obliged to divide them, and summon only the greater barons in person; leaving the small ones to be summoned by the sheriff, and (as it is said) to sit by representation in another house; which gave rise to the separation of the two houses of parliament m. By degrees the title came to be confined to the greater barons, or lords of parliament only; and there were no other barons among the peerage but such as were summoned by writ, in respect of the tenure of their lands or baronies, till Richard the second first made it a mere title of honor, by conferring it on divers persons by his letters patent".

HAVING made this short inquiry 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 [400] 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 ancient baronies annexed, or supposed to be annexed, to their episcopal lands°: and thus, in 11 Hen. VI, the possession of the castle of Arundel was adjudged to confer an earldom on its possessor?. 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 him or his ancestors was admitted as a sufficient evidence of the tenure.

PEERS are now created either by writ, or by patent for those who claim by prescription must suppose either a writ or

m Gilb. hist. of exch. c. 3. Seld. tit. of hon. 2. 5. 21. n 1 Inst. 9. Seld. Jan. Angl. 2. sec. 66.

o Glan. 1. 7. c. 1.

p Seld. tit, of hon. b. 2. c. 9. sec. 5.

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 style 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 ancient way; but a man is not ennobled thereby, unless he actually take his seat in the house of lords and some are of opinion that there must be at least two writs of summons, and a sitting in two distinct parliaments, to evidence an hereditary barony: 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. 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 grandfather (5). Creation by writ has also one advantage over that by patent: for a person [401] created by writ holds the dignity to him and his heirs, without any words to that purport in the writ (6); but in

q Whitelocke of parl. ch. 114.

r Co. Litt. 16.

(5) And where the father's barony is limited by patent to him and the heirs male of his body, and his eldest son is called up to the house of lords by writ with the title of this barony, the writ in this case will not create a fee or a general estate tail, so as to make a female capable of inheriting the title, but upon the death of the father the two titles unite, or become one and the same. Case of the claim to the barony of Sidney of Penshurst disallowed. June 1782.

Dom. Proc. 17

(6) Though this is the authority of lord Coke, it is now understood to be erroneous; a creation by writ does not confer a fee-simple in the title, but only an estate tail general; for every claimant of the title must he descended from the person first ennobled. 1 Woodd. 37.

letters patent there must be words to direct the inheritance, else the dignity enures only to the grantee for life. 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.

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 (7). 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 (8), and consequently not peers with the nobility. As to peeresses there

(7) A nobleman is tried by his peers only in treason and felony, and misprision of the same; but in all misdemeanors, as libels, riots, perjury, conspiracies, &c. he is tried like a commoner by a jury. 3 Inst. 30. 2 Hawk. 424.

(8) It has always appeared to me that the reason given in the books, why bishops should not be tried in parliament like the temporal lords, viz. because they are not ennobled by blood, or, as Selden expresses it, because their honor is not inheritable (Jud. in Parl. c. 1.), is unsatisfactory and even trifling.

If this reason has any operation, why should it not be extended, and deprive them of all the rights of peerage? A peer may be

was no precedent for their trial when accused of treason or felony, till after Eleanor dutchess of Gloucester, wife to the lord protector, was 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 declares the law to be, that peeresses, either in their own right or by marriage, shall be tried before the same judicature as other peers of the realm. If a woman, noble in her own right, márries a commoner, she still remains noble (9), 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 (10). Yet if a dutchess dowager marries a baron, she

s Moor. 769. 2 Inst. 50, 6 Rep. 52. Staundf. P. C. 152.

t Dyer. 79. Co. Litt. 16.

created by patent for his own life only; and it cannot be supposed that such a nobleman would not be entitled to a trial by his peers in parliament. If there were any trials of bishops by a jury in remote times, the bishops could not have demanded a trial in parliament without admitting themselves subject to a temporal jurisdiction, from which the clergy in ancient times claimed a total exemption. Hence it may be conjectured the bishops have lost their right to be tried in parliament, though only two instances can be found of their being tried by a jury, viz. those of arch-bishop Cranmer and bishop Fisher. 2 Hawk.

596.

(9) But she communicates no rank or title to her husband. Harg. Co. Litt. 326. b. There have been claims, and these are supported by authorities, by a husband after issue to assume the title of his wife's dignity, and after her death to retain the same as tenant by the courtesy; but from Mr. Hargrave's statement of this subject, in Co. Litt. 29. b. n. 1. there is no probability that such a claim would now be allowed.

(10) Yet she is commonly called and addressed by the style and title which she bore before her second marriage, but this is only by courtesy; as the daughters of dukes, marquisses, and earls are usually

continues a dutchess still; for all the nobility are pares, and therefore it is no degradation". 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 honorw: he answers also to bills in chancery upon his honor, and not upon his oath; but when he is examined as a witness either in civil or criminal cases, he must be sworny (11): for the respect, which the law shews to the honor of a peer, does not extend so far as to overturn a settled maxim, that in judicio non creditur nisi juratis2. The honor 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 punishments by divers ancient statutes a.

A PEER cannot lose his nobility but by death or attainder; though there was an instance in the reign of Edward

u 2 Inst. 50.

v Finch, L. 355. 1 Vent. 298. w 2 Inst. 49.

x 1 P. Wms. 146.

y Salk, 512.

z Cro. Car. 64.

a 3 Edw. I. c. 34. 2 Ric. II. st. 1. c. 5. 12 Ric. II. c. 11.

addressed by the title of lady, though in law they are commoners. In a writ of partition brought by Ralph Haward and lady Ann Powes his wife, the court held that it was a misnomer, and that it ought to have been by Ralph Haward and Ann his wife, late wife of lord Powes deceased. Dyer, 79.

(11) If he is examined as a witness in the high court of parliament, he must be sworn. The bishop of Oxford was sworn in the impeachment of lord Macclesfield, and lord Mansfield (then lord Stormont) in that of Mr. Hastings.