[Sidenote: Creation of peers by statute.]
The next method of conferring an honour of peerage was by creation in parliament. This was adopted by Edward III. in several instances, though always, I believe, for the higher titles of duke or earl. It is laid down by lawyers that whatever the king is said in an ancient record to have done in full parliament must be taken to have proceeded from the whole legislature. As a question of fact, indeed, it might be doubted whether, in many proceedings where this expression is used, and especially in the creation of peers, the assent of the commons was specifically and deliberately given. It seems hardly consonant to the circumstances of their order under Edward III. to suppose their sanction necessary in what seemed so little to concern their interest. Yet there is an instance in the fortieth year of that prince where the lords individually, and the commons with one voice, are declared to have consented, at the king's request, that the lord de Coucy, who had married his daughter, and was already possessed of estates in England, might be raised to the dignity of an earl, whenever the king should determine what earldom he would confer upon him.[316] Under Richard II. the marquisate of Dublin is granted to Vere by full consent of all the estates. But this instrument, besides the unusual name of dignity, contained an extensive jurisdiction and authority over Ireland.[317] In the same reign Lancaster was made duke of Guienne, and the duke of York's son created earl of Rutland, to hold during his father's life. The consent of the lords and commons is expressed in their patents, and they are entered upon the roll of parliament.[318] Henry V. created his brothers dukes of Bedford and Gloucester by request of the lords and commons.[319] But the patent of Sir John Cornwall, in the tenth of Henry VI., declares him to be made lord Fanhope, "by consent of the lords, in the presence of the three estates of parliament;" as if it were designed to show that the commons had not a legislative voice in the creation of peers.[320]
The mention I have made of creating peers by act of parliament has partly anticipated the modern form of letters patent, with which the other was nearly allied. The first instance of a barony conferred by patent was in the tenth year of Richard II., when Sir John Holt, a judge of the Common Pleas, was created lord Beauchamp of Kidderminster. Holt's patent, however, passed while Richard was endeavouring to act in an arbitrary manner; and in fact he never sat in parliament, having been attainted in that of the next year by the name of Sir John Holt. In a number of subsequent patents down to the reign of Henry VII. the assent of parliament is expressed, though it frequently happens that no mention of it occurs in the parliamentary roll. And in some instances the roll speaks to the consent of parliament where the patent itself is silent.[321]