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‘While the privileges of our Peers, as hereditary legislators of a free people, are incomparably more valuable and dignified, they are far less invidious in their exercise than those of any other nobility in Europe.’—Lord John Russell.

At a very early stage in its evolution the English Parliament assumed a bi-cameral form. This form, except for a short time during the revolutionary period of the seventeenth century, has been retained continuously down to the present time. That this peculiar structure has contributed not a little to its stability, perhaps even to its survival, will be denied by no one who realizes the fate which overtook the States-General of France and the Cortes of Castille and Aragon—institutions coeval with itself. Nevertheless, the bi-cameral arrangement was due, like most English institutions, to a series of fortunate accidents. Like the States-General in France and the Cortes in Spain, the English Parliament was, in its origin, based upon the principle of Estates. The model Parliament of Edward I, summoned to meet at Westminster in 1295, represented this principle. The Estate of the Baronage were summoned in person; the Estate of the Clergy, partly in person and partly by representatives; the Estate of the Commons, wholly by representatives; and all for the primary purpose of contributing to the financial necessities of the Crown and Kingdom. From this fact it might have been anticipated that Parliament would eventually organize itself either in a single chamber or, more probably, in three chambers, corresponding to the three Estates. That it did not permanently assume either of these forms was due to two facts: (i) the secession of the representatives of the capitular and parochial Clergy; and (ii) the junction effected in the fourteenth century between the Knights of the Shire and the representatives of the Boroughs and Cities. The ‘lower’ Clergy, imbued with a strong separatist spirit, preferred to vote their money-grants to the King in their purely clerical assemblies—the Convocations of Canterbury and York—instead of taking that part in the national assembly of the realm which Edward I was wisely anxious to assign to them. The Knights of the Shire might naturally have been expected to associate themselves politically with the Baronage, the class to which socially they belonged. And for some years after 1295—for how many precisely it is impossible to say—they sat with them. By the middle of the fourteenth century, however, the Knights had definitely separated themselves from the Baronage, and had effected with the Burghers a union, which was destined to endure, in a ‘Commons’ House of Parliament. Meanwhile the Spiritual Peers—the Bishops and the Abbots—had united with the Temporal Barons in a House of Lords; and thus, before Parliament was a century old, it had definitely assumed the form which, save for a brief and exceptional interval, it has ever since retained.

That the adoption of a bi-cameral form was in itself of first-rate significance I have already hinted; but it was even more important that the different elements of which Parliament consists should have disposed themselves as they did. Had the Knights of the Shire continued to adhere, as they might naturally have done, to the Barons, the history of the English Parliament might not improbably have resembled that of the French States-General or the Spanish Cortes. The latter disappeared finally in the sixteenth century, the former just managed to survive into the seventeenth. The failure of representative institutions in France and Spain was not due to any single cause, least of all to the absence of the bi-cameral structure. But it must be attributed in no small measure to the success with which the Crown was able to fan the embers of discord between the several Estates, and particularly between the Nobles and the Third Estate. In England such discord was averted and the solidarity of Parliament in its dealings with the Crown was secured by the existence of the Knights of the Shire, and still more by their fortunate association with the Burghers. A glance at the history of county representation will suffice to prove that socially the ‘Knights’—certainly down to 1832—belonged, in very large measure, to the same class as the Baronage. Not infrequently they were the sons or brothers of members of the Second Chamber. Their political union with the Burghers was not merely useful in contributing to the weight and dignity of the House of Commons, but formed an invaluable link between the two Houses. Thanks to the existence of this link the kings of England would never, even had they wished it, have been able to drive in a wedge between Nobles and Commons, and to destroy each in turn.

It is, however, with the House of Lords alone that this chapter is concerned.

That House at present consists of 627 members, and is, therefore, by far the largest Second Chamber in the world.[2] Of its members the vast majority owe their seats to hereditary qualification; all but a handful are laymen. Now these characteristics of the House of Lords—its large and perhaps unwieldy size, the predominance of the hereditary and lay elements—are all comparatively modern. Down to the sixteenth century, or, to be more precise, down to the dissolution of the great abbeys (1539), the House of Lords was small in numbers and was neither predominantly lay nor predominantly hereditary in composition. The process by which it has been so profoundly altered in character will be described presently; but, in the first place, it is important to analyse the elements of which the House is at present composed. In this way something may incidentally be done to correct the vulgar impression that all—or nearly all—the members of the Upper House sit by a common hereditary title. There are no less than six distinct classes of persons entitled to sit in that House:

(i) Princes of the blood royal, sitting as hereditary Peers of the United Kingdom (4).

(ii) Temporal Peers of England, of Great Britain, and of the United Kingdom (548).

(iii) Spiritual Peers: 2 Archbishops and 24 Bishops (26).

(iv) Representative Peers of Scotland (16).

(v) Representative Peers of Ireland (28).

(vi) Lords of Appeal in Ordinary—‘Law Lords’ (4) and a legal life-Peer (1).

Leaving on one side for the moment the first two categories, which may, perhaps, be more strictly regarded as one, there are at present seventy-four members of the Upper House who do not owe their position directly or solely to the accident of birth.

Of these the Bishops represent the most ancient element in the House. They had a place not only in the Commune Concilium of the Norman and Angevin Kings, but in the Anglo-Saxon Witenagemot; to the model Parliament of 1295 they were naturally, therefore, summoned by Edward I. Whether they sat as Bishops—as rulers of the Church,—or as ‘barons’—tenants-in-chief of the Crown,—is a technical point which need not detain us. With the Bishops came the Abbots; but the Abbots resented the obligation to attend Parliament, and insisted that attendance was not incumbent upon them unless they held their lands by military tenure. Thus, whereas 72 Abbots were summoned to Parliament by Edward I, the number had fallen to 27 by the middle of the fourteenth century, and at that figure it remained until the abbeys were dissolved by the Act of 1539. But despite the disinclination of the Abbots to take their place in the Great Council of the nation, the spiritual Peers with brief exceptions generally commanded a majority in the Upper House until the Reformation. Thus in the first Parliament of Henry V there were 47 spiritual Peers as against 38 lay Peers; in the first of Henry VI there were 46 as against 23; in the first of Henry VII, 48 as against 29; and in the first of Henry VIII, 48 as against 36. The Reformation permanently altered these proportions. The Bishops, it is true, were increased by Henry VIII’s creations[3] temporarily to 27 and permanently to 26; but the Abbots, Priors, and Masters of Orders finally disappeared, and from that day to this the number of lay Peers has steadily, and at times rapidly, increased. The Bishop of Westminster took his place with the other new creations of Henry VIII in the last Parliaments of that reign and the first of the succeeding one, but the new see was abolished in 1550, and from the reign of Edward VI to that of Edward VII the number of spiritual Peers has remained, with two exceptions, constant.

The first exception was due to the action of the Long Parliament. The Bishops were deprived of their seats in Parliament in 1642, and remained excluded for twenty years. Immediately after the Restoration the Bishops Exclusion Act was repealed (1661) as containing ‘several alterations prejudicial to the constitution and ancient Rights of Parliament and contrary to the laws of this land’, and as having been ‘by experience found otherwise inconvenient’. The second exception was due to the Irish Union. From 1801 down to the disestablishment of the Anglican Church in Ireland in 1869, the Bishops’ bench was reinforced by the presence of four Irish Bishops. Apart from this temporary augmentation the number has not varied, despite the large increase in the Anglican Episcopate. The Order in Council creating the new see of Ripon in 1836 gave to the new Bishop a seat in Parliament, but the fusion of the sees of Gloucester and Bristol prevented an increase in the number of spiritual Peers. The successive Acts of Parliament under which new bishoprics have been created for Manchester, Truro, St. Albans, Liverpool, Newcastle, Southwell, Wakefield, Bristol, Birmingham, and Southwark, have expressly provided against any increase in the number of episcopal representatives in Parliament. The two Archbishops, the Bishops of London, Durham, and Winchester, and the twenty-one senior Bishops have seats, the ten junior Bishops being excluded. Various proposals have from time to time been made to ‘relieve the Bishops of their legislative duties and give them the opportunity of devoting themselves exclusively to the charge of their dioceses’.[4] But the recent and very influential Committee of the House of Lords, ‘having in mind the immemorial position of the Bishops in the House of Lords, and the special authority with which they are able to speak on many subjects, would regret to see the connexion dissolved and their complete withdrawal from the House. In view, however, of the large reductions proposed in the aggregate numbers of the House the Committee recommended that the episcopal representatives should in future number ten: the two Archbishops to sit by right during the tenure of their sees; and the remaining body of Bishops to elect eight of their number to represent them for the duration of each Parliament’.[5]

But this reform is still in the future; meanwhile twenty-six Bishops continue to be summoned to the Parliaments of Edward VII, as they were summoned to those of Edward VI, and as the twenty Bishops of that day were summoned to that of Edward I.

Of the sixteen representative Scottish Peers little need be said. They sit in virtue of the Act of Union (1707), being elected by the general body of Scottish Peers for the duration of a single Parliament. At the time of the Union there were nearly as many Scottish as English Peers.[6] But owing partly to the fact that no new Scottish Peerages can be created, partly to natural causes, and most of all to the fact that many Scottish Peers have been raised to Peerages of the United Kingdom, there are now only thirty-six purely Scottish Peers, although there are fifty-one Scottish Peers sitting in the House of Lords as hereditary Peers of the United Kingdom.[7] The Scottish Peers cannot, therefore, complain of under-representation in the Imperial legislature, and the day may soon come, as Maitland predicted, when ‘there will be no more than sixteen Peers of Scotland, and they will be able to elect themselves.’

The Irish Peers are represented by twenty-eight of their number in the House of Lords. They are elected by the whole body of Irish Peers and (unlike the Scottish Peers) for life. An Irish Peer who is not elected to sit in the House of Lords is eligible for election by any constituency in Great Britain—a privilege not enjoyed by the Scottish Peers. It was further provided by the Act of Union that for every three Irish Peerages which became extinct one new Peer might be created until the number was reduced to one hundred, after which one new peerage might be created for every one extinguished.

The presence of legal life-peers in the House of Lords is of still more recent date. An attempt made in 1856[8] to confer a life peerage upon a distinguished lawyer was foiled by the action of the Peers themselves. But by the Appellate Jurisdiction Act of 1876, statutory power was given to the Crown to appoint immediately two ‘Lords of Appeal in Ordinary’, with further power in certain events to appoint two more such ‘Lords’, to assist the hereditary Peers in the discharge of their functions as the final court of appeal. These ‘Law Lords’, of whom there are now four,[9] receive salaries, hold office during good behaviour, and are entitled to rank as Barons. Their tenure of seats in the Upper House was, under the Act of 1876, made dependent on the tenure of judicial office; they were, therefore, like the Bishops, to be official ‘Lords of Parliament’. By a subsequent amendment of the Act (1887) they may retain their seats and privileges for life, notwithstanding resignation of office. They have become, therefore, life-peers. But their number is limited to four. The Act of 1876, though not curtailing the right of any Peer to take part in the judicial proceedings of the House, further provides that no appeal can be heard or determined in the House of Lords unless three of the following persons are present: the Lord Chancellors (or ex-Chancellors) of Great Britain and of Ireland, Judges or ex-Judges of the High Courts of Great Britain and Ireland, or of the Judicial Committee of the Privy Council, and Lords of Appeal in Ordinary, i.e. the four ‘Law Lords’. The principle of ‘official’ Peers, though limited at present in application, is an important one, and is capable of expansion.

There remains to be considered the fifth element of which the Upper Chamber is composed—the hereditary Peers of England and the United Kingdom. These number at present (including the four Princes of the Blood) no less than 552, or more than five-sixths of the whole House. The vast majority of the Peerages which they hold are of comparatively recent creation. It has been said that ‘counting English, Scottish, and Irish Peerages, there are not a hundred which can be traced as far as the Middle Ages, and about half of these have been merged in newer and higher titles’.[10] To the first Parliament of Henry VII there were summoned, as we have seen, only twenty-nine lay Peers. The Tudors, and still more the Stuarts, were lavish in creations, and by the Revolution of 1688 the lay Peers numbered 166. Nearly thirty were added during the short reigns of William III and Anne. Queen Anne, indeed, created twelve new Peers in one batch in order to facilitate the task of the Tories in concluding the Peace of Utrecht.

It was with the intention of stopping such wholesale creations and of maintaining the oligarchical character of the Upper House that in 1719 and 1720 the Peerage Bill was introduced by the Earl of Sunderland. Sunderland represented the quintessence of Whiggism—Whiggism of the type which triumphed in 1688, and regarded with equal suspicion the Crown and the people—the principles of monarchy and of democracy. His Peerage Bills proposed that the number of Peers of Great Britain should be fixed for all time. The Crown was to have the right of creating one new peer for every peerage which became extinct, and of adding to the existing Peerage six new ones, but that was to be the permanent limit. Scotland was to be represented in perpetuity by twenty-five hereditary, in place of the sixteen elected Peers. The general effect, therefore, of the Bill would have been to fix the numbers of the lay Peerage at about two hundred. The main argument for the Bill was that it was undesirable that successive factions should have the power of swamping the House of Lords, and that the House of Commons would never be really independent so long as its leading members were constantly looking to the Crown for promotion to the Upper House.

This mischievous proposal was defeated by the sturdy common sense of Sir Robert Walpole, and it may be doubted whether in his whole career he ever performed a greater service to his country. Had the Bill become law, the Peerage, instead of being constantly recruited from the best brains of the country, would have become an exclusive and oligarchical caste; the Crown would have been deprived of one of its most valuable prerogatives; above all, the safety-valve of the Constitution would have been permanently closed. Between two legislative chambers, nominally co-ordinate in authority, conflicts must from time to time occur. The only means known to the Constitution of terminating a deadlock—a contingency most elaborately provided for in most modern Constitutions—is the Prerogative by which the Crown may create an unlimited number of new peerages. It may be objected that as a matter of fact the Royal Prerogative has never been so used since 1719, and that the Sovereign has never followed the precedent set by Queen Anne in 1711. This is true; but the numbers of the Upper House have been tripled since 1719; the House has become fairly representative of the talent of the nation; success in every great department of life,—in Letters, in Art, in Science, in business, in the field, in the forum, in the Church,—is recognized by admission to that House, and thus the Peerage has been kept in close touch with all sides of national activity. Finally, it must be remembered that the Royal Prerogative, though never exercised to effect a single dramatic coup, has, at every great crisis in our parliamentary history, been held in reserve, and has been known to be so held. This knowledge has actually averted revolution, and has preserved the Constitution intact. We were never nearer to revolution than in the Reform Bill crisis of 1832. Twice the Lords had rejected or wrecked Reform Bills on which the constituencies and still more the unenfranchised citizens had manifestly set their hearts. Lord Grey’s ministry had resigned; the Duke of Wellington had failed to form an alternative ministry; a deadlock was imminent. It was solved, as in the last resort it can only be solved, by an intimation from the King that he was prepared to create a sufficient number of new Peers to carry the measure through the House of Lords. The new Peers never saw the light; the reserve forces of the Constitution were never called out; but it was only the knowledge of their existence which averted war.

The Peerage Bill of 1719 and the averted deadlock of 1832 represent the two gravest crises in the modern history of the House of Lords. But since 1832 there have been several decisions of the House itself which go to the root of the theory of Peerage and of the qualifications of a Lord of Parliament. These demand a passing reference.

In the first place, it is important to emphasize the distinction suggested in the previous sentence. A Peer and a Lord of Parliament are far from being convertible terms. ‘It would seem,’ says Sir William Anson, ‘to be of the essence of the Peerage that it should carry with it hereditary right.’[11] Under this definition Bishops and Lords of Appeal in Ordinary could not be included among Peers: but they are undeniably Lords of Parliament. Conversely there are some Scotch Peers, and many Irish Peers who, though possessing all the attributes of Peerage, are not entitled, unless specifically elected, to a seat in the House of Lords. This point was raised in the clearest possible manner by the famous Wensleydale Peerage case in 1856.

It was thought desirable, at that time, to reinforce the House of Lords for the discharge of its functions as the Supreme Court of Appellate jurisdiction, by the creation of life Peers possessed of special legal qualifications. Accordingly the Queen was advised to confer a peerage for life upon Sir James Parke, lately a baron of the Court of Exchequer, under the style of Baron Wensleydale. Letters patent were formally issued in this sense, but the House of Lords demurred to the admission of a life Peer to a seat in the ‘hereditary’ chamber. There could be no reasonable doubt that the Crown had conferred such peerages in times past, but it was admitted that no case had occurred for the last four hundred years, and it was contended that while the Crown retained the right to create Peers for life, such a peerage did not carry with it the privilege of a Lord of Parliament. The House, after prolonged investigation of precedents, eventually resolved ‘that neither the letters patent nor the letters patent with the usual writ of summons issued in pursuance thereof can entitle the Grantee to sit and vote in Parliament’. The Crown acquiesced, and solved the immediate difficulty by conferring upon Baron Parke an ordinary descendible peerage. Whether the Lords were legally right, it is not for a layman to say; it is generally held that they were; but the political expediency of the decision is more open to question. It is true, as we have already seen, that the reinforcement of the Supreme Court of Appeal has been secured by statute. To this very limited extent the Crown has now a right of creating life Peerages. It is true also that had the right been unlimited it might have placed in the hands of the ministry of the day a dangerous weapon, and might have threatened if not destroyed the independence of the Second Chamber. Nevertheless, some of the best friends of an ‘hereditary’ House of Lords have not ceased to regret the decision in the Wensleydale case as one of many lost opportunities for strengthening its authority. This is a point which may more properly be discussed when we proceed to examine the schemes proposed from time to time for the reform of the House of Lords.[12] Meanwhile, it should be observed that the Wensleydale case raised questions of first-rate importance, both as to the precise nature of a peerage and as to the extent or limitations of the Royal Prerogative in regard to the creation of Peers.

Not less fundamental were the issues raised, a few years later (1861), by the Berkeley Peerage case. Sir Maurice Berkeley, being admittedly ‘entitled to the castle and lands constituting what had been the territorial barony of Berkeley’ petitioned the Queen that he might be declared Baron of Berkeley, and might receive a writ of summons to Parliament. Technicalities apart, the petition raised the question whether ‘barony by tenure’ still existed, and whether the holder of a territorial barony could claim as of right a seat in the House of Lords. The decision of the House of Lords was adverse to Sir Maurice Berkeley, and it was thereby authoritatively laid down that no one can any longer claim a ‘barony by tenure’. A further question, however, remained: had there ever been a time when such a claim would have been held valid? This question goes to the root of the matter, and necessitates a brief sketch of the history of the English Peerage and of the House of Lords.

The House of Lords is lineally descended from the Norman Council, which in its turn may claim descent from the Anglo-Saxon Witenagemot. Whether the Witan contained theoretically any popular or democratic element must still be regarded as an open question. But it is certain that in practice it was a small, aristocratic, or, more accurately, official body. The Bishops would seem to have contributed its most permanent element; for the rest it generally consisted of Abbots, Ealdormen or Earls, and Ministri or King’s Thegns. The Council Court or Curia of the Norman Kings was a body not less indeterminate. ‘Thrice a year,’ says the Saxon Chronicle, ‘King William wore his Crown every year he was in England; at Easter he wore it at Winchester, at Pentecost at Westminster, and at Christmas at Gloucester; and at these times all the men of England were with him—archbishops, bishops, and abbots, earls, thegns, and knights.’ These may be taken to have represented generally the leading men of the realm. Did they attend the Council or Court in view of any more specific qualification—common to all? To this question no certain or final answer can be given; but it seems tolerably clear that whatever the original theory—if ‘theory’ there was—it was quickly superseded by the idea that upon all tenants-in-chief,—upon all, that is, who held land directly from the King,—there rested an obligation to attend the King’s Council. ‘The Earldoms,’ as Bishop Stubbs puts it, ‘have become fiefs instead of magistracies, and even the Bishops had to accept the status of barons’ (i.e. tenants-in-chief).

As time goes on the functions of the Council become more clearly defined. The administrative and judicial work is for the most part assigned to a Committee (Curia Regis). Its composition becomes also more determinate. In particular a distinction is recognized between the greater and lesser tenants of the Crown. The former (barones majores) come to be distinguished by a personal summons to attend the Council, and by the right to pay their feudal dues directly into the King’s Exchequer. The latter (barones minores) are summoned to attend through the Sheriff of the County, and through the same functionary pay their dues to the Crown. This usage dates back at least as far as Henry II, and receives legal sanction from the famous clause of Magna Carta: ‘To have the Common Council of the Kingdom we will cause to be summoned the archbishops, bishops, abbots, earls and greater barons singly (sigillatim) by our letters; and besides we will cause to be summoned in general by our sheriffs or bailiffs all those who hold of us in chief.’[13] Another clause of the Charter provides that the heir of a ‘baron’ shall pay a hundred marks for succession duty (relief), the heir of a knight shall pay only a hundred shillings. It has been surmised and with much show of probability, that the distinction of relief corresponds with the distinction in the manner of summons. Be this as it may, it is clear that as time goes on there is a progressive circumscription in the ‘baronial’ class. To the Welsh war of 1276 no less than 165 ‘barons’ received a special summons; to the model Parliament of 1295 Edward I summoned only 41. Already we seem to see a distinction manifesting itself between ‘Barons’ and ‘Lords of Parliament’. Tenure begins to have less and less political significance. The qualification of ‘barony’ gradually changes. A ‘baron’ is no longer a man with much land held direct from the King. He is the man singled out by the King for the privilege or duty of a special summons to the ‘House of Lords’. Thus barony by writ supersedes barony by tenure. But who was entitled to receive the writ of summons? This question is not perhaps susceptible of a positive answer, but the conclusions now generally accepted are thus stated by Sir William Anson: ‘that at any rate from the time of Edward I the King used his discretion in respect of the special summons by writ; that as a matter of fact those summoned were usually, though not invariably, tenants of the Crown and tenants of baronies; but that persons were summoned who not only were not tenants of baronies, but were not tenants of the Crown at all. The estate of the baronage was constituted and defined by the exercise of the royal prerogative in issuing the writ of summons’.[14]

A further question now arises: did the receipt of such a writ confer any hereditary right to its continuance? Whether this was originally intended is more than doubtful; but it is clear that the usage was gradually established, and in the case of the Clifton barony in 1673 it was definitely decided that the King could not withhold the writ of summons from the heir of a person who had been once summoned and had taken his seat. This latter point—the necessity that to establish the right the summons should have been obeyed—was finally decided by the Freshville case in 1677. But meanwhile an important change had taken place in the mode of creating baronies. The dignity of an Earl, a Duke (dating from 1337), a Marquis (from 1386), and a Viscount (temp. Henry VI), was conferred by charter or Letters Patent. Richard II was the first King to confer a barony in the same manner, and from the time of Henry VI it has become the established method of creation. A peerage is now invariably created by Letters Patent, after the issue of which the new peer receives a writ of summons to take his place in the House of Lords. Thus there came into existence an hereditary peerage and a House of Lords, consisting, as we have seen, in an increasing degree of hereditary peers.[15] The powers of that House, and its functions, legal and political, will form the subject of a later chapter.[16]