User:Jnestorius/Lords not Peers

Sketch of points
hereditary peer not the same as Lords Temporal

Peer not Lord:
 * suo jure peeresses — List of peerages inherited by women
 * minors
 * John Wilmot, 2nd Earl of Rochester licence to sit underage
 * citizenship
 * non representative peers
 * posthumous proof of title — Baronies by writ etc
 * religion: Catholics 1679–1829
 * bankrupts
 * List of life peerages before 1876
 * if Parliament was prorogued or dissolved throughout one's term as peer
 * more generally, death of the holder the heir succeeds instantly but other paperwork is needed to establish the facts; finally a patent sealed (in green? blue?) with the Great Seal of the Realm

Lord not peer:
 * Lords of Appeal in Ordinary — "The Appellate Jurisdiction Act 1876 originally provided for the appointment of two Lords of Appeal in Ordinary, who would continue to serve while holding judicial office, though in 1887, they were permitted to continue to sit in the House of Lords for life, with the style and dignity of baron."

Other notes:
 * Writ of acceleration actually did pass the substantive subsidiary title to the heir apparent; it was not just extending the use of a courtesy title (and indeed the courtesy title was often Viscount or higher while the accelerated title was Baron as a rule).
 * Peerage law
 * History of reform of the House of Lords
 * abeyance
 * attainder revoked?
 * life peer
 * Oath of Allegiance (United Kingdom) — not taking didn't disbar but did preclude
 * Baron Poynings "Eleanor Poynings, who had married Sir Henry Percy, later 3rd Earl of Northumberland, became de jure suo jure Baroness Poynings. Percy was summoned to Parliament on her behalf."
 * Lord Chancellor was not (necessarily) a peer and if not was not a member of the Lords, even though was the presiding officer. Does that mean didn't have a casting vote?
 * disclaiming a hereditary peerage under the Peerage Act 1963, it is revived for heir upon death of disclaimer

Quotes
"TITLES." Edward Augustus Freeman Longman's Magazine (1883) reprinted in The eclectic magazine of foreign literature, science, ... n.s.v.38 (1883) pp.741-759 at p.749:
 * One point needs to be specially insisted on, that the title of lord has not necessarily anything to do with peerage. All peers are lords, but there are many lords who are not peers. The King’s Chancellor, his Treasurer, his Chamberlain, his High Admiral, the President of his Privy Council, certain of the higher Judges, all English Judges when actually on the bench, Scottish Judges at all times, Lieutenants of counties, the Lieutenant of Ireland and his Deputy, the Mayors of London and York, the Provosts of several Scottish cities, the Rectors of Scottish Universities, the younger sons of dukes and marquesses, all these are lords by some rule, by law or by courtesy,_many of them without being peers, and, when they are peers, without any reference to their peerage. ' A bishop's title of [on] has not, as many people fancy, anything to do with his peerage; it belongs equally to bishops who have seats in Parliament and to bishops who have not.

J. G. Swift MacNeill 1893:
 * It is worthy of notice in this connection that a Peer is not necessarily entitled to a writ of summons. Minors do not get the writ. Peeresses in their own right do not sit in Parliament. The wife of Sir John Campbell was created Lady Stratheden. She of course never sat in Parliament, but on her death in 1860, before her husband who had been created Lord Campbell, her eldest son took his seat in his father's lifetime in the House of Lords on succeeding to his mother's Peerage. According to Mr. Goulbourne, “Until the King by writ of summons calls a member of the House of Commons up to the House of Peers, he cannot use his right to sit in the House of Commons.” When Lord Salisbury claimed to be placed on the electoral roll of Parliamentary voters, his claim was successfully resisted on the ground that he was a Peer of Parliament and had taken his seat in the House of Lords (Marquis of Salisbury v. South Mimms, L.R. 8c, p. 248), Irish and Scotch Peers who are not Representative Peers are not Lords of Parliament, and do not sit in the House of Lords. Sir William Anson says, "There are cases in recent times of Peers by descent holding offices which are incompatible with a seat in either House. The Peer in such cases succeeding to his Peerage does not apply for his writ of summons and so avoids being disqualified for the office which he holds.” Why may not writs of summons which have been withheld for the personal advantage of Peers likewise be withheld in the interest of the community at large ? There is nothing strange in what Mr. Freeman designates the "revival” of the “non-Parliamentary Baron." When, in 1856, Sir James Parker was created by letters patent a Peer for life only and a writ of summons was issued to him, this proceeding was, according to Mr. Freeman, “A return to the ancient practice of the fourteenth and fifteenth centuries.” House of Lords,” he says, “ took upon itself, in defiance of the whole history of their order, to refuse admission to a Baron lawfully created, lawfully summoned, merely because the Crown had not bound itself in the nineteenth century any more than in the thirteenth and fourteenth to summon the representatives of the Baron so created for ever and ever." We know that the Crown yielded to the pretensions of the Lords, and Lord Wensleydale received a fresh creation by a patent referring to his imaginary heirs. Will it, however, be argued that if the fresh creation had not taken place Sir James Parker would not, by virtue of the patent creating him a Peer for life, have been a Peer of the Realm, even if he were not a Lord of Parliament? When the Lords of Appeal in Ordinary were first constituted under the provisions of the Appellate Jurisdiction Act of 1876, they were to sit and vote so long only as they held office, but they were to rank for life as Barons with such titles as the Crown might appoint. By an amending Act in 1887, Lords of Appeal in Ordinary, on vacating their office, still continue to be Lords of Parliament. Under the provisions of the original Act we should have in the case of the resignation or removal from office of a Lord of Appeal in Ordinary the non-Parliamentary Baron revived, and Lord Russell, the Lord Chief Justice of England, would not be an ex-Lord of Appeal in Ordinary or Lord of Parliament.

2nd Earl of Selborne
William Palmer, 2nd Earl of Selborne Hansard Commons May 1895 "Mr. ANSTRUTHER moved that the Speaker do issue his warrant to the Clerk of the Crown to make out a new writ for the election of a member to serve in the present Parliament for the borough of Edinburgh (Western Division) in the place of William Waldegrave Palmer, commonly called Viscount Wolmer, now Earl of Selborne.'
 * 13/the-earl-of-selborne
 * My first point is this—and upon that I hope I shall have the general assent of the House—that if you refer it to a Committee, you shall refer, not part of the question, but the whole question—you shall, in fact, refer to the Committee what has already been referred to the Committee on the Vacation of Seats—namely, whether a person who succeeds and becomes a Peer of the realm does of necessity become a Lord of Parliament, and is thereby excluded from sitting in this House.
 * Motion for the issue of the Writ withdrawn.
 * 14/earldom-of-selborne
 * That a Select Committee be appointed to Inquire and Report whether the Honourable William Waldegrave Palmer, commonly called Viscount Wolmer, has, since his election to this House, succeeded to the Earldom of Selborne in the Peerage of the United Kingdom
 * The Chancellor of the Exchequer has said that his original intention was to refer the question to the Committee appointed last Session and reappointed this Session on the Vacation of Seats, but he has agreed to accept the smaller Committee
 * 21/selborne-peerage-committee
 * The Committee, having considered the matters referred to them, and having taken evidence thereon, report— That the hon. William Waldegrave Palmer, commonly called Viscount Wolmer, has, since his election to this House, succeeded to the earldom of Selborne in the peerage of the United Kingdom.'
 * 21/new-writ
 * [writ issued despute Curzon objecting]
 * Summary:

Mr. Curzon, Sir W. HARCOURT, Lord CRANBORNE, and others having spoken,

Sir R. WEBSTER wished to explain briefly the opinion which be had formed after hearing the arguments adduced by those who opposed the issue of the writ. The statement made by the Chancellor of the Exchequer last week contained what he believed to be the true view of law upon this subject. He did not, however, wish for a moment to belittle the case put forward by the hon, members for Southport and Guildford, and he imagined that they would all regret the absence from that House of Lord Selborne. But they must consider what this claim was. It rested upon the proposition, or rather assertion, that a peer of the realm need not be summoned to the House of Lords unless he wished; that if he chose to abstain for any length of time from asking for a writ of summons such writ could not be issued to him. That proposition he believed to be legally erroneous and historically incorrect.

Mr. CURZON: Our contention is that until a writ of summons is issued such a peer may sit in this House.

Sir R. WEBSTER said that was only another way of stating the same view. It was a very dangerous doctrine to allow that the Crown might abstain from issuing the writ. That was attempted in the reign of Charles II., but it was resisted, and for two centuries the constitutional right of a peer of the realm to be summoned to Parliament had been recognised. The reason why the House of Commons had always acted on the writ of summons was because in almost every case the peer had applied for it. Every peer of the realm had a right to be summoned, and with that right there existed a corresponding obligation to obey the writ. If his hon, friend's view was the right one, a peer might be a lord of Parliament and disqualified to sit in the House of Commons in one Parliament and yet be qualified to sit in the House in another Parliament. But there was not a fresh application made at the beginning of every Parliament. When the application had been once made, the Lord Chancellor, acting for the Crown, issued the writ ex mero motu at the beginning of each Parliament. The words of the letters patent showed that the Crown had no option in the matter. The letters patent declared that the peer and the heirs of his body 'may have, hold, and possess a seat, place, and voice in the Parliaments, public assemblies, and councils of us, our heirs and successors.' Thus the right to be a lord of Parliament was bestowed by the letters patent, and that privilege, he contended, carried with it a corresponding obligation to obey a summons by the Crown. If he was right in his view, it could not rest with the Crown to say whether this or that peer should be summoned, or with a new peer to say whether he would be summoned or not. It was said that there was no evidence of a writ of summons being issued where it was not applied for, but he believed that if the records were searched cases might be found. It was obvious that as it was so rare an occurrence for a peer to abstain from applying, cases of writs being issued without application must be very exceptional. This constitutional question had come forward prominently for the first time in this case, and it was of importance that everything that could be said to assist the House should be stated on the floor of the House, and it was in order that his opinion, for what it was worth, might be placed on record that he had offered these few remarks.

The motion was then agreed to without a division. May 21."

Main Committee's report: "THE Select Committee on the question of the Vacation of Seats have thought it desirable to report first on the question of how far a succession to the peerage affects the status of a member of the House of Commons, reserving the other matters for further deliberation. On that subject they arrived generally at the following conclusions : The report drafted by Mr. Asquith was adopted without a single alteration, Sir Charles Dilke moved an amendment to the effect that the committee had arrived at their conclusions 'with much doubt,' but this was negatived by six votes to four. The report, as a whole, was agreed to by seven votes to three."
 * 1) That the succession to a peerage of England or of Great Britain or of the United Kingdom disables the person so succeeding from being elected to, or from sitting or voting in, the House of Commons.
 * 2) That it has been the practice of the House of Commons to abstain from declaring the seat of the member vacant and ordering a fresh election in his room, on the ground of succession to the peerage entitling the holder to sit in the House of Lords, until the member has been called to the House of Lords,' by receiving a writ of summons to sit in that House. The reason for the practice appeared to the committee to be, not that the mere fact of succession does not in itself disable the member 80 succeeding, but that the occurrence of that fact, with its disabling consequences, ought not to be assumed and acted upon without clear proof; and the writ of summons in cases in which such a writ can be issued is the best and safest proof of which the circumstances admit. The rule, in other words, is a rule not of law but of evidence. Where, as in the case of a Scotch peerage, the succession does not entitle the holder to sit in the House of Lords, and there can, therefore, be no writ of summons, the House of Commons has, since the Act of Union with Scotland, been accustomed to declare the seat vacant upon such evidence of the death of the predecessor and of the succession of the member affected as is thought fit and sufficient.
 * 3) That when a member has succeeded to a peerage entitling him to a seat in the House of Lords and delays or refuses to apply for a writ of summons, the House of Commons is entitled, and may, in the interest of a constituency, be bound to ascertain the fact of the succession by such inquiry and upon such evidence as it considers appropriate to the
 * 4) That the committee do not think that the order of reference requires them to express any opinion upon the question whether, and in under what conditions, if any, a person succeeding to the peerage ought to be allowed to divest himself of the disability arising from the status of a peer for membership of the House of Commons. It follows from the propositions above stated that the existing law and practice of Parliament do not, in the opinion of the committee, admit of such a proceeding.

[my synopsis unless in quotes]
 * Asquith chaired the "smaller Committee"; he asked Curzon to present a memorandum arguing '[I quote Law Times] not under any liability to a summons so long as evidence of his succession to the peerage "[Law Times quotes memorandum] is withheld, even though it be intentionally withheld. The Lord Chancellor does not require that evidence and has never compelled it."'
 * Richard Webster: if Curzon "[quote hansard 1895/may/21] declined to depend, as he believes he must, on the doctrine that the Crown could postpone the issue of the writ, he could only fall back on the other alternative, that a peer could apply for a writ or not, as he chose"
 * William Anson "[Times does not cite where Anson writes this] It would seem that if a peer, on succeeding to his peerage, did not apply for a writ of summons, he would nevertheless be liable to be summoned, and a high authority ([this cite is by Anson] Evidence of Clerk of the Crown in Chancery Report on Vacating Seats, p. 21, Commons Papers 1894, 278) has maintained that, whether he did or did not make application, it would be the duty of the Lord Chancellor to issue a writ to a peer whose title was beyond question."
 * [direct quote] The distinction, however, between a peer of the realm and a Lord of Parliament, on which the present Lord Selborne and the present Lord Curzon relied in 1895, is clearly stated in the third Report of the Committee of the House of Lords on the dignity of the peerage. "The union of England and Scotland first, and the union of Great Britain and Ireland afterwards, have had the effect of making a clear distinction between the character of a peer of the realm and that of a temporal Lord of Parliament, but a distinction previously existed in some degree in the case of minors or of women claiming to be peeresses in their own right, and in respect of such persons who, as being peers of the realm by right, might not have thought fit to qualify themselves to sit and vote as Lords of Parliament." In the debates on the Wensleydale Peerage case it was admitted that the Crown, in days gone by, had withheld writs of summons from peers who were unquestionably entitled by inheritance to sit in Parliament, and a legal dignitary of the highest eminence, who has twice filled the great office of Lord Chancellor, has expressed the opinion that it is within the power of the Lord Chancellor, as a Minister of the Crown, in consultation with his colleagues, either to issue or to withhold the writ of summons to a peer to attend Parliament.

Writ of summons
Sir William Anson, 3rd Baronet 1892:
 * A peer by descent needs no introduction, but may take his seat at any time after attaining the age of twenty-one. Peers who are summoned in virtue of newly created peerages, or in virtue of special limitations in remainder in patents of old peerages, are introduced by two peers, their patents presented to the Chancellor and read by him, and their writs of summons also presented. The patent and writ are both entered on the Journals of the House. This rule does not of course apply to the Scotch representative peers. The taking and subscription of the oath or affirmation of allegiance completes the title to the seat.

1908:
 * At present, the death of an English peer does not, of itself, make his eldest son a member of the House of Lords. A necessary preliminary to the taking of a seat is the issue of a "writ of summons" by the king. If the eldest son is a minor, his writ is not issued until he has attained his majority. In certain instances the issue of this summons may be delayed by desire of the new peer himself, who immediately begins to enjoy the title and rank he has inherited, but defers for a time the entry upon his legislative inheritance. "There are cases in recent times," says Sir William Anson, " of peers by descent holding offices which are incompatible with a seat in either house. The peer in such case, on succeeding to the peerage, does not apply for his writ of summons, and so avoids being disqualified for the office which he holds." A peer thus summoned receives a new writ at the opening of every successive Parliament as a condition of admission to a seat in it

HL 1948 v (1) 659 "ROLL together with an Alphabetical LIST of the LORDS SPIRITUAL AND TEMPORAL in the FOURTH SESSION of the THIRTY-EIGHTH PARLIAMENT of the UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND" has dagger of those "not in receipt of a Writ of Summons", includes some marked "minor" e.g. [Hugh Seymour, 8th] Marquess of Hertford but others not e.g. [John Osborne, 11th] Duke of Leeds. Note Alexander Montagu, 10th Duke of Manchester was a minor but since his father died only in 1947 maybe the formalities of recognising his succession were not completed by 1948. (Or could it be that if you succeeded mid-session your writ came only at the next session?) jnestorius(talk) 17:26, 17 October 2021 (UTC)

"The writ of summons cannot be withheld from any rightful claimant over 21 years of age, as long as he or she is not disqualified as an alien; as bankrupt; or as convicted of treason. In practice there are at any one time a number of Peers by succession not in receipt of a writ of summons, and some never go to the trouble of establishing their claim. In 1988 there were 86 such Peers"

"A disapproving asterisk is appended to those peers who 'are not in receipt of a Writ of Summons'; of these there are sixty-nine. A Writ of Summons to the House is issued to any noble lord on the Roll who asks for one, unless he is a minor..."

"But since 95 of these are not in receipt of a Writ of Summons, either because they are not yet twenty-one, have not yet proved their title or have the misfortune to be bankrupt, the total of those qualified for membership of the"

A 1987 report:
 * Hereditary peerages carry a right to sit in the House (subject to certain disqualifications), provided the holder is 21 years of age or over but anyone succeeding to a peerage may within 12 months of succession disclaim that peerage for his or her lifetime. Disciaimants lose their right to sit in the House but gain the right to vote at parliamentary elections and to offer themselves for election to the House of Commons. ... In mid 1986 there were 1,175 members of the House of Lords, including the two archbishops and 24 bishops. The Lords Temporal consisted of 761 hereditary peers who had succeeded to their titles, 29 hereditary peers who have had their titles conferred on them (including the Prince of Wales), and 359 life peers, of whom 21 were 'law lords'. Of the total, 92 peers were not in receipt of a writ of summons and 136 peers were on leave of absence from the House (see below). ... Not all peers with a right to sit in the House of Lords attend the sittings.

I can't find what "see below" refers to, but it's probably "on leave of absence" rather than "not in receipt of a writ of summons".