Primogeniture, a custom somewhat uncertain in early Anglo-Norman days, had rapidly de veloped into a definite rule of law. As feudal dignities were, in their origin, inseparable from the tenure of land, it is not sur prising that they, too, followed a similar course of descent, although as the idea of a dignity being exclusively personal gradually emerged, some necessary deviations from the rules of law relating to the descent of land inevitably resulted. In the
year of his reign Richard II. created by letters patent John Beauchamp "Lord de Beauchamp and baron of Kyddermynster, to hold to him and the heirs of his body." These letters patent were not founded on any right by tenure of land possessed by Beauchamp, for the king makes him "for his good services and in respect of the place which he has holden at the coronation (i.e., steward of the household) and might in future hold in the king's councils and parliaments, and for his noble descent, and his abilities and discretion, one of the peers and barons of the king dom of England; willing that the said John and the heirs-male of his body issuing, should have the state of baron and should be called by the name of "Lord de Beauchamp and baron of Kydder mynster." The grant rested wholly on the grace and favour of the Crown, and was a personal reward for services rendered. Here, then, is an hereditary barony entirely a personal dignity and quite unconnected with land. From Richard's reign to the present day, baronies (and, indeed, all other peerage honours) have continued to be conferred by patent. The custom of summons by writ was not in any way interfered with, the patent operating merely to declare the dignity and to define its devolution. Summons alone still continued side by side for many generations with summons founded on patent ; but after the reign of Henry VIII. the former method fell into disuse, and during the last 25o years there have been no new creations by writ of summons alone. So, from the reign of Richard II., barons were of two classes, the older, and more ancient in lineage summoned by writ alone, the honours descending to heirs-general, and the newer created by letters patent, the terms of which governed the issue of the summons and prescribed the devolution of the peerage in a line usually of the direct male descendants of the person first ennobled.
It was long believed that, originally, there existed peerages by tenure alone and that such could de volve by right of tenure independent of descent. The Berkeley case of 1858-61 (better reported 8 H.C.L. 25) is essential for the student who wishes to examine the question carefully; and may be regarded as finally putting an end to any idea of bare tenure as an existing means of establishing a peerage right. (See also Cruise on Dignities, 2nd ed., pp. 6o et seq.) The main attribute of a peerage is that hereditary and inalien able quality which ennobles the blood of the holder and his heirs, or, as a great judge put it in 1625, in the earldom of Oxford case, "he cannot alien or give away this inheritance because it is a personal dignity annexed to the posterity and fixed in the blood" (Dodridge, J., at p. 123, Sir W. Jones's Reports).
Dukes.—Until the reign of Edward III. the peerage consisted only of high ecclesiastics, earls and barons. The earls were barons with their special name of dignity added, and their names always appear on the rolls before those of the barons. In 1337 King Edward III. created his son, the Black Prince, duke of Cornwall, giving him precedence over the rest of the peerage. Subsequently several members of the royal family were created dukes, but no subject received such an honour until so years later, when Richard II. created his favourite, Robert de Vere, earl of Oxford, duke of Ireland (for life). The original intention may have been to confine the dignity to the blood royal, since, with the exception of de Vere, it was some years before a dukedom was again con ferred on a subject.
In 1385 Richard II. had created Robert de Vere marquess of Dublin, thus importing an entirely new and unknown title into the peerage. The grant was, however, only for life, and was, in fact, resumed by the Crown in 1387, when its recipient was created duke of Ireland.
Under the name of viscount (q.v.) Henry VI. added yet another order, and the last in point of time, to the peerage, creating in 1440, John, Baron Beaumont, Viscount Beau mont and giving him precedence next above the barons. The name of this dignity was borrowed from the Continent, having been in use for some time as a title of honour in the king's French possessions. None of the new titles above mentioned ever carried with them any official position; they were conferred as additional honours on men who were already members of the peerage.
The application of the hereditary principle to temporal peerages early differentiated their holders from the spiritual peers. Both spiritual and temporal peers were equally lords of parliament, but hereditary pretensions on the one side and ecclesiastical exclusiveness on the other soon drew a sharp line of division between the two orders. Gradually the temporal peers, strong in their doctrine of "ennobled" blood, came to con sider that theirs was an order above and beyond all other lords of parliament, and before long, arrogated to themselves the ex clusive right to be called peers, and as such the only persons entitled to the privileges of peerage.
The pretensions of the lay peers were not admitted without a struggle on the part of the prelates, who made the mistake of aiming at the establishment of a privileged position for their own order while endeavouring to retain every right possessed by their lay brethren. They fell between two stools, lost their position as peers and were beaten back in their fight for ecclesi astical privilege. For themselves Churchmen never claimed the privilege of trial by peers, and when arraigned, alleged to be altogether beyond secular authority. The Standing Orders of the House of Lords for 1625 contain the statement that "Bishops are only Lords of Parliament and not Peers" (Lords Journals, iii.
349). In 5640 the "Lords Spiritual" were altogether excluded from the House of Lords by act of parliament, and were not brought back until the second year of the Restoration.