comparatively small, but that monarch issued no fewer than 388 patents of peerage. Many of these have become extinct or obscured by higher titles, but the general tendency is in the direction of a steady increase, and where the peers of Tudor times might be counted by tens their successors of 1910 were numbered in hundreds. The full body would be 546 English peers. There are also 12 ladies holding English peerages. The Irish peerage has 175 members, but 82 of these are also peers of the United Kingdom, leaving 28 representative and 65 without seats in the House of Lords. Of 87 Scottish peers 51 hold United Kingdom peerages, the remainder consisting of 16 representative and 20 without seats.
As centuries have gone by and customs changed, many
privileges once keenly asserted have either dropped out of
use or been forgotten. The most important now
in being are a seat in the House of Lords and the
right to trial by peers. The right to a seat in
parliament is one sanctioned by centuries of constitutional
Privileges
of Peerage.
usage. The right of a peer in England to a seat in parliament
was not, as pointed out in the early part of this article, entirely
admitted by the Crown until late in the Plantagenet period,
the king’s pleasure as to whom he should summon always
having been a very material factor in the question. Charles I.
made a deliberate attempt to recover the ancient discretion
of the Crown in the issue of writs of summons. The earl of
Bristol was the subject of certain treasonable charges, and
though he was never put on his trial the king directed that
his writ of summons should not issue. The excluded peer
petitioned the Lords, as for a breach of privilege, and a committee
to whom the matter was referred reported that there
was no instance on record in which a peer capable of sitting in
parliament had been refused his writ. There was a little delay,
but the king eventually gave in, and the earl had his writ
(Lords Journals, iii. 544).
At the beginning of a new parliament every peer entitled receives a writ of summons issued under the authority of the Great Seal; he presents his Writ at the table of the House of Lords on his first attendance, and before taking the oath. If the peer be newly created he presents his letters-patent creating the peerage to the lord chancellor on the woolsack, together with the writ of summons which the patent has evoked. A peer on succession presents his writ in the ordinary way, the Journals recording, e.g. that Thomas Walter, Viscount Hampden, sat first in Parliament after the death of his father (Lords Journals, cxxxix. 4). The form of writ now issued (at the beginning of a parliament: for the variation when parliament is sitting see Lords Journals, cxxxix. 185) corresponds closely to that in use so long ago as the 14th century. It runs as follows:—
George the Fifth by the Grace of God of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the seas King Defender of the Faith to our right trusty and well beloved Greeting Whereas by the advice and consent of our Council for certain arduous and urgent affairs concerning us the state and the defence of our said United Kingdom and the Church we have ordered a certain Parliament to be holden at our City of Westminster on the . . . day of . . . next ensuing and there to treat and have conference with the prelates great men and peers of our realm We strictly enjoining command you upon the faith and allegiance by which you are bound to us that the weightiness of the said affairs and imminent perils considered (waiving all excuses) you be at the said day and place personally present with us and with the said prelates great men and peers to treat and give your counsel upon the affairs aforesaid. And this as you regard us and our honour and the safety and defence of the said United Kingdom and Church and despatch of the said affairs in no wise do you omit.
Formerly all peers were required to attend parliament, and there are numerous recorded instances of special grants of leave of absence, but nowadays there is no compulsion.
After the right to a summons the principal privilege possessed
by a peer is his right to be tried by his peers on a
charge of treason or felony. Whatever the origin
of this right, and some writers date it back to
Saxon times (Trial of Lord Morley, 1678, State Trials vii.
145), Magna Carta has always been regarded as its confirmatory
authority. The Peers Tried
by Peers.
important words are:—
“nullus liber homo capiatur imprisonetur aut disseisiatur de libero tenement suo vel libertatibus seu liberis consuetudinibus suis, aut utlagetur aut exuletur nec aliquo modo distruatur nec dominus rex super ipsum ibit nec super eum mittet nisi per legale judicium parium suorum vel per legem terrae.”
The peers have always strongly insisted on this privilege of trial by their own order, and several times the heirs of those wrongly condemned recovered their rights and heritage on the ground that there had been no proper trial by peers (R.D.P., v. 24). In 1442 the privilege received parliamentary confirmation (stat. 20 Henry VI. c. 9). If parliament is sitting the trial takes place before the House of Lords in full session, i.e. the court of our lord the king in parliament, if not then before the court of the lord high steward. The office of lord high steward was formerly hereditary, but has not been so for centuries and is now only granted pro hac vice. When necessity arises the Crown issues a special commission naming some peer (usually the lord chancellor) lord high steward pro hac vice (Blackstone’s Comm. iv. 258). When a trial takes place in full parliament a lord high steward is also appointed, but his powers there are confined to the presidency of the court, all the peers sitting as judges of law as well as of fact. Should the lord high steward be sitting as a court out of parliament he summons a number of peers to attend as a jury, but rules alone on all points of law and practice, the peers present being judges of fact only. Whichever kind of trial is in progress it is the invariable practice to summon all the judges to attend and advise on points of law. The distinction between the two tribunals was fully discussed and recognized in 1760 (Trial of Earl Ferrers, Foster’s Criminal Cases, 139). The most recent trial was that of Earl Russell for bigamy (reported 1901, A.C. 446). Among others are the Kilmarnock, Cromarty and Balmerino treason trials in parliament in 1746 (State Trials xviii. 441), and in the court of the lord high steward, Lord Morley (treason, 1666, State Trials vi. 777), Lord Cornwallis (murder, 1678 State Trials vii. 14 5), Lord Delamere (1686, treason, State Trials xi. 510). Recently some doubt has been expressed as to the origin of the court of the lord high steward. It is said that the historical document upon which the practice is founded is a forgery. The conflicting views are set forth in Vernon Harcourt’s His Grace the Steward and Trial of Peers, p. 429, and in Pike's Constitutional History of the House of Lords, p. 213. In any case, whatever its historical origin, the court for centuries as a matter of fact has received full legal recognition as part of the constitution. The right to trial by peers extends only to cases of treason and felony, and not to those of misdemeanour; nor can it be waived by any peer (Co. 3 Inst. 29; Kelyng’s Rep. 56). In the case of R. v. Lord Graves (1887), discussed in Hansard’s Parliamentary Debates, 3rd series, vol. cccx. p. 246, Lord Halsbury points out that the question of trial by peers is one of jurisdiction established by law rather than a claim of privilege in the discretion of the accused. Scottish and Irish peers, whether possessing seats in the House of Lords or not, are entitled to trial by peers, the same procedure being followed as in the case of members of the House of Lords.
Peers with a seat in the House of Lords possess practically the same parliamentary privileges as do members of the House of Commons. Among other privileges peculiar to themselves they have the right of personal access to the sovereign (Anson’s Law of the Constitution, i. 227). In the House of Lords, when a resolution is passed contrary to his sentiments, any peer, by leave of the house, may “protest,” that is, enter his dissent on the journals of the house (Blackstone, Comm. i. 162). Formerly a peer might vote by proxy (Blackstone, ibid.), but since 1868 there has been a standing order discontinuing this right. In accordance with resolutions passed by the two houses, neither house has power by any vote or declaration to clothe itself with new privileges unknown to the law and customs of parliament (Commons Journal, xiv. 555). Peeresses and non-representative peers of Ireland and Scotland have,
