PEERAGE 465 4 of ! P h i il. in 1328. This bestowal of an earldom as an hereditary rank is another process from granting an earldom, conceived as an office or even as an estate. Later in the century, in 1387, Richard II. began to create barons also by patent (Historic Peerage, p. xlii.), and this form of creation gradu ally supplanted the ancient peerage by writ. The object of this change seems to have been (see Historic Peerage, p. xxviii.) the better to mark the dignity as hereditary (for the hereditary nature of the barony by writ was after all only a matter of usage or inference), and at the same time to define the line of succession. This, in the baronies by writ, is said to be in the heirs -general of the grantee words to be understood, as it would seem, of the heirs- general of his body only ; in a barony or other peerage conferred by patent the line of succession may take any shape that the crown chooses, the most common limitation being to the heirs-male of the body of the grantee. Very singular lines of succession have sometimes been chosen (Historic Peerage, xlv.), as specially in the case of the dukedom of Somerset in 1547, in which the line of the eldest son was placed after that of the second. And the manifest right of the crown to name no line of succession at all, that is, to create a life-peerage only, was often exer cised in the first days of dukes and marquesses. A duke of Exeter was created for life as late as 1416. Perhaps the strangest case of all is the patent of the barony of Lisle in 1444, which may be called the creation by patent of a barony by tenure. The whole story of the Lisle barony has been dealt with by Sir Harris Nicolas in a separate volume (see also Lords Report, ii. 199 sq. ; Stubbs, Const. Hist., iii. 437) ; but it is only this patent that concerns us. It seems to grant a barony with a seat in parliament to the grantee John Talbot and his heirs and assigns, being lords of the manor of Kingston Lisle (see the document, the language of which varies in different parts, in the Lords Report, ii. 199; v. 243). This is certainly strange ; but, if we once grant the royal power to create peerages and to limit their succession at pleasure, it seems necessarily to follow that the crown may exercise that power in any way that it chooses, whether by limiting it to the grantee personally or giving any kind of remainder that it is thought good. The temporal peerage being thus fully established on its present ground in the course of the 15th century, we come in the course of the next two centuries to see the effect of the theories under which it had grown up. A series of deductions are gradually made, naturally enough as deductions from the premises; but then the premises can be admitted only by trampling ancient precedents under foot. First of all, we have the denial already spoken of of some of the personal privileges of peerage to the spiritual lords. This was silently brought about in the Tudor times, when Bishop Fisher and Archbishop Cranmer one might perhaps add Abbot Whiting were tried by juries in de fiance of the principle laid down by Archbishop Stratford under Edward III. Against this course no remonstrance seems to have been made ; indeed the times were not favourable for remonstrances, least of all for remonstrances made by spiritual persons. The doctrine that the spirit ual lords were lords of parliament but not peers was estab lished by a standing order of the House of Lords older than 1625, as it is referred to in the journals of the House in that year. It was then referred to a committee of privi leges for further consideration, but no report is recorded (cf. Coke s Institutes, ii. 30). Presently all the powers both of the spiritual and the temporal lords were for a while extinguished, and those of the spiritual lords by an undoubted legislative act. The Act of 1642, by which the bishops lost their seats in par liament, stands distinguished, as a real and lawful act of the legislature, from the process by which so much of the so-called law on the subject grew up through a series of resolutions, dictated mostly, we may venture to say, neither by precedent nor by written law, but by the prejudices and assumptions of a particular class of men. The exclusion Aboli- of the bishops by the regular Act of 1642 was followed in tion 1649 by the less regular exclusion of the temporal lords ^ouT of also. The House of Lords was abolished by a vote of the Lords. House of Commons only. The essence of peerage was thus taken away, but the peers kept their titles and pre cedence, and they were allowed to be chosen to seats in the House of Commons. When the old parliamentary con stitution revived in 1660, the Act of 1649 was naturally treated as null, while the Act of 1642 was of course treated as valid. In 1660 therefore a House of Lords again sat which consisted of temporal lords only. But the bishops Question were restored to their seats by an Act of the next parlia- of tlie ment in 1661, and the lords again ordered a committee 1)isn P s " to consider of an order in the standing orders of this r>e House which mentions the lords the bishops to be only lords of parliament and not peers, whereas several Acts of Parlia ment mentions them to be peers." Nothing came of the labours of this second committee, and the doctrine which it was to consider has since been held for law. Both the doctrine and the reason for it have raised the indignation, not only of the two great constitutional historians, one of them himself a churchman, but of at least one great legal authority (see Blackstone, book i. c. 12, vol. i. p. 401, ed. Christian; and contrast Stephen, New Commentaries, ii. 590, and Kerr s Blackstone, i. 407 ; cf. Hallam, Middle Ages, ii. 138 ; Lords Report, ii. 323, 339). The attack on the rights of the spiritual lords was carried yet further by the Com mons in the case of the earl of Derby in 1679, when they objected to their voting on an impeachment even in its pre liminary stages. Their right to take a part in all such pro ceedings up to the question which might involve life or death (a share in which on the part of churchmen would be con trary to canon law) is asserted by the eleventh article of the Constitutions of Clarendon (Stubbs, Select Charters, 133). The question now raised, which was decided in favour of Bishops the bishops, according to the terms of the Constitutions, y otes on did not directly touch the question of the peerage of the lm P^ ach bishops, but it had an indirect connexion with it. The m denial of the bishops peerage implied that they had no right to be tried as peers in the court of the king in par liament, as not being, as the phrase goes, "of trial by nobility." It might therefore be plausibly argued that they had no right to be judges in that court. The right of the bishops to vote on a bill of attainder, which, on any canonical ground, would seem quite as objectionable as their voting on an impeachment, was never denied, because a bill of attainder is a legislative act, and does not touch the question of peerage. Indeed, we may say that the law is still far from clear on the whole matter. The statute of 1696 (7 and 8 Will. III.) for " regulating of Trials in cases of Treason and Misprision of Treason " speaks of " trials of peers " and of " all the peers who have a right to sit and vote in parliament," without distinctly defining whether the word peer is meant to apply to the lords temporal only. In the same century another step in the development Aliena- of the theory of peerage was taken by the resolutions of tion of the lords in 1640 and 1678 that a peer could not relin- e r e _ rages quish his peerage. This inference also, whatever may be bidden, thought of it, though distinctly against earlier precedents, follows (see Lords Report, ii. 25, 26, 48) directly from the doctrine of "ennobling of blood." The next point in the history of the peerage is one which, like the exclusion of the bishops in 1642, was a matter of real legislation, as distinguished from mere XVIII. 59
