distinctive appellation: and the original name ceases to describe the class, which is no longer regarded under a common aspect, and is confined to some one of its newly established divisions.

In

Such a process as that I have attempted to describe was necessarily gradual. The distinction between the greater and the less Barons occurs in the preamble to the Statute of Marlbridge,* and again a few years later almost in the same words in that of the Statute of Gloucester.+ 1311 writs were directed Majoribus Baronibus. During this reign the first recorded instance of the title of Peers, as applied in its modern sense to the Earls and Barons, occurs in the year 1321 on the trial of the De Spencers.§ In the beginning of the reign of Edward the Third we read that the Lords in Parliament, when Sir Simon De Bereford was accused before them, protested that he was not their peer, and that they were not bound to try him. Yet this claim of Peerage might apparently be waived, for we find that Lord Berkeley, who was undoubtedly a Peer, put himself, when accused of charges similar to those made against De Bereford, upon a jury of twelve Knights of the county of Gloucester. This "remarkable anomaly," as Mr. Hallam || calls it, ceases to appear such, when we observe that the status of a Peer of the Realm was at the time hardly settled; and that the jury consisted of those who were the peers of the accused in the old sense of the term "Ses pers de la tenure meisme." If the jury had been not Knights but burgesses, the anomaly would indeed have been remarkable. At length in the year 1341 an Act T was passed which fully confirmed and recognized the privileges of Peerage. It provides in effect that no Peer shall be compelled to answer or be judged except by his

Peers, and that if any Peer choose to accept a different mode of trial the privileges of Peerage shall not be thereby prejudiced. This statute thus creates in favour of the old Majores Barones a distinct personal privilege. The privilege so enacted is personal and not merely official; it continues when there is no Parliament, as well as when one is in session; it extends to the wife and to the widow of a Peer; and it is lost to the widow when her relation to the deceased Peer is lost by a second marriage.* This Act doubtless merely confirmed and perhaps enlarged what had previously been the practice. Shortly after the statute of which this Act formed one of the chapters was passed, a writ directed to the Sheriffs was issued by the King in council, in which he declared that he had never really given to the statute his assent, but had acted with a politic dissimulation for the purpose of avoiding the inconveniences that might have attended his refusal, and that the statute therefore must be taken to be invalid and of no effect: "Willing, however, that the articles contained therein, which by other statutes of him or his progenitors, Kings of England, had been before approved, according to the form of such statutes should be in all things observed." This singular proclamation was confirmed by the following Parliament, so that it would at first seem that the Act to which I have referred is not in force. The statute is contained with the writ in the authorized collection of statutes and in all the printed collections; and its provisions have been in practice considered as law. It is probable therefore that the suggestion of the Lords' Committee+ is correct, and that this Act must be deemed to be within the exception expressed in the writ.

Two other events of nearly the same period mark the

altered character of the House of Lords. In the ancient writ of summons the obligatory part ran in the words in fide et homagio quibus nobis tenemini. These words imply that tenure was the basis of the Lords' attendance in Parliament, or at least that those who were summoned had done homage to the King and consequently held of him. In 1371 this form, after some fluctuations, was finally changed; and the form now in use, in which the charge is in fide et ligeantia, upon allegiance and not upon homage, was adopted. Thus the Feudal Assembly based upon tenure was abandoned, and a council claiming the same style and the same powers, but no longer exclusively limited to the great tenants of the Crown, was recognized by law.

The other event to which I have referred belongs to the following reign, although the tendency which it marks was probably felt in the time of Edward the Third. At the commencement of representation it seems to have been understood that the Lords of Parliament answered for their tenants and in their behalf consented to grants. Thus in 1340 the Prelates, Earls, and Barons for themselves and for all their tenants, and the Knights of counties for themselves and the Commons of the land, granted to the King the ninth sheaf, the ninth fleece, and the ninth lamb of all their sheaves, fleeces, and lambs for two years; and the citizens and burgesses made a different grant. So complete was this representation, or rather this authority, of the Lords that grants of aid from their tenants were made to the King by separate Lords.§ The Knights of the Shires represented only the inferior tenants in chief, and not those persons who were personally summoned to

§ See 1 Parl. Writs, 11, where the Archbishop grants a thirtieth of his

tenants.

Parliament or the tenants of such persons. The tenants, therefore, of Lords Spiritual or Temporal were exempt from contribution to the wages of Knights of the Shire. But as the distinction between the hereditary and the representative parts of Parliament grew more marked, the distinction between the two classes of freeholders rapidly faded. The Knights elected at the County Court were soon regarded as representing all the men of the county; and the exemption of the Lords' tenants from the burthen of the wages of the Knights became a mere privilege founded upon a usage the original reason of which had ceased to exist. There was therefore no disposition to extend this privilege. The freeholders were naturally jealous of any reduction of the area of taxation. Every new acquisition of property by a Lord of Parliament withdrew some contributories, and so increased the burthen upon the rest of the community. It was accordingly enacted * in 1388 that the levying of the expenses of the Knights coming to the Parliaments for the Commons of the counties be made as had been used before that time; and that if any Lord or other man, spiritual or temporal, had purchased any lands or tenements or other possessions which used to be contributory to such expenses before the time of the said purchase, the said lands, tenements, and possessions, and the tenants of the same, should be contributory to the said expenses as they were wont to do before the purchase. This statute therefore marks a great change in the supposed character of the Lords Spiritual and Temporal. They must have been at that time considered as no longer the representatives of their own tenants, but as a separate and distinct branch of the Legislature having the peculiar character which they now sustain.†

§ 3. The derivation of the Peerage from the council of the King has led to several important consequences. It has determined both the mode in which Peerages Functions of are granted, and the functions which Peers the Peerage. exercise. Peers of the Realm enjoy rights and exercise functions in five distinct characters.* They possess individually titles of honour which give them rank and precedence. They are individually hereditary counsellors of the Crown. They are collectively (together with the Lords Spiritual) when not assembled in Parliament the permanent council of the Crown. They are collectively (together with the Lords Spiritual) when assembled in Parliament the highest court of judicature. Lastly, they are, conjointly with the Lords Spiritual and the Commons in Parliament assembled, the Legislative Assembly of the kingdom, by whose advice consent and authority, with the sanction of the Crown, all laws are made. With the exception of the first, all these characters belong to the Royal council. Even the personal rank and precedence might be supposed to be an incident of these relations to Royalty. But in all their other capacities the marks of the Curia Regis are plain. That body prior to its evolution dealt with all kinds of questions, legislative judicial and executive. In course of time separate but kindred organs arose for the discharge of these several functions. Still traces, though gradually becoming indistinct, of the old homogeneous form remain. The Lords are now a portion of the Common Council for legislation. They form the ultimate Court of Appeal. In affairs of state they may advise Her Majesty in the absence of Parliament; and each Peer† may separately tender his advice. Under our modern system of frequent Parliaments