Abeyance of Peerages and proposed changes to the House of Lords

[malcolm davies]

As readers of this blog may know, there is a bill before Parliament to abolish the right of hereditary peers to sit: House of Lords(Hereditay Peers) Bill 2024(HP Bill).

This post looks at what effect that bill may have on the practice of the Crown terminating an abeyance in favour of a co heir.

Before looking at the history of abeyances, it is necessary to state a few principles.If you are familiar with those principles, please bear with me.

First, a peerage is an incorporeal hereditament, that is to say a species of property which originally derived from land. Corporeal heriditaments consist of land and buildings ,incorporeal heriditaments are intangible objects such as easments, rights of way etc.

As an incorporeal heriditament its descent is governed by the rules relating to the descent of real property. However, unlike real property a peerage is inalienable (ie it cannot be sold, nor resumed by the Crown).It can only be deprived by Parliament(formerly it could be deprived by attainder).

The forms of descent of real property are:

To A and his heirs which conveys an estate in fee simple.

To A and his heirs male which conveys an estate to male heirs, but not necessarily descended from A.

To A and the heirs male of his body which conveys an estate to the male heirs of A, known as an estate in tail male.

Grants of peerages are made by charters or letters patent. However in the early days of parliament, persons were summoned to the House of Lords and if they obeyed the summons recognised as peers.

Very much later the House of Lords accepted that the issue of a summons followed by the person summoned sitting ,created a peerage in the degree of baron in an estate of fee simple.

Now estates in fee simple descend to males in order of birth. But women were in a different position as property they held or inherited became the property of their husbands. This lead to the development of uses whereby the estate was conveyed to A to the use of B,where A had to recognise the rights of B over the property. Uses proliferated as they became an early form of tax avoidance. They survived notwithstanding attempts to abolish them and now form the basis of the law of trusts.

With peerages however, those peerages which had a remainder in fee simple did not descend, in the absence of male heirs, to females in order of birth. Instead they descended to the females as a group known as co heirs. That meant that the dignity was inchoate and could not be used by any of the heirs until there was one co heir left who inherited the dignity.

Up until 1625 it was thought that a peerage which went into abeyance reverted to the Crown, but in 1641 the first termination of an abeyance by the Crown took place in the case of the barony of Darcy. There were other cases of termination in the 17^th & 18^th centuries but the practice of petitioning the Crown increasedfrom1838 onwards and the petitions were usually accepted. This time is referred to as the golden age of peerage lawyers(I would love to have had a practice in peerage law if I was alive at that time).

As some abeyances were being terminated after many years(for example in the barony of Botetourt the abeyance was 358 years),this practice caused considerable unease,as the peers who had abeyances terminated in their favour not only had a seat in the House of Lords but took precedence from the date of the original creation of the title.

Before proceeding further it should be noted that when an abeyance is terminated, the descent of the title is permanently altered. It descends thereafter to descendants of the person in whose favour the abeyance was terminated. In the absence of male heirs, it goes into co heirship, but only between descendants of the person in whose favour the abeyance was terminated.

In 1926 a Select Committee of the House of Lords was set up to consider the matter. The committee noted the following factors should be considered in cases where termination was sought:-

1.It should not be assumed that as between co heirs, each had an interest in the abeyance being terminated, and some might prefer it to be continued. This might include co heirs who had a better claim than the petitioner.

2.The number of co heirs usually means that the each only possess a fraction of the dignity.

3.Some co heirs might be deterred from petitioning because of the heavy expense involved.

4.The recognition of merit in the petitioning individual( who might otherwise merit a peerage) is not an important factor in whether an abeyance should be terminated, particularly if it of long duration.

5.The termination of an abeyance effects an ouster of the rights of the co heirs and selects a person who may have no particular claim to be preferred and possess none of the lands which lead to the summons to Parliament being issued in the first place

The committee also noted that in some cases there had been arrangements between heirs as to the petition and whilst there was no corruption involved, any arrangement between co heirs was undesirable. It further noted that because peerage law is in a large part determined by custom and usage, they were of the view that the standard of investigation and quality of evidence in regard to petitions left something to be desired.

The Select Committee then made 5 recommendations as to future petitions. They were:-

1.No abeyance should be terminated where the abeyance took place more than 100 years before presentation of the petition.

2.No petition should be allowed where the co heir had a lesser share than one third of the dignity.

3.Other than for petitions already presented, no petition which did not comply with requirements 1 & 2 should be investigated further.

4.Where the Committee was satisfied that the arrangements between co heirs was tainted with impropriety, the petition should proceed no further.

5.The character, position,services or fitness of the petitioner should be considered in the same way as if a peerage were to be conferred.

6.The like considerations should apply to petitions to restore a person in blood, in the case of a title deprived by attainder or other means.

The only work on peerage law since the Select Committee’s report Peerage Law R P Gadd 1985 says that “these recommendations have been followed in calling out abeyances since 1927”.

However that statement ignores that the Select Committee’s report was not adopted without some debate in the House of Lords

The debate on the Select Committee report took place on 31 May 1927 and the link to it is here:

      https://hansard.parliament.uk/lords/1927-05-31/debates/983bdcc1-e768-4cca-babd-dff706b2af45/PeeragesInAbeyance

As readers can see, objection was taken to recommendation 2 on the basis that there might be more than 3 daughters of a peer when the peerage went into abeyance(in fact this has happened subsequently in the case of the Barony of Howard de Walden).Also objection was taken to recommendation 5 on the basis that an otherwise meriting co heir might have had no opportunity to demonstrate service to the nation.

Ultimately motions to alter the adoption of the Select Committee report were withdrawn, but only after the Lord Chancellor(Lord Cranworth) said this:

“I want to say this quite definitely. The rule simply says that regard shall be had to those four matters. That means they should all be considered and investigated; but if it were found that any particular Petitioner for the revival of a Peerage satisfied some but not all of those qualifications, it would be quite open to the Prime Minister of the day to recommend to His Majesty that the Peerage should be called out in favour of that Petitioner.”

Recommendation 2 was not applied to the abeyance of the Howard de Walden barony when called out of abeyance in 2004,notwithstanding that the Petitioner represented one fourth of the dignity, not one third or more.

Now to the HP Bill. It says in clause 2:-

 2 Claims to hereditary peerages

(1) The jurisdiction of the House of Lords in relation to claims to hereditary

peerages is abolished.

(2) For the purposes of this section a claim to a hereditary peerage includes a

claim to a hereditary peerage in abeyance.

Accordingly the Crown may now determine an abeyance without regard to the House of Lords, including the recommendations of the Select Committee.

What will happen now is that the Crown will no doubt take into account the reasons why the Select Committee came to its recommendations, but will not apply those recommendations if the only reason is that the petition does not comply with requirements 1 & 2 as a matter of form. What will matter is the substance of a petition, and it is unlikely that the claim of a co heir who is a child or grandchild of the holder at the time of the abeyance will be rejected on that ground, even if non compliant with requirements 1 &2.If the petition is outside the 100 year limit, a good explanation will be required as to why the Crown should ignore that requirement. One reason which springs to mind nowadays is the availability of DNA evidence as to paternity, which may not be apparent until the 100 year period is over.

If an abeyance is not terminated, it continues and the peerage does not become extinct. Extinction only occurs when all the co heirs are dead. Of course if prior to that one co heir is left, the barony emerge from abeyance without the need for termination

 

[dpth...@gmail.com]

"Before proceeding further it should be noted that when an abeyance is terminated, the descent of the title is permanently altered. It descends thereafter to descendants of the person in whose favour the abeyance was terminated. In the absence of male heirs, it goes into co heirship, but only between descendants of the person in whose favour the abeyance was terminated."

I assume you mean this to apply only when the person in whose favor the abeyance was terminated actually had descendants. For example, the Clinton abeyance was terminated in 1721 for Hugh Fortescue, but on his death without issue the title went back into abeyance between his sister Margaret and the other co-heir, Lady Orford, who on Margaret's death became sole heir to the title and succeeded to it.

[malcolm davies]

dpth,

        Correct.

[Henry W]

Whilst I agree that from a constitutional standpoint, the Crown will no longer be as restricted by the 1926 recommendations that are now in place, I think that there will simply be no appetite on the part of the Crown to terminate abeyances at all.  Certainly I doubt there would be political will from the current Labour government to recommend a termination, and even if constitutionally it were placed in the sole prerogative of the Crown as to whether to terminate an abeyance (i.e. just like the awarding of some honours, such as the KG, KT, or RVO appointments), I don't think King Charles III would be at all interested in doing so. If he won't give his own brother a Dukedom, do we really think he would get involved with a Barony by Writ abeyant for a few decades?

The only exception might be Baron Willoughby de Eresby due to its connection with the LGC, which will become abeyant on the death of the current Baroness.

[dpth...@gmail.com]

I agree with your thoughts, Henry.

And no one should miss these old baronies, anyway, which are kept alive by this doctrine of "abeyance" and "co-heirs" which is largely a legal fiction, I think. Whatever the courts made of it later, I don't think anyone at the time imagined that just because a minor baron answered a summons to attend Parliament an immortal barony which can never die was created. Witness the multiple cases in which someone received a summons and attended, but even his own sons and grandsons never attended, and never claimed any titles.

[malcolm davies]

dpth,

        What you have said is the historian's view.Your soul mate is the late L G Pine,a barrister, antiquary and editor of Burke's Peerage.He was particularly annoyed that many titles called out of abeyance never had any real substance and that it was grossly unfair to those peers whose entitlement to their titles was undoubted,as the baronies by writ took precedence over them by reason of the date of creation.See Tales of the British Aristocracy 1956

  The problem is that it is not the legal position.And there are some titles which are undoubtedly valid.If the doctrine of co heirship did not exist and had women had equal rights,the titles would have descended regularly to the eldest female heir.

Here is a table of baronies in abeyance which straddle the time period recommended by the Select Committee(insofar as there are some missing,would someone please correct the table)

Title                                                                 Date Abeyant                     Number  of co heirs

Audley                                                            1997                                     3

Bergavenny                                                   1938                                     2

Botetourt                                                       1984                                     4

Botreaux                                                        1960                                     4

Clifford                                                           1858                                    2

Conyers                                                          2013                                    2

Fauconberg                                                   2013                                    2

Ferrers of Chartley                                       1855                                    ?

Furnivall                                                         1968                                    2

Grey de Ruthin                                              1963                                    7

Hastings                                                        1960                                    4

North                                                              1941                                    5

Stanley                                                           1960                                    4

Note that the baronies of Bergavenny,Fauconberg & Conyers, and Furnivall may emerge from abeyance without the intervention of the Crown.

As can be seen,most of the abeyances are not currently too old to be terminated,nor for the most part do the number of co heirs cause a problem.

If termination of an abeyance causes problems with the current government,then the Crown may choose to wait without impairing the ability of terminating the abeyances later.

HenryW-as to the Lord Great Chamberlainship,the Willoughby share of the office does  not arise until the reign of George VII,so it is probably sensible to wait to see the number of co heirs then.

[Paul Theroff]

Not only L G Pine. J H Round wrote at length about the silly pretensions of abeyances and co-heirship and baronies by writ, and he was one of the most learned peerage writers.

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D. P. Theroff

[dpth...@gmail.com]

One place in which Round discusses this is in "Peerage and Pedigree", Volume 1, especially in the chapter called "The Muddle of the Law", which I now have found online, in case anyone wants to read it. (I have a hardbound edition.)

See

https://archive.org/details/peeragepedigrees01rounuoft/page/102/mode/2up

at p. 103ff.

[malcolm davies]

dpth,

        Thank you for this.

  At the heart of the problem is the different view of "authority" in history and law. In history,authority is inherently capable of challenge.In law it is not,because we rely on a system of  precedent which is binding(there are exceptions of course,but they are not relevant to this discussion). Thus it is irrelevant, in respect of a precedent that has been accepted for a long time, that its origins were in error.The only way such an error can be corrected is for the Court to give leave to the matter being re argued.This would cause special difficulties in peerage cases,as it would usually effect a deprivation of a title, which has previously been accepted at law.

  The lawyer's objection to refusing to terminate a peerage which has gone into abeyance more than once is precisely that, and that insofar as objection is taken to termination on the basis that the whole doctrine of abeyance is legally in error, that is attempting to achieve by a sidewind what cannot be achieved in law.

[dpth...@gmail.com]

I don't disagree with what you say. I am a lawyer myself, and I know that settled law is the law. I just think that since the law was probably incorrectly decided and the whole thing about these baronies is a fantasy, no one should be sad if they never get called out of abeyance again.  :)