Hereditary peer

Hereditary peers form part of the Peerage in the United Kingdom. There are over seven hundred peers who hold titles that may be inherited. Formerly, most of them were entitled to a seat in House of Lords, but since the House of Lords Act 1999 only ninety-two are permitted to sit, although this reduction has been challenged in the European Court of Human Rights. Peers are called to the House of Lords with a writ of summons.

A hereditary title is not necessarily a title of the peerage. For instance, baronets and baronetesses may pass on their titles, but they are not peers. Similarly, the holder of a non-hereditary title may still belong to the peerage, as evidenced by the case of the Prince of Wales and of life peers. Peerages may be created by means of letters patent, but the granting of new hereditary peerages has dwindled, with only five new hereditary peerages granted since 1964.

Ranks and titles

The ranks of the Peerage are, in descending order of rank, duke, marquess, earl, viscount and baron;^[1] the female equivalents are duchess, marchioness, countess, viscountess and baroness respectively. In Scotland, "baron" is a feudal rank, and not one of the Peerage. The Scottish equivalent to the English barony is the "lordship of Parliament", the male holder thereof being known as a lord of Parliament.^[2]

Peerage dignities are created by the Sovereign by either writs of summons or letters patent. Under modern constitutional conventions, no peerage dignity would be created except upon the advice of the Prime Minister.

Many peers hold more than one hereditary title; for example, the same individual may be a duke, an earl, a viscount and a baron by virtue of different peerages. In this case, the peer's eldest son may use one of the father's subsidiary titles as a "courtesy title", but the son is not considered a peer.^[3]

Inheritance of titles

The mode of inheritance of an hereditary peerage is determined by the method of its creation. Titles may be created by writ of summons or by letters patent. The former is merely a summons of an individual to Parliament—it does not explicitly confer a peerage—and descent is always to heirs of the body, male and female. The latter method is used to explicitly create a peerage and name the dignity in question. Letters patent may state the course of descent; normally, only male heirs are allowed to succeed to the peerage. In all cases, only legitimate children may succeed to a title. Under Scottish law, an illegitimate child is legitimated by a future marriage of the parents. Under English law, which also applies to Irish and British peerages, a child is illegitimate if the parents are unmarried at the time of birth, and remains illegitimate even after a marriage between them. Thus, if the parents marry after the birth an illegitimate child may succeed to a Scottish peerage, but not an English, Irish or British one.

Generally, a peerage passes to the next holder on the death of the previous holder. However, Edward IV introduced a procedure known as a writ of acceleration, whereby it is possible for the eldest son of a peer with multiple titles to sit in the House of Lords by virtue of one of his father's subsidiary dignities.

A title becomes extinct when all possible heirs (as provided by the letters patent) have died out. A title becomes dormant if nobody has claimed the title, or if no claim has been satisfactorily proven. A title goes into abeyance if there is more than one person equally entitled to be the holder.

In the past, peerages were sometimes forfeit or attainted under Acts of Parliament, most often as the result of treason on the part of the holder. The blood of an attainted peer was considered "corrupted", consequently his descendants could not inherit the title. If all descendants of the attainted peer were to die out, however, then an heir from another branch of the family not affected by the attainder could take the title. The Forfeiture Act 1870 abolished corruption of blood; instead of losing the peerage, a peer convicted of treason would merely be disqualified from sitting in Parliament for the period of imprisonment.

The Titles Deprivation Act 1917 permitted the Crown to suspend peerages if their holders had fought against the United Kingdom during the First World War. Guilt was to be determined by a committee of the Privy Council; either House of Parliament could reject the committee's report within 40 days of its presentation. In 1919, King George V issued an Order-in-Council suspending the Dukedom of Albany (together with its subsidiary peerages, the Earldom of Clarence and the Barony of Arklow), the Dukedom of Cumberland and Teviotdale (along with the Earldom of Armagh) and the Viscountcy of Taaffe (along with the Barony of Ballymote). Under the Titles Deprivation Act, the successors to the peerages may petition the Crown for a reinstatement of the titles; so far, none of them have chosen to do so.

A peer may also disclaim an hereditary peerage under the Peerage Act 1963. To do so, the peer must deliver an instrument of disclaimer to the Lord Chancellor within 12 months of succeeding to the peerage, or, if under the age of 21 at the time of succession, within 12 months of becoming 21 years old. If, at the time of succession, the peer is a member of the House of Commons, then the instrument must be delivered within one month of succession; meanwhile, the peer may not sit or vote in the House of Commons. Prior to the House of Lords Act 1999, an hereditary peer could not disclaim a peerage after having applied for a writ of summons to Parliament; now, however, hereditary peers do not have the automatic right to a writ of summons to the House. Irish peerages may not be disclaimed. A peer who disclaims the peerage loses all titles, rights and privileges associated with the peerage; his wife is similarly affected. No further hereditary peerages may be conferred upon the person, but life peerages may be. The peerage remains without a holder until the death of the peer making the disclaimer, when it descends normally.

A title held by someone who becomes monarch is said to merge in the Crown and ceases to exist, for the Sovereign cannot hold a dignity from himself. The Dukedom of Cornwall and that of Rothesay, and the Earldom of Carrick, are special cases, which when not in use are said to lapse to the Crown: they are construed as existing, but held by no one, during such periods. These peerages are also special because they are never directly inherited. The Dukedom of Cornwall was held formerly by the eldest son of the King of England, and the Dukedom of Rothesay, the Earldom of Carrick, and certain non-peerage titles (Baron Renfrew, Lord of the Isles and Prince and Great Steward of Scotland) by the eldest son of the King of Scotland. Since those titles have been united, the dukedoms and associated subsidiary titles are held by the eldest son of the monarch. In Scotland, the title Duke of Rothesay is used for life. In England and Northern Ireland, the title Duke of Cornwall is used until the heir-apparent is created Prince of Wales. At the same time as the Principality is created, the Duke is also created Earl of Chester. The earldom is a special case, because it is not hereditary, instead revesting or merging in the Crown if the Prince succeeds to the Crown or predeceases the monarch.

The Dukedom of Cornwall is associated with the Duchy of Cornwall; the former is a peerage dignity, while the latter is an estate whose income goes to the Duke of Cornwall, or, when there is no duke, to the Sovereign. The only other Duchy in the United Kingdom is the Duchy of Lancaster, which is also an estate rather than a peerage dignity. The Dukedom of Lancaster merged in the Crown when Henry of Monmouth, Duke of Lancaster became King Henry V. Nonetheless, the Duchy of Lancaster still continues to exist, theoretically run by the Chancellor of the Duchy of Lancaster. Normally, however, the Chancellor does not exercise any actual duties related to the Duchy, so he is normally available as a Minister without Portfolio. The Duchy is the inherited property that belongs personally to the monarch, rather than to the Crown. Thus, while income from the Crown Estate is turned over to the Exchequer in return for a civil list payment, the income from the Duchy forms a part of the Privy Purse, the personal funds of the Sovereign.

Writs of summons

At the beginning of each new Parliament, each peer who has established his right to attend Parliament is issued a writ of summons. Without the writ, no peer may sit or vote in Parliament. Writs of summons generally follow the same form. Firstly, they set out the titles of the Sovereign, and then those of the recipient. Next, they note the date for Parliament's calling and the reason for its calling. This portion of the writ differs based on whether Parliament is at the time sitting, or prorogued, or dissolved. Then, after commanding the recipient to attend, the writ indicates that the Sovereign him or herself witnesses it. The form of writs issued while Parliament is dissolved is:

In the case of writs issued when Parliament is prorogued, the form of the first sentence of the second paragraph changes to:

In the case of writs issued during a session of Parliament, the form of the first sentence of the second paragraph changes to:

It is established precedent that the Sovereign may not deny writs of summons to qualified peers. In 1626, King Charles I ordered that the writ of summons of John Digby, 1st Earl of Bristol not be issued. Lord Bristol had been charged with treason, but was never tried. He complained to the House of Lords, which resolved that the denial of a writ to an eligible peer was without precedent and that the Sovereign should immediately issue a writ of summons, which did occur.

Another case to be considered is when writs of summons were issued to those who were not peers. In such cases, the individual who received the writ and took a seat in Parliament ipso facto became a peer. In fact, most ancient baronies are deemed to have been created merely by summoning an individual to Parliament, thereby making him a peer. Even if a writ of summons is issued, however, a peerage was not created if the recipient failed to take his seat in Parliament, for the writ commands the recipient to be present in Parliament "waiving all excuses". In Lord Abergavenny's Case (1610) 12 Co Rep 70, the House of Lords ruled that, for a peerage to be created, the recipient of the writ must "come to the parliament, and there sit, according to the commandment of the writ; for until that, the writ did not take its effect". Even if the writ was issued in error, the recipient became a peer, if he had taken his seat in Parliament. If the mistake was discovered prior to the taking of the seat, the Sovereign could issue a writ of supersedeas revoking the erroneous writ of summons. The writ of supersedeas has not been used in recent times; in the words of the late Lord Williams of Mostyn, "it certainly has not been translated into modern English". If the writ of supersedeas is not issued, and the recipient of the writ does take his seat in the House of Lords, the creation of the peerage cannot be reversed. It is, however, extremely doubtful whether any new peerages could be created in this manner since the adoption of the House of Lords Act 1999.

Peerages created by writ of summons are presumed to be inheritable only by the recipient's heirs of the body. The House of Lords has settled such a presumption in several cases, including Lord Grey's Case (1640) Cro Cas 601, the Clifton Barony Case (1673), the Vaux Peerage Case (1837) 5 Cl & Fin 526, the Braye Peerage Case (1839) 6 Cl & Fin 757 and the Hastings Peerage Case (1841) 8 Cl & Fin 144. The meaning of heir of the body is determined by common law. Essentially, descent is by the rules of male primogeniture, a mechanism whereby normally, male descendants of the peer take precedence over female descendants, with children representing their deceased ancestors, and wherein the senior line of descent always takes precedence over the junior line per each gender. These rules, however, are amended by the proviso whereby sisters (and their heirs) are considered co-heirs; seniority of the line is irrelevant when succession is through a female line. In other words, no woman inherits because she is older than her sisters. If all of the co-heirs but one die, then the surviving co-heir succeeds to the title. Otherwise, the title remains abeyant until the Sovereign "terminates" the abeyance in favour of one of the co-heirs. The termination of an abeyance is entirely at the discretion of the Crown.

A writ of acceleration is a type of writ of summons that enables the eldest son of a peer to attend the House of Lords using one of his father's subsidiary titles. The title is strictly not inherited by the eldest son, however; it remains vested in the father. A writ may only be granted if the title being accelerated is a subsidiary one, and not the main title, and if the beneficiary of the writ is the heir-apparent of the actual holder of the title. There have been a total of ninety-four writs of acceleration issued since Edward IV issued the first one, including four writs issued in the twentieth century. The only individual who recently sat in the House of Lords by writ of acceleration is Viscount Cranborne in 1992, through the Barony of Cecil which was actually being held by his father, the Marquess of Salisbury. (Viscount Cranborne succeeded to the marquessate on the death of his father in 2003.)

There are no Scottish peerages created by writ; neither can Scottish baronies go into abeyance, for Scots law does not hold sisters as equal heirs regardless of age. Furthermore, there is only one extant barony by writ in the Peerage of Ireland, that of La Poer, now held by the Marquess of Waterford. (Certain other baronies were originally created by writ but later confirmed by letters patent.)

Letters patent

More often, letters patent are used to create peerages. Letters patent must explicitly name the recipient of the title and specify the course of descent; the exact meaning of the term is determined by common law. Normally, the patent specifies the peer's heirs-male of the body as successors; in such a case, the rules of agnatic succession apply, meaning that succession is through the male line only. Some very old titles, like the Earldom of Arlington, may pass to heirs of the body (not just heirs-male), these follow the same rules of descent as do baronies by writ, and seem able to fall into abeyance as well. Many Scottish titles allow for passage to heirs-general of the body, in which case the rules of male primogeniture apply; they do not fall into abeyance, as under Scots law, sisters are not treated as equal co-heirs.

English and British letters patent that do not specify a course of descent are invalid, though the same is not true for the letters patent creating peers in the Peerage of Scotland. The House of Lords has ruled in certain cases that when the course of descent is not specified, or when the letters patent are lost, the title descends to heirs-male. It is possible for some patents to allow for succession by someone other than an heir-male. Several instances may be cited: the Barony of Nelson (to an elder brother and his heirs-male), the Earldom of Roberts (to a daughter and her heirs-male), the Barony of Amherst (to a nephew and his heirs-male) and the Dukedom of Dover (to a younger son and his heirs-male while the eldest son is still alive). In many cases, the peer in question had no sons, and the special grant was made to preclude an extinction of the peerage. But in all cases the course of descent specified in the patent must be known in common law. For instance, the Crown may not make a "shifting limitation" in the letters patent; in other words, the patent may not vest the peerage in an individual and then, based on the occurrence of some event other than death (such as succession to a higher title) shift the title to another person. The doctrine was established in the Buckhurst Peerage Case (1876) 2 App Cas 1, in which the House of Lords deemed invalid letters patent aimed to keep the Barony of Buckhurst separate from the Earldom of De La Warr. The patent stipulated that, if the holder of the barony ever inherited the earldom, then he would be deprived of the barony, which would instead pass to the next successor as if the deprived holder died without issue.

Also, it is necessary for English patents to include limitation "of the body", as in "heirs-male of the body". The limitation indicates that only lineal descendants of the original peer may succeed to the peerage. In some very rare instances, the limitation was left out. In the Devon Peerage Case (1831) 2 Dow & Cl 200, the House of Lords permitted an heir who was a collateral descendant of the original peer to take his seat. The precedent, however, was reversed in 1859, when the House of Lords decided in the Wiltes Peerage Case (1869) LR 4 HL 26 that a patent that did not include the words "of the body" would be held void.

Letters patent are not absolute; they may be amended or revoked by Act of Parliament. For example, Parliament amended the letters patent creating the Dukedom of Marlborough in 1706. The patent originally provided that the dukedom could be inherited by the heirs-male of the body of the first duke, Captain-General Sir John Churchill. One son had died in infancy and the other died in 1703 from smallpox. Under Parliament's amendment to the patent, designed to allow the famous general's honour to survive after his death, the dukedom was allowed to pass to the Duke's daughters, the Lady Henrietta, the Countess of Sunderland, the Countess of Bridgewater and the Lady Mary, and their heirs-male, and thereafter "to all and every other the issue male and female, lineally descending of or from the said Duke of Marlborough, in such manner and for such estate as the same are before limited to the before-mentioned issue of the said Duke, it being intended that the said honours shall continue, remain, and be invested in all the issue of the said Duke, so long as any such issue male or female shall continue, and be held by them severally and successively in manner and form aforesaid, the elder and the descendants of every elder issue to be preferred before the younger of such issue."

The number of hereditary peers

The Peerage used to be an extremely small and exclusive institution. When Henry VII called his first Parliament in the fifteenth century, there were only 29 peers. The Tudor rulers made very few creations of peerages; at the death of Queen Elizabeth, there were just 59 peers in the realm.

Thereafter, however, the Peerage experienced a dramatic swelling due to the generosity of the Stuart monarchs. By the time of Queen Anne's death, there were 168 peers. At one point, in order to obtain a majority in the House of Lords in her favour, Queen Anne created 12 peers in one day—more than Elizabeth I had created during an entire reign that had lasted for nearly half of a century.

Several peers were alarmed at the rapid increase in the size of the Peerage, fearing that their individual importance and power would decrease as the number of Peers increased. Therefore, in 1719, a bill was introduced in the House of Lords to place a limitation on the Crown's power. It sought to permit no more than six new creations, and thereafter one new creation for each other title that became extinct. It did allow, however, the Crown to bestow titles on members of the Royal Family without any such limitation. The Bill was rejected in its final stage in the Lords, but it was passed when it was re-introduced in the next year. Nonetheless, the House of Commons rejected the bill 269 to 177.

George III was especially profuse with the creation of titles, mainly due to the desire of some of his Prime Ministers to obtain a majority in the House of Lords. During his 12 years in power, Lord North had about 30 new peerages created. During William Pitt the Younger's 17-year tenure, over 140 new peerages had been awarded.

In 1801, Parliament did impose a restriction on the creation of peerages, but only in the Peerage of Ireland. Under the Act of Union 1800 combining Ireland and Great Britain into the United Kingdom in 1801, until the number of Irish peers (excluding those who also hold British or English peerages) was reduced to one-hundred, the Sovereign could not create a new Irish peerage until three previous titles became extinct. After the number of Irish peers reached 100, the Sovereign could create new titles as often as may have been necessary to maintain that number.

Still, there remained no restrictions on creations in the Peerage of the United Kingdom. Thus, the Peerage continued to swell through the 19th century. In the 20th century, there were even more creations since Prime Ministers were eager to secure majorities in the House of Lords. Peerages were handed out not to honour the recipient but to give him a seat in the House of Lords.

However, with the accession of the Labour government of Harold Wilson in 1964, the practice of granting hereditary peerages effectively stopped. Since 1964, only five hereditary peerages have been granted—two (the Dukedom of York and the Earldom of Wessex) for members of the Royal Family, and three additional creations (the Viscountcy of Whitelaw, the Viscountcy of Tonypandy and the Earldom of Stockton) under Margaret Thatcher's government in the mid-1980s. The two Viscounts died without heirs, and their titles are now extinct; and Harold Macmillan, 1st Earl of Stockton received the Earldom often awarded to former Prime Ministers when they retire from the House of Commons.

See also

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• List of hereditary peers elected to sit in the House of Lords under the House of Lords Act 1999
• Substantive title
• Writ of acceleration

Notes

References

• Blackstone, W. (1765). Commentaries on the Laws of England. Oxford: Clarendon Press.
• Cox, N. (1997). "The British Peerage: The Legal Standing of the Peerage and Baronetage in the overseas realms of the Crown with particular reference to New Zealand." New Zealand Universities Law Review. (Vol. 17, no. 4, pp. 379–401).
• Farnborough, T. E. May, 1st Baron. (1896). Constitutional History of England since the Accession of George the Third, 11th ed. London: Longmans, Green and Co.
• HL 106-I. (1998–1999).
• House of Lords Act 1999. (c. 34). London: Her Majesty's Stationery Office.
• House of Lords Debates (1998–1999). Vol. 600, col. 1156.
• McCallion, P. (2003). Letter to The Earl Alexander of Tunis.
• "Peerage." (1911). Encyclopædia Britannica, 11th ed. London: Cambridge University Press.
• Peerage Act 1963. (1963 c. 48). London: Her Majesty's Stationery Office.
• Titles Deprivation Act 1917. (7 & 8 George 5 c 47). London: Her Majesty's Stationery Office.

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