WHAT IS A PEER?
Judging from casual remarks often heard in ordinary conversation, it would seem that not a few persons believe every man who is styled ‘Lord So-and-so’ to be a peer. The notion indicated, though prevalent, is wholly erroneous; and as the peerage of this realm, unlike that of other countries, is a matter of substantial importance, not only in a social but in a constitutional sense, an answer to the question, ‘What is a peer?’ may not prove uninteresting.
The word ‘peer’ itself, etymologically, in no way denotes superiority of position; on the contrary, strange to say, it denotes equality, being simply a form of the Latin par, equal, and comes to us through the French word pair, bearing the same meaning. How comes it, then, that an ennobled person should be designated by a term which signifies ‘an equal?’; and of whom is such person an equal? One statement will answer these questions—namely, that every peer of the realm is the equal of every other peer of the realm—that is, of the United Kingdom; just as the members of all other classes of the community are the peers of each other in regard to citizen rights. We say ‘peer of the realm,’ because all peers are not entitled to be so styled. Thus, a member of only the Irish peerage is not the equal of an English peer or a peer of the realm, for the reason that he is not, by the mere reason of being a peer of Ireland, entitled to a seat in the House of Lords. In other words, he is not a peer or lord of parliament unless he is elected to be such; a remark which requires explanation.
At the time of the union of Ireland with Great Britain, confirmed by the statute 39 and 40 Geo. III. (1801), it was provided in the Act of Parliament that the peers of Ireland should have the power to elect twenty-eight representatives from amongst their own body to sit in the Upper House of the united legislatures for life. Such representative peers are chosen when necessary, and when elected, are lords of parliament, and have all the privileges of peers of the United Kingdom. Other Irish peers who are not representative peers are in a very different position. They are not lords of parliament, although they primâ facie enjoy all such privileges as appertain to the peerage generally. And this being so, an Irish peer, whether representative or not, cannot be arrested for debt, in which respect he is on an equality with all peers of the realm. An Irish peer may also be elected as a member of the House of Commons for a constituency in England or Scotland (by 39 and 40 Geo. III. c. 67); but by such election he becomes for the time being a commoner, and so pro tem. loses the privileges of a peer. It will be remembered that Lord Palmerston, who represented Tiverton in the House of Commons for so many years, was a peer of Ireland; and the present member of parliament for East Suffolk, Lord Rendlesham, is also an Irish peer. His lordship, therefore, though the peer of all other Irish peers—not representative peers—is not a peer of, say, Lord Carlingford and other noblemen who sit in the House of Lords as of right.[1] Indeed, Lord Rendlesham, so long as he sits in the Lower House of parliament, is of necessity simply a commoner.
As to peers of Scotland only, they also are entitled to elect representatives out of their general body to sit in the House of Lords. The number so elected is sixteen; but, unlike the Irish representative peers, they sit only during the existence of the parliament for which they are elected. On the other hand, a Scotch peer of any grade, unlike an Irish peer, is a peer of Great Britain, and he cannot, therefore, sit in the House of Commons for any constituency whatever. The only difference between a Scotch peer and a peer of the United Kingdom is, that the former cannot as of right—that is, unless elected a representative peer—sit in the House of Lords; in all other respects he is the peer of a peer of the realm.
When once, then, a nobleman—by which is here meant a person ennobled by the Crown—takes his seat in the Upper House of parliament, he becomes a peer of the realm—that is, a lord of parliament; and although the well-known gradations of dukes, marquises, earls, viscounts, and barons exist, yet, so far as parliamentary rights are concerned, all ennobled persons who sit in the House of Lords are the peers or equals of each other. We purposely make use of the word ‘nobleman,’ because the two archbishops and all the bishops who sit there and vote too are not peers; for although they are spiritual lords of parliament, are styled ‘My Lord,’ and—with the exception of the Bishop of Sodor and Man, who has a ‘place but no voice’—may vote, they are not ‘noble,’ and their dignity is not hereditary. For this reason, a peer merely for life, in the absence of an Act of Parliament conferring privileges of peerage upon him, would not be a ‘noble’ person. Accordingly, when Baron Parke in 1856 was raised to the peerage for life as Lord Wensleydale, it was decided by the Lords’ Committee of Privileges that his lordship could not sit and vote as a peer. Selden, in his Titles of Honour, seems to refer to life peerages as quite ordinary distinctions; but whether they were so or not, it is clear that they were practically unknown, or had fallen into disuse between his time (1584-1654) and that of Lord Wensleydale. However, now, by section six of 39 and 40 Vict. c. 59 (the Appellate Jurisdiction Act, 1876), the Crown may appoint by letters-patent two qualified persons to be Lords of Appeal in Ordinary, with a salary of six thousand pounds per annum each. And these persons shall be entitled for life to rank as Barons, ‘by such style as Her Majesty shall be pleased to appoint, and shall during the time that they continue in their office as Lords of Appeal in Ordinary, and no longer, be entitled to a writ of summons to attend, and to sit and vote in the House of Lords.’ But ‘their dignity as lords of parliament shall not descend to their heirs.’ Since this enactment, three Lords of Appeal in Ordinary have been created—namely, Lord Blackburn (formerly Mr Justice Blackburn); Lord Gordon, who is dead; and Lord Watson. The object of appointing these noble and learned persons to life peerages is, ‘for the purpose of aiding the House of Lords in the hearing and determination of appeals.’
So much for the term ‘peer’ as having reference to an ennobled person.[2] But it is applicable, in fact, to all persons who are not ennobled, for they are the ‘peers’ of each other. We all know the old maxim that ‘every man has a right to be tried by his peers;’ in other words, his equals. This is, in fact, one of the most important features in Magna Charta: ‘No freeman shall be taken or imprisoned ... otherwise than by the lawful judgment of his peers, or by the law of the land.’ This of course applies as much to noblemen as to commoners, although its application to the former is, as we shall directly see, somewhat modified. If John Smith and Thomas Jones were to enter into a conspiracy to dethrone the sovereign, they would be guilty of treason, and would be tried by their peers—namely, a common jury; but if the Duke of A. and Viscount B., peers of parliament, conspired with a like intent, they also would be entitled to be tried by their peers—who, however, would be members of the House of Lords. Also, if Brown, Jones, or Robinson, either singly or in combination, committed burglary, arson, forgery, robbery, embezzlement, they, or he, would be guilty of felony, and would be tried by their peers. So also would the Duke of A. or the Earl of C., &c., as before. But if a peer of parliament were to obtain money under false pretences, or commit perjury, he would not be entitled to be tried in these cases by his peers, but would be tried by those who are his peers only as members of the community. For although the last-named offences are undoubtedly serious, the law regards them as less so than the others, and styles them misdemeanours.[3] In all trials for misdemeanours, then, a peer of parliament, when arraigned upon a charge coming within this category, is only regarded as a peer of persons in the lower grades of society. And although members of the House of Lords enjoy immunity from arrest in civil cases—as do also members of the House and barristers too when going to and from a court—yet they are just as liable to arrest in any criminal case as all other subjects are, so that here also they are only the peers of their fellow-men whether noble or simple. As regards the proceedings in courts of law, a peer is liable to be subpœnaed, and must, like a commoner, obey the subpœna. And although, when acting on a jury[4] for the purpose of deciding the guilt or innocence of a peer arraigned for treason or felony, he is entitled—unlike a common juror—to give his judgment on his honour, yet if he be called as a witness in a court of law, he must, like any other man, be sworn on oath.
A peer when indicted, is bound, like any commoner, to plead to the indictment; and if convicted, is liable to be punished precisely like any other man (4 and 5 Vict. c. 22).
From what has been said, it will be seen that the civil rights of peers are pretty much the same as those of all other subjects. What privileges the most exalted peer possesses are rather of an ornamental than a substantial character. And as every man, however humble may be his origin, has a chance of becoming a peer, the complaints sometimes heard about peers being a privileged class, &c., have, apart from political considerations, but little foundation. Their so-called privileges may thus be enumerated: They are exempt from arrest for debt; they have a hereditary place in parliament, and, unlike members of the House of Commons, they may vote by proxy, and may record their ‘protest’ against proceedings in their own House in its journals; as permanent counsellors of the sovereign, they have an individual right of access to the sovereign’s presence and audience while there; they may wear coronets appropriate to their peerage rank, and scarlet cloth robes marked in accordance with their degree; they are entitled to be called ‘Your Grace’ or ‘Most Honourable,’ ‘Your Lordship’ or ‘Right Honourable,’ according to circumstances. And when addressed by the sovereign, they are styled his or her ‘cousin,’ with a variety of ceremonious and endearing epithets prefixed to that term, more or less so according to their rank. They may also sit in courts of law with their hats on, if they like, during the proceedings.[5] And this will explain why a peer is always accommodated with a seat on the bench in court, when plain Mr Smith is either incapable of getting in at all, or if in, is relegated to the gallery or other portion of the court set apart for the public.
A man may be a peer by prescriptive right, by creation, or by hereditary right; and peers are created in two ways, either by the ancient mode of writ of summons, or by letters-patent. At the present day, persons are almost invariably ennobled by the latter process. For if a person summoned by the sovereign to attend parliament as a peer, should die before he can take his seat, the peerage so created would fail, and would, therefore, not descend to his heir. On the other hand, a peerage created by letters-patent descends to the heir of the person so ennobled under any circumstances. The writ of summons, however, is not obsolete, and is used when, for some reason, it is deemed desirable to call the eldest son of a peer to the Upper House of parliament during his father’s lifetime. In this case, whether the person summoned does or does not take his seat, is obviously immaterial, so far as the descent of the father’s peerage is concerned, because, if the eldest son has a son, the grandfather’s title will descend to him, if he outlives his grandfather. When the eldest son of a peer is summoned to the Upper House in his father’s lifetime, he sits by the baronial title of the peerage. Thus, the Earl of Albemarle, who is also Viscount Bury and Baron Ashford, being, in 1876, advanced in years, his eldest son, Viscount Bury, was summoned to the House of Lords, not, however, as such, but as Baron or Lord Ashford.
In the creation of a peerage, the limitations—that is to say, the arrangements as to how it shall descend—may be analogous to the limitations of real estate; for a title is just as much a hereditament—which simply means something that can be inherited—as an acre of land, except that the latter is termed in law a corporeal or tangible hereditament, and the former an incorporeal hereditament. Accordingly, a title may be in fee, in which case it will descend to the heirs-general of the first holder; in tail, male or female, when it descends to the eldest son, &c., or his brothers and their eldest sons, &c.; or it may be, as we have seen, for life, when, at the death of the holder, it expires.
Thus, not only may a man be created a peer, but a woman may also be ennobled; and a woman may also occupy the status of a peeress by marriage, whereas a man never can by marriage occupy even the status of a peer. There are several instances of ladies holding peerages, as may be seen by referring to Sir Bernard Burke’s magnificent and interesting work; but we have no dukedom, marquisate, or viscounty, in what may be called the female peerage. Peeresses by descent or by creation are the only persons who are legally entitled to be called ‘Ladies in their own right,’ and their titles descend to their sons and their daughters according to circumstances. Real peeresses, and also those by marriage, have most of the privileges of peers; but of course they cannot sit in parliament and so forth; and if a peeress by marriage, being a widow, remarries with a commoner, all her privileges cease, although she may retain her title conferred by the first marriage. A peeress in her own right, however, who marries a commoner is still a peeress, and does not forfeit any of her privileges as such; but, as before indicated, she cannot ennoble her husband, although she may her son or her daughter—of course, after her own decease—by transmitting her title to him or her.
Daughters of dukes, marquises, and earls, are usually designated by the title of ‘Lady,’ their Christian names being used before their patronymic; and we often hear that Lady Matilda So-and-so is a lady in her own right. Such, however, is not a correct statement; for the title in such case is held by no absolute right, but only by a custom, itself founded on what is called ‘the courtesy of the realm’—curialitas regni.
And this brings us to an examination of the opening statement in our paper—namely, that many people appear to think that every man styled Lord So-and-so is necessarily a peer.
Now we have shown what a peer is; and it may be safely asserted, that every person in this kingdom, be he whom he may, if not entitled to the description we have given of a peer, his status, and his privileges, is, to all intents and purposes, a commoner, just as much as though he were a costermonger. But we have marquises, earls, viscounts, and lords, in the House of Commons, and how is it that they sit there bearing their titles? The answer is, that although they bear titles, yet such are not titles of nobility, but are simply designations allowed them by reason of their father’s rank; the permission being accorded, as in the case of daughters of dukes, marquises, and earls, by the ‘courtesy of the realm.’
Many dukes[6] have also a marquisate, an earldom, a viscounty, and a barony attached to their dukedom; many marquises are earls, viscounts, and barons; in the same way, an earl is generally a viscount and a baron; while a viscount may have a barony attached to his peerage. By the courtesy of England, the eldest son of all the peers above mentioned, except the last, is allowed to assume his father’s second title; but in reality such eldest son is in every respect nothing but a commoner, so far as his legal rights are concerned. Thus, the eldest son of the Duke of Bedford is styled Marquis of Tavistock, his father’s second title; but as M.P. for Bedfordshire, he was not elected to sit by that title, but as the Honourable So-and-so Russell, or rather, perhaps, as So-and-So Russell, Esquire, commonly called Marquis of Tavistock. And a similar rule prevails as to all other similar cases, including instances where any son, not the eldest of a duke or marquis, sits in the Lower House, which persons are all styled ‘Lord,’ with their Christian and family surnames affixed. Thus, ‘Lord’ Randolph Churchill, who is in law, Randolph Churchill, Esquire, commonly called Lord Randolph Churchill, sits as member of parliament for Woodstock. But neither he nor any other person bearing a mere courtesy title is really a ‘nobleman,’ still less is he a peer of parliament, but in legal contemplation a peer only of his own peers—that is to say, of every commoner of the realm, and has no inherent rights or privileges which they do not possess.
The eldest son of the sovereign is born a peer as Duke of Cornwall, and as such, at twenty-one, is entitled to sit and vote in the House of Lords. The other sons of the sovereign are not born peers, although they are Princes, but they may be created peers; and to enable his or her sons to sit in parliament, the sovereign usually confers peerages on his or her younger sons. Hence, Prince Alfred became Duke of Edinburgh; Prince Arthur, Duke of Connaught; and Prince Leopold, Duke of Albany. As Princes, they could not sit in parliament; but having been created peers, they can sit and vote and exercise all the other rights of peers.
It does not follow that a peer of a certain grade in the Scottish or Irish peerage, although entitled a peer of parliament, necessarily sits and votes in the Upper House by the title which he ordinarily bears. Thus, the Duke of Argyll as a lord of parliament is not really a duke, but only a baron; and in the division lists of the House of Lords he is always mentioned among the barons as Lord Sundridge. Again, the Duke of Leinster, who, as regards the Irish peerage, is premier duke, marquis, and earl, is nevertheless only Viscount Leinster so far as the House of Lords is concerned, and by such title he sits and votes. As a matter of politeness, however, both of the two distinguished persons just mentioned are severally referred to by their more exalted titles when spoken of in the House, or when their speeches are reported. Again, locality does not necessarily indicate the status of a nobleman. Thus, Lord Rendlesham, an Irish peer, takes his title from a Suffolk village; and Lord Emly—formerly the Right Honourable W. Monsell—who takes his title from a place in Ireland, is a peer of the United Kingdom. So also of the Earls of Erroll and Enniskillen, who have respectively Scotch and Irish titles, but are yet English peers—though the English peerage is technically held in each case under a different title from that by which these peers are generally known.
Lastly, although the grades of the peerage are dukes, marquises, earls, viscounts, and barons, yet of these, earl is the oldest title so far as regards the British peerage. The first earldom extant, though not the first created, is that of Arundel, created by King Stephen in 1139. Next come barons, of whom, however, we read long before the Conquest. The first barony in the peerage is that of Kingsale (1181), already alluded to. Dukes follow the barons, the first of them having been the Duke of Cornwall, son of Edward III., created in 1377; then marquises, the first of whom was De Vere, Marquis of Dublin, in the reign of Richard II. (1377-1399). Not until the reign of Henry VI. (1422-1461) do we hear of viscounts, and the title of the first viscounty—namely, that of Viscount Beaumont, created in 1440—no longer exists.
We have thus endeavoured to answer the question, ‘What is a Peer?’ and we trust that the foregoing statements have assisted any reader who may have previously entertained confused notions concerning the subject dealt with.