PEERAGE 463 if , of 16 ! 1 , rs effect on the position of the older members of the House, the prelates and earls. It was in fact their admission which gave the English peerage its distinctive character. A house of earls, bishops, and great abbots would have remained an official house. The earldom might pass from father to son ; but it would pass as an hereditary office, entitling its holder to a seat by virtue of his office, just like those lords who held their seats by virtue of offices which did not pass from father to son. Indeed we must not forget the meaning of the word hereditary in early times. It is applied to whatever goes by succession, whether that succession is ruled by natural generation, by election or nomination, or by any other way. The office and estate of the bishop or abbot is hereditary in this sense ; it must pass to some successor, and it is therefore often spoken of as hereditary. Indeed, as long as the earl was appointed, his office was hereditary only in the same sense as that of the bishop. The only difference was that the office of the bishop could not possibly become hereditary in the modern sense, while the office of the earl easily might, and there fore did. But, if the earls had continued to have no fellows in the Upper House except the prelates, the earldom could hardly have sunk into a mere rank. It was the addition of a class which had no official position save that which their seats in parliament conferred upon them a class whose seats were first purely personal and then purely hereditary in the modern sense, which helped more than anything else to do away with the official character of the earls. And in so doing it helped to widen the gap between the spiritual and temporal lords. The earl and the baron alike came to be looked on as sitting by some hereditary virtue of descent ; their blood was said to be ennobled, while the bishop and the abbot still sat only by what might seem to be in some sort the lower claim of holding an elective office. Iml It is then to the days of Edward I. that we are to look, 11 v not strictly for the creation of peerage in the modern sense, ^ but for the beginning of a system out of which peerage in
h that sense very naturally grew. In the words of the great
5i3s. constitutional historian, Edward I. must, " in the selection of a smaller number to be the constant recipi ents of a summons, have introduced a constitutional change scarcely inferior to that by which he incorporated the representatives of the commons in the national council ; in other words, he created the House of Lords as much as he created the House of Commons." That is to say, he did not create the first elements of either, which existed long before, nor did he give either its final shape, which neither took till afterwards ; but he established both in such a shape that all later changes may be fairly looked on as merely changes in detail. The succession of regular parliaments in the established sense of the word thus begins in 1295, and from that time we have a House of Lords consisting of prelates, earls, and barons, of whom the barons are fast becoming hereditary as well as the earls. But the body so formed is still spoken of by various names (see Lords Report, i. 273, 277, 279, 302, 316 where we find the word nobles et al.). J use The earliest use of the word peer in anything like its present sense is found in the Act against the Despensers, 1322 (Lords Report, i. 281), where, as Bishop Stubbs says (Const. Hist., ii. 183), "it is used so clumsily as to show that it was in this sense a novelty." The words are "prelatz, countes, baronnes, et les autres piers de la terre," and again "nous piers de la terre, countes et barouns." It comes again in the act of deposition of Richard II. (Lords Report, i. 349) in the form "pares et proceres regni Anglias, spirit- uales et temporales." Nothing therefore can be plainer than that the spiritual lords were looked on as peers no less than the temporal. The point indeed was formally settled at an intermediate time, namely by the Act of 1341 (Lords Report, i. 313 ; Stubbs, Const. Hist., ii. 389), when Rights of Archbishop Stratford secured the right of the peers (" piers the P eers de la terre ") of both orders to be tried only by their peers ^oTJ in parliament ("en pleyn parlement et devant les piers ou m le roi se fait partie"). It is worth noticing that at this point the Lords Report stops to comment at some length on the special position of the peerage now established. As the committee puts it, " The distinction of the peers of the realm as a separate class, by privileges confined to themselves personally as peers, and not extending to any others, but throwing at the same time all the rest of the free population into one class, having all equal rights, is a singularity which marks the constitution of the English govern ment, and was first apparently clearly established by this statute to which all the other subjects of the realm gave their assent." And again they remark (p. 314) that " the confinement of the privilege of peerage to those called the peers of the realm, as a personal privilege, giving no privilege or even legal rank to their families, and moulding all who had not that privilege, however high their birth, into the mass of the commons, has been considered an important feature in the consti tution of the government of England. It may have prevailed, and probably did in some degree prevail, before ; but by this statute it was clearly and distinctly recognized." This is true ; yet the object of the statute is not to shut out the peers children from privilege, but to assert the disputed privilege of the peers themselves. The exclusion of the peers children from privilege is a mere inference, though a necessary one. No legislator ever decreed in so many words the exclusion of the children of peers from privilege, because no legislator ever decreed in so many words the privileges of the peers themselves. By this time we may look on the position of the peerage The posi- as fully established. It is now fully received, as at least t-ion of the ordinary rule, that the baron who was once summoned tlie peer should be always summoned, and that his right to the g^ab^ summons should pass to his representative after him (Lords lished. Report, ii. 28). In short the parliamentary position of baron has become successive, a word answering pretty well to hereditary in the older sense. A question might now arise as to the nature of the succession, a question which could not arise as long as the person summoned had no certainty that he would be summoned again. In other words, was it necessarily hereditary in the later sense of that word ? That is to say, the question of peerage by tenure, or rather Peerage the question whether the succession to a peerage might be by ten - by tenure, now sprang up. Did the right to the summons, ure and hereby the right to the peerage, go with the territorial barony itself, or did it go according to the line of natural descent from the first baron 1 There was a good deal to be said for the first view. "We cannot doubt that barony by writ arose out of barony by tenure, that is, that the writ of summons was originally sent only to persons who held by barony, and, as the phrase " majores barones" implies, not to all of them. If then the barony and the natural line of descent of the first baron should be parted from each other, it was by no means unreasonable to argue that the writ, a consequence of the tenure, should go with the actual barony rather than follow the line of natural descent. And the same notion seems implied in the ancient practice of sending writs to the husbands of heiresses, even, by the courtesy of England, after the death of their wives (see Stubbs, Const. Hist., iii. 438 ; Hist. Peerage, xxxviii.). On the other hand the natural feeling in favour of direct hereditary succession would tell the other way, especially as soon as the doctrine of the ennobling of the blood had fully come in. It is that doctrine more than anything else which has got rid alike of peerages by tenure, of peerages for life, and of peerages held by the husbands of heiresses. If the peerage could pass by marriage or purchase, the doc trine of nobility of blood was set aside. Till that doctrine was fully established, there was nothing unreasonable in
