Page:Encyclopædia Britannica, Ninth Edition, v. 18.djvu/486

464 PEERAGE either practice. Again, as the hereditary right to the summons became the rule, writs, held to be no less heredi tary than those issued to the barons by tenure, began, even under Edward I., to be issued to persons who had no baronial tenure at all (see Stubbs, Const. Hist., ii. 204; His toric Peerage, xxvi.). This practice would of course tell in favour of strict hereditary succession and against succes sion by tenure. The result has been that hereditary suc cession became the rule, but that the claim of succession by tenure was brought forward in some particular cases, as the earldom of Arundel and the baronies of Abergavenny, Berkeley, and others. The case of the earldom of Arundel (more truly of Sussex) is discussed at length in the Lords Report (i. 405 sq. and it is held (ii. 320) to be the only case in which peerage by tenure has been allowed. Yet nothing can be more contrary to all ancient notions of an earldom than that it should follow the possession of certain lands and buildings, as the castle and honour of Arundel. What is chiefly proved is that by the eleventh year of Henry VI. the ancient notion of an earldom had passed away, and that the earldom had sunk to be a mere rank. The succession to the earldom of Arundel was settled by Act of Parliament in 1627 (Lords Report, ii. 242), an Act whose preamble seems to acknowledge the fact of the earldom by tenure. But succession by tenure seems as distinctly agreeable to the oldest notion of a barony as it is contrary to the oldest notion of an earldom. The tend ency of later times has been against it, because it contra dicts the fancy about " ennobling " of blood ; yet those who have at different times claimed a place in the peerage by virtue of baronies by tenure have not been without strong arguments in the way of precedent. The latest claim of the kind, that to the barony of Berkeley, was not formally decided. The facts and arguments will be found at great length in Appendix III. to Sir Harris Nicolas s Report on the Barony of Lisle. His conclusion is against the claim by tenure ; yet it certainly seems that, when the castle of Berkeley, the tenure of which was said to carry with it the barony and peerage, was separated from the direct line of succession, as specially when the castle was held by the crown in the 16th century (see pp. 321-327), the heirs were not summoned to parliament, or were summoned as a new creation (see on the other hand Lords Report, ii. 143). There is no strictly legal decision Order in of the general question ; but an order in council in 1669 council (Lords Report, ii. 242) declares against barony by tenure, rather on grounds of expediency than of law. It was declared in the case of the barony of Fitzwalter that "barony by tenure had been discontinued for many ages, and was not then in being, and so not fit to be revived or to admit any pretence of right to succession thereon." And the Lords Committee (p. 241) give their own opinion that " the right of any person to claim to be a lord of parliament, by reason of tenure, either as an earl or as a baron, supposing such a right to have existed at the time of the charter of John, may be considered as abrogated by the change of circumstances, without any distinct law for the purpose." That is to say, the claim was as legal as any other claim of peerage, resting equally on usage ; but it was inconvenient according to the new doctrine about blood being " ennobled." New The same age which saw the earls and barons put on of the shape of an hereditary peerage was also that which saw the order enlarged by the creation of new classes of peers. The ancient earls of England now saw men placed over their heads bearing the French titles of duke and marquess. Neither title was absolutely new in England ; but both were now used in a new sense. Duke and earl were in truth the same thing ; dux, afterwards supplanted by comes, was the older Latin translation of the English peers. ealdorman or eorl, and eorl was the English word commonly used to express the dukes as well as the counts of other lands. So the marchio, markgraf, marquis, was known in England in his official character as the lord marcher. But now, first dukes and then marquesses come in as distinct ranks of peerage higher than earl. That the earls of England put up with such an assumption was most likely owing to the fact that the earliest dukes were the king s own sons and near kinsmen, the first of all being the eldest son of Edward III. He was created duke of Cornwall in 1337, a duke dom to which the eldest son of the reigning sovereign is born. Marquesses began under Richard II. in 1386, when Robert Vere, earl of Oxford, was created marquess of Dub lin and directly afterwards duke of Ireland (Lords Fifth Report, 78, 79). Lastly, in the next century, the tale of the ranks of the temporal peerage was made up by the in sertion of another French title, that of viscount, between the earl and the baron. John Beaumont was in 1440 created Viscount Beaumont (Lords Fifth Report, 235). The choice of a title, as concerned England, was a strange one, since, at least from the Norman Conquest onwards, viscount, mcecomes, had been the everyday French and Latin description of the ancient English sheriff (see Stubbs, Const. Hist., iii. 436, and the patent of creation in Lords Report, v. 235, where the new viscount is placed " super omnes barones regni "). Since that time no title conveying the rights of peerage has been devised. The Lords Committee (i. 470) look on it as doubtful whether such a power abides in the crown, and a decision in the spirit of the Wensleydale decision would most likely rule that such a creation would at least give no right to a seat in the House of Lords. Yet, if the crown be, as lawyers tell us it is, the fountain of honour, it is hard to see why its streams should not flow as readily in one age as in another. If Henry VI. could give his new invention of viscounts seats in parliament with precedence over barons, it is hard to see why James I. might not, if he had chosen, have given his new invention of baronets seats in parliament with precedence over dukes. The five ranks of the temporal peerage were thus estab- Use lished in the order of duke, marquess, earl, viscount, baron. ^ e But it must be noticed that duke, marquess, and viscount, are strictly speaking titles in a sense in which baron is not. Baron in truth is very seldom used as a personal descrip tion (Stubbs, Const. Hist., iii. 440), except in two or three special cases which are hard to account for, those chiefly of the baronies of Stafford and Greystock (see Lords Report, i. 261, 394; ii. 185). The baron is commonly described by some of the endless forms of senior, or as chivaler, or sometimes doubtless if he held that particular dignity as banneret. To this day, though in familiar speech all ranks of peerage under duke are often confounded under the common description of lord, yet the names marquess, earl, and viscount are all far more commonly heard than the name baron, which is hardly ever used except in the most formal language. As for bannerets, though they seem sometimes to be mentioned along with various ranks of peerage (Lords Report, i. 328), it does not appear (see Stubbs, Const. Hist., iii. 446) that banneret ever really was a rank of peerage, like the others from baron up to duke. The invention of these new ranks of peerage undoubtedly helped to strengthen the notion of the temporal peerage as an order distinct both from all who are not lords of parliament and from the spiritual lords also. Another novelty also came in along with the dukes and marquesses. The right of the earls was immemorial ; the right of the barons had grown up by usage. Edward III. began to Crea create earls and, when dukes were invented, dukes also, by ^y patent. They were commonly created in parliament and pa with becoming ceremonies. Earls were thus first created