libellous matter published by order of the House. It was held that the House could not, by its resolution, alter the law of the land so as to legalize an otherwise illegal act; and further, that a resolution of the House declaring its privilege would not prevent the court from inquiring into the validity or otherwise of such privilege. (r)

So that, though the House in the past has claimed the right to determine its own privileges, it now seems clearly settled that in a proper case the courts have the power to pronounce on the validity or otherwise of alleged Parliamentary privileges.

Minor Privileges.-The House of Commons also claims certain other minor privileges, such as exemption from attending as witnesses, which is, however, usually waived, (s) and exemption from service as sheriff.

The question of the latter privilege was discussed in 1904 on the nomination of Major Coates, M.P. for Lewisham, as Sheriff for Surrey. It appeared that a resolution of the House of 7th of January, 1689, declared that a writ nominating a member a sheriff was a breach of the privileges of the House, and doubt was expressed by Lord Alverstone, C.J., whether a privilege of the House could be waived. In the result Major Coates' name was placed third on the list on the understanding that the matter would be brought forward in the House at an early date. (t)

(r) See judgment of Lord Denman, C.J., in Stockdale v. Hansard (1839), 9 A. & E., pp. 108-148.

(8) Anson, i. 218.

(t) See the Times, Nov. 14, 1904, p. 13.

CHAPTER III.

THE HOUSE OF LORDS.

Composition of the House of Lords.

THE House of Lords is composed of the lords spiritual and temporal, at present (1914) 643 in number, and these may be divided into three groups.

(1) Hereditary peers of England or the United Kingdom, who are also hereditary lords of Parliament, 569 (a) in number. These are

(a) 3 princes of the Blood Royal.

(b) 21 dukes.

(c) 25 marquesses.

(d) 122 earls.

(e) 45 viscounts.

(f) 353 barons.

(2) Hereditary peers who are not hereditary lords of Parliament.

These are

(a) The sixteen representative peers of Scotland.

(b) The twenty-eight representative peers of Ireland. (3) Peers and lords of Parliament during life only. These

are

(a) The twenty-six spiritual peers (two archbishops and twenty-four bishops).

(b) The four lords of appeal in ordinary.

Thus it will be seen that all peers are not necessarily hereditary lords of Parliament, nor are all lords of Parliament necessarily hereditary peers

Origin of the Various Titles.-The style of Duke was used by the Anglo-Saxons as a title of dignity, but does not seem to have been employed by the early Norman kings, who,

(a) These numbers are subject to variation owing to the creation or extinction of peerages.

being dukes of Normandy themselves, probably thought it derogatory to their own dignity to confer a similar title upon a subject. The first dukedom was conferred upon Edward the Black Prince, (b) who was created Duke of Cornwall by Edward III. in 1337, the title being hereditary and devolving upon the eldest son of the reigning sovereign.

Marquess was a term which applied originally to the Lords Marchers; (c) it was first used as a title of dignity by Richard II., who created Robert de Vere Marquess of Dublin in 1386. (d)

Earl was the equivalent of the Anglo-Saxon Ealdorman. It was the highest hereditary dignity until the creation of the dukedom in 1337.

Viscount was a title borrowed originally from the French, and was first conferred as a title of honour by Henry VI., (e) who had been crowned King of France, upon Lord Beaumont, created Viscount Beaumont.

The Baronage.-The early history of the baronage is involved in some obscurity; originally it seems that the term 'baron," as equivalent to lord of a manor, applied to all who held as tenants in capite under the Crown ; (f) it was, however, only the greater barons who had both a civil and criminal jurisdiction in the court baron, the lesser barons having civil jurisdictions only.

The distinction between the greater and lesser tenants in capite is observed in Magna Carta, the king promising to summon the majores barones by individual writ (sigillatim), whilst the other tenants in capite were to be summoned through the sheriffs. (g)

Baronies were thus an incident of tenure originally, and continued such for at least two centuries after the Conquest. They could be alienated with the land, and in 1433 possession of the castle of Arundel was held to confer an earldom. (h)

(b) Selden, Tit. Hon., 751.

(c) As to the Lords Marchers, see post, p. 273.

(d) Selden, Tit. Hon., 759.

(e) Pike, Const. Hist. of the House of Lords, 113. The title was originally the same as Vicecomes or Sheriff (Selden, Tit. Hon., 762).

(f) See Pike, p. 87 et seq.

(g) See Stubbs' Sel. Chart., p. 290.

(h) Pike, p. 80.

Tenure per Baroniam, however, never of itself conferred an absolute right to be summoned to Parliament, nor was it a condition precedent to a writ of summons, it always remaining open to the king within certain limits of summoning whom he pleased. (i) The idea that the issue of a writ to an individual conferred upon his heirs an hereditary right to be summoned seems, however, to have become generally recognized by the time of Richard II. (k)

The question of baronies by tenure was finally settled by the House of Lords in 1861, in the Berkeley Peerage case, (1) where it was held that the tenure of certain lands could not of itself confer a barony.

In the Clifton case, (m) 1673, it was definitely decided that a writ of summons, followed by taking a seat in the House, confers an hereditary peerage, and in the Frescheville case, (n) 1677, that a writ of summons alone, not followed by taking a seat, does not confer a peerage.

Creation of Peers. Earldoms and other ranks always conferred by charter or letters patent, but Richard II. was the first monarch to create a barony in that way. (9) A new hereditary peer is now invariably created by letters. patent, followed by a writ of summons to take his seat in the House

'Restrictions on Creation of Peers.-The Crown has the exclusive privilege of creating peers, and can create as many as it pleases, subject to the following restrictions :

(1) No new Scotch peer may be created, since there is no
provision to that effect in the Act of Union.
(2) By the Act of Union with Ireland (p) the Crown may
create one new peer of Ireland for every three that
become extinct after the date of the union, but in

(i) Pike, Const. Hist. H. of Lords, p. 92.

(k) Ib. pp. 99, 100.

(1) (1861) 8 H. L. Cas. 21.

(m) Collin's Baronies by Writ, p. 291; and see the Hastings Peerage case (1840), 8 Cl. & F. 144.

(n) Lds. Rep., iii. 29.

(0) The first Baron so created was Lord de Beauchamp, Baron of Kidderminster, in the year 1387. (Pike, p. 109; Selden, Tit. Hon.

order to keep the number of Irish peers who are not hereditary lords of Parliament up to the number of one hundred, one new peer may be created for every vacancy occurring below that number. (3) It is doubtful whether the Crown can create peerages with limitations which would be void in ordinary law. Thus in the Devon (q) Peerage case an earldom granted to a man and his heirs male was held to be good, whilst in the Wiltes' case (r) a similar grant was held to be bad. The fact, however, that a peerage by writ of summons descends to the heirs lineal, and not to the heirs general, which is a form of descent not otherwise known at law, might form an argument in favour of the Crown's power to make such a grant. In the Wensleydale Peerage case, 1856, (s) it was held that the Crown had no power to create life peerages with a right to sit in the House of Lords. Such grants are therefore void so far as the right to a writ of summons is concerned.

Subject to these restrictions the Crown may create an unlimited number of peerages, and might thus ensure the passing of any measure by the House of Lords. This was successfully accomplished by Anne in 1712 in the case of the Treaty of Utrecht. (t) In 1719 a Peerage bill restraining the creation of peers was brought in by Lord Sunderland. This measure was carried by the House of Lords, but thrown out by the Commons, (u) and no statutory restraint has since been attempted.

The Irish Representative Peers.-By the Act of Union, 1800, (x) the number of Irish representative peers is fixed at twenty-eight, and they are elected for life.

On a vacancy occurring through the death or attainder of a representative peer, the mode of election of a new representative peer is regulated by an Act passed by the (g) (1831) Dow & Cl. 200.

(r) (1869) L. R. 4 H. L. 126.

(8) (1856) 5 H. L. Cas. 958; and see May's Const. Hist., i. 291–299. (t) Pike, p. 363.

(u) Ib.

(x) 39 & 40 Geo. III. c. 67, s. 4.