The Times: Ladies first in Tory plan to abolish primogeniture
Richard R
Daughters may take hereditary peerages under new bill
Downing Street is drawing up plans to end the centuries-old practice of aristocrats’ titles being inherited only by male descendants. Under the proposal to abolish male primogeniture, first-born daughters would take on their father’s hereditary peerage or baronetcy instead of younger sons.
...Male primogeniture was abolished for the British monarchy in 2011 under a reform by the coalition government, allowing first-born daughters to assume the throne. At the time, peers prevented the reform from applying to them....
...The prime minister has publicly backed scrapping male inheritance, though it could raise hackles among Tory traditionalists.
...Senior civil servants, however, fear that pushing a bill through parliament could expose other problems, including the role of the 92 hereditary peers. ...the issue was “complex”. As recently as March last year, the government refused to give time to a bill by Philip Davies, the Tory backbencher, to scrap male primogeniture.
https://www.thetimes.co.uk/article/ladies-first-in-tory-plan-to-abolish-primogeniture-3qznb7j5l
Henry W
S. Jones
Henry W
sarac...@googlemail.com
S. Jones
malcolm davies
marquess
Richard R
"Any plan to make inherited titles, peers and baronetcies, inheritable by either sex (report, Feb 20) must also prevent the accretion of multiple titles by the marriages of eldest heirs of one sex to eldest heirs of the other sex, thus breeding in their eldest child one who inherits both titles...."
"...does it not occur to [Charlotte Carew Pole] that the real wrong is that either child should inherit a title bestowed by Charles I in 1628? Hereditary titles, except perhaps for a limited number of royals in line of succession, have no place in modern society...."
"...Sir Richard Carew Pole, had two older sisters: he inherited the baronetcy only because he was a son. Why should Mrs Carew Pole’s daughter be entitled to inherit the title in preference to her great-aunts or their heirs..."
"...One hopes your enthusiasm for reform of male primogeniture laws does not extend to the scrapping of aristocratic titles. For where would we be without such adornments to English literature..."
S. Jones
Henry W
malcolm davies
www.maltagenealogy.com
marquess
Richard R
"... who should inherit a title (letters, Feb 22) could be solved at a stroke by abolishing all hereditary titles. Simultaneously, the creation of new titles could be halted. Those whose achievements deserve public acknowledgement do not need titles for us to know who they are."
"...The grandmother of ...Lord Berners was a baroness in her own right. Her son ... commented rather cynically that his mother 'was indeed a baroness in her own right, but everything else in her own wrong'."
Jonathan
sven_me...@web.de
S. Jones
Richard R
"...widening succession to all children would mean that titles would be far less likely to die out. In pre-Union Scotland the general approach was that the grant of a title honoured the whole family, not just the individual, and as a result succession rules were widely drafted. This has kept very old Scottish peerages such as those of Sutherland and Mar alive. The stricter English rule of peerage inheritance limits the chances of perpetual succession, and ... kept the numbers of dignities in check. The extinction of many of the great dukedoms points to the success of this approach.
Opening succession to all children would reverse the implicit effect of ... retirement, and ultimately expiry.
...it would be easier to revive the pre-Union Scottish custom of petitioning the crown for a regrant of the title to a new set of heirs. Otherwise, if succession is widened for all titles, they will be maintained in perpetuity... disconnected from the reasons for their creation, offering entertainment to the idly curious and raising questions about why they continue to exist at all."
George
Anyone who has serious expertise in the relevant law and history knows the unavoidable flaws. Please contact your MPs to draw their attention to the flaws. I am an historian, lawyer, genealogist, and expert on the peerage and constitutional law, as are other readers of this group.
The proposal is a legally misconceived and historically destructive idea, and needs to be buried. It should not be achieved by Act of Parliament.
(1) Titles have always been able to descend through female lines, and the only occasions when they do not do so are on account of an exception individually stipulated by letters patent. That is because the laws of inheritance exist at common law.
(2) Since common-law
rules of inheritance govern the inheritance of the Crown (inter alia)
they are properly beyond the remit of statutory intervention, although there is
such poor judicial and parliamentary understanding of the constitution these
days that the principles are routinely ignored.
Let them not be ignored on this occasion. It is a fundamental principle of our
hereditary monarchy that the Crown’s descent as a corporation sole is immediate
and indefeasible, and that neither the monarch nor even the
Monarch-in-Parliament may choose who the monarch is. For that reason (and despite the Succession
of the Crown Act 2013, which did not purport to affect the common-law rules in
general) it is an unalterable part of the common law—the ancient Anglo-Saxon
law of the land which exists independently of the monarch and, unlike statute
and equity, does not derive from the monarch.
That is why the monarch promises to uphold the common law in the
Coronation Oath.
(3) It is plainly
not in the realm’s interest for Parliament to be capable of choosing who the
monarch is. Not only would it be a
failure to uphold the part of the common law on which any crowned monarch
relies for his or her inheritance in the first place; it would create an
effective circularity in ultimate authority, as if the U.K. were a republic.
(4) It is,
furthermore, not proper for the Monarch-in-Parliament to amend by Act of
Parliament historic letters patent from the Crown. An attempt to do so would be legally
confused, because it would involve the Monarch’s enacting a bill (with
Parliament’s advice and consent) in explicit contradiction to the Crown’s own
letters patent which, coming from the Crown, are not questionable in Her
Majesty’s courts, the very place where statute is interpreted. There would be two rival sources of
authority, both claiming the legal authority of the Crown. It is up to the Monarch who his or her peers
are.
(5) Were it possible
to alter letters patent en masse by means of an Act of Parliament—which I do
not think is technically possible because it is not the job of the courts
(whose remit it would be to interpret the statute) to confer, or pronounce on
the descent of, an hereditary dignity enjoyed by virtue of letters patent (contradicting
the statute) from the Crown—the changes would mess up all the genealogical
patterns of inheritance and create rival claims to titles. Every title which ostensibly departed from
its proper succession would acquire a legitimist heir. The sole outcome of such improper changes
would be the splintering and destruction of the Peerage as a living
tradition. The proposed change is
plainly immaterial to the advancement of the rights of women. Hereditary peerages confer neither wealth nor
legislative power, and are still available by singular accident of birth. The changes may advance merely the
high-society status of a few dozen aristocratic women over the coming years, at
the expense of historical continuity and the coherency of the laws of
inheritance and of the constitution.
(6) Since the
Monarch-in-Parliament cannot bind itself, any Act of Parliament purporting to
change successions to hereditary dignities by amending letters patent en masse
would lose all purported force if it were repealed. Accordingly, any purported inheritances under
the Act would be conditional on the continued (purported) application of the
Act. The purported heirs would therefore
lose their purported status upon repeal of the Act, and it would be clear that
they never properly held their titles from the Crown. It would become clear that it is not the
place of Parliament to tell the monarch who his or her peers are.
(7) The proposal
would detach titles from families in the agnatic sense. Such detachment is historically
destructive. We may be more familiar
nowadays with thinking of ‘families’ in the nuclear or conjugal sense, but
hereditary dignities logically require a longer view, so that, for example, the
title Baron Stourton (recently discussed) is a dignity belonging to the
Stourton family. The Stourton barony
happens to be one whose remainder is limited to heirs male by letters patent;
but a barony created by writ, whose descent is by default to heirs general of
the body lawfully begotten within the meaning of common-law rules of inheritance, would remain
with a family so long as it continued to represent itself, and then pass into a
new family (and new surname) when the original family’s title-holder produces
only female-line descendants. The successive
heads of the new family would be the lineal representatives of the title-holder
whose agnatic descendants went extinct.
That is how heraldic quarterings work.
The present proposal would destroy the notion of a dynasty, the doctrine of
lineal representation, and the application of the carefully evolved rules of
heraldry. We do not need to see these
changes.
(8) The arguments
based on "discrimination" are misconceived and palpably absurd. Whenever any title is inherited, the
inheritance "discriminates" against every other person then living on
the planet. Any daughters of the last
holder of a title are unable to inherit the title for exactly the same reason
as I am not: neither of us meet the requirements of the remainder.
The only conclusion is that our legislators should do
nothing, as they cannot actually achieve anything either legally or
culturally. Historic letters patents were
historic gifts, and they belong to their time and place unamended by us: the fact
that their legacy reverberates down the generations, following a particular historically
defined genealogical route, so as to make an heir living today a lord or lady, can
serve as a reminder of our history. We
gain nothing by pretending that we can amend the genealogical routes
historically chosen (which, by default, have never excluded women). We might also remember that peeresses have
always been accorded the rank and style of a peer: for every married male peer
there is a peeress of equal status in the order of precedence.
Petitions to the Crown for a variation to a remainder could raise a few difficulties; it would be usual to grant a new title and let the previous one go extinct in time. These options are already available, and no legislation is required. Similarly, where a peerage is to go extinct for failure of heirs male even though the putative last title-holder has female-line descendants, a new title could be created with the precedence of the old and a different remainder. It would be legally consistent, and not mess with our heritage and law. No doubt this suggestion will be ignored because we have a decades-old public policy of encouraging the demise of the hereditary peerage, and I for one think that this latest proposal is in keeping with that policy. The real way to change the peerage’s remainders would be to revive the peerage with new creations: that is precisely how the peerage’s remainders largely shifted, for example, from ‘heirs general’ (which permits female inheritance) to ‘heirs male’ (which does not).
I am aware that the Succession of the Crown Act 2013 renders the matter, to an extent, an effective fait accompli in respect of the Crown; but I note that the Act, while being unconstitutional because the Monarch-in-Parliament is not supposed to amend the succession, does at least refrain from attempting to override the common law in general. The present proposal, on the other hand, appears to seek to alter the underlying common law, the relevant part of which is properly outside the monarch’s jurisdiction to alter. The changes, while technically impossible to achieve by statute, would also be reversible by repeal, and therefore temporary as well as toothless.
I am not sure why S. Jones considers that a statute purporting to affect the Crown’s descent is irreconcilable with the other rules of inheritance which it did not purport to affect. Statute and common law are generally incapable of being irreconcilable.
Mark Jennings
Anyone who has serious expertise in the relevant law and history knows the unavoidable flaws. Please contact your MPs to draw their attention to the flaws. I am an historian, lawyer, genealogist, and expert on the peerage and constitutional law, as are other readers of this group.
The proposal is a legally misconceived and historically destructive idea, and needs to be buried. It should not be achieved by Act of Parliament.
(1) Titles have always been able to descend through female lines, and the only occasions when they do not do so are on account of an exception individually stipulated by letters patent. That is because the laws of inheritance exist at common law.
(2) Since common-law rules of inheritance govern the inheritance of the Crown (inter alia) they are properly beyond the remit of statutory intervention, although there is such poor judicial and parliamentary understanding of the constitution these days that the principles are routinely ignored. Let them not be ignored on this occasion. It is a fundamental principle of our hereditary monarchy that the Crown’s descent as a corporation sole is immediate and indefeasible, and that neither the monarch nor even the Monarch-in-Parliament may choose who the monarch is. For that reason (and despite the Succession of the Crown Act 2013, which did not purport to affect the common-law rules in general) it is an unalterable part of the common law—the ancient Anglo-Saxon law of the land which exists independently of the monarch and, unlike statute and equity, does not derive from the monarch. That is why the monarch promises to uphold the common law in the Coronation Oath.
(3) It is plainly not in the realm’s interest for Parliament to be capable of choosing who the monarch is. Not only would it be a failure to uphold the part of the common law on which any crowned monarch relies for his or her inheritance in the first place; it would create an effective circularity in ultimate authority, as if the U.K. were a republic.
