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.