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.