Chapter XXIII Peerage Dignities
The Dignity of Earl— Of Baron— The Parliament of 1295— Landed Qualifications— Creation of the Title Duke of Cornwall— The Title of Marquis— The Premier Baron of England— The Peerage of Scotland— Scottish remainders— Daughter Inherits in her own right— Determination of an Abeyance— The Right to Create Peers of Ireland— Rights and Privileges of a Peeress— The Daughters of Peers— Anomalies of the English Scale of Precedence.
Although the name of the dignity of Earl is derived from a Saxon word, the dignity itself, like all others, is more Norman than Saxon in its character. At the period of the Conquest, and whilst the Norman dynasty was on the throne, there were a number of people who bore this title. At that time and for long afterwards, certainly well into the Plantagenet period, an Earl within his earldom was little short of a petty sovereign. Issues of justice and many other rights of regality were in his hands, and he occupied a position very much akin to a viceroy for the King, seeing that what he did he did in his own name and as Earl, or “comes,” of the County. The High Sheriff was the “vice-comes.” Some of the earldoms had more extensive rights of regality than others, some were actual palatinates, and all earldoms originally were honours in fee heritable by the heir-general. Earldoms had a territorial nature, and the Earl took his “third penny” in the issues of the Courts in his earldom.
The only other dignity at that period was that of Baron, and just as the Earls of to-day have little in common save dignity and title with the Earls of the past, so the Barons originally were very unlike the latest creations of modern Prime Ministers in the name of the King. At the Norman Conquest, and for long afterwards, the Barons, an indeterminate number, were those who held their land in barony.
It is a matter of much uncertainty at what date Parliament came into being. The word goes back to a much earlier period, and is used concerning a variety of meetings which are now generally regarded as meetings of different Councils and not of Parliament, but historians are agreed that whether or not any earlier meetings can be properly described as Parliaments, the Parliament of 1295 was properly and fully constituted in all its elements. To this Parliament all those who were personally summoned by the King in their own names and were not nominated or elected by other people are Peers, and of these Peers those who are not described as Earls are Barons. It should, however, be noted that Bishops and Abbots were summoned by right of the offices they held, and there are certain other officials who were summoned also because of their offices and could be distinguished from the Barons and Earls. There is no shadow of doubt that the reason for the summoning of the Barons was the fact that they were great subjects and important because of their ownership of land. It was landowners who had to provide the military services for the country, and Parliament was chiefly concerned, not in law-making, but in authorising and consulting as to military expeditions, or in providing the subsidies necessary for these expeditions, and the other services of the Crown. In addition to this Peers exercised some of the judicial functions of the Crown. But law-making was done by the King and his Council until a later period. The landed qualifications which justified the summoning of a man to Parliament as a Baron usually descended to his heir and similarly justified the summoning of that heir; and in that way, but without any intention to that end, the right of summons and the right of peerage became hereditary. Originally it had been arbitrary and at the discretion of the Crown. It was not until the reign of Edward IV. that the hereditary peerage character of a barony was fully recognised, and with that recognition came the divorce of the territorial idea from the right of peerage. Like ancient earldoms, ancient baronies were honours in fee heritable by the heirs general. Save that William the Conqueror was Sovereign Lord of the Duchy of Normandy and as such Duke, the dignity of duke did not exist in England until 1337, when Edward the Black Prince was created Duke of Cornwall with remainder to his heirs the eldest sons of the Kings of England. That was the creation of the title now enjoyed by the Prince of Wales, but this Duchy of Cornwall and the Duchy of Lancaster are really Duchies as distinguished from the Dukedoms enjoyed by other people having the designation of Duke.
The title of Marquis dates from 1386, when Richard II. created Robert de Vere Marquis of Dublin; and the title of Viscount from 1440, when the Viscounty of Beaumont was created. The first Barony by Letters Patent was created in 1387, but the oldest surviving barony by patent now in existence dates from 1448, when Sir John Stourton was created Baron and Lord Stourton of Stourton, co. Wilts. The present Lord Mowbray, Segrave and Stourton, who has inherited the barony of Stourton, also claims, as Lord Mowbray, to be the premier baron of England although the barony of Mowbray is placed on the roll of precedence after the baronies of Le Despenser and De Ros. Although earldoms were granted by charters from the earliest period, because, attached to the earldom, were also material rights which needed to be conveyed, patents did not come into use for baronies until it was desired to limit the succession of the peerage to the heirs male of the body of the grantee, which is a limitation and a less heirship than is comprised in the enjoyment of an honour in fee simple. Privilege of peerage with all it entails has been a slow growth of accretion; and save for place and precedence and the right of any peer or peeress to be tried in the House of Lords, and the now limited and threatened right of peers to legislate, little of privilege of peerage remains.
The peerage of Scotland is very similar to that of England, and, before the Union, the principal difference between the two countries was the persistency with which the Scottish peerage remained attached to the land. Until a late date a patent creating a Scottish peerage erected certain lands into a barony or earldom as the case might be, and entailed those lands with the dignity. The difference arising from this form of procedure was more than counterbalanced by the recognised and constantly-adopted procedure of resigning a Scottish inheritance into the hands of the Crown, and then obtaining what is known as a “Novodamus,” with either the same or different limitations.
The many Scottish remainders, which are quite unknown to English peerage law, are all a consequence of this territorial nature of a Scottish peerage. One of the chief differences at the present time between an English and a Scottish peerage is to be found in those which are heritable by females. Unless governed by special remainder contained in the instrument of creation, a Scottish peerage, which in the event of failure of a male heir devolves upon a female heir, differs from an English one in its manner of descent. In Scotland the elder daughter inherits as of right, standing in the line of heirship next after her youngest brother and before any uncle or a younger sister. On the other hand, such an inheritance is only known by virtue of a special remainder in England. All Baronies by writ are Baronies in fee in England, and heritable by the heir general, which means that they can if necessary devolve upon females. If the only child of a peer having such a peerage be a daughter she inherits in her own right, but if his issue is two daughters, then the peerage falls into abeyance between them, because under the law of England there is no seniority amongst daughters, and as both of them cannot enjoy one single peerage, neither of them has it, and it remains in abeyance until the Crown interferes or until by the natural course of events one line becomes extinguished by the extinction of all issue of the one daughter, when the peerage then at once devolves upon the heir of the other. Sometimes an abeyance will last several hundred years, sometimes it may end with the lapse of one or two; but at any time during the continuance of an abeyance the Crown may, at its entire pleasure, signify that any co-heir shall enjoy the peerage. This is what is termed the determination of an abeyance, and this is effected by the issue of a writ of summons to Parliament if the co-heir be a male or by the issue of letters patent in the case of a lady. The co-heir in whose favour the abeyance is determined then at once enjoys the peerage with the same designation and precedence as those who have held it hitherto, and his or her heir succeeds in due course.
Although there is one judgment to the contrary, it is now pretty universally admitted that there is no such thing as an Irish Barony by writ. With the union of England and Scotland, no further peerages of either country were created, and subsequent peerages were either of Great Britain or of Ireland; and it has been already judicially decided by the House of Lords that the power to create a Scottish peerage does not now exist in the Crown. There is no similar judgment in relation to a peerage of England, but the fact is that no attempt has since been made to create one, and though the point up to the present time still has to be decided, it is certainly a matter for argument whether or not such a right remains. Since the union of Great Britain with Ireland no further peerages of Great Britain or of England have been created, but the right to create peers of Ireland was specifically retained under certain conditions and has been constantly taken advantage of. Other peerages since created have, however, been of the United Kingdom. Whether or not we shall ever have peerages of the Empire remains a matter for the future.
Since the latter part of the seventeenth century it has been the custom for peers and peeresses in their own right to sign simply by the designation of their peerage. The peeress by marriage prefixes her Christian name or initials to her husband’s title. It is statute law in Scotland, but not in England, that no person may sign his surname without prefixing a Christian name or initials. A peeress by marriage who is also a peeress in her own right signs first her husband’s title, adding her own afterwards; for instance, the signature of the Countess of Yarborough is Marcia Yarborough, Fauconberg and Conyers. One cannot call to mind in recent times any instances in which the peeress in her own right has married a peer of lower rank than her own, and until such a case occurs it is difficult to forecast what the signature should be. A peeress by marriage after re-marriage loses all privilege of peerage and precedence, and all right which she acquired by marriage, but as a matter of courtesy she usually retains her peerage designation if her subsequent marriage is to a commoner.
The daughter of a peer if married to another peer takes the precedence of her husband and relinquishes her own, but she retains it if she marries a commoner; and one of the anomalies of the English scale of precedence is to be found in the following circumstances. If the two elder daughters of a Duke were to marry an Earl and a Baron respectively, whilst the youngest daughter were to run away with the footman, she would, nevertheless, rank as the daughter of a Duke above her sisters ranking as wives of an Earl and a Baron.