 
 lower tribunal itself owing its origin to the King's Great 
 Court. 
 
 The idea of trial and judgement by peers, being strictly Feudal 
 of feudal origin, had no direct relation to criminal offences, a f e cted by 
 except in so far as they affected feudal rights by way of forfeiture 
 
 , r r .. . or escheat 
 
 forfeiture. The idea itself, however, was familiar to the for Treason 
 mind of every land-holder ; and, as treason and felony in- or * elon y- 
 volved forfeiture or escheat, it was very natural that trial by 
 peers should have been desired by tenants in capite. When 
 the Great Charter was obtained from King John he had 
 himself quite recently been cited, as Duke of Normandy, to 
 appear before the King (Philip Augustus) and the Peers of 
 France for felony committed in the murder of his nephew 
 Arthur. He did not appear ; and sentence was passed 
 against him that he should forfeit to his superior lord, 
 the King of France, all his seignories and fiefs in that 
 kingdom. 
 
 It is not necessary to enquire whether the action of the Earls and 
 French Court of Peers was strictly in accordance with bundled 
 precedent ; it is sufficient to know that, just before King by Earls 
 John granted his Great Charter, he had himself suffered not Barons, 
 a little from the judgement of his peers. It can hardly be J*' h< r n dis " 
 doubted that, when judgement by peers was mentioned in was in 
 the Charter, the Earls and Barons interpreted it to mean Potion, 
 that, in cases of alleged treason and felony, when forfeiture reign of 
 or escheat was involved, they should be judged only by enry 
 Earls and Barons Regarded from another point of view — 
 from the point of view of the Sovereign in relation to the 
 safety of the Crown — the doctrine of trial by peers in cases of 
 treason was accepted only in a hesitating manner as late as 
 the reign of Henry III. The King himself, said Bracton 1 , 
 cannot be judge, because he would then be prosecutor and 
 judge in his own cause. Nor can the Justices, because in 
 giving judgement they represent the person of the King. 
 * Who then shall judge? Without prejudice to any better 
 
 1 Bract. H9-ii9b. h[JNI VERSITY 
 
 CAUFORNlA^ 
 
174 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. 
 
 This judge- 
 ment by 
 Peers not 
 identical 
 with the 
 later trial 
 by Peers. 
 
 Courts 
 differently 
 constituted 
 according 
 to grada- 
 tions in 
 treason. 
 
 Mode of 
 trial still 
 not settled 
 in the 
 reign of 
 Edward II : 
 Gaveston's 
 
 opinion, it seems that the Court and Peers shall judge,' 
 especially where, on the prosecution of the King, there is 
 peril of life and member, or peril of disherison. 
 
 As soon as this doctrine was accepted, Earls and Barons 
 could clearly be judged only by Earls and Barons '. This 
 judgement, however, was not identical with the trial by 
 Peers of a later time, when the Peers not N only pro- 
 nounced sentence but found the accused Peer guilty or not 
 guilty, and then gave judgement on their own finding. 
 Bracton's only idea of the mode of accusation seems to have 
 been that of an ' appeal.' Subject to certain preliminaries 
 the question of guilty or not guilty was, in that case, 
 decided by battle. The trial therefore, the ascertaining of 
 the fact, was, though under the direction and control of the 
 Court of Peers, by battle, but the judgement on the trial by 
 battle was to be given by the Peers. 
 
 The definition of High Treason, or Lese Majeste, was at 
 this time very vague. It was sometimes regarded as 
 a felony, sometimes as a mere trespass, according to the 
 gravity of each particular case. Even the treason-trespass 
 had its degrees, and the lighter forms, as being punishable 
 only by pecuniary fine, were excepted by Bracton from the 
 necessity of judgement by Peers, and placed within the 
 jurisdiction of the Justices. The graver forms, the punish- 
 ment for which approached disherison, because apparently 
 the transgressor's lands had to be redeemed from forfeiture, 
 were placed in a middle position, and Peers were to be 
 associated with the Justices in giving judgement 2 . 
 
 Though punishment of the most severe kind was inflicted 
 for ' treason,' it was long before the definition of treason 
 itself or the doctrine of trial by Peers made much advance 
 towards precision. The troubled reign of Edward II afforded 
 many instances of conspiracy against the King, and of 
 
 1 According to the parallel passage in Britton (lib. i. cap. 23. sec. 8) 
 it appears to have been thought that all appeals of High Treason 
 against any persons should be heard by Earls and Barons in time of 
 Parliament. 
 
 2 Bract. 119 b. 
 
THE HOUSE OF LORDS 175 
 
 execution for treason, but in the midst of arms laws are silent. Chap. X. 
 Piers Gaveston, the King's favourite, had already been twice 
 banished and had twice returned. In the year 1311, 
 a Committee of Lords, known as the Lords Ordainers, 
 framed, among other articles, one to the effect that for 
 having given bad advice to the King, and other alleged 
 offences, he should as a public enemy be banished a third 
 time from the realm, and, if found within the King's 
 dominions after a day named, should be treated as a public 
 enemy 1 . He had had no trial, and no opportunity of 
 defending himself. He did, however, return to England, 
 was compelled to surrender while serving the King to the 
 best of his power, and was afterwards beheaded 2 . His 
 death was desired by the great majority of the Earls and 
 Barons, and advantage was taken of their general Ordinance 
 to put him out of their way. This may have been a judge- 
 ment, but certainly was not a trial by Peers. According to 
 several accounts, the four Earls of Warwick, of Lancaster, 
 of Hereford, and of Arundel, appear to have been concerned 
 in the execution 3 . According to another account no peers 
 at all were concerned in the final judgement. The Justices 
 of Gaol Delivery appointed to deliver the gaol of Warwick, 
 it is said, pronounced sentence in virtue of the Ordinance 
 which they regarded as still in force. The beheading of 
 Gaveston, it is added, the Peers of the Realm having been 
 neither present nor even summoned, excited undying 
 animosity between the King and the Earls 4 . 
 
 The case of Hugh le Despenser the elder, and Hugh le Banish- 
 Despenser the younger had, in its early stages, some show nespensers 
 of proceeding by due course of law, for the Prelates, Earls, b y Peers 
 Barons, and other Peers, together with the Commons, are Realm. 
 
 1 Rot. Pari., 5 Ed. II, no. 20 (printed, vol. i. p. 283). 
 
 2 Trokelowe, Annates (Rolls Series), p. 77. 
 
 3 Annates Lotidonienses de tempore Edwardi Secimdi (Rolls Series), 
 p. 207 ; Annates Paulini (Rolls Series), p. 271 ; Vita Edwardi 
 Secwidi, Auct. Malmesb. 179-180 (Rolls Series); Vita et Mors 
 Edwardi Secimdi (Rolls Series), p. 298. See also Murimuth (Rolls 
 Series), p. 17. 
 
 4 Gesta Edwardi de Carnarvan (Rolls Series), pp. 43-44. 
 
176 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. represented as having framed the accusation. The ' Earls 
 
 and Barons and other Peers of the Realm' found 'by 
 
 examination,' though in the absence of the persons accused, 
 
 that the alleged misdeeds of the Despensers (nearly of the 
 
 same nature as those of Gaveston) were notorious and truly 
 
 alleged. The ' Peers of the Realm, Earls and Barons,' in 
 
 the King's presence, passed sentence of disherison and 
 
 banishment, adding that, if found in the kingdom after the 
 
 day appointed for their departure, the Despensers were to be 
 
 treated as enemies of the King and of the kingdom l . 
 
 The Earl The case of Andrew Harcla, Earl of Carlisle, was very 
 
 degraded, 6 different from those of Gaveston or the Despensers, because 
 
 and then the King himself regarded Harcla as a traitor, while the 
 
 as a traitor, charges against the others proceeded only from those who 
 
 without were opposed to the King's party, and could hardly be 
 
 judgement described as treason against the King. The accusation 
 
 by Peers. a g a i ns t Harcla was that of treasonable correspondence with 
 
 the Scots who were the King's enemies. He was not, 
 
 however, judged by his peers, but by a Court constituted by 
 
 special commission, and consisting of Edmund, Earl of Kent, 
 
 the King's uncle, John de Hastings, also the King's kinsman, 
 
 three knights, and the Chief Justice of the King's Bench. 
 
 The commission which they received was not to try him, 
 
 but to degrade him from his rank and pronounce judgement 
 
 on him after degradation, in the terms of the instructions sent 
 
 to them, for enmity to the King, and sedition. His guilt was 
 
 established by the simple formula that his misdeeds were 
 
 ' notorious and acknowledged in the realm ; and our Lord 
 
 the King records the fact.' His sword of earldom was 
 
 accordingly taken from him, and his spurs cut away 
 
 from his heels, and when he had been thus deprived of 
 
 his dignity, the sentence for treason in all its horror was 
 
 passed upon him 2 . 
 
 As Harcla was degraded first, and underwent judgement 
 for treason afterwards, it may be maintained that he was 
 
 1 Rot. Lit. Clans., 14 Ed. II, m. 14, Cedilla {Statutes of the Realm, 
 i. 184). 
 
 2 P tacit a coram Rege, Hilary, Rex, R°. 34 d. 
 
THE HOUSE OF LORDS 177 
 
 not judged as an Earl, and consequently that he was not, Chap. X. 
 as an Earl entitled to trial or judgement by Peers. It 
 must, however, be obvious that, if the King could at his 
 pleasure, or by recording any statement as being notorious, 
 degrade a Peer from his peerage, the right of trial or judge- 
 ment by Peers would be nugatory. 
 
 The banishment of the Despensers was, in fact, but the Case of the 
 triumph of the political party opposed to them. This was Lancaster, 
 very speedily followed by their return, and by a reversal 
 of the sentence against them 1 . Soon afterwards the 
 Earl of Lancaster, who was at the head of the opposite 
 faction, fell in his turn into the hands of the King's 
 party, and was sentenced to die the death of a traitor 
 (drawing included) ; but, being of the blood royal, he was 
 only beheaded. There is little doubt but that he had been 
 in treasonable correspondence with the Scots ; and he was 
 taken when in arms against the King. From York he was 
 carried to Pontefract where the King was, and on the 
 following day he was brought to judgement. There was 
 no time for any strictly formal proceedings even of the 
 nature of a Court Martial. Some peers were present ; his 
 misdeeds were ' recorded ' and judgement was pronounced. 
 He was not even allowed to say a word in defence 2 . 
 
 At the end of the reign, when the King's cause was lost, The 
 the Despensers had the misfortune to be taken by their 2ntSiced rS 
 enemies. Each was adjudged to suffer the full penalties of to death, 
 treason, the younger a little after the elder. Neither was p res idin g 
 allowed to say anything in his defence. Their previous "J the 
 banishment (though the sentence had been annulled) and 
 their return to the realm, as well as their subsequent acts, 
 were alleged as the causes of the judgement now given 
 against them. The Court by which they were sentenced 
 appears, in each case, to have consisted of Earls and Barons. 
 
 1 Rot. Pari., 1 Ed. Ill {Petitions in Pari.), no. 1 (printed, vol. ii. 
 P- 7)- 
 
 2 Id., 1 Ed. Ill, no. 1 (printed, vol. ii. pp. 2-3); Annates Paulini 
 (Rolls Series), pp. 302-3 ; Gesta Edwardi de Camarvan (Rolls Series), 
 p. 77', Auct. Malmesb. (Rolls Series), pp. 270-271. 
 
 N 
 
178 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. 
 
 Cases of 
 the Earl 
 of Kent, 
 and of 
 Mortimer : 
 judgement 
 but not 
 trial by 
 Peers. 
 
 No clear 
 distinction 
 
 It used as its mouth- piece William Trussel, who is described 
 as a knight, and who was appointed Justice for the occasion. 
 He performed some of the functions which would, at a later 
 time, have been performed by the Lord High Steward, as 
 President of the Court 1 , but there is no evidence that any 
 William Trussel had, so early as the reign of Edward II, 
 been summoned among the Barons or other Peers to 
 Parliament. He was, however, probably the William 
 Trussel who, soon afterwards pronounced the deposition 
 of Edward II. 
 
 It is, indeed, clear that as each faction obtained the 
 mastery, it took revenge upon its opponents ; and as the 
 lands of traitors were forfeited for treason and could then 
 be granted to others, there were excellent grounds for 
 passing judgement, but none for a fair and impartial trial. 
 As at the end of the reign of Edward II, so at the beginning 
 of the reign of Edward III, the political party which proved 
 itself the stronger wrought its will, in turn, upon the lives 
 and lands of its principal adversaries. The Earl of Kent 
 was treacherously inveigled by the emissaries of Roger 
 Mortimer, Earl of March, into an undertaking for which he 
 suffered death and forfeiture as a traitor ; and Mortimer 
 himself was not long afterwards drawn and hanged for 
 treason, by the judgement of Earls and Barons, as Peers 
 and Judges of Parliament 2 . In each case it may be said 
 that judgement was given by the Peers ; but in each case 
 the judgement was a foregone conclusion, and depended 
 solely upon the will of a party. Each party said that the 
 misdeeds of the other were ' notorious,' and notoriety sufficed 
 in place of any trial in due form. Each party in its turn 
 reversed, when triumphant, the attainders which its members 
 had suffered in times of adversity. 
 
 At this period (at the end of the reign of Edward 1 1 and 
 
 1 Annates Paulini (Rolls Series), pp. 317-320 ; Gesta Edwardi de 
 Carnarvan (Rolls Series), pp. 87-89 ; Auct. Malmesb. (Rolls Series), 
 p. 289 ; Vita et Mors Edwardi Secundi (Rolls Series), pp. 311, 312. 
 
 2 Rot. Pari., 4 Ed. Ill, no. 1 (printed, vol. ii. pp. 52-53), nos. 11 and 
 12 (printed, vol. ii. p. 55). 
 
THE HOUSE OF LORDS 179 
 
 the beginning of the reign of Edward III) it is plain that Chap. X. 
 
 neither the doctrine of judgement by Peers, nor the doctrine between 
 
 of trial by Peers, had been reduced to any precision. The proceed- 
 ftr , /. •« 1 • 1 , ings on in- 
 
 different modes of proceeding recognizee in later times dictment, 
 
 were not yet distinguished from each other. There was no on 1 " 1 * 
 
 J ° peachment, 
 
 clear discrimination between the course to be adopted when and by 
 the accusation took the form of indictment, and that to be A t ta ° nc j er 
 adopted when it took the form of impeachment. Bill of when 
 Attainder was not clearly marked off from impeachment ; ascended 
 and impeachment was not as yet even a technical term, but the throne, 
 was used for any kind of accusation. No case (so far as is 
 known) had hitherto been tried by the Peers in the Court 
 of the Lord High Steward. 
 
 It is nevertheless in this troubled period, ; when Judge- Trial of 
 ment by Peers ' was a phrase in common use, when trial by Lords* 1 * 
 Peers had yet no settled form, and when the Statute of 
 Treasons had not yet become law, that the right of the 
 Spiritual Lords to trial by Peers is, if anywhere, to be 
 sought. 
 
 Much has been written on the subject in later times, From the 
 but it is by no means clear that the Prelates, though, as we conquest 16 
 have seen, allowed to be Peers of the Realm, had hitherto they had 
 claimed that Peers of the Realm should try them or be to escape 
 their judges in accusations of treason or felony, still less f rom la >' 
 
 • r 1 • 1 x • • J llris - 
 
 in accusations of any other kind. It is quite certain that diction : 
 since the Conquest they had persistently attempted to mstances - 
 render themselves exempt from all lay jurisdiction. In the 
 reign of the Conqueror, Odo, Bishop of Bayeux, asserted 
 the clerical privilege, saying, ' I am a clerk and minister of 
 the Lord ; it is not lawful to condemn a Bishop without 
 the judgement of the Pope/ The Conqueror took the 
 matter into his own hands, and condemned him not as 
 a Bishop but as an Earl, because he was Earl of Kent l . 
 This, however, did not settle the question of clerical privi- 
 lege, or prevent its re-assertion in subsequent reigns. In 
 the reign of Henry II Becket refused to abide by the 
 
 1 Ordericus Vitalis (French Hist. Soc), p. 189. 
 
 N 2 
 
180 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. jurisdiction of the King's Court in a matter of account. 
 The Barons adjudged that he ought to be taken and im- 
 prisoned. Two Earls went to announce the fact to him, 
 and he said, ' I forbid you, on the part of Almighty God, 
 and under anathema, from rendering judgement on me this 
 day, as I have appealed to the presence of the Lord the 
 Pope 1 .' In the reign of Richard I it was adjudged, in 
 the King's Council or Court at Northampton, that Hugh 
 de Nunant, Bishop of Coventry, should be peremptorily 
 cited to answer for acting in a manner contrary to the fealty 
 which he had sworn. It was further adjudged that, should he 
 fail to appear within forty days, he should be subject to the 
 judgement of the Bishops in that he was a Bishop, and to 
 the judgement of laymen in that he had been the King's 
 Sheriff 2 . He had in fact been Sheriff of the counties of 
 Warwick and Leicester in the second, fourth, and fifth 
 years of the reign 3 . As an officer, therefore, he was 
 regarded as being subject to lay jurisdiction, though not 
 apparently of necessity that of Earls or Barons ; and as 
 a Bishop he was regarded as being subject only to eccle- 
 siastical jurisdiction. 
 Doubts in In the time of Henry III Bracton expressed himself 
 HenryTlI. w ^ tn doubting words to the effect that no clerk, of high or 
 low degree, could be outlawed, and he mentioned a Bishop 
 as having the exemption. The reason was that they could 
 have compurgation in Court Christian. If a Bishop could 
 not be outlawed upon an accusation of High Treason, after 
 having fled, it would seem to follow that he could not have 
 any judgement pronounced upon him in any secular Court. 
 Bracton, however, carefully guarded himself by saying that 
 the doctrine as to outlawry was only the opinion of ' some 
 persons 4 .' Men were therefore still in some uncertainty 
 as to the law. 
 
 1 Hoveden (Rolls Series), vol. i. pp. 224-228. 
 
 2 13., vol. iii. p. 242. 
 
 3 Great Rolls of the Exchequer of the respective years under the 
 head of Warwickshire and Leicestershire. 
 
 4 Bract. 134 b. 
 
THE HOUSE OF LORDS 181 
 
 Soon after the accession of Edward II Walter Langton, Chap. x. 
 Bishop of Coventry and Lichfield, was accused of having Langton 
 committed various offences while holding the office of Bishop of 
 Treasurer in the previous reign. According to one instru- a nd Gn ry 
 ment he had presumptuously usurped power, under colour M ^ 1 ?' 
 of his office, and effected sales, alienations, and waste of the justices of 
 King's lands, to the disherison of the Crown, and in deroga- fj! y ^ r . and 
 tion of the King's royal estate 1 . According to another 
 document he was further accused of intolerable injuries 
 and oppression, inflicted by means of certain conspirators 
 and others who were his adherents 2 . Special Commissions 
 of Oyer and Terminer issued for hearing and determining 
 the charges. None of the Commissioners were Peers. They 
 were Brabazon, Chief Justice of the Court of King's Bench. 
 Hegham,or Hengham Chief Justice of the Court of Common 
 Pleas, Bereford, a Puisne Justice of the latter Court, and 
 William Inge, afterwards also a Puisne Justice of the same 3 . 
 No question as to trial by Peers arose. Neither the word 
 Treason nor the word Felony, it is true, is mentioned in either 
 form of accusation. The charges, however, bore a very strong 
 resemblance to some of those brought in the following reign 
 against Archbishop Stratford, who, it has been sometimes 
 asserted, successfully claimed the right of trial by Peers. 
 That claim will be considered in another place. In the 
 meantime it may suffice to note that Langton was thrown 
 into prison 4 , and was released only on the interposition 
 of the Pope 5 . Thus, like his predecessor in the see, Hugh 
 de Nunant (though the ecclesiastical power may have saved 
 him as a Bishop), he was, as the King's officer, regarded as 
 being amenable to the jurisdiction of the King's Justices. 
 
 The privileges of the clergy were declared and confirmed Benefit of 
 in the ninth year of the reign of Edward II. It was then Edward 
 beyond all doubt the law that an ecclesiastic should not «« 
 
 1 Rot. Lit. Pat., i Ed. II, part i. m. 8 d. 
 
 2 Also Rot. Lit. Pat., I Ed. II, part i. m. 8 d. 
 
 3 The two patents as above. 
 
 4 Annates Paidini (Rolls Series), p. 257. 
 6 lb., p. 264. 
 
182 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. 
 
 Case of 
 Adam de 
 Orleton, 
 Bishop of 
 Hereford. 
 
 The Com- 
 mission to 
 enquire, 
 and in- 
 dictment. 
 
 Orleton 
 refuses to 
 answer in 
 the King's 
 Bench. 
 
 receive judgement before any secular judge in relation to 
 any matter by which he could be brought into peril of life 
 or member 1 . High treason, above all other crimes, in- 
 volved peril of life and member ; but it seems to have been 
 supposed, even before the passing of the Act, and it was 
 certainly held in later times, that privilege of clergy did not 
 extend to cases of high treason 2 . 
 
 The case of Adam de Orleton, Bishop of Hereford, also 
 in the reign of Edward II, is perhaps the first in which 
 there is any authoritative account in detail of proceedings 
 against a Prelate accused of felony and high treason. The 
 whole course of action against him is of a very remarkable 
 character. 
 
 The King 3 directed a writ to the Justices of the King's 
 Bench 4 , which was of the nature of a Commission of Oyer 
 and Terminer. They were to enquire in various counties as 
 to felonies, robberies, trespasses, meetings, conspiracies, and 
 confederacies lately moved against the King by his enemies 
 who had rebelled against him. The word ' Treason ' was 
 not mentioned in the instrument, but in an Inquisition which 
 was taken in virtue of it, the Jurors presented that Roger 
 de Mortimer the nephew, and others, with a numerous 
 army of horse and foot, levied war against the King. 
 Mortimer, they said, held a secret conference with the 
 Bishop of Hereford, who on the following day sent some 
 of his own men-at-arms to reinforce the rebel army, 
 with which they marched towards Gloucester, committing 
 various trespasses against the King and people. 
 
 Upon this indictment the Bishop was ' attached.' He 
 appeared in the Court of King's Bench on January 23, 
 1323-4, and being asked by the Justices how he would 
 acquit himself, he said that he was Bishop of Hereford, at 
 the will of God and of the Pope, that the matters charged 
 against him were of so high a nature that he ought not to 
 
 1 Stat. 9 Ed. II (Arliculi Cleri), cap. 15. 
 
 2 2 Inst. 634. 
 
 3 Placita coram Rege, Hilary, 17 Ed. II, R°. 87. 
 
 4 l Justiciariis ad placita coram nobis tenenda as signal is.' 
 
THE HOUSE OF LORDS 183 
 
 answer in that Court, and that he could not answer without Chap. X. 
 
 offence to God and Holy Church. He was thereupon 
 
 required to appear in person from day to day to hear 
 
 judgement. 
 
 The record contains no mention of any intermediate days, Refuses to 
 
 but on the following 24th of February the Bishop ' came p 1 ^. *? 
 
 before the Lord the King himself in full Parliament.' The ment, be- 
 
 whole matter was recited in his presence and that of the Bishop: 
 
 ' Earls, Barons, and other the King's lieges.' It was also case re_ 
 
 11 -n 1 tx/t i,,i, Tii mittedto 
 
 recited that Roger de Mortimer had already been adjudged the King's 
 
 a traitor for having seditiously levied war against the King, Bench - 
 
 and that one of the men-at-arms sent by the Bishop to aid 
 
 him had already been found guilty of treason. The Bishop 
 
 was then asked whether he had anything more to say than 
 
 he had previously said, and he replied as before that, being 
 
 Bishop of Hereford, he could not answer without offence to 
 
 God and Holy Church. The Archbishop of Canterbury 
 
 thereupon made a demand that the Bishop, as being one 
 
 constituted in the episcopal dignity, should be delivered to 
 
 him. This was conceded, but the Archbishop was required 
 
 to produce the Bishop in the Court of King's Bench on 
 
 the Monday next before Mid-Lent, for which day the Sheriff 
 
 of Hereford was to summon a jury. 
 
 The Archbishop, the Bishop, and the jury, of whom five is con- 
 were knights, came into Court on the appointed day. The ™iuy, b ^ t 
 jury found not simply a verdict of 'guilty' or 'not guilty,' has benefit 
 but a verdict against the Bishop which followed the words 
 of the indictment. Judgement was given that the Bishop 
 should remain in the custody of the Archbishop as a Clerk 
 Convict, and that his goods and chattels, lands and tene- 
 ments, should be seized into the King's hand. 
 
 The Bishop of Hereford, when arraigned in the King's 
 Bench, thus claimed no privilege of peerage, but only privi- 
 lege of clergy. Then followed that which is common enough 
 in the civil causes of the period — a reference to the King in 
 Parliament on a point of difficulty, the cause still remaining 
 to be determined in the Court of first instance, into which 
 it was afterwards remitted for trial by a jury. Nothing 
 
184 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. was decided in Parliament, except that in this particular 
 
 case Orleton should have his clergy 1 . 
 Inaccurate The King (or rather, perhaps, as may be inferred from 
 the°matter t ^ ie st Y^ some ecclesiastic on his behalf) afterwards wrote 
 sent to the to the Pope, giving an account of the matter which is not 
 strictly in accordance with the authoritative records of the 
 Court of King's Bench. He said that Orleton ' had taken 
 part with others in the crime of High Treason, and that the 
 whole of the facts had been made clear not by fleeting or 
 merely assertive rumour, but by lawful process in full 
 Parliament, in the presence of Archbishops, Bishops, 
 Nobles, and other Magnates of the Realm, according to 
 the law and custom thereof The King also took credit 
 for having dealt leniently with the Bishop, saying. ' although 
 we might have proceeded against him more rigorously, yet, 
 by reason of reverence for the episcopal order, we left him to 
 be judged, in respect of the crimes aforesaid, inforo ecclesiae' 1 ! 
 The letter is not without value in relation to the sub- 
 sequent attitude of Stratford, as stated by ecclesiastics 
 rather than by lawyers. It contains the positive, if not 
 true, assertion that the whole case against Orleton was 
 heard in Parliament. It suppresses the fact that the verdict 
 against him was found by a jury in the Court of King's 
 Bench, and that the judgement was pronounced in that 
 Court by the Justices without the assistance of any Peers 
 whatever. Taken by itself it might seem to show that the 
 Bishop of Hereford obtained that trial by Peers, which he 
 not only never claimed, but which he distinctly refused. 
 At the beginning of the following reign a petition was 
 
 1 Sir Edward Coke (2 Inst. 634) has cited Orleton's case in proof of 
 the doctrine that there was, at common law, no benefit of clergy in 
 cases of High Treason. He was misled, as to the facts, as others have 
 been since, by an account of the matter, written long after the event, 
 by Walsingham, and has thus put the case : — ' Because he could not 
 have any privilege of clergy by the common law, the Archbishops of 
 Canterbury, York, and Dublin, «and their Suffragan Bishops came to 
 the bar, in that disordered time, and with force took him from the bar, 
 all which was done by pretext and colour of the canons of the Church.' 
 
 2 French and Roman Roll, 15-18 Ed. II, m. 1. 
 
ITT) 
 
 XXNIVERS 
 THE HOUSE OF LORDS V Cah^ui. i8 5 
 
 addressed, on behalf of the Bishop, to the King and Chap. X. 
 Council, complaining that the judgement which had been The 
 given against him in the Court of King's Bench was judgement 
 
 . reversed bv 
 
 erroneous. The proceedings which followed, though in Parliament 
 themselves remarkable, do not indicate that the question in . the f 
 
 7 x reign ot 
 
 of trial by Peers was raised. They were held before the Edward 
 
 King and Council, Prelates, Earls, Barons, Magnates, and w i t h ]J t 
 
 the whole commonalty of the Realm 1 . The reversal of reference 
 
 judgement, which followed, thus partook more of the nature question of 
 
 of later Acts, in which Attainders were reversed, when one J" al b ^ 
 ' m Peers. 
 
 political faction succeeded in overpowering its previously 
 triumphant rival, than of proceedings upon a writ of error 
 in the House of Lords. Several minor technical points are 
 found among the assignments of error, but the principal 
 was that the articles under which the Justices of the 
 King's Bench were to enquire, though extending to felony 
 and robbery, did not include the levying of war. In 
 another document 2 much is made of the fact that the Bishop 
 was convicted by a jury, though he had not accepted that 
 mode of trial. As has already been shown, however, the 
 Bishop refused to put himself upon the country, because he 
 claimed the privilege not of peerage but of clergy ; and 
 there was no irregularity in taking an ' inquest of office ' 
 in such a case. Nowhere is it stated that the jurisdic- 
 tion of the Court of King's Bench was called in question 
 on the ground that Orleton was a Peer of the Realm. 
 When the judgement was reversed, no reasons were given. 
 For all that appears, therefore, it may have been held as 
 law, in the reign of Edward II, that a Bishop might be 
 arraigned for felony in the Court of King's Bench, and 
 might there plead, and be tried by a jury, if, at any rate, he 
 did not himself claim to be tried as a Peer. 
 
 It is clear that the doctrine of trial by Peers had not, at The Peers 
 this time, been reduced to precision even with respect to giving ° 
 
 1 Rot. Lit. Pat., 3 Ed. Ill, part i. m. 33, and see Rot. Pari., ii. 
 
 2 Rot. Lit. Claus., 1 Ed. Ill, part i. m. 13, ' licet idem Episcopus in 
 inqiiisitionem aliquam inde faciendam se non positisset? 
 
i86 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. 
 
 judgement 
 on any but 
 Peers. 
 
 Case of 
 John de 
 Stratford, 
 Arch- 
 bishop of 
 Canter- 
 bury : he 
 refuses to 
 go to the 
 King when 
 summoned. 
 
 laymen. By the King's special desire, the case of Simon de 
 Bereford was brought before the Peers in the fourth year 
 of the reign of Edward III. He was accused of being 
 implicated in the treasons of Mortimer. They protested 
 because he was not their peer ; but in consideration of the 
 supposed enormity of his crimes they did, in the end, 
 entertain the charge and give judgement. It was, never- 
 theless, then ' assented and agreed by our Lord the King, 
 and all the Magnates, in full Parliament, that although the 
 Peers, as judges of Parliament, have taken upon them, in 
 the presence of our lord the King, to make and render the 
 said judgement, yet the Peers that now are or shall be in 
 time to come, are not bound or charged to give judgement 
 upon others than Peers,' and that this particular judgement 
 was not to be drawn into a precedent 1 . 
 
 As, however, will be shown in due course, the Lords, at 
 no very great distance of time afterwards, enunciated a 
 directly contradictory principle. The unsettled state of the 
 practice, as well as some other circumstances, must there- 
 fore be borne in mind when the important case of John 
 de Stratford, Archbishop of Canterbury, is considered. 
 
 Stratford had, as Chancellor, enjoyed the confidence of 
 King Edward III. The King being subsequently engaged 
 in a war with France, had the mortification to find that his 
 affairs did not prosper, and that his plans were frustrated 
 by the want of supplies. He attributed his misfortunes to 
 the malversation of the officers of various departments. 
 He returned suddenly and unexpectedly to England, on 
 November 30, 1340 2 , threw a number of persons, many of 
 high position, into prison, and caused various commissions, 
 of the nature of Commissions of Trailbaston 3 , to issue for 
 full inquiry regarding the misdeeds which he suspected. 
 One of his first acts was also to summon the Archbishop to 
 his presence. He seems to have attributed a part of his ill— 
 
 1 Rot. Pari., 4 Ed. Ill, no. 2 and no. 6 (printed, vol. ii. p. 53 and 
 p. 54). 
 
 2 Rot. Lit. Pat., 14 Ed. Ill, part iii. m. II. 
 
 3 lb., 14 Ed. Ill, part iii. m. 2 d, and m. 8 d. 
 
THE HOUSE OF LORDS 187 
 
 fortune to Stratford's negligence in not having paid certain Chap. X. 
 sums, as bound, to foreign merchants. Nothing, however, 
 could induce the Archbishop to obey the King's commands. 
 A safe conduct was sent to him \ but still he refused to 
 appear except in Parliament 2 . Up to this point, at any 
 rate, there was no charge of treason distinctly formulated 
 against him, though it is not improbable that some of the 
 Kings courtiers may have called him a traitor. 
 
 He began, however, to make very free use of the eccle- Hisexcom- 
 siastical weapon of excommunication, including in that tiong. ' 
 sentence, somewhat vaguely, all laymen who should lay 
 violent hands on the persons, lands, goods, or houses of 
 clergymen, all who should violate the liberties of Holy 
 Church, all who should lessen the privileges granted to the 
 Barons in Magna Charta, all who should falsely accuse him or 
 any Bishop or person of his Province of treason, or any other 
 crime 3 . At the same time he suggested that the Prelates, 
 Peers, and Nobles of the Realm should be summoned and 
 make strict enquiry as to what had become of the supplies 
 voted, and that no one should be deemed guilty of wrong- 
 doing until his answer had been given and due investigation 
 had been made. 
 
 The Commissions of Trailbaston. or other Oyer and 
 Terminer, everywhere unpopular, incurred the special ani- 
 mosity of the clergy, and of Stratford at their head. Several 
 persons in orders had been imprisoned, and proceedings had 
 been taken against them at the same time as against Chief 
 Justice Willoughby 4 . Stratford was especially indignant 
 on this ground, and prayed the King and Council to release 
 all free men taken and detained in contravention, as he said, 
 of Magna Charta, but especially the ecclesiastics 5 . 
 
 A great quarrel now arose between the Archbishop and The King 
 
 declares 
 
 1 Rot. Lit. Pat., 15 Ed. Ill, part i. m. 48 (printed in Rymer's 
 Foedera, ii- 1146). 
 
 2 Rot. Ro?n., 15 Ed. Ill, m. 4 (printed in Rymer's Foedera, ii. 
 
 II52-3)- 
 
 3 Hemingb. (English Historical Society) ii. 375-380. 
 
 4 Rot. Lit. Pat., 14 Ed. Ill, part iii. m. 2 d. 
 
 5 Hemingb. ii. 369-371. 
 
188 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. the King. The clergy, at Stratford's instigation, threw every 
 their object possible obstacle in the way of the Justices of Trailbaston, 
 to be to by denunciations, monitions, and sentences of excommunica- 
 
 stir up , .... 
 
 sedition. tion, and by inhibiting the Justices from putting persons 
 upon their oath during Lent '. The King expressed his 
 views with regard to the course pursued in a letter sent to 
 the Bishop of London for publication. Reciting the original 
 ground of complaint, he went on to the sentences of ex- 
 communication, designed, as he said, ' to impair the good 
 opinion held of the King . . . and traitorously to stir up 
 sedition among the people committed to our charge, and 
 finally to withdraw from our Royal Majesty the hearts of 
 our Earls, Lords, and Barons of our Realm.' At the same 
 time the King made various charges against Stratford of 
 misapplication of public funds 2 . 
 The Arch- The Archbishop, thereupon, took up new ground. He 
 declares na d previously been willing to appear in full Parliament, 
 that, if anc j su bmit himself to the judgement of his peers, with 
 
 accused of J & i 
 
 Treason, a saving for the state of Holy Church, for himself, and for 
 
 the juris- ^is Order, and had suggested that, as no Parliament was 
 
 diction of sitting, a Parliament should be summoned 3 . He now 
 
 j^iidge 6011 ^ changed his tone, and showed very plainly what was meant 
 
 by the saving clause for himself, his order, and the Church. 
 
 He wrote a letter to the King beginning thus : — ' There 
 
 are two things by which the world is chiefly governed, the 
 
 Holy Pontifical Authority, and the Royal Power. . . . Who 
 
 doubts but that the Priests of Christ ought to be considered 
 
 both fathers and masters of Kings and Princes?' He made 
 
 a lengthy answer to some of the charges against him. In 
 
 relation to the particular and later charge of stirring up 
 
 sedition, however, he said that inasmuch as it seemed to 
 
 cast the crime of treason upon his head, in which no King 
 
 1 Rot. Lit. Claus., 15 Ed. Ill, part i. m. 40 d (printed in Rymer's 
 Foedera, ii. 11 51-2). 
 
 2 lb., 15 Ed. Ill, part i. m. 46 d (printed in Rymer's Foedera, ii. 
 1 147-8). 
 
 3 MS. Cotton. Claud. E. 8. fo. 252 a (printed in Rymer's Foedera, 
 ii. 1 143) ; Hemingb. ii. 363-367- 
 
THE HOUSE OF LORDS 189 
 
 or temporal Lord could be his competent judge, he did not Chap. X. 
 intend to prejudice his position, ' but wholly to refuse the 
 judgement of any secular judge whatever 1 .' 
 
 In March, 134Q-1, the King summoned a Parliament to 
 meet at Westminster on the Monday next after the Quin- 
 zaine of Easter (April 33), and the Archbishop received 
 his summons in due course 2 . The events which then occurred 
 have been represented in an impossible fashion by Birching- 
 ton, a monk who wrote some forty years after the event, and 
 whose statements have again and again been copied into 
 various histories. Birchington states that on the morrow 
 of St. George's day (April 24) the Archbishop came with 
 the intention of making his way to his place in Parliament, 
 but was met at the entrance door of the Great Hall by 
 Stafford, the Steward of the King's Household, and Darcy, 
 the King's Chamberlain, who told him that he must answer, 
 in the Exchequer, all that should there be objected against 
 him. before he could enter Parliament. Stratford, as alleged, 
 did then go into the Exchequer, where certain articles were 
 tendered against him, which he said he would consider. He 
 then, still on April 24, went into Parliament, and said he 
 would clear himself in full Parliament of the charges laid 
 against him. Afterwards, as the monk tells us, Stratford 
 appeared a second time in the Exchequer 8 . On Thursday, 
 May 3 (in Festo Inventionis Sanctae Cruris), several persons 
 interceded on behalf of the Archbishop with the King, who 
 
 1 The Archbishop's reply is given by Birchington {Anglia Sacra, 
 part i), p. 34, whence it has been copied into Parker's De Antiqidtate 
 Britannicae Ecclesiae, and thence into Wilkins' s Conci/ia. Birchington 
 is not an authority to be trusted when stating matters in his own 
 words, but there is no reason to suppose that the text of Stratford's 
 letter was not preserved at Canterbury and copied by the monk. 
 
 - Rot. Lit. Claus.. 15 Ed. Ill, part i. m. 37 d (printed, Rep. Dig. 
 Peer, vol. iv. p. 529). The Quinzaine of Easter is sometimes re- 
 presented as being the period of fifteen days including Easter Day, 
 seven days before and seven days after it. The Quinzaine is, however, 
 usually the fourteenth day after the Feast or Saint's Day named. In 
 the year 1341 Easter Day fell on the 8th of April. 
 
 :i Birchington {Anglia Sacra, part i), pp. 38-39. 
 
190 
 
 CONSTITUTIONAL HISTORY OF 
 
 Stratford, 
 according 
 to the Rolls 
 of Parlia- 
 ment, asked 
 to be 
 arraigned 
 before the 
 Peers, 
 because 
 he was 
 1 notor- 
 iously 
 defamed.' 
 
 Chap. X. thereupon received him into favour, and held him to be in 
 every respect free from the charges laid against him ! . 
 
 With regard to that which really happened in Parliament, 
 the Parliament Rolls themselves constitute the only trust- 
 worthy authority ; the Rolls of the Exchequer constitute 
 the only trustworthy authority for that which happened in 
 the Court of Exchequer. From the Rolls of Parliament it 
 appears that on Monday, a fortnight after the first meeting 
 of the Parliament (May 7), the King came into the Painted 
 Chamber, whither came also the Archbishop of Canterbury, 
 the other Prelates and Magnates, and the Commons. Stratford 
 there humbled himself before the King, and prayed the 
 King to grant that, inasmuch as he was notoriously defamed 
 throughout the realm, he might be arraigned before the 
 Peers in full Parliament, and there answer. To this the 
 King, in a manner, consented, adding that he wished 
 business touching the state of the realm and the common 
 weal to be first set in order, and other business afterwards 2 . 
 Two years later the King commanded that all matters 
 touching the arraignment of the Archbishop should be 
 annulled and set aside, as being neither reasonable nor 
 true 3 . Thus the statement that on May 3, I34 1 ? the Arch- 
 bishop was held to be innocent of the charges brought 
 against him, is absolutely devoid of foundation. He was 
 not held innocent on that day, or on any day in the year 
 1541, or before the year 1343. 
 
 The story relating to the Exchequer, absurd enough as 
 told by Birchington, deserves, perhaps, more attention, from 
 the extraordinary proportions which it assumed in later 
 times, and in other hands. Always acquiring strength in 
 its progress, it affected the writings of Bishop Stillingfleet. 
 of Jeremy Collier, of Hume, of Hallam, and of more recent 
 historians. Hallam. in one of his prominent notes 4 relating 
 to the question whether Bishops are entitled, on charges of 
 
 Statements 
 of later 
 historians 
 that 
 
 Stratford 
 had first 
 appeared, 
 on a charge 
 of Treason, 
 in the 
 Exchequer. 
 
 1 Birchington (Anglia Sacra, part 1), pp. 40-41. 
 
 2 Rot. Pari., 15 Ed. Ill, no. 8 (printed, vol. ii. p. 127). 
 
 3 lb., 17 Ed. Ill, no. 22 (printed, vol. ii. p. 139). 
 
 4 Hallam, Middle Ages, cap. 8. part iii. note I. 
 
THE HOUSE OF LORDS 191 
 
 treason or felony, to a trial by the Peers,' has, in reliance Chap. X. 
 upon Collier (who in his turn relied upon Birchington), 
 committed himself to the following very remarkable state- 
 ment. The Archbishop ' came to Parliament with a declared 
 intention of defending himself before his Peers. The King 
 insisted upon his answering in the Court of Exchequer.' 
 Collier (who is Hallam's authority) further states that 
 Stratford actually did appear there, ' received a copy of the 
 charge, and promised to return his answer after time for 
 considering the articles V 
 
 This is a truly astounding proposition. Stratford, who, The 
 be it remembered, is set up by Stillingfleet, Collier, and h *^ m q fact 
 Hallam as the great vindicator of the right of Bishops to be no juris- 
 tried by Peers of the Realm, goes meekly to the Court of Treason. 
 Exchequer and recognizes its jurisdiction, when, according 
 to his own showing, it is a charge of High Treason which is 
 brought against him. He then goes back to Parliament as 
 champion in a struggle in which he had already surrendered, 
 and most needlessly surrendered too. 
 
 It seems hardly necessary, in these days, to say that St rat- Tne origin 
 ford never did anything of the kind. The whole story about story , 
 the Exchequer arose out of a monkish ignorance of law, 
 and the idle gossip of a monastery. That which actually 
 did occur can be ascertained, not from Collier or Birchington. 
 but from the contemporary Exchequer records, which show 
 that Stratford did not appear in person in the Exchequer 
 at all. 
 
 The Exchequer was a Court of Revenue and Account. The Rolls 
 The matter in respect of which the Archbishop had to Exchequer 
 make an ' appearance ' (which does not necessarily mean show that 
 
 1 V • *«. 1? 1. ' „■. t Stratford 
 
 a personal appearance) in the Exchequer was not High merely 
 Treason, or any bond to foreign merchants, but something a PP eared 
 very much more p rosaic. Reduced into the actual words relation 
 of the Exchequer it is neither more nor less than fifteen matte"™ 1 
 sacks, and fifty-seven pounds of wool, which were alleged of account, 
 to be due from him to the King ' in respect of the wools torney. 
 
 1 Jeremy Collier, Ecclesiastical History (1852), vol. iii. p. 89. 
 
192 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. lately granted by the Prelates, Religious, and certain others 
 of the clergy ' in the Parliament of the twelfth year of the 
 reign 1 . The proceeding was not even, as has sometimes 
 been said 2 , by information of the Attorney-General, or by 
 bill, or by any of the peremptory measures which the 
 Exchequer, in later times, at any rate, had at its disposal. 
 There was not, at this time, in the exact modern sense, any 
 Attorney-General in existence. The Archbishop was 
 called to the Exchequer by the mildest of its processes 
 a Venire facias*. To this he omitted to appear, as 
 defendants commonly did in all the Courts upon receipt of 
 a first writ. 
 
 In due course a writ of attachment afterwards issued to 
 ensure the Archbishop's attendance. He then appointed 
 an attorney, Elias de Waddeworth 4 . 'And the Archbishop, 
 by Elias de Waddeworth, his attorney, comes and says that 
 he can sufficiently show to the Court that he ought not to 
 be charged with the wools, but says that he has not his 
 evidences ready, and prays to have a further day prefixed 
 for him.' The prayer is granted, and successive adjourn- 
 ments follow 5 . During the whole of this time Stratford 
 was appearing not in person at all, but by attorney, and 
 fully recognizing the jurisdiction of the Exchequer with 
 regard to the particular matters in dispute. 
 
 The modern idea that Stratford 'was seized by officers 
 and carried to the bar of the Court of Exchequer G ' having 
 been traced to its source, and its true value having been 
 ascertained, we may now follow some other proceedings in 
 Parliament. In this part of the field a furious controversy 
 raged in the seventeenth century, all because some of the 
 
 Further 
 pro- 
 ceedings 
 in Parlia 
 ment. 
 
 1 Remembrance Roll of the King's Remembrancer of the Exchequer, 
 Easter, 15 Ed. Ill, 'Adhuc Recorda,' Kent. 
 
 2 Lord Campbell, Lives of the Lord Chancellors, cap. 14. 
 
 3 Remembra7ice Roll of the King's Remembrancer of the Exchequer, 
 Brevia Retomabilia, Hilary, 15 Ed. III. 
 
 4 Remembrance Roll, as above, ' Praesentationes Attorn., &c.' 
 
 5 Remembrance Roll, as above, ' Adhnc Recorda.' 
 
 6 Lord Campbell, IJves of the Lord Chancellors, cap. 14. 
 
THE HOUSE OF LORDS 193 
 
 combatants would not sufficiently attend to the Rolls of Chap. x. 
 Parliament itself. 
 
 Had Edward Stillingfleet (sometime preacher at the These were 
 Rolls Chapel, and afterwards Bishop of Worcester) never J 3 ™"^* 
 been born, it is probable that the case of Archbishop minence 
 Stratford would have attracted comparatively little atten- stillingfleet 
 tion. and that some eminent writers would have been saved in the 
 
 seventeenth 
 
 from very remarkable errors. It is quite possible to century. 
 have a smattering of records, and yet be ignorant of the 
 law which they illustrate, quite possible to be clever in 
 controversy and yet not infallible in argument, or even 
 absolutely correct in statement of matters of fact. 
 
 Stillingfleet was an eager disputant, of strength, originality. His state- 
 and judgement, and met another of not less power, and, Accurate 6 
 perhaps, of greater accuracy, in Lord Holies 3 . It is not 
 necessary to follow the arguments of the two champions, 
 because both of them, in the heat of the contest, missed 
 some of the most important points. It may, however, 
 be of use to show how Stillingfleet deceived himself, 
 and misled others who followed him. His knowledge of 
 legal terms was defective, and for that reason, without! 
 doubt, he asserted that Stratford, who was not tried atj 
 all, was • tried ' 2 by the Peers. He made another state-' 
 ment that twelve Peers were appointed to examine the 
 articles against the Archbishop, and then admitted that, 
 according to the Parliament Roll itself, the twelve were not 
 chosen for that purpose, but to draw up in form the wishes 
 of the Peers in general as to a trial by their peers in 
 Parliament 3 . 
 
 The ideas of Stillingfleet were adopted by Jeremy Collier, He misled 
 a Non-juror, and a controversial writer on many subjects, i 61 ?^ 
 including the immorality of the stage. He published in the and others 
 early part of the eighteenth century ' The Ecclesiastical 
 History of Great Britain.' It shows considerable research, 
 
 1 See Lord Holies, His Remains, 1682. 
 
 2 Selden inadvertently made the same statement in his Judicature 
 in Parliament. (Works, vol. iii. part ii. 1588.) 
 
 3 Stillingfleet's Works, vol. iii. p. 856. 
 
 O 
 
194 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. 
 
 Stratford 
 was never 
 arraigned, 
 much less 
 tried, 
 before the 
 Peers. 
 
 A com- 
 mittee, 
 including 
 Bishops, 
 Earls, 
 Barons, and 
 Judges, 
 appointed 
 to report 
 
 but it is a rtidis indigestaque moles abounding in statements 
 made with the object of setting forth the particular 
 ecclesiastical views of history which the particular eccle- 
 siastical writer entertained. It is a book of absolutely no 
 authority on matters of law, and exhibits, again and again, 
 a complete ignorance of the meaning of the commonest 
 technical terms. Reference to Collier's writings would 
 indeed be needless, had his views not been accepted with- 
 out question by later writers of more importance. He 
 copies Stillingfleet's statement regarding the appointment 
 of twelve Peers to examine the articles against Stratford, 
 and then copies Stillingfleet's admission that the Rolls 
 of Parliament afford no warrant for it *. He also tells us. 
 in Stillingfleet's words, that the Archbishop was 'tried, at 
 the King's suit, and for a capital crime, and yet not tried by 
 commoners but by his Peers V 
 
 As a matter of fact, Stratford was never even arraigned, 
 much less tried, and it is not quite clear on what points he 
 wished to be arraigned before the Peers. He asked it only 
 because he was 'notoriously defamed through the realm.' 
 Had he been arraigned, it would have been open to him to 
 make any answer he pleased, and to make one answer with 
 regard to one part of the charges, another to another. Any 
 answer he might give he was, according to his own words, 
 determined to make with a saving for Holy Church, for 
 himself, and for his Order. To the charge of Treason he 
 had distinctly said that he would not answer at all in any 
 temporal court. So far as capital offences were concerned, 
 he was clearly aiming not at trial by Peers but at exemption 
 from all secular jurisdiction. 
 
 The committee appointed to make a report on the 
 general subject of judgement by Peers was constituted in 
 relation rather to the far-reaching Commissions of Trail- 
 baston, which had recently issued, than to the particular 
 case of the Archbishop. As enquiry was to be made of 
 misconduct in every department, charges might of course 
 
 1 Jeremy Collier, Eccl. Hist. (1852), vol. iii. p. 90. 
 
 lb. 
 
THE HOUSE OF LORDS 195 
 
 be made against Peers, and for this reason, perhaps, some Chap. X. 
 Peers were nominated to act with other persons in these on judge- 
 Commissions. The committee, however, did not, as is p ^ ^ 
 commonly represented, consist exclusively of Peers. It 1341. 
 included four Bishops, four Earls, and four Barons, { together 
 with some Sages of the Law.' Their instructions were * to 
 examine in what cases the said Peers should be bound 
 to answer in Parliament, and in what cases not V 
 
 When the report was made, it had the authority of The report 
 the twelve Peers, but all mention of the ' Sages of the w f t h ut 
 Law ' was significantly wanting. It was to the effect that tne assent 
 ' Peers of the Realm ought not to be arraigned or brought judges : it 
 to judgement but in Parliament and by their Peers/ a PP lled t0 
 
 J & J t all cases 
 
 Thereupon a new question arose — whether ' if any of the in which 
 Peers be or have been Chancellor, Treasurer, or other WM a mg 
 officer whatsoever, this privilege should operate as well party, 
 with regard to their office as in any other manner.' In 
 relation to this point the Lords declared ' that all the Peers 
 of the Realm, officers or others, ought not, by reason of 
 their office, in respect of matters touching their office, or for 
 any other reason, to be brought to judgement, to lose their 
 temporalities, lands, tenements, goods, or chattels, or be 
 arrested or imprisoned, outlawed, or forejudged, and ought 
 not to answer or be judged otherwise than in full Parliament, 
 and before the Peers, in cases in which the King is party, 
 saving to our Lord the King the laws rightfully used by 
 due process, and saving the suit of parties.' There was an 
 exception, however, in cases in which any Peer had been 
 Sheriff or other officer and had received money by reason 
 of which he was bound to render an account. Then, the 
 Peers said, their meaning was that any such Peer should 
 come and account in the accustomed place (the Exchequer) 
 either in person or by attorney 2 . 
 
 All this, be it observed, was only a report, not a judicial Protest of 
 decision, or an Act of Parliament, and a report made with- ceUo r han " 
 out the expressed sanction of any of the expert members of Treasurer, 
 
 1 Rot. Pari., 15 Ed. Ill, no. 6 (printed, vol. ii. p. 127). 
 
 2 lb., 15 £d. Ill, no. 7 (printed, vol. ii. p. 127). 
 
 O 2 
 
196 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. the Committee. There is no recorded protest on the part 
 and Judges, of the Sages of the Law at this stage, but it is clear from 
 ^rtwhich SUDsec L uent events that they dissented. The recommenda- 
 followed. tions of the report were shortly afterwards embodied with 
 other provisions in the instrument known as the Statute of 
 15 Edward III, Statute 1. It is stated in the Rolls of 
 Parliament that all these provisions : were made by the 
 Magnates and Commons and shown to our Lord the King,' 
 and that they f were read before the King.' The Chancellor, 
 however, the Treasurer, and some of the Justices protested 
 that they did not assent to the making or to the form of 
 the Statute, and that they could not observe the Statute 
 if contrary to the laws and usages of the Realm which they 
 were sworn to keep K The Sages of the Law, constituting, 
 at this time, a portion of ' the King in his Council in his 
 Parliament,' considered themselves entitled to a voice in the 
 passing of Acts of Parliament, and did not consider that 
 this particular Act was duly passed. 
 The Act The King permitted the Statute to be sealed, though he 
 
 nidl'by t h e subsequently said, in a not very dignified manner, that in 
 King and so doing he dissembled. Shortly after the Act had passed, 
 he took counsel with Earls, Barons, and learned men 
 (the Sages of the Law who had already expressed their 
 dissent), and with their advice and assent declared the 
 Statute to be null. The grounds which he assigned were 
 that its provisions were expressly contrary to the laws and 
 customs of the Realm, that he had never agreed to its 
 promulgation, and that any consent which he had given to 
 it was not given of his own free will. He added, however, 
 that any of the articles which had already been embodied 
 in previous Statutes should be duly observed 2 . 
 
 The protest made by the Judges and the action of the 
 
 1 Rot. Pari., 15 Ed. Ill, no. 42 (printed, vol. ii. p. 131). 
 
 2 Rot. Lit. Clates., 15 Ed. Ill, part ii. m. 1 d (printed in Rymer's 
 Foedera, vol. ii. p. 1177). The instrument is also enrolled on the 
 Statute Roll, and printed in the Statutes of the Realm, vol. i. p. 297. 
 This repeal (15 Ed. Ill, Stat. 2) has not only been admitted into the 
 Statutes of the Realm, but has itself been repealed by the Statute Law 
 Revision Act, 1863. 
 
THE HOUSE OF LORDS 197 
 
 King may have been prompted, so far as the particular Chap. X. 
 enactment touching the Peers was concerned, by the idea 'r ne Act 
 that it went beyond the provisions of Magna Charta in its formally 
 
 1 -i ur 1 • 1 t 1 « • repealed 
 
 details. We have not now to consider whether, at this by Parlia- 
 period, the King had the power with the consent of ment 
 a Council to revoke, annul, or repeal an Act of Parliament. 
 Two years later there was a more formal repeal in Parlia- 
 ment, which, it is to be presumed, had the consent of the 
 Commons as well as of the Lords, since there is nothing to 
 show the contrary. The words of repeal may be worth 
 quoting. The Statute ' shall be wholly repealed and annulled 
 and lose the name of a Statute, as being prejudicial and 
 contrary to the laws and customs of the Realm, and to the 
 rights and prerogatives of our Lord the King. But, for 
 that some articles are comprised in the same Statute which 
 are reasonable, and in accordance with law, it is agreed by 
 the Lord the King and his Council that of such articles 
 and others agreed in this present Parliament there be made 
 a Statute anew, by the advice of the Justices and other 
 learned men, and kept for ever x ' 
 
 No such new Statute, however, was made with regard to Magna 
 the trial or judgement of Peers. The Statute of 15 Ed- ^onry 
 ward III was ever afterwards treated by the lawyers as written law 
 non-existent, and Magna Charta. as confirmed by Henry III, trial of 
 was always considered the statutory basis of the right of £ eers h y 
 Peers to be tried by the Peers. In the reign of Henry VI, 
 when the existing privileges in relation to trial by Peers 
 were expressly extended to Peeresses, there was no 
 mention of any Act except Magna Charta, the operative 
 passage in which was quoted at length 2 . Staunford in his 
 Pleas of the Crown, published in the sixteenth century, 
 cites no authority for the principle except Magna Charta 3 , 
 and he has been followed by a long line of eminent men. 
 
 The whole of the Parliamentary events of the fifteenth As yet no 
 and seventeenth years of the reign of Edward III serve to principles 
 
 1 Rot. Pari., 17 Ed. Ill, no. 23 (printed, vol. ii. p. 139). 
 
 2 Stat. 20 Hen. VI, cap. 9. 
 
 3 Staunford, Les Plees del Coron, lib. iii. fo. 152 B. 
 
198 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. 
 
 as to trial 
 or matters 
 to be tried 
 by Peers. 
 
 The 
 
 Statute of 
 Treasons 
 in 1 35 1. 
 
 An Abbot, 
 whose pre- 
 decessor 
 had been 
 summoned 
 to Parlia- 
 ment, tried 
 for Treason 
 in the 
 King's 
 Bench, and 
 sentenced 
 to death 
 in 1357- 
 
 show very clearly that the doctrine of judgement by Peers, 
 though vaguely accepted in principle, had still not been 
 reduced to any precise system. There is some mention of 
 articles against Stratford, but no indication of any definite 
 mode of procedure or of any particular charge. He was 
 not indicted, he was not ' appealed,' and, in the later sense of 
 the term, there is nothing to show that he was impeached. 
 There was much talk of the judgement of Peers in full 
 Parliament, but no indication that there could be a trial 
 of a Peer in the Court of the Lord High Steward when 
 Parliament was not sitting. If the committee of Lords had 
 had their way, the effect would have been that all Crown 
 cases in which a Peer was concerned (and not merely cases 
 of treason and felony) would have had to be brought before 
 the Lords in full Parliament. There can be no doubt 
 that the lawyers did good service in opposing this pre- 
 tension. 
 
 It was not until the year 135 1 (25 Edward III) that the 
 crime of High Treason was defined by Act of Parliament 1 . 
 The Statute was, without doubt, in part declaratory, 
 because there are mentioned in it offences which had 
 previously been mentioned by Britton. The necessity of 
 a definition, however, must have been felt at the time ; 
 and, until a definition had been given, the cases in which 
 Peers were to be tried by their Peers could not all be 
 specified with precision. 
 
 By the Statute of Treasons it was declared to be one of the 
 forms of treason to counterfeit the King's coin, or to import 
 counterfeit money. Six years after the passing of the Act, 
 Ralph, Abbot of Missenden, was indicted for having traitor- 
 ously and feloniously falsified and clipped the King's coin. 
 His predecessors had been summoned in the forty-ninth 
 year of the reign of Henry III to treat and advise with the 
 other prelates and magnates. Representatives of the 
 Commons were summoned at the same time, and the 
 meeting: was of the nature of a Parliament. It has been 
 
 Stat. 25 Ed. Ill, cap- 2, 
 
THE HOUSE OF LORDS 199 
 
 held that a summons to a lay Baron at this period, if Chap. X. 
 proved, does not give any hereditary peerage to his 
 descendants — possibly because, as there are no Rolls of 
 Parliament of the period, it would be difficult, if not 
 impossible, to prove that he actually sat. No Abbot, 
 of Missenden appears to have been summoned after the 
 reign of Henry III, and, therefore, possibly none had the 
 status of an Abbot holding in barony and liable to be 
 summoned. Be that, however, as it may, the indictment 
 of the Abbot Ralph was in the King's Bench. He was 
 arraigned in that Court and asked how he would acquit 
 himself of the charges. He pleaded Not Guilty, and put 
 himself, for good or ill, ' on the country.' A jury thereupon 
 found him guilty, and it was adjudged that he should be 
 drawn and hanged *. 
 
 In this instance it is clear that no question of trial by 
 the Peers arose. It may be that, notwithstanding the Act, 
 degrees in treason were still recognized, as in the days of 
 Bracton. It may be that the Lords, who soon after 
 claimed to judge of matters of great moment, did not 
 regard a coinage case, though within the Statute of Treasons, 
 as a matter of high national importance. It may be that 
 for some reason, the later Abbots of Missenden were not 
 liable to the burden or entitled to the privilege of a sum- 
 mons to Parliament. It is, nevertheless, perhaps worthy of 
 note that the successor of an Abbot who had been sum- 
 moned with other Prelates, Earls, and Barons was not tried 
 and did not ask to be tried by the Peers. 
 
 The right which the Peers had claimed in the year 1331 The Lords 
 to judge Peers and not commoners was practically renounced, cl ^ m to 
 or rather something higher was claimed, in the year 1387, Peers, with 
 when the Peers again came into conflict with the Sages of fogies 
 the Law. They then declared, with the King's assent, that against the 
 where there had been any very high crime, touching the 1387.' 
 King's person and the state of all his realm, perpetrated 
 by Peers of the Realm with othei's, the cause should not be 
 
 1 Placita coram Rege, Mich., 31 Ed. Ill, R°. 18 d. 
 
200 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. determined in any place but Parliament, nor by any other 
 
 law than the law and course of Parliament. It belonged, 
 
 they said, to the Lords of Parliament, and to their privilege 
 
 and liberty of ' ancient time accustomed,' to be judges in 
 
 such cases, and 'to judge thereof with the King's consent V 
 
 Appeal This remarkable declaration arose out of the proceedings 
 
 against the against Alexander Neville, Archbishop of York, Robert de 
 
 Arch- Vere, Duke of Ireland, Michael de la Pole, Duke of Suffolk, 
 
 bishop of ' 
 
 York, and Sir Robert Tresilian. Chief Justice of England, and Sir 
 Tom 1 "- 5 ' and Nicholas Brembre, the last two of whom, though Knights, 
 moners. were not Peers of the Realm. They had been ' appealed ' of 
 1 high treasons committed by them against the King and his 
 realm.' The appellors were Thomas Duke of Gloucester, 
 Constable of England, Henry Earl of Derby, Richard Earl of 
 Arundel and Surrey, Thomas Earl of Warwick, and Thomas. 
 Earl Marshal. The King accepted the appeal, and assigned 
 a day to the parties to take and receive full justice upon it 
 at his first Parliament to be held at Westminster. By the 
 advice of his Council he caused proclamation to be made 
 through all the counties of England that all the persons 
 appealed should appear on the day named in Parliament. 
 On the, appointed day the appellors prayed, in the pre- 
 sence of the King and the Lords of Parliament, that the 
 Archbishop of York, the Duke of Ireland, the Earl of Suffolk, 
 and the Chief Justice, all of whom were at large, might be 
 called to answer. They prayed that Brembre, who was in 
 custody, might be brought before them. The Archbishop, 
 Duke, Earl, and Chief Justice, when called, did not appear. 
 The appellors prayed the King and the Lords of Parliament 
 that they would record the default, and proceed to judge- 
 ment thereupon. The King and Lords took time to 
 deliberate until the morrow. 
 The At the same time the Justices and Sergeants, and others 
 
 lawyers learned in the law of the realm, together with some learned 
 (including j n ^ civi j j were charged on the part of the King to 
 
 civilians) & r ° 
 
 declare give legal advice to the Lords of the Parliament. They all 
 1 Rot. Pari., ii Ric. II, no. 6 (printed, vol. iii. p. 236). 
 
THE HOUSE OF LORDS 201 
 
 deliberated and gave for answer that they had seen and Chap. X. 
 well understood the tenour of the appeal, and that it was the appeal 
 not made or affirmed in accordance with the order that ^^^nce 
 either the law of the realm or the civil law required x . with law. 
 
 It may, perhaps, be not unprofitable to enquire why Reason for 
 lawyers learned in the civil law were asked for their J£° su tmg 
 opinion as well as the King's Justices, and why they all civilians: 
 agreed that the Appeal preferred by the Lords Appellors ofChivalry. 
 was not made in due course of law. The civilians were 
 probably called in because some lawyers appear to have 
 held that an Appeal of Treason, the ultimate trial of which 
 was by battle, appertained to the jurisdiction of the Con- 
 stable and Marshal, and because in this Court of Chivalry 
 the proceedings before ' battle joined ' were according to the 
 civil law 2 . The authority of this Court, if really existing, 
 was said to have been gained by gradual encroachment '\ 
 and might therefore reasonably be a subject of doubt and 
 dispute. 
 
 The Lords, after consultation among themselves, made The Lords, 
 
 the declaration as to their right of judgement which has King's 
 
 already been quoted. They added that the kingdom of assent > 
 
 * ' pronounce 
 
 England never heretofore was, nor, as they and the King the appeal 
 were minded, ever should be ruled or p;overned by the civil go °?. ac ' 
 
 J cording to 
 
 law. A cause of such great moment as this appeal, they the laws 
 said, should never be tried in any place but Parliament, of Pa°ha Se 
 nor by the course, process, and order in use in any lower ment - 
 Court in the realm. All the lower Courts had but the 
 execution of the ancient laws and customs of the kingdom, 
 and of the Ordinances and Statutes of Parliament. It was 
 therefore adjudged by the Lords, with the assent of the 
 King, that the appeal was well and duly made and affirmed, 
 and that the process was, according to the laws and course 
 of Parliament, good and effectual. 
 
 After an adjournment, the prayer that the default of the The 
 Archbishop of York, Duke, Earl, and Chief Justice might proceeds in 
 
 1 Rot. Pari.,, 11 Ric. II, no. 6 (printed, vol. iii. p. 236). 
 
 2 Year Book, Easter, 36 Hen. VI, no. 8. fo. 20. 
 
 3 Stat. 13 Ric. II, cap. 2. 
 
202 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. 
 
 Parlia- 
 ment. 
 
 Sentences. 
 
 Trial by 
 battle re- 
 fused to 
 one of the 
 appealed, 
 on the in- 
 terposition 
 of the 
 Commons. 
 
 Impeach- 
 ments of 
 Treason 
 by the 
 Commons 
 heard by 
 the Lords. 
 
 be recorded was renewed. The Archbishop of Canterbury, 
 and the other Spiritual Lords withdrew (after asserting 
 their right to be present as Barons) because matters were 
 to be brought to discussion, at which the canons did not 
 permit them to be present. 
 
 The default was then formally recorded, and the appellors 
 prayed judgement. The Temporal Lords pronounced that 
 the Archbishop of York, the Duke of Ireland, the Earl of 
 Suffolk, and the Chief Justice were Guilty of Treason, and 
 passed sentence that they should be drawn and hanged. 
 For want of precedent, however, further consideration was 
 to be had with regard to the person of the Archbishop, 
 whose execution was accordingly stayed. Tresilian was 
 shortly afterwards taken, and brought into Parliament, and, 
 having nothing to say in defence, was executed on the same 
 day. 
 
 Sir Nicholas Brembre, who was already in custody, was 
 brought up, and the articles of appeal were read to him 
 ; in full Parliament.' He pleaded Not Guilty, and offered 
 to defend by his body — that is to say claimed Trial by 
 Battle. The Commons, however, interfered in this case. 
 They said that what was alleged in the appeal was true, 
 and that they would have made an accusation if the Lords 
 had not made their appeal. It is not certain whether the 
 Lords considered that the action of the Commons had the 
 effect of converting the Appeal into an Impeachment, or 
 whether they held that a commoner had no right to Trial 
 by Battle against a Peer. For some reason, however, they 
 decided that Trial by Battle did not lie in this case. They 
 found Brembre Guilty, and gave judgement that he should 
 be drawn and hanged. 
 
 In the same Parliament the late Justices of the Court of 
 Common Pleis, the Chief Baron of the Exchequer, and one 
 of the King'li Sergeants-at-law were impeached l of High 
 Treason by the Commons. The Lords Temporal resolved 
 that they would examine the matter and circumstances, and 
 
 1 'Accusez et empeschez,' Rot. Pari. 
 vol. iii. p. 240). 
 
 II Ric. II, no. 6 (printed, 
 
THE HOUSE OF LORDS 203 
 
 render thereon such judgement as should be to the honour Chap. X. 
 of God, and the honour and profit of the King and his 
 realm. In the end they found the persons accused Guilty, 
 and passed judgement, but afterwards yielded to the prayer 
 of the Archbishop of Canterbury and other Bishops, and 
 remitted the sentence of death. Several other commoners 
 were also impeached of Treason by the Commons, and 
 among them some knights who pleaded Not Guilty, and 
 said they would acquit themselves, as knights, in such 
 manner as the Lords of Parliament should be pleased to 
 adjudge. The Temporal Lords, after deliberation, simply 
 found them guilty and passed sentence upon them. The 
 Commons further impeached the Bishop of Chichester of 
 Treason, and he also was found guilty by the Temporal 
 Lords ; but both he and the Justices whose lives had been 
 spared were banished to Ireland. 
 
 After these cases had been decided the Lords Spiritual The Lords 
 and Temporal again claimed as their liberty and privi- thiSr chritn 
 lege that matters of great moment (not simply treason to judge in 
 or felony) touching Peers of the Realm moved in this or Q f great 
 to be moved in future Parliaments, should be debated and "I? 1 ™:"* 
 
 affecting 
 
 adjudged only according to the course of Parliament, and Peers, 
 not according to the civil law, or according to the common 
 law of the land as administered in inferior Courts. The 
 King allowed and approved the claim in full Parliament 1 . 
 
 The very instructive proceedings in this Parliament Dimin- 
 reveal, as in a mirror, the hopeless confusion which pre- p ^ er of 
 vailed in the minds of all classes, except the lawyers, the Judges 
 with regard to the definition of High Treason, and to the ment 
 manner in which persons accused of it, whether Peers or 
 commoners, ought to be tried. The House of Lords was 
 now shaking itself free from the Council. In the previous 
 reign the Chancellor and Judges had a voijbe and made 
 it heard when the King sat ' in his Council in his Parlia- 
 ment.' The Judges, though still formally summoned, were 
 now asked to give their opinions, not as having a right to 
 
 1 See the whole proceedings in Parliament, Rot. Pari., 11 Ric. II, 
 no. 6 (printed, vol. iii. pp. 229-244). 
 
 r 
 
204 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. 
 
 The rights 
 of the 
 Lords, as 
 ' Lords of 
 Parlia- 
 ment,' not 
 as ancient 
 as they 
 supposed. 
 
 No 
 
 superior 
 tribunal to 
 call in 
 question 
 the prin- 
 ciples 
 
 sit and speak their minds in the House, but merely as 
 persons from whom the Lords could claim instruction and 
 advice ; and their deliberate opinion was contemptuously 
 set at nought. 
 
 The Lords insisted again and again upon their privileges 
 as Lords of Parliament ' of ancient time accustomed.' They 
 did not perceive, but possibly the lawyers did, that the 
 Parliament of the reign of Richard II differed materially 
 from any assembly known in the reign of John. Though it 
 might be true that one of the Peers of the King's Court 
 could claim judgement by Peers of the same Court, and 
 though the word Parliament, when it came into fashion, 
 might have been loosely used to express a meeting of the 
 King's Court in earlier times, yet there is nothing to show 
 that immediately after the Conquest, or even in the reign 
 of Edward I, every man who owed suit to the Court could 
 claim to be present when another man also owing suit to 
 the Court was to be judged. According to Magna Charta 
 he was to be judged by his peers, but it is nowhere said 
 that the whole of his peers were to be in attendance. When 
 Edward I summoned in one year some of his Barons, and 
 in other years others, to consider grave matters of State, it 
 could never have been in contemplation that all those who 
 had ever been summoned, or their representatives, had gained 
 a right to be present when a Peer was to be judged. The 
 claim could have been advanced only at a time when cer- 
 tain persons appeared to have acquired or to be acquiring 
 a prescriptive right to be called to Parliament. The pre- 
 scription, if it existed, was not of very ancient date. It 
 seems, however, to have been the only warrant for the 
 doctrine that all the Lords had the right to hear, { in full 
 Parliament,' every serious charge which might be made 
 against a Peer. 
 
 There is, indeed, nothing to show that the lawyers of the 
 period laid any stress on this particular point, and their 
 objections may have had relation only to the form in 
 which the appeal was drawn, or absolutely to the pro- 
 ceeding by appeal in itself. The mode of accusation had 
 
THE HOUSE OF LORDS 205 
 
 certainly been recognized in the time of Bracton. They Chap. X. 
 may, however, have taken the view (as the famous Littleton which they 
 did in a subsequent reign) that an 'Appeal ' not being at the laid down " 
 suit of the King, but at the suit of subjects, did not fall 
 within the words of Magna Charta, which refer only to 
 proceedings taken by or on behalf of the King himself. 
 They may also have considered that the articles of accusa- 
 tion were not in accordance with the Statute of Treasons 
 passed in the previous reign. These were points on which 
 they were more competent to give an opinion than any 
 other persons in the kingdom. The Lords, however, though 
 they may have placed themselves in a false position by 
 asking the advice of the Judges and then rejecting it, and 
 though they may have misconceived their true position in 
 Parliament, were yet, perhaps, from one point of view, 
 technically in the right. It was true, as they said, that 
 other Courts were inferior. It was true that the other 
 Courts owed their origin to the Curia Regis which the 
 Lords represented in one of its aspects. If they chose to 
 lay down certain principles with regard to the trial of 
 certain offences, and had the assent of the King, there was 
 no tribunal which had authority to contradict them. 
 
 It may here be worthy of remark that although the 'impeach- 
 Archbishop of York was judged by the Peers, he was not J^nt ° f 
 in that respect placed on a higher level than Tresilian the growth, 
 Lord Chief Justice, or even than Brembre and others who define? as* 
 were simple knights. Knights were appealed before the in after_ 
 Lords together with Peers ; a Bishop was impeached before 
 them together with knights. A later doctrine that a com- 
 moner could be impeached before the Lords for high mis- 
 demeanours only, and not for treason or felony \ had not as 
 yet come into being, and was not finally held to be law. 
 Impeachment itself was of quite recent growth (the earliest 
 case having been in 1376) 2 , and had as yet, perhaps, hardly 
 attained the technical signification which it acquired in 
 
 1 4 Bl. Com., 256-257. 
 
 - In that year Richard Lyons, a merchant, of London, and a 
 farmer of subsidies, was ' empeschez et accusez,' by the Commons, 
 
 (UNIVERSITY 
 ^^ California- 
 
206 CONSTITUTIONAL HISTORY OF 
 
 Chap. X. after-times. The word had long been in use to signify any 
 
 kind of accusation in any Court, and had originally no 
 
 special reference to an accusation brought by the Commons 
 
 before the Lords. 
 
 The Com- B- Towards the end of the reign of Richard II, however, 
 
 Kefr rigb? impeachment by the Commons becomes a more important 
 
 to impeach factor in the history of the constitution. In the year iqo? 
 
 recorded 
 
 on the the Commons made protestation before the King, in full 
 p°r°m t P ar li ament > that they intended, by his leave, to accuse and 
 in 1397. impeach any person or persons, as often as seemed to them 
 good, in the Parliament then sitting. They prayed the 
 King to be pleased to accept their protestation, and they 
 prayed that it might be entered of record on the Roll of 
 Parliament. 
 They Richard gave his consent, and on the same day the 
 
 the Arch- Commons impeached Thomas de Arundel, Archbishop of 
 CantSbur- Canterbury, of High Treason, before the King, in full 
 of High ' Parliament. The King took time to consider, as the 
 Archbishop was in so exalted a position and a Peer of the 
 Realm. The Commons again prayed that there might be 
 such judgement against the Archbishop as the case de- 
 manded. Then the King ' recorded in Parliament ' that the 
 Archbishop had appeared before him in the presence of 
 certain Lords, and confessed, and put himself upon the 
 King's grace. The King, and all the Temporal Lords and 
 Thomas de Percy (who had 'sufficient power from the 
 Prelates and Clergy of the kingdom of England ' as 
 appeared of record in Parliament), adjudged the matters 
 admitted by the Archbishop to be Treason and the Arch- 
 bishop to be a traitor. Sentence was then delivered in 
 Parliament that the Archbishop should be banished from 
 the realm of England ] . 
 
 We here find in a very short space three very remarkable 
 statements : — that the Archbishop of Canterbury was a Peer 
 of the Realm, that the Commons were allowed to impeach 
 
 of several deceits, extortions, and other ill deeds done by him to the 
 King and people. Rot. Pari., 50 Ed. Ill, no. 17 (printed, vol. ii. p. 323). 
 1 lb., 21 Ric. II, nos. 14-16 (printed, vol. iii. p. 351). 
 
 Treason. 
 
THE HOUSE OF LORDS 207 
 
 a Peer, and that in trials in which loss of life or member Chap. X. 
 was concerned the Prelates and Clergy, though not present 
 in their own persons, were represented collectively by one 
 Procurator. 
 
 The attendance of this Procurator or proxy was altogether The Pro- 
 an innovation. It came about through a petition of the ^aLgy 
 Commons, who complained that many judgements and represents 
 ordinances previously made had been annulled because the spiritual 
 estate of the Clergy was not present at the time of the Lords at 
 
 p~ - ■ 1 1 , -r. 1 the trial, 
 
 making. Their prayer consequently was that the Prelates 
 
 and Clergy should appoint a Procurator with sufficient 
 power to consent in their name to all matters and 
 ordinances in Parliament. The Spiritual Lords agreed to 
 give their full power to a layman 1 , and thus we find 
 1 Monsieur Thomas de Percy ' voting on their behalf at the 
 trial of an Archbishop for High Treason. The fact that 
 the proxy of the Prelates sat and voted on a trial for 
 treason would go far to show that the right to sit and vote 
 was now considered to be inherent in them if they chose to 
 exercise it. It might then very fairly be argued that if 
 they had the right to try other Peers they had also them- 
 selves the right to be tried by Peers if only they were 
 willing to exercise it. 
 
 At the end as in the earlier part of this turbulent Another 
 reign, however, it is manifest that the mode of dealing TrSson° f 
 with charges of treason against Peers and others had not inParlia- 
 been reduced to any satisfactory system. At the very time better 
 
 at which an ' impeachment ' was brought by the Commons system 
 ■ a « « . 1 r^ , ,/.^ needed, 
 
 against the Archbishop of Canterbury, an ' appeal of Treason 
 
 in Parliament ' was again brought by some of the Peers 
 
 against their enemies. The position of the rival factions in 
 
 1397 was the reverse of that which it had been in 1387 ; 
 
 and the Duke of Gloucester, the Earl of Arundel, and the 
 
 Earl of Warwick, who had previously been the appellors, 
 
 became, in their turn, the appealed 2 . 
 
 1 Rot. Par/., 21 Ric. II, nos. 9-16 (printed, vol. iii. pp. 348-351). 
 
 2 Id., 21 Ric. II, no. 1 (printed, vol. iii. p. 374), and lb., 1 Hen. IV, 
 nos. 1-10 (printed, vol. iii. pp. 449-452). 
 
208 THE HOUSE OF LORDS 
 
 Chap. X. It seems, nevertheless, to have been generally felt, even 
 in these troubled times, that some measures should be 
 taken to set the law on a more secure foundation. 
 Very important changes were consequently effected in 
 the reign of Henry IV, as will be shown in the next 
 chapter. 
 
CHAPTER XI. 
 
 Trial by Peers from the Reign of Henry IV : Court of 
 
 the Lord High Steward : Trial of Spiritual Lords : 
 
 Trial of Peeresses : Impeachments. 
 
 IN the first year of the reign of Henry IV, it was enacted Chap. XL 
 that no Appeal should be pursued in Parliament 1 . The Abolition 
 reason was, in all probability, the abuse of the engine of °ioJJ c £y Sa ~ 
 Appeal in the previous reign. This Statute effected a com- 'Appeal' 
 plete change of the law with regard to trial by Peers. The menf.* 
 Appeal was the earliest form of accusation in cases of 
 treason, and, when it was brought against a Peer, it was 
 carried to a decision before the Peers of the Realm. After——- 
 this Act, however, ji JPeer could be judged bv _the Peers in 
 Parliament only when the proceeding was by indictment or- 
 impeachment. At the same time a great innovation was 
 made by the institution of the Court of the Lord High 
 Steward as a Court for the trial of Peers by Peers. 
 
 The first known instance of trial in the Court of the The first 
 Lord High Steward occurred early in the year 1400 (the tmHn the 
 year in which the Act relating to Appeals was passed). Court of 
 An Earl, described in the report of the proceedings as Earl High 
 of H., was then indicted of High Treason, in London, by Steward, 
 virtue of a Commission, before the Mayor and Justices. 
 The accusation was that he'and others had agreed to make 
 a ' mumming ' on the night of the Epiphany, during which 
 
 1 Stat. 1 Hen. IV, cap. 14. 
 P 
 
210 CONSTITUTIONAL HISTORY OF 
 
 Chap. XI. they intended to kill the King, who was then at Windsor. 
 Afterwards the King directed a Commission to another 
 Earl described as the Earl of D., in which the charge 
 was recited. The office of Steward of England, being 
 then vacant, was granted to the Earl of D., in order that he 
 might sit in judgement on the Earl of H. All the Lords 
 were commanded to be attendant upon him, as well as the 
 Constable of the Tower, who was to bring the prisoner 
 before him on the day which he might appoint. On that 
 day the Lord High Steward sat apart in Westminster Hall, 
 under a cloth of State; and the Earl of Westmoreland (who 
 appears to have been at this time Constable of the Tower) 
 and all the other Earls and Lords sat at a great space from 
 him, and not on the same bench, ' but on other forms down- 
 ward in the said Hall' And all the Justices and the 
 Barons of the Exchequer sat in the midst, around a table 
 between the Lords. Three * oyes ' were solemnly made by 
 the Crier, and the Commission was read. Then the Justices 
 delivered the indictment to the Steward. He handed it to 
 the Clerk of the Crown, who read it to the Earl of H. 
 The Earl confessed, and thereupon Hill, one of the King's 
 Sergeants, prayed that the Lord Steward would give judge- 
 ment. The Lord High Steward recounted the whole 
 matter, and then gave judgement that the Earl should go 
 back to the Tower of London, and be thence drawn to the 
 gallows and there hanged, and ' let down ' again while still 
 living, and that his entrails should then be drawn out of his 
 body and burned, and that he should be beheaded and 
 quartered, 'and so may God be propitious to his soul.' 
 The Justices said that, had the Earl chosen to deny the 
 treason, it would have been the Steward's duty, as soon as 
 the verdict had to be given, to ask of each Lord separately 
 and openly what each thought in his conscience, beginning 
 with the junior. Had the greater number said Guilty, 
 judgement should have been given as above. ' And no 
 Lord shall be put upon his oath in this matter 1 .' 
 
 1 Year Book, Mich., I Hen. IV, no. I. fo. I. 
 
THE HOUSE OF LORDS 211 
 
 No less than four editions of the Year Books, all obviously Chap. XL 
 printed, either directly or indirectly, from the same manu- The 
 script, agree in the form of the report, giving only initials accused 
 instead of the names of the Earl who was indicted and of as John 
 the Earl who was Lord High Steward. Sir Edward Coke "' 
 appears to have been acquainted with the report in another Hunting- 
 form, and tells us, with a reference to the Year Book, that 
 'upon the arraignment of John Holland, Earl of Huntingdon, 
 the first that was created Steward of England, hac vice, was 
 Edward Earl of Devon *. He also adds some details which 
 are not given in the printed books 2 . 
 
 The precise date of the trial is not stated in the report, Difficulties 
 but it must have been shortly after the commission of the ^dictions 
 alleged offence on the sixth of January, 1399-1400. There with regard 
 was then no Parliament in existence. The Parliament of 
 the first year of the reign of Henry IV began on St. Faith's 
 Day (the 6th of October), 1399 3 , and ended on Wednesday, 
 the 19th of November, in the same year 4 . It is there- 
 fore perfectly clear that the Earl of Huntingdon was not 
 tried in the House of Lords during a session of Parlia- 
 ment, with the Lord High Steward presiding, but in the 
 Court of the Lord High Steward when Parliament was not 
 sitting. It cannot, however, be denied that many difficulties 
 present themselves with regard to the proceedings. It is 
 asserted by some of the Chroniclers 5 , and, perhaps, implied 
 by others that the Earl was put to death at Pleshey in 
 Essex without any trial at all. A contemporary says that 
 the Earl remained in London until the event of the 
 conspiracy was known, then made several attempts to 
 escape by. sea, and was afterwards captured in Essex, 
 and taken to the castle of Pleshey to be held in safe 
 custody. According to this account he was beheaded 
 there on the 15th of January, in the presence of a great 
 
 1 4 Inst. 59. ' 2 3 Inst. 28-29. 
 
 3 Rot. Pari., 1 Hen. IV, Heading (vol. iii. p. 415). 
 
 4 lb., 1 Hen. IV, no. 93 (vol. iii. p. 432). 
 
 6 The very circumstantial details in Waurin do not bear upon them 
 the impress of truth. • * 
 
 P 2' 
 
212 CONSTITUTIONAL HISTORY OF 
 
 Chap. XI. number of persons of the district 1 . This is not absolutely 
 inconsistent with the law report, because the Earl may 
 (though it is hardly probable) have been brought to London 
 for the trial, may have been sent back to Pleshey, from the 
 Tower, and may have been there put to death in due course 
 of execution, or by a mob which overpowered the King's 
 officers, and took the law into its own hands. The report 
 is to some extent confirmed by independent testimony. 
 On the ioth of January Thomas de Arundel, Archbishop of 
 Canterbury, wrote a letter in which he described the Earl 
 as being held captive by the King's power 2 . The date is 
 five days earlier than the alleged beheading at Pleshey, and 
 the interval afforded sufficient time to bring the Earl to the 
 Tower, to try him, and even to send him back to Pleshey. 
 Moreover, on the very same ioth of January, the King, 
 with the advice of the Council, sent a precept to the 
 Constable of the Tower to receive the Earl of Huntingdon 
 from the person who would deliver the prisoner into his 
 custody, on the King's behalf 3 . 
 Subsequent These contemporary documents of undoubted authority 
 {y d fh™ ent would suffice to outweigh any statements of Chroniclers to 
 Lords the effect that the Earl was put to death without trial, were 
 
 within? there not a document also of the highest authority which is 
 assent °f apparently on the other side. In the following year (1401) 
 all the Lords Temporal present in Parliament, with the 
 assent of the King, declared and adjudged that Thomas 
 Holland late Earl of Kent, John Holland late Earl of 
 Huntingdon and others were traitors, as having levied war 
 against the King, and that they should forfeit all the lands 
 and tenements which they had in fee simple, notwithstanding 
 the fact that while levying war they had been beheaded by 
 the King's lieges without due process of law 4 . It is quite 
 clear, from this passage, either that the Earl of Huntingdon 
 
 1 Walsingham, Ypodeigma Neustriae (Rolls Series), p. 390; Historic, 
 Anglicana (Rolls Series), vol. ii. p. 245. 
 
 2 Literae Cantuarienses (Rolls Series), vol. iii. p. 74. 
 
 3 Rot. Lit. Claus., 1 Hen. IV, m. 22 (printed in Rymer's Foederd). 
 
 4 Rot. Pari., 2 Hen. IV, no. 30 (printed, vol. iii. p. 459). 
 
THE HOUSE OF LORDS 213 
 
 was never tried in the Court of the Lord High Steward, or Chap. XI. 
 that, if he was, the trial was not recognized by the Temporal 
 Lords as being in due legal form. 
 
 This declaration of the Lords Temporal was in the form 
 of an Act of Attainder, but without the assent either of the 
 Lords Spiritual or of the Commons, It may, however, have 
 been merely a measure of precaution, so far as the Earl of 
 Huntingdon was concerned. As there was no precedent 
 for the trial of a Peer when Parliament was not sitting, it 
 may well have been thought that the effect of the judgement 
 in the Court of the Lord High Steward was doubtful 
 with regard to the forfeiture of lands, and that a deliberate 
 statement in Parliament by the Temporal Lords, who 
 would in fact have given judgement in Parliament in earlier 
 times, would serve to prevent any subsequent dispute. It 
 is impossible to believe that the report in the Year Book, 
 confirmed as it is by contemporary evidence, was a pure 
 invention. 
 
 We learn from this case that an indictment for High The 
 Treason against a Temporal Lord was now removed from Lordswere 
 the inferior Court in which it had been found, and brought not tried 
 before Peers of the Realm for trial. When a Spiritual G f the^ 
 Lord was indicted there was no such removal, the reason Realm, 
 being, to all appearance, that the Spiritual Lords would not 
 recognize any lay jurisdiction, and consequently could not 
 claim the privilege of peerage. 
 
 Thomas Merkes, Bishop of Carlisle, had been suspected Thomas 
 of complicity in the conspiracy of the Earl of Kent and the BiJ p S, f 
 Earl of Huntingdon, but he was not treated as a Peer of the Carlisle, 
 Realm, and does not seem to have made any claim to be f High 
 tried by the Peers. A commission of Oyer and Terminer Treason - 
 issued, before which the Bishop was indicted of High 
 Treason. The Justices of Oyer and Terminer sent their 
 precept to the Sheriffs of London to summon a jury of 
 Aldermen and Citizens. The Bishop was brought up by 
 the Constable of the Tower. 
 
 The King directed his ' writ close ' to the Justices with 
 reference to a Statute of the reign of Edward III, in which 
 
214 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XI. 
 
 Pleads, 
 with a 
 saving 
 only for 
 his eccle- 
 siastical 
 liberty, 
 and is 
 convicted 
 by a jury. 
 
 Is par- 
 doned by 
 the King. 
 
 it had been provided that no Archbishop or Bishop should 
 be accused before Justices of any crime without the King's 
 express command \ By the advice of his Council he now 
 directed that if any Archbishops or Bishops were accused 
 or indicted before them they were to proceed as they should 
 see fit, in accordance with right, and the law and custom of 
 the realm. The Bishop was arraigned and asked how he 
 would acquit himself. He said that he was a Bishop 
 anointed, that under the name of Bishop he was indicted, 
 and that he did not think he ought to be arraigned in 
 respect of the crime before the Justices, or that he ought to 
 make any answer. If, however, it should appear to the 
 Justices that by the law of the land he was bound to answer, 
 he was prepared with the answer which he should give. 
 The Justices told him that the charges contained in the 
 indictment extended to the death of the King, and the 
 destruction of the whole realm of England, and con- 
 sequently the manifest subversion of that Anglican Church 
 in virtue of which he claimed to be privileged. Each and 
 all of these matters, they said, were High Treason in the 
 extreme degree, and the Bishop must answer at his peril or 
 else be straightway held convicted. 
 
 The Bishop said that, saving his ecclesiastical liberty, 
 inasmuch as he was a Bishop anointed, and under protest 
 that his answer must not derogate from the episcopal 
 privilege or dignity, nor be drawn into a precedent with 
 regard to the dignity of others, he pleaded Not Guilty of 
 the treasons and felonies alleged, and thereof for good and 
 evil he put himself upon the jury. The jury found him 
 Guilty. The Justices, not being sufficiently advised with 
 regard to the judgement which should be pronounced, 
 remanded him to the Tower for safe keeping. 
 
 The indictment and subsequent proceedings were after- 
 wards removed into the King's Bench. In the meantime 
 Merkes ceased to be Bishop of Carlisle, having been trans- 
 lated by the Pope to the Bishopric of Cephalonia. When 
 
 Stat. 1 8 Ed. Ill, cap. I 
 
THE HOUSE OF LORDS 215 
 
 he was brought into the King's Bench, it was as ' Thomas Chap. XI. 
 Merkes late Bishop of Carlisle,' and no longer as an English 
 Bishop. He was then asked whether he had anything to 
 say wherefore the Court should not proceed to judgement 
 against him on the conviction. For reply he only produced 
 the King's charter of pardon 1 . 
 
 It will be observed that, from first to last, the Bishop Never 
 never claimed privilege of peerage. As Becket and Strat- p r ^jw e of 
 ford had done before him, he denied that he was amenable peerage. 
 to the secular jurisdiction. He would have exemption or 
 nothing. To him all lay Courts were alike. Had he asked 
 for trial by the Peers he would at once have abandoned the 
 point for which he and his order were contending. If 
 compelled to plead he would plead, and if he must accept 
 a verdict he would accept it ; but it was a matter of absolute 
 indifference to him whether the verdict was given by Alder- 
 men and Citizens or by Barons and Earls. 
 
 The mode of trial by Peers seems to have remained Absence 
 in want of clear definition during some subsequent reigns, ruleffor 
 Charges of heresy and sorcery became confused with trial by 
 charges of High Treason. If any one compassed the 
 death of the sovereign by making a waxen image of him 
 and slowly melting it before a fire, the acts were, from 
 one point of view, sorcery, from another point of view 
 High Treason. In the nineteenth year of the reign of 
 Henry VI the Duchess of Gloucester was brought before 
 a tribunal consisting of the King, Cardinal Beaufort, 
 Cardinal Kempe, five Bishops, and some other ecclesiastics, 
 and sitting in St. Stephen's Chapel, at Westminster. She 
 was accused of having, with the aid of a woman known 
 as the witch of Eye, had a waxen image of the King made 
 and set before a fire, with the design that, as it slowly lost 
 its form, the King might, through her incantations, slowly 
 sink into the grave. The offence actually charged against 
 her was witchcraft, of which she was pronounced guilty, and 
 
 1 The whole of these proceedings appear in the Placita coram Rege, 
 Rex (i.e. the Crown Roll of the King's Bench), Hilary, 2 Hen. IV, 
 R°. 4. 
 
216 CONSTITUTIONAL HISTORY OF 
 
 Chap. XI. for which she was sentenced to a very humiliating penance, 
 
 and sent off to die a prisoner in the Isle of Man K 
 
 Act of Before this time there had been no settled rule with 
 
 for "he VI re g arc * to the trial of Peeresses for high treason, or felony, 
 
 trial of or misprision of either. Duchesses, Marchionesses, and 
 
 Countesses, Viscountesses were of comparatively recent origin, as were 
 
 and the titles of Duke, Marquis, and Viscount. There had 
 
 by Peers. ' now an d again been a Countess in her own right, and 
 
 there had been Countesses who were the wives of Earls. 
 
 The great majority of the baronage, however, consisted 
 
 of persons who were only Barons ; but ' Baron,' as has 
 
 been shown elsewhere, was not a term of dignity in the 
 
 same sense as Earl. Except in the sense of a woman 
 
 holding by barony, the term Baroness hardly appears 
 
 to have been known before the fifteenth century. The 
 
 wife of a Baron had no legal name except that of wife 
 
 of her husband 2 , and before the case of the Duchess of 
 
 Gloucester there had been no special reason for considering 
 
 how Peeresses ought to be tried. 
 
 As a seat in the House of Lords was now regarded 
 as an honour rather than a burden, and as the idea of 
 strict hereditary right was established, it was natural that 
 the position of women who were either themselves of noble 
 
 1 Rot. Lit. Pat., 19 Hen. VI, part ii. m. 16 (printed in Rymer's 
 Foedera, x. 851) ; Fabyan, 19 Hen. VI ; Political Poems and Songs, 
 Ed. Wright, vol. ii. pp. 205-208. 
 
 2 So, in the reign of Edward VI, it was held that, when the widow 
 of a Baron married an Esquire, she could not be correctly described 
 in a writ as 'Lady,' bearing her former husband's title. A writ of 
 partition was brought against the Duke of Suffolk, and others, by 
 ' Ranulph Haward Esquire, and the Lady Anna Powes, his wife.' 
 Exception was taken to this description as being a misnomer, ' because 
 she ought to have been named by the name of her husband and not 
 otherwise.' Chief Justice Montague and Justice Hales were of opinion 
 that the exception was good, ' because by the law of God the woman 
 was under the power of her husband {sub potestate viri), and so her 
 name of dignity should be changed in accordance with his degree, 
 notwithstanding the courtesy shown to ladies of rank and of the Court.' 
 The plaintiffs accordingly brought another writ in which they were 
 described as Ranulph Haward and ' Anna his wife, late wife of Lord 
 Powes, deceased.' Dyer's Reports, M. 6 & 7 Ed. VI, no. 51. fo. 79 b. 
 
THE HOUSE OF LORDS 217 
 
 blood or were the wives of Peers should be considered. Chap. XL 
 The trial of the Duchess of Gloucester for sorcery was 
 a blow struck through her at the Duke of Gloucester by 
 his enemy Cardinal Beaufort. In spite of faction, it was 
 the interest of all the Temporal Lords that they should 
 not have their dignity indirectly assailed in the persons 
 of their wives. For this reason probably an Act was 
 passed in the following year touching the mode of trial 
 of ' ladies of high estate, Duchesses, Countesses, or 
 Baronesses.' They, whether married or sole, were, when 
 indicted of high treason or felony, to be brought to answer 
 and judged before Judges and Peers of the Realm in the 
 same manner as Peers would be judged if indicted or 
 impeached of the same offences \ The legislators of the 
 day, however, abstained from defining in precise terms 
 what that mode of trial was. 
 
 Though accusation by appeal in Parliament was abolished, No trial by 
 the accusation by appeal elsewhere was still a recognized procedure 
 mode of procedure. If a Peer, or a Lady of the rank b y'^P~ 
 mentioned in the Act of Henry VI, committed a murder, murder, 
 or other felony, there was nothing to prevent recourse to &c * 
 an appeal against him, or her. The widow, for instance, 
 of a peasant might 'appeal' a Duke for the murder of 
 her husband. In the reign of Edward IV the famous 
 Judge Littleton, author of the well-known work on tenures, 
 enunciated the doctrine that, when an 'appeal' was 
 brought against a ' Lord of the Realm,' he not only should 
 not be tried by the Peers in Parliament, but should not 
 be tried by Peers at all. He should be tried just as any 
 common person 2 . A precedent, too, was cited in the case 
 of Lord Gray of Codnor. This continued to be the law until 
 the year 181 9, when all proceedings by appeal, together J^f 
 with trial by battle, were abolished 3 . is 
 
 When, on the other hand, said Littleton, there is an Court of 
 indictment of felony or treason, which is at the King's steward, 
 
 1 Stat. 20 Hen. VI, cap. 9. 
 
 2 Year Book, Easter, 10 Ed. IV, no. 17. fo. 6. 
 
 3 Stat. 59 Geo. Ill, cap. 46. 
 
218 CONSTITUTIONAL HISTORY OF 
 
 Chap. XL suit, as distinguished from that of a subject, a Peer of 
 apart from the Realm is to be tried by the Peers. Upon the indict- 
 ment?" ment °f a Lord, he added, the matter is to be sent into 
 hardly Parliament, and there the Steward of England is to put 
 In rtfrdgn mm to answer. It appears from this that the Court of 
 of Edward the Lord High Steward, sitting independently of Parliament, 
 was hardly yet recognized as a proper tribunal for the 
 trial of Peers, though the Lord High Steward might 
 preside at the trial in the House of Lords. 
 
 Littleton also made another remarkable statement — that 
 LordlTo be wnen a P eer ls P ut to answer in Parliament, the Spiritual 
 present by Lords, who cannot consent to the death of a man, are to 
 
 one Pro- . 
 
 curator, make a Procurator to represent them. It thus appears 
 
 the°t l rfa h l of that a law y er of n0 less eminence than Littleton still 
 
 a Peer, still recognized the right of the Spiritual Lords to be pre- 
 
 recogmze . sent? foy a co n ec tive proxy, at the trial of a Peer, and 
 
 so practically attributed to them all the privileges of 
 
 peerage. 
 
 The Court Not very long after this time, however, the Court of the 
 
 j^ h e or Lord High Steward, sitting when there was no Parliament, 
 
 Steward became an accepted institution. When the jurisdiction 
 
 recognized °f the Lords had been delegated to this Court, it soon 
 
 in the reign became customary for the Steward to summon, not the 
 
 VII : how whole, but only a small number of the Peers. For the trial 
 
 constituted. of the Earl f Warwick in the reign of Henry VII, he was 
 
 commanded to summon such and so many Lords, peers of 
 
 the Earl, as might make the truth the better be known. 
 
 Twenty-two only in addition to the Lord High Steward, 
 
 constituted the Court. One was a Duke, four were Earls, 
 
 and the rest (including John Kendall, the Prior of the 
 
 military order of St. John of Jerusalem in England) were 
 
 Barons 1 . At the trial of the Duke of Buckingham, in 
 
 the thirteenth year of the reign of Henry VIII, there 
 
 were nineteen Peers present, of whom one was Thomas 
 
 Docwra, Prior of St. John of Jerusalem in England ; and 
 
 1 Baga de Secretis, Pouch II, mm. i, 2, 3 (Calendared by Sir F. 
 Palgrave in the Third Report of the Deputy Keeper of the Records, 
 App. 2. p. 218). 
 
THE HOUSE OF LORDS 219 
 
 the Prior gave his vote declaring the Duke guilty *. This, Chap. XI. 
 however, was the last time that a Prior of St. John of 
 Jerusalem sat in the Court of the Lord High Steward ; 
 and the corporation of the Knights of St. John was dissolved 
 in the thirty-second year of the same reign 2 . Those who 
 afterwards sat in the Court of the Lord High Steward, 
 were exclusively Peers possessing some heritable dignity, 
 which no Prior, as Head of the Hospital of St. John in 
 England, had ever enjoyed. 
 
 The practice of summoning only a small number of 
 Peers to the Court of the Lord High Steward, which 
 continued for many generations, naturally gave almost 
 unlimited power to the Crown of securing a conviction. 
 It also had an important effect in finally extinguishing 
 the claims of the Spiritual Lords to the rank of Peer 
 of the Realm. As they could not pass sentence it was 
 idle to summon any of them to attend. As the members 
 of the Court were limited in number there was not the 
 slightest necessity to summon the Procurator of the 
 Spiritual Lords as a body, even had he had power to 
 act ; and as he was only their Procurator in Parliament, 
 it seems doubtful whether he could have sat in the Court 
 oft he-Lord High Steward. 
 
 As has been shown, in another chapter, the Spiritual The 
 Lords began to be called ' Lords of Parliament ' and not Lordsnot 
 Peers of the Realm in the reign of Henry VII. They represented 
 had for centuries struggled to be free from all lay juris- f a ii from 
 diction, and now the Nemesis had come. The Court of th r e status 
 
 of peerage. 
 
 the Lord High Steward was one of the engines for their 
 degradation. It was a Court in which they could not 
 sit, but one in which a true Peer of the Realm could give 
 verdict and judgement. They were thus marked off from 
 the peerage by a disqualification of no small importance. 
 According to their own showing, or that of their prede- 
 cessors, they were not to be tried by the Peers when accused 
 
 1 Baga de Secretis, Pouch IV, Bundle 5. m. 30 (Calendared, p. 233). 
 
 2 Stat. 32 Hen. VIII, cap. 24. 
 
220 CONSTITUTIONAL HISTORY OF 
 
 Chap. XI. of treason or felony ; by the march of events they were now 
 precluded even from being present at the arraignment of 
 a Peer according to the most ordinary form of proceeding. 
 It is obvious that only a little was needed to deprive 
 them of the right to be called Peers at all. The reign 
 of Henry VIII was most disastrous to their order, and 
 when the monasteries were dissolved and the Abbots ceased 
 to sit in the House of Lords, the Bishops had no power 
 to enforce a right which the injudicious action of their 
 predecessors had forfeited. 
 
 Case of One of the most remarkable facts in relation to the 
 
 Fisher in r _ . . 
 
 the reign history of I rial by Peers is that the advocates of the 
 
 Vlli enry righte of the Spiritual Lords, and the advocates of the 
 
 opposite doctrine, have alike cited the case of John Fisher, 
 
 sometime Bishop of Rochester, as an instance in which 
 
 a Bishop was tried otherwise than by the Peers of the 
 
 Realm. The one party would have done well to place 
 
 no reliance on the precedent, the other might have spared 
 
 itself some unnecessary lamentations. 
 
 He was not The Bishop of Rochester was never tried at all. John 
 
 when tried Fisher was attainted for misprision of Treason by Act 
 
 for High f Attainder in the year 1534 1 , deprived of his bishopric, 
 
 Treason. . . ^ 
 
 and kept a prisoner in the lower. He was afterwards 
 indicted before a special commission of Oyer and Terminer 
 for High Treason in having denied the King's supremacy. 
 There were two distinct indictments. In one of them 
 he was described as John Fisher, late Bishop of Rochester. 
 In the other he was described as ' John Fisher, late of 
 the City of Rochester, in the County of Kent, Clerk, 
 otherwise called John Fisher, Bishop of Rochester,' and, 
 in another place, as in the first indictment, as ' late Bishop 
 of Rochester.' Upon the administration of interrogatories 
 to witnesses in the Tower of London on the 7th of June, 
 1535. he was described as ' late Bishop of Rochester.' 
 Upon the administration of interrogatories to himself on 
 the following 12th of June, he was described as 'Mr. John 
 
 1 Act of 26 Hen. VIII, cap. 3. 
 
THE HOUSE OF LORDS 221 
 
 Fisher, D.D.' He laid no claim to any kind of privilege. Chap. XT. 
 either as a Peer or as a Bishop, because, as he was no longer 
 a Bishop, he certainly had no other title to be considered 
 a Peer. A jury was empanelled from the neighbourhood 
 of the Tower of London. Of the twelve who were sworn 
 two were Knights and the rest Esquires, and they found 
 him guilty 1 . The legality of the form of proceeding was 
 never questioned. 
 
 Though, however, Fisher was neither indicted nor tried Cranmer, 
 while an English Bishop, there is no reason to suppose o"fMary, Ign 
 that had he still been an English Bishop his trial would was tried « 
 
 while 
 
 have been different. In the first year of the reign of Arch- 
 Queen Mary, Thomas Cranmer, Archbishop of Canterbury, bishop of 
 was brought to trial before a Special Commission of Oyer bury, and 
 and Terminer on an indictment found in the King's Bench. forHigh ' 
 When arraigned he pleaded not guilty, and put himself Treason, in 
 ' upon the country,' which was a jury from the county Oyer and 
 of Middlesex. Before they retired to consider their Terminer - 
 verdict, but after sufficient and probable evidence had been 
 given on the part of the Queen, as is stated in the record, 
 the Archbishop withdrew his plea, and pleaded guilty. 
 Judgement passed in the usual form 2 . 
 
 The Archbishop thus clearly admitted the jurisdiction it has since 
 of the Court, and the power of a jury to pronounce whether fo^tha? 6 * 1 
 he was guilty or not guilty. He could not, from his Bishops 
 antecedents, deny, as Orleton and Stratford had denied, r j g ht to be 
 the jurisdiction of any secular Court. He made no claim p ied , by f 
 to be tried by the Peers, and no exception was ever taken the Realm. 
 to the validity of the proceedings. From this time onwards, 
 notwithstanding some protests on the part of ecclesiastical 
 historians, it seems to have been settled law that Bishops 
 do not enjoy the right of being tried by Peers of the 
 Realm, either in Parliament, or in the Court of the Lord 
 High Steward 3 . 
 
 1 Baga de Secretis, Pouch VII, Bundle 2. 
 
 2 lb., Pouch XXIII. 
 
 3 Staunford, Les Plees del Coron, p. 153; 3 Inst. 30; and many 
 subsequent authorities. 
 
222 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XI. 
 
 No instance 
 in which a 
 Spiritual 
 Lord, in- 
 dicted of 
 Treason or 
 Felony, 
 has been 
 tried by 
 Peers of 
 the Realm. 
 
 Effect of 
 the aboli- 
 tion of 
 feudal 
 tenures 
 on the 
 Bishops 
 after the 
 Restora- 
 tion. 
 
 The 
 
 privileges 
 of peerage 
 afterwards 
 held to 
 depend on 
 blood. 
 
 Spiritual Lords have been, with commoners, ' appealed ' 
 of Treason, and judged by Peers. They have been tried 
 by the Lords when impeached, as commoners have also 
 They have, however, never successfully asserted the ex- 
 clusive privilege of being tried, as only Peers are tried, 
 by Peers alone, upon an indictment of treason or felony, 
 or misprision of either, found in a Court below, and removed 
 into the House of Lords, or into the Court of the Lord 
 High Steward. It may be that the right was, in early 
 times, inherent in them, as Peers of the King's Court 
 holding in barony. If so, it was a right which they did 
 not choose to enforce, and which even they rejected with 
 contumely. They again and again expressed their deter- 
 mination to be free not from the jurisdiction of those 
 among the King's Courts which were inferior to the House 
 of Lords, but from all secular jurisdiction whatever. 
 
 The Bishops were never in a position to recover, after 
 the complete abolition of the feudal tenures at the time 
 of the Restoration, the privilege which they had in earlier 
 times rejected. As it was in origin one belonging to the 
 feudal Pares Curtis or Curiae, there was no title on which 
 they could rest their claim to it when the King's feudal 
 Court had come to an end. The privileges of the 
 Temporal Lords were continued by the Act which 
 ended tenure by military service, but no privileges could 
 be continued which were not recognized as being in 
 existence. 
 
 When, however, the feudal system was formally abolished 
 in England, the doctrines relating to blood which had 
 grown up with it continued to maintain their ground. The 
 descent of lands, and the descent of dignities remained 
 precisely as they were before. The result was that nobility 
 of blood became of even greater importance than ever. 
 It was from nobility of blood alone that the only persons 
 now recognized as Peers derived their claims and their 
 privileges. Their ancestors had owed and rendered services 
 to the State, which they were no longer under an)' 
 obligation to yield. Their blood was the source of their 
 
THE HOUSE OF LORDS 223 
 
 dignity, and they regarded the admission of a new man Chap. XI. 
 to their order as a very high honour, especially as the 
 blood of the new-comer became ennobled like their own. 
 
 It was from this point of view that the right of trial Andamong 
 by Peers was now regarded. The Bishops, it was said, privilege 
 by the clearest and most popular exponent of English of trial 
 Law in the eighteenth century, • have no right to be tried f the 
 in the Court of the Lord High Steward, and therefore Realm - 
 surely ought not to be Judges there. For the privilege 
 of being thus tried depends upon nobility of blood rather 
 than a seat in the House, as appears from the trial of 
 Popish Lords [while incapable of a seat there], of Lords 
 under age, and since the Union [with Scotland] of the 
 Scots nobility, though not in the number of sixteen 
 [representative Peers], and from the trials of females, such 
 as the Queen Consort or Dowager, and of all Peeresses 
 by birth, and Peeresses by marriage also, unless they 
 have, when Dowagers, disparaged themselves by taking 
 a commoner to their second husband V 
 
 A Peeress by marriage, it will be observed, is not 
 necessarily herself of noble blood, and may enjoy her 
 privilege in virtue of the blood of her husband. This, 
 however, is quite in accordance .with the old common 
 law of England, according to which a married woman 
 has no name and no condition except that of wife of her 
 husband. The doctrine of blood is thus made quite 
 consistent with itself, as the foundation of all the privileges 
 of Peerage. It will nevertheless be apparent to every 
 one who has read these pages that although there was 
 continuity of descent, the Peerage after the Restoration, 
 and its privilege of trial by Peers, rested on a different 
 foundation from that of the Peerage existing before the 
 Great Rebellion. 
 
 The old forms, however, survived, and the Court of Survival of 
 the Lord High Steward, and the general principles relating of ^ Lord 
 to the trial of Peers remained as they had been in the High 
 days of Henry VIII. The privilege in relation to trial a s it had 
 1 4 Bl. Com. 262. 
 
224 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XI. 
 
 been in the 
 reign of 
 Henry 
 VIII. 
 
 Privilege 
 of trial 
 by Peers 
 guarded in 
 successive 
 Acts. 
 
 Act of 
 William 
 III: all 
 the Peers 
 to be 
 
 summoned 
 on trial of 
 a Peer 
 for certain 
 Treasons 
 only. 
 
 by Peers had been carefully guarded on the passing of 
 every new Act relating to treason or felony. 
 
 Thus when, in the reign of Henry VIII, an Act was 
 passed concerning the trial and punishment of murder 
 and bloodshed within the limits of the King's palace or 
 house, it was expressly provided that the trial of Peers 
 for any of the offences mentioned should remain as before 1 . 
 So also when certain treasons and misprisions of treason 
 committed out of the realm were made triable in England, 
 the privilege of Peers to have trial by their peers, after 
 indictment, was expressly saved to them 2 . Again, when 
 on the accession of Elizabeth an Act was passed in relation 
 to ecclesiastical jurisdiction, by which certain penalties 
 were provided for certain offences against the Act, and 
 certain offences were made treason, a Peer indicted of 
 treason was to have trial by his peers ' in such manner 
 and form as in other cases of treason hath been used 3 .' 
 On the restoration of Charles II an Act was passed for 
 his protection, to remain in force only during his life, and 
 once more it was provided that no Peer should be tried 
 for any offence under the Act, except by his peers, though, 
 upon conviction, he was to be disabled for life for sitting 
 in Parliament unless he received the King's pardon 4 . 
 
 During all this time a Peer could, upon indictment of 
 high treason or felony, claim to be tried by Peers of the 
 Realm, but not necessarily by the whole of the Peers. 
 In the reign of William III, however, an Act was passed 
 which had the effect of placing the jurisdiction in trials 
 for treason in the whole body of Peers whether Parliament 
 was sitting or not 5 . After reciting that ' upon trials of Peers 
 
 1 Stat. 33 Hen. VIII, cap. 12. sec. 20. 
 
 2 Stat. 35 Hen. VIII, cap. 2. sec. 2. 
 
 3 Stat. 1 Eliz., cap. 1. sec. 34. 
 
 4 Stat. 13 Car. II, stat. 1. cap. 1. sec. 7. 
 
 5 Stat. 7 Will. Ill, cap. 3. sec. II. It has sometimes been argued 
 that the Lords Spiritual are included in the word ' peers ' in this Act ; 
 but as they could not ' vote at the trial,' and have always withdrawn 
 before judgement, it seems clear that they are excluded. 
 
THE HOUSE OF LORDS 225 
 
 or Peeresses a major vote is sufficient either to acquit or Chap. XI 
 to condemn,' the Statute provided that upon the trial of 
 any Peer or Peeress either for treason or misprison of 
 treason, all the Peers who have a right to sit and vote in 
 Parliament shall be duly summoned, and that every Peer 
 summoned and appearing shall vote at the trial. The Act 
 did not extend to proceedings by impeachment, nor did 
 it extend to indictments for counterfeiting the coin of the 
 realm, the Great Seal, the Privy Seal, the Sign Manual, 
 or the Privy Signet, and no mention was made in it of 
 any kind of felony. 
 
 The benefit of this Act was extended to offences declared Extended 
 to be High Treason by another Act passed in the reign Q n ue e e r n 
 of Queen Anne \ These had relation to the government Anne. 
 of the Queen's land-forces when serving out of England 
 or Ireland. They included correspondence or treating 
 with the Queen's enemies, or rebels, without her licence, 
 or that of the Commander-in-Chief 2 . Other offences — 
 those of raising sedition or mutiny in the army, refusing 
 to obey, striking or resisting a superior officer — were made 
 felonies 3 . Any Peer of the Realm who had, beyond sea, 
 committed any treason or felony mentioned in the Act, 
 and who had not already been tried by martial law, but 
 had been indicted after his return, was to have his trial 
 by Peers according to custom 4 . 
 
 In the reign of Queen Anne also provision was made The trial 
 for the indictment of Peers of Great Britain who had J^g^S 
 committed 'high treason, petit treason, misprision of treason, Britain 
 murder, or other felonies ' in Scotland 5 . No provision, TreaTon^f 
 however, was made as to the mode of trial after indict- Felony * n 
 
 . Scotland : 
 
 ment, except that the proceedings were to be ' in the Acts of 
 same method ' as those following any inquisition found Q ueen 
 before Justices of Oyer and Terminer in England. Some George IV. 
 doubts subsequently arose with regard to the interpretation 
 of the Act, and it was declared in the reign of George IV, 
 
 1 Stat. 2 & 3 Anne, cap. 20. sec. 43. 
 
 2 Sec. 34. 3 Sec. 35. 4 Sec. 42. 
 5 Stat. 6 Anne, cap. 23 (or 78). sec. 12. 
 
 t Q 
 
226 CONSTITUTIONAL HISTORY OF 
 
 Chap. XI. that the crimes in respect of which the Commission in the 
 nature of a Commission of Oyer and Terminer might 
 enquire in Scotland were ' all treasons, misprisions of 
 treason, murders, and other crimes which infer a capital 
 punishment by the law of Scotland, and all felonies and 
 other crimes for which, if committed in England, a Peer 
 of the United Kingdom would be tried by his Peers,' but 
 that it should ' not be lawful for the Court of Justiciary, 
 or any other Court in Scotland, to take cognizance of any 
 of the aforesaid crimes ; but such Courts shall and may 
 try all other crimes committed by Peers in Scotland, if 
 otherwise competent to try such crimes by the law of 
 Scotland V It was at the same time declared that the 
 provisions of the explaining Act should extend to all 
 Peeresses in their own right, to all wives of Peers, and to 
 all widows of Peers not married to commoners who should 
 commit crimes in Scotland 2 . It was further declared that 
 the Act should not apply to any Peer of Ireland while 
 a member of the House of Commons 3 , and finally that it 
 should not alter or affect any law in force with regard 
 to the trial of Peers for high treason or misprision of 
 treason 4 . 
 Privilege In the year 1862 an Act 6 was passed for the more 
 
 in^SoTin s P ee dy trial of certain homicides committed by persons 
 relation to subject to the Mutiny Acts, and it was again expressly 
 
 off f*n c^s 
 
 under the provided that no one claiming the privilege of peerage 
 Mutiny should be rendered triable under the provisions of the 
 
 Acts. 
 
 Act 6 . 
 
 Thus the privilege of trial by Peers has been the most 
 jealously preserved of all the privileges of Peers, from the 
 time of its establishment to the present. Under the Act 
 of William III, indeed, it was strengthened in relation to 
 charges of treason, or misprision of treason in general, 
 though not in relation to some excepted forms of treason, 
 or to felony or misprision of felony. With regard to the 
 
 ] Stat. 6 Geo. IV, cap. 66. sec. 1. 2 Sec. 12. 
 
 3 Sec. 13. 4 Sec. 14. 
 
 5 Stat. 25 & 26 Vict., cap. 65. 6 Sec. 19. 
 
(university) 
 the house of lords j 227 
 
 last the law remained, to all appearance, as it was before, Chap. XI. 
 and it would seem that, if Parliament were not sitting, 
 a Peer could be tried in the Court of the Lord High 
 Steward consisting of a limited number of Peers. 
 
 It is. perhaps, open to question whether a Peer could Question 
 waive his privilege of being tried by Peers of the Realm. ^ e e 
 The Committee of twelve Lords reported in 1341 that any privilege 
 submission by a Peer to the jurisdiction of an inferior Court Peers can 
 ought not to prejudice other Peers, or even himself, on any be waived - 
 subsequent occasion l . The possibility of a Peer waiving 
 his privilege seems, therefore, to have been then assumed. 
 Under the Act of 1862 it is only a person claiming privi- 
 lege who is exempted from the jurisdiction thereby 
 established ; and the omission of the claim would appear 
 to cause the loss of the privilege, so far as any offences 
 under that particular Act are concerned. As a general 
 principle, however, Sir Edward Coke 2 maintained that 
 a Peer has no power of waiver. He founded his opinion 
 on a decision to that effect in the case of Lord Dacre of 
 the North in the reign of Henry VIII, and on the twenty- 
 ninth chapter of Magna Charta. 
 
 As between Sovereign and Peers, and as between Peers in trials of 
 and Peers, however, there is no doubt that every Peer i n ^ c {. 
 (including those of Scotland, and of Ireland) has a right, ^ents of 
 when indicted of High Treason, of Felony, or of misprision Felony, the 
 of either, to be tried by Peers. When Parliament is sitting judgement 
 
 ' J to always that 
 
 he has a right to be tried in the House of Lords (technically of the 
 known as the Court of our Lady the Queen in Parliament), lSSs 013, 
 and when Parliament is not sitting, in the Court of the alone. 
 Lord High Steward. In the former case the Spiritual 
 Lords may be present, as they are required to be according 
 to the Constitutions of Clarendon, up to the point at which 
 judgement is to be given, when they have to withdraw, 
 and have always withdrawn, in compliance with the canons 
 of the Church. Though present in full Parliament, as Lords 
 of Parliament, during the early stages of the trial of Peers, 
 
 1 Rot. Pari., 15 Ed. Ill, no. 7 (printed, vol. ii. p. 127). 
 
 2 3 Inst. 30. 
 
 Q 2 
 
CONSTITUTIONAL HISTORY OF 
 
 Chap. XL 
 
 Doctrines 
 as to im- 
 peachment 
 after the 
 reign of 
 Richard II. 
 
 Bill of 
 Attainder 
 the more 
 common 
 mode of 
 proceed- 
 ing. 
 
 they have never been summoned, as Peers, to the Court of 
 the Lord High Steward, and the only judgement which 
 can be pronounced upon any Temporal Lord, or upon any 
 Peer who is not a Lord of Parliament, on indictments of 
 Treason, Felony, or misprision of either, is that of the Lords 
 Temporal. 
 
 The wavering attitude of the Lords in relation to accusa- 
 tions against commoners in the reigns of Edward III and 
 Richard II, and the trials by them of commoners impeached 
 of High Treason in the reign of Richard II, have already 
 been mentioned. In subsequent reigns the trial, before the 
 Lords, of impeachments formulated by the Commons 
 appears to have been a fully recognized institution, though 
 it is sometimes lost from view during considerable intervals 
 of time, and though disputes arose with regard to the 
 offences to which it was applicable. 
 
 Among the earliest instances of impeachment are accusa- 
 tions of High Treason brought against persons who were 
 not Peers of the Realm ; and it is strange that so eminent 
 a lawyer as Blackstone should have committed himself to 
 the statement that a commoner could be impeached only of 
 high misdemeanours l . As in other matters, the rare use 
 of a particular mode of proceeding and the long inter- 
 missions of Parliaments tended, without doubt, to cause 
 uncertainty on the subject of impeachment. The more 
 recent cases were naturally those to which most attention 
 was paid. 
 
 Although there were ' impeachments ' in the reign of 
 Henry IV. and even of Henry VI, there were none 
 between the year 1449 (when the Duke of Suffolk was 
 impeached) and the year 1621 (when accusations were made 
 against Sir Giles Mompesson), unless the doubtful case of 
 the Bishop of London in 1534 be regarded as one. There 
 had always been some confusion between the judicial and 
 legislative powers of the Lords, and thus the proceeding by 
 Bill of Attainder appears, for a very long time, to have 
 
 4 Com. 256-257. 
 
THE HOUSE OF LORDS 229 
 
 superseded the proceeding by impeachment when, at any Chap. XI. 
 rate, the offence alleged was High Treason. This may have 
 tended to obscure the right of the Commons to impeach 
 a commoner of treason, and the jurisdiction of the Lords to 
 try him. The subject was still further complicated by the 
 usual practice of introducing a Bill of Attainder first in the 
 House of Lords. 
 
 Even the impeachment of Mompesson by the House of Hesitation 
 Commons, in 1621, was effected in a manner which showed ^ ^ e f 
 some hesitation as to the mode of taking action. He was conducting 
 accused, not of High Treason, but of high crimes and peachment 
 misdemeanours. The Commons had a search made for of Mom " 
 
 pesson in 
 
 precedents, and came to the conclusion that there was no 1621. 
 power in their own House to inflict any punishment for an 
 offence of a general character, and not merely affecting the 
 privileges of their House. They desired a conference with 
 the House of Lords, and at the conference described in 
 general terms the nature of the charge, but they did not 
 draw up, in accordance with the later practice, specific 
 articles of accusation. The Lords, having found Mom- 
 pesson guilty, sent a message to the Commons to the 
 effect that they were prepared to give judgement. The 
 Speaker, attended by the Commons, then demanded judge- 
 ment at the bar of the House of Lords, and it was given 
 accordingly 1 . 
 
 Within a few days of the impeachment of Mompesson, Pro- 
 the Commons proceeded, in a not very confident manner, theim? S ° n 
 to impeach one of the greatest, if not the best of men. peachment 
 A committee was appointed to enquire into abuses in the Bacon, 
 courts of justice. A series of reports was made. Twenty- Y^ ™ 1 
 eight specific charges of corruption were drawn up against 
 Francis Bacon, Viscount St. Albans, Lord High Chancellor 
 of England, and laid before the House of Lords in writing, 
 but Sir Edward Coke was to move that this should not be 
 drawn into a precedent. Being in ill health, the Chancellor 
 
 1 Journals of the House of Commons, Feb. 27, 28, and March 3, 
 1 620-162 1 (vol. i. pp. 530-532, 535-537), and Journals of the House of 
 Lords, March 26, 1621 (vol. iii. p. 72). 
 
230 CONSTITUTIONAL HISTORY OF 
 
 Chap. XL sent to the Lords a written statement, in which he confessed 
 his guilt in general terms, and prayed for mercy. With 
 this the Lords were not satisfied, and required him to answer 
 the articles of accusation, one by one. He then made 
 a further 'humble confession and submission,' admitting 
 that there was at least some foundation for each of the 
 charges, and, with an appeal for mercy, concluded : ' I do 
 plainly and ingenuously confess that I am guilty of cor- 
 ruption, and do renounce all defence V 
 
 After steps had been taken to ascertain from the sick 
 Chancellor that his confession was indeed his own, the Lord 
 Treasurer and others went to his bedside, and received from 
 his hands the Great Seal. On May 2, 1621, the Gentleman 
 Usher and the Sergeant-at-Arms received instructions from 
 the House of Lords to summon him to appear in person on 
 the following morning, when judgement was to be delivered. 
 He was unable to attend. The articles of impeachment 
 and his confession were read in his absence, and, on the 
 question being put, it was agreed that he was guilty. The 
 Bishops were present, and there was no dissentient. A 
 message was sent to the Commons that the Lords 'were 
 ready to give judgement against Lord Viscount St. Albans, 
 if the Commons should come to demand it.' The Speaker 
 of the Commons then came to the Bar of the House of 
 Lords and demanded judgement against the Lord Chan- 
 cellor, as his offences required. The sentence was that he 
 should pay a fine of ^"40,000, be imprisoned in the Tower 
 of London during the King's pleasure, be for ever incapable 
 of holding any public office, place, or employment, and never 
 sit in Parliament or come within the verge of the Court 2 . 
 Discretion This judgement illustrates the power or discretion 
 Lords as to °^ tne House in relation to punishment, when capital 
 punish- offences are not in question. It was also exercised in the 
 
 merit. 
 
 1 Journals of the House of Commons, beginning March 15, 1620- 
 162 1 (vol. i. p. 554), and fournals of the House of Lords, March 19, 20, 
 1620-1621, April 14, 30, 1621, and May 3, 1621 (vol. iii. pp. 51-52, 
 53-55, 84-86, 98-101, 105-106). 
 
 2 fournals of the House of Lords, May 3, 1621 (vol. iii. pp. 105-106). 
 
THE HOUSE OF LORDS 231 
 
 same year, in a fashion which to modern eyes seems cruel, Chap. XT. 
 when sentence was passed upon Floyd for having used 
 disrespectful words in relation to the Elector Palatine and 
 his wife. 
 
 There is nevertheless very remarkable evidence that the This 
 principles upon which punishment should be inflicted by ^^0°^ 
 the Lords for high crimes and misdemeanours, after con- by Lord 
 viction upon impeachment, were not by any means definitely in thTcase 
 settled. Three years after sentence had been pronounced °/ the 
 on Bacon, Lionel Cranfield, Earl of Middlesex and Lord Middlesex. 
 High Treasurer of England, was impeached for corruption 
 and other misdemeanours, and in particular for having taken 
 bribes from the farmers of customs 1 . He denied the 
 charges, but used an argument which indicated, in the 
 clearest manner, the habits of the time. It was that he had 
 ' been a judge these eight years, and no complaint brought 
 against him for corruption or bribery, which he hoped 
 would weigh much with their lordships.' He was, however, 
 found guilty, and the judgement passed upon him was 
 almost identical with that passed upon Bacon. Yet Edward 
 Hyde, afterwards Earl of Clarendon and Lord Chancellor, 
 deliberately stated in his History of the Rebellion, that when 
 Middlesex was ' condemned in a great fine, to a long and 
 strict imprisonment, and never to sit in Parliament during 
 his life,' this latter clause was 'of such a nature as was 
 never before found in any judgement of Parliament, and, in 
 truth, not to be inflicted upon any Peer but by attainder 2 . 
 
 It is difficult to arrive at any certainty on a question of Case of 
 constitutional law, when a Chancellor makes a statement Harris 
 directly at variance with an undeniable fact. It is, there- a com- 
 fore, not wonderful that difficulties arose between the Lords peached" 1 
 and the Commons at a somewhat later period. It is ofHi £ n 
 
 . i_ 1 1 r « • Treason 
 
 inevitable that, when there are charges of high treason, in 1681 
 political feeling should run high. Men use arguments and JjlJed"? 
 
 the Lords. 
 
 1 Journals of the House of 'Commons, beginning April 5, 1624 (vol. i. 
 p. 755), and fournals of the House of Lords, May 13, 1624 (vol. iii. 
 pp. 382-3S3). 
 
 2 Hist. Rebellion, i. 45. 
 
232 CONSTITUTIONAL HISTORY OF 
 
 Chap. XI. arrive at decisions which in calmer moments they would 
 reject. Thus, when plots and rumours of plots filled the 
 air, in 1681, it happened, for political reasons with which 
 this history has no concern, that one Fitz-Harris was im- 
 peached of High Treason. He was already in prison and 
 about to be indicted, if not already indicted, according to 
 the forms of the common law. The Lords refused to 
 entertain the impeachment, and voted that the proceeding 
 against Fitz-Harris should be at common law. Upon this 
 the Commons resolved 'that it is the undoubted right of 
 the Commons, in Parliament assembled, to impeach, before 
 the Lords in Parliament, any peer or commoner for treason 
 or any other crime or misdemeanour, and that the refusal 
 of the Lords to proceed in Parliament upon such impeach- 
 ment is a denial of justice and a violation of the constitution 
 of Parliaments V The Lords, nevertheless, did not try the 
 case, and Parliament was almost immediately afterwards 
 dissolved. Fitz-Harris was then tried and found guilty by 
 a jury. 
 
 This case was, however, not by any means conclusive 
 with regard to the right of the Commons to impeach 
 a commoner for High Treason. It was complicated with an 
 attempt to withdraw a case from the cognizance of the 
 Courts of King's Bench or Oyer and Terminer, and there- 
 fore involved something more than a merely Parliamentary 
 question. 
 Sir An opportunity arose, in the year 1689, for a better and 
 
 and other a calmer review of the position, without any similar com- 
 commoners plications. Sir Adam Blair and four other commoners were 
 
 impeached 
 
 of High then impeached of High Treason. The Lords appointed 
 andTried a comm ittee to search for precedents. Upon receiving the 
 by the report, in which precedents were cited, and after rejecting 
 j689. S a motion to take the opinion of the judges, they resolved 
 
 that the impeachment should proceed 2 . It was thus settled, 
 
 1 Joicrnals of the House of Commons, March 26, 1681 (vol. ix. 
 p. 711). 
 
 2 fonr?ials of the House of Lords, June 26 and July 2, 1689 (vol. xiv. 
 pp. 260, 362-364). 
 
THE HOUSE OF LORDS 233 
 
 as indeed it could only be settled, if the Lords were to try Chap. XL 
 impeachments against commoners at all. that they could 
 try impeachments of commoners for capital offences. They 
 could of course try Peers, whether the accusation took the 
 form of impeachment or of indictment. 
 
 One of the chief features of an impeachment, which, A pardon 
 however, was not universally recognized at first, is that it pi ea dedin 
 cannot be defeated by the pardon of the sovereign. A great t> ar of * n 
 dispute arose in relation to this subject on the impeachment men t. 
 of the Earl of Danby in 1679. When required to give his 
 answer to the charges brought against him, he pleaded the 
 King's pardon 1 . The Commons then resolved that the 
 pardon was illegal and void, and demanded judgement at 
 the bar of the Lords, as against one who had pleaded a void 
 plea 2 . The quarrel branched off in various other directions, 
 the Commons even denying, though in vain, the right of the 
 Bishops to take part in the earlier stages of an impeachment 
 in the House of Lords. It was ended for a time by the 
 prorogation of Parliament. The principal question was 
 finally set at rest by the Act of Settlement, in which it was 
 declared ' that no pardon under the Great Seal of England 
 shall be pleadable to an impeachment by the Commons in 
 Parliament 3 .' The power of the Crown to pardon, after the 
 Lords have given judgement, is not affected by these words, 
 but no pardon can be interposed between impeachment by 
 the Commons and trial by the Lords. 
 
 It may, perhaps, also be considered a general principle Question 
 that neither prorogation nor dissolution of Parliament will pr0 ro- 
 put an end to impeachment by the Commons before the gation or 
 
 i . dissolution 
 
 Lords. As early as 1673 it was resolved by the House of can end an 
 
 Lords, after enquiry by a committee, that ordinary judicial ™^°con- 
 
 1 businesses depending in one Parliament or session of Parlia- tradictory 
 
 ment have been continued to the next session of the same 
 
 Parliament, and the proceedings thereupon have remained 
 
 in the same state in which they were left when last in 
 
 1 Journals of the House of Lords, April 25, 1679 (vol. xiii. p. 540). 
 
 2 lb., May 5, 1679 (vol. xiii. p. 553). 
 
 3 Stat. 12 & 13 Will. Ill, cap. 2. sec. 3. 
 
 resolu- 
 tions. 
 
234 THE HOUSE OF LORDS 
 
 Chap. XI. agitation V A few years later another committee reported 
 to the House of Lords ' that the dissolution of the last 
 Parliament doth not alter the state of the impeachments 
 brought up by the Commons in that Parliament,' and the 
 House resolved accordingly 2 . In this, however, as in many 
 other cases, the Lords reversed their own decision 3 , political 
 motives obviously having no little weight. 
 
 The question whether even a prorogation would not put 
 
 an end to an impeachment seems afterwards to have been 
 
 brought into doubt, as in the case of the Earl of Oxford in 
 
 17 17 it was thought necessary, after a search for precedents, 
 
 to make a resolution in the negative 4 . There would a fortiori 
 
 have been a doubt in case of a dissolution. 
 
 The doubt The difficulty was felt in 1786, when articles of impeach- 
 
 b™special ment were drawn U P against Warren Hastings. It was 
 
 Acts of then thought prudent to have an Act of Parliament passed 
 
 in the cases to the effect that the proceedings should not be discon- 
 
 of Warren tinued by any prorogation or dissolution of Parliament 5 .' 
 
 and So also when Viscount Melville was impeached in 1805, 
 
 Melville! another Act was passed in identical terms 6 . It is not 
 
 improbable that these precedents would be followed upon 
 
 any future impeachment, as each of these Acts had reference 
 
 only to the particular case under consideration at the time. 
 
 The points have often been argued, but would of course be 
 
 subject to further argument on the introduction of any new 
 
 Bill. 
 
 1 Journals of the House of Lords, March 29, 1673 (vol. iii. p. 583). 
 
 2 lb., March 19, 1678-1679 (vol.xiii. p. 466). The Order applied also 
 to Appeals and Writs of Error. 
 
 3 lb., May 22, 1685 (vol. xiv. p. 11). 
 
 4 lb., May 25, 17 17 (vol. xx. p. 475). 
 
 5 Stat. 26 Geo. Ill, cap. 96. 6 Stat. 45 Geo. Ill, cap. 125. 
 
CHAPTER XII 
 
 Rights and Privileges in general of* the House of Lords, 
 and of its Members ; Disabilities. 
 
 THE rights and privileges now enjoyed by Peers and Chap.xii. 
 Lords of Parliament are not all identical with those „ . 
 
 Modern 
 
 which they enjoyed in former times. < and 
 
 It has already been seen incidentally that the right even ^f^ es 
 to sit in the House of Lords in a particular order of pre- not all 
 cedence was slowly developed out of the burden of a writ of * en 
 summons calling an unwilling Baron or Bishop to attend the s it i n the 
 King in Parliament. It has also been shown that the desire House of 
 
 r . Lords an 
 
 of the Barons to be summoned which appears in Johns instance. 
 Great Charter was prompted only by the desire for pro- 
 tection when some exceptional tax was to be imposed. 
 
 For some generations afterwards it was thought a privilege, 
 not to sit in Parliament, but to be exempt from attendance. 
 This is equally true with regard both to the lay Barons and 
 to the Prelates. Perhaps, however, the fact ought to be 
 established by more details than have yet been given. 
 
 In the reigns of Edward I and Edward II one summons Efforts of 
 
 to Parliament was not necessarily followed by a subsequent ! ay Barons 
 
 J J ^ to escape 
 
 summons of the same person or his descendants. Though summons 
 the principal reason may have been that the King did not i^ta^ces. 8 ^ 
 desire or need the presence of the Baron, another reason was 
 that the Baron did not desire to be present. There are 
 even instances in which men who had been summoned, and 
 whose ancestors had been summoned to Parliament, were 
 ready to deny that they were Barons at all. In the reign of 
 Edward II. Thomas de Furnivall tried to show that he was 
 
236 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. not a Baron 1 , nominally to escape a particular amercement, 
 though his ancestor had been amerced as a Baron in the 
 reign of Richard I ' l . He and his descendants were never- 
 theless summoned to Parliament for some generations, as 
 his ancestors had been before him ; and his barony is one of 
 the few which can be shown to have developed out of a so- 
 called ' barony by tenure ' into a so-called ' barony by writ.' 
 
 An indication that the temporal lords regarded the 
 summons to Parliament as a burden rather than an honour 
 or a privilege as late as the twenty-seventh year of 
 Edward III is to be found in an exemption then granted 
 by the King to James de Audley. He was, ' during his 
 whole life, to be quit of coming to our Parliaments and 
 Councils and those of our heirs V There are also other 
 and still later instances which show that even when lay 
 lords were disposed to stand upon their dignity and their 
 rights in Parliament, there were some, at any rate, who 
 were anxious to escape the burden of sitting. 
 
 The Prelates were at first, at least, as reluctant as the lay 
 lords to attend in Parliament. Even towards the end of 
 the reign of Edward III the Prior of Lewes, whose name 
 appears in some earlier writs of summons to Parliament, 
 desired immunity from attendance. Upon inspection of the 
 Chancery rolls it was found that no Prior of Lewes had 
 been summoned before the fourth year of Edward II, and 
 that the Prior of Lewes had not been summoned on every 
 occasion since that time. His name had been inserted 
 among those of the other Prelates summoned, because he 
 was willing (yolimtarie) and not as of right (de jure). The 
 King therefore commanded that his name, where inserted 
 in the rolls., should be * withdrawn, cancelled, and deleted,' 
 so that in future the Prior for the time being should not 
 
 1 Exchequer, L. T. R. Remembrance Roll, 19 Ed. II, Community Rot. 3 
 (printed in Madox's History of the Exchequer, chap. xiv. § 2). See 
 also Madox's references to show that Furnivall really held by barony. 
 
 2 Eyre Roll, Hertford, 10 Ric. I, m. 2 d (printed among the Rotuli 
 Curiae Regis, i. 169). 
 
 3 Rot. Lit. Pat., 27 Ed. Ill, part i. m. 13 (printed, Rep. Dig. Peer, 
 vol. iv. p. 596). 
 
 Efforts of 
 Prelates to 
 obtain ex- 
 emption : 
 instances. 
 
THE HOUSE OF LORDS 237 
 
 be summoned to Parliament, but should be altogether Chap.XII. 
 discharged and quit of his coming V 
 
 The case of the Abbot of Gloucester also clearly shows 
 that in the twenty-sixth year of Edward III attendance in 
 Parliament and in Councils was regarded as a burden 
 rather than as an honour by some of the Prelates. The 
 King in his Letters Patent then says : l On account of 
 the special affection which we bear and have towards the 
 Church and Abbey of St. Peter of Gloucester, in which the 
 body of the Lord Edward, late King of England, of famous 
 memory, our father, lies buried, we, willing to show special 
 grace to our beloved in Christ Thomas, now Abbot of that 
 place, have granted, for ourselves and our heirs, to the same 
 Abbot, that he, during his whole life, may appear in all 
 Parliaments, Assemblies, and Councils by his proctor or 
 attorney, having full power to consent to the matters which 
 may chance to be done in the same Parliaments, Assemblies, 
 and Councils of the Common Council of our Realm, and 
 that he be in no wise compelled to appear in person 2 .' 
 Other Abbots also had similar exemptions. 
 
 Even in the reign of Richard II it was found necessary Act of 
 to pass an Act of Parliament to secure the attendance of ^enforce* 
 the Lords as well as of the Commons. It was, no doubt, to attendance. 
 a great extent declaratory, but it suffices to show that all 
 the Lords did not even yet look upon the summons to 
 Parliament as a privilege. Every one who received that 
 summons ( ; Archbishop, Bishop, Abbot, Prior, Duke, Earl, 
 or Baron') and who absented himself when summoned, was, 
 unless he could reasonably and honourably excuse himself to 
 the King, to be amerced and otherwise punished according 
 to the ancient custom 3 . 
 
 When, however, the creation of Dukes, Marquesses, The idea 
 Viscounts, and even Barons by Letters Patent became a summons 
 common practice, there grew up among the Peers, and was a "ght 
 
 1 Rot. Lit. Clans., 39 Ed. Ill, m. 32 (printed, Rep. Dig. Peer, vol.'iv. 
 p. 638). But a Prior was summoned in 1 Edward II. 
 
 2 Rot. Lit. Pat., 26 P:d. Ill, part i. m. 20 (printed, Rep. Dig. Peer, 
 vol. iv. p. 593). s 5 Ric. II, stat. 2. cap. 4. 
 
2 3 8 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap.XII. 
 
 associated 
 with later 
 ideas of 
 precedence 
 in the 
 Realm. 
 
 The 'right* 
 to the 
 writ of 
 summons 
 in the 
 time of 
 Charles I : 
 case of the 
 Earl of 
 Bristol. 
 
 particularly among the Barons, a desire for precedence, 
 which was probably fostered by their increased power in 
 relation to the Crown during the Wars of the Roses. 
 Henry VI, as is shown in another chapter, was frequently 
 induced to interfere in relation to questions of precedence ; 
 and precedence came to be associated with a particular 
 place in the House of Lords. That which had formerly 
 been regarded only as a burden thus came to be more 
 closely associated with the ideas of dignity and privilege. 
 The growing influence of the House of Commons, too, was 
 probably not without its effect. If the higher ranks of the 
 peerage could assert their position above the lower ranks, 
 and the Barons of early origin above those of later origin, 
 even those of latest origin could assert a position superior 
 to that of the Commons. The Peer's place in the House 
 of Lords became the outward and visible sign of his place 
 in the kingdom. He began to look upon his summons as 
 a right of which he would not willingly be deprived. Early 
 in the reign of Henry VIII he took pride in having his 
 presence mentioned in due order of precedence in the 
 Journals of the House of Lords. Thus by degrees the old 
 order of things gave way to the new, and the once hateful 
 summons to Parliament became a source of joy, though 
 there still continued to be gradually diminishing punish- 
 ments for non-attendance. 
 
 In the reign of Charles I the Lords had completely 
 forgotten the reluctance of their ancestors to sit in Parlia- 
 ment. The summons to Parliament was, in their view, one 
 of their rights. Certain accusations had been made against 
 the Earl of Bristol, who was neither tried for his supposed 
 offences nor summoned to Parliament. He presented a 
 petition to the Lords, and the committee to which it was 
 referred reported that there was no instance on record in 
 which a Peer capable of sitting in Parliament had been 
 refused his writ '^^ is impossible to imagine a greater 
 contrast than thaWKween Thomas de Furnivall trying to 
 
 ie House 
 
 1 Journals of the House of Lords, March 22, 1625-1626 (vol. iii. 
 p. 537). Parliamentary History, vol. ii. pp. 74—75. 
 
THE HCUSE OF LORDS 239 
 
 prove that he was not a Baron in the reign of Edward II, Chap. XII. 
 and the Earl of Bristol, three centuries later, endeavouring 
 to force the King to send him a summons. 
 
 The subject is one which possesses more than a merely The 
 antiquarian or historical interest, because it has an im- Aether 
 portant bearing upon the question, sometimes discussed, a Peer can 
 
 11 .. rir-r-i abandon 
 
 whether any one succeeding to a peerage of the United his peerage 
 Kingdom can remain or be newly elected as a Member of h 7 omlt ~ 
 
 & J . ting to 
 
 the House of Commons if he abstain from demanding his demand a 
 writ of summons to the House of Lords. If the summons summons - 
 were an instrument devised entirely for the good of the 
 person summoned, he might, perhaps, have it or not at his 
 pleasure. As, however, its origin is totally different, the 
 subject must be regarded from a different point of view. 
 
 As shown in another page, it has been held that one Proof of 
 claiming privilege of peerage in a Court of Justice cannot necesKry 
 have it allowed without producing evidence that he is when 
 a Peer. The doctrine might, perhaps, even be carried 
 
 was 
 
 further by analogy, and extended to everything by which claimed in 
 anything could be gained for the particular individual. 
 Still, with reference to a constitutional principle, it is not 
 merely the individual that must be considered, nor merely 
 his relation to the House of Commons, but his relation to 
 the constitution as a whole. 
 
 In the old feudal times the death of a tenant-in-chief of The Crown 
 the Crown was followed by an inquisition, in which the ^fo^^ 
 name and the age of the next heir were stated. Upon the as to the 
 return of the inquisition the Crown became informed of the feudal in- ■ 
 facts, and the summons to Parliament could issue. When qoiwtion. 
 the feudal tenures were abolished the inquisitions post 
 mortem ceased, and consequently the Crown ceased to be 
 officially informed of the name of the next heir. Before 
 this happened the idea that a summons to Parliament was 
 a privilege or a right had overborne the idea that it was 
 a burden. Peers therefore sought to hjjjiimmoned instead 
 of avoiding a summons. ^^H 
 
 Thus when a Peer, who is one of the iWreditary Lords of 
 Parliament, dies, the heir (or some person on his behalf) 
 
240 
 
 CONSTITUTIONAL ITSTORY OF 
 
 Chap. XII. 
 
 The 
 modern 
 practice of 
 application 
 to the 
 Chancellor 
 for a 
 summons. 
 
 The 
 
 summons 
 to the 
 House of 
 Lords and 
 the seat 
 in the 
 House of 
 Commons. 
 
 The 
 
 questions 
 hence 
 arising 
 seem to be 
 for the 
 advisers of 
 the Crown 
 and the 
 House of 
 Lords. 
 
 applies to the Lord Chancellor for his writ of summons, 
 and produces the necessary evidence that he is in fact the 
 heir 1 . He could, of course, omit to make the application, 
 and if it were held that there could be no summons to 
 a Peer by descent who neglected to ask for it, the conclu- 
 sion might possibly folio w^tHat he would not be disqualified 
 for a seat in the House of Commons. According to Statute 2 , 
 the Speaker, if he receive, during a recess of the House, 
 a certificate that a writ has issued to summon a member 
 of the House of Commons to Parliament as a Peer, is to 
 send forth his warrant to the Clerk of the Crown to make 
 out a writ for the return of a new member. 
 
 The summons to the House of Lords is here made an 
 essential factor in vacating the seat in the House of 
 Commons. Precedents have also occurred during a ses- 
 sion of Parliament. Thus, when a writ had issued for the 
 return of a new member for the borough of Stamford, on 
 the supposition that General Bertie had become Earl of 
 Stamford, and the House of Commons was informed on 
 February 15, 1809, that no writ of summons to the House 
 of Lords had issued, a Supersedeas of the writ for the return 
 of a new member was ordered 3 . 
 
 From one point of view, therefore, it may seem that the 
 vacancy of the seat in the House of Commons depends not 
 merely upon the inherited right to a peerage, but also upon 
 the actual i s sue of the writ of sum mons to the U pper House. 
 But, on the other hand, from this point of view, the rights 
 of the Crown and the privileges of the Lords are both shut 
 out. If the parish registers instituted by Thomas Cromwell 
 in the reign of Henry VIII, and the registers established 
 by the later Registration Acts, have taken the place of the 
 inquisitions post mortem as evidence of heirship, does it 
 necessarily follow that the constitution is altered with 
 
 1 May's Law and Usage of Parliame?it (10th edition), p. 149, note 3, 
 and p. 598, note 2. 
 
 2 24 Geo. Ill, Sess. 2. cap. 26, sec. 2. See also 15 Geo. Ill, cap. 36. 
 
 3 Journals of the House of Commons, Ixiv. 49 ; May's Law and 
 Usage of Parliament (10th edition), p. 597. 
 
THE HOUSE OF LORDS 241 
 
 regard to the position of the Lords? The inquisition was Chap. XII. 
 formerly returned officially into the Chancery ; the cer- 
 tified extracts from the registers are now sent by the 
 person interested to the Lord Chancellor. The baronage 
 formerly owed suit to the sovereign's feuda l cou rt ; but the 
 sovereign's feudal court no longer exists. Can it then be 
 maintained that the Crown has lost the right to require the 
 attendance of a Peer de jure in his place in Parliament, or 
 that a Peer de jure may, without surrender^, ab andon the 
 privileges of peerage ? Those questions cannot be answered 
 here, though the course of events has__brought them, as 
 questions, within the domain of history. The one appears 
 to be a question for the advisers of the Crown, the other, 
 according to the precedents, for the House of Lor ds itself. 
 In relation to this subject it may, however, be remarked 
 that a member of the House of Commons who becomes by 
 descent a Peer of Scotland, immediately vacates his seat, 
 though he neither applies for nor is entitled to any writ of 
 summons, and has not to establish his peerage to the satis- 
 faction of the Lord Chancellor 2 . Moreover, if a me mber of 
 the House of Commons be newl y cr eate d a Pee r, his seat is 
 vacated when (though not before) the Letters Patent of 
 creation have passed the Great Seal. 
 
 It was long before the principle was evolved that the Non-at- 
 House of Lords could determine matters relating to its p^f^ ei ? 
 own privileges, including matters relating to attendance, supposed 
 The history of this doctrine runs indeed almost parallel i^abie^n" 
 with the development of the idea that a summons was the King's 
 a privilege out of the idea that it was a burden. In the the reign of 
 reign of Edward III it was supposed, by some at any rate Edward 
 of the Judges, that any matter relating to attendance was of the 
 within the cognizance of the Court of King's Bench. The ^in? P ° f 
 Bishop of Winchester was there called to answer because, Chester. 
 after having come to Parliament in obedience to a summons, 
 
 1 As to surrender of dignities of the peerage, see below, pp. 269-272. 
 
 2 May's Law and Usage of Parliament (10th edition), p. 598 ; 
 Journals of the House of Commons, Feb. 21, 1840 (vol.xcv. p. 105), and 
 Feb. 5, 1 861 (vol. cxvi. p. 4) ; Hansard's Debates, 3rd series, lii. 435-477. 
 
 raNi 
 
 OF THE 
 
 VERSITI 
 
242 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. he had departed without the King's permission. The Bishop 
 appeared in Court in person. His counsel practically 
 claimed privilege, and denied the jurisdiction of the King's 
 Bench. The Peers, he said, met in Parliament for the 
 profit of the King and the people, and therefore when 
 one of the Peers did not come, or, having come, departed 
 without leave, the fault was committed as much against 
 the people as against the King. In matters touching Par- 
 liament the Peers were judges, and if one departed without 
 the King's permission, it was a matter for them to record. 
 He submitted that cognizance could not be had in a lower 
 Court of that which had occurred in a higher. Scrope. the 
 Chief Justice, took a different view. ' Those,' he said, ' who 
 are judges of Parliament are judges of their peers, but the 
 King has no peer in his own land, and therefore the matter 
 ought not to be judged by them, and cannot be judged 
 anywhere but here ; and it is the King's pleasure to make 
 suit against those who trespass against him wheresoever he 
 may choose ; therefore be advised.' No judgement, how- 
 ever, was given on this occasion. There was an adjourn- 
 ment, and the sequel does not appear '. 
 
 The House itself afterwards made many orders relating 
 to attendance, which was not always very regular even 
 
 the House after the summons to Parliament had beyond all doubt 
 
 in relation . . . /V • 1 1 
 
 to atten- been recognized as an honour. Occasional absence soon 
 came to be regarded as a venial offence punishable by 
 the not very severe fine of five shillings for every day, 
 unless a good excuse could be 'given 2 . A fine was also 
 imposed upon a Peer who, though attending, came after 
 prayers 3 . Absence at the first meeting of a Parliament, 
 however, was long considered far more serious, as might 
 have been expected from previous history. In the reign 
 
 Later 
 orders 
 made by 
 
 dance. 
 
 1 Year Book, Easter, 3 Ed. Ill, ffo. 18-19, no - 3 2 - Therecord is in 
 the Placita coram Rege, Easter, 3 Ed. Ill, R°. 9 d. It is printed in 
 extenso in 4 Inst. 15-16. 
 
 % Journals of the House of Lords, Feb. 25, 1625-1626 (vol. iii. 
 
 p. 507). 
 3 lb. 
 
THE HOUSE OF LORDS 243 
 
 of Charles I it was resolved that an order should be drawn Chap. XII. 
 ' whereby the Lords may know the danger they incur of 
 being absent except they have leave of the King V 
 
 By special leave from the King a Lord of Parliament Privilege 
 might, as we have seen, be excused from attendance in pr™^ 1 !^ 
 Parliament for life on appointing a procurator, or proxy, to gradually 
 represent him. He might also, by licence, appoint a proxy an( j at i ast 
 for particular occasions to give a vote on his behalf. Here d .iscon- 
 again may without doubt be traced the original idea that 
 attendance in Parliament was a burden, rather than an 
 honour, as proxies were made at a very early period. 
 Sometimes, as, for instance, when an aid was wanted for 
 knighting the King's eldest son, appearance by attorney or 
 proxy was even suggested in the writ of summons 2 . Some- 
 times, as, for instance, when a Crusade was in contemplation, 
 notice was given that no proxies or bearers of excuses would 
 be admitted except upon 'evident and manifest necessity 3 .' 
 At first it was not even necessary that the proxy should 
 be a Prelate or a Temporal Peer 4 . though it was necessary 
 in the fifteenth century, and other restrictions were after- 
 wards imposed. In later times orders were made by the 
 House of Lords itself that no proxy should vote upon 
 a question of guilty or not guilty when there was a trial by 
 Peers. 
 
 Two or more proxies might, in the reign of Elizabeth, be 
 made by an absent Peer, but they could not vote unless they 
 all agreed 5 . It was also already held that, if a Peer, after 
 making a proxy, attended personally in -.Parliament, the 
 proxy was revoked 6 . A sharp division was drawn between 
 Lords Spiritual and Lords Temporal in relation to proxies 
 
 1 Journals of the House oj Lords, Feb. 25, 1 625-1 626 (vol. iii. 
 p. 507). 
 
 2 Rot. Lit. Claus., 34 Ed. I, m. 15 d (printed in Rep. Dig. Peer, 
 vol. iii. pp. 165-166). Abbesses were summoned on this occasion. 
 
 3 Rot. Lit. Claus, 6 Ed. Ill, m. 37 d (printed in Rep. Dig. Peer, 
 vol. iv. p. 408). 
 
 4 See the Proxies of the year 1322, printed in Parliamentary Writs, 
 vol. ii. div. 2. p. 248 and p. 267. 
 
 5 4 Inst. 12. 6 4 Inst. 13. 
 
 R 2 
 
244 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. in the reign of Charles I. It was then ordered by the 
 House ' that all proxies from a Spiritual Lord shall be 
 made unto a Spiritual Lord, and from a Temporal Lord 
 unto a Temporal Lord V It was at the same time resolved 
 that no Lord of the House should be capable of receiving 
 more than two proxies 2 . 
 
 In 1810 the idea that the King's licence was necessary, 
 even in theory, for the making of a proxy, seems to have 
 been quite forgotten. The ' King's illness ' in that year, 
 when George III, through mental incapacity, was unable to 
 sign a commission for a further prorogation of Parliament 
 (which had been formally prorogued until the 1st of Novem- 
 ber, but was not expected to meet on that day), caused many 
 difficulties, and led incidentally to a consideration of the 
 subject of proxies. A committee was appointed to enquire 
 whether they could then be used. Its report was read on 
 January 4, 181 1, and was to the effect that there was no 
 precedent except one in 1788-9, when proxies had been 
 admitted before a commission had been read for holding 
 a Parliament. A motion 'that proxies be now called 
 over ' was negatived by a majority of three. The sub- 
 ject was revived on January 4, and again on January 8. 
 On the 23rd the Chancellor pointed out an error in the 
 Report of Committee, as proxies had been entered on 
 March 30 and June 2, 1660, as well as in 1788-9. He 
 said, however, that 'he did not mean to argue the question 
 as applying to the case of the two Houses assembling 
 without the authority of the King's commission, but 
 having assembled by virtue of a prorogation, under the 
 authority of the King's commission, he contended that the 
 right of voting by proxy attached to that House in com- 
 mon with other privileges;' and he proposed four resolu- 
 tions in that sense. The Earl of Moira moved that the 
 House do now adjourn, and his amendment was carried 
 by a majority of two. 
 
 1 Journals of the House of Lords, Feb. 25, 1625-1626 (vol. iii. 
 p. 507). 
 
 2 lb. 
 
THE HOUSE OF LORDS 245 
 
 In the course of the debate, the inherent right of a Lord Chap.xii. 
 of Parliament to vote by proxy was maintained without 
 rose rvat ion on the one side, while on the other side it was 
 insisted that the House had power to limit, modify, and 
 control the privilege.. No one seems to have supposed 
 that there was any necessity for the royal licence 1 . 
 
 The subject has now, however, lost much of its interest, 
 because the Lords have themselves practically abandoned 
 their own privilege. In 1867 it was recommended by 
 a Committee of the House that the use of proxies should 
 be discontinued ; and on March 31, 1868, the House 
 agreed to a Standing Order to carry out the recommenda- 
 tion : ' that the practice of calling for proxies on a division 
 shall be discontinued, and that two days' notice be given 
 of any motion for the suspension of this Standing Order 2 . 
 
 The privilege, if privilege it can be called, of having Growth 
 entered upon the Journals of the House the protest of any p ract i ce f 
 individual Lord of Parliament against any vote which may entering 
 have passed, is sometimes said to be of comparatively late up0 n the 
 origin. This is true to the letter, because the Journals of J ournals - 
 the House of Lords did not branch off from the older Rolls 
 of Parliament until the reign of Henry VIII, and conse- 
 quently nothing could have been entered upon them before 
 that time. It must, however, be obvious that, in any 
 assembly whatever, which has freedom of speech, it is 
 competent for any member to make a protest on any 
 subject whatever, and that the recording or not recording 
 of the protest when made must be in accordance with the 
 rules of the assembly itself. As early as the reign of 
 Edward III a most important protest was made by the 
 Chancellor, the Treasurer, and some of the Justices who 
 then had seats in the House, and was recorded on the Rolls 
 of Parliament. It might, indeed, almost be regarded as 
 a ' protest with reasons.' The dissentients expressed them- 
 selves as being not only opposed to the enactment of 
 
 1 Hansard's Debates, vol. xviii. 1, 752, 786, 805, 976. 
 
 2 Journals of the House of Lords, March 31, 1868 (vol. c. p. 99). 
 
246 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. certain Statutes, to which reference is made in another 
 chapter, but also as being dissatisfied with the form of 
 enactment, and declared the whole to be contrary to the 
 usages of the realm *. Neither the Chancellor (Sir Robert 
 Bourchier) nor the Treasurer (Sir Robert Parning) was at 
 this time summoned to Parliament, as holding by barony, 
 but this fact seems immaterial, as the Council in Parlia- 
 ment sat among the Lords, and could hardly have had 
 a privilege which the Lords had not. Moreover some pro- 
 tests made by Prelates against the Statute of Provisors and 
 upon other occasions are entered on the Rolls of Parliament. 
 Partly, perhaps, through the long intervals between 
 Parliament and Parliament in later reigns, this privilege, 
 like the authority of the House of Lords in some judicial 
 matters, fell almost into oblivion. In the time of Charles I 
 it came again into prominence, and in the opinion of some 
 persons was greatly abused 2 . After the Restoration pro- 
 tests with reasons were not uncommon, and duly appear 
 upon the Journals of the House a . 
 Privilege Among the privileges not of individual Lords but of the 
 
 attended in House collectively, there came to be included the right 
 the House to be attended by the Judges of the Courts of King's 
 Judges and Bench and Common Pleas, and such of the Barons of the 
 others. Exchequer as were of the degree of the coif or had been 
 made serjeants-at-law, and the Masters of the Court of 
 Chancery, 'for their advice in point of law and for the 
 greater dignity of their proceedings. The Secretaries of 
 State, the Attorney and Solicitor General, and the rest of 
 the King's learned Counsel being Serjeants were also used 
 to attend the House of Peers, and have to this day/ says 
 Blackstone, about the year 1765, 'their regular writs of 
 summons issued out at the beginning of every Parliament ; 
 
 1 Rot. Pari., 1 5 Ed. Ill, no. 42 (vol. ji. p. 131). See above, pp. 195-6. 
 
 2 Clarendon, History of the Rebellion, iv. 254. 
 
 3 A Complete Collection of the Protests of the Lords was made 
 from the Journals of the House by Mr. J. E. T. Rogers, and printed in 
 three bulky volumes. The editor, however, makes no reference to 
 events earlier than the reign of Henry VIII, when the Journals began. 
 
THE HOUSE OF LORDS 247 
 
 but, as many of them have of late years been members of Chap.XII. 
 
 the House of Commons, their attendance here is fallen into 
 
 disuse 1 .' 
 
 It has already been shown 2 that in the reign of Edward I, The 
 
 and long afterwards, the Judges and others who were q"^!^ 6 
 
 members of the Council were regularly summoned to growth: 
 
 k Parliament,' and had their places assigned to them among formerly 
 
 the Lords. The form of summons to them differed slightly ■»* in the _ 
 
 House of 
 
 from that of the summons to the Prelates and from that of Lords, 
 the summons to the Earls and Barons, but it was in no sense 
 a summons to be in attendance upon the Lords Spiritual 
 and Temporal. When the King sat with them in Parlia- 
 ment they transacted business there which had the 
 authority of 'the King in his Council in his Parliament,' 
 and there is nothing to show that the Lords were their 
 superiors. When, however, the Council was separated from ^ 
 the Parliament in the reign of Richard II, the King in 
 his Council in his Parliament was an assembly no longer 
 known to the law, and though writs continued to issue to 
 the Judges and others of the Council, as before, their status 
 naturally underwent a change. 
 
 It is difficult to mention a precise date when the Judges Order for 
 first lost their ancient places in Parliament It may have attend^ 
 been in the reign of Richard II, it was certainly before the Assistants 
 reign of Henry VIII. When his 'Act for placing of the reign of 
 Lords ' 3 was passed, no mention was made of them, though charlesI1 - 
 provision was made 4 for the case of a Lord Chancellor, 
 Lord Treasurer, Lord President of the Council, Lord Privy 
 Seal, or Chief Secretary, who might be under the degree 
 of a Baron. When they lost their seats in the House of 
 Lords, the Judges, having to give their advice only if 
 required, naturally fell into a subordinate position. On 
 June 4, 1660, just after the Restoration, it was ordered by 
 the House of Lords ' that the Lord Chancellor do move his 
 Majesty that he would be pleased to give order for writs 
 
 1 1 Com. 168. 2 Above, pp. 47-48, 195-196, &c. 
 
 3 Stat. 3^ Hen. VIII, cap. 10. 4 Sec. 8. 
 
248 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. to the Judges, whereby they may attend in the House as 
 
 Assistants V 
 The House The Lords can always call for the assistance of the 
 can now Judges, and have frequently so called, especially in 
 call for questions relating to the peerage. 
 
 sistance. Matters touching breach of privilege of Parliament 
 
 Breach of constitute no inconsiderable portion of parliamentary law. 
 o"parHa- M anv °f them relate rather to the House of Commons 
 ment: than to the House of Lords, and it is not within the scope 
 the^udges or limits of this history to treat them in detail. There are, 
 in J 453- however, some of them which cannot be passed over alto- 
 gether in silence. 
 
 In the reign of Henry VI the Lords were in some doubt 
 with regard to their power in reference to breaches of the 
 privilege of Parliament, though it seems to have been 
 admitted that the power which was not in the Courts of 
 Justice was entirely in the House of Lords, and not in the 
 House of Commons. Chief Justice Fortescue, replying, on 
 behalf of all the Justices, to a question submitted to them 
 by the Lords, said that they ' ought not to make answer, 
 for it hath not been used aforetime that the Justices should 
 in any wise determine the privileges of this High Court of 
 Parliament. For it is so high and mighty in its nature 
 that it may make law, and that that is law it may make 
 no law, and the determination and knowledge of that 
 privilege belongs to the Lords of the Parliament and not 
 to the Justices V 
 Re - One of the most remarkable features in this case is that 
 
 features of the determination of privilege of Parliament in general, 
 the case, as an ^ not Q f t ^ e House of Lords alone, was said to rest with 
 
 affecting 
 
 the the House of Lords. The Commons made a petition to 
 
 Speaker. the Lords on behalf of Thomas Thorpe their Speaker, and 
 
 Walter Rayle, both described as Members of Parliament, 
 
 and then in prison. The Duke of York had brought an 
 
 action against Thorpe for having carried away certain 
 
 1 Journals of the House of Lords, June 4, 1660 (vol. xi. p. 52). 
 
 2 Rot. Pari., 31 Hen. VI, nos. 25-28 (printed, vol. v. pp. 239-240). 
 
THE HOUSE OF LORDS 249 
 
 goods and chattels belonging to him from the palace of Chap. XII. 
 the Bishop of Durham. He had been compelled to pro- 
 ceed in the Exchequer because Thorpe was ' one of the 
 Court,' and had the privilege of being impleaded there and 
 not in any other Court. Judgement was given for the 
 Duke, with damages of ;£iooo and costs ; and Thorpe was 
 'according to the course of the law committed to the Fleet 
 for the fine belonging to the King in that behalf 
 
 The Duke opposed the liberation of Thorpe, and the 
 Lords Spiritual and Temporal ' opened and declared to 
 the Justices the premises and "axed 1 " of them whether 
 the said Thomas ought to be delivered from prison by force 
 and virtue of the privilege of Parliament, or no.' They 
 then gave the well-known answer quoted above. 
 
 The Judges nevertheless added some qualifying words 
 which ought not to be left out of consideration : ' There be 
 many and divers Supersedeas of privilege of Parliament 
 brought into the Courts, but there is no general Supersedeas 
 brought to surcease of all processes ; for, if there should 
 be, it should seem that the High Court of Parliament that 
 ministreth all Justice with Equity should " let " 2 the process 
 of the common law, and so it should put the party com- 
 plainant without remedy, for so much as actions at common 
 law are not determined in this High Court of Parliament. 
 And if any person that is a member of this High Court of 
 Parliament be arrested, in such cases as be not for treason, 
 or felony, or surety of the peace, or for a condemnation 
 had before Parliament, it is used that all such persons 
 should be released of such arrests and make an attorney, 
 so that they may have their freedom and liberty freely to 
 intend upon the Parliament.' 
 
 The Lords Spiritual and Temporal took the whole The Lords 
 statement of the Judges to imply that they were the supreme 
 supreme arbiters with regard to privilege of Parliament arbiters of 
 and its consequences. They resolved that Thorpe should as affecting 
 
 both 
 Houses. 
 
 1 The entry upon the roll is in the English of the period. 
 
 2 /. e. obstruct. 
 
250 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. 
 
 Matters 
 
 touching 
 
 either 
 
 House 
 
 afterwards 
 
 decided 
 
 by that 
 
 House 
 
 alone. 
 
 Power of 
 the House 
 of Lords to 
 determine 
 all cases of 
 privilege 
 on appeal 
 from in- 
 ferior 
 Courts. 
 
 remain in prison notwithstanding any privilege of Par- 
 liament, and notwithstanding the fact that he was ' Speaker 
 of the Parliament 1 .' Their resolution was strictly in ac- 
 cordance with the established view that all judgements in 
 Parliament or of the King in Parliament were those of the 
 Lords or of the King and Lords. The Commons accepted 
 the position, and, without more ado, elected a new Speaker. 
 
 In the time of Sir Edward Coke it was the received 
 opinion that k Judges ought not to give any opinion of 
 a matter of Parliament, because it is not to be decided by 
 the common laws, but according to the law and custom 
 of Parliament V The doctrine had, however, been further 
 developed, and the determination of all privileges of Par- 
 liament was now no longer thought to belong to the Lords 
 alone. It was already an accepted maxim that every 
 question specially affecting either House of Parliament 
 ought to be decided in the House to which it relates, 
 and not elsewhere 3 . 
 
 In later times there have been some contradictory de- 
 cisions with regard to the relation of the Courts of Justice 
 to the privileges of Parliament. Most of them have had 
 reference to matters with which the House of Commons 
 was solely or chiefly concerned, and which have therefore 
 but little bearing upon the subject of the present work 4 . 
 
 1 There were some elaborate arguments in relation to this case in 
 the year 1811, upon the hearing of the cause Burdett v. Abbott in the 
 King's Bench, though Lord Ellenborough, the Chief Justice, thought it 
 had very little bearing on the question before the Court, 14 East, 
 1-163. 
 
 2 4 Inst. 15. 3 lb. 363. 
 
 4 Matters relating to privilege of Parliament as affecting the House 
 of Commons have been laboriously collected and set forth in Hatsell's 
 Precedents and Proceedings of the House of Commons. Later cases 
 in the Courts as affecting both Houses have been brought together in 
 Sir T. Erskine May's Law and Usage of Parliament (10th edition) ; 
 and the manner of dealing with breach of privilege by each House is 
 illustrated pp. 61-92. According to Lord Ellenborough the power 
 of either House to punish by imprisonment was to be inferred from the 
 Statute, 1 James I, cap. 13. See 14 East, 143 {Burdett v. Abbott), 
 where all the important cases before 181 1 are cited. 
 
THE HOUSE OF LORDS 251 
 
 It may, however, be remarked that one of two propositions Chap. XII. 
 must be true : either each House has the power of de- 
 termining its own privileges without reference to the 
 ordinary Courts of Justice, or it has not. If each House 
 has that power it is certainly possessed by the House of 
 Lords. If either House has not that power, and the Courts 
 have in any cases a jurisdiction, the House of Lords still 
 has the final decision, not only with regard to itself, but 
 also with regard to the House of Commons. It is, in its 
 judicial capacity, the. final court of appeal from any Court 
 before which a case would probably be brought. It would 
 therefore have, in the last resort, precisely the power which 
 Chief Justice Fortescue ascribed to it, of deciding upon 
 all cases of alleged breach of the privileges of Parliament 
 which could come before the Judges. 
 
 The House of Lords has a minor privilege, for the use of Privilege 
 which occasion has not often arisen in recent times. When ™ con e . gar 
 there is to be a conference between the two Houses, it ferences. 
 prefixes both the time and the place of meeting, whether 
 the desire for the conference originates with it or with the 
 House of Commons 1 . 
 
 It is commonly said that Peers are individually hereditary Privileges 
 counsellors of the sovereign, and that the Lords Spiritual th^House- 
 and Temporal are collectively, when not assembled in Par- the Lords 
 liament, the permanent Council of the Crown 2 . If so, counsellors 
 these are great privileges, but it is not quite clear that the of the . 
 
 ° r fe n sovereign. 
 
 warrant for them is anything more than the original con- 
 stitution of the Curia Regis. That body consisted of the 
 Lords, the great officers of State, and, perhaps, from time 
 to time, some experts whom the King might wish to 
 consult. It was rather, however, his desire for their advice 
 than their desire to advise him which was the governing 
 principle when he called them together. The position, 
 too, was greatly altered when the Council separated from 
 the Parliament in the reign of Richard II, and became 
 
 1 May's Law and Usage of Parlia?nent (10th edition), p. 413 ; 
 Journals of the House of Commons, March 26, 1604 (vol. i. p. 154). 
 
 2 First Rep. Dig. Peer, vol. i. p. 14, &c. &c. 
 
252 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. that permanent body which in later times was known as 
 the Privy Council. The position was further altered when 
 feudal tenures were abolished, and the Lords ceased to be 
 members of the King's feudal court. 
 The Lords It was probably the idea that Peers were his hereditary 
 in 1640, counsellors which caused Charles I to summon them all to 
 c^idinf ^ r ° r ^ * n t ^ ie y ear T 640, to gi ye hi m advice when no Parliament 
 in 1688. was in existence. This was an unfortunate expedient, and 
 if defensible in theory, was not considered applicable to the 
 practical needs of the time 1 . Another great meeting of 
 Lords in Council was held at a not less critical period, 
 when in 1688 James II had fled. They assembled not in 
 virtue of any summons from any King, but of their own 
 will. They were not the whole body of Lords Spiritual 
 and Temporal, but only six Spiritual and twenty-two 
 Temporal Lords. They placed themselves in communi- 
 cation with William Prince of Orange, and took upon 
 themselves the duties and responsibilities of an interim 
 government. On what supposed authority they acted it is 
 difficult to determine. They were aiding in the deposition 
 of one sovereign, and they could hardly, as yet, be called 
 the Council of another, though they may possibly have 
 believed themselves to be acting in that capacity. 
 Their acts Both the Council of Peers at York in 1640, and the 
 confounded assemblage of Lords at the Guildhall in London in 1688, 
 with ad- me t when no Parliament was sitting. Their acts, and 
 
 dresses 
 
 from the especially those of 1688, must not be confounded with 
 House of trie r jprht of the House of Lords in Parliament to present 
 
 Lords i" & 
 
 Parlia- an address to the sovereign on any subject. They were 
 the acts, in one case, of the Peers brought together by 
 virtue of a non-parliamentary summons from the Crown — 
 in the other case, of certain Lords meeting in a great emer- 
 gency to consult as to the welfare of the realm. 
 Privilege of Every Peer, according to the generally accepted doctrine, 
 of the 106 nas the right to demand an audience of the sovereign in 
 sovereign : relation to public affairs. The historical foundation of this 
 
 1 Clarendon, History of the Rebellio?!, ii. 95. 
 
THE HOUSE OF LORDS 253 
 
 appears to rest upon the accusations against Hugh le Chap.xii. 
 Despenser the elder, and Hugh le Despenser the younger, its his . 
 in the reign of Edward II. One of the articles was that torical 
 they would not suffer the Magnates of the Realm, or the 
 King's good counsellors, to speak with the King or ap- 
 proach him except in their presence l . It is not, however, 
 quite clear from this passage that every Peer and Lord 
 of Parliament necessarily had the supposed right, because 
 the word Council is used in many different senses, and the 
 Despensers may have interfered to prevent the King from 
 having a Council or counsellors except those of their own 
 choosing. There may even be a doubt whether the Lords 
 Spiritual are included in the term Magnates. Some pas- 
 sages in documents of the reign of Edward II are, perhaps, 
 not altogether inconsistent with that opinion, but the words 
 Prelates and Magnates are more commonly used to indicate 
 two distinct classes. 
 
 It is not easy to illustrate the exercise of this privilege, Opinions 
 by trustworthy authorities from reign to reign The man- ° n }^^ b ' 
 ner in which it was exercised in the reign of George IV reign of 
 has been very clearly recorded by Lord Colchester, who, eorge 
 before his elevation to the peerage, was Speaker of the 
 House of Commons. It was the opinion of himself and 
 Lord Sid mouth that the Peer who desired an audience 
 should ask it individually for himself, and go singly. If 
 more than one went at the same time, it was thought that 
 there might be a semblance of besieging the sovereign 
 by a strong minority of Peers. The mode of approach was 
 not through the Secretary of State, but by application to 
 some officer of the royal household 2 . Lord Eldon, whose 
 authority was of great legal weight, was disposed to limit 
 the application of the privilege. He said that no Peer 
 can of right carry an address or petition to the King in his 
 closet, but can only tender advice 3 . 
 
 1 Rot. Lit. C/aus., 14 Ed. II, m. 14, Cedula (Stat. Realm, i. 184), and 
 4 Inst. 53. 
 
 2 Diary of Lord Colchester, March 7, 1829 (vol. iii. p. 604). 
 
 3 Lb., March 12, 1829 (vol. iii. p. 606). 
 
254 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. The Duke of Newcastle, at this time, when there was 
 How ex- g reat agitation with regard to the Roman Catholic Bill, 
 ercised by availed himself of the privilege. His request was made 
 of New- by a note to the Lord in Waiting, and was for leave to 
 castle. present an address and for an audience. He was im- 
 mediately received by the King, with whom, after a long 
 interview, he left the address together with other papers. 
 The King also graciously desired the Duke to make known 
 that he was ready to receive addresses from the hands 
 of any Peer, and to give audience upon due notice l . 
 His willingness to receive addresses from individual Peers 
 may, of course, have been merely a matter of grace, 
 and, as Lord Eldon had said, not any indication of a 
 right. 
 Privileges A privilege of great antiquity, which was confirmed by 
 rathe John's Great Charter 2 , came to be regarded as a burden 
 
 Courts: at a later period. This was the privilege of Earls and 
 amerce- Barons (the Prelates being; included in the latter term) to 
 
 ment ot v & ' 
 
 Earls and be amerced by their peers. Thus if one of them was 
 ttekPeers. a loser in an action in a Court of Justice, he was said, like 
 any other subject, to be ' in mercy,' or in other words liable 
 to a fine of indefinite amount to be subsequently assessed. 
 The assessment, in his case, could be made only by his 
 ' peers,' but there may arise a question as to the definition of 
 the word. The answer is practically given by Bracton. In 
 describing proceedings before Justices in Eyre, he says, 
 Earls and Barons are not to be amerced but by their 
 peers — by the Barons of the Exchequer or before the 
 King himself 3 . It seems to follow that the Barons of the 
 Exchequer and the persons who constituted the Court 
 coram Rege (but not the Justices in Eyre) were, as late 
 as Bracton's time, considered to be the peers of Earls 
 and Barons. 
 This We are thus by a process of inference enabled to carry 
 
 privilege ^ ac ] < t ^[ s pr i v iWe to the reign of Richard I, or in other 
 
 at least as r B & 
 
 1 Diary of Lord Colchester, March 14, 1829 (vol. iii. pp. 606-607). 
 
 2 Mag. Chart., cap. 21. 3 Bract. 116 b. 
 
THE HOUSE OF LORDS 255 
 
 words to the time beyond which memory runneth not. Chap. XII. 
 Certain rolls of that reign have been preserved to which e , as 
 the title of Rotuli Curiae Regis has commonly been given, the reign of 
 The term is, in relation to some of them, and in particular in l s c tan "c es . 
 to one which is now to be cited, a misnomer, except in 
 so far as any of the King's Courts might be called ' Curia 
 Regis.' The Roll is clearly not that of the Capitalis Curia 
 Regis, or either division of it, but that of the Justices in 
 Eyre on their circuit. The privilege of Barons to be 
 amerced by their peers is here made manifest, though it 
 could not have been detected without Bracton's explana- 
 tion. 
 
 In this Eyre Roll occurs a list of amercements. In all 
 instances, except two, the amount at which the amerce- 
 ment was assessed is set opposite the name of the person 
 amerced and without any reference to the Exchequer. The 
 two exceptions occur in the cases of Gerard de Furnivall 
 and Reginald de Argenton. " Gerard de Furnivall is to be 
 amerced at the Exchequer for a disseisin.' ' Reginald de 
 Argenton is to be amerced at the ExcJiequer for a disseisin 1 .' 
 In the latter case the words ' one hundred marks ' are added, 
 apparently as a suggestion. It was not, however, adopted 
 at the Exchequer, as the sum which Argenton had to pay 
 was only twenty marks 2 . Gerard de Furnivall and Reginald 
 de Argenton were both Barons, and both were amerced 
 by their peers, the Barons of the Exchequer, while the com- 
 moner sort were amerced directly in the Court of the Eyre. 
 The Justices in Eyre (or Missi) were not all peers of the 
 Capitalis Curia Regis, though Geoffrey Fitz- Piers, or Fitz- 
 Peter, who was the chief of them, was about to be, if he was 
 not already, Chief Justice or Justiciary of England. 
 
 In the first year of the reign of King John also, long 
 before his Great Charter, we find that Herbert Fitz- Herbert 
 was the loser in an action of assise. He was therefore ' in 
 mercy.' The roll shows that privilege was claimed. It 
 
 1 Eyre Roll, Hertford, 10 Ric. I, m. 2 d (printed among the Rotuli 
 Curiae Regis, i. 169-170). 
 
 2 Great Roll of the Exchequer, 1 John. 
 
256 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. bears in the margin the Latin words for ' Mercy. He 
 
 is a Baron V 
 
 The Barons Though Barons, having this privilege, were commonly 
 
 chequer, or amerced by the Barons of the Exchequer, they were 
 
 the King's sometimes amerced by another tribunal which must also 
 
 Council, . 
 
 acted as have consisted of their peers. Thus in the third year of 
 
 t? e e pur- r t ^ ie rei S n °*" Henry IJ I tne Justices in Eyre in the County 
 
 poses of of Kent were instructed that Earls and Barons who were 
 
 ment^ ' m merc y ' before them were to be amerced before the 
 
 King's Council 2 . This is, no doubt, the amercement which 
 
 Bracton describes as coram Rcge, the proceedings of the 
 
 Council in the reign of Henry III being often with difficulty 
 
 distinguished from those of the King's Bench, and often 
 
 enrolled on the same rolls. About the forty-second year 
 
 of the same reign Barons put in mercy in the Eyre also had 
 
 the amercement assessed coram Rcge 3 . 
 
 Amerce- The actual amercement, however, either by the Barons of 
 
 cording C to tne Exchequer, or coram Rcge, very soon became rather 
 
 a fixed a form than a fact. It became a recognized principle that 
 
 the time of Earls and Barons should be amerced according to a definite 
 
 Edward I : sca j e 4 which may, in the first instance, have been fixed 
 
 Earls and J ' ' 
 
 Barons either by the Barons of the Exchequer or by the Council. 
 uTordrnarv "^ s soon as ^is was adopted, Earls and Barons had their 
 Courts of amercements assessed in the courts in which they fell ' in 
 Ju Mercy.' Thus as early as the eleventh year of Edward I 
 
 there were Barons amerced in the Common Bench 5 . In 
 
 1 An abridgement of the case is printed in the Placitorum Abbre- 
 viation p. 24, Hereford. 
 
 2 Rot. Lit. Claus., 3 Hen. Ill, m. 13, cited in Madox's History of 
 the Exchequer, cap. xiv. sec. 2. note. 
 
 3 A 'cedilla' among the records of the Lord Treasurer's Remem- 
 brancer of the Exchequer, printed in Madox's Baronia Anglicana, 
 p. 102. 
 
 4 This appears in the Mirror of Justices, cap. iv. sec. 25. Little as 
 may be the value of the Mirror in relation to 'the Coming of the 
 English ' and King Alfred, it is a contemporary authority for the end of 
 the thirteenth and beginning of the fourteenth century, and the state- 
 ment as to amercements is fully confirmed by records and law reports. 
 
 5 Great Roll of the Exchequer, 11 Ed. I. Item Essex et Residuum 
 Surr. cited in Madox's History of the Exchequer, cap. xiv. sec. 2. note. 
 
THE HOUSE OF LORDS 257 
 
 the tenth year of the reign of Edward II also, Earls and Chap. XII. 
 Barons were amerced in the same Court, Abbots being 
 included under the head of Barons 1 . Among these was 
 the Abbot of Croyland, who complained to the King in 
 Council that he had been treated as a Baron without due 
 warrant, and alleged that he did not hold any lands or 
 tenements by barony or part of a barony. The matter 
 was referred to the Court of Exchequer. Search was 
 to be made among the Exchequer records, and the Justices 
 of the Common Bench were to be consulted if necessary. 
 Upon examination of the rolls it was found that the Abbot 
 had been amerced as a Baron, in the preceding reign, by 
 the Justices in Eyre 2 . It is also clear, from a case in which 
 the Earl of Arundel was concerned in the reign of Edward 
 III, that when an Earl wrongly brought an action in the 
 Court of Common Pleas, he was amerced in the recognized 
 sum of one hundred shillings 3 . 
 
 It cannot, perhaps, be said that there was absolute uni- 
 formity of practice even as late as the reign of Henry VI, 
 for on the one hand the Earl of Northumberland, in the 
 first year, having made default on a writ of Right, was not 
 amerced in the Common Pleas, but by the Peers 4 , and on 
 the other hand, in the ninth year, Lord Fitz- Walter was 
 amerced in the Common Pleas, as a Baron, in two several 
 sums of one hundred shillings for two distinct reasons 5 . 
 The Earl of Northumberland, however, seems to have been 
 i exceptionally treated, and many instances show not only 
 that there was a regular scale of amercement for Peers, 
 according to their rank, but that so long as the scale was 
 duly followed, the amercement could be imposed in the 
 Court in which it was incurred. In the reign of Edward IV 
 a Duke was, upon nonsuit, amerced at ten pounds, and an 
 
 1 Exchequer, Originalia, 10 Ed. II, m. 2, in cedilla, printed in 
 Madox's History of the Exchequer, cap. xiv. sec. 2. note. 
 
 2 Exchequer, Treasurer's Remembrancer's Remembrance Roll, Hil., 
 Communia, 12 Ed. II, R°. 23, cited in Madox's History of the 
 Exchequer, as above- 
 
 3 Year Book, 38 Ed. Ill, 31 (Quare impedit). And see 2 Inst. 28. 
 
 4 Year Book, 1 Hen. VI, fo. 7. •"' lb., 9 Hen. VI, fo. 2. no. 5. 
 
258 CONSTITUTIONAL HISTORY OF 
 
 Chap.XII. Earl at a hundred shillings 1 . A Bishop also was amerced 
 at a hundred shillings 2 , but this of course could be only in 
 respect of his lay fee, or barony, as, according to Magna 
 Charta 3 , no ecclesiastic could be amerced in respect of 
 any spiritual benefice. 
 A Baron's' As early as the reign of Henry II (if the Dialogus de 
 ficienUn" Scaccario is to be trusted on this point) the King's Barons 
 the Ex- (Barones Regis) had a privilege which is not unlike that of 
 the'rdgnof ^ e l ater Peers, who upon certain occasions gave their word 
 Henry II. instead of taking an oath. When the King's debts were in 
 demand, and payment was to be enforced, one who held 
 a barony of the King was, after the summons of the 
 Exchequer had been heard, only asked to say to the Sheriff, 
 either in person or by his Steward : — ' In respect of this 
 sum and in respect of this summons I will do according to 
 the award of the Barons of the Exchequer on the day 
 of account V With this the Sheriff had to be content until 
 the day came, though the procedure was very different in 
 the case of inferior persons, who held nothing of the King 
 in chief. 
 Earls and When Earls or Barons were essoiners (persons giving an 
 cepiSonaUy excuse m a Court of Justice for the non-appearance of 
 treated a party) they were, in the time of Henry III, treated 
 'essoiners.' differently from those of inferior rank. The essoin, how- 
 ever, gradually became a mere form, and then fell into 
 disuse. It is therefore needless to pursue the subject 
 further 5 . 
 When a A privilege of some importance in civil causes appears to 
 
 apartylna ^ ave belonged, from a very early period, both to the lay 
 civil action and to the ecclesiastical lords. W T hen one of them was 
 be C Knights a party it was the custom that there should be knights upon 
 upon the { ne jury, and if there were none, the ' array ' could be success- 
 
 1 Year Book, 19 Ed. IV, fo. 9. no. 10. 
 
 2 lb., 21 Ed. IV, 77. 
 
 3 Magna Charta, 9 Hen. Ill, cap. 14. 
 
 4 Dialogus de Scaccario, lib. ii. cap. 19. 
 
 5 Full details relating to Earls and Barons as essoiners are given in 
 Bract. 337 b, 351 b, and 352. 
 
THE HOUSE OF LORDS 259 
 
 fully challenged 1 . This practice led to some abuses, and Chap.xII. 
 
 was often a cause of serious delay, but it continued to be T n 
 
 the law of the land until the year 1751, when an Act was the year 
 
 passed providing that no challenge should be taken to any I '* ' 
 
 panel of jurors for want of a knight 2 . 
 
 Freedom from arrest in civil actions was, from one point Freedom 
 
 of view, a Parliamentary privilege enjoyed by both Lords i^dvlT 
 
 and Commons, and for some time even by their servants, actions; 
 -r^ , r ... «ii little now 
 
 r rom another point of view it was a privilege enjoyed by remaining 
 
 the Lords when no Parliament was in existence. It was of . t ^ s 
 
 privilege. 
 
 once of considerable importance. It belonged both to the 
 Prelates and to the Temporal Lords, though the Prelates 
 seem to have had it as Prelates and not necessarily as 
 Peers 3 . It was a privilege, however, which in the case of 
 Barons, at any rate, the Courts would not notice unless 
 specially pleaded. ' They were not bound to know and 
 could not know whether one was a Lord of Parliament, 
 unless the fact were certified to them by writ out of the 
 Chancery 4 .' The privilege was restricted in England to 
 Peers and Peeresses of England, those of Ireland not 
 enjoying it in England before the Union ; and a writ 
 of Capias actually issued in England in the reign of 
 Richard II against the Countess of Ormonde, Peeress of 
 Ireland, in an action of debt 5 . Freedom from arrest, 
 though not taken away from the Peers, lost much of its 
 significance when arrest on mesne process (before judge- 
 ment was given) was abolished in all but certain special 
 cases in the year 1838 6 . Its value has been still further 
 reduced by subsequent legislation, so that comparatively 
 few opportunities now occur for the exercise of the ancient 
 privilege 7 . It never extended to criminal offences. 
 
 1 Year Book, T., 13 Ed. Ill (Rolls Series), p. 290. Dyer's Reports, 
 I & 2 Phil. & Mary, fo. 107. no. 27, et alibi passim. 
 
 2 Stat. 24 Geo. II, cap. 18. sec. 4. 
 
 3 Year Book, T., 29 Ed. Ill, fo. 42. 
 
 4 Fitz- Herbert's Abridgement, Exige?it, 2 (Mich., 36 Hen. VI). 
 
 5 lb., Proses, 224. 6 Stat. 1 & 2 Vict., cap. no. sec. 1. 
 
 7 It appears to be still applicable when one having privilege of 
 
 S 2 
 
260 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. 
 
 P>eedom 
 from out- 
 lawry in 
 civil ac- 
 tions : the 
 privilege 
 ceased 
 with the 
 abolition 
 of the 
 outlawry 
 in 1879. 
 
 Other 
 
 former 
 
 advantages 
 
 in Courts of 
 
 Common 
 
 Law. 
 
 Exemption 
 from ser- 
 vice on 
 juries and 
 appearance 
 at Sheriffs' 
 Tourns. 
 
 Freedom from arrest carried with it freedom from out- 
 lawry in civil actions, for a purely technical reason. A writ 
 of Capias (to take the person of the debtor or other de- 
 fendant) was one of the stages in the process of outlawry, 
 and as a Lord of Parliament could not be taken, it neces- 
 cessarily followed that he could not be outlawed on civil 
 process. Peers and Lorcls of Parliament have, however, 
 no longer any privilege in this respect, as outlawry in civil 
 proceedings was abolished in the year 1879 l . The privi- 
 lege did not, at common law, extend to all criminal pro- 
 ceedings, though with regard to some matters the Lords 
 had special protection by Statute. Thus when the Statute 
 of Provisors of 25 Edward III was confirmed and extended 
 during the same reign, there was expressly enacted a saving 
 clause in favour of the Prelates and other Lords of the 
 Realm, so that their persons should not be subject to arrest 
 by force of the Act 2 . A Peer could, nevertheless, be not 
 only arrested but outlawed also for treason, felony, or breach 
 of the peace. 
 
 In civil actions at common law a Peer had, at one time, some 
 other advantages, which, however, were in part regarded as 
 privileges of Parliament, and shared with members of the 
 House of Commons. They were of a technical nature, and 
 belonged to a mode of procedure long since obsolete. The 
 necessity of proceeding by ' Original Writ ' against a Peer 
 had, while it existed, the effect of making actions against 
 Peers more expensive, and consequently more difficult, and 
 thus operated as a protection, at any rate, against frivolous 
 proceedings, to which unprivileged persons were sometimes 
 exposed. 
 
 Among the minor privileges relating to Courts of 
 common law is that of exemption from service on juries. 
 In former times the name of a Lord of Parliament might 
 be placed on a jury panel, and he might be challenged by 
 
 peerage neglects to obey a judgement or order, after having been served 
 with due notice. 
 
 1 Stat. 42 & 43 Vict., cap. 59. sec. 3. 
 
 2 38 Ed. Ill, stat. 2. cap. 1. 
 
THE HOUSE OF LORDS 261 
 
 the parties, or might challenge himself. He was not, how- Chap. XII. 
 ever, compelled to serve 1 , and was discharged on giving 
 proof that he was a Lord of Parliament 2 . In later times 
 Peers and clergymen have been expressly exempted by 
 Statutes 3 . 
 
 Prelates, Earls, and Barons were also early declared 
 exempt from attendance at the Courts known as Sheriffs' 
 Tourns, in all ordinary cases. This, however, was hardly 
 a privilege of peerage, as it was equally enjoyed by all men 
 and women who were religiosi or ' religious professed ' 4 , and 
 it has long ceased to be of any practical value. 
 
 When Justices of the Peace acquired the power of taking Privileges 
 recognizances from other persons to keep the peace or to relation* to 
 be of good behaviour, they had no power over Peers in this recogniz- 
 respect. Peers and Peeresses could not be bound over in any keep the 
 place except the Courts of King's Bench and Chancery 5 . peace. 
 
 A very curious privilege was given to Lords of Parliament Privilege 
 and Peers of the Realm in the reign of Edward VI. It f™?" 6 - 
 
 & in the reign 
 
 can be understood, however, only by the aid of some little of Edward 
 knowledge of the ancient doctrine of benefit of clergy. f Clergy. 
 When a man was indicted for certain offences, the Bishop 
 of the Diocese or Ordinary could claim him, if a clerk, and 
 withdraw him from the jurisdiction of the King's Courts. 
 The definition of a clerk appears at first to have been one who 
 had the clerical garb, and the clerical tonsure. As, however, 
 the ability to read was at one time almost restricted to the 
 clergy, it came to be held that any man who could read 
 should be regarded as a clerk, and might have benefit of 
 clergy. From the time of Henry VI the accused had to 
 be arraigned in the King's Court, and might then claim the 
 benefit, either before trial, or after conviction as a 'clerk 
 convict.' It is only the benefit as applied to a clerk convict 
 with which we are now concerned. 
 
 1 Co. Litt., 156 b. 2 Year Book, M., 48 Ed. Ill, fo. 30. no. 18. 
 
 3 Stat. 6 Geo. IV, cap. 50. sec. 2, and 33 & 34 Vict., cap. yy. sec. 9, 
 Schedule. 
 
 4 Stat. Marlb. (52 Hen. Ill), cap. 10. 
 8 4 Bl. Com. 251. 
 
262 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap XII. 
 
 A Peer 
 might 
 commit 
 highway 
 robbery, 
 &c, once 
 without 
 punish- 
 ment. 
 
 In the reign of Henry VII * a distinction was drawn 
 between persons actually in Holy Orders and those who 
 were entitled to benefit of clergy solely as being able to 
 read. Those in Orders were to be entitled to the benefit as 
 before, and as often as they offended ; those literate persons 
 not in Orders who committed clergyable offences were to be 
 entitled to it once only. Every such literate person, when 
 convicted of murder, was to be branded with the letter 
 M on the brawn of the left thumb, by the gaoler, in open 
 Court, in the presence of the Judge, before being delivered 
 to the Ordinary. Every such person convicted of felony 
 was to be branded in like manner with the letter F. 
 The distinction between offenders actually in Orders and 
 those only able to read was abolished for a short time 
 in the reign of Henry VIII, when it was enacted that the 
 persons actually in Holy Orders should be burnt in the 
 hand in the same manner as the lay clerks, and be in all 
 respects in the same position as lay persons admitted to 
 their clergy 2 . The previous law, however, was restored in 
 the reign of Edward VI. In all cases within benefit of 
 clergy all persons were then to have it in the same manner 
 as they might have had it before April 24 in the first year 
 of Henry VIII 3 . 
 
 At the same time Lords of Parliament and Peers of the 
 Realm were accorded a very remarkable privilege. In any 
 case in which any of the King's subjects might have benefit of 
 clergy, as well as in addition for the crimes of house-breaking, 
 highway robbery, horse-stealing, and robbing of churches, 
 any Peer or Lord of Parliament was, upon claim made, to 
 be held as a clerk convict who might make purgation. 
 This, to use the words of the Act, was ' though he cannot 
 read, without any burning in the hand, loss of inheritance, 
 or corruption of his blood V While he escaped the burning 
 in the hand, however, he could not, like a person in Orders, 
 have benefit of clergy a second time for any cause. 
 
 1 Stat. 4 Hen. VII, cap. 13. 
 
 2 Stat. 28 Hen. VIII, cap. 1. sec. 7, and 32 Hen. VIII, cap. 3. sec. 8. 
 
 3 Stat. 1 Ed. VI, cap. 12. sec. 10, 4 lb., sec. 14. 
 
THE HOUSE OF LORDS 263 
 
 Benefit of clergy, though it had in theory the effect of Chap. XII. 
 causing the clerk convict to be handed over to the Ordinary Benefit of 
 for purgation, practically meant exemption from punish- clergy 
 ment. In the reign of Elizabeth it was expressly enacted abolition 
 that any person admitted to benefit of clergy should be in l82 7 '• 
 no longer delivered to the Ordinary but discharged by the S 1841 to 
 Justices, who might, nevertheless, detain him in prison for any mal ^ e Peers 
 period not exceeding a year l . The imprisonment, however, as other 
 did not apply to Peers, whose trial by the Peers in cases of su Jects ' 
 felony was saved to them by the Act of Edward VI 2 ; and 
 a Peer who could or who could not read might still have 
 robbed one church or committed one highway robbery with 
 impunity, though an ignorant peasant would have been 
 hanged. 
 
 In the reign of George I an Act was passed to the effect 
 that persons found guilty of certain felonies within benefit of 
 clergy, and liable to be burnt in the hand, might instead be 
 transported to America 3 . As, however, Peers and Lords 
 of Parliament were not liable to be burnt in the hand their 
 privilege remained unaffected. Benefit of clergy was 
 abolished in the year 1827 4 , but without any express 
 reference to the Act of Edward VI, and doubts arose, 
 a few years afterwards, whether the section in favour of 
 Lords of Parliament and Peers did not still remain in force. 
 Another Act was therefore passed in the year 1841 to 
 repeal the section. It was further specifically enacted that 
 every Lord of Parliament or Peer, against whom an indict- 
 ment for felony might be found, should plead to it, and 
 should, upon conviction, be liable to the same punishment 
 as any other of Her Majesty's subjects 5 . 
 
 For a short time in the history of England a Peer might Disability 
 lose his dignity for life through contempt of Court. In contempfof 
 1452 a very stringent Act 6 was passed to compel atten- Chancery 
 dance in Chancery, and before the King and Council. Any i n I452 . ' 
 
 1 Stat. 18 Eliz., cap. 7. sees. 2, 3. 2 Stat. 1 Ed. VI, cap. 12. sec. 15. 
 
 3 Stat. 4 Geo. 1, cap. 11. sec. 1. 
 
 4 Stat. 7 & 8 Geo. IV, cap. 28. sec. 6. 
 
 5 Stat. 4 & 5 Vict., cap. 22. 6 Stat. 31 Hen. VI, cap. 2. 
 
264 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. 'person of the estate of Lord, as Duke, Marquess, Earl, 
 
 Viscount, or Baron,' failing to appear in accordance with 
 
 due process, was to forfeit all offices, fees, annuities, and 
 
 other possessions which he had by grant from the Crown. 
 
 and if he made a second default he was to ' lose and forfeit 
 
 his estate and name of Lord, and his place in Parliament ' 
 
 for life. If he had nothing by grant from the Crown the 
 
 penalty for the first default was loss for life of his place in 
 
 Parliament, as well as of all his lands and tenements. This 
 
 curious Act, however, expired at the end of seven years, 
 
 and in later times a Peer was treated with remarkable 
 
 courtesy by the Chancellor, whenever he had the misfortune 
 
 to have a Bill in Chancery filed against him. 
 
 Subsequent Other persons received a peremptory writ of Subpoena to 
 
 STSe* appear in Court ; the Peer received a ' Letter Missive,' from 
 
 Chancery : the Lord Chancellor, desiring him, in courteous terms, to 
 their dis- .....' , , \ 
 
 appearance give directions for due appearance to be made, on his 
 
 under new behalf, to a bill of complaint which had been exhibited 
 practice. » ^ 
 
 against him 1 . If he failed to appear he was still entitled 
 
 to some exceptional treatment. A Bill in Chancery, how- 
 ever, is no longer a mode of commencing a suit 2 , and for 
 that reason a Peer can no longer be apprised in the old form 
 of the fact that it has been filed. The answer to a Bill in 
 Chancery had to be made on oath by a commoner, but was 
 made by a Peer on his honour. This privilege, however, 
 has fallen into disuse along with the Bill and the Answer, 
 though a Peer would still give his verdict on his honour, 
 if sitting in judgement. When examined as a witness he 
 always had to be sworn like other persons. 
 Privilege The growth of the privilege relating to that kind of 
 
 in r ^ la tj on slander which is commonly known as Scandalum Magnatum 
 Scandalum can be traced from its first origin. Early in the reign of 
 te*fTlegis- Edward I an Act was passed to restrain inventors of tales 
 lation from likely to be the occasion of discord ' between the King and 
 
 1 The form is given in the earlier editions of Daniell's Chancery 
 Practice. 
 
 2 Supreme Court of Judicature Act, 1875 (38 & 39 Vict., cap. 77), 
 Sched. i. Order 2. 
 

 ITT L< 
 
 THE HOUSE OF LORDS V - At of 265 
 
 his people or some high personages of his realm.' If any Chap.XII. 
 one published any false news or tales which might have the E ^ warc i 1 
 effect of raising such discord, he was to be taken and to Eliza- 
 detained in prison until he had produced their first author 
 in Court *. It can hardly be said that this law gave any 
 exclusive advantage to Peers or Lords of Parliament, as its 
 object seems to have been to prevent all kinds of dissen- 
 sions which might arise from untrue reports of any kind. 
 In the reign of Richard II another Act was passed, which 
 more clearly defined the classes of persons who were to be 
 specially protected. These were Prelates, Dukes, Earls, 
 Barons, and other Nobles and Magnates of the Realm, the 
 Chancellor, the Treasurer, the Clerk of the Privy Seal, the 
 Steward of the King's Household, the Justices of the Courts 
 of King's Bench and Common Pleas, and other great 
 officers of the kingdom. Untrue statements as to their 
 acts, words, or thoughts, which might create disputes and 
 differences between the Lords among themselves, or between 
 the Lords and Commons, were strictly prohibited on pain 
 of the punishment provided in the previous Act. The 
 reason assigned was that unless the evil were repressed, 
 the whole realm would be in danger of subversion and 
 destruction 2 . 
 
 The punishment provided in the Act of Edward I, how- 
 ever, appears to have been found inadequate, and another 
 Act became necessary in the reign of Richard II. It was 
 then enacted that if any person imprisoned as a dissemi- 
 nator of a false report could not discover its first author, 
 he was to be subject to punishment as the Council might 
 advise :i . 
 
 In the reign of Philip and Mary some further enactments 
 were made in relation to the slander of Magnates or other 
 persons mentioned in the Acts of Edward I and the second 
 year of Richard II. Power was given to Justices of the 
 Peace to hear and determine these offences, and to put the 
 
 1 Stat. Westm. I (3 Ed. I), cap. 34. 
 
 2 2 Ric. II, stat. 1. cap. 5. 
 
 3 Stat. 12 Ric. II, cap. 11. 
 
266 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. 
 
 Abolition 
 of the 
 privilege 
 by repeal 
 of Statutes 
 in 1887 : 
 it was 
 never 
 
 exclusively 
 a privilege 
 of Lords 
 of Parlia- 
 ment. 
 
 Statutes in execution. A special punishment was assigned 
 for slander of the King or Queen. In other cases the 
 offender was to pay 100 marks, or lose one of his ears and 
 be imprisoned for a month. For written slander his right 
 hand was to be struck off. For a second offence he was 
 to be imprisoned for life, and forfeit all his goods and 
 chattels \ This Act was continued by subsequent Acts, 
 one of which was passed at the beginning of the reign 
 of Elizabeth. So far as slander of the Sovereign is con- 
 cerned, the law was expounded to extend to Elizabeth and 
 the heirs of her body, and would therefore seem to have 
 expired upon her death without issue. So far as others 
 were concerned, however, it appears to have been in force 
 until repealed by the Statute Law Revision Act of 1863. 
 
 Apart from the actual punishment to be inflicted, the 
 Statutes relating to Scandalum Magnatum survived until the 
 year 1887. It is, however, to be borne in mind that although 
 all Peers and all Lords of Parliament have been within the 
 privilege or protection afforded by the law relating to 
 Scandalum Magnatum, they have not had the exclusive 
 enjoyment of it. All the great Officers of State were 
 hedged round in the same manner, in order that the King's 
 government might not be brought into disrepute by un- 
 founded charges ; and it was, without doubt, supposed in the 
 fourteenth century that the King's government would suffer 
 equally if Prelates and lay Lords were brought into con- 
 tempt. Thus the Peers and Lords of Parliament, while 
 sharing with the Commons some privileges which have been 
 included under the head Privilege of Parliament, shared also 
 with the great officers of State certain other privileges 
 which may perhaps be called Privilege of Government or of 
 Administration. These, so far as they relate to Scandalum 
 Magnatum, were abolished by the Statute Law Revision 
 Act of 1887, by which the Acts of Richard II are repealed 2 ; 
 and any one may now publish false reports, not only of 
 
 1 Stat. 1 & 2 Philip and Mary, cap. 3, continued by 4 & 5 Philip and 
 Mary, cap. 9, and 1 Eliz., cap. 6. 
 
 2 Stat. 50 & 51 Vict., cap. 59. 
 
THE HOUSE OF LORDS 267 
 
 Peers but of the great Officers of State, without incurring Chap. XII. 
 any penalties different from those which he would incur if 
 he published false reports of any commoner or private 
 individual. 
 
 A privilege highly valued, there can be little doubt, at Privilege in 
 one time, was that of taking deer in the King's forests, f^stg 11128 
 It was enjoyed as early as the reign of Henry III, if not 
 before, by every Archbishop, Bishop, Earl, or Baron, when 
 journeying to the King to obey the King's summons, and 
 when returning home. Not more than two deer, however, 
 might be taken, and those only in the presence of the 
 forester, or after winding a horn in his absence l . This, 
 like many of the other privileges, has fallen into disuse 
 through the altered conditions of life. 
 
 All the privileges, external to the House, which were No ex- 
 formerly enjoyed in England by the Peers of England or privilege to 
 Lords of the Parliament of England exclusively, ceased to individual 
 be their exclusive privileges after the Union with Scot- p ar ii a _ 
 land. The Peers of Scotland and the Peers of Ireland, who ment ' 
 
 CXCCDt 
 
 have no seats in the House of Lords (except those Peers of their seats, 
 Ireland who have seats in the House of Commons), enjoy Jl n ? e the . , 
 all the other privileges of Peers of the United Kingdom by Scotland, 
 virtue of the respective Acts of Union. 
 
 It is sometimes asserted that Lords of Parliament had, Lords of 
 in early times, the right of voting at elections of members ^ rl jJt ment 
 of the House of Commons, or, at any rate, of Knights of the formerly 
 Shire. Theoretically it might be argued, on the one hand, elections 
 that, as a Lord of Parliament has a seat of his own, he of Knights 
 does not need any representative in Parliament, but, on shire. 
 the other hand, that as he suffers under a disability with 
 regard to voting supplies, he ought to be represented by 
 some one who is under no such disqualification. Practi- 
 cally the election for Knights of the Shire was in the County 
 Courts 2 , and it is hardly to be supposed that Lords of 
 
 1 Charta de Foresta, 9 Hen. Ill, cap. 1 1. This charter was repealed 
 by the 7 & 8 Geo. IV, cap. 27. sec. 1, so far only as it relates to 
 punishments for taking the King's venison. 
 
 2 A common form of Sheriffs return to a writ for the election of 
 
268 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. Parliament could be excluded, if they chose to attend as 
 freeholders, though they could claim exemption from 
 attendance at the Sheriff's Tourn. Where they cared to 
 exert it, they probably had great influence. The mode of 
 returning the names of the persons elected was very 
 irregular, as appears from the complaints made and the 
 Acts passed in consequence 1 . Some of the returns which 
 have been preserved show that among the electors were the 
 attorneys or persons acting on behalf of Peers 2 . 
 
 Resolu- i n this matter, however, as in various others, the Com- 
 
 tions of the . . . 
 
 Commons mons have, in later generations, taken the law into their 
 that the own hands. In 1600, after the Earl of Manchester had 
 
 Lords have yy} 
 
 no right voted at an election, they resolved ' that no Peer of this 
 interfered kingdom hath any right to give his vote at the election for 
 elections, any member to serve in Parliament 3 .' In 1702 the Com- 
 mons further resolved ' that it is a high infringement of the 
 liberties and privileges of the Commons of Great Britain 
 for any Lord of Parliament or any Lord Lieutenant of any 
 county to concern themselves in the election of members 
 to serve for the Commons in Parliament 4 .' Both these 
 resolutions were renewed, session after session, until the 
 Union of Great Britain with Ireland. 
 
 After that Union, by the terms of which a Peer of 
 Ireland might represent, in the House of Commons, a 
 county or borough of Great Britain, these resolutions 
 became no longer suited to existing facts, and a committee 
 was appointed to report upon the subject 5 . The recom- 
 mendations then made were adopted by the House, and the 
 
 members was 'The community of my whole county having been 
 assembled, the following Knights were elected.' See e. g. Writs & 
 Returns for the Counties of Middlesex and Rutland, 5 Ed. II (printed, 
 Pari. Writs, vol. ii. div. ii. pp. 62, 64, &c). 
 
 1 E.g. Stat. 7 Hen. IV, cap. 15; 11 Hen. IV, cap. 1 ; 6 Hen. VI, 
 cap. 4 ; 23 Hen. VI, cap. 14. 
 
 2 Some of these have been printed by Prynne. 
 
 3 Journals of the House of Commons, Dec. 14, 1699 (vol. xiii. 
 p. 64). 
 
 4 lb., Jan. 3, 1701-1702 (vol. ix. p. 654). 
 
 5 lb., Oct. 30, 1801 (vol. lvii. p. 5). 
 
THE HOUSE OF LORDS 269 
 
 new resolutions which followed became Standing Orders 1 . Chap.xii. 
 One was ' that no Peer of this Realm, except such Peer of 
 that part of the United Kingdom called Ireland, as shall for 
 the time being be actually elected, and shall not have 
 declined to serve for any county, city, or borough of Great 
 Britain, hath any right to give his vote in the election of 
 any member to serve in Parliament.' Another, in like 
 manner, adapted the resolution of 1702 to the altered 
 circumstances caused by the Union. 
 
 There has been no power to create or develop privileges, No power 
 except by Act of Parliament, since the year 1705, if, ™fa™ 
 indeed, any such power existed before. At a conference House to 
 then held the Lords communicated to the Commons a reso- privileges. 
 lution that neither House of Parliament had power ' by 
 any vote or declaration, to create to themselves any new 
 privilege that is not warranted by the known laws and 
 customs of Parliament.' To this the Commons assented 2 . 
 
 A Lord of Parliament has only one place in Parliament, Peers may 
 and therefore cannot sit in the House of Commons. There co^niS^ 
 does not seem to be any similar reason why he might not by Act 
 have been a member of a County Council without any ment 
 special enactment on this subject. By the Local Govern- 
 ment Act of 1888, however, it was provided that Peers 
 might be members of a County Council if owning property 
 within the county 3 . They thus escaped any possible 
 disability. 
 
 Before the days of Charles I, a Peer might lose his dignity Early 
 in various ways. He might, if of higher rank than a Baron, f^tiie 
 and if his title was by Letters Patent or Charter, divest higher 
 himself of it by surrender to the King. Roger Bigod, o^the" 5 * 
 Earl of Norfolk, and Marshal of England, surrendered his P eer age 
 Earldom to King Edward I 4 . William Herbert, Earl of lost by 
 
 surrender : 
 instances. 
 
 1 Journals of the House oj 'Commons, Nov. 17, 1801 (vol. lvii. p. 34), 
 and April 27, 1802 (vol. lvii. p. 376). 
 
 2 lb., Feb. 28, 1 704-1 705 (vol. xiv. p. 555). 
 
 3 Stat. 51 & 52 Vict., cap. 41. sec. 2 (2 b). 
 
 4 Rot. Lit. Clous., 30 Ed. I, m. 14 d (printed, Rep. Dig. Peer, vol. v. 
 app. v. p. 11). 
 
270 CONSTITUTIONAL HISTORY OF 
 
 Chap.xII. Pembroke, restored into the Chancery the Charter by which 
 his father had been, created, in order that it might be 
 cancelled *. The real object of this proceeding was that 
 Edward, son of King Edward IV, might be created Earl of 
 Pembroke in his stead 2 . William, however, while sur- 
 rendering the particular Earldom of Pembroke, expressly 
 reserved to himself the general state and dignity of an Earl, 
 and was immediately created Earl of Huntingdon. In the 
 reign of Henry VII, Edmond de la Pole, son of John, late 
 Duke of Suffolk, agreed to surrender his estate of Duke, 
 and that he should thenceforth be taken to be only Earl of 
 Suffolk ' after such estate of inheritance as his ancestors 
 were, afore the estate of Duke by the King's progenitors or 
 predecessors to any of his said ancestors granted V In 
 the reign of Henry VIII, Thomas, Duke of Norfolk, sur- 
 rendered (for the life of his son) his Letters Patent by 
 which he had been created Earl of Surrey in tail male ; and 
 thereupon his son had grant of the dignity for life 4 . The 
 latter grant was confirmed by Act of Parliament 5 . In the 
 same reign Charles Brandon, Viscount Lisle, surrendered 
 his Patent of creation, in order that Arthur Plantagenet 
 might be created Viscount Lisle 6 . 
 
 Not only were these surrenders made without any doubt 
 
 of their validity at the time, but some of them were also 
 
 held to be good by the Law Officers of the Crown in the 
 
 reign of Charles II, — by John Glanville, the King's Sergeant- 
 
 at-Law, by Geoffrey Palmer, the Attorney-General, and 
 
 by Heneage Finch, the Solicitor-General 7 . 
 
 This did In every case, however, it will be observed that the 
 
 necessarily surrender was of some dignity higher than that of Baron — 
 
 involve f an early Earldom which was once regarded as an office 
 
 1 Rot. Chart., \5-11 Ed. IV, no. 11 (printed, R.D.P., vol. v. pp. 
 417-418). 
 
 2 lb., 15-22 Ed. IV, no. 10 (printed, R.D.P., vol. v., p. 419). 
 
 3 Rot. Pari., 11 Hen. VII, no. 13. 
 
 4 Rot. Lit. Pat., 5 Hen. VIII, part ii. m. 11. 
 
 5 Rot. Pari., 5 Hen. VIII, no. 3. 
 
 6 Rot. Lit. Pat., 15 Hen. VIII, part i. m. 26. 
 
 7 Journals of the House of Lords, July 16, 1660 (vol. xi. p. 93). 
 
THE HOUSE OF LORDS 271 
 
 — of other honours conferred by Letters Patent which were Chap. XII. 
 returned into the Chancery. There had been no surrender loss f th 
 of a barony — least of all of that which has been called status of 
 a barony by writ. In every instance the person sur- 
 rendering might still have remained a Peer, as holding 
 a barony in addition to the dignity surrendered, and so 
 far there seems to be no clear example of the surrender 
 of the status of Peer of the Realm. 
 
 In the fifteenth year of Charles I, however, Roger Stafford, The fine 
 Esquire, levied a fine, to the King, of the honour, state, ^barony 
 degree, dignity, and name of the barony of Stafford, in of Stafford 
 order to bar any claim which he might have to them. The re i g n of 
 barony (though not the Earldom) of Stafford was one of ^ har }^JQ n 
 those known as baronies by writ. The fine was accepted of the 
 by the King, and was held good by the Law Officers of Lord^ ° 
 the Crown in the year 1660 l . Nevertheless, there does 
 not seem to have been any precedent for it, and it was 
 not recognized by the Lords at the time at which it was 
 made. They then resolved ' that no Peer of this Realm can 
 drown or extinguish his honour (but that it descend to 
 his descendants) — neither by surrender, grant, fine, nor any 
 other conveyance to the King 2 .' 
 
 Both the Law Officers and the Lords appear to have The Lords 
 been under some misapprehension, and each side appears lawyers at 
 to have overstated its case. The precedents on which variance, 
 probably the Law Officers relied did not extend to a barony 
 by writ ; the objections against the surrender or other form 
 of restoration to the Crown of a barony by writ, on which 
 probably the Lords relied, did not extend to dignities 
 granted by Letters Patent or Charter. 
 
 Ideas on the subject were thus in some confusion about The Pur- 
 the time of the Restoration, when the so-called Viscount nna i 
 Purbeck was also permitted to levy a fine of his honours, resolution 
 Eighteen years later, when his son laid claim to the Vis- House of 
 county, the House of Lords declared their unanimous ^g S ' th n at 
 
 1 Journals of the House of Lords, July 16, 1660 (vol. xi. p. 93). 
 
 2 Id., Feb. 1, 1640-1641 (vol. iv. p. 150). 
 
272 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. opinion, and resolved and adjudged, that no fine then 
 no fine levied or at any time to be levied to the King could bar 
 
 title^of ^ a a title °*" honour - or tne ri g nt of an y one claiming such 
 honour. title under the person who had levied or should levy- 
 such fine l . 
 Question The doctrine that a Peer cannot surrender, or in any 
 
 whether ,, ,. ,, , , 
 
 the Lords other way restore any dignity at all to the sovereign, is thus 
 have the Lord-made law of comparatively recent growth. It seems, 
 
 power to L J ° 
 
 preclude at first sight, to contradict the fundamental doctrine that 
 
 frorn CrOWn tlie soverei g n is tne fountain of honour, as it withdraws 
 
 receiving a from him the power to receive back an honour once 
 
 conferred. There must of necessity be two parties to 
 
 a surrender, and it appears to be hardly within the rights 
 
 of any particular body so to define its own privileges as 
 
 to affect other interests, and in particular those of the 
 
 Crown, without the express consent of the sovereign. 
 
 Instance It has been suggested that in very early times a dignity 
 
 transfer cou ld not only be surrendered to the King, but could, with 
 
 of an Earl- the King's consent, be transferred to another person. In 
 
 subject to tne re ig n of Henry III (as already mentioned 2 ), Ranulf, 
 
 subject : jr ar i f Chester and Lincoln, conveyed to his sister, Hawise 
 
 it was only _ . . . 
 
 by favour de Quency, the ' county of Lincoln so far as it belonged to 
 j£ the him 3 . The King, at the instance of Hawise, gave and 
 
 granted to her son-in-law, John de Lacy, the third penny of 
 the County Court of Lincoln, in the name of the Earldom 
 of Lincoln {which Ranulf had given to her in the name 
 of the Earldom of Lincoln), to be held of the King by John 
 in special tail 4 . Thus Ranulf 's gift to his sister was 
 recognized by the King, and he acceded to her request in 
 relation to the future settlement of the Earldom. It is, 
 however, clear that, as no such transfer could be made 
 without the King's consent, the whole transaction can only 
 
 1 Journals of the House of Lords, June 18, 1678 (vol. xiii. p. 253) ; 
 Shower's Cases in Par/iament, I— II. 
 
 2 See above, pp. 62-64. 
 
 3 Charter printed in Selden's Titles of Honour, p. 653. 
 
 4 Rot. Lit. Pat., 17 Hen. Ill, m. 9. no. 35 (printed, Rep. Dig. Peer, 
 vol. v. app. v. p. 8). 
 
THE HOUSE OF LORDS 273 
 
 be regarded as a new grant of the Earldom by the King Chap. XII. 
 at the request of subjects upon whom he looked with 
 favour. 
 
 The alienation of a barony in the sense of an honour or No transfer 
 dignity could hardly have been possible at any period. It is barony, 
 shown elsewhere that in early times ' Baron ' was not a name 
 of dignity like ' Duke ' or ' Earl,' and that the omission of 
 the word in describing one of the parties, in legal proceedings, 
 was immaterial. There was in fact but little for the 
 possessor to aliene. The Summons to Parliament, to which 
 Barons holding by barony were liable, was not considered 
 a thing of value. The summons of later times, which was 
 held to give a peerage to the person summoned, and to the 
 heirs of his body, could not give it to any one else. Letters 
 Patent of creation themselves limited the succession and 
 did not confer anything alienable, unless the principles of 
 fines and recoveries could be rendered applicable. 
 
 A resolution of the Lords with regard to the alienation Resolution 
 of a dignity appears therefore to have had better warrant House of 
 than their resolution with regard to surrender. They Lords in 
 resolved in the reign of Charles I, ' that no person that hath t h a t no 
 any honour in him. and a Peer of this Realm, may aliene or Peer could 
 
 * ' transfer an 
 
 transfer the honour to any other person V honour. 
 
 There is nevertheless something analogous to the transfer Effect of 
 of a dignity, though only by licence from the sovereign, to tn ° gup 
 and only within the blood of the alienor, when the eldest son House of 
 of a Peer is called up to the House of Lords in his father's e id e st son 
 barony. If, for example, an Earl holding the Earldom of f- p eer 
 of Arundel holds at the same time the barony of Maltravers, father's 
 and his eldest son is summoned in the barony of Maltravers 2 , baron y- 
 it is plain that the barony is, from that time forward, in the 
 son and not in the father. The father, however, loses the 
 barony only for his own life, and when the son succeeds to 
 
 1 Journals of the House of Lords, Feb. 1, 1 640-1 641 (vol. iv. 
 p. 150). 
 
 2 This happened in 1482 {Rot. Lit. Claus., 22 & 23 Ed. IV, m. 10 d), 
 and is believed to be the first instance of the heir being summoned 
 during the lifetime of the Peer. 
 
 T 
 
274 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. 
 
 Change in 
 the law of 
 Attainder : 
 greater 
 security to 
 heirs. 
 
 Traitors 
 and felons 
 disquali- 
 fied. 
 
 the Earldom he is in precisely the same position in which 
 his father was before him. Should the son die before the 
 father, leaving issue, his eldest son would have the barony, 
 but neither would take it otherwise than in accordance with 
 the limitations by which the father held it. When a Baron 
 was first created by Letters Patent, with limitation to him 
 and the heirs male of his body, and was afterwards summoned 
 to Parliament, the summons did not supersede the patent 
 and enlarge the grant to the benefit of his heirs general. 
 So also the patent governs the summons in later generations, 
 and the only effect of calling up a son to the House of Lords 
 during his father's life, in his father's barony, is to hasten 
 the descent of the dignity and temporarily to add one to 
 the number of Peers. 
 
 The case is, of course, different when the son of a Peer is 
 summoned to the House of Lords in a barony which his 
 father does not possess. In that event the summons 
 operates as a new creation, for the benefit of the person 
 summoned and his lineal heirs ; and this has been held to 
 be the effect even when it has been supposed, though 
 erroneously, that the barony was in fact held by the father. 
 
 In more modern times it has commonly been said that 
 a Peer can lose his nobility in three ways only, by death, by 
 attainder, or by Act of Parliament \ It does not seem that 
 he can now lose it even by attainder in the same manner 
 as he could under the old law, because it was enacted in 
 the year 1870 that no confession, verdict, inquest, conviction, 
 or judgement of or for any treason or felony, shall cause any 
 attainder or corruption of blood 2 . Thus the heirs of each 
 individual Peer have been placed in a position of security 
 which they never previously enjoyed. Except in the event 
 of the outlawry and non-surrender of a Peer charged with 
 treason or felony, or through the passing of some Act of 
 Parliament, the heir must now always inherit the dignity. 
 
 A Peer, however, convicted of treason or felony, and 
 sentenced would be disqualified for sitting or voting in the 
 
 1 1 Com. 403. 
 
 Stat. 33 & 34 Vict, cap. 23. sec. 1 
 

 THE HOUSE OF LORDS 275 
 
 House of Lords, until he had suffered his punishment or Chap. XII. 
 received a pardon 1 . 
 
 The fact of being an alien has, since the Act of Settlement Aliens dis- 
 of the reign of William III, constituted a disqualification qual e ' 
 for a summons to the House of Lords. No person born 
 out of the British dominions, unless born of English parents, 
 can, even though naturalized, be a member of either House 
 of Parliament 2 . 
 
 In former times insolvency or bankruptcy did not cause Bankrupts 
 any disability, but since the year 1871 a Peer has been dis- fi^ ual! " 
 qualified for sitting and voting in the House of Lords during 
 bankruptcy, and no writ of summons to him will issue 3 . 
 
 In early times there seems to have been no strict rule Disquali- 
 with regard to age, and, as has been shown in another JjJjjJJJJ) ° 
 chapter, the young Earl of Gloucester and Hertford was 
 summoned to Parliament while yet a minor. He was, 
 however, the grandson of one King, and the nephew of 
 another, and it is possible that an exception was made in 
 his favour for that reason. Edward, son of Edward I (the 
 first Prince of Wales), his son Edward (afterwards Edward II), 
 Edward, the Black Prince, son of Edward III, and Richard 
 his son (afterwards Richard II), were all called to Parliament 
 before attaining their majority. The House of Lords, how- 
 ever, on May 22, 1685, resolved 'that no Lord under the 
 age of one and twenty years, shall sit in this House,' and 
 that the resolution should be added to the Standing 
 Orders 4 . 
 
 There have been special instances in which sentences Exclusion 
 have been passed in the House of Lords itself, to the effect House 
 that one of their body should be incapable of sitting, as in 
 the cases of Viscount St. Albans (Lord Bacon) and the 
 Earl of Middlesex, which have been mentioned in another 
 chapter. Here, however, as upon judgement for felony, the 
 Crown may remove the disability by pardon. 
 
 1 Stat. 33 & 34 Vict., cap. 23. sec. 2. 
 
 2 Stat. 12 & 13 Will. Ill, cap. 2. sec. 3. 
 
 3 Stat. 34 & 35 Vict, cap. 50. 
 
 4 Journals of the House of Lords, May 22, 1685 (vol. xiv. p. 10). 
 
 T 2 
 
276 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XII. 
 
 Disability 
 under Acts 
 relating to 
 oaths. 
 
 Disquali- 
 fication 
 specially 
 affecting 
 Peers of 
 Scotland. 
 
 Schemes of 
 
 1888 and 
 
 1889 to 
 disable 
 Peers for 
 disgraceful 
 conduct. 
 
 From December 1, 1678, to April 23, 1829, the numbers 
 of the Lords Temporal sitting in the House of Lords were 
 somewhat diminished by the disqualification of Roman 
 Catholics to sit, vote, or make a proxy. They were by Act 
 of Parliament excluded ] unless they would make, subscribe, 
 and repeat a declaration which denied some of the principal 
 tenets of their faith. In the reign of George IV, however, 
 this portion of the Act was repealed, and Peers were allowed 
 to sit and vote, upon taking and subscribing an oath, which 
 was designed chiefly with the object of securing the loyalty 
 of the subject to the sovereign as distinguished from the 
 Pope 2 . In 1866 a form of oath to be taken by members 
 of both Houses of Parliament was set forth in an Act of 
 Parliament. The omission to take it, however, does not 
 seem to cause any absolute disability. ' If any member of 
 the House of Peers,' it is provided, ' votes by himself, or by 
 his proxy in that House, or sits as a Peer during any 
 debate, without having made and subscribed the oath, he 
 shall for every offence be subject to a penalty of £500, to 
 be recovered by action in one of Her Majesty's Superior 
 Courts 3 .' 
 
 Since the year 1792 some of the Peers of Scotland might 
 possibly have been under a disability which affected none 
 but Scots. It was enacted that no Peer of Scotland should 
 be capable of being elected one of the sixteen representative 
 Peers, or of voting in the election of the sixteen, who had 
 twice in any year been present at divine service in any 
 episcopal place of worship in which prayers were not offered 
 for the King, for his heirs and successors, and for the Royal 
 Family 4 . This Act still remains law. 
 
 Some efforts to free the House of Lords from disreputable 
 persons were made in the years 1888 and 1889. In the 
 former year the Marquess of Salisbury introduced a Bill, in 
 which it was proposed that all Superior Courts in the United 
 
 1 30 Car. II, stat. 2. sees. 1 & 2. 
 
 2 Stat. 10 Geo. IV, cap. 7. sec. 2. 
 
 3 Parliamentary Oaths Act, 1866, sec. 5. 
 
 4 Stat. 32 Geo. Ill, cap. 63. sec. 12. 
 
THE HOUSE OF LORDS 277 
 
 Kingdom should report to the Lord Chancellor every case Chap. XII. 
 in which a Peer of Parliament had been proved to have been 
 guilty of disgraceful conduct, inconsistent with his character 
 as a member of the House of Lords, and that the Lord 
 Chancellor should lay the report before the House. Upon 
 presentation of an address from the House of Lords, the 
 sovereign was to have power to direct that the writ of 
 summons issued to any Peer should be cancelled, and 
 that he should not be entitled to sit during the existing 
 Parliament ] . 
 
 This Bill was withdrawn, not without an expression of 
 regret from the Earl of Carnarvon 2 , who in the following year 
 introduced another Bill of a similar character, in which 
 felony and misdemeanour were expressly mentioned 3 . 
 When its second reading was moved it was set aside by 
 means of the previous question 4 . Some of the clauses were 
 considered impracticable ; and as Peers convicted of felony 
 were already disabled by Statute, it may have been thought 
 that there was no need to legislate further on that subject. 
 
 The existing disabilities of Peers seem to have aroused Peers' Dis- 
 some interest in the House of Commons, which has permitted R^vai 
 the introduction of a Bill for their relief. It was presented Bill of 
 on February 8, 1893. The proposals which it contained * 93 * 
 were that Peers of the Realm might be enabled to vote at 
 elections for boroughs, counties, or universities, and might 
 themselves be elected members of the House of Commons. 
 In either case, however, they were to become commoners, 
 and their hereditary titles were to lapse, and not to descend 
 to their heirs. A Peer accepting the office of any of the 
 principal Secretaries of State, First Lord of the Treasury or 
 Admiralty, President of the Board of Trade or Local 
 Government Board, or Chancellor of the Exchequer, was 
 
 1 Discontinuance of Writs Bill, H. L., 1888, no. 162; Hansard's 
 Debates, 3rd ser., vol. cccxxvii. 414. 
 
 2 Hansard's Debates, 3rd ser., vol. cccxxviii. 471. 
 
 3 Discontinuance of Writs Bill, H. L., 1889, no. 18 ; Hansard's 
 Debates, 3rd ser., vol. cccxxxiii. 1394. 
 
 4 Hansard's Debates, 3rd ser., vol. cccxxxiv. 333. 
 
278 THE HOUSE OF LORDS 
 
 Chap. XII. immediately to become a commoner, and lose, both for 
 himself and for his heirs, his hereditary titles K The Bill, 
 however, does not appear to have advanced beyond a first 
 reading 2 . 
 
 1 Peers' Disabilities Removal Bill, 1893, H. C.,no. 186. 
 
 2 Hansard's Debates^ 4th ser., vol. viii. 839. 
 
CHAPTER XIII. 
 
 The Judicature of the House of Lords in general. 
 
 AS the various Courts of Justice separated themselves Ch. XIII. 
 from the old Curia Regis, the judicial functions of the s uccess i ve 
 Prelates and Temporal Lords summoned to Parliament changes in 
 necessarily underwent a change. The jurisdiction of the functions of 
 Lords in cases of impeachment by the Commons and in the the Lords - 
 trials of Peers is treated elsewhere. With regard to other 
 matters the Lords gradually lost all original jurisdiction, 
 except in certain questions relating to the peerage, though, in 
 the end, they retained the power of giving a final decision 
 upon writs of error or appeals from Courts below. 
 
 There were three distinct stages in this transformation — 
 that in which the other Courts of Justice diverged 
 from the Curia Regis ^ and Council — that in which the 
 Council separated from the Parliament — and that which 
 followed the separation. 
 
 It has already been shown how matters were brought The Act ot 
 from the Courts before the King in his Council in his Jjj. n v ^ r 
 Parliament for the purpose of having points decided which Court re- 
 had arisen when final judgement had not yet been given, the King in 
 and of compelling the Justices to proceed to judgement p "" ' 1 in 
 when it had been too long delayed. When no Parliament ment. 
 was sitting, however, the petitions of the parties could not 
 be presented, and it was apparently to remedy this evil that 
 an Act was passed in the fourteenth year of the reign of 
 Edward III. It was provided that upon the meeting 
 of every Parliament there were to be chosen a Prelate, two 
 Earls, and two Barons, who, with the advice of the 
 
28o 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIII. 
 
 The Act of 
 25 Edward 
 III, re- 
 stricting 
 the original 
 judicial 
 power 
 of the 
 Council. 
 
 Separation 
 of the 
 Council 
 from the 
 Parlia- 
 ment. 
 
 Chancellor, the Treasurer, the Justices of the two Benches, 
 and others of the King's Council, were to have power, 
 upon petition delivered to them, to direct the Justices. In 
 cases of exceptional difficulty only they were to bring the 
 cases into the next Parliament, for 'direction to be given 
 according to the older practice I The new tribunal, having 
 power to act independently of any session of Parliament, 
 was in fact the representative of the King in his Council in 
 his Parliament, its functions being precisely the same so far 
 as they extended. 
 
 This, indeed, was neither original jurisdiction, nor the 
 jurisdiction of a later time by which a judgement could be 
 affirmed or reversed upon Writ of Error or Appeal. So 
 long, however, as the King sat in his Council in his 
 Parliament, he and his Council sat among the Lords, and 
 the Lords participated in the jurisdiction of the Council. 
 The King and Council were in the habit of exercising some 
 original jurisdiction, both in civil and in criminal proceed- 
 ings, and it was a subject of complaint that the proceedings 
 were not according to the Common Law. In the twenty- 
 fifth year of Edward III it was enacted that in criminal 
 cases no person should be apprehended on petition or 
 suggestion to the Council, without due indictment or pre- 
 sentment, nor in civil cases without due process founded on 
 Original Writ 2 . 
 
 These provisions were not strictly observed, but the 
 subsequent development of the Council has little in common 
 with the present history. The separation of the Council 
 from the Parliament was completed in or about the seventh 
 year of Richard II. In that year the following regulation 
 appears upon the Rolls of Parliament : — ' As to petitions 
 and bills the King wills that those which cannot be ex- 
 pedited without Parliament be expedited in Parliament, 
 and those which can be expedited by the King's Council 
 be laid before the Council 3 .' From the tenth year of the 
 
 14 Ed. Ill, stat. 1. cap. 5. 
 
 25 Ed. Ill, stat. 5. cap. 4. 
 
 3 Rot. Pari., 7 Ric. II, no. 51 (printed, vol. iii. p. 163). 
 
THE HOUSE OF LORDS 281 
 
 same reign the Proceedings and Ordinances of the Privy Ch. XIII. 
 Council have been duly recorded, and, in the main, are 
 extant. The Parliament without the Council, however, was 
 no longer the same body as the Parliament in which the 
 Council sat, and the judicial as well as other functions 
 of the House of Lords underwent a corresponding change. 
 
 As the equitable jurisdiction of the Chancery was now Little civil 
 beginning to grow, and the courts of common law had [ion o*f first 
 a well-recognized independent existence, there was but instance 
 
 ............ . r , tt n 1 left to the 
 
 little jurisdiction in civil cases left to the House 01 Lords as House of 
 a court of first instance. It could not, perhaps, be said Lords: 
 
 1 r disputes in 
 
 with truth that all such jurisdiction had departed from the seven- 
 them ; and they made a spasmodic attempt to revive it in century. 
 the reigns of Charles I and Charles II. There could, from 
 the nature of things, be but few occasions on which 
 a remedy could not be found either in the courts of law or 
 in the courts of equity. In 1668, in the case of Skinner 
 v. The East India Company, the plaintiff alleged that he 
 could not obtain redress elsewhere, and presented a petition 
 to the King. The matter was referred to the House of Lords, 
 which undertook the jurisdiction, and gave judgement for 
 Skinner. The East India Company presented a petition 
 to the House of Commons against the proceedings of the 
 House of Lords. A violent dispute ensued between the 
 two Houses l . The House of Commons took up the ground 
 that if there was no remedy for a wrong in the ordinary 
 Courts of Justice, it could be provided only by the whole 
 body of Parliament. If by this they meant that an Act to 
 create a new remedy could come into existence only in the 
 usual parliamentary course, they were, without doubt, in 
 the right. If, however, they meant that original jurisdiction 
 had never resided in the Lords, and that the Lords had 
 never had the power of sanctioning a new original writ, 
 they were forgetting the whole history of the Curia Regis. 
 of the King in Council in Parliament, and of the Courts. 
 
 1 Parliamentary History, vol. iv. pp. 431-433; Hatsell's Precedents, 
 vol. iii. pp. 368-392 ; Holies, The Grand Question concerning the Judi- 
 cature of the House of Peers (1689) ; 8 Rep. Hist. MSS. Com. 165-168. 
 
CONSTITUTIONAL HISTORY OF 
 
 Ch. XIII. 
 
 Limitation 
 of criminal 
 jurisdic- 
 tion : un- 
 certainty 
 prevailing 
 in the 
 seventeenth 
 century. 
 
 Peace was made, after a long quarrel, only on the direct 
 interference of King Charles II. His speech to both 
 Houses contained the following passage : — ' I remember 
 very well that the case of Skinner was first sent by me to 
 the Lords. I have, therefore, thought myself concerned to 
 offer to you what I judge the best and safest way to put an 
 end to the difference ; and. indeed, I can find no other. 
 I will myself give present order to rase all records and 
 entries of this matter both in the Council Books and in the 
 Exchequer, and do desire that you will do the like in both 
 Houses, that no memory may remain of this dispute be- 
 tween you. And then, I hope, all future apprehensions 
 will be secured 1 .' A resolution was thereupon carried in 
 the House of Commons that all matters ' relating to the 
 business between the East India Company and Skinner' 
 should be erased from its Journals. A similar erasure was 
 silently made in the Journals of the House of Lords. After 
 this time the jurisdiction of the latter House, as a Court of 
 first instance in civil causes, may be regarded as having 
 been at an end. 
 
 In criminal matters the Lords, as is shown in another 
 chapter, had vacillated with regard to their own wishes, 
 sometimes desiring to have jurisdiction over none but Peers, 
 sometimes to have jurisdiction in all momentous charges in 
 which commoners were implicated with Peers. In the 
 seventeenth century they practically asserted an original 
 criminal jurisdiction apart from that of the trial of Peers, 
 and from that of accusations brought before them by 
 impeachment of the Commons. This, however, they would 
 seem to have lost through the Act of the twenty-fifth year 
 of Edward III, which forbade the apprehension of any one 
 without due indictment. The Act, it is true, applied 
 nominally to proceedings on petition to the Council, but as 
 petition to the King in his Council in his Parliament was 
 at this time one of the usual forms, it precluded arrest on 
 
 1 Journals of the House of Commons, Feb. 22, 1669- 1670 (vol. ix. 
 p. 126). 
 
THE HOUSE OF LORDS 283 
 
 any such petition ; and criminal jurisdiction without power Ch. XIII. 
 of arrest would obviously be nugatory. It is possible that 
 the Act did not debar the Lords or Council from hearing 
 cases in which an indictment had been found, but the in- 
 dictment would necessarily have been found in a Court 
 below, from which, as in the trial of Peers, it would have to 
 be removed. 
 
 It is not quite clear how far the Lords supposed their 
 criminal jurisdiction to extend at the time of the Long 
 Parliament of the reign of Charles I. Their proceedings 
 have, perhaps, been a little exaggerated partly through the 
 warmth of political feeling, and partly because questions of 
 privilege or supposed privilege have been involved in many 
 of the cases which appear upon the Journals. Among them 
 are several instances of slander of Peers. If. however, these 
 be left out of consideration, together with the impeach- 
 ments duly laid before the Lords by the Commons, there 
 are still to be found some examples of unnecessary inter- 
 ference by the Lords. When one Philip Bembricke counter- 
 feited letters of protection under the hand and seal of Lord 
 Fauconbridge, and sold them for forty shillings ', it is 
 possible that the Lords may have ordered the appearance 
 before them of the accused on the ground of privilege. 
 But, when they took upon themselves to allow the removal 
 of an indictment not affecting any Lord of Parliament from 
 a Court of Quarter Sessions to the Court of King's Bench 2 , 
 and when they ordered printers and sellers of unlicensed 
 books to appear before their Committee, and empowered 
 the Master and Wardens of the Company of Stationers to 
 search for clandestine presses 3 , they certainly appear to 
 have assumed very general powers. When they resumed, 
 after the Restoration, the seats which they had lost during 
 the period of the Commonwealth, there was still some 
 uncertainty with regard to their judicial functions ; but 
 
 1 Journals of the House of Lords, Jan. 23, 1 640-1 641 (vol. iv. 
 p. 141). 
 
 - Jb., Feb. 15, 1640-1 641 (vol. iv. p. 162). 
 ■ lb., March 4, 1640- 1641 (vol. iv. p. 173). 
 
284 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIII. 
 
 Contro- 
 verted 
 elections of 
 members 
 of the 
 House of 
 Commons 
 decided by 
 the Lords 
 in the 
 reign of 
 Henry V. 
 
 Subsequent 
 changes. 
 
 their pretensions to act as a Court of criminal judicature 
 concurrently with the other Courts of the King seem to 
 have expired with their claims as a Court of first instance 
 for civil causes, when the King's remedy of oblivion had 
 been accepted in relation to Skinner and the East India 
 Company. 
 
 In the early days of Parliament, before the Commons 
 had learned to assert themselves, the Lords sometimes 
 exercised a jurisdiction which the Commons afterwards 
 regarded as their most exclusive privilege. Controverted 
 elections were rare, but when they occurred redress was 
 obtained by petition to the King, who acted with the advice 
 of his Council. The mode of proceeding was not always 
 the same, but in all cases it indicated that the Commons 
 were not and did not claim to be the arbiters 1 . Soon after 
 the Parliament had separated from the Council, a remark- 
 able case occurred which showed clearly where they 
 supposed the power of rectification to lie. In an election 
 for the county of Rutland in 141 7, the Sheriff returned, as 
 one of the Knights of the Shire, one William Ondeby, instead 
 of Thomas Thorpe, who had in fact been duly elected. The 
 Commons then prayed the King and the Lords in Parlia- 
 ment that the matter might be examined. Thereupon the 
 King commanded the Lords in full Parliament to make 
 examination, and to act according to their discretion. 
 The Lords called both Ondeby and Thorpe before them, 
 and, after hearing arguments, agreed that the Sheriff's 
 return was incorrect, that it must be amended, and that 
 Thorpe must be returned as one of the Knights of the 
 Shire 2 . 
 
 The Lords enjoyed this jurisdiction but a short time, as 
 the power of enquiring into false returns of Knights of the 
 
 1 The earlier precedents from 12 Ed. II to 5 Hen. IV, are set forth 
 in the Preface to Glanville's Reports, pp. xi-xxiii, as well as by 
 Prynne. 
 
 2 Rot. Pari., 5 Hen. IV, no. 38 (printed, vol. in, p. 530). The case has 
 been cited both in Prynne's Plea for the Lords and House of Peers, 
 and in the Preface to Glanville's Reports. 
 
THE HOUSE OF LORDS 285 
 
 Shire was soon afterwards given by Acts of Parliament l to Ch. xill. 
 the Justices of Assise. The right of petition to the King, 
 however, on the subject of elections was not abolished, and was 
 exercised in the reign of Henry VI 2 . In later reigns some 
 uncertainty seems to have prevailed until, in the first year of 
 that of Queen Mary, we find a Committee of the House 
 of Commons appointed to enquire whether one Alexander 
 Newell, elected a burgess of Looe, might be of the House. 
 It declared that he could not be a member, because, being 
 a prebendary, he had a voice in the House of Convocation, 
 and that the Queen's writ should be directed for another 
 burgess 3 . The House of Commons also c required,' a few 
 years later, that, in a case of double election, 'another 
 person ' should be returned for a borough 4 . In subsequent 
 times there were some disputes as to the power of the 
 Chancellor to issue writs for the election of new members 
 upon the occurrence of vacancies during a recess of Parlia- 
 ment, or while Parliament was sitting. They can hardly 
 be said to belong to the history of the House of Lords in 
 general. The Lords appear to have exercised no juris- 
 diction in relation to controverted elections of members of 
 the House of Commons since the reign of Henry V. 
 
 Claims of peerage and of offices of honour have long been Jurisdic- 
 brought before the House of Lords, but not without express p° e n ra ln e 
 reference from the Crown 5 . It does not even appear that cases on 
 the Crown is bound to adopt this mode of decision, for in f rom t he 
 the case of the barony of Fitz-Walter, to which reference has Crown- 
 already been made, the claim, though originally referred to 
 the House of Lords, was, after a prorogation of Parliament, 
 withdrawn from their cognizance and laid, by the King's 
 direction, before the Privy Council c . 
 
 1 Stat. 11 Hen. IV, cap. 1 ; Stat. 6 Hen. VI, cap. 4 ; and see Stat. 
 23 Hen. VI, cap. 14. 
 
 2 One of the year 2 Hen. VI has been printed in Prynne's Brevia 
 Parliament aria Rediviva, 156, et seq. 
 
 3 Journals of the House of Commons, Oct. 12, 13, 1553 (vol. i. p. 27). 
 1 lb., Jan. 27, 28, 1 557-1 558 (vol. i. p. 47). 
 5 Hale's Jurisdiction of the Lords' House, p. 104. ^ 1 ■ ■ -^^^ 
 
 See above, p. 1 30. /*^ or the ^ 
 
286 CONSTITUTIONAL HISTORY OF 
 
 Ch.xiii. The usual course, in more recent times, has been for the 
 
 claimant to present a petition to the Crown through the 
 
 Secretary of State. It is referred to the Attorney-General. 
 
 who makes a report upon it. The Crown then has absolute 
 
 discretion to refer it to the House of Lords or not, but has 
 
 commonly proceeded in that manner 1 . The jurisdiction 
 
 is thus not inherent in the House of Lords itself, but 
 
 is only created, from time to time, as occasion may arise. 
 
 Jurisdic- There is, however, a more clearly defined jurisdiction 
 
 relation to m respect of the election of the representative Peers of 
 
 representa- Scotland, and especially in respect of votes and claims 
 
 tive Peers * " 
 
 of Scot- to vote. By an Act of Parliament passed in the year 
 land. jo^ j t was p rov id e d that when a vote or claim to vote in 
 
 right of any peerage had been disallowed by the House of 
 Lords upon trial of a contested election, the House might 
 order that the particular title of peerage should not be 
 called over at any future election*. It was also enacted 
 that when a protest was made at any meeting for the 
 election of representatives, by any two of the Peers present, 
 against any vote or claim, a copy of the proceedings must 
 be transmitted to the Clerk of the Parliaments. The House 
 of Lords might then, whether there was any contested 
 election or not, enquire into the matter raised by the 
 protest, and order the person against whose vote or claim 
 the protest had been made to appear. Upon his failure to 
 appear or to establish his claim, the House might make the 
 same order as upon disallowance of a vote after trial 3 . In 
 the year 1851 it was further enacted that after every meet- 
 ing of the Peers of Scotland to elect representative Peers, 
 there should be transmitted to the Clerk of the Parliaments 
 the titles of any peerages, called at the meeting, in right of 
 which no vote had been received and counted for fifty years. 
 The House of Lords might then make an order to abstain 
 from calling the title at future meetings for elections ; and 
 
 1 For a full description of the proceedings in peerage cases, see 
 Hubback's Evidence of Succession. 
 
 2 Stat. 10 & 1 1 Vict., cap. 52. sec. 2. 
 
 3 lb., sec. 3. 
 
THE HOUSE OF LORDS 287 
 
 the vote of any one claiming to vote in right of any such Ch.xiII. 
 peerage could not afterwards be received l . 
 
 By the Act of Union with Ireland in the year 1 800, And in 
 it was expressly enacted that all questions touching the ^p^ 1 ^^. 
 rotation or election of the Lords Spiritual or Temporal tive Lords 
 of Ireland to sit in the Parliament of the United Kingdom 
 should be decided by the House of Lords. Whenever there 
 had been an equality of votes, and consequently no complete 
 election, the names of the Peers of Ireland for whom an 
 equal number of votes had been given were to be written 
 on pieces of paper, and put into a glass by the Clerk of the 
 Parliaments, at the table of the House of Lords, during 
 a sitting of the House ; and the Peer or Peers whose name 
 or names should be first drawn out by the Clerk of the 
 Parliaments would be deemed the Peer or Peers elected 2 . 
 When, however, on the disestablishment of the Church of 
 Ireland on January 1, 1871, the representative Bishops lost 
 their right to sit in the House of Lords 3 , the jurisdiction of 
 the House in reference to the rotation of the Irish Lords 
 Spiritual came to an end. 
 
 The jurisdiction of the Lords in error has a sound Jurisdic- 
 historical foundation, though doubts have been raised, at parliament 
 times, as to whether the Commons do not participate in it 4 . in error : 
 There are, in fact, some early cases in which the Commons w hi c h the 
 appear, at first sight, to have had a voice in the reversal of Commons 
 judgement, as for example those of Adam de Orleton, have a 
 Bishop of Hereford, and Thomas Earl of Lancaster, at the volce- 
 beginning of the reign of Edward III. In both these 
 instances, however, there was a want of precision in the 
 course taken, as it was not sufficiently clear whether the 
 decision of Parliament was to be regarded as a judgement 
 or as a statute. In both the proceeding was commenced 
 by Petition. In both the form was that of a judgement and 
 
 1 Stat. 14 & 15 Vict., cap. 87. sec. 4. 
 
 2 Stat. 39 & 40 Geo. Ill, cap. 67. art. 4. 
 
 3 Stat. 32 & 33 Vict., cap. 42. sec. 13. 
 
 4 As by Sir Matthew Hale, in his Jurisdiction of the Lords' House, 
 &c. 
 
288 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch.XIII. 
 
 No such 
 
 cases 
 
 without 
 
 political 
 
 signifi- 
 
 Parliament 
 retains the 
 jurisdiction 
 when the 
 Council 
 separates 
 from it. 
 
 not of a statute. In both strong party feelings were at 
 work, and it may have been thought expedient to have the 
 assent of the Commons for political purposes in times of 
 great disturbance. The petitions did not recognize any 
 jurisdiction in the Commons. The Bishop of Hereford 
 presented his to the King and Council alone. The record 
 of the Court below was read and examined before the King 
 and his Council, ' and also before the Prelates, Earls, Barons, 
 and the whole Community of the Realm being in Parliament.' 
 The judgement of reversal was given by the King and his 
 Council with the assent of the whole Parliament 1 . The 
 idea of obtaining the consent of the Commons appears to 
 have been an afterthought. The tribunal recognized by the 
 parties was the King in his Council, which, as Parliament 
 was sitting, was the King in his Council in his Parliament ; 
 but this body, as shown elsewhere, did not include the 
 Commons. 
 
 It would not be easy to produce any cases which have 
 no political significance, in which error was alleged to have 
 occurred in the courts below, and in the determination of 
 which the Commons have nevertheless had a voice 2 . On 
 the other hand, there is no difficulty in showing that the 
 King in Council in Parliament, without any interference 
 by the Commons, directed and corrected the ordinary 
 proceedings of inferior Courts. 
 
 When the Council finally separated from the House of 
 Lords in the reign of Richard II, what, it may be asked, 
 became of this jurisdiction? Did it remain with the 
 Council, or with the House of Lords, or did it cease ? 
 According to all analogy it should have remained in exis- 
 tence, and have belonged to the nearest representative of the 
 old Curia Regis. That, it might, perhaps, fairly be thought, 
 was the House of Lords. It could hardly be said that the 
 
 1 Rot. Lit. Clans., I Ed. Ill, part i. m. 13. 
 
 2 Or, to use the words of Sir Matthew Hale, 'where Commons are 
 mentioned as determining the matter,' the cases are ' upon petition of 
 parties unduly attaint, or their heirs.' Jurisdiction of the Lords' House, 
 p. 127. 
 
THE HOUSE OF LORDS 289 
 
 House of Lords was an offshoot of the Council, though it Ch. XIII. 
 
 might, perhaps, be said that the Council was an offshoot of 
 
 the House of Lords. If the Council had sat with the Lords, 
 
 so also had the Common Law Judges, as part of the 
 
 Council. The Courts over which the Common Law Judges 
 
 presided were clearly offshoots of the Curia Regis, in which 
 
 their proceedings could be corrected and directed. Still, 
 
 the Council was a more important body than any that had 
 
 in previous times separated itself from the ancient King's 
 
 Court, and its possible claims to be a final Court of Appeal 
 
 can hardly be passed over in silence. 
 
 The point seems to have been determined with sufficient The 
 precision in relation to Courts of Common Law by the |^iples 
 unanimous opinion of all the Judges, entered upon the Rolls laid down 
 of Parliament, a little before the separation of the Council judges 
 from the House of Lords was complete. The law was that J? st Defore 
 
 L , the separa- 
 
 when error occurred in the Kings Bench it should be tion. 
 
 amended in Parliament *. The essential part of ' the King 
 
 in Council in Parliament,' for the purpose of this jurisdiction, 
 
 was, therefore, at the time considered to be the Parliament ; 
 
 and as the Commons formed no necessary part of ' the King 
 
 in Council in Parliament,' the word Parliament must be 
 
 interpreted to mean the House of Lords. 
 
 There is, moreover, good reason to believe that the whole 
 
 subject had been fully considered with reference to the 
 
 coming separation. For a long time before, as has been 
 
 shown in the case of the Stauntons 2 , it had been the practice 
 
 to present petitions to the King in Council in Parliament, 
 
 in the intermediate stages of actions in both the King's 
 
 Bench and the Court of Common Pleas. The same tribunal 
 
 must have had, at the same time, jurisdiction to amend 
 
 a final judgement in the Court of King's Bench, for there is 
 
 a precedent in the old Register of Writs, showing that error 
 
 in judgement in the King's Bench was brought before ' the 
 
 King in his Council in his Parliament,' which is, in another 
 
 part of the same instrument, described as ' the King's Court 
 
 1 Rot. Pari., 50 Ed. Ill, no. 48 (printed, vol. ii. p. 330). 
 3 See above, pp. 51-53. 
 
 U 
 
290 CONSTITUTIONAL HISTORY OF 
 
 Ch.xiii. of Parliament 1 .' The Judges, at the end of the reign of 
 Edward III, while recognizing the jurisdiction of Parliament 
 over errors in final judgement in the King's Bench, dis- 
 tinctly laid down the principle that errors alleged to have 
 occurred in the Court of Common Pleas could not be 
 brought directly before Parliament, but must first be con- 
 sidered in the King's Bench 2 . Interlocutory applications 
 in Parliament, while cases were still sub judice in Courts 
 below, appear to have ceased after the division of the Council 
 from Parliament, and the law now took the definite shape 
 which it retained for many centuries. Error in the Court 
 of Common Pleas was amended in the King's Bench; error 
 in the King's Bench was amended in Parliament, which was 
 understood to mean the House of Lords. Their decision 
 was final, and in that respect equal to a decision in the full 
 Curia Regis of other days. 
 The Com- At the beginning of the reign of Henry IV the Commons 
 concerned were not only willing but anxious that they should not be 
 with the supposed to have any concern with the judgements of the 
 
 judgements _ r „ & „,, 
 
 of the Lords, and made a protest to that effect. The King 
 
 th^reVri f a g reec * tnat a ll judgements should be given by himself and 
 Henry IV. the Lords alone, except on occasions on which, for some 
 
 exceptional reason, he might desire that the Commons 
 
 should participate 3 . 
 Case of The exception left an opening for ingenious pleading in 
 
 Salisbury relation to assignments of error, but no advantage seems to 
 in the have been taken of it except in cases of attainder. In the 
 
 reign of 
 
 Henry v. year 1 41 4 Thomas, son of John Montague, Earl of Salisbury, 
 presented a petition to the King, praying that the record 
 and process of the declaration against his father as a traitor 
 in the second year of the reign of Henry IV, might be 
 viewed and examined in Parliament, and the errors re- 
 
 1 Registriim Brevium Originalium (published 1 531), fo. 17-17 b. 
 De errore corrige?ido fter Parliame?itum. This is not a writ of error, 
 but a writ of Scire facias ad audiendum err ores, which was in later 
 times the usual process following a writ of error. 
 
 2 Rot. Pari, 50 Ed. Ill, no. 48 (printed, vol. iii. p. 330). 
 :! lb., 1 Hen. IV, no. 79 (printed, vol. iii. p. 427). 
 
 
THE HOUSE OF LORDS 291 
 
 dressed 1 . The Earl was one of those who had fallen into Ch.XIII. 
 the hands of some of the Lancastrian party at the beginning 
 of the reign of Henry IV, and been beheaded without trial. 
 The Lords Temporal, with the assent of the King, had 
 afterwards declared and adjudged that, as a traitor having 
 levied war against the King, he should forfeit all the lands 
 and tenements which he had in fee simple, notwithstanding 
 the fact that he had been put to death without due process 
 of law 2 . 
 
 The petition and the subsequent assignments of error are Error in 
 hardly comprehensible according to any acknowledged ment . 
 legal principles. It was asked that errors alleged to have confusion 
 occurred, not in a Court below, but in Parliament itself, 
 should be corrected in Parliament. Among the assignments 
 of error were two which had relation to the Commons 
 In one the original ' declaration and judgement ' were re- 
 garded as judicial acts ; in the other they were regarded as 
 legislative acts. In the one it was complained that they 
 had been pronounced only by the Lords Temporal with the 
 King's assent, whereas the judgement ought to have been 
 given by the King, as sovereign judge, and by the Lords 
 Spiritual and Temporal, with the assent of the Commons, or 
 on their petition. In the other it was again maintained 
 that the declaration and judgement were bad, as having 
 been passed without petition or assent from the Commons, 
 because the Commons ' are of right petitioners or assenters 
 in respect of that which is ordained for law in Parliament V 
 
 A petition of error alternating between an attempt to The case- 
 redress in Parliament an error supposed to have been com- £earin 
 mitted judicially in the High Court of Parliament itself, on the 
 and an attempt to reverse an Act or Ordinance of Attainder, of the" Y 
 is a political curiosity, but seems very like a legal absurdity. Lords over 
 It shows only the lengths to which men might be carried below. 
 by political partisanship. In any case it has no bearing 
 upon the authority to redress error arising in Courts below. 
 
 1 Rot. Par/., 2 Hen. V, no. 12 (printed, vol. iv. pp. 17-18). 
 
 2 lb., 2 Hen. IV, no. 30 (printed, vol. iii. p. 459). 
 
 3 lb., 2 Hen. V, no. 12 (printed, vol. iv. pp. 18-19). 
 
 U 2 
 
292 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIII. 
 
 Jurisdic- 
 tion of the 
 House of 
 Lords over 
 error in 
 the King's 
 Bench 
 from the 
 time of 
 Henry IV 
 down- 
 wards. 
 
 From the time of Henry IV the jurisdiction of the High 
 Court of Parliament (in the sense of the House of Lords), in 
 cases of error arising in the King's Bench, seems to have 
 been fully accepted — at any rate in theory. The form of 
 proceeding was at first by petition addressed to the King 
 and ' the noble lords,' of which instances may be found *. 
 The frequent and long intermissions of Parliament, however, 
 led to much inconvenience, and even caused the powers of 
 the House to fall into disuse 2 . In an Act of the year 1585 
 it was recited that erroneous judgements in the King's Bench 
 could be reformed only in the High Court of Parliament 
 (which ' is not in these days so often holden as in ancient 
 time it hath been '), and that ' in respect of greater affairs of 
 this realm ' they could not be well determined even during 
 the session of Parliament. All writs of error both in 
 criminal and in civil cases had previously had the effect of 
 bringing the judgement directly from the King's Bench into 
 Parliament, but for the sake of expedition a new and inter- 
 mediate Court of Error was now instituted. Into this Court 
 (long known as the Exchequer Chamber) either of the 
 parties in certain civil actions, in which the sovereign was 
 not concerned, and which had not been commenced by 
 original writ, could sue a writ of error 3 . Parliament still 
 remained the Court of final decision, whether the causes 
 passed through the Exchequer Chamber or not ; and ' Par- 
 liament,' as we know from Sir Edward Coke, who wrote not 
 long afterwards, was, according to the law and custom of 
 Parliament, ' the Lords in the Upper House V 
 
 1 E.g. in Rot. Pari., 1 Hen. V, no. 19 (printed, vol. iv. p. 7). 
 
 2 The following words in relation to this subject seem apposite :— 
 1 From the third of Henry V to the accession of James I there appears 
 to have been little exercise of judicaturt in Parliament civilly, or indeed 
 criminally, unless the cruel precedents of Acts of Attainder without 
 hearing the accused, and the indulgent precedents of Acts of Restitu- 
 tion, without assignment of errors, of both of which the number is 
 great, are fit to be considered as judicial records.' Hargrave's Preface 
 to Hale's Jurisdiction of the Lords' House, p. viii. 
 
 3 Stat. 27 Eliz., cap. 8. And see Stat. 31 Eliz., cap. 1. 
 
 4 4 Inst. 21. 
 
THE HOUSE OF LORDS 293 
 
 Jurisdiction in error over causes arising in the Court of Ch.xIII. 
 Exchequer was also enjoyed from a comparatively early Hist 
 period by the House of Lords; but the Barons of the pfthe 
 Exchequer were very jealous of their privileges, and the law {Jon in" 
 seems to have been in some doubt as late as the time of error of 
 
 the House 
 
 Edward III. In the eleventh year of his reign it must have f Lords 
 been supposed by some lawyers that error in that part of ^ r h the 
 the Exchequer commonly known as the Exchequer of as a Court 
 Pleas, at any rate, could be redressed in the King's Bench, 
 for a writ of error in that sense was then directed to the 
 Barons. They, however, stoutly refused to send the record 
 of the case, as required, and they certified their reasons to 
 the King. They gave a brief history of the Exchequer and 
 its rights from the time of the Conquest, and stated that 
 errors alleged to have occurred in the Exchequer had 
 always been amended in the Exchequer itself, the Barons 
 being directed by the King to associate with them others of 
 his lieges, to hear the record and process 1 . They were 
 successful in their assertion that the King's Bench had no 
 jurisdiction in error over the Exchequer. This, however, 
 does not seem to have exempted them from the supreme 
 jurisdiction, in early times, of the Curia Regis 1 \ and after- 
 wards of the King in his Council in his Parliament. The 
 Act of the fourteenth year of Edward III, by which power 
 was given to a Committee of the Lords, acting with the 
 Council, to direct the various Courts to give judgement, 
 expressly included the Exchequer 3 . As the Statute only 
 extended to the Committee (during the time when Parlia- 
 ment was not sitting) the power exercised by the King in 
 his Council in his Parliament, it follows that the Council in 
 Parliament had the same jurisdiction in relation to the 
 
 1 Remembrance Roll of the Lord Treasurer's Remembrancer, Com- 
 munia de Termino Sancti Hillarii anno xi<> Edwardi tertii. Adhuc 
 Recorda. Printed in the Introduction to Year Books (Rolls Series), 
 14 Ed. Ill, pp. xxi-xxv, where further information in relation to this 
 matter will be found. 
 
 2 This seems to be shown by the Dialogus de Scaccarzo, lib. i. cap. 8, 
 where it is said 'cognitio ipsi Principi reservabitur.' 
 
 3 14 Ed. Ill, stat. 1. cap. 5. 
 
294 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIII. Exchequer as to the other Courts. When the Council was 
 separated from the Parliament the Lords alone could thus 
 constitute the final Court of Appeal. 
 
 It does not, however, appear that there was ever a direct 
 appeal from the Exchequer, as a Court of law, to Parliament. 
 Before the matter was regulated by Statute, the Barons, as 
 has been shown, claimed that error should be considered in 
 the Exchequer itself. In the year 1357 an Act was passed 
 to the effect that, when complaint was made of error in the 
 Exchequer, the Chancellor and Treasurer, associating with 
 them the Justices and other learned persons, should call 
 before them the Barons of the Exchequer, with the record, 
 and correct any error, if found l . The hearing was to be 
 in some Council Chamber near the Exchequer, and this 
 appears to have been the true origin of the ' Court of 
 Exchequer Chamber,' the component parts of which differed 
 according to circumstances. After 1585 it was constituted 
 in one way for the purpose of considering writs of error from 
 the Court of Exchequer, but in another way for the purpose 
 of considering writs of error from the King's Bench. 
 
 The Court of Exchequer, as a court of law, was thus in 
 
 a position very similar to that of the King's Bench. From 
 
 the King's Bench some errors in judgement might be taken 
 
 first into the Exchequer Chamber, and thence to the House 
 
 of Lords, though others had to be taken directly to the 
 
 House of Lords. From the Exchequer, as a court of law 
 
 (though not as a court of equity) all errors in judgement had 
 
 to be taken first to the Exchequer Chamber, but might be 
 
 taken to the House of Lords by a subsequent writ of error. 
 
 Impor- The Writ of Error to bring an erroneous judgement into 
 
 theTorai of t ^ ie House of Lords always retained the ancient form. It 
 
 Writs of was a mandate from the sovereign directing the Judges of the 
 
 Parha-° Court below to send the record and proceedings ' to us in 
 
 ment. our Parliament . . . that we may further cause to be done 
 
 thereupon, with the assent of the Lords Spiritual and 
 
 Temporal 2 in the same Parliament, for correcting that 
 
 1 31 Ed. Ill, stat. 1. cap. 12. 
 
 2 Attention has been drawn by Sir Matthew Hale in his Jurisdiction 
 
THE HOUSE OF LORDS 295 
 
 error, what of right and according to the law and custom of Ch. xiii. 
 England ought to be done.' The King in his Parliament 
 was the Court of last appeal, and represented the ancient 
 King in his Council in his Parliament ; but the House of 
 Lords was the tribunal that actually heard the cause. 
 
 Proceedings in error were not abolished, even in civil The House 
 actions, until the year 1875 l , and no change had been made ^^5^ 
 in the words of the writ. Even then there was a saving described 
 with regard to proceedings on the Crown side of the Queen's ment . 
 Bench, and on the Revenue side of the Exchequer 2 ; and 
 thus, in relation to criminal jurisdiction in error, the House 
 of Lords has continued to be described as Parliament. 
 
 The jurisdiction of the House of Lords in appeals from jurisdic- 
 the Equity side of the Court of Chancery, though it might £°" d f in he 
 fairly be traced to the same origin as its jurisdiction in Appeals 
 writs of error, had nevertheless a different history. The chancery: 
 Chancery, having always been, from the time when Parlia- earl y 
 
 , rn - * t* .. relations 
 
 ment first existed, an office of the Parliament, was naturally f the 
 very closely associated with it and with the Council. All C fe n J^ ry 
 ' original writs ' for the trial of causes in the King's Courts Parlia- 
 issued out of the Chancery. Certain writs, of which the ment ' 
 forms had been settled, issued \ as of course ; ' but, when 
 any difficulty arose in relation to a new kind of writ, the 
 authority of Parliament, that is to say, of the King in his 
 Council in his Parliament, had to be obtained 3 . 
 
 The issue of original writs has usually been regarded 
 as part of the common law jurisdiction of the Court of 
 Chancery. It should, however., rather be considered a dis- 
 
 of the Lords' House, to an early form of writ of error in Rastell's 
 Entries, in which he supposes that the words ' and Commons ' were 
 added. There is undoubtedly an addition, but, as it stands, it is 
 meaningless, and is obviously a misprint, the words being accomitatwn, 
 which could only be translated * and the County,' ' and the County 
 Court,' ' and the Earldom,' or ' and of the comities.' Rastell's Entries, 
 1574, fo. 284. 
 
 1 Supreme Court of Judicature Act, 1875, Order lviii. 
 
 2 lb., Order lxii ; Supreme Court of Judicature Act (Ireland), 1877, 
 sec. 65. 
 
 3 Stat. Westm. 2 (13 Ed. 1), cap. 24. 
 
Chancery. 
 
 296 CONSTITUTIONAL HISTORY OF 
 
 Ch.XIII. tinct function, more closely associated with the equitable 
 jurisdiction than with the common law jurisdiction, so far 
 as the latter related to the hearing of causes. As the 
 fountain of justice under the Parliament the functions of 
 the Chancery were of the widest possible range ; as a mere 
 Court of Common law its functions were extremely limited, 
 and even subordinate to the Court of King's Bench. When 
 it had given judgement, the judgement could be reversed on 
 writ of error in the King's Bench ; and a reversal actually 
 occurred as late as the fourteenth year of Queen Elizabeth 1 . 
 Growth of The line of demarcation between the common law and 
 furis^c- 17 ec l lu ty> or between the ordinary and extraordinary jurisdic- 
 tion of the tion of the Chancery, was not at first drawn in the same 
 manner as in later times. Some of the proceedings which 
 are usually said to have been at common law, were in fact 
 the subject of complaint in the reign of Henry IV as being 
 injurious to the administration of the common law itself 2 . 
 As late as the reign of Edward IV also the same proceedings 
 (upon Scire facias to traverse an office) were referred to the 
 equitable jurisdiction of the Court 3 . 
 
 Proceedings of this kind, however, were in early times 
 not before the Chancellor alone, though in the Chancery, 
 but before members of the Council, including the Judges, 
 and it was sometimes expressed that the decision was given 
 after consultation with the whole of the Council. To the 
 King in his Council (or, when Parliament was sitting, to 
 the King in his Council in his Parliament) may in like 
 manner be traced the whole of the equitable jurisdiction of 
 the Court. Certain petitions were referred to members of 
 the Council sitting in the Chancery, until, by degrees, there 
 grew up a practice of addressing a Petition or Bill directly 
 to the Chancellor, and cases for which the common law was 
 
 1 Dyer's Reports, 315 (no. 100), where earlier cases are cited. 
 
 2 Rot. Pari, 2 Hen. IV, no. 95 (vol. iii. p. 474). 
 
 3 Staunford, Prerog. Reg., p. 77- See a fuller discussion of this 
 matter in the Introduction to the Year Books, 12 & 13 Ed. Ill (Rolls 
 Series), pp. cvi-cxi, and the article ' Common Law and Conscience in 
 the ancient Court of Chancery,' Law Quarterly Review, vol. i. 
 
THE HOUSE OF LORDS 297 
 
 supposed to provide no remedy were heard by him. As, ch. xiii. 
 when difficulties arose in framing a common law writ in the 
 Chancery, the matter had to be taken into Parliament, so 
 when a decree of the Chancellor was thought to be erroneous, 
 a petition in Parliament might have appeared the only 
 possible remedy. 
 
 Appeals from Chancery decrees, however, at any rate Juiisdic- 
 under the name of appeals, were necessarily of much later Lords in 
 growth than writs of error from the courts of common law. Appeals 
 The equitable jurisdiction of the Chancery was itself of slow chancery 
 growth, and, before it had come to maturity, men had ** °" e * lme 
 almost forgotten the remedial power of the King in his 
 Council in his Parliament. No petition of ' appeal ' appears 
 to have been made before the reign of James I, when the 
 Lords heard the matters alleged in Sir John Bourchier's 
 case, though a committee of privileges had reported that 
 the word ' appeal ' was not usual, and that in former times 
 the petition had been addressed to the King and his Great 
 Council 1 . In the reign of Charles I, Lady Moulson's 
 petition to the Lords for reversal of a decree in equity was 
 referred to the Committee of Petitions 2 . It has often been 
 questioned by lawyers of eminence whether the jurisdiction 
 really belonged to the House of Lords 3 , without any special 
 commission from the sovereign, such as there was in the case 
 of a writ of error to rectify judgement in a court of common 
 law. The point is one which has reference to form rather 
 than to substance. The Parliament, in the sense of the 
 King, Lords, Judges, and high officers of State, was the 
 original fountain of Justice from which flowed remedies not 
 
 1 Journals of the House of 'Lords ; Dec. 3, 6, 10, & 11, 1621 (vol. iii. 
 pp. 179-180, 184, 189, 190-192). 
 
 2 lb., Jan. 23, 1640-1641 (vol. iv. p. 141). 
 
 3 Spence's Equitable Jurisdiction of the Coicrt of Chancery, vol. i. 
 p. 393. His opinion seems to have been founded on Sir Matthew 
 Hale's Treatise on the Jurisdiction of the Lords' House, p. 193 et 
 seq., and Hargrave's Preface to it. The proper course, according to 
 Sir Matthew Hale, was to present a petition to the King (upon which 
 there should issue a commission to examine the decree and pro- 
 ceedings), or else to obtain an Act of Parliament. 
 
298 CONSTITUTIONAL HISTORY OF 
 
 Ch.xHI. to be obtained elsewhere. It might have been technically 
 incorrect to address a petition, in the nature of an appeal, 
 to the Lords alone, but hardly more incorrect than to 
 address a petition in the first instance to the Chancellor 
 alone. The Chancellor, however, was the Kings Chancellor, 
 and the Parliament was the King's Parliament. It does 
 not appear that the King's prerogative suffered more by 
 a petition to the Lords in Parliament than by a petition to 
 the Chancellor in Chancery. 
 But fully As late as the year 1675, the appellate jurisdiction of the 
 
 since the House of Lords in equity cases was disputed by the House 
 j^S 11 of of Commons 1 , but they did not succeed in wresting it 
 away 2 . The appeal, when established, was recognized as 
 being directly from the decision of the Chancellor to the 
 House of Lords, though decisions by his subordinates could 
 be reheard by himself. It could, after the year 1726, at 
 any rate, be brought upon any interlocutory matter as well 
 as on a final decree, and, when it had been heard, the House 
 of Lords gave direction to the Court of Chancery to rectify 
 its own decision 3 . The appeal thus very closely resembled 
 the earlier applications to the King in his Council in his 
 Parliament during the progress of causes in the Courts of 
 King's Bench and Common Pleas. 
 The Equity The equitable jurisdiction of the Court of Exchequer 
 Exchequer, seems to have arisen in a manner somewhat different from 
 that of the Court of Chancery. It has been maintained that 
 equity had a place in the revenue side of the Exchequer as 
 early as the reign of Edward II. It is the fact that certain 
 proceedings of that period are mentioned as being * of the 
 Equity of the Court V but the mere word ' Equity ' was 
 used at a much earlier period, and is described by Bracton 
 as mitigating the rigour of the law 5 . This, however, does 
 not in any way show that the idea of distinct Courts for the 
 
 1 Journals of the House of Commons > Nov. 19, 1675 (vol. ix. p. 381). 
 
 2 Shower's Cases in Parliament, 81. 3 3 Bl. Com. 55. 
 
 4 Re?ne?nbrance Roll of the Lord Treasurer's Remembrancer, printed 
 in Price's Law of the Exchequer, p. 260, note 1. 
 
 5 Bract. 12 b and 23 b. 
 
THE HOUSE OF LORDS 299 
 
 hearing of causes in equity, as distinguished from common Ch. XIII. 
 law, had come into existence. On the contrary we find 
 common law Judges, as late as the reign of Edward III, 
 hesitating with regard to their judgement when the law 
 seems to be at variance with that which they describe as 
 1 conscience and the law of God V 
 
 The earliest known bills in Equity in the Exchequer are Appeal 
 of the reign of Elizabeth, and there can be but little doubt ^House 
 that they were in imitation of the similar bills in Chancery, of Lords. 
 As the Exchequer had exclusive jurisdiction in revenue 
 matters, the power of the Court of Chancery did not extend 
 to them ; and equitable relief could therefore be obtained 
 only in the Exchequer itself. By a convenient fiction the 
 jurisdiction of the Exchequer in Equity was afterwards 
 extended, as was its jurisdiction in common law, to other 
 subjects, and for a considerable time the Courts of 
 Chancery and Exchequer thus had (except in certain 
 cases which could be heard in one of them alone) a con- 
 current jurisdiction. During this period the only appeal 
 from the Equity side of the Exchequer was to the House 
 of Lords. 
 
 The appeal from the Court of Chancery as a Court of Form of 
 Equity by petition to the House of Lords, being of later fpp 1 ^. 
 origin than the writ of error, was different in form, and 'To the 
 was addressed to ' the Lords Spiritual and Temporal in spiritual 
 Parliament assembled/ The dispute which arose in the *nd 
 reign of Charles II may, perhaps, have been one of the i n Parlia- 
 causes which determined the form of appeal, so that no ment , , , , 
 
 ^ r assembled. 
 
 jurisdiction could be claimed by the Commons. The Equity 
 jurisdiction of the Court of Exchequer was transferred to 
 the Court of Chancery in the year 1841 2 , though the transfer 
 was not held to apply to matters affecting the revenue. 
 
 The Acts of Union with Scotland and Ireland were not Effect of 
 without effect upon the judicial functions of the House of ^th Um0n 
 Lords. It was expressly provided by the Act of Union Scotland. 
 
 1 Year Books, M., 13 Ed. Ill, no. 51 (Rolls Series), p. 96. 
 
 2 Stat. 5 Vict., cap. 5. sec. 1. 
 
300 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIII. with Scotland *, that no causes in Scotland should be cogniz- 
 able by the Courts of Chancery, Queen's Bench, Common 
 Pleas, or any other Court in Westminster Hall. The 
 jurisdiction of the House of Lords as a Court of Appeal 
 was, however, not excluded, and was regulated in relation 
 to Scotland by subsequent Acts. It was fully recognized 
 in 1809, though it was then (with certain exceptions) limited 
 to appeals from judgements or decrees on the whole merits 
 of a case, as distinguished from appeals from interlocutory 
 judgements of the Court of Session 2 . 
 And with In relation to Scotland, which up to the time of the Union 
 was a separate kingdom with different laws from those of 
 England, even when under the same sovereign, it has not 
 seemed necessary to trace the early stages of judicature before 
 the House of Lords of Great Britain acquired an appellate 
 jurisdiction over Scottish causes. In relation to Ireland, 
 however, the House of Lords had stood in a different posi- 
 tion for many centuries. 
 Kings of After the conquest of Ireland by Henry II, and before 
 
 first Lords, Henry VIII assumed the title of King of Ireland, it was 
 afterwards styled only a dominion or lordship. John, afterwards King 
 Ireland. of England, succeeded his father as Lord of Ireland, while 
 his elder brother, Richard, was King of England ; but after 
 the accession of John to the English throne, all the Kings 
 of England, until the time of Henry VIII, were Lords of 
 Ireland. 
 Early During this period a Parliament came into existence, and 
 
 [^Courts developed in Ireland, which was in many respects analogous 
 of Justice to the Parliament of England, but was wanting in some of 
 of Lords in the powers enjoyed by the English Parliament, and in 
 th^r^rt P art i cu ^ ar by the English House of Lords. Theoretically 
 of Justice the English laws prevailed in Ireland, after they had been 
 ofL^rdsTn established by King John, and still more after the native 
 England. Brehon laws had been formally abolished in the reign of 
 Edward III. The Irish Courts of Justice were, at a very 
 early period, in subordination to the English Courts of 
 
 1 Art. 19. 2 Stat. 48 Geo. Ill, cap. 151. sec. 15. 
 
THE HOUSE OF LORDS 301 
 
 Justice, and the Irish House of Lords had not the same Ch. XIII. 
 jurisdiction as the English House of Lords. When error 
 was alleged in the proceedings of the Court of King's Bench 
 in England, the matter was decided by the English Parlia- 
 ment or House of Lords. When error was alleged in 
 proceedings in the Court of King's Bench in Ireland, the 
 matter was decided by the Court of King's Bench in 
 England ] ; and if error was again alleged, the final tribunal 
 was the English and not the Irish Parliament, the English 
 and not the Irish House of Lords. 
 
 On the other hand, Acts of the English Parliament did Restric- 
 not in ordinary cases extend to Ireland, and the Chief thTpower 
 Governor or King's Deputy in Ireland held Irish Parlia- of Irish 
 ments which passed laws of their own. There consequently men t s . 
 occurred some divergence of laws, for a time, until in the 
 tenth year of the reign of Henry VII it was enacted under 
 Sir Edward Poynings, then Chief Governor or King's 
 Deputy, that all Acts of Parliament previously made in 
 England should be in force in Ireland 2 . This law had no 
 effect upon future Acts of Parliament which still remained 
 inapplicable to Ireland, except where Ireland was expressly 
 mentioned, or included in general words such as 'within 
 any of the King's dominions.' By other Statutes, however, 
 passed in Ireland at the same time, the power of the Irish 
 Parliament was greatly restricted. A Parliament could not 
 even be summoned in Ireland until the King had been 
 certified as to the cause, and as to the articles of the 
 proposed Acts. No Acts could be passed until the King 
 in Council in England had approved of them. These 
 provisions were so far relaxed in the reign of Philip and 
 Mary, that new propositions might be certified to the King, 
 after the summons and during the session of Parliament 3 . 
 Even thus, however, the Irish Parliament had practically no 
 
 1 This principle may be detected as early as the reign of Edward I, 
 and was thoroughly recognized in the reign of Edward III. See 
 
 Year Books, 13-14 Ed. Ill (Rolls Series), Introduction, pp. Ixxii-lxxiii. 
 
 2 Irish Stat. 10 Hen. VII, cap. 22. lb., cap. 4. 
 
 3 Irish Stat. 3 & 4 Philip and Mary, cap. 4. 
 
302 
 
 CONSTITUTIONAL HISTORY OF 
 
 tion in 
 Error or 
 Appeals 
 in the 
 reign of 
 George I 
 
 Ch. XIII. independent power of initiating any law, and the power of 
 rejecting was of little use, as the Irish Houses of Parliament 
 could reject only after Irish propositions had been so far 
 modified in England as to be no longer agreeable in Ireland. 
 The effect of this legislation, however, was to remove one 
 cause which might have produced differences between the 
 laws of the two countries. 
 The House The assumption by Henry VIII of the title of King 
 Ireland S ° mst ead of Lord of Ireland, was of no practical importance, 
 declared to except in so far as, Ireland being recognized as a kingdom, 
 jurisdic- i* s Parliament may have acquired some new dignity ; but 
 as^he King of England and Ireland continued to govern in 
 Ireland by a Viceroy, the difference was almost inappreciable. 
 In the reign of George I, it appears that the House of Lords 
 in Ireland had been assuming a power and jurisdiction to 
 examine, correct, and amend the judgements and decrees of 
 the Courts of Justice in the kingdom of Ireland. A declar- 
 atory Act was therefore passed in the Parliament of Great 
 Britain, ' for the better securing the dependency of the 
 Kingdom of Ireland, upon the Crown of Great Britain.' It 
 was therein declared that the kingdom of Ireland had been, 
 was, and of right ought to be subordinate to and dependent 
 upon the Imperial Crown of Great Britain, as being in- 
 separably united and annexed thereunto, and that the 
 Parliament of Great Britain had full power and authority 
 to make laws and statutes of sufficient force and validity, to 
 bind the kingdom and people of Ireland. It was further 
 declared and enacted that the House of Lords of Ireland 
 had not, nor of right ought to have, any jurisdiction to judge 
 of, affirm, or reverse any judgement, sentence, or decree 
 given or made in any Court in Ireland, and that all pro- 
 ceedings before the Irish House of Lords upon any such 
 judgement, sentence, or decree were null and void 1 . 
 
 This Statute while expounding, did not in any way alter 
 the relation of the Irish Courts to England, which remained 
 as it had been for ages. At most the Statute brought 
 
 The appel- 
 late juris- 
 diction 
 over Irish 
 
 takerffrom m ^° greater prominence the fact that an appeal lay from 
 
 1 Stat. 6 Geo. I, cap. 5. 
 
THE HOUSE OF LORDS 3°3 
 
 the Chancery of Ireland, not to the Irish House of Lords, but Ch. XIII. 
 to the House of Lords of Great Britain. A very important the House 
 change, however, was effected in the reign of George the ° f Lords of 
 Third, only seventeen years before the Union. The Act of Britain in 
 George the First was repealed 1 , but as it was in fact only J/^^gjj 
 declaratory, the repeal had practically little or no effect, to Ireland. 
 A subsequent Act, however, was passed which placed the 
 Irish Courts and the Irish Parliament in an entirely new 
 position. It was enacted that 'the right claimed by the 
 people of Ireland to be bound only by laws enacted by his 
 Majesty and the Parliament of that kingdom in all cases 
 whatever, and to have all actions and suits at law or in 
 equity, which may be instituted in that kingdom, decided 
 in his Majesty's Courts therein finally, and without appeal 
 from thence, shall be, and it is hereby declared to be, 
 established and ascertained for ever, and shall at no time 
 hereafter be questioned or questionable.' No writ of error 
 or appeal in any action instituted in any of the Irish Courts 
 was to be received in any of the English Courts 2 . 
 
 The effect of this very remarkable Act was, to place the 
 kingdom of Ireland in a position as independent as that 
 enjoyed by the kingdom of Scotland, between the accession 
 of James I and the Act of Union with Scotland in 1707. 
 There was a difference in that the laws of Scotland were 
 different from those of England, while those of Ireland were 
 the same, but in each case the administration was inde- 
 pendent, and subject only to the same Crown. 
 
 With the Union came another change of policy. It was, But 
 indeed, enacted that all laws in force at the time, and all !"f st °Z ed to 
 
 ' tne House 
 
 Courts of civil and ecclesiastical jurisdiction within the of Lords 
 respective kingdoms were to remain, though subject to United 
 alteration by the United Parliament. It was, however, at the Kingdom 
 
 . , , , ....... . ' by the Act 
 
 same time provided that the jurisdiction over writs of error of Union. 
 and appeals, which had been given to the Irish House of 
 Lords seventeen years before, should be transferred to the 
 House of Lords of the United Kingdom 3 . Such is the 
 
 1 Stat. 22 Geo. Ill, cap. 53. 2 Stat. 23 Geo. Ill, cap. 28. 
 
 3 Stat. 39 & 40 Geo. Ill, cap. 67. sec. 1. art. 8. 
 
304 CONSTITUTIONAL HISTORY OF 
 
 Ch. xiii. early history of the jurisdiction over Irish causes on ap- 
 peal, which, as will appear below, the House of Lords 
 still retains. 
 Wide range The House of Lords has had also analogous jurisdiction 
 Lo^g* elsewhere, as, for instance, in appeals from the Chancery of 
 jurisdiction t h e Duchy of Lancaster. It has thus had authority to 
 
 in Error . J 
 
 and on affirm or reverse judgement or decree in all the principal 
 Appeal. Courts of Common Law and Equity in the realm, and 
 authority, through the King's Bench, which had a wide 
 jurisdiction in error, over various other Courts. The many 
 changes in legal procedure which have been brought to pass 
 in later years, though they have had far-reaching effects on 
 the Courts below, have still left the House of Lords, 
 nominally at least, the Supreme Court of Appeal, the Court 
 which gives the final decision, except in cases which are 
 within the jurisdiction of the Judicial Committee of the 
 Privy Council. 
 Threatened In 1 873, however, there was a threatened interruption in 
 jurisdiction tne functions of the House of Lords. By the Supreme 
 imSrs: Court of Judicature Act of that year, a Supreme Court 
 Counof was brought into existence, which included and united 
 Judicature various jurisdictions previously distinct. It had two divisions. 
 One, called the ' High Court of Justice,' comprised the 
 former jurisdictions of the ancient Courts of Chancery, 
 Queen's Bench, Common Pleas at Westminster, Ex- 
 chequer, Admiralty, Probate and Divorce, of the London 
 Court of Bankruptcy, of the Court of Common Pleas at 
 Lancaster, of the Court of Pleas at Durham, and of the 
 Courts of Assise, Oyer and Terminer, and Gaol Delivery. 
 The other was a Court of Appeal, which could determine 
 appeals from the High Court of Justice, and which also 
 absorbed the appellate jurisdiction of the Lord Chancellor, 
 of the Court of Appeal in Chancery, of the Chancellor of the 
 Duchy of Lancaster, of the Lord Warden of the Stannaries, 
 of the Exchequer Chamber, and, to some extent, of the 
 Privy Council. No error or appeal was after the commence- 
 ment of the Act to be brought from the High Court of 
 Justice or the Court of xAppeal, or the Court of the Chancery 
 
THE HOUSE OF LORDS 3°5 
 
 of the County Palatine of Lancaster, either to the House of Ch. XIII. 
 Lords, or to the Judicial Committee of the Privy Council 1 . Theopera . 
 
 The effect of this Act would have been to abolish the tionofthe 
 appellate jurisdiction of the House of Lords in relation to deferred, 
 all Courts in England. It was to have come into effect on 
 November 2, 1874 2 . In the meantime, however, there was 
 an opportunity for further reflection, and by the Supreme 
 Court of Judicature (Commencement) Act. 1874, the oper- 
 ation of the previous Act was deferred until November 1 
 in the following year. In 1875 another Supreme Court 
 of Judicature Act was passed, by which the Act of 1873 
 was amended in various points, and in which the opera- 
 tion of the section relating to the House of Lords was 
 again postponed until November 1, 1876 3 . Jurisdiction 
 was given to the House of Lords, up to that date, to hear 
 appeals from the new Court of Appeal, not only in cases in 
 which appeal or error might previously have been brought 
 before the House, but also in cases in which the jurisdiction 
 of the Privy Council had been, in 1873, transferred to the 
 new Court of Appeal. 
 
 Before the appointed November 1, 1876, when the House The 
 of Lords was to have lost its ancient character as a Court ^^J * 1011 
 of Appeal, another Act was passed, to take effect on the saved by 
 same day 4 , and practically to maintain the House of Lords Act. 
 in its former position. Under the Appellate Jurisdiction 
 Act, 1876, an appeal was made to lie to the House of 
 Lords from the Court of Appeal in England, and from 
 any Court in Scotland or Ireland, from which error or 
 appeal to the House of Lords previously lay by common 
 law or statute 5 . 
 
 It was at the same time enacted that every appeal should A new 
 be brought by way of petition to the House of Lords, Appeal: 
 praying that the matter of the order or judgement might a happy 
 
 adaptation. 
 
 1 Supreme Court of Judicature Act, 1873, sees. 3, 4, 16, 18-21. 
 
 2 7b., sec. 2. 3 Supreme Court of Judicature Act, 1875, sec. 2. 
 
 4 Appellate Jurisdiction Act, 1876, sec. 2. 
 
 5 lb., sec. 3. And see Supreme Court of Judicature Act (Ireland), 
 1877, sees. 65, 86. 
 
 X 
 
306 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIII. be reviewed ' before Her Majesty the Queen in her Court 
 of Parliament,' in order that the Court might 'determine 
 what of right and according to the law and custom of this 
 realm ought to be done V This was a happy combination 
 of the old petition of appeal with the older writ of error. 
 The petition to the House of Lords was adopted from the 
 petition of appeal from the High Court of Chancery to the 
 House of Lords ; the other formal words were from the 
 writ of error in use when the House of Lords received it 
 from the Courts of King's Bench or Exchequer Chamber. 
 Provisions Provisions were at the same time made to prevent delays 
 
 for sittings ., ,.. . /-•• i t^i- 
 
 during pro- in the administration of justice, when Parliament was not 
 
 or^sso- s i ttm g- During prorogation the House of Lords could 
 
 lution. thenceforward hear appeals in the manner appointed by 
 
 the House during the preceding session, and ' Lords of 
 
 Appeal in Ordinary,' of whom more is said in another 
 
 chapter 2 , might also take their seats and oaths 3 . When 
 
 a Parliament was dissolved, Her Majesty might, by writing 
 
 under her sign manual, authorize the ' Lords of Appeal,' in 
 
 the name of the House of Lords, to exercise the jurisdiction 
 
 of the House of Lords, in relation to appeals, as if their 
 
 sittings were a continuation of sittings of the House of 
 
 Lords 4 . 
 
 Provisions In Blackstone's time it was said that the law reposed 
 
 'Lords ' an en tire confidence in the honour and conscience of the 
 
 of Appeal.' noble persons who compose this important assembly, that 
 
 they will make themselves masters of those questions upon 
 
 which they undertake to decide, since upon their decision 
 
 all property must finally depend 5 .' This unquestioning 
 
 faith is not so fully apparent in the Appellate Jurisdiction 
 
 Act of 1876. According to its provisions no appeal can be 
 
 heard and determined in the House of Lords, except in the 
 
 presence of three at least of the following persons, all of 
 
 whom bear the general name of Lords of Appeal : — the 
 
 Lord Chancellor of Great Britain, for the time being, Peers 
 
 1 Appellate Jurisdiction Act, 1876, sec. 4. 
 
 2 See below, pp. 382-384. 3 Sec. 8. 4 Sec. 9. 
 5 3 Com. 56-57. 
 
THE HOUSE OF LORDS 307 
 
 who have previously held his office, Peers who hold or have Ch. XIII. 
 previously held the office of Lord Chancellor of Ireland, 
 of paid Judge of the Judicial Committee of the Privy 
 Council, or Judge of one of Her Majesty's Superior Courts 
 of Great Britain or Ireland, and ' the Lords of Appeal in 
 Ordinary.' 
 
 The ' Lords of Appeal in Ordinary ' were called into 
 existence for the first time in virtue of the Act of 1876. 
 They were required to possess the qualification of having 
 held for two years one of the high judicial offices which gave 
 a qualification to ' Lords of Appeal,' or of having been 
 a practising barrister in England or Ireland, or a practising 
 advocate in Scotland, for not less than fifteen years l . 
 Though, however, a new safeguard was provided for the 
 administration of justice by qualified persons, the ancient 
 jurisdiction of the House was, in theory at any rate, left 
 unimpaired. The effect may, no doubt, have been to throw 
 the judicial business more than ever into the hands of the 
 1 Law Lords ; ' but, except during a dissolution of Parlia- 
 ment, there was nothing in the Act to exclude any mem- 
 bers of the House of Lords from the Court of final appeal. 
 Eleven years later this Act was somewhat modified 2 , but 
 the changes then introduced did not deprive the House of 
 Lords, as a whole, of its inherent judicial power. 
 
 The descent of the ancient jurisdiction of the King in his The House 
 Council in Parliament has now been traced, save with not the S 
 regard to one curious exception, which is a remarkable only final 
 instance of the exception proving the rule. When the Appeal: 
 Council separated from the Parliament, the Parliament, or J url ^ dl <^ on 
 in other words, the House of Lords, retained almost the Council, 
 whole of the supreme jurisdiction, but not quite. There 
 was a Council before there was, in name at any rate, 
 a Parliament, and William of Normandy had a Council of 
 his own before he became the Conqueror of England, or 
 had any familiarity with judicial power in England. Jersey 
 and the other Channel Islands were part of the Duchy of 
 
 1 Appellate Jurisdiction Act, 1876, sec. 6. 
 
 2 Appellate Jurisdiction Act, 1887, sec. 2. 
 
 X 2 
 
308 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIII. Normandy, and retained their ancient judicial procedure 
 after they became united to the English Crown. As the 
 power of the English Parliament grew, they were not bound 
 by its ordinary Acts, nor did any writ of error lie from the 
 Islands to Parliament. An appeal lay, however, to the 
 King and his Council, not apparently to the King of 
 England as King, but to the successor of the Dukes of 
 Normandy and his Court, or Council. 
 
 When Ireland was conquered, the English laws were 
 imposed, and consequently the precedent of the Channel 
 Islands did not apply to judicial proceedings. The Isle of 
 Man, however, which retained laws of its own, had an 
 appeal from a decree of the Lord of the island to the King 
 in Council. Moreover when any one 'claims an island or 
 a province in the nature of a feudal principality, by grant 
 from the King or his ancestors, the determination of 
 that right belongs to His Majesty in Council.' From all 
 the dominions of the crown, excepting Great Britain and 
 Ireland, an appellate jurisdiction (in the last resort) is vested 
 in the same tribunal 1 . Although the circumstances are 
 not the same, the analogy of the Channel Islands would 
 appear to have gained this jurisdiction for the Privy Council 
 and not for the House of Lords. A similar reason may 
 also, perhaps, be assigned for the jurisdiction of the Privy 
 Council in relation to idiots and lunatics. Under feudal 
 institutions, the custody of an idiot belonged to the lord of 
 the fee, and in early times probably there was no very clear 
 distinction drawn between a lunatic and an idiot. In the 
 reign of Edward II, it was made a part of the King's 
 prerogative to have the custody of the lands of born idiots, 
 and to keep the lands of lunatics for their own use when 
 restored to reason 2 . The King's power, however, was still 
 of feudal origin, and an appeal from an order of the Chan- 
 cellor, in relation to idiots and lunatics, went, perhaps, 
 naturally to the King in Council, and not to the Parliament, 
 when the Parliament was separated from the Council. In 
 
 1 i Com. 231. 
 
 2 Stat. Praerogativa Regis, 17 Ed. II, stat. 1. caps. 9, 10. 
 
THE HOUSE OF LORDS 309 
 
 appeals from the High Court of Admiralty, which was not Ch. XIII. 
 a common law or equity Court, the Privy Council has 
 also had jurisdiction, as well as in appeals from ecclesiastical 
 Courts. Various changes have been effected from time to 
 time, but it is needless for the purposes of this history to 
 trace them in detail. It seems only necessary to mention 
 that some portion of the jurisdiction (as, for example, in 
 Admiralty and Lunacy appeals), has been indirectly trans- 
 ferred to the House of Lords through the ' Court of Appeal ' 
 in England, and the similar ' Court of Appeal ' in Ireland 1 . 
 
 1 Supreme Court of Judicature Act, 1873, sec - J 8 (5) ; Supreme 
 Court of Judicature Act (Ireland), 1877, sec. 86. 
 
CHAPTER XIV. 
 
 Legislative Power. 
 
 The 
 
 legislative 
 power 
 before 
 Commons 
 were 
 
 summoned 
 to Parlia- 
 ment. 
 
 The early 
 Charters 
 subsequent 
 to the 
 Conquest. 
 
 THE legislative functions of the House of Lords have 
 undergone many changes since the days of the Curia 
 Regis. Before representatives of the Commons were sum- 
 moned to Parliament (and they were not summoned before 
 the time of Simon de Montfort's assembly in the forty-ninth 
 year of Henry III), it is clear that new laws could be brought 
 into being and that existing laws could be modified only 
 by the sovereign and by those persons whom he called 
 to advise him. The burgesses may have sent to the 
 Exchequer representatives with power to make the best 
 bargain they could with regard to the money which they 
 were to contribute to the necessities of the State 1 ; and in 
 this primitive practice may, perhaps, be discerned the germ 
 of that which subsequently developed into the House of 
 Commons. The burgesses, however, had not the slightest 
 power to alter the laws of the land, and their early aspira- 
 tions appear to have been limited to two principal objects, 
 — one to escape with as light a burden as possible, the 
 other to obtain a new charter, or a confirmation of a real or 
 imaginary old charter for their borough. 
 
 The idea that laws are in continual need of change was 
 not familiar to our ancestors either immediately before or 
 immediately after the Conquest. The King wore his 
 crown and held his Court at stated seasons, and summoned 
 Bishops, Abbots, and Magnates of the land to advise him 
 in times of great emergency. On his accession he com- 
 
 1 See below, p. 337. 
 
THE HOUSE OF LORDS 311 
 
 monly granted a charter, or confirmed charters made by Ch. XIV. 
 
 his predecessors ; and he sometimes agreed to a new charter 
 
 (as King John agreed to Magna Charta) under pressure of 
 
 circumstances. On all these occasions he was surrounded 
 
 by the ecclesiastical and lay dignitaries of the land, some 
 
 of whose names appear as witnesses to the charters which 
 
 were granted. The documents very rarely purported to be 
 
 for the establishment of any absolutely new law. The 
 
 Conqueror and his followers brought from France some 
 
 laws and ideas of law which were new to the English ; and 
 
 some of the laws existing in England were new to the 
 
 Conqueror and his followers. When a charter of laws or 
 
 liberties was granted, it was usually, for some time after 
 
 the Conquest, supposed to be in recognition or declaration 
 
 of some laws and liberties which actually were or had been 
 
 in existence. Henry I, for instance, professed to restore the 
 
 laws of Edward the Confessor, with such amendments as 
 
 his father the Conqueror had introduced by advice of the 
 
 Barons l . Stephen confirmed all the liberties and good 
 
 laws which Henry I had granted, and all the good laws 
 
 and customs in existence in the time of Edward the 
 
 Confessor 2 . Henry II in like manner confirmed all the 
 
 customs which Henry I had given and granted 3 . 
 
 In all these cases the charter of confirmation which The King, 
 establishes the law is, according to its words, an act of ^ lates ' 
 royal grace, not necessarily made by the advice of any Proceres 
 kind of Council. These charters were, however, made th^Consti- 
 chiefly in the interest of the Church and the Barons, and tutions of 
 were probably the result of some kind of deliberation — the in the 
 embodiment of a treaty between ' the King upon his ^ lgn oi u 
 accession and his principal subjects. When we come to 
 the famous Constitutions of Clarendon in 11 64 we find that 
 
 1 Charter printed from the Textus Roffensis, and the Red Book of 
 the Exchequer, in the Statutes of the Realm, vol. i. p. 1, and in Black- 
 stone's Tracts (1771), p. 286, n. 
 
 2 Charter printed from Claud. D 2. fo. 75. in the Statutes of the 
 Realm, vol. i. p. 4, and by Blackstone (Tracts, p. 287 n.). 
 
 3 Charter printed from Claud. D 2. fo. 79, in the Statutes of the 
 Realm, vol. i. p. 4, as well as by Blackstone (Tracts, p. 288 n.). 
 
312 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. 
 
 The 
 
 legislative 
 power 
 in the 
 King and 
 baronage. 
 
 Magna 
 Charta, 
 and its 
 confirma- 
 tions. 
 
 King Henry II was himself present, and that there were 
 present also Archbishops, Bishops, Abbots, Priors, Earls, 
 Barons, and ' Proceres ' of the Realm. The establishing of 
 the laws then made is described (even by an ecclesiastic 
 who thought them iniquitous and hateful to God) as the 
 acknowledgement and act of placing on record of a certain 
 part of the customs and liberties recognized by Henry I 
 and others l . 
 
 Such legislative power as existed then existed in the 
 King and his baronage, under which term were included at 
 that time the Bishops, Abbots, and Earls, as well as others 
 holding lands of the King, in chief, as of his crown. It was 
 indeed expressly laid down in the eleventh chapter of the 
 Constitutions of Clarendon that Archbishops, Bishops, and 
 all persons holding of the King in capite were to hold their 
 possessions as a barony and perform suit and all customs 
 due to the King ; and the Archbishops and Bishops were 
 to be present, like the rest of the Barons and together with 
 them, at the judgements of the King's Court, before 
 sentence of death or loss of member. They were thus all 
 liable to suit of Court — suit to that Court which was after- 
 wards known as the High Court of Parliament. 
 
 Even the Great Charter of King John, which was, to all 
 intents and purposes, a treaty between him and his rebellious 
 Barons, purports to be made by the advice of the Arch- 
 bishops of Canterbury and Dublin, the Bishops of London, 
 Winchester, Bath and Glastonbury, Lincoln, Worcester, 
 Coventry, and Rochester, the Earls of Pembroke, Salisbury, 
 Warren, and Arundel, twelve other nobles who are named, 
 and others his lieges (fidelium) 2 . The confirmation of 
 Magna Charta by Henry III on his accession (differing 
 materially from the original Magna Charta of King John) 
 was also by advice of Bishops, Earls, and other lieges, as 
 
 1 Roger de Wendover (Rolls Series), i. pp. 26-30. 
 
 2 John's Magna Charta, as printed from the MS. in the Archives of 
 Lincoln Cathedral (collated with the Cotton MSS. and with the Red 
 Book of the Exchequer) in the Statutes of the Realm, vol. i. p. 9. See 
 also Blackstone's Tracts, p. xi. 
 
THE HOUSE OF LORDS 313 
 
 well as of the Papal Legate l , according to the earliest form Ch. XIV. 
 of the confirmation itself. It appears by a document of 
 equal authority that a Council assembled at Bristol, at 
 which were present * all the Prelates of England, as well 
 Bishops and Abbots as Priors, and many Earls and Barons.' 
 They demanded the liberties and free customs which were 
 granted to them by the King ; they thereupon with one 
 accord did fealty, and then gladly returned home 2 . The 
 subsequent confirmation of the Charter by Henry III, in 
 the ninth year of his reign, purports to be a spontaneous 
 grant by him, but it is attested by the Archbishop of 
 Canterbury and ten Bishops, by eighteen Abbots, by the 
 Chief Justiciary, by ten Earls, by the Constable of Chester, 
 and by twenty-two others who must be ranked among the 
 Barons \ 
 
 This confirmation, like the Charter of King John, par- 
 takes of the nature of a treaty, or bargain, but as Henry III 
 was still a minor, and as a large number of the chief 
 personages in the realm were made witnesses, it can hardly 
 be said that the bargain was made by the King, as an 
 absolute sovereign, without advice. Another confirmation 
 was granted after he had attained full age in the twenty- 
 first year of his reign. It does not purport to be spon- 
 taneous like the confirmation of the ninth year, though 
 both are said to have been prompted by God. It is 
 attested by the Archbishop of Canterbury, by twelve 
 Bishops, and two Bishops elect, by eight Earls, by eighteen 
 Barons, ' and others.' 
 
 When yet another confirmation was granted after civil The confir- 
 
 war, in the forty-ninth year of the reign, there was a clause ^Henry 
 
 that all former ordinances and articles provided by the m recog- 
 nizes a 
 
 1 Printed from the Charter in the Archives of Durham Cathedral, 
 collated with the Red Book of the Exchequer at Dublin, in the Statutes 
 of the Realm, vol. i. p. 14, and in Blackstone's Tracts, pp. xxvi-xxvii. 
 
 2 Rot. Lit. Claus., 1 Hen. Ill, m. 14 d, and m. 25 d (printed in 
 Blackstone's Tracts, pp. 308-309, note q). 
 
 3 Magna Charta, 9 Hen. Ill, cap. 37. As to the consideration for 
 this Charter and the Forest Charter, in the shape of a jubsidy, see 
 below, pp. 337-339- ^x^gtSE LlBR^p> 
 
 (XTNIVERSITY 
 
314 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. King and his Council, which might conduce to the honour 
 previous of God and the Church, and the welfare of the realm, 
 legislation should be inviolably observed 1 . From this it is apparent 
 K ,the h tnat a ^g^^ive power was recognized as having previously 
 hisCouncil. been in the King and ■ his Council,' however that Council 
 
 may have been constituted. 
 This con- This last confirmation of charters to which Henry III 
 made assented is remarkable as having been executed at a time 
 
 with the when he was in the power of Simon de Montfort, Earl of 
 
 assent T . ; . .... . 
 
 of the Leicester, and in the year in which are mentioned the first 
 
 Commons. k nown wr its for summoning the Commons — Burgesses as 
 well as Knights — to a national assembly. It commences 
 by stating how agreement and provision had been made, 
 by the unanimous consent and will of the King, of his eldest 
 son Edward, and of the Prelates, Earls, Barons, and Com- 
 munity of the Realm, that a certain ordinance should be 
 observed. The ordinance had previously been made with 
 the unanimous consent of the King, the Prelates, Earls, and 
 Barons, but not of the Commons. In the passage in which 
 the actual confirmation occurs the Commons again appear : 
 — ; With the unanimous consent and will of our son Edward, 
 of the Prelates, Earls, Barons, and Community of our Realm, 
 it is by agreement provided that the ancient Charters of 
 Common Liberties and of the Forest heretofore granted 
 by us to the Community of our Realm . . . shall be inviolably 
 observed for ever 2 .' 
 But hardly The difference between the provisions made in the 
 ofthe ent f o rt y- nin th year of Henry III, with the consent of the 
 Commons Comimmitas, and those previously made without, is very 
 distinct sharply marked in this document. It cannot, however, 
 estate of even here be said that the Commons appear as an estate of 
 the realm. They are rather included with the Lords 
 Spiritual and Temporal under the one word Communitas. 
 
 1 Rot. Chart., 49 Hen. Ill, m. 4, collated with Cotton. Claud. D. 2. 
 fo. 137, and with a MS. in Corpus Christi College, Cambridge, and 
 printed in the Statutes of the Realm, vol. i. p. 31, and in Blackstone's 
 Tracts, pp. lxix-lxxii. 
 
 2 lb. 
 
I 
 
 (tXNIVERsiTTJ 
 
 THE HOUSE OF T.oren?^< ^FORNlA^ ^ 3I5 
 
 The previous Charters and Confirmations are said in the Ch. xiv. 
 same document to have been granted ' to the Community,' 
 and they were certainly more for the benefit of the Church 
 and the Temporal Lords than of the Commons. Having 
 regard, however, to the writs which issued in the same year 
 for the summons of Knights of the Shires and Burgesses, 
 we can hardly fail to recognize a new factor in the law- 
 making of England. The confirmation was certainly con- 
 sidered to be more solemn because made with the assent 
 of the whole community, whereas previous legislation had 
 been with the advice or assent of a Council consisting of 
 persons who were in later times called Lords Spiritual and 
 Temporal with a few officials. 
 
 There are, it is true, a few earlier indications that ' the The 
 people ' (populus) were present on some great occasions, as, ^°h ma 
 for instance, when the sovereign upon accession was have been 
 anointed and crowned. In the absence, however, of any- earlier 
 thing like a representative system, the populace could have assemblies, 
 been but little more than the populace of the particular represen- 
 town or city in which the event occurred. If the Kin? was tahve , 
 
 J & character. 
 
 crowned, or wore his crown, at Westminster, a Westminster 
 or a London mob may have shouted. If he wore his crown 
 at Winchester, or York, the shouters would have been from 
 Winchester and its neighbourhood, or York and its neigh- 
 bourhood, and could not have had the slightest pretensions 
 to speak in the name of the Commons of England. Travelling 
 was extremely difficult, and the difficulty had two effects. 
 It prevented all but persons of wealth from undertaking 
 long journeys, and it preserved local modes of thought and 
 local prejudices in all their narrowness. A national feeling 
 was hardly possible except among the travelled Lords ol 
 the Council, or Curia Regis, until the principle of repre- 
 sentation had been gradually developed. 
 
 It was long, however, before the word ' Parliament ' was The word 
 used exclusively in the sense in which it is now used in menV^not 
 England, and there are some laws earlier and some later originally 
 than the Confirmation of Charters of the 49th of Henry modem 
 III, which have found their way into the Statute Book, sense: 
 
3i6 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. 
 
 the « Pro- 
 visions of 
 Merton. ' 
 
 The 
 
 Statute of 
 Westmin- 
 ster the 
 First : the 
 initiative 
 with King 
 and Coun- 
 cil, the 
 Magnates 
 and Com- 
 monalty 
 assenting. 
 
 The 
 
 Statute De 
 Bigamis : 
 the King's 
 Council 
 and the 
 Council of 
 the Realm. 
 
 and which yet do not in any manner depend upon the desire, 
 authority, or consent of the Commons. The Provisions of 
 Merton 1 were made in the King's Court, in the presence of 
 the Archbishop of Canterbury and Bishops and the greater 
 part of the Earls and Barons. During the reign of Henry 
 III, indeed, it is not clear that any law, except the Confir- 
 mation of Charters, had the assent of the Commons. The 
 Statute of Marlborough 2 was enacted by 'the more discern- 
 ing persons of the realm, as well greater as lesser,' and the 
 Commons may have been included among the lesser, though 
 there is nothing to show that they were elected repre- 
 sentatives. 
 
 At the beginning of the reign of Edward I the famous 
 Statute of Westminster the First 3 was enacted. Its 
 provisions are, in the general heading, described as ' estab- 
 lissementz ' of the King, by his Council, and with the assent 
 of the Archbishops, Bishops, Abbots, Priors, Earls, Barons, 
 and the Commonalty of the Realm, summoned to West- 
 minster, though the writs for summoning the Commons are 
 no longer extant. The initiative and the final assent were 
 thus with the King and his Council. The word Council, 
 however, is here used not in the sense of the whole Curia 
 Regis, or Common Council of the Realm, but with the 
 limited signification of an inner Council, which must, in this 
 case, have consisted principally of Judges, because almost 
 all the enactments are of a very technical and legal 
 character. 
 
 The provisions of the so-called Statute De Bigamis were 
 first recited in the presence of some of the Bishops and 
 others of the ■ Council of the Realm,' which is here again 
 clearly distinguished from the King's Council. The Com- 
 mon Council of the Realm is the old Curia Regis, the 
 later House of Lords. The King's Council (without the 
 word Common) is a Council within a Council possessing 
 technical knowledge. This latter body, ' all of the King's 
 
 Stat. 20 Hen. III. 
 
 2 52 Hen. Ill (Stat. Marlb.), heading. 
 
 3 3 Ed. I. 
 
I 
 
 THE HOUSE OF LORDS 317 
 
 Council, as well Justices as others,' agreed that the pro- Ch. XIV. 
 posed law should be reduced to writing and firmly observed 1 . 
 It was thus first introduced, verbally perhaps, to as many 
 of the Common Council of the Realm as happened to be 
 present, and having received their consent, was drawn up 
 in due form by the King's inner Council with his consent. 
 
 The Statutes of Gloucester 2 were enacted, after summons Other 
 of the more discerning persons of the realm, as well greater statutes of 
 as lesser, in the same manner as the Statute of Marlborough, the reign of 
 The Statute of Mortmain 3 had no authority but that enacted 
 of the King acting with the advice of his Prelates, Earls, wlthout 
 
 00 any express 
 
 and other lieges of the realm, who were of his Council, mention 
 The Statute of Acton Burnel, or Statute of Merchants 4 was commons 
 1 ordained and established ' by the King and his Council. 
 The famous Statute of Westminster the Second 5 was given 
 forth by the King in his Parliament, but without any 
 mention of the Estates of the Realm. The Statute of 
 Winchester 6 (for all that appears) was made on the sole 
 authority of the King, though it must be assumed that he 
 did not act without any of his Council. The Statute of 
 Westminster the Third 7 and the Statute regarding Male- 
 factors in Parks 8 , though made ' in Parliament,' were made 
 by the King at the instance of the Magnates or Peers, and 
 there is nothing to show that the Commons assented. 
 Other Acts of the reign of Edward I y came into being in 
 the King's full Parliament and by means of his Common 
 Council ; but as the use of the term Parliament was still 
 vague, and there was a Common Council of the Realm before 
 there were any representatives of the Commons, it is not 
 certain that the Commons had any voice in these enactments. 
 
 Among the many Confirmations of the Great Charter and The 
 of the Charter of the Forest one was made in the twenty- n^^the 5 
 eighth year of Edward 1 10 , with provisions to enforce the Lords often 
 observance of them. This was done at the request of the legislation 
 
 1 4 Ed. I, stat. 3. 2 6Ed. I. 3 7 Ed. I, stat. 2. 4 11 Ed. I. 
 
 • 13 Ed. I, stat. 1. 6 13 Ed. I, stat. 2. 7 13 Ed. I, stat. 1. 
 
 I 21 Ed. I, stat 2. 9 20 Ed. I, stat. 2, 3. 10 Articuli super Chartas, 
 28 Ed. I, stat. 3. 
 
3i8 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. 
 
 in the 
 reign of 
 Edward I. 
 
 Lords and 
 Commons 
 in the 
 reign of 
 Edward II. 
 
 Prelates, Earls, and Barons in the King's Parliament, 
 without any mention of the Commons. The Statute of 
 Lincoln, relating to Escheators 1 , was agreed to by the 
 King's Council in the presence of the King, who himself 
 consented, at a Parliament. The provisions of the Statute 
 of Champarty 2 were made by common accord or agree- 
 ment, but it is not certain how far that expression should 
 be understood to extend. The Statute called De Apportis 
 Religiosorum 3 . however, was enacted by the advice of Earls, 
 Barons, ' Magnates ' ' Proceres^ and other Nobles and the 
 Commonalty of the Realm. Apart from the grant of 
 supplies, there is thus at first hardly a trace of legislative 
 power in the Commons, and absolutely no trace of any 
 initiative power of legislation. Initiation, however, did fre- 
 quently proceed from the Lords, and from the King's Council. 
 In the reign of Edward II the Commons acquired a 
 somewhat better recognized position. He renewed and 
 confirmed certain articles of the Articuli super chartas not 
 merely at the request of the Prelates, Earls, and Barons, as 
 in the twenty-eighth year of his father's reign, but at the 
 request of his good people 4 of his realm, and he made 
 further provisions also at the request of his good people. 
 The expression 'good people' could hardly have been 
 limited to the Prelates and lay Lords, but must have 
 included the Commons with them. In the seventh year of 
 his reign two enactments were made by him, and by the 
 Archbishops, Bishops, Abbots, Priors, Earls, and Barons, 
 and all the Commonalty of the realm assembled by his 
 command 5 . Legislation, however, in matters chiefly affect- 
 ing any particular orders in the State seems to have remained 
 still in the hands of the King and Council in Parliament, 
 though the petition might come from the particular order 
 to be affected. Thus the Articles of the Clergy were 
 set forth by the Prelates and Clergy. The King's proposed 
 answers were recited before the King's Council in his 
 
 1 29 Ed. I. 2 33 Ed. I, stat. 3. 
 
 4 Ses bones gentz, stat. 2 Ed. II. 
 
 * 35 Ed. I, stat. 1. 
 5 7 Ed. II, stat. 1, 2. 
 
THE HOUSE OF LORDS 319 
 
 Parliament (a body not including the Commons), and, Ch. XIV. 
 
 after correction, the final answers issued by authority of 
 
 the same Council l . Even in a matter of such national 
 
 importance as the regulations concerning the Sheriffs 
 
 throughout the realm, the representatives of the Commons 
 
 in Parliament had no assenting voice in the ninth year 
 
 of the reign, though one of the reasons for the enactment 
 
 was the grievous complaint of the people. The Prelates, 
 
 Earls, Barons, and other Magnates 2 are alone mentioned 
 
 as having, with the King, assented to the provisions made 3 . 
 
 The Commons were nevertheless steadily gaining ground. 
 
 The Statute of York was made with the assent of the 
 
 Prelates, Earls, Barons, and the Commonalty of the Realm 
 
 there assembled in the twelfth year of the reign 4 , and in 
 
 the fourteenth year another law relating to Sheriffs was 
 
 passed with the assent of the Prelates, Earls, Barons, and 
 
 all the Commonalty of the Realm, as well as on the complaint 
 
 of the Commonalty of the Realm 5 . 
 
 The first year of the reign of Edward III shows the The 
 
 Commons taking the initiative in matters in which during Council™* 
 
 previous reigns it was taken by the so-called Lords had lost 
 
 Spiritual and Temporal or by the Council. It was at c i us iv e 
 
 their request, and not, as in the twenty-eighth year of power of 
 
 Edward I, at the request of the Prelates, Earls, and Barons, in the 
 
 that the Great Charter and the Charter of the Forest were £rl gn °[ 
 
 Edward 
 
 confirmed 6 . III. 
 
 The mode of procedure was, however, very different from At first the 
 that by Bill in a modern Parliament, for the Commons j^S^ s 
 went very humbly to work. They presented a petition only by 
 to" the King in his Council in his Parliament, and it was pe 
 granted with the assent of the Prelates, Earls, Barons, 
 and other Magnates. The actual power of legislating 
 might thus seem by the turn of a phrase to be again 
 
 1 Articuli Cleri, Stat. Line, 9 Ed. II, stat. I. 
 
 2 The original French word is Grantz—a. term inapplicable to the 
 Commons. 
 
 3 Stat. Line, 9 Ed. II, stat. 2. 4 12 Ed. II, stat. 1. 
 6 Stat. 14 Ed. II. 6 1 Ed. Ill, stat. 2. 
 
320 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. associated with the King and the Lords alone. The assent 
 of the Commons, as appears in a subsequent reign, was not 
 always held to be identical with their petition. In the 
 very next year the Statute of Northampton was made 
 with the assent of the Prelates, Earls, Barons, and other 
 Magnates, and all the Commonalty of the Realm summoned 
 to Parliament. For some time afterwards it was usually 
 recited, in the general heading to the Statutes of a Parlia- 
 ment, that their provisions were made at the request of 
 the Commons with the assent of the Prelates, Earls, and 
 Barons, or when the Commons did not take the initiative, 
 with the assent of the Prelates, Earls, Barons, other Mag- 
 nates, and the Commons. 
 King and The exclusive power of legislation had thus in a general 
 and King sense passed away from the King and the Council, and 
 and Lords, from the King and the Lords. As, however, in earlier 
 tained the times all legislation was in their hands, so they retained 
 power of the p OW er of making some laws without the consent of 
 some laws the Commons. Provisions affecting the administration of 
 the^ssent J ust ^ ce were m ade in the twentieth year of Edward III \ 
 of the by the King with the assent of the Magnates and other 
 
 learned persons of the King's Council. The important 
 so-called Statute of Labourers, passed to meet the paucity 
 of workers and the high demands for wages after the Black 
 Death, had no authority but that of the King, Prelates, 
 Nobles, and others of the Council 2 . 
 Ordinance Another Statute of Labourers, however, of two years' 
 and Act of j a t er date was passed on the petition of the Commons 
 ment. (who represented that the provisions of the previous 
 
 law had not been observed) and with the assent of the 
 Prelates, Earls, Barons, other Magnates, and the Commons a . 
 It is usually said that, after the legislative power of the 
 Commons as one of the estates of the realm had been recog- 
 nized, any law passed by King and Lords alone, or by King 
 and Commons alone, was an Ordinance but not an Act. The 
 distinction does in fact seem to be drawn in the words of 
 these laws relating to labourers, for the first, being without 
 J Stat. 20 Ed. III. 2 23 Ed. III. 3 25 Ed. Ill 
 
 
THE HOUSE OF LORDS 321 
 
 the assent of the Commons, is said to have been ' ordained,' Ch. XIV. 
 whereas the second is said to have been 'ordained and 
 established.' The difference of form, however, is not 
 always maintained, for the ' Statute of Money ' made in the 
 ninth year of Edward III, was ' ordained and established' 
 without any express assent of the Commons 1 . In some 
 cases, too, the form for a Statute was ' asscntu et accorded and 
 the usage seems to have wanted uniformity. In the thirty- 
 seventh year of the reign the King agreed to certain 
 requests or petitions from the Commons, and they were 
 asked whether they would prefer to have them embodied 
 in the form of an Ordinance or in the form of a Statute. 
 They preferred an Ordinance, as being of a more temporary 
 nature, and more readily repealed 2 . When, however, the 
 instrument was formally drawn up, it purported to be 
 ' ordained ' by the King at the request of the Commons, 
 and with the assent of the Prelates, Dukes, Earls, Barons, 
 and other Magnates assembled in Parliament 3 . It would 
 seem to follow that the use of the word ' ordained ' without 
 the word ' established,' where the Commons had preferred 
 a petition, but where their assent was not expressly stated, 
 would, at this particular time, cause a law to be an Ordi- 
 nance and not a Statute. But in the very next year 
 a Statute 4 which had the assent both of the Lords and 
 of the Commons in Parliament was said only to be ' made 
 and ordained.' 
 
 Our forefathers, however, were not very exact in their Separation 
 use of language for Parliamentary purposes. As the Council 
 doctrines concerning legislation were in a state of transition, from the 
 we need not wonder that they were not always very clearly * m the 
 expressed. It has sometimes been maintained that an ^S" °j- 
 Ordinance of Parliament did not introduce any new law, end of the 
 but was made only for the explanation and due execution w^tive 
 of laws already in existence. In many instances, at any power once 
 rate, this was the case. In the reign of Richard II, the tothe g King 
 
 1 9 Ed. Ill, stat. 2. 
 
 2 Rot. Pari., 37 Ed. Ill, no. 39 (printed, vol. ii. fo. 280). 
 8 Stat. 37 Ed. III. * 38 Ed. Ill, stat. 1. 
 
 Y 
 
322 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. 
 
 and his 
 Court, or 
 to the King 
 and his 
 Council. 
 
 Question 
 as to the 
 separation 
 of the two 
 Houses of 
 Parlia- 
 ment. 
 
 Council was completely separated from the Parliament, the 
 1 King in his Council in his Parliament ' became a phrase of 
 the past, and the proceedings of the Council were regis- 
 tered apart from the Rolls of Parliament. The King and 
 Council retained the power of making proclamations to which 
 obedience must be yielded so long as they were in agreement 
 with the laws of the land and used to enforce due execu- 
 tion of those laws. The doctrine that there could be an 
 Ordinance of Parliament, as distinguished from a statute, 
 did not immediately fall into disuse, but the occasions on 
 which a law came into force without the assent of the 
 three estates, or of the Lords and Commons, naturally 
 became more rare when the Council became completely 
 distinct not only from Parliament as a whole, but from the 
 baronage. From this period may be dated the extinction 
 of that legislative power which had once belonged ex- 
 clusively to the King and his Court, or to the King and 
 his Council, but of which the Commons had acquired 
 a share. 
 
 Various opinions have been advanced in relation to the 
 time at which the Lords and Commons began to sit in two 
 separate Houses. Regarded from one point of view the 
 question seems almost insoluble ; regarded from another 
 it is extremely simple. It is difficult to prove when a per- 
 manent physical barrier was set between the two Houses : 
 it is easy to show that the two assemblies were always 
 distinct. The Curia Regis, or King's Court, the King in 
 his Council in his Parliament of a somewhat later time, 
 never included the Commons. The great Officers of State 
 and the Judges were summoned to it and sat among the 
 Lords Spiritual and Temporal, but the representatives of 
 the Commons, or, at any rate, the burgesses, never inter- 
 mixed with them. 
 
 It could have mattered but little whether the Commons, 
 who in the early stages of Parliament appear chiefly as 
 petitioners, formulated their petitions at the bottom of a Hall, 
 while the Lords were at the top, or in one chamber or 
 
 No wall could 
 
 building while the Lords were in another. 
 
 
THE HOUSE OF LORDS 323 
 
 make the two bodies more distinct then they already were Ch. XIV. 
 in nature. On the other hand, however, the King and the 
 three estates were an organic whole, and there were times 
 when they had to act collectively as the Parliament. These 
 occasions arose at dates considerably later than any of 
 those which have usually been assigned to the division of 
 the two Houses. There are several instances in which 
 a Peer newly advanced to a particular dignity takes his 
 seat in the presence of Lords and Commons. This occurs 
 at least as late as the reign of Henry V, when Thomas 
 Beaufort, Earl of Dorset, was created Duke of Exeter in 
 Parliament, and was there commanded by the King to take 
 the seat assigned to him ' in the presence of the Lords 
 Spiritual and Temporal, and of the Commons of the Realm 
 assembled in this same present Parliament V There is no 
 question here of any deputation from either House to the 
 other. The ceremony must have been in full view of all 
 the members of both Houses who were present. The ' Rolls 
 of Parliament,' it may be here repeated, extend to the 
 reign of Henry VII, and there are no separate Journals of 
 the Lords before the reign of Henry VIII. 
 
 During the reigns of Richard II and Henry IV some The 
 changes were introduced in the mode of describing the f Lords 100 
 assent of the Lords to an Act of Parliament. In earlier Spiritual 
 reigns and down to the second year of that of Richard II, p0 ral' does 
 the assent was commonly said to be that of the Prelates, w o ° 0c l r 
 Dukes (when there were any), Earls, Barons, and other reign of 
 Magnates 2 . In the third year they were described col- Jh e c earlier = 
 lectively as ' the Lords 3 ,' in the fourth year as the * Prelates phrases, 
 and Lords 4 ' — a phrase not unknown in the reign of 
 Edward III 5 . In the ninth year the old form reappears 
 ' the Prelates, Dukes, Marquess, Earls, and Barons 6 .' In 
 the eleventh and twelfth years they are, as in the third, 
 described collectively as 'the Lords 7 .' In the thirteenth 
 
 1 Rot. Pari., 4 Hen. V, no. 13 (printed, vol. iv. fo. 96). 
 
 2 2 Ric. II, stat. 2. 3 Stat. 3 Ric. II. * Stat. 4 Ric. II. 
 
 6 Stat. 34 Ed. III. « Stat. 9 Ric. II. 
 
 7 Stat. 11 Ric. II, and Stat. 12 Ric. II. 
 
 Y 2 
 
324 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. year a new form appears, ' the Prelates and Lords Tem- 
 poral V The expression ' Lords Spiritual and Temporal ' 
 occurs, for the first time, in an ordinance made by the King 
 in his ' Great Council ' in the same year 2 . It was not, how- 
 ever, immediately introduced into Acts of Parliament, as 
 in the twentieth year of the reign we find ' the Prelates 
 and Lords 3 .' In the twenty-first year the Prelates, Dukes, 
 Earls, and Barons are again specified 4 , as also in the first 
 and second years of the reign of Henry IV 5 , but in the 
 latter year the words ' the Lords Spiritual and Temporal ' 
 are used also as being synonymous 6 . 
 The ex- In the fourth year of the reign of Henry IV the ' Lords 
 
 occursTn Spiritual and Temporal ' are for the first time mentioned 
 the com- j n the commencing words of a Statute 7 , and although there 
 words of an are some exceptions, this was ever afterwards the usual 
 
 Act for the form# 
 first time in 
 
 4HemyIV. The question here arises whether the Lords Spiritual and 
 Question the Lords Temporal are to be regarded as distinct estates 
 to the 'two before the reign of Richard II. So far as the words of 
 estates' of most ear ii er Acts of Parliament are concerned, the Earls 
 
 ' Lords , 
 
 Spiritual' are as much distinguished from the Barons, as either from 
 
 Temiwra^ the Prelates - One form of summons was, however, sent to 
 
 the idea Earls and Barons alike, and a different form to Bishops ; 
 
 eccksias- Dut > on tne other hand, the form of the summons sent to 
 
 tical origin. t he Abbots differed from both the others, and in the 
 
 earliest Acts Bishops, Abbots, and Priors are specifically 
 
 mentioned 8 , just as much as Earls and Barons. The point 
 
 is of some importance for more reasons than one. If 
 
 Bishops, Abbots, and Priors were liable to be summoned 
 
 to Parliament, as holding by barony, and if their claim 
 
 to be ranked as Peers was, as alleged by themselves, that 
 
 they held by barony, it is difficult to see why their position 
 
 merely as Lords of Parliament required a description 
 
 1 13 Ric. II, stat. i. 
 
 2 Printed in the Statutes of the Realm, vol. ii. p. 74, from the Statute 
 Roll. 3 Stat. 20 Ric. II. 4 Stat. 21 Ric. II. 
 
 8 Stat. 1 Hen. IV, and Stat. 2 Hen. IV, general heading. 
 
 6 Stat. 2 Hen. IV, cap. 10, 11. 7 Stat. 4 Hen. IV. 
 
 8 E.g. Stat. Westm. the First (3 Ed. I). 
 
THE HOUSE OF LORDS 325 
 
 different from that of the lay Lords. As, however, they Ch. XIV. 
 sometimes constituted the majority of the House of Lords, 
 we may be sure that the distinction was not made without 
 their assent, both when they were called Prelates and when 
 they were called Lords Spiritual. They could not, according 
 to the canons of the Church, be present in the King's Court 
 or Parliament when a trial reached the stage of passing 
 a sentence affecting life or member. They would not, 
 except when absolutely compelled, acknowledge any lay 
 jurisdiction over themselves, and were always insisting on 
 the privileges of their order. It is, therefore, most probable 
 that they drew the distinction between Lords Spiritual and 
 Lords Temporal as being in accordance with their own 
 particular ideas The clerical view that the Lords Spiritual 
 constitute an estate apart from the Lords Temporal has 
 prevailed in more modern views of the constitution, but it 
 can hardly be said to have been recognized by the earlier 
 lawyers. 
 
 There occurred but little of moment, so far as the history The assent 
 of legislative power and legislative methods affects the commons 
 Lords, during the warlike reigns of Henry IV and Henry V. recognized 
 The Commons, indeed, complained that in Acts founded a J n eces^ 
 on their petitions matters were sometimes introduced which sai 7 to an y 
 
 . . , , . . , , , law binding 
 
 were not in accordance with the petitions themselves, and them, 
 claimed to be 'as well Assenters as Petitioners.' King 
 Henry V thereupon granted that nothing should be enacted 
 on their petitions contrary to that which was asked, so as 
 to bind them without their assent 1 . This, however, was 
 a matter between the King and the Commons, and not 
 between the Commons and the Lords. The Commons 
 had been asserting and had established the principle that 
 they should not be bound by any legislative enactment 
 without their own consent. Both the Commons and the 
 Lords could now initiate legislation, and the assent of both 
 was required to an Act of Parliament. 
 
 Down to this period it had been customary for statutes Substitu- 
 te be drawn in permanent form after agreement had been Sheibrm 
 1 Rot. Pari., 2 Hen. V, no. 22 (printed, vol. iv. p. 22). 
 
326 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. given to their proposed substance. It appears by the 
 of Acts) for heading to the statute De Bigamis that, in the earliest 
 Petitions, days f Parliament, the inner or King's Council, and not 
 reign of the whole Parliament, had given instructions for the due 
 Henry VI. execution of this task. When the Council became al- 
 together distinct from the Parliament \ it was necessary 
 to devise some new machinery, and commissioners were 
 appointed 2 to do the work which had previously been done 
 by the Council or its legal members. It is, however, clear 
 that the Commons were not then satisfied with the manner 
 in which the Acts received their final shape, and desired 
 a change. For this reason, probably, among others, the 
 mode of legislation began to be altered towards the end of 
 the reign of Henry VI, when Bills in the form of Acts (as in 
 the modern system) were introduced into Parliament as well 
 as petitions. There was, however, practically no further 
 change in the legislative power before the time of Charles I, 
 except in so far as the constitution of the House of Lords 
 was affected by the dissolution of monasteries and con- 
 sequent absence of the Abbots and Priors. 
 The assent In the mean time there grew up an idea that the consent 
 Lords °^ *k e Lords Spiritual, as distinguished from other Lords, 
 
 Spiritual, was not in itself necessary to give validity to an Act of 
 necessary: Parliament. It has been shown in another chapter that, 
 growth at the instance of the Commons, in the reign of Richard II, 
 doctrine, a Procurator or Proxy was appointed to represent the 
 whole of the Spiritual Lords, so that no question might 
 arise with regard to the due enactment of statutes which 
 had passed when they were not present. It must then 
 have been supposed, therefore, by some persons at any 
 rate, that an Act could not be considered duly made law 
 unless the spiritual lords, had, in person or by proxy, 
 consented to it. This idea, however, did not survive be- 
 yond the reign of Henry VIII, for in the seventh year of 
 that reign it was held by all the Judges that a Parliament 
 
 1 See above, p. 251, p. 280, and p. 322. 
 
 2 Rot. Pari., 11 Ric. II, no. 19 (printed, vol. iii. p. 256), and Rot. 
 Pari., 21 Ric. II, no. 74 (printed, vol. iii. p. 368). 
 
THE HOUSE OF LORDS 327 
 
 in the modern sense might be held without any Spiritual Ch. XIV. 
 Lords at all. The reason assigned was that doctrine which 
 the Prelates of the reign of Richard II had enunciated, and 
 which the greatest lawyers have always held — that the 
 Spiritual Lords have a place in the Parliament House not 
 in virtue of any spiritual office, but solely in virtue of their 
 temporal possessions *. 
 
 Twenty years later the distinction between Lords 
 Spiritual and Lords Temporal as constituting two estates 
 appears to have been disregarded. Parliament, it was 
 then said, ' consists of three parts, the King as the head, 
 the Lords as the chief and principal members of the body, 
 and the Commons as the inferior members V 
 
 Cases have since occurred in which Acts of Parliament The 
 have been passed in the absence of the Lords Spiritual. g L ^f^ al . 
 Acts of the sixteenth year 3 of the reign of Charles I, excluded 
 were passed by authority of the King, 'the Lords' and ijamenthi 
 Commons. By one of them it was enacted that persons l6 4°- 
 in holy orders should be disabled from exercising any 
 temporal jurisdiction or authority, and that no Archbishop 
 or Bishop should have ' any seat or place, suffrage or voice, 
 in the Parliaments of this Realm.' The Bishops were 
 accordingly excluded from the House of Lords. 
 
 After this year 5 there are no Acts of Parliament recog- The 
 nized by the law until the twelfth year of Charles II. In ^me^he 
 the interval the Commons voted that the House of Lords whole 
 was useless and dangerous, and that whatever was enacted p0W er. 
 by the Commons had the force of law without the consent 
 of the King or House of Lords 6 . 
 
 When King Charles I had been put to death, and after Oliver 
 the Commonwealth of England had been in existence some Fo°h™ e11 S 
 
 1 Keilwey's Reports, 184 b. 
 
 1 Dyer's Reports, 36 & 37 Hen. VIII, p. 60. 
 
 8 E.g. Stat. 16 Car. I, cap. 11, 14, 16, 19, &c. 
 
 * lb., cap. 27. 
 
 5 In the Roll of Parliament there is no distinction between the Acts 
 of the sixteenth, seventeenth, and eighteenth years of the reign. 
 
 fi Joicmals of the House of Commons, Jan. 4, 1648-1649 (vol. vi. 
 p. in). 
 
328 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. 
 
 House,' 
 or House 
 of Lords, 
 without 
 Bishops. 
 
 years, Oliver Cromwell conceived the idea of reverting to 
 a House of Lords without Bishops. The Commons, not 
 directly objecting to the institution of an upper House, 
 desired that the nominations should be confirmed by 
 themselves. Cromwell would not consent to this. The 
 Commons then resolved that a form of summons should 
 be adopted for members of ' the Other House,' and . that 
 the persons summoned should be 'the Other House of 
 Parliament,' and should, ' without further approbation do 
 and perform all such matters as the other House ought 
 to do and perform, and might exercise all such privileges, 
 powers, and authorities as the other House ought to have 
 and exercise.' 
 
 The writs of summons to the members of the ' Other 
 House,' about sixty in number, issued in December, 1657 l . 
 Among those called were some who had been Peers before 
 the Rebellion, and some men of ancient family, more than 
 one of whom attained a peerage after the Restoration. The 
 others were men who had rendered distinguished service 
 to the Commonwealth or the Protector. The form of 
 summons was not very different from that which had been 
 in use in earlier times. Cromwell's style was ' Oliver, Lord 
 Protector of the Commonwealth of England, Scotland, and 
 Ireland, and the Dominions and Territories thereunto be- 
 longing.' He sent greeting to the person summoned, whose 
 presence was commanded 'to treat, confer, and give advice 
 with us and with the Great Men and Nobles.' He was 
 not King, and he said nothing of fealty and allegiance ; 
 but, in other respects, he followed the ancient model as 
 closely as possible 2 . 
 
 Parliament met on January 20, 1657-8. On February 4, 
 following, the Protector, in a message to the Commons, 
 described the £ Other House ' as the House of Lords. The 
 
 1 Whitelocke, Dec. II, 1657 (vol. iv. p. 313, in the edition of 1853). 
 
 2 Whitelocke says ' the form of the writs was the same with those 
 which were sent to summon the Peers in Parliament.' There were, 
 however, some necessary differences, as shown above. The form of 
 the writs has been printed in Noble's House of Cromwell, i. 370. 
 
THE HOUSE OF LORDS 329 
 
 Commons who had accepted the fact, proved refractory Ch. XIV. 
 with regard to the name ; and the Protector almost im- 
 mediately dissolved the Parliament. His son, and successor 
 in the Protectorate, Richard Cromwell, summoned a Par- 
 liament, including the members of the ' Other House ' to 
 meet on January 27, 1658-9 ; but that also was shortly 
 afterwards dissolved l , and the ' Other House ' was heard 
 of no more. 
 
 Upon the restoration of Charles II the first Parliament The Acts 
 was necessarily without Bishops, as the Act by which they vent i on 
 had been excluded, having received the assent of King, Parlia- 
 Lords, and Commons, was recognized as valid. It was, Charles II, 
 however, brought together in an irregular manner, the b y consent 
 Lords meeting by their own authority, and the Commons Lords, and 
 in pursuance of writs issued in the name of the Keepers w X^t nS ' 
 of the Liberty of England. Its first proceeding, when Bishops, 
 assembled, was to declare the Parliament begun in the 
 sixteenth year of Charles I, dissolved, and the Lords and 
 Commons then sitting to be the two Houses of Parlia- 
 ment 2 . This declaration clearly purported that the House 
 of Lords could be effectively constituted, and that Acts of 
 Parliament were valid, though no Lords Spiritual had 
 a seat or a voice. 
 
 The Convention Parliament, as it has been called, sat It did not 
 from April 25 to December 29, 1660, when it was dissolved, ^Sof ^ 
 in due form, by the King. It did not restore the Bishops i64o,which 
 to their ancient places, and it separated without any sug- t h e 
 gestion of a doubt as to the validity of Acts which had not Bishops, 
 the assent of the Lords Spiritual. 
 
 A new Parliament was summoned by the King and met The Par- 
 on May 8, 1661, without any Bishops. It passed an Act /^Charles 
 to confirm the Acts of the Parliament immediately pre- IL without 
 
 ■ • 1 ..... - Bishops, 
 
 ceding, so that no question might arise in consequence of confirmed 
 the irregularity of the manner in which the Convention ^- e t ^ e cts 
 Parliament assembled 3 . This confirmation and, with it, Convention 
 the validity of all the Acts confirmed rest entirely on ^eot*" 
 
 1 On April 22, 1659. Whitelocke, vol. iv. p. 343. 
 
 2 Stat. 12 Car. II, cap. 1. 3 13 Car. II, stat. 1, cap. 7. 
 
33° 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. 
 
 It after- 
 wards 
 repealed 
 the Act of 
 1640, and 
 the Bishops 
 were then 
 summoned. 
 
 Many sub- 
 sequent 
 changes in 
 detail, but 
 no sub- 
 sequent 
 changes in 
 principle. 
 
 The 
 
 legislative 
 power as 
 affected 
 by the 
 duration 
 of Par- 
 liaments. 
 
 Disregard 
 of Acts for 
 annual Par- 
 
 the assent of the King, the Lords Temporal, and the 
 Commons. 
 
 In this same Parliament of 1661, however, the Act in 
 virtue of which the Bishops had been excluded was re- 
 pealed as having made ' several alterations prejudicial to 
 the constitution and ancient Rights of Parliament, and 
 contrary to the laws of this land,' and as having been ' by- 
 experience found otherwise inconvenient V Still there 
 is, in this repealing Act, no mention of the Lords 
 Spiritual and the Lords Temporal, as constituting two 
 estates of the realm, much less any declaration that they 
 are thenceforth to be so held and esteemed, or that every 
 Act of Parliament must have the assent of both. The 
 effect of the repeal was at most to restore the Bishops 
 to the position which they had held before the Act of 
 16 Charles I, whatever that position may have been. 
 
 Since the time of Charles II there has been no change 
 of principle affecting the legislative power of the House of 
 Lords, as including Lords Spiritual and Temporal, though 
 there have been many changes affecting the constitution 
 of the House with regard to the number both of Lords 
 Spiritual and of Lords Temporal entitled to sit, and with 
 regard to the right by which they had their seats. These 
 changes, however, can be more conveniently described in 
 another part of this work. 
 
 The burdens or privileges of the Lords in relation to 
 attendance in Parliament have undergone considerable 
 changes at various times. The Peers were, as we have 
 seen, always liable to be summoned to the King's Courts 
 and Councils, whether called Parliaments or not, and to be 
 summoned to Parliaments, whether including Commons or 
 not. They have always been an essential part of Parlia- 
 ment in the modern sense of the term, but they have, like 
 the Commons, had far more power in the management 
 of the national affairs at some periods than at others. 
 
 In the year 1330 it was enacted that Parliament should 
 be held once in every year, or oftener, should there be 
 1 13 Car. II, stat. 1. cap. 2. 
 
THE HOUSE OF LORDS 331 
 
 need ! . This rule, however, was not by any means strictly Ch. XIV. 
 followed, and in the year 1362 there was passed another 
 Act to the same effect 2 . Like its predecessor this also before the 
 fell into disuse. In the reigns of Henry VIII, Elizabeth, R^ llion> 
 and James I, there were intervals of many years during 
 which no Parliament assembled. In the troubled reign of 
 Charles I there was an interval of twelve years — from 1628 
 to 1640. 
 
 The first Parliament of 1640 sat but a few days. The Act of 1640 
 second passed an Act ' for the preventing of inconveniences in t ermb? 
 happening; by the long; intermissions of Parliament V A sions of 
 
 r . . 1 , , 1 a r 1 Parliament 
 
 reference was made, in the preamble, to the Act of the f or m ore 
 thirty-sixth year of Edward III by the words ' Parliament than three 
 
 J J J years. 
 
 ought to be holden at least once every year for the redress 
 of grievances.' The royal prerogative was in theory recog- 
 nized by the words • but the appointment of the time and 
 place for the holding thereof hath always belonged, as it 
 ought, to His Majesty and his royal progenitors;' for 
 practical purposes, however, it was reduced to nullity by 
 the substantive words of enactment. Whenever the existing 
 or any future Parliament was continued by adjournment 
 or prorogation to the tenth day of September in the third 
 year following the last day of its sitting, it was to be ipso 
 facto absolutely dissolved. The Lord Chancellor, Keeper, 
 or Commissioners for the keeping of the Great Seal were 
 then required to issue, within six days, writs for the sum- 
 moning of a new Parliament, ' without any further warrant 
 or direction from His Majesty.' 
 
 Various provisions were made to ensure the assembling Power 
 of Parliament should the Keepers of the Great Seal refuse ?* ve " to 4 
 
 1 the Peers to 
 
 or neglect to issue the writs of summons. Among them summon a 
 was one that the Peers were to assemble, and, on their own m g r n [ a " 
 authority, send out writs to summon the Commons. failing 
 
 It is sometimes said that triennial Parliaments were mea ns. 
 established by this Act, but the effect of it was only to The Act 
 ensure that there should not be an interval of more than J^ 1 ^ 
 
 1 Stat. 4 Ed. Ill, cap. 14. 2 Stat. 36 Ed. Ill, cap. 10. 
 
 3 Stat. 16 Car. I, cap. 1. 
 
332 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. three years between the sittings of Parliament, and that 
 
 establish a P arnament prorogued or adjourned for three years should 
 
 triennial come to an end and be succeeded by another. No pro- 
 
 ments. vision was made for the dissolution of a Parliament which 
 
 continued its sittings without any interval of the length 
 
 mentioned in the Act. The Parliament, indeed, in which 
 
 the Act was made, remained in existence, so far as the 
 
 House of Commons was concerned, more than twelve 
 
 years, and until its sittings were interrupted, not by the 
 
 automatic action of a Statute, but through the master will 
 
 of Cromwell with his soldiers at his back. 
 
 Act of 1664 Four years after the Restoration this Act was formally 
 
 Parlia- repealed, and declared to have been ' in derogation of His 
 
 ments once Majesty's just rights and prerogative inherent to the Imperial 
 
 years at Crown of this Realm.' It was also stated in the repealing 
 
 least. ^ ct t k at , ky t j ie anc j ent j aws anc i statutes of this realm, 
 
 made in the reign of King Edward the Third, Parliaments 
 are to be held very often.' As those statutes provided for 
 the holding of a Parliament once every year at least, they 
 can hardly be said to have afforded a very secure ground 
 for the substantive enactment which followed, that Parlia- 
 ments were to be held once in three years at least. The 
 King was thenceforth to issue out his writs for calling 
 a Parliament within three years of the termination of any 
 previous Parliament *. 
 The dura- This Act, like that of Charles I, did not in any way affect 
 Parliament tne length of time during which any one Parliament might 
 not thereby sr £ or re quire the election of new members of the House of 
 
 restricted. x p m 
 
 Commons at the end of any definite period. The very 
 Parliament in which it was passed continued in existence 
 nearly seventeen years. All that was needed was that 
 some kind of Parliament should be called together at 
 intervals of not less than three years, just as some kind 
 of Parliament was to be called together at intervals of not 
 less than one year at the beginning of the reign of 
 Edward III. 
 Effect of Charles II, at the end of his reign, allowed four years to 
 
 1 Stat. 16 Car. II, cap. 1. 
 
THE HOUSE OF LORDS 333 
 
 elapse without summoning any Parliament. There was no ch. XIV. 
 
 power, under the Act, to compel him to issue any summons, 
 
 and no machinery for summoning a Parliament without his between 
 
 consent. In the reign of William and Mary, also, the first Parlia- 
 
 Parliament (after the Convention) was continued six years 
 
 and a half. So far as the Lords were concerned, the effect 
 
 of the long intervals between one Parliament and another 
 
 in these and preceding reigns was to lighten their burdens to 
 
 no inconsiderable extent, but also to diminish their influence 
 
 in the management of the realm. The time, however, was 
 
 at hand when Parliaments were to be held every year 
 
 though not under any legal compulsion. 
 
 In the year 1 694 another Act was passed requiring, like The Act ot 
 that of the reign of Charles II, that a Parliament should be triennial" 
 held once in three years at the least. It contained a further Parlia- 
 provision that no Parliament should continue in existence how it 
 more than three years '. This was of greater consequence in affected the 
 relation to the House of Commons than in relation to the theory. 
 House of Lords, because it set a limit, for the first time, to 
 the period during which representatives could sit in the 
 House of Commons without re-election. It was, however, of 
 very great constitutional importance, and indirectly affected 
 even the House of Lords. As the principle was now 
 established that there could be no ' Parliament ' without 
 representatives of the Commons, a dissolution precluded 
 the Lords from sitting in any Parliament until the writs 
 for the summons of a new House of Commons had been 
 returned, and there was nothing to compel the issue ot 
 the writs until three years had elapsed after a dissolution. 
 The Parliamentary functions of the Lords, being now 
 dependent on the existence of a House of Commons, might 
 thus legally be dormant for no less than three years. 
 Practically no inconvenience followed, because there has 
 never since been a year in which a Parliament has not met, 
 but theoretically, at least, the power of the House of Lords 
 was curtailed. 
 
 In the year 1715 the continuance of Parliaments., .was 
 
 Stat. 6 Will, and Mary, cap. 2./^^^%^^^ 
 
 UNIVERSITY 
 
 CAUFORN^ 
 
334 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. 
 
 The Act of 
 1 715 for 
 Septennial 
 Parlia- 
 
 The 
 
 annual 
 sitting of 
 Parliament 
 depends 
 not on 
 Statutes 
 but on 
 Supplies 
 and their 
 Appro- 
 priation. 
 
 Preroga- 
 tive of the 
 Crown : 
 Disso- 
 lution of 
 Parlia- 
 ment. 
 
 extended to seven years l , but the provisions relating to the 
 holding of a Parliament once in three years, and to the 
 summoning of a Parliament within three years of a dissolu- 
 tion remained in force. The sole effect of the new Act 
 was to give to the representatives of the Commons a longer 
 period of representation, though subject, of course, to the 
 Sovereign's power of dissolving. Portions of the Act of 
 the reign of William and Mary were formally repealed in 
 the year 1867, but only portions already rendered inopera- 
 tive by the Act of George I, and portions relating to the 
 Parliament in which the Act itself was passed 2 . 
 
 It would seem, therefore, that the Parliamentary functions 
 of the House of Lords, as well as of the House of Commons, 
 might still be legally suspended for a period of three years, 
 because the Acts of Edward III relating to annual Parlia- 
 ments, already superseded by those of Charles 1 1 and William 
 and Mary, were formally repealed in 1863 3 . The security 
 for annual sessions of Parliament lies in the power of the 
 Commons to grant or withhold supplies, and in the necessity 
 for a vote to appropriate them when granted. 
 
 In none of the Acts relating to Parliaments was the 
 power of the Crown to dissolve an existing Parliament 
 abolished or abridged. In none of them was the power of 
 the Crown to summon a Parliament taken away. Thus as 
 the doctrine grew up that the advisers of the Crown were 
 responsible for the Acts of the Crown, the dissolution of 
 Parliament, before its term had expired, became a political 
 engine to be used, as occasion might seem to require, by 
 the political party in power. Questions have arisen in 
 recent times concerning the advice which ought to be given 
 to the Sovereign by a Minister when a Government measure 
 is rejected in the House of Lords after having passed the 
 House of Commons. Any theory on this subject can be 
 founded only on comparatively recent precedents — on pre- 
 cedents subsequent to the first formation of a Cabinet 
 Council. The subject itself is one perilously near to current 
 
 1 1 George I, stat. 2. cap. 38. 2 Statute Law Revision Act, 1867. 
 3 Statute Law Revision Act, 1863. 
 
THE HOUSE OF LORDS 335 
 
 politics, and does not appear to be strictly relevant to a Ch. XIV. 
 History of the House of Lords. It belongs rather to the 
 sphere of ministerial duties and responsibilities, in common 
 with any action to be recommended by a Minister upon the 
 occurrence of any event domestic or foreign. 
 
 It may, however, be remarked that the House of Lords Power of 
 does not. as is sometimes represented, possess a veto with House to 
 regard to any measure in any sense in which a veto is not initiate, 
 possessed by the House of Commons. With certain excep- reject a 
 tions relating to money and privilege, either House can measure - 
 initiate a measure, and either House can amend or reject 
 it, but neither has any constitutional power to force the 
 acceptance of any measure upon the other. 
 
 There have, indeed, been occasions when the rejection by Action of 
 the House of Lords of Bills passed in the House of Com- L ^fg and 
 mons has been the cause of popular outcry and commotion. Commons 
 The most memorable of these was when the Lords threw to the 
 out the Reform Bill in October, 1831. The feeling of the j^™ 
 country was shown in a manner which could not be mistaken. 1831. 
 Another Bill was sent up shortly afterwards, and the second 
 readingwas then carried bya majority of nine. In Committee, 
 however, the opposition was renewed ; and the danger was 
 thought to be so great that King William IV used his 
 personal influence with individual Lords in order to per- 
 suade them to abandon their resistance. In the end he was 
 successful, and the Bill became law. This was, no doubt, an 
 instance in which the Lords permitted legislation contrary 
 to their wishes, convictions, and previous votes. It was not 
 a case in which the House of Commons, by its own strength, 
 forced the Lords to adopt a measure, but one in which the 
 wishes of the Sovereign and external agitation combined 
 to overcome their antipathy 1 . 
 
 There are, however, some matters in relation to which Custom of 
 exclusive powers are claimed, on the one hand, by the ^relation* 
 House of Lords, and, on the other hand, by the House of to Bills 
 Commons. Thus, by the custom of Parliament, it has been the Peef- 
 said, all Bills which may affect the rights of the peerage, a £ e ' &c - 
 1 Greville's Memoirs, ii. 303 ; Raikes's Journal, i. 34. 
 
336 CONSTITUTIONAL HISTORY OF 
 
 Cm. XIV. are to be first introduced into the House of Lords, and to 
 suffer no changes or amendments in the House of Commons 
 which has, however, the power of rejecting them altogether l * 
 This practice, it seems, cannot be of earlier origin than that 
 of commencing legislation in the modern form by Bill in 
 the reign of Henry VI, and the occasions on which any 
 questions have arisen in relation to it have been rare. It 
 was entirely ignored by the House of Commons in the last 
 Parliament of King Charles I, in which bills were intro- 
 duced not only ' for taking away the Bishops' votes in 
 Parliament 2 ,' but also ' for the abolition of the House of 
 Peers 3 .' This was, no doubt, an exceptional period, but 
 later events have not all been quite in accordance with the 
 alleged custom or privilege. Notice was given in the year 
 1832 of an intention to move for leave to bring a bill into 
 the House of Commons to prevent the members of the 
 other House of Parliament from voting by proxy. It 
 was withdrawn, upon a suggestion that it was an inter- 
 ference with the privileges of the House of Lords 4 . A 
 bill, however, to alter the mode of electing representative 
 Peers in Scotland and Ireland, and to enable the Crown to 
 summon Scotch and Irish Peers, who were not representa- 
 tives, to sit in Parliament for life was read a first time in the 
 House of Commons in 1869 5 . 
 
 Bills for restitution in blood, after corruption, and for 
 restitution of honours, bills of attainder, and bills of pains 
 and penalties have usually been first introduced into the 
 House of Lords, but it is not clear that there is any absolute 
 right or well-defined privilege in these matters. Courtesy 
 and convenience may count for much in one class of bills ; 
 the long-established authority of the Lords in legal affairs 
 may count for something in the other class. Bills of resti- 
 
 1 1 Coram. 168. 
 
 8 Clarendon's History of the Great Rebellion, iii. 148; iv. 33; 
 Journals of the House of Commons, March 10, 1640-1 (vol. ii. p. 101). 
 
 s Clarendon, xi. 247 ; Journals of the House of Commons, Feb. 20, 
 1648-9. 
 
 4 Hansard's Debates, vol. xi. 3rd series, 11 56. 
 
 ;rd series, 988. See also below chapter xv. part 3. 
 
THE HOUSE OF LORDS 337 
 
 tution, however, differ from the rest in being introduced Ch. XIV. 
 into the House of Lords by command of the sovereign, 
 and in being sent to the Commons as having already the 
 Sovereign's assent 1 .' 
 
 The limitation of the power of the Lords when legis- Disabili- 
 lating on money bills is a subject with regard to which our Lords in 6 
 early history is obscure. Payments of money which were relation to 
 independent of the ordinary feudal exactions were, per- Bills : their 
 haps, more familiar to the townsmen than to the great P r ?b able 
 
 r ° origin : 
 
 feudal lords. Some of the towns which had obtained supplies 
 charters had to send representative burgesses to West- b „*g Ses 
 minster, to treat with the Chief Justiciary, and render an before the 
 account, before there was any House of Commons, and oftne 
 consequently before there was any House of Lords (under House of 
 
 1 \ «• « • 1 1 r • o a i-. Commons. 
 
 that name) as distinguished from it *. As this important 
 section of the Commons had money dealings with the 
 Crown before they had even obtained representation in 
 Parliament, they would naturally take care that they should 
 not be placed in a worse position afterwards. It was 
 obviously not for the Lords to say what the Commons 
 should contribute. The Lords, on the other hand, being 
 in origin the great feudal land-owners, contributed to the 
 necessities of the Crown or the State by the very terms on 
 which they held their lands, and found, at their own 
 expense, the greater part of the army. This was a matter 
 between them and the Crown with which the Commons 
 could not interfere. 
 
 In addition to the military services which they rendered, Bargains 
 the feudal Barons, as well as the Commons, from time to crown* 
 time, specially granted money, or the worth of money, to grants of 
 the sovereign. As, however, the burgesses made the best return for 
 terms they could at the Exchequer, so also the Barons are concessions 
 seen, in conjunction with the Commons, to assist the King 
 for a consideration. In 1225, forty years before that Par- 
 
 1 Instances have been collected (ranging from 1848 to 1855) in May's 
 Law and Usage of Parliame?it (10th edition), p. 435. 
 
 2 See, e.g. King John's Charters to Gloucester and Ipswich, (printed 
 in Rotuli Chartarwn, pp. 57, 65). See also Dial, de Scacc. ii. 13. 
 
 Z 
 
338 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. liament or assembly which Simon de Montfort caused to 
 be summoned, the Archbishops, Bishops, Abbots, Priors, 
 Earls, Barons, Knights, freeholders, and all the King's 
 subjects 1 , gave a fifteenth part of all their moveables in 
 return for a confirmation of the Great Charter and for the 
 Charter of the Forest 2 . 
 
 It is not by any means apparent how this grant was 
 obtained from 'all.' The King, according to a contem- 
 porary, held his Court, at Christmas, at Westminster. The 
 * clergy and people ' were present with the Magnates. 
 Hubert de Burgh, the Justiciary, spoke, and represented 
 the evil plight of public affairs and the necessity of help 
 from all. He suggested the gift of a fifteenth both from 
 the clergy and from the laity. Upon this ' the Archbishop, 
 and the whole assembly of Bishops, Earls, Barons, Abbots, 
 and Priors, after deliberating/ answered that they would 
 gladly agree to the King's request if he would grant them 
 the liberties which they sought. The King agreed to ' that 
 which the Magnates asked,' and the charters were forthwith 
 written out and sealed 3 . It is clear, both from the attesta- 
 tion of the charters and from the words of the chronicler, 
 that the final bargain was effected between the King, on 
 the one hand, and the nobles and church dignitaries on the 
 other. It is possible that some members of the clerical 
 body (whom the chronicler describes as the clergy) and 
 some knights responding to a general summons, according 
 to the terms of John's Great Charter, may have been at 
 hand, if not in the same chamber with the Magnates. They 
 may have signified to the Earls, Barons, and clerical digni- 
 taries their willingness to accept the proposed bargain, and 
 the latter may then, ■ after deliberation,' have assented to 
 it. But there is no evidence of any such transaction, or of 
 the authority of any part of ' the people,' to consent to a tax 
 upon the rest, except, perhaps, in the case of burgesses 
 representing their town in accordance with its charter. 
 
 1 Omnes de regno nostro. 2 Magna Charta, 9 Hen. Ill, cap. 37. 
 
 3 Roger de Wendover, Flores Historiarum (Rolls Series), vol. ii. 
 
 p. 282. 
 
THE HOUSE OF LORDS 339 
 
 All that can be said is that in some way a bargain was Ch. XIV. 
 struck between the King and the Bishops, Earls, Barons, 
 Abbots, and Priors, which had the effect of binding all 
 classes. It would almost seem that those who gained the 
 benefits for all were regarded as having power to agree to 
 the price which all would have to pay. 
 
 This precedent for striking a bargain was followed in later The prin- 
 times, after the establishment of the House of Commons, bargain 
 upon occasions of great emergency, but the Commons were still 
 then parties to the grant in Parliament. Thus, when in the a f te r the 
 fourteenth year of his reign Edward III was brought to great House of 
 straits by his wars with the Scots and the French, he obtained was 
 an extraordinary grant of ninths in one act \ but he had establlslie • 
 already made some extraordinary concessions in others 2 . 
 The concessions, in fact, preceded the grant ; and it was 
 recited in the act in which the ninths were given to the 
 King that they were given in consideration of these pre- 
 ceding acts. The King released and pardoned arrears of 
 various kinds due to him. and consented to abolish the 
 ' Presentment of Englishry ' which had been the badge of 
 the subjection of the conquered English to their French 
 conquerors. The grant was made by the Prelates, Earls, 
 Barons, and Commons. 
 
 Other similar instances are found upon the rolls. On Ordinary 
 ordinary occasions, however, the grants appear to have been g ranl j s of . 
 
 J . supplies in 
 
 made, during a long period, without Act of Parliament, early 
 The clergy, notwithstanding the Praemnnientes clause in Convoca- 
 the writs of summons to the Bishops, ceased to attend in tion - 
 Parliament after the fourteenth century, and taxed them- 
 selves independently in Convocation. The Commons taxed 
 themselves in Parliament, but independently of the Tem- 
 poral Lords. A little later the Commons and Temporal 
 Lords seem to have joined in grants to be levied in the 
 same proportion. In the reign of Richard II they are 
 described as grants made by the Commons with the assent 
 of the Lords. In these cases, perhaps, the Commons made, 
 
 1 14 Ed. Ill, stat. 1. cap. 20. 2 lb., cap. 2, &c. 
 
 Z 2 
 
34° CONSTITUTIONAL HISTORY OF 
 
 Ch. xiv. as it were, a proffer, and the Lords agreed to give of their 
 moveables, at the same rate, and in addition to the military 
 services which they owed. The Commons (now including 
 both knights of the shires and burgesses) made the bargain, 
 so to speak, as some representative burgesses had made it 
 in the days before Parliaments, and the Lords became 
 parties to the transaction. 
 Constitu- It cannot, however, be said that the doctrine of supply 
 struggle in na< ^j as y et > been laid down with mathematical precision, 
 the reign of But, during the reign of Henry IV, a general principle was 
 established and reduced to writing after a short constitu- 
 tional struggle. The Commons, in the second year, prayed 
 that, before granting supplies, they might receive answers 
 to their petitions. The King, after consultation with the 
 Lords, replied that it had not been usual for the Commons to 
 have their petitions answered before granting subsidies, and 
 that he would not change the good customs of ancient times l . 
 In the ninth year, when Parliament was assembled at 
 Gloucester, the King sat with the Lords Spiritual and 
 Temporal in the Council Chamber of the Abbey. A ques- 
 tion was put to the Lords as to what aid would suffice and 
 be necessary in view of the dangers which threatened the 
 realm. They answered that, when the King's necessities, 
 on the one hand, and the poverty of his people, on the other, 
 were considered, no less aid would suffice than ' a tenth and 
 a half from the cities and boroughs, and ' a fifteenth and 
 a half from other lay people. Thereupon a message was 
 sent by the King's command to the Commons desiring 
 them to send before the King and Lords some of their 
 number to hear and report to the rest as the King should 
 command. They accordingly sent twelve members into 
 the presence of the King and Lords. It was the King's 
 pleasure, they were then informed, that the question which 
 had been put before the Lords and the answer given (both 
 of which were communicated to them) should be reported 
 to their fellows, in order that their whole body might take 
 
 1 Rot. Pari., 2 Hen. IV, no. 23 (vol. iii. p. 458). 
 
THE HOUSE OF LORDS 34* 
 
 steps to conform, as nearly as possible, to the proposal of Ch.xiv. 
 the Lords. 
 
 When the report was made to the Lower House its The prin- 
 members were greatly agitated. They declared that the accepted 60 
 proceeding was highly prejudicial and derogatory to their with regard 
 liberties. At last the dispute was brought to an ' indem- ( supp 1€ 
 nity,' of which a memorial was. by the King's command, 
 entered of record upon the Roll of Parliament. The pur- 
 port of this instrument was that the King had no desire 
 that anything should be done which could in any way turn 
 against the estate represented by the members of the 
 Lower House in Parliament, or against the liberties of the 
 Lords. \He therefore willed, granted, and declared, with^ 
 the advice and consent of the Lords, that it should be 
 lawful for the Lords to consult among themselves in Par- 
 liament, in the King's absence, with regard to the state of 
 the realm and to the remedies which might be required, 
 and that it should, in like manner, be lawful for the Com- 
 mons to consult among themselves on the same subjects. 
 It was nevertheless provided that neither the Lords nor 
 the Commons should make any report to the King with 
 respect to any supplies which had been granted by the Com- 
 mons and to which the Lords had agreed, nor with respect 
 to any communications having reference to supplies, until 
 the Lords and Commons had come to an accord in the 
 matter, and then only in the manner and form accustomed, 
 which were defined to be by the mouth of the Speaker of 
 the House of Commons.y It was also the King's pleasure, 
 with the assent of the Lords, that the communication made 
 in the Parliament of Gloucester should never be drawn into 
 a precedent or turn to the prejudice or derogation of the 
 liberties of the estate which the members of the Lower 
 House represented l . 
 
 We thus find three points accepted in relation to the consti- 
 tutional method of voting supplies. They were to be granted 
 by the Commons, to have the assent of the Lords, and to be 
 
 1 Rot. Par?., 9 Hen. IV, no. 21 (printed, vol. iii. p. 611). 
 
342 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. 
 
 Grants of 
 supply by- 
 Acts of 
 Parlia- 
 ment. 
 
 Financial 
 effect of 
 the abo- 
 lition of 
 feudal 
 tenures. 
 
 Dispute 
 between 
 the two 
 Houses in 
 1661. 
 
 reported to the King by the Speaker of the House of 
 Commons. There was nothing to prevent any suggestions 
 from the Lords to the Commons ; but they were not to 
 have any appearance of dictation caused by the use of 
 the King's name, and they were not to be preceded by 
 any report to him. 
 
 The mode of granting supplies, however, had, even yet, 
 but little analogy with that of later days. There were 
 long intervals between Parliament and Parliament, and 
 grants were made sometimes for long periods of time, 
 sometimes for the life of the sovereign. It was only by 
 degrees that the grants took the form of Acts of Parlia- 
 ment. In the reign of Henry VIII some occur in this 
 form, and the subsidies voted in Convocation were then 
 confirmed by Statute 1 . The practice of taxing the clergy 
 in Convocation was not discontinued until the year 1664, 
 after which time they were taxed in the same manner as 
 the laity. 
 
 The Great Rebellion, and the abolition of feudal tenures 
 immediately after the Restoration, effected, in theory, at 
 any rate, a complete revolution in the relation of the great 
 land-holders to the State. Their obligation to provide a 
 national army had ceased, and they constituted but "a com- 
 paratively small portion of the whole population. Every- 
 thing that was necessary for the public service had now to 
 be raised by taxation in some form ; and the members of 
 the House of Commons represented almost the whole of 
 the persons who were to be taxed. When, therefore, they 
 claimed exclusive privileges in regard to Money Bills, they 
 had not only some historical grounds for their pretensions, 
 but also a powerful argument in the interests with which 
 they were charged. 
 
 In 1 66 1 the Commons objected to a Bill sent down to 
 them from the Lords, and having for its object the paving 
 of the streets of Westminster. They said that ' it went to 
 lay a charge upon the people,' and that ' it was a privilege 
 
 1 See Stat. 32 Hen. VIII, cap. 23 ; yj Hen. VIII, cap. 24 and cap. 25. 
 The last confirmation was in 1663 (Stat. 15 Car. II, cap. 10). 
 
THE HOUSE OF LORDS 343 
 
 inherent in their House that Bills of that nature should first Ch. XIV. 
 be considered there.' They then sent up a Bill of their own, 
 but the Lords amended it by the insertion of a clause, 
 which the Commons would not accept because, as they said, 
 the amendment infringed their privileges. The Lords did 
 not admit that they had no power in such a matter as this, 
 and produced some precedents which they considered to be 
 in their favour l . As neither side would give way, no legis- 
 lation could be effected. 
 
 In 1 67 1 the Commons resolved, with reference to an Resolu- 
 
 amendment introduced into a Money Bill by the Lords, commons 6 
 
 / 'that in all aids given to the King by the Commons, the inland 
 
 rate or tax ought not to be altered by the Lords 2 ^ In relation to 
 
 1678 they resolved, /that all aids and supplies, and aids to the Lords 
 
 TT ' . V _ ,-, and Money 
 
 His Majesty in Parliament, are the sole gift of the Commons ; Bills, 
 and all Bills for the granting of any such aids and supplies 
 ought to begin with the Commons ; and that it is the 
 undoubted and sole right of the Commons to direct, limit, 
 and appoint, in such Bills, the ends, purposes, considerations, 
 conditions, limitations, and qualifications of such grants, 
 which ought not to be changed or altered by the House of 
 Lords 3 . j This resolution did not, in its terms, affect the 
 power 01 the Lords to reject a Money Bill, though it denied 
 them the power of initiating or altering it. The Lords 
 could not be taxed without their own consent, but they 
 could not direct the course of taxation. 
 
 The proceedings of later times were long regulated, in There- 
 the main, by this most important resolution of the year ^Lords" 1 
 1678. There have been instances in which the privileges has since 
 claimed by the Commons, in this respect have not been practically 
 pressed to their full extent, and in which expedients have acknow- 
 been devised for adopting reasonable suggestions made by 
 
 1 Journals of the House of Commons, July 29, 1661 (vol. viii. p. 315), 
 and Jotcrnals of the House of Lords, July 30, 1661 (vol. xi. p. 328). 
 There was a precedent in the fifth and another in the thirty-first year 
 of Elizabeth. 
 
 2 fournals of the House of Coinmons, April 14, 1671 (vol. ix. p. 236). 
 lb., July 3, 1678 (vol. ix. p. 509). 
 
344 
 
 CONSTITUTIONAL HISTORY OF 
 
 Ch. XIV. 
 
 New Reso- 
 lutions of 
 the House 
 of Com- 
 mons in 
 i860. 
 
 Present 
 position of 
 the power 
 of the 
 Lords to 
 reject a 
 Money 
 Bill. 
 
 the Lords l , but the general principle in relation to measures 
 of importance has never been abandoned. It may, indeed, 
 be said that the power of the Lords even to reject a Money 
 Bill has been threatened, partly by direct resolutions of the 
 House of Commons, and partly by the indirect method of 
 including particular money clauses in Bills of more general 
 application. 
 
 In the year i860 the Commons sent up to the Lords 
 a bill for the repeal of acts imposing duties upon paper. 
 The Lords rejected it, and their action of course had the 
 effect of continuing the duties in accordance with the existing 
 law. The Commons re-asserted their rights in a series of 
 resolutions. One was, ' that the right of granting aids and 
 supplies to the Crown is in the Commons alone.' In 
 another, though it was admitted that the Lords had on 
 previous occasions rejected Money Bills, it was declared that 
 the exercise of the power of rejection was 'justly regarded ' 
 by the House of Commons 'with peculiar jealousy, as 
 affecting the right of the Commons to grant the supplies, 
 and to provide the ways and means for the service of the 
 year.' A third was to the effect 'that to guard, for the 
 future, against an undue exercise of that power by the Lords, 
 and to secure to the Commons their rightful control over 
 taxation and supply,' the House of Commons 'has in its 
 own hands the power so to impose and remit taxes, and to 
 frame Bills of Supply, that the right of the Commons as to 
 the matter, manner, measure, and time, may be maintained 
 inviolate 2 .' 
 
 The meaning of the last resolution was soon made plain. 
 The repeal of the paper duties was included in the general 
 Customs and Inland Revenue Bill of the year 1861. The 
 Lords were (according to the doctrines of the Commons) 
 powerless to amend it by striking out a particular clause, 
 and they could not reject it without deranging the whole 
 
 1 The details relating to these matters are hardly within the range 
 of the present Work. They may be found in Sir T. Erskine May's 
 Law and Usage of Parliament (10th edition), pp. 540—550. 
 
 2 Hansard's Debates, 3rd series, vol. clix. 1383-1606, July 5, 6, i860. 
 
THE HOUSE OF LORDS 345 
 
 financial scheme for the year. This was of course prac- Ch. XIV. 
 tically impossible, and they had no alternative but to pass 
 the entire measure, and so reverse their decision of the 
 previous year 1 . It would seem that, should the Commons 
 always follow the same policy, the Lords would lose even 
 the power of throwing out a Money Bill, or would be able 
 to assert it only at the risk of interrupting all legislation 
 affecting the public revenue and expenditure 2 . 
 
 1 When passed, the Act became the 24 Vict. cap. 20, by the fourth 
 section of which the paper duties were repealed. See also Hansard's 
 Debates, 3rd series, vol. clxii. 594, and vol. clxiii. 68. 
 
 2 An Address of the Lords to the King, in 1677, in relation to 
 amendments, might seem to describe very appositely the more recent 
 position of the House in relation to the rejection of Money Bills. The 
 Lords had then made some amendments in a Supply Bill for building 
 ships of war. The Commons ' disallowed ' them. The Lords gave 
 their reasons, but the Commons remained ' unmoveable.' The Lords 
 then said : — The Commons ' have put upon us the extreme difficulty 
 either of shaking our privileges by withdrawing our amendments, or of 
 hazarding the safety of the nation by letting a bill fall that is necessary 
 to this time.' They yielded against their judgement, 'and out of 
 tenderness that the Whole may not suffer by our insisting on that 
 which is our undoubted right J Journals of the House of Lords, 
 April 16, 1677 (vol. xiii. p. 119). 
 
CHAPTER XV. 
 
 Changes in the Component Parts of the House of Lords. 
 
 PART I. 
 
 The Feudal Period: Disappearance of the Abbots: Position 
 of the Chancellor : Abolition of Feudal Tenures : 
 Commencement of a New System : Peerages as Rewards 
 for Political Service. 
 
 Chap. XV. QOME changes in the component parts of the House of 
 O Lords have been incidentally noticed in preceding 
 chapters, but it has been thought that the subject, as a whole, 
 could most conveniently be deferred to the last. 
 Compo- In the earliest Parliaments there were Bishops, Abbots, 
 
 the°assem- an d Priors of various religious Houses, the Master of the 
 bly of Knights of the Temple, the Prior of the Hospital of St. John 
 of Jerusalem in England (or of the Knights Hospitallers), 
 as well as Earls and Barons. The numbers of the Abbots, 
 Priors, and Barons, were, however, subject to great fluctu- 
 ations, and the numbers of the Earls were not uniform 
 throughout. Thus in 1265 there were but five Earls and 
 eighteen Barons summoned, the Archbishop of York, thirteen 
 Bishops, sixty-five Abbots, and thirty-five Priors, including 
 the Prior of the Hospital of St. John of Jerusalem in 
 England, and the Prior of the Order of Sempringham, whose 
 position was somewhat different from that of the others 1 . 
 There were also separately summoned five Deans, who 
 would, in later times, have had to attend either by virtue 
 of the Praemimientes clause in the writs to the Bishops of 
 their respective dioceses, or as members of the Council. 
 
 1 Rot. Lit. Claus., 49 Hen. Ill, m. 12 d. 
 
THE HOUSE OF LORDS 347 
 
 When Edward I summoned a Parliament to meet on Chap. XV. 
 November 13, 1295, he called nine Earls, and forty-one 
 Barons, two Archbishops, eighteen Bishops, sixty-seven the Parlia- 
 Abbots, the Prior of the Hospital of St. John of Jerusalem, ™ ent of 
 the Master of the Order of Sempringham, and the Master of 
 the Knights of the Temple K 
 
 The varying numbers of the Temporal Lords (and Uniformity 
 especially of Barons) summoned in subsequent years have writs of 
 already been noticed 2 . All the Bishops usually received summons 
 writs. When their sees were vacant, the Guardians of the 
 Spiritualities were summoned in their stead. There is thus 
 much more uniformity in their writs of summons than in 
 those to the Earls who were sometimes engaged in foreign 
 service, and who were sometimes under age. An earldom, 
 too, sometimes became extinct by the death of its holder, 
 a bishopric never ; and the creation of a new earldom was 
 a more common event than the creation of a new see. 
 
 The number of Priors and Abbots summoned, however, But not to 
 varied quite as much as that of the Barons, and, to some Abbots" 
 extent, for the same reasons. They were liable to summons before the 
 by reason of holding by barony, but they were not sum- Edward 
 moned unless the King desired their presence. When, in "*• 
 the reign of Edward III, precedent and custom had largely 
 taken the place of the King's pleasure, with regard to the 
 persons who should be summoned, there was drawn up 
 a list of Abbots and Priors whom it had not been usual to 
 call. They were no less than twenty-eight in number 3 . 
 The catalogue was not by any means accurate, as it included 
 the Master and Prior of the Order of Sempringham, as well 
 as the Abbots of Fountains and Furness, whose names 
 might easily have been found among the earlier writs of 
 
 1 Rot. Lit. Clous.) 23 Ed. I, m. 3 d and m. 4 d. It may here be men- 
 tioned that, on the dissolution of the Order of the Knights of the Temple, 
 their possessions in England were given to the Prior and Brethren of 
 the Order of the Knights of St. John of Jerusalem in 1324 (17 Ed. II, 
 stat. 3). The latter Order survived in England until the reign of 
 Henry VIII, as shown in another chapter. 
 
 2 See above, p. 96. 
 
 3 Rot. Lit. Claus., 6 Ed. Ill, m. 36 d. 
 
348 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. 
 
 The dig- 
 nities held 
 by the 
 Temporal 
 Lords at 
 various 
 times. 
 
 Majorities 
 
 of Spiritual 
 
 Lords 
 
 through 
 
 extinction 
 
 ofpeerages. 
 
 summons, and even among the writs of the safie reign. The 
 mere fact that it was made, however, is an indication that 
 the composition of the House of Lords was falling into 
 a groove, the Temporal Lords and the Spiritual Lords alike 
 having to be called in accordance with a recognized usage. 
 Soon after this time, and before the middle of the reign, 
 there was a permanent diminution in the number of Abbots 
 and Priors summoned. 
 
 In addition to Earls and Barons, the Lords Temporal 
 have, at various times, included, if not Kings, at least one 
 whom the English recognized as King, and Princes, Dukes, 
 Marquesses 1 , and Viscounts 1 . John of Gaunt, Duke of 
 Lancaster, who assumed the style and title of King of 
 Castile and Leon, was summoned, in the first and in 
 subsequent years of the reign of Richard II, as King of 
 Castile and Leon, and as Duke of Lancaster 2 . Edward, 
 son of Edward I, was summoned to Parliament as Prince of 
 Wales, and Earl of Chester, in 1302 3 . The first Duke 
 summoned was Edward, the Black Prince, son of Edward III, 
 who was also Prince of Wales, and was summoned as Prince, 
 as Duke of Cornwall, and as Earl of Chester 4 . The first 
 Marquess summoned was Robert de Vere, Marquess of 
 Dublin, in 1386 5 . The first Viscount summoned was John, 
 Viscount Beaumont, in 1441 6 . 
 
 As new dignities were but sparingly created between 
 the time of Edward III and that of Henry VII, as old 
 families died out, in the course of nature, or came to an 
 
 1 Both Marquess and Viscount were titles introduced from abroad, 
 and inconsistent with all practice and tradition in England. A Mar- 
 quess should, according to etymology and precedent, have been no 
 more than an Earl having jurisdiction on a March or Frontier. 
 A Viscount, according to all precedent, was only an Earl's Deputy, or 
 Sheriff. There had been Earls of March, or of the Marches towards 
 Wales, before there was any Marquess in England ; and the Sheriffs of 
 England had been known, in the French which was spoken in England, 
 as Viscounts or Vicountes, in Latin as Vicecomites, since the Conquest. 
 
 2 Rot. Lit. Claus., 1 Ric. II, m. 37 d, et alibi. 
 
 3 Lb., 30 Ed. I, m. 13 d. * lb., 24 Ed. Ill, pt. 2, m. 3 d, et alibi. 
 5 lb., 10 Ric. II, m. 42 d. 6 lb., 20 Hen. VI, m. 27 d. 
 
THE HOUSE OF LORDS 349 
 
 untimely end in the civil and foreign wars of the period, Chap. XV. 
 or through attainders of High Treason, the number of 
 Temporal Lords had a diminishing tendency. Although, 
 as we have seen, fifty was about their normal number in 
 the middle of the reign of Edward III, there were but 
 twenty-nine summoned to the first Parliament of Henry VII. 
 The number of Abbots and Priors who had seats was about 
 the same ; and the Spiritual Lords were thus in a majority 
 equivalent to the whole Bench of Bishops. This majority 
 was destined to be soon diminished, and not very long after- 
 wards annihilated. In the reign of Henry VII there were 
 about five l creations of new Peers, apart from promotions 
 in the peerage, and from restorations of honours and confir- 
 mations of previous grants. In the first thirty years of the 
 reign of Henry VIII there were, perhaps, twenty new crea- 
 tions apart from promotions, restorations, and confirmations. 
 These had some effect upon the relative proportions of 
 Lords Temporal and Lords Spiritual, but they were followed 
 by an event of far greater moment. 
 
 The most important of all permanent changes ever The disso- 
 effected at any one time in the constituent parts of the tSe^eater 
 House of Lords was that which befel when the greater monas- 
 monasteries were dissolved. It would be beyond the 
 province of this history to trace in detail all the events 
 which rendered such a revolution possible, when the 
 Spiritual Lords having seats in Parliament were commonly 
 equal, if not superior in number, to the Temporal Lords. It 
 may suffice to remark that the doctrines of the Lollards, 
 which afterwards developed into those of the Puritans, had 
 sensibly affected the whole nation, that the power of the 
 Crown had greatly increased since the Wars of the Roses, 
 
 1 It is not, as might be supposed, a very simple task to count the 
 number. There were altogether no less than thirty-nine creations, 
 promotions, confirmations, and restitutions in the peerage of England. 
 List compiled by Mr. R. D. Trimmer, and published in the 47th 
 Report of the Deputy- Keeper of the Records, pp. 79-83. These, 
 however, cannot of course be all considered to make an absolute 
 increase in the number of Peers. 
 
35° CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. from the security given to the throne when Henry VII 
 ascended it, that the enquiries touching the minor 
 monasteries and their results had created a strong prejudice 
 against monasteries in general, and finally that King 
 Henry VIII and his courtiers looked with longing eyes to 
 the spoil within their reach. 
 The Act Most of the Abbots and Priors made a voluntary sur- 
 
 thcSewhich ren der of their possessions, and this, we may be sure, they 
 weresur- would not have done, had they seen the least hope of 
 gaining anything by resistance. High treason and heresy 
 were so near akin in those days of burning theological 
 hatred, and heresy was so nearly identical with difference 
 from the King's religious opinions, that an Abbot who 
 attempted to retain his abbey and his spiritual dignity 
 would almost certainly have paid the penalty with his life. 
 The Acts relating to the dissolution were very skilfully 
 worded. The possessions of those Houses which had been 
 ' voluntarily dissolved were given to the King, and were to 
 be within the survey of the Court of Augmentations of the 
 Revenues of the Crown K Those which came to the 
 King's hands by attainder of Treason were excepted 2 . It 
 was, however, provided in the same Act that all monasteries 
 and their possessions which should in any other way than 
 by surrender come to the King should also vest in the 
 King 3 . As soon as an Abbot or Prior was attainted of 
 Treason the Abbey or Priory became vacant, and the 
 possessions of his House would (if of royal foundation, as 
 would probably be assumed) be taken in the ordinary 
 course into the King's hand, there to remain until 
 a successor should be appointed, and livery should be 
 granted. When therefore, the act of taking possession 
 upon vacancy vested the possessions in the King by Act of 
 Parliament, all difficulties with regard to the corporate 
 character of an Abbot or Prior, or his House, were at an 
 end. 
 The Act By a subsequent Act which placed the franchises and 
 
 to those jurisdictions attached to the possessions of the surrendered 
 1 Stat. 31 Hen. VIII, cap. 13, sees. 1-4. 2 Sec. 4. 3 Sec. 3. 
 
THE HOUSE OF LORDS 35 1 
 
 Abbeys under the survey of the Court of Augmentations l , Chap. XV. 
 the similar franchises and jurisdictions attached to the ,. . 
 
 J 5 which 
 
 possessions of Abbeys which had come into the King's came to 
 hands through attainder, were placed under the survey of j^ndsbf S 
 the Surveyors-General 2 . Thus a separate machinery was attainder. 
 provided for the possessions of abbeys coming to the 
 King's hands through attainder, and not through voluntary 
 surrender. The result, however, after the legal difficulty 
 had been evaded, was the same in both cases. The 
 monasteries were dissolved, the Abbots and Priors ceased 
 to sit in Parliament, and the King had the lands at his 
 disposal. 
 
 The effect was practically to destroy for ever the power Practical 
 of one of the so-called Estates of the Realm. The Lords |^ cti( * n 
 Spiritual, reduced now only to Archbishops and Bishops, power of 
 could never again command alone a majority in the House so - C alled 
 of Lords. They might still turn the scale, as in fact they Estates of 
 
 . . , . —, . / the Realm. 
 
 did, on important divisions in later times. They might 
 sometimes be of use, as a contingent to a political party of 
 the day, but could not dictate terms as an independent 
 body. The few new bishoprics created by Henry out of 
 the spoil of the monasteries still left the Lords Spiritual in 
 such a minority that the Lords Temporal outnumbered 
 them in the proportion of about two to one, and their 
 relative number grew less in later generations. 
 
 At the time of this revolution (for it was little less) an The Act 
 Act was passed ' for placing of the Lords ' in their House, ' ¥"*. f 
 which, while omitting of course all mention of Abbots, the Lords': 
 described the seats of the Bishops and of the Lords ce n or# an 
 Temporal. The most important personage at the moment 
 was the King's Vice-gerent for Ecclesiastical Jurisdiction 
 (Thomas Lord Cromwell), who was to sit above the Arch- 
 bishop of Canterbury. Certain other great Officers of 
 State had different places assigned to them according to 
 their rank, each sitting in one place if below the rank of 
 a Baron, and in another if a Baron or in a higher grade of 
 the peerage. If Peers they were to sit above all Dukes 
 1 Stat. 32 Hen. VIII, cap. 20. sec. 1. 2 Sec. 2. 
 
352 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. 
 
 The early 
 Chancel- 
 lors were 
 ecclesias- 
 tics ; they 
 received a 
 summons 
 only when 
 Bishops. 
 
 except those of the blood royal, if not Peers they were to 
 sit ' at the uppermost part of the [wool] sacks in the midst 
 of the Parliament Chamber.' These officers were the 
 Lord Chancellor, the Lord Treasurer, the Lord President 
 of the King's Council, the Lord Privy Seal, and the Chief 
 Secretary. Except the Lord Chancellor, there is no 
 mention made of the Judges, who had formerly sat as part 
 of the King's Council in his Parliament, though they were 
 still summoned. The Great Chamberlain, the Constable, 
 the Marshal, the Lord Admiral, the Great Master or Lord 
 Steward, and the King's Chamberlain, were to be placed 
 after the Lord Privy Seal, but above all other personages 
 of the same degree as themselves l . 
 
 The Act has, in modern times, lost much of its force, as 
 it is long since there has been a Lord High Treasurer, or 
 even a Lord High Admiral ; and Secretaries of State not 
 unfrequently sit in the House of Commons. One of the 
 officers mentioned, however, is so inseparably associated 
 with the House of Lords that it may be convenient, in 
 this place, to give in outline the story of his connexion 
 with the Parliament. 
 
 In early times the Chancellor would seem to have been 
 commonly in close personal attendance on the King. 
 When a law was made, as it often was before the existence 
 of a true Parliament, by charter, the Chancellor was usually 
 present to seal it with the Great Seal, of which he had 
 charge. His presence in the King's Court or Council 
 appears to have been a matter of course. For many 
 generations after the Conquest the Chancellor was always 
 an ecclesiastic, and most frequently a Bishop. When the 
 writs of summons to Parliament commence, we find that the 
 Bishop- Chancellor is summoned not as Chancellor but as 
 Bishop. The distinction may at first sight appear im- 
 material, but is in fact of some importance. It was only as 
 Bishop that his summons could contain the Praemunientes 
 clause to warn the clergy of his diocese, and it was there- 
 fore necessary that he should be summoned in his episcopal 
 1 Stat. 31 Hen. VIII, cap. 10. 
 
THE HOUSE OF LORDS 353 
 
 capacity. When not a Bishop the Chancellor does not Chap. XV. 
 seem to have been summoned at all. 
 
 The inference to be drawn, however, is not that the As Chan- 
 
 cellors they 
 
 Chancellor was not expected to attend among the Lords, attended 
 
 but that his attendance was necessary in virtue of his office, Parliament 
 
 J ex officio. 
 
 and that it was needless to summon an officer who was 
 
 himself directing the issue of the writs of summons. The 
 
 Chancery was an office of the Parliament from which every 
 
 summons proceeded. The Chancellor consequently knew 
 
 in his official capacity the appointed day and place of the 
 
 meeting of Parliament. 
 
 A remarkable illustration of the fact that the Chancellors The first 
 attended in Parliament, though not summoned, occurs in C eii ors an " 
 the case of Sir Robert Bourchier, the first layman who held attended, 
 the office. There is no record of the issue of any summons not sum- 
 to him. He was not a Peer of the Realm, and had no place moned - 
 in Parliament except as Chancellor. As Chancellor, how- 
 ever, he took his seat, and made that memorable protest 
 which has been mentioned in another chapter. His 
 successor, Sir Robert Parning, also a layman, and not 
 a Peer of the Realm, never received any recorded summons 
 as Chancellor, though, when previously Treasurer, he had 
 been summoned among the Council. The next Chancellor 
 was Robert de Sadington, who, though previously sum- 
 moned among the Council, as Chief Baron of the Exchequer, 
 was not summoned as Chancellor. His successor was 
 John de Ufford, Dean of Lincoln, but again no summons to 
 him appears. He was neither a Bishop nor one of -the 
 Temporal Peers, at the time, and must have been expected 
 to be present ex officio. 
 
 Several Bishops afterwards succeeded to the Chancellor- A Baron 
 ship, and were summoned as Bishops, but the next lay gu^oned 1 
 Chancellors, Thorpe and Knyvet, received no summons in onl y 
 the capacity of Chancellor. So also Sir Richard le Scrope, BaroS. 
 Chancellor in the second year of the reign of Richard II, 
 had no recorded summons. Michael de la Pole, also a lay 
 Chancellor, was summoned to Parliament, but summoned 
 among the Barons, as he had been before he held the office, 
 
 A a 
 
354 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. 
 
 The place 
 of the 
 Chancellor 
 in the 
 House, 
 if a Com- 
 moner. . 
 
 Chancel- 
 lor,Keeper, 
 and Com- 
 missioners 
 of the 
 Great Seal. 
 
 and without any reference to it. John de Scarle, Chancellor 
 at the beginning of the reign of Henry IV, had no recorded 
 summons, nor had Sir Thomas Beaufort, another lay 
 Chancellor. 
 
 It appears needless to pursue the investigation further, as 
 it is clear that, in accordance with the practice of centuries, 
 the Chancellor's presence in Parliament was ex officio, and 
 not in virtue of any writ of summons. He has for centuries 
 been regarded, whether Peer or commoner, as the Speaker 
 or Prolocutor of the House. His place on the woolsack is 
 now usually said to be not technically within the House, 
 though it is difficult to reconcile this opinion with the plain 
 words of the Act of Henry VIII, that the seat is 'in the 
 midst of the Parliament Chamber.' In that very Act, 
 however, it was said that if below the degree of a Baron of 
 Parliament, he had ' no interest to give any assent or dissent ' 
 in the House. He has now no voice or vote, if a commoner, 
 though, in the reign of Edward III, he protested aloud. It 
 seems not impossible that in the days when there were 
 intervals of many years between Parliament and Parliament, 
 his true position was forgotten. It is, however, manifest that 
 the original idea as to his attendance in Parliament ex officio 
 survived the separation of the Council from the Parliament, 
 and that he continued to attend as Chancellor quite in- 
 dependently of the other Judges whose advice could be 
 required by the House of Lords. 
 
 Though the Lord Chancellor has usually had charge of 
 the Great Seal, there have been times when it has been 
 entrusted to a keeper who was not Chancellor. This was. 
 for the most part, a temporary arrangement, but towards the 
 reign of Queen Elizabeth the arrangement was sometimes 
 of a more permanent nature. An Act was then passed 
 declaring that the Lord Keeper of the Great Seal for the 
 time being shall have the same place, pre-eminence, and 
 jurisdiction as the Lord Chancellor of England \ 
 
 From a very early period it happened occasionally that 
 
 the Great Seal was placed in the custody of several persons. 
 
 1 Stat. 5 Eliz., cap. 18. 
 
THE HOUSE OF LORDS 355 
 
 In later times these were known as Lords Commissioners of Chap. XV. 
 the Great Seal. Their position was not very precisely 
 denned until the reign of William and Mary, when it was 
 enacted that they should have all the authority of Lord 
 Chancellor or Lord Keeper and should, if not Peers, rank ' next 
 after Peers and the Speaker of the House of Commons 1 .' 
 
 In relation to the office of Chancellor there is a disability They 
 which came into existence under the Test Act in the reign R™°n C 
 of Charles II, but which does not now affect Lords of Catholics. 
 Parliament in general. In 1829 an Act 2 was passed which, 
 by removing the necessity for a declaration against tran- 
 substantiation, enabled Roman Catholics to sit in either 
 House of Parliament. It was, however, at the same time 
 specially provided that no person professing the Roman 
 Catholic religion should thus be enabled to hold the Office 
 of Chancellor, Lord Keeper, or Commissioner of the Great 
 Seal 3 . 
 
 After the changes effected by Henry VIII, and the The char- 
 settling of the Lords in their places, the character of the ^House 
 House of Lords underwent but little further alteration until underwent 
 the accession of James I. The creations of new Peers were change 
 not much in excess of the extinction of peerages, and mere between 
 
 rr , 1 , the rei g n ° f 
 
 promotions in the peerage did not affect the total number Hem-yVill 
 of the Lords Temporal. After the long reign of Elizabeth f d tha f of 
 
 r t> fc» James 1. 
 
 there seem to have been only some sixty who were capable 
 of sitting and voting in Parliament. 
 
 After James I came to the throne, however, the com- increase 
 position of the House of Lords was considerably modified. ^ e * e e 
 At one time he increased his revenue by the sale of Baronies in the 
 for £ 1 0,000 each, Viscounties for £15,000, and Earldoms 
 for £20,000. In one day (May 4, 1605) he made or pro- 
 moted as many as eight Peers 4 . It is computed that he 
 added no less than fifty-four 5 laymen to the House of Lords. 
 
 1 Stat. 1 Will, and Mary, cap. 21. 2 Stat. 10 Geo. IV, cap. 7. 
 
 3 Sec. 12. * Rot. Lit. Pat., 3 Jac. I, pt. 12, mm. 14-21. 
 
 5 This seems to be the number, after deducting from the total of 
 creations, the promotions in the peerage, restitutions, confirmations, 
 and creations of Scottish and Irish Peers. 
 
 A a 2 
 
356 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. 
 
 The events 
 of the reign 
 of CharlesI 
 and the 
 Common- 
 wealth. 
 
 The abo- 
 lition of 
 feudal 
 tenures. 
 
 Its effect in 
 relieving 
 the Peers 
 of their 
 burdens. 
 
 Most of his successors have followed his example, not indeed, 
 in accepting money for the dignities conferred, but by- 
 creating new dignities with profusion. 
 
 It has been mentioned, in the chapter on the legislative 
 power of the House of Lords, that during the reign of 
 Charles I, the Bishops were excluded from the House by- 
 Act of Parliament, that the Commons afterwards voted 
 themselves to be the law-making power without the assent 
 of King or Lords, that Oliver Cromwell found himself under 
 the necessity, as he thought, of establishing an ' Other 
 House,' or House of Lords, that there was legislation under 
 Charles II by a House of Lords sitting without Bishops, 
 and finally that the Act by which the Spiritual Lords had 
 been excluded was repealed, and they were once again 
 summoned to Parliament. These were but episodes in the 
 main current of history, but a change which was effected 
 during this period of disturbance had an important and 
 lasting effect. 
 
 Feudal tenure by military service, which was an 
 anachronism under the Stuarts, and was abolished during 
 the Commonwealth 1 , rose again into a nominal existence 
 with the restoration of Charles II, only to be finally 
 extinguished immediately afterwards. All tenures by 
 knight-service of the King, or of any other person, were 
 swept away, together with escuage, fines for alienation, 
 wardships, liveries, primer seisins, ouster-le-mains, and values 
 and forfeitures of marriages by reason of any such tenures 2 . 
 
 Though this radical change affected some persons who 
 were not Peers, it affected the Peers in such a manner as to 
 completely change their relation to the King and to the 
 State in general. Under the strict feudal system, and even 
 under the feudal system when somewhat relaxed, there was 
 no Earl and there was no Baron without lands, and the 
 lands of Earls and Barons were held subject to very heavy 
 burdens. Every Baron and every Earl, as being a Baron 
 also, was in theory a soldier, and in theory bound to give 
 his counsel to the sovereign. He had to provide men and 
 1 1656, cap. 4. 2 Stat. 12 Charles II, cap. 24. 
 
THE HOUSE OF LORDS 357 
 
 arms for war. or, if not men and arms, an equivalent in Chap. XV. 
 money. He had to come to the King's Councils and to 
 Parliament when summoned, or, at any rate, to send a proxy 
 with power to consent to any further burdens which were 
 to be imposed. By the abolition of military tenure he was 
 freed from the greatest part of his obligations. 
 
 The summons to Parliament, too, had long been regarded Their titles 
 as an indication of his dignity rather than as a disagreeable p rese rved 
 incident of his position ; and a Peer of the latter part of the b y special 
 
 1 i. i i-i -r^ r 1 • .enactment. 
 
 seventeenth century was as little like a Peer of the reign of 
 Edward II as a modern petty jury is like a petty jury of 
 the thirteenth or fourteenth century. ' Suit of Court ' was, 
 indeed, preserved in general terms, but the feudal as well 
 as other titles of honour, and the ' right to sit ' in the House 
 of Lords were saved to the Peers by special enactment, 
 without any mention of attendance in Parliament as 
 a necessary duty 1 . 
 
 Not only was the position of those who enjoyed the older The newer 
 peerages altered, but later peerages were soon to be created thenceforth 
 under new conditions and for reasons which the Plantagenets of a dif- 
 and even the Tudors could hardly have understood. The character. 
 sovereign began to govern by ministers who formed 
 a Cabinet, and the Cabinet began to be representative of 
 one of two opposing parties. The party which had not 
 power was always striving to obtain it, always, no doubt, in 
 the interest or alleged interest of the State. Political 
 power, however, fell more and more into the hands of the 
 Commons, and the tenure of office by a Cabinet came to 
 depend on the possession of a majority in the Lower House. 
 Service to the State consequently became, in a great measure, 
 identified with service to a party ; and service to a party 
 was very closely associated with a command of votes. 
 A peerage giving a new dignity, and not encumbered with 
 any new burdens, was naturally a much coveted reward ; and 
 the creations of Peers since the Revolution, if not since the 
 Restoration, have been largely in recognition of faithful 
 adherence to political chiefs. 
 
 1 Stat. 12 Charles II, cap. 24, sec. 5, and sec. II. 
 
CHAPTER XV. 
 
 Changes in the Component Parts of the House of Lords. 
 
 Chap. XV. 
 
 The Union 
 with Scot- 
 land. 
 
 No ad- 
 dition of 
 Spiritual 
 Lords to 
 the House 
 of Lords. 
 
 Election of 
 sixteen 
 representa- 
 tive Peers 
 for each 
 Parlia- 
 ment. 
 
 PART II. 
 
 Introduction of the principle of Representation among 
 Peers : the Union with Scotland : Attempts to limit 
 the Peerage: the Union with Ireland. 
 
 WHEN James VI of Scotland succeeded to the English 
 throne as James I of England, there continued to be 
 a separate kingdom of Scotland, and a separate kingdom of 
 England, though the same sovereign was at the head of 
 both. Each had its distinct Parliament and its distinct 
 Peerage. The English House of Lords was consequently 
 not affected by the accession of James I, or by the union of 
 the two crowns, for more than a century. In the reign of 
 Anne, however, a scheme was devised for the complete 
 union of the two kingdoms, and of the two Parliaments. 
 
 Articles of Union were drawn up and subsequently 
 confirmed and ratified by Statute 1 . The effect upon the 
 House of Lords was to add sixteen Lords Temporal but no 
 Lords Spiritual, the established Church of Scotland being 
 Presbyterian and consequently without Bishops. The 
 proportion of Spiritual to Temporal Lords was thus again 
 diminished. 
 
 The sixteen Scottish Peers who, under the Articles of 
 Union, acquired seats as Peers in the Parliament of Great 
 Britain, were to be elected not as perpetual representatives, 
 or as representatives for life, of the Peers of Scotland, but 
 
 1 5 Anne, cap. 8. (Statutes at Large.) The articles had been pre- 
 viously ratified and approved by an Act of Parliament in Scotland. 
 
 
THE HOUSE OF LORDS 359 
 
 only as representatives for the particular Parliament for Chap. XV. 
 which a writ issued directing them to be summoned K So 
 long as they were representatives they were to enjoy all 
 the privileges which the Peers of England had previously 
 had or might subsequently acquire, and in particular the 
 right of sitting upon the trial of Peers. At trials of 
 Peers in the interval between the dissolution of one 
 Parliament and the calling of another into being the sixteen 
 representatives who had sat in the last Parliament were to 
 have the same powers and privileges as any other Peers of 
 Great Britain 2 . 
 
 It was provided that, after the Union, there should be The Chan- 
 one Great Seal for the United Kingdom of Great Britain, Enrfand 
 which was to be different from the Great Seal then used in becomes 
 either kingdom. This was to be used in sealing writs to f Great 
 elect and summon the Parliament of Great Britain, all Britain - 
 treaties with foreign Princes and States, and all public 
 acts, instruments, and orders of State which concern the 
 whole United Kingdom. The Great Seal of England was 
 to be used as before in all matters relating to England 
 alone. Another seal was to be kept in Scotland and used 
 in matters relating to private grants or rights which had 
 usually passed the Great Seal of Scotland 3 . The Lord 
 High Chancellor of England, having custody of the Great 
 Seal of the United Kingdom of Great Britain, became 
 thenceforward Chancellor of Great Britain, and so continued 
 to be after the Union with Ireland, which retained an 
 independent Lord Chancellor. 
 
 All the Peers of Scotland (including those who were not Privileges 
 among the sixteen representatives) were, after the Union, ofScot- eerS 
 to be Peers of Great Britain, and have rank and precedence land, 
 immediately after the Peers of the like orders and degrees 
 in England at the time of the Union, and before all Peers 
 of Great Britain of the like orders and degrees to be created 
 after the Union. They were to be tried as Peers of Great 
 Britain and enjoy all the privileges of Peers as fully as the 
 Peers of England, except the right of sitting in the House 
 1 Stat. 5 Anne, cap. 8, sec. i, art. 22. 2 Art. 23. 3 Art. 24. 
 
360 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. of Lords, and the right of sitting upon the trials of Peers, 
 which were to be enjoyed only by the sixteen repre- 
 sentatives. 
 A new There was thus introduced into the ranks of the peerage 
 
 representa- a numerous class of Peers not entitled to sit in the House 
 tionnow f Lords. There was introduced also an entirely new 
 
 introduced. . J 
 
 principle — that of representation in the House of Lords by 
 means of election. The Sovereign did not send a writ of 
 summons directly to each of sixteen Peers selected by 
 himself as representatives, but a writ to the Privy Council 
 of Scotland l commanding that body to cause the sixteen 
 to be summoned. The sixteen were to be named by the 
 Peers of Scotland, and that by open election and plurality 
 of the voices of the Peers present and of the proxies of 
 those absent 2 . There were 165 upon the Roll, the greater 
 part of whom (not being also Peers of England) remained 
 Peers without seats in the House of Lords when their 
 sixteen representatives had been elected. 
 
 The Privy Council of Scotland, in virtue of an Act 
 passed very soon after the Act of Union, ceased to have 
 any separate existence 3 , and new provisions had to be 
 made for the return of the representative Peers. It was 
 then enacted that when any Parliament of Great Britain 
 was to be summoned and held, 'in order to the electing 
 and summoning the sixteen Peers of Scotland/ a pro- 
 clamation should be issued under the Great Seal of Great 
 Britain commanding all the Peers of Scotland to meet, at 
 an appointed time and place, in Scotland, to elect the 
 sixteen in the manner before provided 4 . 
 Absence of In the Act of Union no provision was made with regard 
 rektineto to tne extmct i° n °f old or the creation of new Peerages of 
 extinction Scotland, and no power was given to Peers of Scotland to 
 creation of serve in the House of Commons of the Kingdom of Great 
 new peer- Britain. In these respects the Union of England with 
 
 a.$7es of 
 
 Scotland: Scotland differed materially from the Union of Great 
 Britain with Ireland. It may have been considered that 
 
 quences. J 
 
 1 Stat. 5 Anne, cap. 8, sec. 1, art. 22. 2 lb., sees. 12 and 13. 
 
 3 Stat. 6 Anne, cap. 6. 4 lb., cap. 23. 
 
THE HOUSE OF LORDS 361 
 
 the creation of new Peers of Scotland with power of Chap. XV. 
 electing representatives would infringe the rights of the 
 electors under the Act of Union. But their number was 
 soon reduced by attainders following the rebellions of 17 15 
 and 1745. Several descendants of those who were attainted 
 were, indeed, restored by Acts of Parliament, in the reign 
 of George IV, to the dignities enjoyed by their ancestors. 
 Among the titles which then re-appeared upon the Roll 
 were those of the Earls of Mar 1 and Carnwath 2 , of Viscounts 
 Strathallan 3 and Kenmure 4 , and of Barons Nairn 5 and 
 DufTus 6 . The natural process of decay, however, threatens 
 the ultimate extinction of the peerage of Scotland, which is 
 already greatly diminished. 
 
 Very soon after the Union the question arose whether ineffectual 
 a Peer of Scotland could be created and sit as a Peer of Great ^g" to 
 Britain. James, second Duke of Queensberry, was created from the 
 Duke of Dover in 1708, and sat in the House of Lords with- L or <is 
 out opposition. In 171 1, however, the Duke of Hamilton £ eer f °f 
 
 - ' ... Scotland 
 
 in the peerage of Scotland had a patent creating him who were 
 Duke of Brandon in the Peerage of Great Britain. The °^ f 
 House of Lords then declared (though only by a majority Great 
 of five) that ■ no patent of honour granted to any Peer of p"tent! y 
 Great Britain, who was a Peer of Scotland at the time of 
 the Union, entitled such Peer to sit and vote in Parliament, 
 or to sit upon the trial of Peers 7 .' The reason of this 
 declaration seems to have been that the majority of Lords 
 considered the number of Scottish Peers who could sit in 
 Parliament to be limited to sixteen in accordance with the 
 principle of representation. Their resolution was not very 
 judicious, because, as soon became apparent, the heir of 
 a Scottish Peer could certainly be created and sit as a Peer 
 of Great Britain, and would not lose his dignity when he 
 succeeded to the Scottish peerage. 
 
 It was not, however, until the year 1782 that the Lords They now 
 reconsidered their decision. They then consulted the q^Son "' 
 
 1 5 Geo. IV, 47. 2 7 Geo. IV, 52. 3 5 Geo. IV, 48. 
 
 « 5 Geo. IV, 49. 5 5 Geo. IV, 50. 6 7 Geo. IV, 51. 
 
 7 Journals of the House of Lords, Dec. 20, 171 1 (vol. xix. p. 346). 
 
362 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. 
 
 Peers of the 
 United 
 Kingdom 
 cannot sit 
 as repre- 
 sentative 
 Peers of 
 Scotland. 
 
 But, as 
 Peers of 
 Scotland, 
 they may 
 vote for 
 representa- 
 tives. 
 
 Judges, who were unanimously of opinion that Peers of 
 Scotland were not disabled by the Act of Union from being 
 newly created and sitting as Peers of Great Britain. They 
 accepted this doctrine, and made no further opposition l . 
 
 This reversal of the previous declaration soon brought 
 into prominence the question whether a representative Peer 
 of Scotland acquiring, by inheritance or creation, a peerage 
 of England or Great Britain, vacated his seat as a repre- 
 sentative. There had been a case in 1 736, when the Duke 
 of Athole, being a representative Peer, established a claim 
 to the English barony of Strange by inheritance, and yet 
 continued to sit as representative. For some reason no 
 opposition was made at the time, and there was conse- 
 quently no definite decision. In 1786, however, two of the 
 sixteen representative Peers were created Peers of Great 
 Britain. One was William, fourth Duke of Queensberry, 
 who though succeeding to the Scottish dukedom had not 
 succeeded to the English dignities of the second Duke, and 
 now had his patent as Baron Douglas of Amesbury. The 
 other was James, eighth Earl of Abercorn, who had his patent 
 as Viscount Hamilton. In the following year the matter was 
 brought before the House of Lords, which resolved, in 
 accordance with the report of a Committee of Privileges, 
 ' that the Earl of Abercorn and the Duke of Queensberry 
 had ceased to sit as representatives of the Peerage of 
 Scotland V 
 
 It was long held by the House of Lords, that Peers of 
 Scotland, disqualified for sitting as representative Peers, by 
 reason of holding peerages of Great Britain, were dis- 
 qualified to vote at the election of the representatives 3 - In 
 1793 , however, though there were some dissentients, the 
 contrary opinion prevailed ; and since that time all the 
 Peers of Scotland, otherwise duly qualified, whether holding 
 
 1 Journals of the House of Lords, June 6, 1782 (vol. xxxvi. p. 517). 
 
 2 lb., Feb. 14, 1787 (vol. xxxvii. pp. 594-5) ; Parliamentary History, 
 vol. xxvi. 598-607. 
 
 3 Journals, Jan. 21, 1708-9 (vol. xviii. p. 609); id., May 18, 1787 
 (vol. xxxvii. p. 709) ; Parliamentary History, vol. xxvi. 11 58. 
 
 4 Journals, June 6, 1793 ( v °l- xxxix. p. 726). 
 
THE HOUSE OF LORDS 363 
 
 separate peerages of Great Britain or of the United Chap. XV. 
 Kingdom, or not, have had their votes admitted. 
 
 The jealousy shown by the House of Lords just after the Attempts 
 Union with Scotland, in their efforts to limit the number of Lords to 
 Scottish Peers to the sixteen representatives, was exhibited restrict the 
 
 _ . . , creation of 
 
 somewhat later in another fashion. Cjueen Anne, with peerages, 
 the object of securing a majority for the Court party, 5*** 
 created no less than twelve Peers at once — a very consider- of the 
 able number in relation to the total of those already having * 
 
 seats. This use of the prerogative was disliked by the 
 Peers of longer standing, and a few years afterwards they 
 made an attempt to prevent any similar action in the future. 
 In 1 71 9 a bill was introduced in which it was proposed 
 that 'the number of Peers of Great Britain on the part 
 of England' should never be enlarged by more than six. 
 There was, however, an exception in favour of Princes of 
 the Blood Royal ; and upon the extinction of a peerage the 
 Sovereign might fill up the vacancy. It was also proposed 
 that the principle of electing representative Peers of Scotland 
 should be abandoned, and that twenty-five hereditary Peers 
 should take the place of the sixteen representatives l . 
 
 The third reading of the bill in the House of Lords was The 
 adjourned from the 14th to the 24th of April, and Parliament defeated 
 was prorogued on the 18th. In the following November, by the 
 however, another bill of similar purport, after passing the 
 House of Lords, was sent down to the House of Commons. 
 Had it become law, it would have forced the development 
 of the Constitution in later times into a totally different 
 channel. The Commons saved the prerogative of the Crown ; 
 and it was remarked, in a somewhat cynical manner, by 
 Blackstone that their leaders 'were then desirous to keep 
 the avenues to the other House as open and easy as 
 possible-.' Robert Walpole at any rate strongly opposed 
 the Bill, which was lost by a majority of 269 to 177 3 . 
 
 The Union with Ireland had the effect of introducing The Union 
 two new representative elements into the House of Lords. J^jjj . Ir t e wo 
 
 1 Parliamentary History, vol. vii. 589-594. 
 
 2 1 Com. 157. :i Parliamentary History, vol. vii. 606-627. 
 
364 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. The established Church of Ireland being at the time Epi- 
 new repre- scopal, and not like that of Scotland Presbyterian, the Lords 
 
 sentative 
 
 elements Spiritual of Ireland, as well as the Lords Temporal, obtained 
 
 added. representation in the Parliament of the United Kingdom. 
 
 Union In the year 1800, the two Houses of the two Parliaments 
 
 Churches °^ Great Britain and of Ireland respectively, agreed upon 
 
 of England articles for the union of Great Britain and Ireland, in order, 
 
 land. as was said at the time, ' to promote and secure the essential 
 
 interests of Great Britain and Ireland, and to consolidate 
 
 the strength, power, and resources of the British Empire V 
 
 By the fifth article it was provided that the Churches of 
 
 England and Ireland, as then established, should be united 
 
 into one Protestant Episcopal Church, to be called the 
 
 United Church of England and Ireland. A clause was 
 
 added which has a strange sound, since, by the irony of 
 
 fate, the Church of Ireland has been disestablished : ' the 
 
 continuance and preservation of the said united Church as 
 
 the established Church of England and Ireland shall be 
 
 deemed and taken to be an essential and fundamental part 
 
 of the Union V 
 
 According to the fourth article four Lords Spiritual of 
 Ireland, ' by rotation of Sessions,' and twenty-eight Lords 
 Temporal of Ireland, elected for life by the Peers of 
 Ireland, were to be the number to sit and vote, on the part 
 of Ireland, in the House of Lords of the Parliament of the 
 United Kingdom 3 . 
 
 The mode of summoning and returning both the Lords 
 Spiritual and the Lords Temporal was regulated by an 
 Act passed in the Parliament of Ireland before the com- 
 mencement of the Union, and incorporated in the English 
 and Irish Acts of Union. 
 Four repre- With regard to the Lords Spiritual it was provided that 
 BkhopTto one of the four Archbishops of Ireland, and three of the 
 sjt by rota- eighteen Bishops of Ireland, should sit in the House of 
 sessions. Lords of the United Parliament in each session. The 
 Primate of all Ireland (the Archbishop of Armagh) was to 
 
 1 Stat. 39 & 40 Geo. Ill, cap. 67, Preamble. 
 
 2 lb., cap. 67. sec. 1. art. 5. ' 6 lb., art. 4. 
 
THE HOUSE OF LORDS 365 
 
 sit in the first session, the Archbishop of Dublin in the Chap. XV. 
 second, the Archbishop of Cashel in the third, the Arch- 
 bishop of Tuam in the fourth, and so by rotation of sessions 
 ' for ever,' the rotation to proceed regularly and without 
 interruption from session to session, notwithstanding any 
 dissolution or expiration of Parliament. The three suffragan 
 Bishops were also to sit according to rotation of sessions 
 in the order set forth in the Act. 
 
 With regard to the Lords Temporal it was provided that Twenty- 
 the twenty-eight representatives should be elected by the sentadve^ 
 Temporal Peers of Ireland in the manner prescribed. Those Lords tobe 
 chosen by the majority of votes were, during their respec- iif e . 
 tive lives, to sit as representatives of the Peers of Ireland 
 in the House of Lords of the United Kingdom, and be 
 entitled to receive writs of summons to every Parliament 1 . 
 
 The four Lords Spiritual sitting by rotation of sessions, Privileges 
 and the twenty-eight Lords Temporal sitting as repre- £ f ^J e 
 sentatives for life, were to have the same privileges of Spiritual 
 Parliament as those belonging to the Lords of Parliament pora i ™~ 
 on the part of Great Britain, and the same rights in respect Ireland, 
 of sitting and voting on the trial of Peers. All the Lords 
 Spiritual of Ireland were to have rank and precedence 
 immediately after the Lords Spiritual of the same rank 
 and degree of Great Britain, and enjoy the same privileges, 
 except those of sitting in the House of Lords and on the 
 trial of Peers, which were restricted to the four sitting by 
 rotation. All the holders of temporal peerages in ex- 
 istence at the time of the Union were to have rank and 
 precedence immediately after all persons holding peerages 
 of the like orders and degrees in Great Britain. All 
 peerages of Ireland created after the Union were to have 
 ' rank and precedence with the peerages of the United 
 Kingdom so created according to the dates of their 
 creations.' All peerages both of Great Britain and Ireland 
 were, in all other respects, to be considered peerages of 
 the United Kingdom. The Peers of Ireland were, as Peers 
 of the United Kingdom, to be sued and tried as Peers, and 
 1 Stat. 39 & 40 Geo. Ill, cap. 67. sec. 1. art. 4, and sec. 2. 
 
366 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. 
 
 Restriction 
 of the 
 number of 
 peerages of 
 Ireland : 
 provisions 
 for new 
 creations. 
 
 Position of 
 Peers of 
 Ireland as 
 members of 
 the House 
 of Com- 
 mons. 
 
 The 
 
 Spiritual 
 Lords of 
 Ireland 
 excluded 
 from the 
 House on 
 the Dises- 
 tablish- 
 ment of the 
 Church of 
 Ireland. 
 
 were to enjoy all privileges of peerage as fully as the Peers 
 of Great Britain, except those of sitting in the House of 
 Lords and on the trial of Peers, which were restricted to 
 the twenty-eight representatives K 
 
 Special provisions were made with regard to the number 
 of peerages of Ireland which were to continue in existence. 
 No new creation of a Peer of Ireland was to be made until 
 three of the existing peerages had become extinct, but as 
 often as three became extinct one new peerage might be 
 created. As soon, however, as the number had been reduced 
 to one hundred, the Crown might create one Peer whenever 
 any one of the hundred peerages became extinct, so that the 
 Peerage of Ireland might be kept up to the number of one 
 hundred, over and above the number of Irish Peers who 
 might be entitled, by descent or creation, to an hereditary 
 seat in the House of Lords of the United Kingdom 2 
 
 A Peer of Ireland might, unless he was one of the Irish 
 representative Peers, be elected and serve in the House of 
 Commons of the United Kingdom, as member for any 
 county, city, or borough of Great Britain, but not of 
 Ireland. As long, however, as he continued to be a member 
 of the House of Commons, he was not to be entitled to the 
 privilege of peerage, or capable of being elected one of 
 the Irish representative Peers, or of voting at any election 
 of such Peers, and he was liable to be sued, indicted, and 
 tried as a commoner 3 . 
 
 The proportion of four Spiritual Lords to twenty-eight 
 Temporal Peers, as representatives for Ireland, was, perhaps, 
 not unfairly arranged in relation to the existing numbers of 
 each class. The effect, however, was to add only four to 
 the total number of Spiritual Lords in the House, and not 
 in any way to give increased power to the Church. Even 
 this small accession of strength to the Lords Spiritual was 
 destined to be lost in seventy years. In 1869 was passed 
 the Act ' to put an end to the establishment of the Church 
 of Ireland V The union of the Churches of England and 
 
 1 Stat. 39 & 40 Geo. Ill, cap. 67. sec. 1. art. 4. 
 
 2 lb. 3 lb. 4 The Irish Church Act, 1869. 
 
THE HOUSE OF LORDS 367 
 
 Ireland was then dissolved, and the Church of Ireland Chap. XV. 
 ceased to be established by law. It was also expressly pro- 
 vided that, after the end of the year 1870, no Archbishop 
 or Bishop of the Church of Ireland should, in that capacity, 
 be summoned or qualified to sit in the House of Lords K 
 
 The representatives of the Temporal Peers of Ireland Changes 
 were of course not affected by a Statute which had relation to 
 reference solely to the Church, and they retained their the re P re ~ 
 
 J . r sentative 
 
 right to sit after election, in accordance with the terms of Peers of 
 the Act of Union. In the same year, however, a bill was Jj^same 1 
 introduced by Earl Grey with the object of making year. 
 a change in their position. It was proposed that their 
 number should be no longer limited to twenty-eight, but 
 should be not less than twenty-eight and not more than 
 thirty. It was also suggested each Peer having a right to 
 vote at the election of representatives should be empowered 
 to give three votes instead of one, and to give them all in 
 favour of a single candidate or to divide them amongst two 
 or three, as he might think fit. 
 
 A greater change was contemplated in relation to the And in re- 
 representative Peers of Scotland. It was proposed that thercpre- 
 instead of sitting only during one Parliament, they should be sentative 
 elected, like the representative Peers of Ireland, for life, and Scotland. 
 that their number should not be restricted to sixteen, but 
 should be not less than sixteen and not more than eighteen. 
 Like the Irish Peers, the Scottish Peers were to be allowed 
 three votes at an election of representatives, and either to 
 give them all for a single candidate or to divide them 2 . 
 
 When, however, the second reading of the bill was moved, The pro- 
 an amendment was carried to the effect that the subject p< ^^ not 
 in general should be referred to a select committee 3 . The 
 committee was duly appointed, and a report 4 was received 
 from it, but no further action was taken, and the law con- 
 cerning the representative Peers of Scotland and Ireland 
 remains unchanged. 
 
 1 The Irish Church Act, 1869, sec. 13. 
 
 2 H. L., No. 50. Ordered to be printed, April 9, 1869. 
 
 3 Hansard's Debates, third series, vol. cxcv, 1677-1694. 
 
 4 H. L., No. 112, June 3, 1869. 
 
CHAPTER XV. 
 
 Changes in the Component Parts of the House of Lords. 
 
 PART III. 
 
 Rapid increase in the Number of Peers: Modern Attempts 
 to exclude the bishops : peerages for life : conclusion. 
 
 Chap. XV. TT7HEN George I came to the throne the number of 
 
 V V Temporal Lords had already risen to 194, of whom 
 
 The num- sixteen we're the Representative Peers of Scotland. There 
 
 Temporal were thus I 7^ Peers having hereditary seats in the House 
 
 Lords at f Lords, of whom twenty were minors l , 
 
 the acces- 
 
 sionof From this time forward the process of creating new 
 
 George I. hereditary peerages has continued, as well as the natural 
 
 Screaseln process of extinction ; but, since the accession of George III, 
 
 the number the growth of new Peers has far exceeded the disappearance 
 
 of Peers • 
 
 the Reform of ancient titles, and has almost kept pace with the rise in 
 mis of the p p U l a tion of the British Islands. Ministry after 
 ministry, whatever its politics, has rewarded its followers 
 with honours, and the creation of the new dignities more 
 and more rapidly outstrips the decay of the old. At the 
 coronation of George IV, and again at the coronation of 
 William IV, there was a large simultaneous creation of new 
 Peers. The dignities conferred by William IV may have 
 had some relation to the struggle over the Reform Bills of 
 1 83 1 ; and there seemed at one time a probability that this 
 mode of coercing the Lords would be applied on a far 
 greater scale. As explained, however, elsewhere, the diffi- 
 culty was overcome in another way, and the development 
 of the peerage went on, in even tenour, as before. 
 
 1 List of the Lords Spiritual and Temporal, &c. Printed 171 5. 
 
THE HOUSE OF LORDS 369 
 
 The feelings evoked by the Reform Bills of 1831-2 were Chap. XV. 
 not immediately reduced to an absolute calm, and shortly Abortive 
 afterwards (in 1834) found vent in a project to exclude the projects to 
 
 exclude 
 
 Bishops, once again, from the House of Lords. The House theBishops 
 of Commons, nevertheless, refused even leave to brin^ in J r T om the 
 
 House 
 
 a Bill ' for relieving the Archbishops and Bishops of the 1S34-37. 
 Established Church from their legislative and judicial 
 duties in the House of Peers 1 .' The attempt was made 
 again in different forms in 1836 and 1837, but on each 
 occasion the Commons negatived, by very large majorities, 
 the proposed resolutions which reflected on the position 
 of the Bishops among the Temporal Lords in the Upper 
 House 2 . 
 
 Nearly twenty years elapsed before there was any further The ques- 
 agitation of a serious kind with regard to the constituent pee rages 
 parts of the House of Lords. A question was then raised for life: an 
 
 1-11 «itt r historical 
 
 which led to a remarkable controversy in the House of retrospect 
 Lords itself. It was the cause of much learned argument, necessai T- 
 and of a careful search for ancient precedents. For its due 
 comprehension a short historical retrospect is necessary. 
 
 The power of the Crown to create a subject a Peer for 
 life has sometimes been contested, sometimes very warmly 
 supported. It is, however, needless to carry the investigation 
 further back than the time at which the expression Peer 
 of the Realm rirst came into use. 
 
 Robert de Vere, Earl of Oxford, was in the reign of Robert de 
 Richard II created Marquess of Dublin for life 3 . Though, ^ when 
 however, he acquired a new dignity for life only, he was Marquess 
 not thus made a Peer, because he was already a Peer when anc i Duke 
 he was made a Marquess. Moreover, this creation was not ? f I f. e r la " d ' 
 
 . ^ for life, in 
 
 by the King alone, but with the assent of the Lords and the reign of 
 Commons in Parliament. He shortly afterwards surren- ^saheady 
 dered his patent of creation as a Marquess, and was then a Peer. 
 
 1 Journals of the House of Commons, March 13, 1834 (vol. lxxxix. 
 d. 120). 
 
 2 lb., April 26, 1836 (vol. xci. p. 293), and Feb. 16, 1837 (vol. xcii. 
 
 P- 57). 
 
 3 Rot. Pari., 9 Ric. II, no. 17 (printed, vol. iii. p. 209). 
 
 Bb 
 
37° 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. 
 
 Edward, 
 son of 
 Edmund 
 Duke of 
 York, 
 created 
 Earl for the 
 term of his 
 father's life 
 
 Promotion 
 of Peers in 
 the reign of 
 Richard II. 
 
 created Duke of Ireland by a charter which did not confer 
 any rights of inheritance l . This again did not make him 
 a peer for life ; it gave only an addition to the Earldom 
 of Oxford which he already enjoyed. It did not in any 
 way affect the claim of his heirs to be Peers as Earls of 
 Oxford. It was only a promotion made by the King, to 
 which the Lords and Commons in Parliament assented. 
 
 Edward, son of Edmund Duke of York, was in the same 
 reign created Earl of Rutland, not for his own life, but for 
 the life of his father. This also was with the assent of the 
 Lords and Commons in Parliament 2 . The case does not 
 seem to have any relation to life-peerages in the ordinary 
 acceptation of the term. 
 
 Eight years afterwards (in the twenty-first year of the 
 reign of Richard II) there were several promotions in the 
 peerage, which though not for life only, have nevertheless 
 an important bearing on the subject of peerages for life. 
 Thomas Holland, Earl of Kent, was created Duke of 
 Surrey ; John Holland, Earl of Huntingdon, was created 
 Duke of Exeter ; Edward, Earl of Rutland, was created 
 Duke of Albemarle ; John Beaufort, Earl of Somerset, was 
 created Marquess of Dorset ; and Thomas, Lord le Despenser, 
 was created Earl of Gloucester. All these creations took 
 effect on Michaelmas Day, when the King sat in Parlia- 
 ment, wearing his crown, and holding his sceptre. The 
 charters of creation had been already drawn out and were 
 read in Parliament ; and there the ceremony of investiture 
 was solemnly performed. In each case the newly-made 
 Dukes, Marquess, and Earl were to hold their dignities to 
 themselves and the heirs male of their bodies 3 . In none 
 of these cases was there any new Peer created. 
 
 1 Rot. Chart., 10 Ric. II, no. 2 (printed in Rep. Dig. Peer, vol. v. 
 
 P- 79)- 
 
 2 Rot. Pari., 13 Ric. II, no. 23 (printed, vol. iii. p. 364) ; Rot. Chart., 
 
 13 Ric. II, no. 5 (printed in Rep. Dig. Peer, vol. v. p. 85). 
 
 3 Rot. Pari., 21 Ric. II, no. 35 (printed, vol. iii. p. 355) ; Rot. Chart. 
 21 Ric. II, nos. 21, 23. The charter to Beaufort appears on the roll 
 to have been vacated, but the creation in Parliament seems nevertheless 
 to have been considered operative. 
 
THE HOUSE OF LORDS 371 
 
 When Henry IV ascended the throne, two years later, Chap. XV. 
 all these recently-promoted Peers were degraded to their 
 previous rank, but not deprived of their peerage. A judge- Degrada- 
 ment to this effect was pronounced in Parliament by the same p eers 
 Chief Justice of the Court of Common Pleas as being that in . the „ 
 
 J & reign of 
 
 of the Lords in Parliament with the assent of the King. Henry IV. 
 
 It was to affect both the persons named and their heirs \ 
 
 The inference from these events is that a promotion in Promo- 
 
 the peerage was not held to be subject to the same rules as p 1 ™^ 1 e 
 
 the creation of a new peerage. It gave precedence among not subject 
 
 Peers, but nothing more. The Crown seems to have ni i esas 
 
 claimed the right to give precedence, as one of its pre- new cre _ a ' 
 
 « .1 .... r^, . tlons of 
 
 rogatives, but not, perhaps, without limitation. This, too, Peers. 
 
 would be strictly in accordance with the old idea of the 
 
 Pares Curiae or Curtis, or great feudal tenants of the Crown. 
 
 They all equally owed service to the King's Court, and 
 
 none could be judged in such a manner as to lose his fief 
 
 except with the assent of his peers. They thus formed 
 
 a class apart from the rest of the population, even though 
 
 the King might, either with or without their assent, assign 
 
 the position in which they were to sit. When they became 
 
 Peers of the Realm, instead of Pares Curtis, their rank as 
 
 Peers distinguished them from other subjects in the realm, 
 
 and was independent of their relations one to another. 
 
 A promotion in the peerage was, therefore, altogether 
 
 different in nature from the creation of a Peer. 
 
 In the reign of Henry V, Thomas Beaufort, Earl of Case of 
 
 Dorset, was created Duke of Exeter by the King sitting in Beaufort 
 
 Parliament, and straightway took his seat in the presence Duke of . 
 
 Exeter in 
 
 of the Lords Spiritual and Temporal, and of the Commons the reign of 
 in Parliament assembled 2 . In the Letters Patent bearing Heni 7 v - 
 date the same day (November 18, 1416), the creation 
 purports to be by the King alone, and for life only 3 . 
 
 1 Rot. Part., 1 Hen. IV, Placita Coronae, no. 9 (printed, vol. iii. 
 pp. 451-452). 
 
 2 lb., 4 Hen. V, no. 13 (printed, vol. iv. p. 96). 
 
 3 Rot. Lit. Pat., 4 Hen. V, m. 11 (printed in Rep. Dig. Peer, vol. v. 
 p. 182). 
 
 Bb 2 
 
372 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. 
 
 Peeresses 
 for life : 
 these do 
 not affect 
 the consti- 
 tution of 
 the House 
 of Lords. 
 
 Contradic- 
 tory state- 
 
 A grant was nevertheless made, at the same time, at the 
 request of the Commons, and with the assent of the Lords 
 Spiritual and Temporal, of one thousand pounds per annum 
 to the Duke and the heirs male of his body, for the better 
 support of the dignity l . It seems, therefore, that it was in 
 contemplation to give him more than an estate for life in 
 his dukedom. In any case it will be observed that this 
 is not an instance of a creation of a Peer for life, as 
 Thomas de Beaufort was already a Peer and an Earl, and 
 the loss of his dukedom would not have deprived him of 
 his peerage. 
 
 In the reign of James I, Mary, Lady Compton. the 
 mother of the King's favourite, George Villiers (^successively 
 Baron Whaddon, Viscount Villiers, Earl 2 , Marquess, and 
 Duke of Buckingham), was created Countess of Buckingham 
 for her life 3 . This creation, however, did not and could 
 not have any effect upon the constitution of the House of 
 Lords. It was a mere compliment to the lady. The 
 limitation for her life was a matter of necessity, because 
 otherwise the Buckingham title would have descended to 
 her eldest son John, afterwards Viscount Purbeck, and 
 there would have been two Buckingham peerages possessed 
 by two brothers. 
 
 There are several other instances of the creation of 
 Peeresses for life only, in the higher grades of the peerage ; 
 but, until quite recently, there had been only one creation 
 of a Baroness for life, that of Baroness Belasyse in 1 674. 
 None of these cases, however, are of much importance in 
 the history of the House of Lords, because neither the 
 Peeress for life only, nor her issue, as her heir, could have 
 any seat in the House. 
 
 Sir Edward Coke is sometimes cited as an authority to 
 
 1 Rot. Lit. Pat., 4 Hen. V, m. 13 (printed, pp. 182-183). 
 
 2 This fact is stated somewhat differently by the Earl of Clarendon 
 in his History of the Rebellion : ' though she was married to a private 
 gentleman, Sir Thomas Compton, she had been created Countess of 
 Buckingham, shortly after her son had first assumed that title.' 
 
 3 Rot. Lit. Pat., 16 James I, part 11. no. 10. 
 
THE HOUSE OF LORDS 373 
 
 prove the antiquity of peerages for life. His words, however, Chap. XV. 
 do not altogether appear to warrant the meaning attributed ments f 
 to them. If a baron ' be created by patent,' says Coke, Coke as 
 1 he must of necessity have these words, his heirs or the peerages 
 heirs males of his body, or the heirs of his body, or other- 
 wise he hath no inheritance 1 .' The interpretation, however, 
 is not that he has a peerage for life. Sir Edward Coke 
 himself tells us exactly the reverse. If a Baron ' be created 
 by Letters Patents the state of inheritance must be limited 
 by apt words, or else the grant is void 2 .' There may be 
 nobility ' for term of life, by act in law, without any 
 actual creation ; as, if a Duke take a wife, by the inter- 
 marriage she is a Duchess, and so of a Marquess, an Earl, 
 and the rest 3 .' This again would, of course, not in any way 
 affect the constitution of the House of Lords. 
 
 In another passage, however, Coke does say that 'as Obiter 
 
 c y'r 1 1 1 • dictum as 
 
 an estate for life may be gained by marriage, so may to crea tion 
 the King create either man or woman noble for life, but of Earls 
 
 - . .... for life. 
 
 not for years, because then it might go to executors or 
 administrators 4 .' He bases this statement solely on one 
 of his own reports 5 , but the report does not seem to be 
 a sufficient ground for so wide a generalization. The case 
 which he cites is one having relation not to peerages 
 generally but to offices, and in particular to the office of 
 Marshal of the Marshalsea. The point which was determined 
 was that the grant of the office for a term of years was void. 
 It was said, obiter, by way of illustration, that in ancient 
 times an Earl had the custody of a county and was called 
 Shire Reeve, and that afterwards this custody was trans- 
 ferred to the Sheriff, who was the Earl's deputy. ' But, 
 as the King cannot grant to one that he and his executors 
 or administrators shall be Counts or Earls for years (for 
 then his executors or administrators, one being appointed 
 by himself, the other by the Ordinary, would be Earls), 
 so, without question the King may create an Earl for life, 
 in tail, or in fee.' 
 
 1 Co. Litt., 9 b. ' 2 lb., 16 b. 3 lb. 
 
 4 Jb. 5 9 Rep. 97-98 (Reynel's case). 
 
374 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. This remark, not made in any case having relation to 
 It had no t ^ ie P eera g e > made in a case having relation solely to 
 relation to offices, and made in illustration of the estate which could 
 general, t> e acquired in an office, has been quoted again and again 
 but only to j- show that the Crown has the power to create a peerage 
 
 Earls man r r o 
 
 official of any kind for life. The citation of the same case, genera- 
 capacity. t j on a ft er generation, has produced the appearance of 
 unanimous belief among the legal authorities who have 
 cited it during two centuries and a half. The opinions 
 founded upon it, however, cannot be of greater weight 
 than the report itself, and in the report there is practically 
 no decision at all upon the general question of life 
 peerages. 
 
 As has been shown elsewhere, an earldom was, in its 
 origin, an administrative, legal, and military office, which 
 only became strictly hereditary by degrees. The Judges 
 in Reynel's case brought into prominence the official 
 character of the early earldoms in order to use it in illus- 
 tration of the points under consideration. They did not 
 say that the King could make any man a Peer of any rank 
 for his life alone, because he could not make a Marshal 
 of the Marshalsea for a term of years only, but they did 
 say that he could not make a Marshal of the Marshalsea 
 for a term of years, because he could not make other officers, 
 and among them Earls, for such a term. No point affecting 
 the peerage was touched in the report except that of the 
 earldoms in their official character, and even that point 
 was not discussed in relation to any particular earldom. 
 Since the time of the Conquest the Earls had commonly 
 been Barons, and the creation of an Earl, either for life 
 or otherwise, was not necessarily or even probably the 
 creation of a new Peer. The remark in Reynel's case had 
 thus no practical bearing on the question whether the 
 Crown could create a new Peer for the term of his life 
 alone. 
 
 Lords for When there is an express provision that a man having 
 
 plerTge. " 1 a grant of the name and title of Lord, is to have no place 
 
 or voice in Parliament, it must be obvious that he has 
 
THE HOUSE OF LORDS 375 
 
 no place in the history of the House of Lords. It is, Chap. XV. 
 
 therefore, unnecessary to say anything more of Lord 
 
 Hay, who was made a Lord of this kind in 1606 *, or of 
 
 any similar case. They have practically no bearing upon 
 
 the power of the Crown to create a Peer for life only with 
 
 all the privileges of peerage. 
 
 Thus far all the supposed proofs of the creation of No early 
 a life-peerage in the person of a man seem to fail. There cre ation of 
 are, as we have seen, instances of promotions in the peerage a new P e £F" 
 for life only. There are also many instances of the creation life only, in 
 of Peers for life, with remainders over to other persons and of 6 ^!^™ 
 their heirs 2 . These, however, are not true instances of the 
 creation of peerages for life, though the first holder, in 
 each case, enjoyed the peerage for his life only. 
 
 There is an important difference between the creation Difference 
 of a Peer for life and the creation of a life-peerage. crea tion of 
 No one, whatever the form of creation, can enjoy his f Peer for 
 
 life and 
 
 peerage for a longer term than his life. If any one could creation of 
 be created a Peer for his own life only, without any re- f P< j^f ge 
 mainder, he would hold a life-peerage. If any one is 
 created a Peer for his own life with a remainder over, 
 though he becomes a Peer for life, the peerage is not a life- 
 peerage alone. An estate in the peerage vests in the 
 remainder-man at the same time as in the Peer for life ; 
 the remainder-man has a present interest in his future 
 
 1 Rot. Lit. Pat., 4 Jac. I, part 1. m. 36. 
 
 2 Among these may be mentioned the creation in 1628 of Baptist 
 Hicks as Baron Hicks and Viscount Campden, for life, with remainder 
 to Edward, Baron Noel of Ridlington and the heirs male of his body 
 (Rot. Lit. Pat., 4 Car. I, part 39. no. 7) ; that of Francis, Baron of Duns- 
 more, in 1644, as Earl of Chichester, for life, with remainders over (Rot. 
 Lit. Pat., 20 Car. I, no. 12) ; that of Hugh, Duke of Northumberland, 
 in 1784, as Lord Lovaine, Baron of Alnwick, for life, with remainder to 
 a second son Algernon Percy, and the heirs male of his body (Rot. 
 Lit. Pat., 24 Geo. Ill, part 4. no. 6) ; and that of George, Duke of 
 Montagu, in 1786, as Baron Montagu of Boughton, for life, with 
 remainder to the second and other sons of Elizabeth, Duchess of 
 Buccleuch, successively in tail male (Rot. Lit. Pat., 26 Geo. Ill, 
 part 9. no. 18). The last creations, it will be observed, did not give 
 any new seat in the House of Lords until the remainders came into 
 operation. 
 
376 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. peerage. The peerage differs from one in the more 
 ordinary form of creation only in the limitation affecting 
 the successors of the first holder. It is true that in such 
 cases the blood of the first holder is not ennobled, but it 
 will be found that where such cases have occurred the first 
 holder had no issue, or was already of noble blood and 
 acquired a new peerage, though nominally for his own life, 
 yet really, by force of the remainder, for some member 
 of his own family. Except in virtue of recent Statutes 
 there has, since the time when the expression ' Peer of the 
 Realm ' first came into use, never, so far as is known, been 
 any creation for life alone, which has conferred a new 
 seat in the House of Lords. 
 Attempt to The subject of life-peerages was never brought into 
 peerage prominence and never underwent serious discussion before 
 only to the year J80. It was at that time thought expedient to 
 
 Sir James . 
 
 Parke, as strengthen the House of Lords in the judicial capacity, 
 
 W V ° n \ an d it was apparently believed that for this object Peers 
 
 dale, in might be created for life only. It was supposed that 
 
 5 ' the House might thus have valuable aid from men 
 
 whose means would be insufficient to support the dignity 
 
 of an hereditary peerage. Under the advice, as it would 
 
 seem, of Lord Cranworth, who was then Lord Chancellor, 
 
 Her Majesty directed the issue of Letters Patent purporting 
 
 to create Sir James Parke (who had been one of the Barons 
 
 of the Exchequer) Baron Wensleydale and a Peer ' for and 
 
 during the term of his natural life.' 
 
 Proceed- The Patent bore date January 16. On the following 
 
 Lords': ^ February 7 there was a long debate in the House of Lords ; 
 
 Resolution anc | on the motion of Lord Lyndhurst, an ex-chancellor, 
 
 grantee the Letters Patent were referred to the Committee for 
 
 could^not Privileges by a majority of thirty-three. There was a long 
 
 in Parlia- discussion in the Committee for Privileges on February 12, 
 
 ment ' a further debate in the House on the same day, and 
 
 another discussion in the Committee for Privileges on 
 
 February 18. On February 22 a motion was made, in 
 
 the House, that the question should be referred to the 
 
 Judges, and this, after debate, was negatived. On the 
 
THE HOUSE OF LORDS 377 
 
 same day Lord Lyndhurst moved, in the Committee for Chap. XV. 
 Privileges, a resolution '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 Parlia- 
 ment.' On a vote being taken there were Content ninety- 
 two, Non-content fifty-seven, or a majority of thirty-five in 
 favour of the motion. When the report of the Committee 
 for Privileges was brought up on February 25, Lord 
 Granville intimated that the Government would not oppose 
 its confirmation. It was then * resolved and adjudged 
 by the Lords Spiritual and Temporal in Parliament 
 assembled' in accordance with the terms of the report. 
 
 Although, however, there was no opposition on the Protest by 
 part of the Government, there were several protests. Lords. "^ 
 They were in three different forms. The first was signed 
 by Baron Cranworth, Baron Sundridge (the Duke of 
 Argyle), Earl Granville, Baron Stanley of Alderley, the 
 Marquess of Lansdowne, the Earl of Harrowby, Baron 
 Panmure, Baron Glenelg, the Marquess of Breadalbane. 
 and Viscount Sydney. The grounds of their dissent were, 
 among others, that ' according to the uniform opinions of 
 the* highest legal authorities, for above two centuries and 
 a half, the Crown has the prerogative of creating a Peer for 
 life,' and that 'the creation of a peerage for life with 
 a limitation in the patent to collateral relatives has been 
 common even in modern times, and no such patent would 
 have been valid if the prerogative contended for did not 
 exist.' 
 
 Except the Chancellor, none of the dissentient Peers, 
 however eminent in other ways, were specially qualified 
 to pronounce an authoritative opinion on the technical 
 matters set forth in their protest. The Chancellor, having 
 advised the grant of the Letters Patent, was bound to 
 support it. Earl Granville and other supporters of the 
 Government naturally took the same side. 
 
 Another protest was made by Earl Grey and the Earl Second 
 of Devon partly on the same grounds as that of the Peers P rotest - 
 already mentioned, but partly on others, and more in detail. 
 
378 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. A third protest of great length was signed by Baron 
 Third Monteagle of Brandon, Baron Glenelg, who had signed 
 
 protest, the first protest, and the Earl of Devon who had signed 
 the ground tne second. This concluded with the final reason that 
 that the the adoption of the report was dangerous as a precedent 
 
 Judges had , r ° r 
 
 not been ' when it is considered that a motion has been made and 
 advisV° re J ecte d requiring the attendance of the learned Judges 
 with the view of obtaining their opinion on the legal 
 import and just construction of the Letters Patent of the 
 Crown laid before the House, and referred to the Committee 
 for Privileges.' 
 
 This last was, perhaps, the best point made in any of 
 the protests. The Judges had without doubt been called in 
 on previous occasions when legal questions were involved — 
 and that long after the Judges had ceased to sit with the 
 King in his Council in his Parliament. The weak side 
 of the argument was that the Lords had not always 
 accepted the opinion of the Judges when given, and were 
 under no obligation either to ask it or to take it. In the 
 present instance, as the Lord Chancellor took one view, 
 and an ex-Lord Chancellor the opposite view, it is not 
 very probable that the Judges would have been in absolute 
 agreement, or that the House would have felt itself bound 
 by their decision even if unanimous. 
 Hereditary p or a short time Baron Wensleydale was in the position 
 
 peerage in 
 
 the end of a Baron without a seat or a voice in Parliament, It was 
 L Ve dW° not denied tnat t ^ ie Crown might confer upon a subject the 
 leydale. title of Baron for his life, but it was not admitted that the 
 Crown could in this manner give him a place in the House 
 of Lords. The Lords had long taken all questions of their 
 own privileges into their own hands, and they regarded this 
 as a question of privilege. A few months later, however, 
 (July 23, 1856), 'Baron Wensleydale of Wensleydale in 
 the North Riding of the County of York,' for life, was 
 created by new Letters Patent ' Baron Wensleydale of 
 Walton in the County Palatine of Lancaster, unto him and 
 the heirs male of his body lawfully begotten and to be 
 begotten.' Having then acquired an hereditary peerage, 
 
THE HOUSE OF LORDS 379 
 
 he was duly summoned to Parliament, and took his seat Chap. XV. 
 in the House of Lords 1 . 
 
 Thus ended an important contest — whether rightly or 
 wrongly it might, perhaps, be presumptuous to say, when 
 the two great legal authorities engaged in the fray took 
 different sides. The House of Lords, however, was at least 
 theoretically competent to give a final decision, and the 
 readers of these pages will have seen on what very strong 
 reasons their judgement might have rested if the question 
 was a question of privilege, and if it was to be determined 
 by precedents subsequent to the time when the expression 
 1 Peer of the Realm ' first came into use. 
 
 Notwithstanding this decision, it was felt that, if the A subse- 
 House of Lords was to retain its appellate jurisdiction, 3"^"^ e " 
 there was a need of skilled members, and that the most Bill mis- 
 
 Ccurics. 
 
 competent persons might not be able to make sufficient 
 provision for the support of an hereditary dignity. A Bill 
 was shortly afterwards introduced into the House of Lords, 
 on the recommendation of a committee, in which it was 
 proposed to give the Crown the power of conferring 
 peerages for life upon two persons who had served for five 
 years as Judges. They w r ere to sit with the Lord Chan- 
 cellor as Judges of Appeal and to be Deputy-Speakers. 
 The project, however, though it passed a second reading, 
 ultimately miscarried in the House of Commons 2 . 
 
 The question of life-peerages was now allowed to slumber Earl 
 for thirteen years. In 1869, however, Earl Russell again 5 l Ji S f el J'! h 
 agitated the subject. He introduced into the House of creation of 
 Lords a Bill of far wider scope than that of 1856. The f^^ T ' 
 resolution of the House that Sir James Parke when created ^69. 
 a Baron of the United Kingdom for life was not entitled to 
 
 1 The various documents, debates, and discussions relating to the 
 Wensleydale Peerage are conveniently brought together in the '■Discus- 
 sion and Judgement of the v Lords on the Life Peerage Question. 
 Reports by John Eraser Macqueen. Under Appointment of the 
 House.' 
 
 2 Hansard's Debates, 3rd series, vol. cxlii. 780-797, 899-921, 1059- 
 1084 ; vol. cxliii. 407-433, 568-613. 
 
3 8o 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. sit and vote in Parliament was recited in the preamble, in 
 which also it was declared to be 'expedient that Peers 
 created for life should, in limited number, and under 
 certain conditions, be entitled to sit and vote in the House 
 of Lords.' It was proposed that Peers created for life by 
 the Sovereign should be entitled to receive writs of summons 
 as Peers of Parliament, to sit, and to vote, and should have all 
 the rights and privileges of Peers of Parliament, during their 
 respective lives. They were to be selected by the Crown 
 from Peers of Scotland or Ireland, from persons who had 
 sat as members of the House of Commons more than ten 
 years, from officers of the army and navy eminent for 
 distinguished services, from persons who were or had been 
 Lord Chancellor, Lord Chief Justice of the Queen's Bench 
 or Common Pleas, or Lord Chief Baron in England or 
 Ireland, or Lord Justice General in Scotland, from persons 
 who had been for two years and had ceased to be Judges 
 of the principal Courts of Common Law at Westminster or 
 in Ireland, the Court of Chancery in England or Ireland, 
 the Court of Session in Scotland, the Court of Probate and 
 Divorce, or the High Court of Admiralty in England, from 
 persons who had been Attorney-General for England or 
 Ireland, Lord Advocate for Scotland, or Queen's Advocate- 
 General for England. They might also be selected from 
 persons distinguished for their attainments in science, 
 literature, or art, and from persons who had served in any 
 public office under the Crown with ability and fidelity for 
 not less than five years. It was, however, to be provided 
 that no more than twenty-eight peerages of this character 
 were to be in existence at the same time, and that no more 
 than four were to be created in any one year l . 
 
 The principle of the Bill was well supported, though 
 there was much opposition on points of detail. Lord Cairns 
 proposed to amend it, in Committee, in a manner which 
 was practically a reconstruction. For Earl Russell's clause 
 in the preamble he wished to substitute one to the effect 
 
 The 
 
 scheme as 
 amended 
 by Lord 
 Cairns. 
 
 1 H. L., no. 49. Ordered to be printed April 9, 1869. 
 
THE HOUSE OF LORDS 381 
 
 that 'it is expedient to afford, under certain restrictions, Chap. XV. 
 facilities for the introduction into the House of Lords of 
 persons distinguished in the services of the State, or who, 
 from their attainments or official position, are likely to 
 add weight to the deliberations of the House, and who may 
 not be desirous to undertake the burden of an hereditary 
 peerage.' He desired also to strike out all the clauses 
 relating to the special qualifications of the persons to be 
 selected, as well as those relating to the limitations of 
 number, and to substitute for them a provision that only 
 one life peerage should be created in any one year except 
 in favour of th* Lord High Chancellor of Great Britain, 
 a Principal Secretary of State, the President of the Council, 
 Board of Trade, or Poor Law Board, the Postmaster-General, 
 or the Chancellor of the Duchy of Lancaster 1 . Earl Russell 
 held to his total of twenty-eight in all and four in any one 
 year, but abandoned his clauses relating to the classes of 
 persons from which the selection was to be made, suggesting 
 in their place a clause in the preamble as to creation of 
 Peers ' on account of their eminent merits or distinguished 
 services to their country V The Earl of Carnarvon moved, 
 in Committee, to insert a clause that whenever a Peer 
 created for life should be entitled under the proposed Act 
 to sit and vote in the House of Lords, the grounds upon which 
 the peerage should be conferred upon him should be stated 
 in the patent of creation 3 . Amendments were also moved 
 in Committee by Earl Stanhope 4 and Lord Penzance 5 , 
 which were not accepted either wholly or in part. 
 
 When the Bill emerged from Committee and was reported The Bill 
 to the House, it partook of the character of Lord Cairns's rejecte ■ 
 amendments quite as much as of Earl Russell's original 
 draft. All the clauses relating to special qualifications 
 were omitted^the number of life peerages to be created in 
 any one year had been restricted to two, and Lord Cairns's 
 alteration of the preamble had been adopted with the 
 
 1 H. L., no. 49 a, May 5, 1869. 2 H. L., no. 49 b, May 5, 1869. 
 3 H. L., no. 49 c, May 13, 1869. 4 H. L., no. 49 d, May 21, 1869. 
 5 H. L., no. 49 e, June 1, 1869. 
 
382 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. 
 
 Proposal of 
 
 1870 to 
 
 exclude 
 
 future 
 
 Bishops 
 
 from the 
 
 House. 
 
 ' Lords of 
 Appeal in 
 Ordinary ' 
 madeLords 
 of Par- 
 liament 
 during 
 tenure of 
 office, in 
 1876. 
 
 exception only of the words relating to l the burden of an 
 hereditary peerage.' Earl Russell's original limitation of the 
 total number of life-peerages to twenty-eight still remained l . 
 The Bill, however, failed to pass its third reading. The 
 question whether this result was fortunate or unfortunate is 
 one of politics, but the desire expressed in the amended 
 preamble, to introduce into the House of Lords persons 
 likely to add weight to the deliberations of the House, 
 appears a happy adaptation of the ancient reason for 
 a Parliamentary summons to modern life and modern 
 ideas. 
 
 The action taken in the House of Commons in 1870 
 with regard to the Bishops ought not, perhaps, to be 
 looked upon too seriously ; but it was, like the projects of 
 1834, 1836, and 1837, an unsuccessful attempt from below 
 to alter the composition of the House of Lords. Leave 
 was asked to bring in a bill ' to relieve ' the Lords Spiritual, 
 who might in future be consecrated, from attendance in 
 Parliament. The effect of such an Act would, of course, 
 have been to remove the whole of the Spiritual Lords 
 from the House by degrees, though no Bishop already 
 consecrated would have been affected by it. Leave, how- 
 ever, was refused by a majority of fifty-six 2 . 
 
 In 1876 another and more successful attempt was made 
 in the Upper House to introduce Temporal Lords of Par- 
 liament without hereditary peerages. It was, however, 
 on a very limited scale, and was intended, like those of 
 1856, solely for the purpose of adding to the judicial 
 strength of the House. Power was given by Statute to 
 the Crown to appoint two ' Lords of Appeal in Ordinary,' 
 with further power to appoint a third Lord of Appeal in 
 Ordinary upon the death or resignation of two paid Judges 
 of the Judicial Committee of the Privy Council, and a fourth 
 upon the death or resignation of the two remaining paid 
 
 1 Bill as amended in Committee, H. L. 113. Ordered to be printed 
 June 3, 1869. 
 
 2 Journals of the House of Commons, June 21, 1870 (vol. cxxv. 
 p. 169). 
 
THE HOUSE OF LORDS 383 
 
 Judges. These Lords of Appeal in Ordinary were to hold Chap. XV. 
 office during good behaviour, but might be removed on 
 the address of both Houses of Parliament. They were 
 entitled to rank as Barons during their lives. They were 
 entitled also to a writ of summons to attend, and to sit and 
 vote in the House of Lords so long as they continued in 
 office, but no longer, and their dignity as Lords of Parlia- 
 ment was not to descend to their heirs 1 . By these 
 provisions an old principle was recognized, and a new 
 principle introduced. The principle that the holder of 
 a barony for life only (as in the case of Lord Hay) enjoyed 
 the rank of Baron, and not the right of sitting and voting 
 in Parliament, was, as it were, reasserted. The introduction 
 of Lords with a right to be summoned, and to sit, and vote, 
 not even for life, but only during the tenure of office, was 
 quite new as applied to laymen, or was, at any rate, without 
 precedent since the days of the earlier Chancellors. 
 
 This small innovation, designed for one particular legal The Earl of 
 end, did not satisfy those who considered that a greater Motion* 7 S 
 change in the constitution of the House had become touching 
 necessary. On June 20, 1884, Lord Rosebery moved, c iency' of 
 ' that a Select Committee be appointed to consider the * he S ? ouse ' 
 best means of promoting the efficiency of this House.' 
 His Lordship argued that, as the House of Lords had 
 existed about six centuries without reform, some alterations 
 had become necessary in order to bring the institution 
 into conformity with the changed institutions by which it 
 was surrounded. He laid particular emphasis upon the 
 development of the Colonial Empire and of the Newspaper 
 Press, as well as upon the want of representation, in the 
 House, of certain sections of the community. After a 
 debate of some length, in which the subject of life-peerages 
 was discussed, the motion was negatived by a majority of 
 thirty-nine 2 . 
 
 In the meantime those Barons for life who were Lords Lords of 
 of Parliament only during tenure of the office of Lord of Quinary" 
 
 1 Appellate Jurisdiction Act, 1876, sees. 6, 14. 
 
 2 Hansard, Pari. Deb. % 3rd series, vol. eclxxxix. 937-974. 
 
384 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. 
 
 made Lords 
 of Parlia- 
 ment for 
 life, in 
 
 1887. 
 
 The Earl of 
 Rosebery's 
 Motion 
 touching 
 the consti- 
 tution of 
 the House 
 in 1888. 
 
 The Earl of 
 Dunraven 's 
 scheme of 
 
 1888. 
 
 Appeal, had continued to exist, but were shortly to assume 
 a different position. In 1887 an Act was passed which 
 enabled a retired Lord of Appeal to sit and vote as a 
 member of the House of Lords during his life l . The Lords 
 of Appeal in Ordinary in this way became Lords of Parlia- 
 ment for life, but for life only, and without any dignity 
 descendible to their heirs. 
 
 Thus, twenty-one years after the memorable struggle 
 over the Wensleydale peerage, the creation of Lords of 
 Parliament for life was sanctioned by Statute. As, how- 
 ever, it had reference but to a few ' Law Lords,' a motion 
 was again made by Lord Rosebery on March 19, 1888, 
 1 that a Select Committee be appointed to enquire into the 
 constitution of this House 2 .' He referred to various political 
 events which had occurred since his previous motion, and 
 again urged the necessity of some reform of the House 
 of Lords. Lord Wemyss moved, as an amendment, that 
 ' it is not a safe thing to place the constitution of this House 
 in the power of a Committee, nor consistent with its 
 dignity to discuss before a committee the reason for its 
 existence ; and, if any changes in the constitution of this 
 House are wanted, they should be debated and made by 
 the House itself on the motion of the responsible Ministers 
 of the Crown.' After a debate, in which the Marquess of 
 Salisbury and Lord Kenry (the Earl of Dunraven) took 
 part, the amendment was carried. As a substantive 
 motion, however, it was set aside by means of the ' previous 
 question.' 
 
 The year 1888 was fruitful of other schemes for the 
 reconstruction of the House of Lords. A very remarkable 
 bill was introduced by Lord Kenry (the Earl of Dunraven). 
 The rights and privileges of existing Lords of Parliament, 
 whether Spiritual or Temporal, were not to be affected. 
 The election of Peers to serve in Parliament for Scotland 
 and Ireland, and the rights of the Peers elected, were to 
 remain as before. The Prince of Wales, Princes of the 
 
 1 Appellate Jurisdiction Act, 1887, sec. 2. 
 
 2 Hansard, Pari. Deb., 3rd series, vol. cccxxiii. 1 548-1606. 
 
THE HOUSE OF LORDS 385 
 
 Blood Royal being Peers of the United Kingdom, the Chap. XV. 
 Lord Chancellor of Great Britain, the Archbishops of 
 Canterbury and York, and the Bishops of London, Durham, 
 and Winchester, the Lords of Appeal in Ordinary, whether 
 holding office, or after resignation, and Peers holding or 
 having held high judicial office, were in future to receive their , 
 writs of summons to Parliament as before ; but, in other 
 respects, the House was to be completely remodelled. 
 There were to be one hundred and eighty Lords of Par- 
 liament elected by the Temporal Peers of the United 
 Kingdom ; and the effect of this provision would have been 
 that the legislative functions of the hereditary peerage 
 of the United Kingdom would have been delegated by 
 degrees to a body selected from their own number. There 
 were to be in addition Peers for life, not exceeding five in 
 number, ten Peers either for life or for a limited term to 
 represent the Colonies, two to represent the interests of 
 Roman Catholic subjects, two to represent the interests 
 of subjects who might be Protestant Dissenters, and two 
 to represent the interests of ' science, letters, and sound 
 learning generally.' Every County Council was to have 
 the power of recommending one person to the sovereign 
 to be appointed a Lord of Parliament. All Lords of Par- 
 liament elected by the Temporal Peers, or appointed on 
 nomination by County Councils, were to hold office for 
 nine years only, but to be capable of re-appointment or re- 
 election. No Bishop elected or translated to any see but 
 those of Canterbury, York, London, Durham, and Winchester 
 was, on that ground, to become entitled to receive a writ 
 of summons to Parliament. The number of Spiritual 
 Lords would thus have been gradually reduced to five. 
 
 It was also provided that Peers might resign their seats 
 and votes in the House of Lords, and that past Lords of 
 Parliament and Peers not entitled to vote in the House of 
 Lords should be capable of sitting in the House of Commons. 
 
 One of the proposed provisions was a modification of 
 an amendment suggested by Lord Cairns to Earl Russell's 
 Bill of 1869. This was that the First Lord of the Treasury, 
 
 C c 
 
386 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. any of Her Majesty's Principal Secretaries of State, the 
 President of the Council, of the Board of Trade, and of 
 the Local Government Board, the Lord Privy Seal, the 
 First Lord of the Admiralty, the Postmaster-General, and 
 the Chancellor of the Duchy of Lancaster might be heard 
 in the House of Lords (though not otherwise entitled to a 
 seat or voice), when any matter touching his office should be 
 under debate. He was not, however, to be entitled to vote 1 . 
 The Mar- This very elaborate scheme, which was not accepted by 
 Salisbury's t ^ ie House of Lords, was very shortly followed by another, 
 scheme of introduced by the Marquess of Salisbury on behalf of the 
 Government of the day. His bill was of a far more simple 
 character. The Crown was to have power to appoint 
 persons with certain qualifications to be 'Peers of Parliament' 
 for life. The total number of such Peers in existence at 
 any one time was not to exceed fifty. No one was to be 
 qualified for appointment unless he had been a Judge of 
 a Superior Court in the United Kingdom for at least two 
 years, had attained the rank of rear-admiral in the navy or 
 major-general in the army, had been ambassador extra- 
 ordinary and minister plenipotentiary, had become a privy 
 councillor and been employed in the civil service of the 
 Crown, or had been not less than five years Governor- 
 General or Governor in any colony, or Lieutenant-Governor 
 in India. No more than three persons so qualified were 
 to be appointed in any one year. The Crown, however, 
 was to have further power to appoint Peers for life on 
 account of other special qualifications, but not more than 
 two in any one year, nor any until the Sovereign had stated 
 by message to the House of Lords the intention to appoint 
 and the special qualifications for which the appointment 
 was to be made 2 . This Bill passed a second reading in the 
 Upper House, but was then immediately withdrawn 3 . 
 
 1 House of Lords (Constitution) Bill, 1888 (no. 51). Ordered to be 
 printed March 23, 1888. 
 
 2 House of Lords (Life Peers) Bill, 1888 (no. 161). Ordered to be 
 printed June 18, 1888. 
 
 3 Hansard's Debates, 3rd series, vol. cccxxviii. 471. 
 
THE HOUSE OF LORDS 387 
 
 Thus, although various propositions have been made by Chap. XV. 
 Peers of widely divergent political views, there have been 
 no changes in the principles which govern the composition The classes 
 of the House of Lords, since the Lords of Appeal in ^eVouse 
 Ordinary were made Lords of Parliament for life in 1887. of Lords 
 From that time the House has consisted of the following s i s t s . 
 classes of members : — ( 1 ) the Lords Temporal holding here- 
 ditary peerages in virtue of the creation of a peerage of 
 England before the Union with Scotland, or of a peerage 
 of Great Britain after that Union and before the Union 
 with Ireland, or of a peerage of the United Kingdom at 
 a later date ; (2) the sixteen representative Peers of 
 Scotland elected and sitting only during the term of each 
 particular Parliament ; (3) the twenty-eight representative 
 Peers of Ireland, elected and sitting for their respective 
 lives ; (4) those who are or have been ' Lords of Appeal in 
 Ordinary,' and are Lords of Parliament for life ; (5) the 
 Lords Spiritual, or Archbishops and Bishops of English 
 sees, having seats in virtue of their respective provinces or 
 dioceses, or in virtue of their seniority over other Bishops 
 who are not entitled to be summoned. 
 
 When these pages were written the total number of The num- 
 Lords on the roll was 56 7 \ there being one vacancy in c ^ neac 
 the representation of the Peers of Ireland. Of these, 
 sixteen were representative Peers of Scotland, twenty-seven 
 representative Peers of Ireland, four Lords of Appeal in 
 Ordinary, one retired Lord of Appeal in Ordinary, and 
 twenty- six Lords Spiritual, of whom two were the Arch- 
 bishops of Canterbury and York, and the remaining twenty- 
 four were Bishops. The rest, 493 in number, were holders 
 of hereditary peerages, of whom a few only were minors and 
 
 1 Roll of the Lords Spiritual and Temporal in the second session 
 of the twenty-fifth Parliament of the United Kingdom of Great Britain 
 and Ireland. Ordered to be printed Feb. 3, 1893. Since the above 
 was written the roll for the third session of the same Parliament 
 (ordered to be printed March 15, 1894) has appeared. It differs 
 slightly from its predecessor, but not in a manner to raise any new 
 question of principle. 
 
 C C 2 
 
3 88 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. disqualified for sitting; and they thus outnumbered all the 
 other classes in the proportion of nearly seven to one. 
 
 Conclu- 
 sion: 
 
 changes in 
 the mean- 
 ing of con- 
 stitutional 
 terms, and 
 in particu- 
 lar of Par- 
 liament. 
 
 Changes in 
 the consti- 
 . tutional 
 position of 
 the Peers. 
 
 It would be difficult to find a better illustration than is. 
 afforded by the House of Lords of the transformations 
 effected by time, on the one hand, and of the persistence, on 
 the other hand, with which old names are used to designate 
 changed institutions. Trial by Jury, Parliament, the 
 House of Lords, and the House of Commons have all lost 
 the character which they had when the respective terms 
 were first used to describe them. Our English constitution 
 was never in a condition of absolute stability, was hardly 
 ever in any one century precisely what it had been in the 
 century before. The jury, of which in early times the chief 
 qualification was that it should be acquainted with the 
 facts before it came into Court, that it should consist of 
 neighbours who knew the affairs of the neighbourhood, is 
 now supposed to try an issue, without bias or prejudice, by 
 evidence admitted only according to strict legal rules. The 
 Parliament which was at first only a meeting called by the 
 Sovereign to discuss affairs of State, and varying in its 
 constituent parts according to the subjects of discussion, is 
 now in theory composed of the Sovereign, the Lords 
 Spiritual, the Lords Temporal, and the representatives of 
 the Commons. At one time the word Parliament was 
 often used in the sense of the Lords Spiritual and Temporal, 
 or House of Lords with the Council. At the end of the 
 nineteenth century it is often used in current literature, in 
 the sense of the House of Commons alone. The House of 
 Commons itself but little resembles that assembly of 
 knights, citizens, and burgesses, which once represented 
 persons of substance, and consented on their behalf to give 
 the King a portion of their goods. The House of Lords, 
 however, is, perhaps, changed most of all. 
 
 For some centuries the Lords were the pillars of the 
 State in many senses of the term. They not only put the 
 greater part of the King's armies into the field, but also 
 contributed largely to the revenue of the kingdom, both in 
 
THE HOUSE OF LORDS 389 
 
 peace and in war. If laymen, they were the King's Chap. XV. 
 generals, assisting him with their advice, and offering 
 their lives and the lives of their followers in his cause. 
 When foreign war was projected, their counsel was neces- 
 sary in relation both to the plan of campaign and to the 
 means of carrying it on. When civil war broke out, the 
 King's reliance was on those tenants in chief who elected to 
 remain faithful to him ; and no rebellion could be successful 
 unless the rebellious tenants proved to be the stronger 
 party. 
 
 The members of the House of Lords, whether spiritual 
 or temporal, have now no longer any special burdens. 
 They are under no obligation to support an army, except 
 as tax-payers like any other subjects. They are not, as 
 Peers, necessarily able to put forces into the field in times 
 of emergency. As counsellors their occupation is gone, in 
 practice if not in theory, except when they may happen, 
 with commoners, to be members of the Privy Council or of 
 the Cabinet. They are not even consulted as a body when 
 the Sovereign is about to travel out of the realm ; and 
 many of their privileges are lost, simply as being no longer 
 possible in an altered state of society and law. 
 
 Yet, if two great events be left out of consideration — the Yet the 
 loss of the seats of the Abbots when the greater monasteries Lords* is 
 were dissolved, and the abolition of military tenure as the result 
 a consequence of the Great Rebellion — the House of Lords ra i process 
 has become what it is by a gradual and natural process of of develo P- 
 development. 
 
 It has lived the life of the nation, and grown with the Its ranks 
 nation's growth. It has, in the main, reflected the nation's requited" 
 thoughts and manners, as additions have been made to its fromrepre- 
 numbers. If the descendants of some of the mistresses of men. 
 Charles II represent the profligacy of the Restoration, and 
 if the descendants of some Peers created since that time 
 represent political intrigues rather than the strictest political 
 integrity, it is because public opinion has not always been 
 cast in a puritanical mould, and because the nation has not 
 always been discriminating in its worship of heroes. The 
 
39° 
 
 CONSTITUTIONAL HISTORY OF 
 
 Chap. XV. 
 
 The 
 
 national 
 habits 
 have 
 
 commonly 
 been re- 
 flected in 
 new crea- 
 tions of 
 Peers. 
 
 higher and nobler life of the nation, or that which the 
 nation has believed to be its higher and nobler life, has also 
 left a mark, and a clearer mark, upon the Upper House of 
 Parliament. The leaders of its armies and of its fleets, 
 who made its name respected in the world, and shed their 
 blood to build up its empire, have sat there and handed 
 down their seats to their posterity. The men whose 
 commercial genius contributed to render the nation the 
 richest in the world have been honoured in the same 
 manner as its great military and naval commanders — and 
 in recent times without distinction of party or creed. The 
 sages of the law, more irreproachable, as a body, than those 
 of any other land, have had their learning and their wisdom 
 recognized in the persons of those who were believed to be 
 most worthy. 
 
 In one respect the House of Lords fails, and has always 
 failed, to reflect the powers of the nation. The new men 
 who have made their way into it have always been rather 
 the men of action than the men of thought. The inventors 
 and thinkers, who should, perhaps, be Britain's greatest 
 pride, and who have changed the face of the whole earth, 
 and the tone of all civilized thought, have never been 
 placed on the Roll of the Lords. No Newton, no 
 Hunter, no Arkwright, no Watts, no Stephenson is there. 
 Very few years have elapsed since a historian was, for 
 the first time, created a Peer; and he was a partisan. 
 Still fewer years have elapsed since a poet, as poet, was so 
 honoured for the first time. No painter, or sculptor, ever 
 gained a coronet. Yet even here the national habits are 
 faithfully reflected. The inventor and the thinker are 
 rarely appreciated by their contemporaries ; and the man 
 of letters wins only in a later generation those spurs which 
 are never to be hacked off. The robes of the judge, the 
 wealth of the financier, the pomp and circumstance which 
 attend the victorious general strike more deeply into the 
 popular imagination than the untiring industry, the silent 
 meditation, and the unseen flash of intellect, which bring 
 into being things that the world has never seen before. 
 
THE HOUSE OF LORDS 391 
 
 Thus, even in its defects, the House of Lords has, since Chap. XV. 
 
 it ceased to be a house of feudal Peers, been a not unfaith- The House 
 
 ful mirror of the country — not, indeed, of all the country's is a link 
 
 between 
 
 fleeting moods, but of the country's matured decisions and the Present 
 accomplished deeds. It has always had, and, from the * nd the 
 nature of its composition, must have a deep-seated reverence 
 for the ages that have passed away, and a sympathy no less 
 deep with the men who constituted it in earlier generations. 
 Its roll is a register in brief of some things that Englishmen 
 would fain forget, of many things that every British subject 
 may be proud to remember. It links the history that has 
 been made with the history that is still in the making ; and 
 when matters of great moment are laid before it, the vote 
 which it records may be regarded not only as the opinion 
 of a particular body of living men, but also as the sentence 
 which is given upon the Present by the Past. 
 
INDEX 
 
 Abbots, origin of title of, 4 ; power 
 acquired by, 16 ; election and posi- 
 tion of, 152 ; summoned as holding 
 by barony, 156 ; of St. Albans, styled 
 only 'Lord of Parliament,' 162 ; of 
 Tavistock made ' Lords of Parlia- 
 ment,' 163-4; °f Gloucester appear 
 by proxy, 237 ; number of sum- 
 moned, 346-8 ; and Dissolution of 
 Monasteries, 349-351. 
 
 Abercorn, James, eighth Earl of, created 
 Viscount Hamilton, 362. 
 
 Abeyance, doctrine of, 114; not recog- 
 nized in the de la Warr Case (temp. 
 Eliz.\ 122; not matured in Coke's 
 time, 131 ; inconsistent with decision 
 in the Earl of Oxford's case (temp. 
 Charles I), 132; first recognized in 
 Lord Windsor's case (temp. Charles 
 II), 133; not fully acknowledged 
 before 1695, 135 ; later views as to, 
 136-138 ; paucity of cases of, 138- 
 
 139- 
 
 Alderman (in ' Lnglisc ' Ealdorman), 
 authority of, 6. 
 
 Aliens, disqualification of, 275. 
 
 Amand, St., the Barony of, 104. 
 
 Amercement, privilege of Earls and 
 Barons in respect of, 254, 256 ; scale 
 of, for Peers, 257. 
 
 Ancienty, precedence of Barons accord- 
 ing to, 119. 
 
 Anne, Queen, the reign of, prospective 
 legislation to abolish corruption of 
 blood in, 150 ; Acts for trial of Peers 
 in, 225 ; Union with Scotland in, 299, 
 358-361 ; creation of Peers in, 363. 
 
 Appeal, of Treason, 200 ; abolition of 
 accusation by, in Parliament, 209 ; 
 of murder, etc., Peers not tried by 
 Peers in, 217; from Chancery to the 
 House of Lords, 295-297 ; disputed 
 jurisdiction in, admitted, 29S ; form 
 of, in equity, 299 ; from Ireland, 
 302-303 ; wide jurisdiction of the 
 
 House of Lords in, 304 ; new form 
 of, to the House of Lords, in 1876, 
 305; jurisdiction of the Privy Council 
 in, 307-309 ; ' The Court of,' 304- 
 305 ; ' Lords of in Ordinary,' 307, 
 382, 384. 
 Argenton, Reginald de, amercement of, 
 
 255- 
 
 Arrest, privilege of freedom from, 259. 
 
 Arundel, the Earldom of, 80 ; amerce- 
 ment of the Earl of (38 Edward III), 
 
 2 57- 
 
 — Thomas de, Archbishop of Canter- 
 bury, impeachment of, 206 ; letter of, 
 212. 
 
 Assize, Justices of, power of enquiring 
 as to elections given to, 285. 
 
 Athole, Duke of, case of, as a repre- 
 sentative Peer in 1736, 362. 
 
 Attainder, and corruption of blood, 146 ; 
 mitigation of the law of, by creation of 
 estates tail, 1 47 ; bill of, used instead 
 of impeachment, 228; recent changes 
 in the law of, 274; mode of intro- 
 ducing bill of, 336. 
 
 Audley, James de, exemption from 
 summons granted to, 236. 
 
 Aula Regis, 27 note. 
 
 Bacon, Francis, Viscount St. Albans, 
 impeachment of, 229, 275. 
 
 Bankrupts, disqualification of, 275. 
 
 Baron, title of, 1 ; dignity of not official, 
 86, 147 ; importance of military duties 
 of, 89 ; not at first a term of indi- 
 vidual dignity, 90, 100; dignity of 
 long not exclusively personal, 103 ; 
 the word used as a cognomen, no. 
 
 Barons, varying number of summoned 
 to Parliament, 96 ; tenure of by 
 barony, 88, 93-95 ; creation of by 
 Patent, 100, 109 ; ' in right of their 
 wives,' 103-107; by writ, 109, 124, 
 131 ; efforts of to escape summons to 
 Parliament, 235 ; amercement of, 
 
 or the y 
 
394 
 
 INDEX 
 
 254; precedence of, 112, 118, 119, 
 128. See Baronies. 
 
 Baronies, hereditary, 88 ; by tenure de- 
 clared to be non-existent in 1669, 
 130; descent of debated in 1695, 
 135 ; questions as to surrender and 
 transfer of, 270-274; abeyance of, see 
 Abeyance; forfeiture of, see For- 
 feiture. 
 
 Bayeux, Odo, Bishop of (Earl of Kent), 
 assertion of clerical privilege by, 1 79. 
 
 Beauchamp, John de, first Baron created 
 by Patent, 109- no. 
 
 Beaufort, Thomas, Earl of Dorset, 
 created Duke of Exeter in Parliament, 
 323- 
 
 — Sir Thomas, Chancellor, not sum- 
 moned to Parliament, 354. 
 
 Beaumont, Henry de, case of, 45. 
 
 — John de, first Viscount. 1 1 3. 
 
 Becket, Thomas, Archbishop of Can- 
 terbury, denies the jurisdiction of the 
 King's Court, 1 79. 
 
 Bedford, case of George Neville, Duke 
 
 of, 82. 
 Belasyse, Baroness, so created for life, 
 
 37 2 - 
 Bembricke, Philip, 283. 
 ' Bench, the,' meaning of, 33, 35. 
 Benefit of Clergy, doctrine of, 261 ; how 
 
 applied to Lords of Parliament, 262 ; 
 
 abolition of, 263 ; question relating to 
 
 in 1 841, 263. 
 Berners, the barony of, 138. 
 Bigod, Hugh, Earl of the East Angles 
 
 (temp. Steph.), 59 ; Earl of Norfolk 
 
 (temp. Hen. II), 60. 
 
 — Roger, Earl of Norfolk (temp. Rich. 
 I), 61 ; surrender of Earldom by ; temp. 
 Edw. I), 269. 
 
 Bills, first introduced into Parliament 
 instead of petitions, 326. 
 
 Bishops, origin of title of, 4 ; power 
 acquired by, 16; position of in early 
 times, 151; reason for Pracmunientes 
 clause in summons to, 1 54-6 ; claim 
 of, to peerage, as holding by barony, 
 159; let fall their claim to peerage, 
 163 ; not all entitled to a seat in the 
 House of Lords, 166; excluded from 
 the House of Lords in 1640, 327 ; 
 uniformity in early writs of summons 
 to, 347 ; later attempts to exclude 
 from the House of Lords, 369, 382. 
 See Spiritual Lords. 
 
 Bishoprics, earliest in England, 5. 
 
 Blair, Sir Adam, impeached of high 
 treason, 232. 
 
 Blood, the doctrine of, 140-150 ; cor- 
 ruption of, upon attainder, 141, 146 ; 
 
 inheritance inseparable from, 141 ; 
 seignory in frankalmoign ineradicable 
 from, 143 ; the half, 143 ; changes in 
 the law as to corruption of, 147, 150, 
 274 ; corruption of, could not affect 
 succession of Bishops or Abbots, 161 ; 
 privileges of peerage dependent on, 
 222. 
 Bourchier, Bartholomew, his daughter 
 Elizabeth, and her two husbands, 103. 
 
 — William, ' Lord Fitz-Warine,' 105-6. 
 
 — Sir John, case of (James I), 297. 
 
 — Sir Robert, protest of, 195 ; first lay 
 Chancellor, 353. 
 
 Brandon, Charles, Viscount Lisle, 270. 
 
 Breach of Privilege, 248-251. 
 
 Bristol, petition for summons to Parlia- 
 ment of John Digby, Earl of, 238. 
 
 Buckingham, trial of Edward Stafford, 
 Duke of, 218. 
 
 Bury St. Edmunds, Abbot of, 23. 
 
 Cabinet, government by, and its effects, 
 
 357: 
 
 Cairns, Lord, amendments of to Earl 
 Russell's life-peerage bill, 380. 
 
 Camoys, Barony of, called out of abey- 
 ance, 136. 
 
 Carlisle, Thomas Merkes, Bishop of, 
 trial of, 213. 
 
 — Andrew Harcla, Earl of, degradation 
 of and judgement on, 176. 
 
 Carnarvon, Earl of, Discontinuance of 
 Writs Bill of, 277. 
 
 Carnwath, Earl of, restoration of, 361. 
 
 Chancellor, the, of England, seals a 
 Charter in the reign of the Conqueror, 
 24 ; office of, in early times, 47, 352 ; 
 attended Parliament ex officio, with- 
 out summons, 353-4 ; the first lay, 
 
 353 ; place in the House of Lords of, 
 
 354 ; Speaker of the House of Lords, 
 354 ; in relation to the custody of the 
 Great Seal, 47, 352, 354 ; cannot be 
 a Roman Catholic, 355 ; becomes 
 Chancellor of Great Britain, 359. 
 
 Chancery, the, followed the King, 46 ; 
 an office of the Common Council of 
 the Realm, 47 ; an office of Parlia- 
 ment, 47, 128 ; issue of writs from, 
 47' 2 95 5 privilege of Peers with re- 
 gard to bill in, 264 ; common law and 
 equitable jurisdiction of, 296 ; writs 
 of error from, 296 ; appeals from, 
 297, 299 ; equity jurisdiction of Ex- 
 chequer transferred to, 299 ; jurisdic- 
 tion of transferred to the High Court 
 of Justice, 304. 
 
 Charles I, the reign of, doctrine of abey- 
 ance not recognized in, 132 ; decision 
 
INDEX 
 
 395 
 
 as to descent of dignities in, 146 ; 
 summons of Peers to York in, 252 ; 
 jurisdiction of the House of Lords in, 
 »8l, 283; Bishops excluded from the 
 House of Lords in, 327, 356 ; intervals 
 between Parliaments in, 331 ; Act to 
 prevent intermissions of Parliament 
 in, 331- 
 
 Charles II, the reign of, Grand Sergeanty 
 in, 89 ; barony by tenure declared to 
 be no longer in existence in, 1 30 ; 
 recognition of the doctrine of abeyance 
 in, 133, 138 ; jurisdiction of the House 
 of Lords in, 281 ; Convention Parlia- 
 ment without Bishops in, 329, 356; 
 another Parliament without Bishops 
 in, 329, 356 ; the Bishops restored to 
 the House of Lords in, 330 ; Act for 
 holding Parliaments once in three 
 years in, 332 ; intervals between Par- 
 liaments in, 333 ; resolutions of the 
 Commons touching supply in, 342-3 ; 
 Test Act in, 355 ; abolition of feudal 
 tenures in, 356. 
 
 Charleton de Powys, barony of, 1 37. 
 
 Charters, importance of information 
 given by, 22-3; legislation by, 310, 
 313. See Magna Charta. 
 
 Chester, Earldom of, 8, 59 ; effect of 
 descent of to coheirs, in the reign of 
 Henry III, 64-5 ; associated with 
 possession of lands, 65-6 ; and Lin- 
 coln, Ranulf, Earl of, 272. 
 
 1 Chivaler,' or knight, a common descrip- 
 tion of a baron, 101. 
 
 Chivalry, Court of, 201. 
 
 Clarendon, Constitutions of, 108, 118, 
 ^ 154, 157. 22 7> 311-12. 
 
 Clergy, privileges of, declared and con- 
 firmed, 181 ; Benefit of, 181, 261-63. 
 
 Clifton, Barony of, 131. 
 
 Coheirs, partition of an ' Earldom ' be- 
 tween, 64. See Abeyance. 
 
 Coke, Sir Edward, views of on the 
 creation of peers, 124, 373. 
 
 Colchester, Lord, opinion of as to right 
 of audience, 253. 
 
 Collier, Jeremy, 'The Ecclesiastical 
 History of Great Britain of, 193. 
 
 Comes, origin of title of, 1 ; meaning of 
 title of, 2; Saxonici Littoris per Bri- 
 tanniam, 2; Britanniarum, 2; among 
 the Germans, according to Tacitus, 1 2. 
 
 Comilatus, various uses of the word, 63. 
 
 Committee of Petitions, 297. 
 
 Common Pleas, Court of, first indications 
 of existence of, 32 ; ' Style * of, 35 ; as 
 described by Glanvill, 36 ; jurisdiction 
 of inferior to that of the King's 
 Bench and Eyre, 38 ; Earls and 
 
 Barons in {temp. Richard I), 39 ; 
 controlled by the King in his Council 
 in Parliament, 51 ; writ of Error from, 
 to Kings' Bench, 52, 290 ; merged in 
 the High Court of Justice, 304. 
 
 Commons, the, resolutions of with re- 
 gard to elections, 268 ; not concerned 
 with judgements of the Lords, 290 ; 
 first summons of, 314; assent of to 
 a confirmation of Magna Charta by 
 Henry III, 314 ; not to be confounded 
 with the people or populus, 315 ; 
 growth of power of (Edward 1 to 
 Edward III), 318-319 ; Assenters as 
 well as Petitioners in the reign of 
 Henry V, 325 ; assume the whole 
 legislative power in 1649, 3 2 7 » sum_ 
 mons of by the Peers, 331. See 
 Money and Supply, Parliament, Privi- 
 lege. 
 
 Conde, Spanish title of, 14. 
 
 Conference, privilege with regard to, 
 251. 
 
 Conte, Italian title of, 14. 
 
 Contempt of Court, disability of Peers 
 for, in 1452, 263. 
 
 Convocation, 285, 339. 
 
 Coram Rege, the Court, 35 ; mentioned 
 by Glanvill, 35 ; otherwise known as 
 the King's Bench, 35, 37 ; gradual 
 severance of from full Curia Regis, 41; 
 and Council (Henry III to Edward II), 
 42-46, 254. See King's Bench. 
 
 Corbeuil, William de, Archbishop of 
 Canterbury, election of, 29. 
 
 Cornwall, creation of first Duke of, 76. 
 
 Council ; or Court of the Conqueror, its 
 foreign constitution, 22 ; of Henry I, 
 almost exclusively foreign, 26; Court 
 or Gewitenemot in 11 23, 29; identi- 
 cal with Curia Regis or Court of 
 Henry II, 29: 'General,' identical 
 with Curia Regis, 38 ; various senses 
 in which the term has been used, 40, 
 45 ; Sir M. Hale's divisions of the, 
 44 note ; of the King in his Parlia- 
 ment, 43, 47-50, 51-53 ; several 
 kinds of, enumerated, 46 ; summons 
 of Barons to Common, of the Realm, 
 in John's Great Charter, 92 ; separa- 
 tion of from the Parliament, 280, 321 ; 
 and Council of the Realm in the 
 reign of Edward 1, 3 1 6 ; Council of the 
 Realm, Curia Regis, and House of 
 Lords, 316; the Privy (and Judicial 
 Committee of) as a final Court of 
 Appeal, 305, 307-9. 
 
 Count, title of, 1 ; meaning of title of, 
 2 ; in France, 10; and the Missi, II. 
 See Comes, Earl. 
 
396 
 
 INDEX 
 
 County Council, Peers may be members 
 of, 269. 
 
 Court Baron, 170; writ of Right in, 
 171. 
 
 Courts. See Appeal, Assize, Chancery, 
 Chivalry, Common Pleas, Coram 
 Rege, Council, Curia Regis, Ex- 
 chequer, Exchequer Chamber, Eyre, 
 King's Bench, Lancaster, Oyer and 
 Terminer, Parliament, Steward Lord 
 High. 
 
 Cranfield Lionel, Earl of Middlesex, 
 impeachment of and judgement on, 
 231. 
 
 Cranmer, Thomas, Archbishop of Can- 
 terbury, trial of, 165, 221. 
 
 Cromwell, the Barony of, 136. 
 
 — Oliver, the 'Other House' or House 
 of Lords of, 328, 356. 
 
 — Thomas, Lord, 351. 
 
 Croyland, Abbot of, amercement of, 257. 
 
 Ctiria Regis, or King's Court, import- 
 ance of in relation to the Constitu- 
 tion, 27; judicial functions of, 28; 
 indications of division in, 29 ; Jus- 
 tices of, 33 ; Capitalis, of Glanvill 
 and its divisions, 37 ; original con- 
 stitution of, retained for occasions of 
 moment, 38 ; distinction between full 
 and other Courts {temp. John), 40 ; 
 confusion of terms relating to in re- 
 cords, etc., 40 ; severance of other 
 Courts from, long incomplete, 41,44; 
 election of Bishops in, 151 ; other 
 Courts subordinate to, 172; Eyre 
 Rolls incorrectly described as Rolls 
 of the, 37, 236 note, 255 note. See 
 Council, Parliament. 
 
 Curtesy of England, doctrine of as 
 affecting titles of honour, 107. 
 
 Dacre, of the North, Lord, case of, 
 
 227. 
 Danby, impeachment of the Earl of, 
 
 2 33- 
 
 De la Warr, case of Thomas, son of 
 William Lord, 1 19-129; its import- 
 ance in relation to the doctrine of 
 abeyance. 122 ; in relation to the 
 doctrine of barony by writ, 124; in 
 relation to the doctrine of barony by 
 tenure, 125 ; in relation to precedence, 
 125, 128. 
 
 Descent of lands and dignities, 143- 
 147. 
 
 Despenser, Hugh le (father and son) 
 charges against and banishment of, 
 158, 175 ; sentenced to death, 177 ; 
 exclude the Magnates from audience 
 of the King, 253. 
 
 Despenser, Thomas, Lord le, created 
 Earl of Gloucester, 370; degraded, 371. 
 
 Devon, Earl of, Hugh de Courtenay, 
 73 ; Edward de Courtenay, Lord 
 High Steward, ail. 
 
 — Earldom of, an instance of Earldom 
 by tenure, 73. 
 
 Dignity, surrender of, 269-272. 
 
 Disabilities of Peers, to sit in the House 
 of Commons, 239-41 ; as to elections, 
 268 ; incurred tor contempt of Court 
 in 1452, 263 ; to extinguish their own 
 honours, 269-272 ; or to transfer their 
 honours, 273-4; of traitors and felons, 
 274 ; of aliens, bankrupts, and minors, 
 
 275 ; by judgement of the House of 
 Lords, 275 ; under acts relating to 
 oaths, 276 ; specially affecting Peers 
 of Scotland, 276 ; bills to create, 
 
 276 ; bills to remove, 277, 385. 
 Doge, 14. 
 
 Domesday Book, 7 ; ' Peers ' called to 
 witness in, 171 note. 
 
 Dorset, John Beaufort, created Marquess 
 of, 370 ; Thomas Beaufort, Earl of, 
 created Duke of Exeter for life, 371. 
 
 Dublin, Robert de Vere, Marquess of, 
 
 369. 
 
 Duca, Italian title of, 14. 
 
 Duffus, Baron, restoration of, 361. 
 
 Duke, title of, 1, 2, 11 ; Ealdorman, 
 Alderman, or, 7 ; creation of first, 
 after the Conquest, 76, 348. 
 
 Dunraven, the Earl of, House of Lords 
 (Constitution) Bill of, 384-6. 
 
 Duque, Spanish title of, 14. 
 
 Dux, Britanniarum, 3, 1 2 ; Mauri- 
 taniae Caesariensis, 1 1 ; Pannoniae 
 Secundae, 11 ; Bclgicae Secundae, 
 1 1 ; Germaniae Primae, 1 2 ; used as 
 equivalent of Ealdorman or Alder- 
 man, 7 ; German equivalent of, 11. 
 
 Ealdorman or Alderman. See Alder- 
 man. 
 
 Earl, title of, I, 6 ; Bishop and, in 
 County Court, 5 ; summoned among 
 the Witan, 5 ; territorial jurisdiction 
 of, 7 ; foreign Counts described in 
 England as, 21 ; must have lands to 
 support his Earldom (Edward Ill- 
 Henry VI), 75-S1 ; amercement of, 
 
 254- 
 Earldoms, before the Conquest, 7-8 ; 
 immediately after the Conquest, 57 ; 
 granted to Ecclesiastics, 59 ; growth 
 of hereditary, 60 ; heirs, to had at 
 first to be girt with the sword, 61 ; 
 associated with tenure of lands, 62, 
 67, 75 ; surrender of, 269-72 ; transfer 
 
INDEX 
 
 397 
 
 of, by favour of the Sovereign, 272 ; 
 obiter dictum as to grant of, for life, 
 
 373- 
 
 Ecclesiastical Commissioners, the 
 ancient baronies of the Bishops now- 
 vested in, 167. 
 
 Edward the Confessor, clamour for the 
 Laws of, 9, 311. 
 
 Edward I, the reign of, term ' King's 
 Bench ' not in use before, 36 ; ' Court 
 of the King in his Council in his 
 Parliament ' in, 43, 49 ; Councils and 
 Courts in, 43, 44 ; framing of writs 
 in, 47 ; various uses of word ' Parlia- 
 ment ' in, 48 ; Earldoms in, 67 ; 
 Grand Sergeanty in, 89 ; Barons and 
 baronies in, 93, 94 ; number of Barons 
 summoned in, 96, 347 ; mode of 
 summoning Bishops in, 151 ; mode 
 of legislation in, 316-318; Abbots 
 and Priors summoned in, 347. 
 
 Edward II, the reign of. Courts and 
 Councils in, 44-45 ; Earldoms in, 
 71-73 ; number of Barons summoned 
 in, 96 ; ' Peers of the Realm ' first 
 mentioned in, 109, 157 ; judgements 
 by Peers and others in, 174-179, 
 185 ; privileges of the clergy declared 
 in, 182-185; mode of legislation in, 
 318 ; deposition of, pronounced by 
 William Trussel, a Knight, 1 78. 
 
 Edward III, the reign of, the King in 
 his Council in his Parliament in, 50- 
 53; Court of Exchequer in, 55; 
 Earldoms in, 66, 74 ; Dukedoms in, 
 76 ; Barons and baronies in, 95 ; 
 number of Barons summoned in, 
 97-9 ; Abbot, Prior, and Earl in, 1 59; 
 Peers object to give judgement on 
 any but Peers in, 185-6; case of 
 Stratford, Archbishop of Canterbury 
 in, 186-194; committee to report on 
 trial by Peers in, 195; Protest of 
 Chancellor, Treasurer, and Judges 
 in, 196; a Statute declared null by 
 King and Council in, 196; Statute 
 of Treasons in, 19S; impeachment 
 in, 205 ; summons to Parliament 
 a burden in, 236; non-attendance in 
 Parliaments in, 241 ; abolition of the 
 Brehon laws in, 300 ; mode of legis- 
 lation in, 319; Acts for holding 
 Parliament every year in, 330-1 ; 
 precedent and custom in relation to 
 summons to Parliament in, 347. 
 
 Edward IV, the reign of, degradation 
 of George Neville, Duke of Bedford 
 in, 82 ; dignities of the peerage per- 
 sonal in, 84; no indication that sum- 
 mons conferred hereditary dignity in, 
 
 124; declaration in 1877 as to an 
 abeyance in, 137. 
 
 Edward VI, the reign of, Act to disable 
 William West for life in, 122, 124, 
 125; position of a Peer's widow 
 married to a commoner in, 216, note. 
 
 Eldon, Lord, opinion of as to right of 
 audience, 253. 
 
 Elections of members of the House of 
 Commons. See Disabilities, Judi- 
 cature; of Representative Lords 
 Spiritual and Temporal of Ireland, 
 287, 364-5 ; of Representative Peers 
 of Scotland, 286, 359-360. 
 
 Elizabeth, Queen, the reign of, the De 
 la Warr Case in, 120; summons 
 followed by sitting gives hereditary 
 dignity in, 124; intervals between 
 Parliaments in, 331. 
 
 Entails, effect of in relation to attainder, 
 148. 
 
 Error, the Curia Regis, a Court of, 28 ; 
 from the Common Pleas to the King's 
 Bench, 52, 290; Jurisdiction of the 
 King in his Council in his Parliament 
 in, 289 ; the Commons not concerned 
 with judgements in, 290 ; confusion 
 of ideas respecting, 291 ; from the 
 King's Bench to the House of Lords 
 (or Parliament), 289, 292; from the 
 Exchequer Chamber to the House of 
 Lords, 292-294; importance of form 
 of writ of to Parliament, 294-5 ; from 
 Court of King's Bench in Ireland 
 to Court of King's Bench in England, 
 301-303; wide jurisdiction of the 
 Lords in, 304. 
 
 Essex, Earl of, Edward de Mandeville, 
 61 ; Geoffrey Fitz-Piers, 61 ; Geoffrey 
 de Mandeville, 61. 
 
 Essoiners, Earls and Barons as, 258. 
 
 Estates of Lords Spiritual and Lords 
 Temporal, question as to, 324. 
 
 Everden, Ralph de, privilege of, as 
 Baron, how established, 95. 
 
 Exchequer, the, early stages of develop- 
 ment of, 541-50 ; Barons of, the Peers 
 of Earls and other Barons, 54-56, 
 256 ; privilege of the King's Barons in 
 258 ; of pleas, jurisdiction in error 
 over 293-4 ; Equity side of, appeal 
 from, 298-9; transfer of equity juris- 
 diction of, to the Chancery, 299 ; 
 transfer of jurisdiction of to the 
 High Court of Justice, 304. 
 
 Exchequer Chamber, Court of, 292, 
 294; transfer of jurisdiction of, to 
 the Court of Appeal, 304. 
 
 Exeter, Duke of, Thomas Beaufort, 
 Earl of Dorset, created, 371. 
 
398 
 
 INDEX 
 
 Eyre, resemblance of the Missi in 
 France to the Justices in, 1 1 ; early 
 origin of the Justices in, in England 
 30; Barons in, 30; of 11 76, 31; 
 °f lI 79> 34; jurisdiction of Justices 
 in, 32, 38; Rolls, 37, 236 note, 255 
 note; Justices in, not, as such, the 
 Peers of Earls and Barons, 254-5. 
 
 Fauconbridge, Lord, case of Bembricke 
 and, 283. 
 
 Felony, treason originally included in, 
 146: escheat for, 149, 173; dignity 
 saved to the heir in tail upon attain- 
 der for, 149; trial of Peeresses for, 
 217; right of Peers to be tried by 
 Peers for, 224, 227 ; trial for in the 
 Court of the Lord High Steward, 
 226; disqualification for, 274. 
 
 Feudal tenures, judgement of Peers in 
 relation to, 170, 173: effects of the 
 abolition of, 222, 342, 356. 
 
 Fines, for non-attendance in Parlia- 
 ment, 242 ; of a barony or other 
 honour, 271. 
 
 Fisher, John, tried as ' late Bishop of 
 Rochester,' 220; not tried by Peers, 
 221. 
 
 Fitz-Harris, impeachment of, for High 
 Treason, 231. 
 
 Fitz-Herbert, Herbert, privilege of, as 
 Baron, 255. 
 
 Fitz-Peter, or Fitz-Piers, Geoffrey, 
 Earl of Essex, 61 ; Chief Justice in 
 Eyre, 255 ; Chief Justiciary, 255. 
 
 Fitz- Walter, Baron, amercement of, 
 257 ; barony of, cognizance of claim 
 to, 130, 285. 
 
 Fitz-Warine, the family of, 105. 
 
 — William Bourchier summoned as 
 Lord, 105. 
 
 Forests, privilege in the King's, 269. 
 
 Forfeiture, for High Treason, 147, 173 ; 
 effect of entails in relation to, 148 ; 
 restriction and practical abolition of 
 (1814 and 1870), 150. 
 
 Fortescue, Chief Justice, on the Pri- 
 vileges of Parliament, 248. 
 
 Fortz, or Fortibus, Isabella de, Coun- 
 tess of Albemarle and Devon, 73. 
 
 — William de, 72. 
 Frankalmoign, seignory of lands held 
 
 in, 142. 
 Furnivall, Thomas de, tries to prove 
 that he is not a Baron, 235, 239. 
 
 — Gerard de, amercement of, as a 
 Baron, 255. 
 
 Gaunt, John of, Duke of Lancaster, 
 summoned as King of Castile and 
 Leon, 34S. 
 
 Gaveston, Piers, case of, 175. 
 
 George I, the reign of, jurisdiction 
 assumed by the Irish House of Lords 
 in, 302 ; Act for septennial Parlia- 
 ments in, 334. 
 
 George III, the reign of, restriction of 
 forfeiture in, 150; proxies in, 244; 
 jurisdiction transferred to Ireland in, 
 303 ; Union with Ireland in, 303, 
 363-6 ; creation of Peers in, 368. 
 
 George IV, the reign of, right oi 
 audience exercised in, 253 ; restora- 
 tion of Peers of Scotland in, 361 ; 
 creation of Peers in, 368. 
 
 Glanvill, divisions of the Capitalis 
 Curia Regis according to, 35-37. 
 
 Gloucester, Court, Council, or Gewi- 
 tenemot at, 29 ; Duchess of, con- 
 demned for witchcraft, 215. 
 
 Gloucester and Hertford; Joan, wife 
 of Gilbert de Clare, Earl of, 67. 
 
 — Ralph de Monthermer, summoned 
 as Earl of, 69. 
 
 — Gilbert de Clare, the younger, Earl 
 of, summoned while a minor, 72, 275. 
 
 — Earldoms of, settled by a settlement 
 of the lands, 62-72. 
 
 Graf and Gere/a, 13; Grimm's ety- 
 mology of, 13. 
 
 Grand Sergeanty, tenants by, not of 
 necessity Barons, 89. 
 
 Gray, Lord, of Codnor, 217. 
 
 Grey, Edward de, summoned as 'Lord 
 Ferrers of Groby,' 105, 
 
 Grey, Earl, bill of, touching Representa- 
 tive Peers of Scotland and Ireland, 367. 
 
 Greystock the ' Barons ' of, 109. 
 
 Guardian of the Spiritualities, 151 ; 
 reason for summons of the, 155 ; never 
 summoned without the Praemu- 
 nie?ites Clause, 156. 
 
 Guildhall, assemblage of Lords at the, 
 252, 
 
 Half-blood, doctrine of, 143. 
 Hamilton, James, Duke of, created 
 
 Duke of Brandon in 1711, 361. 
 Hastings, Warren, impeachment of, 
 
 234- 
 
 Henry I, the reign of, Court, Council, 
 Baronage, and Witenagemot, chiefly 
 foreign in, 23, 26, 87 ; proceedings in 
 the King's Court in, 27, 28 : Eyres in, 
 30; homage of Bishops in, 151; 
 Charter of, 92, 311 ; judgement of 
 Peers in so-called laws of, 169. 
 
 Henry II, the reign of, divisions of 
 Curia Regis in, 29, 31, 39; Courts 
 or Councils of, at Clarendon and 
 Northampton, 29, 30 ; Eyres in, 30, 
 
INDEX 
 
 399 
 
 33, 34 ; case of the Kings of Castile 
 and Navarre in, 38 ; fine in, 40 ; 
 jurisdiction of the Exchequer in, 55 ; 
 Earldoms in, 60 ; relief for barony in, 
 88 ; conquest of Ireland in, 300 ; 
 charter of, 92, 311; present at the 
 making of the Constitutions of Claren- 
 don, 312. 
 
 Henry III, the reign of, Council and 
 Courts in, 41-43; framing of writs 
 in, 48 ; Earldoms in, 61-66, 73; re- 
 liefs of Earls and Barons in, 88 ; 
 nature of baronies in, 89, 90, 91, 94; 
 confirmations of Magna Charta in, 
 94, 312, 314; baronies of Bishops in, 
 154: judgement by Peers in, 173; 
 Commons in, 314, 316. 
 
 Henry IV, the reign of, restraint of 
 grants of Crown lands in, 77 ; aboli- 
 tion of ' Appeals ' in Parliament in, 
 209 ; Court of the Lord High Steward 
 in, 209-213 ; case of Thomas Merkes, 
 Bishop of Carlisle in, 213: judge- 
 ments of the Lords in, 290; 'Lords 
 Spiritual and Temporal ' in. 324 ; 
 constitutional struggle as to supply 
 in, 340. 
 
 Henry V, the reign of, grants of lands 
 with dignities in, 78 ; the Earldom of 
 Pembroke in 79, 80 ; creation of a 
 Duke in Parliament in, 323; im- 
 proved position of the Commons in, 
 325. 
 
 Henry VI, the reign of, the Earldom of 
 Pembroke in, 79 ; the Earldom of 
 Arundel in, 81 ; no Earldom without 
 lands in, 8.1 ; want of precise doc- 
 trines in, 107, 116; first creation of a 
 Viscount in, 113 ; questions of pre- 
 cedence in, 113, 115, 238; doctrine 
 of hereditary barony by writ not 
 clearly established in, 114; case of 
 the Duchess of Gloucester in, 215; 
 Act for trial of Peeresses in, 216; 
 mode of legislation in, 326. 
 
 Henry VII, the reign of, Court of the 
 Lord High Steward in, 163, 218; 
 Spiritual Lords, how described in, 
 219; laws of Ireland in, 301; no 
 separate Journals of the House of 
 Lords in, 323. 
 
 Henry VIII, the reign of, doctrine as 
 to Curtesy of England in, 107 ; Act 
 relating to precedence in, 119; Jour- 
 nals of the House of Lords commence 
 in, 127, 323 ; devise of lands in, 141 ; 
 Act relating to forfeiture for Treason 
 in, 147, 149 ; power of nominating 
 Bishops in, 153 ; the Abbot of Tavis- 
 tock made a Lord of Parliament in, 
 
 164; mode and effect of the Disso- 
 lution of Monasteries in, 165, 349, 
 35 1 ; numbers of Spiritual and Tem- 
 poral Lords in, 165-6 ; Court of the 
 Lord High Steward in, 218 ; case of 
 Fisher in, 221; doctrine as to Spi- 
 ritual Lords in, 326 ; intervals be- 
 tween Parliaments in, 331 ; supplies 
 in form of Acts of Parliament in, 
 342 ; Act for ' placing the Lords ' in, 
 351 ; assumes the title of King of 
 Ireland, 300, 302. 
 
 Her tog, Herzog, etc., IX. 
 
 Hungerford, Robert, summoned as Lord 
 Moleyns, 104. 
 
 Huntingdon, John Holland, Earl of, 
 211, 213, 370, 371; William Her- 
 bert, created Earl of, on surrender of 
 the Earldom of Pembroke, 270. 
 
 Impeachment, not a technical term at 
 the end of the reign of Edward II, 
 179, 206; earliest case of, 205; at 
 the end of the reign "of Richard II, 
 206 ; Doctrines as to, after the reign 
 of Richard II, 228 ; of Mompesson, 
 229; of Francis Bacon, Viscount 
 St. Albans, 229; of Lionel Cranfield, 
 Earl of Middlesex, 231 ; of Fitz- 
 Harris, 231 ; of Sir A. Blair and 
 other Commoners for High Treason, 
 232 ; of the Earl of Danby, 233; of 
 Warren Hastings, 234; of Viscount 
 Melville, 234 ; general principles 
 concerning, 228-234. 
 
 Ireland, jurisdiction of the House of 
 Lords in relation to Representative 
 Lords of, 287 ; effect of Union with, 
 in relation to judicature, 303 ; previ- 
 ous relations of to England, 300-303 : 
 Bills touching election of Representa- 
 tive Peers of, 336, 367 ; terms of the 
 Union with as affecting the peerage 
 and the House of Lords, 363-365 ; 
 restriction of the number of peerages 
 of, 366 ; Peers of as members of the 
 House of Commons, 366 ; the Repre- 
 sentative Lords Spiritual of cease to 
 sit, 367. 
 
 James I, the reign of, hereditary barony 
 by writ in, 131 ; intervals between 
 Parliaments in, 331 ; increase of the 
 peerage in, 355 ; relation of England 
 to Scotland in, 358. 
 
 James II, the reign of, meeting of Lords 
 at the Guildhall in, 252. 
 
 John, King, the reign of, Courts in, 40 ; 
 jurisdiction of the Exchequer in, 56, 
 note; Earldoms in, 61 ; reliefs of 
 
400 
 
 INDEX 
 
 Earls and Barons in, 88 ; great Char- 
 ter granted in, 92, 311, 312 ; Charter 
 as to election of Bishops in, 151 ; 
 judgement of Peers in, 169; sentence 
 of forfeiture passed against, by the 
 King and Peers of France, 173 ; Lord 
 of Ireland, 300. 
 
 Journals of the House of Lords, no 
 separate before the reign of Henry 
 VIII, 323. 
 
 Judgement by Peers, first mention of, 
 169; had no connexion with trial by 
 jury, 169; early, how different from 
 later trial by Peers, 1 74 ; Committee 
 appointed to report on in 1341, 195 ; 
 not necessarily by whole of Peers, 
 204. See Trial by Peers. 
 
 Judges, the, in Parliament, 48, 195 ; 
 become only ' Assistants,' 247. 
 
 Judicature of the House of Lords, suc- 
 cessive changes in, 279 ; as affected 
 by the separation of the Council from 
 Parliament, 280, 288-9 » c ^^ cases 
 of first instance disappear from, 281 ; 
 limitation of in criminal cases, 282 ; 
 in controverted elections of members 
 of the House of Commons, 284 ; in 
 ueerage cases, 285 ; in relation to 
 representative Peers of Scotland, 286 ; 
 in relation to representative Lords of 
 Ireland, 287 ; in error, 287, 291-295, 
 304 ; the Commons not concerned 
 with, 290; in appeals from the equity 
 side of the Chancery, 295-298, 299 ; 
 in appeals from the equity side of the 
 Exchequer, 298 ; effect of the Union 
 with Scotland upon, 299 ; relation of 
 to Ireland, 300-303 ; effect of the 
 Union with Ireland upon, 303 ; in 
 appeals from the Chancery of the 
 Duchy of Lancaster, 304 ; threatened 
 loss of in 1873, 304; saved in 1876, 
 305 ; new provisions relating to, 305- 
 307. 
 
 Keeper, the Lord, 354. 
 
 Kendall, John, Prior of the Knights of 
 St. John of Jerusalem, 218. 
 
 Kenmure, Viscount, restoration of, 366. 
 
 Kenry, Lord, see Dunraven, the Earl 
 of. 
 
 Kent, Earl of, Odo Bishop of Bayeux, 
 59, 179; Edmund Plantagenet, judge- 
 ment on, 178; Thomas Holland, 
 created Duke of Surrey, 370 ; de- 
 graded, 371. 
 
 King, the, in his Council in his Parlia- 
 ment. See Council, Pailiament. 
 
 King's Bench, style of the Court of, 35 ; 
 the term unknown before the reign of 
 
 Edward I, 36; jurisdiction of the 
 King in his Council in his Parliament 
 over, 52 ; jurisdiction in Error of the 
 House of Lords over, 292 ; merged in 
 the High Court of Justice, 304. 
 
 Kingston Lisle, manor of, and asso- 
 ciated barony, 117. 
 
 Knights, upon a Jury, 259; of the 
 Shire, 267, 284. 
 
 Knyvet, John, Chancellor, not sum- 
 moned to Parliament, 353. 
 
 Lacy, John de, and the Earldom of Lin- 
 coln, 272. 
 
 Lancaster, Thomas Plantagenet, Earl 
 of, 177, 287; John of Gaunt, Duke 
 of, summoned also as King of Castile 
 and Leon, 348 ; Chancery of the 
 Duchy of, appeals from, 384. 
 
 Langton, Walter, Bishop of Coventry 
 and Lichfield, 181. 
 
 Lewes, Priors of, summons to Parlia- 
 ment of the, 236. 
 
 Lincoln, Earldom of, 63, 272. 
 
 Lisle, barony of, n 6-1 19; John Tal- 
 bot, Lord, 116-119; Charles Bran- 
 don, Viscount, 270; Arthur Plan- 
 tagenet, Viscount, 270. 
 
 Liverpool, Bishopric of, 167. 
 
 Lord, origin of title of, 6 ; and Seig?ietir, 
 
 7- 
 Lords, commencement of Journals of the 
 House of, 127, 323; the, at York in 
 1640, and at the Guildhall in 1688, 
 252 ; separation of the House of from 
 the Council, 289 ; and from the House 
 of Commons, 322 ; ' Spiritual and 
 Temporal,' expression when first 
 used, 324; analysis of the Roll of 
 the, in 1893, 387. See Baron, Duke, 
 Earl, Marquess, Viscount, Spiritual 
 Lords, Summons to Parliament. 
 
 Magna Charta, of King John, 92, 169 ; 
 as confirmed by Henry III, 94; the 
 statutory basis of trial of Peers by 
 Peers, 197; how made, 312; how 
 confirmed in various reigns, 312, 313, 
 
 314, 3i7> 3'9- 
 
 Manchester, the Bishopric of, 166. 
 
 Mar, Earl of, restoration of, 361 
 
 March, Earl of, Roger Mortimer, sen- 
 tence on, 178 ; Edward, son of Ed- 
 ward IV, created, 84; title of, 34S, 
 note. 
 
 Marquess, title of, 1, 348, note ; the first 
 in England, 113, 348. 
 
 Mary, Queen, the reign of, attainder of 
 William West in, 120 ; trial of Arch- 
 bishop Cranmer in, 165, 221. 
 

 INDEX 
 
 
 401 
 
 Maud, the Empress, Earls created by, 
 
 60. 
 Melville, Viscount, impeachment of, 
 
 Middlesex, Lionel Cranfield, Earl of, 
 
 impeachment of, 231, 275. 
 Minors, disqualified for sitting in the 
 
 House of Lords, 275. 
 Missenden, Ralph, Abbot of, case of, 
 
 198. 
 Mompesson, Sir Giles, impeachment of, 
 
 221). 
 
 Monasteries, dissolution of, 165, 349 ; 
 effect on the House of Lords of, 
 
 349-35L 
 
 Money or Supply, probable origin of 
 doctrines relating to, 310, 337 ; mode 
 of granting in early times, 337-340; 
 constitutional struggle as to in the 
 reign of Henry IV, 340 ; Acts for, 
 342 ; abolition of feudal tenures in 
 relation to, 342 ; disputes between 
 the two Houses touching, in 1661, 
 342 ; Resolutions of the Commons 
 touching. 343-345- 
 
 Montfort, Simon de, Earl of Leicester, 
 3 l0 > 314. 
 
 Monthermer, Ralph de, case of, 68. 
 
 Mortimer, Roger de, and the Bishop of 
 Hereford, 182. 
 
 Moulson, Lady, petition of, 297. 
 
 Nairn, Baron, restoration of, 361. 
 Neustria, settlement of Normans in, 
 
 17- 
 Neville, George, Duke of Bedford, case 
 
 of, 82. 
 Newcastle, the Duke of, has audience 
 
 of George IV, 254; Bishopric of, 
 
 167. 
 Newell, Alexander, controverted elec- 
 tion of, 285. 
 Norfolk, Thomas Howard, Duke of, 
 
 surrender of Earldom by, 270. 
 Northampton, Great Council or Court 
 
 at, 29. 
 Northumberland, Earl of, amercement 
 
 by the Peers of the, 257. 
 Northumbria, or the Northumbrians, 
 
 Earldom of, 8, 58. 
 Nunant, Hugh de, Bishop of Coventry, 
 
 180. 
 
 Ondeby, William, controverted election 
 of as Knight of the Shire, 284. 
 
 Ordinance and Statute, 320. 
 
 Orleton, Adam de, Bishop of Hereford, 
 case of, 182-185, 287-288. 
 
 Ormonde, Countess of, writ of Capias 
 against the, 259. 
 
 Outlawry, privilege of freedom from, 
 
 260 ; in civil actions abolished, 260. 
 
 Oxford, case of Robert Harley, Earl of, 
 
 234- 
 
 — Robert de Vere, Earl of, created 
 Marquess of Dublin for life, 369. 
 
 — Earldom of in the reign of Charles I, 
 132. 
 
 Oyer and Terminer, Bishops tried in 
 Courts of, 181, 213; Archbishop 
 Cranmer tried in a Court of, 221. 
 
 Pains and Penalties, Bills of, 336. 
 
 Parliament, so-called, in 1081, 23-24; 
 various senses of the word, 48, 315 ; 
 the King in his Council in his, 43, 
 47-50, 51, 53 ; mode of holding in 
 the fourteenth century, 1 1 1 ; exemp- 
 tions from attendance in, 235-237; 
 separation of the Council from the, 
 46, 203, 280, 321 ; in Ireland, 301 ; 
 separation of the two Houses of, 
 322 ; the Convention, 329 ; inter- 
 missions of, and Acts relating to the 
 sitting and duration of, 330-334 ; 
 modern security for annual sessions 
 of, 334 ; prerogative of the Crown to 
 dissolve, 334; power of either House 
 of, to initiate, amend, or reject 
 measures, 335 ; exclusive powers 
 claimed respectively by the two 
 Houses of, 335-345. See Summons 
 to Parliament. 
 
 Paining, Sir Robert, Treasurer, 246 ; a 
 lay Chancellor not summoned to Par- 
 liament, 353. 
 
 Peer of the Realm, earliest known use 
 of the term, 157. 
 
 Peerage, attempts to limit the, 363 ; 
 promotions in the, different from new 
 creations, 371 ; Lords for life without, 
 
 375- 
 
 Peerages, jurisdiction of the House of 
 Lords in relation to, 285-287 ; cus- 
 tom of Parliament in relation to 
 Bills affecting, 335-337 ; for life, 
 questions as to in the Wensleydale 
 case, 364-379 ; for life, bills relating 
 to, 379-382, 386. 
 
 Peeresses, trial of, 216 ; for life, 372. 
 
 Peers, judgement by, 169-208 ; trial by, 
 209-234; privileges and disabilities 
 °f> 235-278 ; rights of preserved on 
 the abolition of feudal tenures, 357 ; 
 increase in number of, 368 ; promo- 
 tion of, 370 ; degradation of, 82, 
 371. See Baron, Duke, Earl, Ire- 
 land, Marquess, Scotland, Spiritual 
 Lords, Viscount. 
 
 Pembroke, Earldom of, descent of asso- 
 
 Dd 
 
402 
 
 INDEX 
 
 ciated with lands, 66, 79 ; surrender 
 of by William Herbert, 269-270. 
 
 Petitions, Committee of, 297. 
 
 Philip and Mary, the reign of, the laws 
 of Ireland in, 301. 
 
 Pole, Edmund de la, surrender of Duke- 
 dom by, 270. 
 
 — Michael de la, not summoned to 
 Parliament as Chancellor, 353. 
 
 Possessio Fi-atris, 123, 144, 146. 
 Powys, Barony of Charleton de, 137. 
 Poynings, Sir Edward, laws of, 301. 
 
 — Henry Percy Lord, 105. 
 Praemimientes clause, 154, 156, 339, 
 
 34 r >. 352. 
 
 Precedence, growth of ideas of, 1 1 1 ; 
 first mention of in Patent of Creation, 
 113; power assumed by Henry VI of 
 giving, 115; of Barons, practically 
 no proof of before reign of Henry 
 VIII, 128 ; special importance of the 
 de la Warr case, with regard to, 129 ; 
 increasing desire for, after the Wars 
 of the Roses, 238 ; Act of Henry 
 VIII relating to, 351. 
 
 Prelates, early power and precedence of, 
 16 ; powers of the Crown in relation 
 to, 152 ; claim of to the peerage, 
 160; privilege of freedom from arrest 
 of, 259. See Abbots, Bishops, Priors, 
 Spiritual Lords. 
 
 Principes, German, according to Taci- 
 tus, 12 ; in a charter of William I, 24. 
 
 Priors, summoned as holding by barony, 
 156 ; numbers of summoned, 347 ; 
 cease to be summoned after dissolu- 
 tion of monasteries, 351. See Lewes, 
 Spalding, St. John of Jerusalem. 
 
 Privilege, of sitting in the House of 
 Lords, 234-9; power of determining 
 matters relating to, 241 ; of making 
 proxies, 243 ; of entering protests, 
 245 ; of being attended in the House 
 by the Judges and others, 246 ; breach 
 of, 248 ; the Lords the supreme arbi- 
 ters of, 249 ; with regard to confer- 
 ences, 251 ; of Lords as the Counsel- 
 lors of the Sovereign, 252; of Earls 
 and Barons in relation to amercement, 
 254 ; of having knights upon a jury, 
 159, 258 ; of freedom from arrest and 
 outlawry in civil actions, 259 ; of 
 exemption from service on juries, &c, 
 261 ; in relation to recognizances to 
 keep the peace, 261 ; in relation to 
 benefit of clergy, 261-3 ; in the 
 Chancery, 264 ; in relation to slander, 
 264 ; in the King's Forests, 267 ; 
 effect of the Union with Scotland 
 upon, 267 ; no power to create or 
 
 develope new, 269 ; of judgement 
 
 and trial by Peers, see Judgement 
 
 by Peers, Trial by Peers. 
 Privy Council, 251-2 ; proceedings and 
 
 ordinances of the, when first recorded, 
 
 281 ; jurisdiction of, 307-9. 
 Procercs, use of the term, 25, 113, 318. 
 Procurator (or Proxy) of the Prelates 
 
 and Clergy in Parliament, 207, 218, 
 
 326. 
 Protests upon the Rolls of Parliament 
 
 and the Journals of the House of 
 
 Lords, 245-6. 
 Proxies, early history of, 243 ; original 
 
 theory of forgotten in the reign of 
 
 George III, 244 ; discontinuance of, 
 
 245- 
 Purbeck, Viscount, case of, 271. 
 
 Queensberry, James, second Duke of, 
 created Duke of Dover, 361 ; William, 
 fourth Duke of, created Baron Dou- 
 glas, 362. 
 
 Queen's Bench. See Kings Bench. 
 
 Quency, Hawise de, case of, 63, 272. 
 
 Ramsey, Abbot of, a Peer of the Realm, 
 
 159- 
 
 'Record of Parliament,' the, 127, 128. 
 
 Reform Bills, of 1831-2 ; action ot 
 King, Lords, and Commons in rela- 
 tion to, 335. 
 
 Relief, the leudal, for Barony and Earl- 
 dom, 88, 91. 
 
 Representation, principle of, in relation 
 to the Lords. See Ireland, Scotland. 
 
 Restitution, Bills for, 336-7. 
 
 Reynel's case, 373-4. 
 
 Richard I, the reign of, King's Court 
 in, 39 ; Earldoms in, 61. 
 
 Richard II, the reign of, separation of 
 Council from Parliament in, 46, 203, 
 280, 321 ; Earldoms in, 65 ; number 
 of Barons summoned in, 99 ; creation 
 of Baron by Letters Patent in, 100, 
 109 ; Prelates define their claim to 
 peerage in, 160, 161; 'appeals' in 
 Parliament in, 160, 200, 207 ; im- 
 peachments in, 202, 206 ; claims of 
 the Lords as to trials in, 199, 203 ; 
 Act to enforce attendance in, 237 ; 
 mode of legislation in, 321 ; ' Lords 
 Spiritual and Temporal' in, 324; 
 supply in, 339. 
 
 Right, writ of in Court Baron for under- 
 tenant. 171 ; or Praecipe in capite for 
 one holding in chief, 171. 
 
 Robsart, Lewis, how summoned to Par- 
 liament, 103. 
 
 Rollo, 17. 
 
INDEX 
 
 403 
 
 Roman Catholics, disqualification of, 
 276, 355- 
 
 Rosebery, the Earl of, motion of touch- 
 ing • the efficiency of ' the House of 
 Lords, 383 ; touching the Constitu- 
 tion of the House, 384. 
 
 Russell, Earl, Bill of for life-peerages, 
 
 379- 
 Rutland, Edward Plantagenet, created 
 Earl for his father's life, 370 ; created 
 Duke of Albemarle, 370 ; degraded, 
 37'- 
 
 Sadington, Robert de, not summonnd to 
 Parliament, when Chancellor, 353. 
 
 St. Albans, the bishopric of, 166. 
 
 St John of Jerusalem, the Prior of the 
 Knights of, sat in Parliament and in 
 the Court of the Lord High Steward, 
 162-3, 218, 346,347- 
 
 Salisbury, petition of Thomas, son of 
 John Montague, Earl of, 290 ; the 
 Marquess of, discontinuance of Writs 
 Bill of, 277; Life-Peerage Bill of, 
 386. 
 
 Scandalum Magnatum, privilege in re- 
 lation to, 264 ; its abolition, 266. 
 
 Scarle, John de, Chancellor, not sum- 
 moned to Parliament, 354. 
 
 Scotland, trial of Peers of Great Britain 
 for treason or felony in, 225; effect 
 of the Union with upon privileges of 
 individual Peers, 267 ; disqualifica- 
 tion specially affecting Peers of, 276 ; 
 jurisdiction of the House of Lords in 
 relation to representative Peers of, 
 286 ; effect of Union with, in relation 
 to judicature, 299 ; bills to alter 
 mode of electing representative Peers 
 °f, 336, 363, 367 ; terms of the Union 
 with as affecting the peerage and the 
 Chancellor, 358-363 ; principle of 
 representation in the House of Lords 
 introduced on Union with, 360 ; 
 abolition of the Privy Council of, 
 360 ; threatened extinction of peerage 
 of, 36 1 ; questions arising out of the 
 Union with, 361-2. 
 
 Scrope, Sir Richard le, Chancellor, not 
 summoned to Parliament, 353. 
 
 Seal, the Great, the Chancellor the 
 usual keeper of, 352 ; the Lord 
 Keeper of, 354 ; Lord Commissioners 
 °f> 35 5- See Chancellor. 
 
 Seigneur, 6-7, 22; and Lord of Par- 
 liament, 15. 
 
 Seignory of lands, 22, 142; and doc- 
 trine of blood, 142. 
 
 Sempringham, Master of the Order of, 
 347 ; Prior of the Order of, 346. 
 
 Sheriff's Tourn, privilege in relation to, 
 268. 
 
 Sidmouth, Lord, opinion of on the 
 privilege of audience, 253. 
 
 Skinner, v. the East India Company, 
 case of, 281. 
 
 Slander. See Scandalum Magnatum. 
 
 Somerset, John Beaufort, Earl of, 
 created Marquess of Dorset, 370; 
 degraded, 371. 
 
 Southwell, the Bishopric of, 167. 
 
 Spalding, case of the Prior of, 1 56. 
 
 Speaker of the House of Lords, the 
 Chancellor, 354; of the House of 
 Commons reports grant of supply to 
 the Sovereign, 341-2 ; Thomas 
 Thorpe, case of, 248. 
 
 Spiritualities. See Guardian of the 
 Spiritualities 
 
 Spiritual Lords, position of, 151 ; 
 summoned as holding by barony, 
 156 ; peers only by virtue of their 
 temporal possessions, 158; define 
 their own claims to the peerage, as 
 holding by barony, 160; succession 
 of not affected by cormption of blood, 
 161 ; let fall their claim to peerage, 
 163-4, 219 ; continue to be Lords of 
 Parliament, 165, 219; loss of power 
 of, on dissolution of monasteries, 
 J 65, 349; cease to be all Lords of 
 Parliament, 166 ; trial and judgement 
 of, 179-195, 213-215, 220-222; 
 Procurator of, 207, 218 ; never sat in 
 the Court of the Lord High Steward, 
 218 ; never tried by Peers of the 
 Realm, when indicted, 221-2 ; not 
 so described before the reign of 
 Richard II, 323 ; question with re- 
 gard to, as an 'estate,' 324; assent 
 of to Acts of Parliament, whether 
 necessary, 326 ; excluded from Par- 
 liament in 1640, 327 ; resumed their 
 seats in 166 1, 330; proportion of to 
 Temporal Lords at various times, 
 347-35 1 ; f° ur representative of 
 Ireland added, 364 ; but afterwards 
 excluded, 367. See Abbots, Bishops, 
 Prelates, Priors. 
 
 Stafford, Hugh, how summoned to Par- 
 liament, 1 03 ; use of the word 
 1 Baron ' in relation to the family of, 
 109; fine levied of the barony of, 
 271 ; Roger de, 271. 
 
 Staunford, treatise on Pleas of the 
 Crown of, 165. 
 
 Staunton, Geoffrey de, case of, 51-3, 
 289. 
 
 Stephen, King, the reign of, Earldoms 
 in, 59-60 ; Charters of, 92 note. 
 
4 o 4 
 
 INDEX 
 
 Steward, Lord High, Court of, insti- 
 tution of the, 209 ; first reported case 
 in, 209-212; hardly recognized in 
 the reign of Edward IV, 218 ; fully 
 recognized in the reign of Henry VII, 
 218 ; the Prior of St. John of Jeru- 
 salem sat in, 219; Spiritual Lords 
 never sat in. 219, 223; survived the 
 abolition of feudal tenures, 223; 
 constitution of: Act of William III, 
 224. 
 
 Stillingfleet, Bishop, on Archbishop 
 Stratford's case, 190, 193. 
 
 Stourton, descent of the barony of, 
 after attainder of felony, 149. 
 
 Stratford, John de. Archbishop of Can- 
 terbury, 159, 181, 184; important 
 case of, 186-194. 
 
 Strathallan, Viscount, restoration of, 
 361. 
 
 Suit of Court, 170, 241, 312. 
 
 Summons to Parliament, of Judges, 48, 
 195-6, 247 ; no original right to, 92 ; 
 not at first considered a privilege, 92, 
 108, 235-7 ; tenants by barony liable 
 to, 93 ; long at the discretion of the 
 King, 94; becomes hereditary, 99, 
 108, 114, 131. 148; in virtue of lands 
 held by a wife. 103 ; on calling a 
 barony out of abeyance, 139 ; Bishops 
 and Barons liable to, as holding by 
 barony, 152, 159 ; of the Guardian 
 of the Spiritualities, 154-6; of 
 modern Bishops, 166-7; the 'right' 
 to, in the reign of Charles I, 238 ; 
 application for, and seat in the House 
 of Commons, 239-4 1 ; different forms 
 of, 247, 324; of eldest son. in his 
 father's barony, 273 ; disqualifications 
 for, 274-6; or Cromwell's 'Other 
 House' of, 328 ; attendance of Chan- 
 cellor without, 352-4. 
 
 Surrey, Earldom of, surrender of, 270; 
 grant of for life, 270. 
 
 Tacitus, Germania of, 12, 13. 
 Talboys of Kime, barony of, 107. 
 Temple, the Master of the Knights of 
 
 the, 346, 347. 
 Temporal Lords. See Baron, Duke, 
 
 Earl, Marquess, Viscount. 
 Tenure, feudal, final abolition of, 356. 
 Thorpe, Robert de, Chancellor, not 
 
 summoned to Parliament, 353 ; 
 
 Thomas, Speaker of the House of 
 
 Commons, case of, 248 ; decision of 
 
 the Lords as to the election of, 284. 
 Titles of honour, origin of temporal, 1 ; 
 
 early in Erance, Spain, and Italy, 14. 
 
 Trailbaston, Commission of (temp. Ed. 
 Ill), 187. 
 
 Treason, High, forfeiture for, 1 47, 150, 
 173; judgement of Peers for, 174; 
 defined by Act of Parliament in 1351, 
 198"; mode of trial for, long un- 
 settled, 174-179, 215; secular juris- 
 diction in, denied by Archbishop 
 Stratford, 1 88 ; claim of the Lords to 
 judge in cases of, 199, 203 ; ' appeal ' 
 of, 200, 207,, 209 ; impeachment of, 
 202, 206, 228, 231-2 ; trial for, in the 
 Court of the Lord High Steward, 
 209, 213, 223, 224; trial of Spiritual 
 Lords for, 213, 219, 222 ; charges of 
 heresy and sorcery confused with 
 charges of, 215; Act for trial of 
 Peeresses for, 216; privilege of Peers 
 in trial for, guarded by successive 
 Statutes, 224-226 ; disqualification 
 after conviction of, 274. 
 
 Treasons, Statute of, 198. 
 
 Trial by Peers, 209, 234 : a privilege 
 most carefully guarded in successive 
 Acts of Parliament, 224 ; question 
 as to waiver of by Peers, 227. See 
 Impeachment, Judgement by Peers, 
 Peeresses, Spiritual Lords, Steward 
 Lord High, Court of. 
 
 Truro, Bishopric of, 167. 
 
 Trussel, William, a Knight, pronounces 
 sentence on the Despensers, 178; 
 pronounces the deposition of Edward 
 II, 178. 
 
 Ufford, John de, Chancellor, not sum- 
 moned to Parliament, 353. 
 Union, see Ireland, Scotland. 
 
 Vice-gerent for Ecclesiastical jurisdic- 
 tion, the King's, 350. 
 
 Victoria, Queen, the reign of, baronies 
 called out of abeyance in, 137, 139; 
 abolition of forfeiture for treason in, 
 150 ; some Bishops not entitled to sit 
 in the House of Lords in, 166 ; 
 transfer of lands of Bishoprics to 
 Ecclesiastical Commissioners in, 168; 
 Peers made punishable as other sub- 
 jects in, 263 ; Statutes relating to 
 Scaiidalum Magnatum repealed in, 
 266 ; change in the law ol Attainder 
 in, 274; bankrupts disqualified in, 
 275 ; Bills and Resolutions relative to 
 the House of Lords in, 276-7, 336. 
 367, 379.382,3^3,384-386 ; Disestab- 
 lishment of the Church of Ireland in, 
 287 ; Acts relating to the Judicature 
 of the House of Lords in, 304-307 ; 
 Repeal of Acts relating to annual 
 
INDEX 
 
 405 
 
 Parliaments in, 334 ; Resolutions of 
 the Commons touching supply in, 
 344 ; Lord Wensleydale's case in, 
 376, 379 ; Lords of Appeal in Ordin- 
 ary made Lords of Parliament in, 
 382. 384-5 ; classes composing the 
 House of Lords in, 387. 
 Viscount, title of, 1, 348, note\ the first 
 in England, 113, 348. 
 
 Waddewortb, Elias de, 192. 
 
 Wakefield, Bishopric of, 167. 
 
 Wales, first Prince of, summoned to 
 Parliament, 348. 
 
 Walpole, Robert, opposition of to limi- 
 tation of Peerage, 361. 
 
 Warwick, Edward Plantagenet, Earl of, 
 trial of, 218. 
 
 Wensleydale, Baron, case of, 376-9. 
 
 William I, descent of, from Rollo, 18 ; 
 claim of to the throne, 20 ; as Duke of 
 Normandy called Eorl, 2 1 ; so-called 
 c Parliament 'of, 23 ; Curia Regis in 
 the reign of. 23, 28 ; Earldoms in 
 the reign of, 57-60. 
 
 William II, proceedings in Court of, 
 
 28. 
 William and Mary, the reign of, Act 
 
 for triennial Parliaments in, 333. 
 William III, the reign of, Act for trial 
 
 of Peers in, 224. 
 William IV, the reign of, Ecclesiastical 
 
 Commissioners in, 167 ; the Reform 
 
 Bill in, and his action thereon, 335 ; 
 
 creation of Peers in, 368. 
 Winchester, Bishop of, non-attendance 
 
 in Parliament of, in 1329, 241. 
 Windsor, Lord, case of, in the reign of 
 
 Charles II, 133 ; the earliest in which 
 
 the doctrine of abeyance was recog- 
 nized, 138. 
 Witan, Earls, Bishops, and Abbots as, 
 
 5 ; foreigners described as, 25-26, 29. 
 Witenagemot, an assembly or Council 
 
 of Witan, 2 1 ; use of the word after 
 
 the Conquest, 22, 29. 
 
 York, the Lords at, in 1640, 252. 
 
 — Edmund Plantagenet, Duke of, 370. 
 
 Zouche, the barony of, 138. 
 
 
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