CHAPTER III. ORGANIZATION OF THE UPPER HOUSE. Classification of Peers.-Hereditary Right.—Questions of Privilege.-Numerous Creations of Peers. Non-exclusiveness of the Upper House.-Bill of 1719.Walpole Touching the Upper House.-Creation of Peers under the House of Hanover.-Bishops not Peers.-Life-peerages.-Irish Peers.-Scottish.-Statistics of the Upper House.-Privileges.-Proxy.—Protests.-Speaker of the Upper House.-Seats.-Upper House but little Visited. THE upper house consists of peers who hold their seats1st. By virtue of hereditary right; 2nd. By summons from the crown; 4th. By being elected for life (Irish peers); 5th. By being delegated for the duration of a parliament (the Scottish peers). The succession to the peerage has been indicated previously. Formerly every peerage was at the same time a feudal barony (Barone par tenure). To be qualified to appear, however, in the national assembly of the Plantagenets a special summons was necessary (Barone par writ). According to Camden, after the battle of Evesham every baron was expressly forbidden, without such special writ to appear in parliament. Any one affording proof that his ancestor was called by "writ of summons has the right to sit as hereditary peer. The claim may likewise be based on prescription. Whoever is called by writ of summons must actually take his seat in order to acquire the full rights of a peer; the eldest sons of dukes, marquesses, and earls are sometimes called by writ to the upper house under a special title. The creation by patent is at the present day the ordinary form employed, the peer being thereby summoned "ad consulendum et defendendum regem;" and the peerage rights are acquired whether the individual summoned take his seat in the upper house or not. Peers are now only representatives of ideal seigniories, receiving merely the title of some ancient or fictitious barony. Should a question arise as to the legal capacity of a peer to be admitted to the sittings of the upper house, the queen is prayed for a writ through a secretary of state; the attorney-general supports the petition, and, if willing to allow it, it is ordinarily complied with. If the matter is doubtful, he recommends it to be referred to the upper house; which resolves itself into a committee of privilege. Upon a report to the house the latter declares its opinion by way of address; hereditary peers may, by a "standing order" of the upper house take their seat without further preliminary; peers newly created or summoned have to be "introduced."* The crown is unrestricted in its privilege of creating peers; "the sovereign may legitimately summon 100 peers at once, and raise a body-guard in the peerage." (Lyndhurst).† The present peerage, as we have seen, is of very recent origin; Henry VII. began his reign with twenty-five temporal and five spiritual peers;‡ Henry VIII. raised the number to fifty-one temporal peers, and Elizabeth named seven new peers; under the Stuarts the upper house was recruited from the leading country gentlemen and lawyers. The most powerful noblemen of the century preceding the civil war, the Dukes of Somerset, Northumberland, Buckingham, and the Earls of Leicester and Strafford, Lords Seymour and Burleigh, had elevated themselves by means of courtly artifices or prominence in parliament. James named 98, Charles I. 130, Charles II. 137, and James II. 11 new peers; after the revolution William III. summoned 36, and his successor, Anne, 47. When Lord Oxford named 12 peers at once, he was reproached with having thereby immoderately increased the influence of the crown, and on the ground of this measure accusations were raised against him. In consequence of this abuse, as it was then accounted, Lord Sunderland persuaded George I. to renounce his important prerogative of making peers, and a bill supported by the ministry was carried through the upper house, limiting the house of lords, after the creation of a very few more, to its actual members. This measure was, however, rejected by the commons. "It is," says a prominent conservative historian,§ "exactly the constant affluence which keeps the stream of the peerage clear, and prevents it from becoming a stagnant and fetid pool. What *May, Parliament, 172. Pauli, v. 542. has kept it firm and unshaken while so many neighbouring aristocracies have tottered to decay, or fallen before political convulsions? It is because their families are constantly coming from the people, and returning to the people; they have been an institution not a caste, not a separate and jealous oligarchy like that of Venice, asserting for themselves and for their descendants an inborn superiority over their brother men. With us how many sons of ploughmen or weavers, ennobled for their services, sit side by side with the loftiest of the Somersets and the Howards!" Robert Walpole violently attacked this bill, which made of the upper house "a fixed impenetrable phalanx." "Until now," he says, "the usual path to the temple of honour had been through the temple of virtue, but by this bill, it is only to be through the sepulchre of a dead ancestor." The house of Hanover, at a later period, made extensive use of the cherished prerogative. George I. created 60 and George II. 90 new peers; from 1761 down to 1821, 388 persons were elevated to the peerage; from 1700, however, down to 1821, 667;* George IV. created 59, William IV. 55, and Queen Victoria, up to 1857, 60 new peers.t A body like that of the present upper house cannot, accordingly, be termed an assembly of magnates, but rather one of notables distinguished by birth, fortune, learning, or official position. At the Reformation the twenty-seven mitred abbots were excluded from the upper house. From Henry VIII. till 10 & 11 Vict. c. 108, the two archbishops and twenty-four English bishops have sat in the upper house. Since the last-named statute two archbishops and twenty-four English bishops have a seat; the Bishop of Sodor and Man is excluded from voting, but not from sitting. The youngest bishop has not a seat in the upper house until he has advanced by seniority. The Bishops of London, Durham, and Winchester, however, always sit in the upper house. Since the Union, four Irish bishops (one archbishop May, Const. Hist. i. 235. + Ibid. 237. The number of the prelates summoned was formerly always undetermined, and very often far exceeded the number of the temporal lords and barons. In the 49th Henry III. 120 prelates and 23 temporal peers were summoned; in 22nd Edward I. 90 prelates and 50 tem poral peers; the 23rd Edward I. 77 prelates and 63 temporal peers, and the same year 90 spiritual and only 50 temporal peers; the 24th Edward I. 91 prelates and 43 temporal peers; the 27th Edward I. 58 prelates and 90 temporal peers; the 28th Edward III. 102 prelates and 89 temporal peers. E E and three bishops) sit in the upper house, replacing each other by rotation of sessions.* All the bishops are "lords of parliament," but not "peers ;" and hence do not enjoy the privileges of nobility. If they abstain in corpore from voting upon any question, the vote of the house is effectual notwithstanding; so also, when they refuse to vote, or even when they put a protest on the journals; a vote given by them conditionally has no validity. They may vote on occasion of a "bill of attainder," provided it do not involve a capital sentence. Coke assumes that bishops sit in the upper house by virtue of holding certain ancient baronies under the crown; this has, however, been greatly controverted. The opinion advanced by Dr. Warburton, Bishop of Gloucester,§ is now generally adopted, viz., that the right to sit in the upper house is a privilege which is connected with the episcopal dignity by prescription. Bishops take their seat in parliament after their election has been confirmed. Since the Reform Bill an attempt has been made, though unsuccessfully, to exclude bishops from the "Lords."|| Bishops newly nominated must be "introduced" to the "Lords" by two of their own body.¶ In 1856 the attempt was made to summon peers merely "for life;" such peerages had not, however, been created for 400 years. Coke, it is true, expresses himself in favour of the right of the sovereign to create such peers. The measure excited, however, such violent opposition, the upper house deeming its independence thereby imperilled, that Lord Wensleydale (Baron Parke) was create an hereditary peer, and the government abandoned its scheme of "life" peerages. In 1860 there were 193 Irish peers, among whom, the King of Hanover, as "Earl of Armagh ;" seventy-one of them are "peers of the United Kingdom," twenty-eight sit in the upper house as "elected for life," in conformity with the Act of Union (39 & 40 Geo. III. c. 67, 1801.)** Those Irish peers are eligible to the upper house, who are not summoned as hereditary peers of the United Kingdom, and who have not a seat in the commons. The number of Irish peers not peers of the United Kingdom *Bowyer, 75. + Burns, i. 213. 4 Inst. i. 12. § Alliance between Church and State, May, Const. Hist. i. 251. May, Parliament, 172. ** May, Const. Hist. i. 241. 134. may always be brought up to 100; for the time being there are also twenty-two Irish peerages which are extinct, and the sovereign according to the provisions of the Act of Union can only create one new peerage for every three peerages that have lapsed. When an Irish peer has a seat in the lower house, he loses his rights as peer. Since the Act of Union with Scotland (1707) sixteen Scotch peers belong to the upper house, being elected by their peers for the duration of parliament. The crown cannot create any new Scotch peers; they form, consequently, a close electoral body. A fresh election of representative peers of Scotland takes place on every dissolution. The upper house consisted : : In 1859. 2 1 In 1713. Irish 24 24 Every bill affecting the privileges of the upper house takes its rise and beginning in the house of peers, and cannot be amended by the commons; who, however, may reject it altogether. Peers are free from arrest even during the parliamentary recess. Conformably with the Charta de Forestâ (9 Hen. III. c. 2) a peer has a very ancient privilege, mentioned only in illustration of a former era, of killing one or two of the king's deer while passing, on his way to parliament, through the king's forests. "In view of the forester," says Blackstone, "if he be present, or in blowing a horn if he be absent, that the peer may not seem to take the king's venison by stealth." * A. Fonblanque, How we are Governed, 27. |