This case really proves nothing. It is true that Charles was forced by political pressure to issue the writ, but he effectually prevented any practical effect, and from first to last, he never admitted the Lords' claim. And it must be observed that the Committee of Privileges specifically allege that the King had omitted to send writs to other peers, but nothing further is heard of this grievance. This point appears to have been overlooked by all our constitutional writers.

Prynne in this matter appears to have shown greater prescience than Coke. Without the right to exercise this prerogative the Crown was at the mercy of the baronage.

The next case cited in support of the alleged right is that of the Clifton Barony. Here the House of Lords, after hearing counsel at the Bar and taking the opinion of the judges, advised the Crown in favour of the claimant, Lady O'Brian. The judges found that her ancestor, Jervis Clifton, by virtue of the receipt of a writ of summons and taking his seat, was a peer and baron of this kingdom and his blood thereby ennobled, and that consequently the honour descended to the claimant as lineal heir, who was therefore entitled to the said dignity.

The only new point here is the statement that a peerage ennobles the blood. This is a comparatively modern innovation. In its inception a baronage was not founded on birth at all. It was based upon tenure of land. Whence I did this doctrine arise? As Dr. J. Horace Round has pointed out, the judges took their law from a statement to this effect, in Coke's Institutes, for which no authority is given. And, what is still more important, it was not incorporated in the Lords' Resolution, which was simply, "That the said Catherine Lady O'Brian hath right to the barony of Clifton." As Dr. Round truly observes, "it is obviously quite impossible to deduce from this Resolution any general principle." 1

1 Peerage and Pedigree, Vol. I, 246.

Dr. Round is of opinion that Coke's statement as to the state of the law in his day, and probably since the accession of Henry VIII, is correct. But we must remember it had no other sanction than custom. As he insists, we have two distinct developments: "the first is the slow and gradual growth of the hereditary right and of custom; the second is the gradual development since the days of Coke of the doctrine that a writ and sitting created an hereditary barony."

1

Closely bound up with this question is the power residing in the Crown to create life-peerages. Bearing in mind the difference insisted upon by Mr. Pike "between the creation of a peer for life and the creation of a life-peerage,” it is technically true that in modern times there have been no creations of life-peerages in the persons of males. Upon the creation in 1856 of Sir James Parke as Baron Wensleydale and a peer "for and during the term of his natural life," the Committee of Privileges of the House of Lords resolved, by a majority of 35, "that neither the said letters patent, nor the said letters patent with the usual writ of summons, enable the grantee to sit and vote in Parliament." Whilst the Government offered no opposition to the confirmation of this resolution by the whole House, strong protests were lodged against this doctrine by prominent dissentient peers. The result of the struggle was the creation by statute in 1876 of four "Lords of Appeal in Ordinary," entitled to sit and vote so long as they held office. By the Act of 1887 they became entitled to sit and vote during life.

Upon this question it is interesting to recall Freeman's view.

"That the personal summons," he wrote, "conveyed an exclusive hereditary right was one of those devices of lawyers of which so many have crept into our constitution.

1 Peerage and Pedigree, Vol. I, 225.

When the notion of hereditary right had once established itself, the formal creation of peerages by patent was a natural stage. Looking at the matter from this historical point of view, it seems to me simply wonderful how anyone can doubt the power of the Crown to create life-peerages or to regulate the tenure or succession of a peerage in any way in which it thinks good." 1

Upon this last point, Freeman's opinion is confirmed by the fact that in the claim to a succession to a peerage, although the investigation is taken before a Committee of the House of Lords, the Committee does not decide upon the claim. It only advises the Crown, which alone gives judgment, and has the right to exercise its discretion in accepting or rejecting such advice.

It must be observed that in all these cases the decisions were only those of the House of Lords, which thus became judge in its own cause. Moreover, it is an accepted axiom that a resolution of either House of Parliament binds no one but its respective members. A Resolution by either or both Houses cannot affect the prerogative of the Crown. Even if the Crown formally waived its prerogative, nothing but a statute would legally restrain it from subsequently exercising it.

Lord Cranworth put the law quite clearly in the debates on the Wensleydale Case, when he stated that a peer derived his right to sit in the House of Lords, not from his patent of nobility, but from his writ of summons. All the rights and privileges of a peer lay outside the walls of that House. Upon the question of whether a writ of summons should issue or not, the House of Lords had no original jurisdiction. This is a matter which lies in the absolute discretion of the Crown. By custom some three centuries old, members of the House of Lords have received writs, not as of right nor even as a privilege inherent in their patent of nobility, 1 Growth of the English Constitution, 62.

but merely ex gratia. The power to issue writs is a power vested in the Crown by virtue of its prerogative, and consequently the Crown may exercise or refrain from exercising such power at its pleasure. Desuetude, as Dr. Round asserts, does not operate against the Crown. The omission by the Crown to exercise a prerogative even for centuries does not invalidate its power. For instance, the Crown still possesses the right to veto any Bill passed by both Houses of Parliament, and if it were assured that such Bill was contrary to the express wish of the nation, the Sovereign would be justified in putting this long-dormant power into force.

The Crown is in fact the fountain of honour, and since it alone has created the peerage, which since the abolition of feudal tenures has rested solely on its title of honour, the Crown can vary the privileges attached to that title at its discretion.

The Crown has never abandoned in words, much less by statute, its right to withhold a writ of summons to the holder of a barony. Although it is now nearly three centuries since the King exercised this prerogative, it is still alive, and he is entitled to exercise it in order to settle any serious conflict between the two Houses of Parliament just as he is entitled with the same object to create additional peers. And the objection to such a course, whatever view we may take as to the legal right of a peer to receive a writ, has been removed by the acceptance of Lord Rosebery's Resolutions in March last. The House of Lords has now by its own act conceded that the holding of an hereditary peerage no longer confers a legal right to sit and vote in the House of Lords.

It does seem an absurd paradox to find the leaders of the Conservative party and their supporters in the Press denying the power of the Crown to create peers in view of political exigencies. If there remained any prerogative

more assured to the Crown, surely it was this. But constitutional publicists with Conservative sympathies seem prepared to turn their backs on anything and everything they have ever said or written which conflicts with the ephemeral policy of an opportunist party bankrupt of principle. Let us recall upon this point the words recently written by one of their leading jurists, Professor Dicey:—

"The same thing holds good of the understanding, or habit, in accordance with which the House of Lords are expected in every serious political controversy to give way at some point or other to the will of the House of Commons as expressing the deliberate resolve of the nation, or of that further custom which, though of comparatively recent growth, forms an essential article of modern constitutional ethics, by which in case the peers should finally refuse to acquiesce in the decision of the Lower House, the Crown is expected to nullify the resistance of the Lords by the creation of new peerages.'

1

As a statement of the law and custom of the constitution as hitherto understood, this could not be more ably expressed. But by exercising the prerogative by the issue of writs to selected peers only, the present constitutional crisis might be solved in a much simpler form than by threatening to create 500 new peers, and so carrying a Bill to abolish the financial, and restrict the legislative powers, of the Upper House.

It would be a settlement by compromise and not by force. A settlement by compromise is more in accordance with British political traditions, and it would enable the baronage "to save its face" and to march out with colours. flying. For by consent only could the Scotch and Irish. peers, numbering 44, and the archbishops and bishops, numbering 26, be eliminated or reduced in number. And without this limitation it would be impossible to give the Liberal peers a majority without a fresh creation. With

1 Law of the Constitution, 427 (1908).