Commentaries on the Laws of England, Book the First

by Sir William Blackstone

[l] cap. 14.

[m] Gilb. hist. exch. c. 3. Seld. tit. of hon. 2. 5. 21.

[n] 1 Inst. 9. Seld. Jan. Angl. 2. §. 66.

Having made this short enquiry into the original of our several degrees of nobility, I shall next consider the manner in which they may be created. The right of peerage seems to have been originally territorial; that is, annexed to lands, honors, castles, manors, and the like, the proprietors and possessors of which were (in right of those estates) allowed to be peers of the realm, and were summoned to parliament to do suit and service to their sovereign: and, when the land was alienated, the dignity passed with it as appendant. Thus the bishops still sit in the house of lords in right of succession to certain antient baronies annexed, or supposed to be annexed, to their episcopal lands[o]: and thus, in 11 Hen. VI, the possession of the castle of Arundel was adjudged to confer an earldom on it's possessor[p]. But afterwards, when alienations grew to be frequent, the dignity of peerage was confined to the lineage of the party ennobled, and instead of territorial became personal. Actual proof of a tenure by barony became no longer necessary to constitute a lord of parliament; but the record of the writ of summons to them or their ancestors was admitted as a sufficient evidence of the tenure.

[o] Glanv. l. 7. c. 1.

[p] Seld. tit. of hon. b. 2. c. 9. §. 5.

Peers are now created either by writ, or by patent: for those who claim by prescription must suppose either a writ or patent made to their ancestors; though by length of time it is lost. The creation by writ, or the king's letter, is a summons to attend the house of peers, by the stile and title of that barony, which the king is pleased to confer: that by patent is a royal grant to a subject of any dignity and degree of peerage. The creation by writ is the more antient way; but a man is not ennobled thereby, unless he actually takes his seat in the house of lords: and therefore the most usual, because the surest, way is to grant the dignity by patent, which enures to a man and his heirs according to the limitations thereof, though he never himself makes use of it[q]. Yet it is frequent to call up the eldest son of a peer to the house of lords by writ of summons, in the name of his father's barony: because in that case there is no danger of his children's losing the nobility in case he never takes his seat; for they will succeed to their grand-father. Creation by writ has also one advantage over that by patent: for a person created by writ holds the dignity to him and his heirs, without any words to that purport in the writ; but in letters patent there must be words to direct the inheritance, else the dignity enures only to the grantee for life[r]. For a man or woman may be created noble for their own lives, and the dignity not descend to their heirs at all, or descend only to some particular heirs: as where a peerage is limited to a man, and the heirs male of his body by Elizabeth his present lady, and not to such heirs by any former or future wife.

[q] Co. Litt. 16.

[r] Co. Litt. 9. 16.

Let us next take a view of a few of the principal incidents attending the nobility, exclusive of their capacity as members of parliament, and as hereditary counsellors of the crown; both of which we have before considered. And first we must observe, that in criminal cases, a nobleman shall be tried by his peers. The great are always obnoxious to popular envy: were they to be judged by the people, they might be in danger from the prejudice of their judges; and would moreover be deprived of the privilege of the meanest subjects, that of being tried by their equals, which is secured to all the realm by magna carta, c. 29. It is said, that this does not extend to bishops; who, though they are lords of parliament, and sit there by virtue of their baronies which they hold jure ecclesiae, yet are not ennobled in blood, and consequently not peers with the nobility[]. As to peeresses, no provision was made for their trial when accused of treason or felony, till after Eleanor dutchess of Gloucester, wife to the lord protector, had been accused of treason and found guilty of witchcraft, in an ecclesiastical synod, through the intrigues of cardinal Beaufort. This very extraordinary trial gave occasion to a special statute, 20 Hen. VI. c. 9. which enacts that peeresses either in their own right, or by marriage, shall be tried before the same judicature as peers of the realm. If a woman, noble in her own right, marries a commoner, she still remains noble, and shall be tried by her peers: but if she be only noble by marriage, then by a second marriage, with a commoner, she loses her dignity; for as by marriage it is gained, by marriage it is also lost. Yet if a duchess dowager marries a baron, she continues a duchess still; for all the nobility are pares, and therefore it is no degradation[t]. A peer, or peeress (either in her own right or by marriage) cannot be arrested in civil cases[]: and they have also many peculiar privileges annexed to their peerage in the course of judicial proceedings. A peer, sitting in judgment, gives not his verdict upon oath, like an ordinary juryman, but upon his honour[w]: he answers also to bills in chancery upon his honour, and not upon his oath[x]; but, when he is examined as a witness either in civil or criminal cases, he must be sworn[y]: for the respect, which the law shews to the honour of a peer, does not extend so far as to overturn a settled maxim, that in judicio non creditur nisi juratis[z]. The honour of peers is however so highly tendered by the law, that it is much more penal to spread false reports of them, and certain other great officers of the realm, than of other men: scandal against them being called by the peculiar name of scandalum magnatum; and subjected to peculiar punishment by divers antient statutes[a].