PROPOSED EXTINCTION OF BARONIES.
AT the instance of Lord Redesdale, the Peers have adopted an address to the Crown praying for a new restriction on the forma- tion of their own body. The address was carried with a very few words from Lord Redesdale in explanation of it, and a semi- jocose remark from Lord Campbell patting the mover on the back ; but there is great to reason doubt whether on reconsideration after the reflections of the recess the House may not repent of its rashness' rand if any other Premier were in office we might as- sume that the Executive Would supply the caution which the peers have wanted. By every consideration of birth and of sym- pathy with his order, Lord Derby ought to be the first man to enter his protest against the proceeding of Friday evening last week ; but, rashness itself, he- will gainsay his . own resolve and his own judgment. It would searcely be too much to assert that the rashness of his second thoughts would go far enough to intro- dime a Reform Bill, or even admit a Jew into parliament ; how then can we assume that the Stanley of Derby will not abet Lord Redesdale in excluding an ancient Baron from access to his rights ? For that is the drift of Lord Redesdale's motion. The address stated that there are a large number of baronies in abeyance; that within the last century several petitions have been presented to the Crown by persons claiming to be co-heirs of such peerages; that the labonous investigation consequent on refer- ence to the House of Lords, according to the ancient custom' inter- feres with the judicial business of the House ; that when a barony is called out of abeyance the peer who is newly created takes precedence, so that the third Lord Botetonrt took precedence of the seventeenth Lord Audley, and of the fifteenth Lord Stourton ; and a peer now newly created might take precedence of the nine- teenth Lord Clinton, the twenty-first Lord Grey de Ruthyn, and twenty-second Lord:Dacre. Wherefore the House has prayed her Majesty to reconsider the custom of referring such petitions to the House of Lords, when it shall appear that the peerage claimed
has been "in abeyance for more than years." Lord Campbell threw out the hint that one hundred years might be the limit.
Now what is this calling peerages out of abeyance ? The word is derived from the French " bayer," to gape with open mouth,— the vacant seat " yawning " for an occupant. It presupposes
that there is a seat in the House of Lords properly to be ocCupied by a peer whose true representative has not at that moment been
ascertained. Lord Redesdale speaks of the practice of call.
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peerages out of abeyance as new' but the instance which he cites as the first, took place in 1604, two centuries and a half aeee; and the date, as we shall see, is somewhat remarkable. In that case the House of Lords wished to avoid the difficulty of deter- mining who was the heir to the Barony of Abergavenny, and it relieved itself of the &Mist of deciding between two claimants for that Barony by inducing the Crown to call out of abeyance the Ba- rony of Despencer. But in that case, be it observed, the two highest authorities on such subjects, the Crown and the House of Lords, evidently desired to carry out a decision in accordance with the spirit and antecedents of the relations between the Throne and the Peers. It is not simple temporary suspension of a title which constitutes abeyance, for until a Barony shall have descended through two or three generations, the succession being established by the writ of summons, it has not become an herit- able possession ; but having once developed its existence by that means, the title without being extinguished, may be suspended, in more than one way. For instance, in a peerage descending to male heirs there may be a defect of male heirs in the next gene- ration, though not subsequently. In a peerage descending to the female issue, the title may be suspended by coparcenery, and af- terwards recovered by a male heir in a subsequent generation, or taken by one of the daughters should the death of the others ter- minate the coparcenery. In the records of some families we shall find more than one suspension of the title, as in the Earldom of Ferrars, where there have been two. In all these cases, as we have said, the title continues to exist : it is lying, as it were, like an ancient sword, in a house where there are none but daughters, to be taken up again as soon as the proper hand shall appear to take it up. We have noted the importance of the date which furnishes the first precedent for this process of recruiting, or rather maintain- ine, the numbers of the House of Lords. It is usually considered that the reign of Henry the Third marks the most distinct com- mencement of the settled law in this country ; but it is to be ob. served that the Peers claimed and exercised authorities more or less independent of the Crown and resting upon some kind of substantive rights, down to a far later period ; the Tudors them- selves accepting the support of the Barons in their conflicts with the Plantagenets, as the Plantagenets had in their conflicts with each other. When we come to the times of the Stuarts we find the King dealing more with the Peers and Commons as bodies, divided, no doubt, but still acting in accordance with the general law of the country, and not the individual power of this or that Baron. The reign of Henry the Eighth, with the Reformation, in many respects reflected the anterior reign of Henry tho Fifth, with its Lollard conspiracies ; but, accompanying the Protestant Reforma- tion, introduced so much for the convenience and satisfaction of the King, there was an extended recognition of recorded law. Political conflicts, whether carried on by the Crown, by powerful nobles, or by the reformers, were waged more in the name of our institutions than of individuals, and were practically aided by those institutions as such. From that time, therefore, the Peers derived their greatest power and authority from the general body of their own House; whereas during an earlier epoch, the close of which may be roughly fixed before Henry the Eighth's reign, the power of the Peers was to a great extent an aggregate of their individual power, and at first was principally so. Still the occu- pants of seats in the Upper House necessarily traced their claim to some kind of oriein • the first unquestionably was tenure, the barony being conferred by the Crown,—in very early times by a -conquering Crown—as a species of local government,—a trust granted to one who held his lord the king's lands in fee upelt condition of rendering certain services in return. The baron counted himself amongst -the body of barons because he held the barony, to say nothiner' of the important fact that lie wore a sword. And also, if he was abold, generous, clever man, because his local retainers would spend their lives in his service as he would in the king's. Such gifts went by descent, partly bee:nese -the Crown was never powerful enough to resist the claim of the Peers that their sons should have their lands—though attainders are strewed about in history like nuts in a country lane, so easy was it for the Crown sometimes to crush peer and peerage under the iron heel of still greater power. Sometimes the claim of the heir would be questioned, and then his proof of the succession was a reference to -his father's writ of summons. Some of the older peers though their number is waning every generation, still sit by that ancient title. The more recent and more common evi- dence is the original patent from the Crown to the peer, which, riL many instances, is so little a question of archaeology that there IS no difficulty in discovering it ; Lord Redesdale, for example, could establish his peerage from the very origin without any trouble or doubt. These brief allusions to well-known facts are enough to show the various modes in which the titles of the peers originated. From the time of the Revolution and the settlement it may be considered that the constitution of the House was better defined, but we still have examples of all the various origins. It has been understood that one peerage at least has continued its existence by virfud of tenure—the Earldom of Arundel, which is reputed M be enjoyed by the holding of Arundel Castle.* Another claim is * Would the sale of Arundel Castle forfeit the Earldom? Would the Earldom pass to the purchaser? The second question may of omen be answered in the negative • and so, probably, the first; though the Dub) Norfolk would scarcely like to try the point practically. Jim urged for an Earldom placed in suspension on very doubtful unds indeed,—that of Berkeley,—by the same title ; and
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possibly a violence must be done to the history of the British rage
should the claim be disallowed simply because recent in- Pee
stances are in some degree wanted. " Nullum tempts occurrit tegi" ; but the title of the baron is as old as that of the King, and in far more instances, at various points in our history, has the displaced heir to a barony recovered his title ; so that we may say with even greater force, " nullum tempts oecurrit baroni." Of late years a prejudice has arisen against this claim to barony by tenure, and the pending claim is, with no little moral injustice, prejudged in the minds of many. Another prerogative of the Crown was lately asserted only to be denied,—that of creating life-peerages. Granted that the claim was doubtful, it is a fact that it has now been settled in the negative ; and consequently another supposed portal of admission to the House of Peers has been closed. Lord Redesdale now proposes to shut up another door. The Peers being the natural conservators of what is ancient in this country, he proposes to disqualify them, if the claim to a suspended title be too ancient. He does so in the very teeth of the spirit of inheritance by descent. A peerage falls into abeyance, say, because, where it has descended to the heir male, no heir male presents himself—there are none but daughters,-- none but daughters perhaps in two or three more generations. The family may descend in the social scale, and may for a time be ignorant of its rights. A lady, it has been said, has been saluted as Countess at the washing tub. But as soon as an heir male in the direct line of descent shall be born in that family, so soon are his full rights born along with him ; and, properly speaking, he claims of the Crown and of his peers, not a grant of his title, but a record of it. The third Lord Botetourt would hold his title by as many generations as the seventeenth Lord Audley--would be an older Baron, a more ancient peer, and would justly take precedence. It is natural that a Peer of a very recent creation should feel a jealousy of those ancient precedencies, but the whole body of Peers ought to feel still more jealous of the rights and constitu- tion of their body. Let us observe that this proceeding of Lord Redesdale is tantamount to an admission that the &institution of de Lords may be revised, that it may be different from what it is at present. Surely this is very indiscreet ; for does it not force upon us the formidable question, what is the constitution of the House of Lords ? What are the Peers now ; what are they in point of fact as well as of law ? As a matter of fact we find that the House of Lords is a chamber representing—we were going to say the high- born classes of this country, only we remember how many newly risen Peers there are in the body. We must say, the richer classes, and, as a matter of usage and fact, usually those of the richer classes who have connected themselves with the land. Yet even that condition is not by any means essential, for we have professional Peers,—military, naval and legal Peers, whose connexion with the land is an afterthought. The peers
represent the richer classes of the country, but not by election, they do so partly by descent, and partly by nomina- tion. They have lately shown themselves, and sometimes very inconveniently, to be in anything but harmony with the general feeling and declared opinion of the whole country, opposed to the Crown, Government, Commons, Press—there was no press when the peers were first created—and to the Public in general. But we respect them because they are so ancient, because their origin has upon the whole been so little tampered with, because they are a power of themselves, of separate origin, independent, standing between the Crown and the Commons. If we are to consider that the constitution of the House of Lords may be revised, Man- chester will be aflame with the opportunity for new and damaging inquiries ; the whole pushing middle class of the country, the moneyoeracy, the millocracy, will be roused ; and who shall say where such inquiries may stop, to what suggestions they may give birth ? Yet it is a pedantic Peer that gives birth to such ideas, and it is a sleepy House of Lords which countersigns his prayer for an inquiry that the Chartists themselves never dreamed of.
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