Wednesday, 2 September 2020

Patents, Writs, and Lords who might not be Peers


In a previous blog, I excoriated all of you (and you know who you are!) who persist in the erroneous belief that Barons are addressed as Lord Firstname Surname. Now, that is out of the way, I think it might be fun to consider some of the more fun [1] bits of the Peerage.

We will start where I seem to always begin, with Letters Patent, then the unusual species of Barons known as Barons by Writ, then the curious incident that the Lords of Appeal in Ordinary might not, in truth, have been Peers. 

Letters Patent

These find form in the The Crown Office (Forms and Proclamations Rules) Order 1992 [2], which has since been amended a few times to take account of various constitutional changes. There are, naturally, five different forms, one for each degree of the Peerage. Helpfully, they are not all radically different, instead the Patent simply becomes more and more florid as one goes up the ranks [3]. So, the following is for Dukes, but after it the differences will be explained.

Elizabeth the Second by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and Our other Realms and Territories Queen Head of the Commonwealth Defender of the Faith

To all Lords Spiritual and Temporal and all other Our Subjects whatsoever to whom these Presents shall come

Greeting

Know Ye that We of Our especial grace certain knowledge and mere motion do by these Presents advance create and prefer Our [Trusty and Well-Beloved Benjamin Lewis] to the state degree style dignity title and honour of Duke of [Croesyceiliog]

And for Us Our heirs and successors do appoint give and grant unto him the said name state degree style dignity title and honour of Duke of [Croesyceiliog] and by these Presents do dignify invest and ennoble him by girding him with a sword and putting a cap of honour and a coronet of hold on his head an by giving into his hand a rod of gold [4] to have and hold the said name state degree style dignity title and honour of Duke of [Croesyceiliog] unto him and the heirs male of his body lawfully begotten and to be begotten

Willing and by these Presents granting for Us Our heirs and successors that he and his heirs male aforesaid and every of them successively [5] may enjoy and use all the rights privileges pre-eminences immunities and advantages to the degree of a Duke duly and of right belonging which Dukes of Our United Kingdom [6] as they do at present use and enjoy

In Witness whereof We have caused these Our Letters to be made Patent

Witness Ourself at Westminster the [26th] day of [August] in the [Fifty-Ninth] Year of Our Reign
In general this is a fairly standard form for a Letters Patent on anything. I suppose the most obviously interesting paragraph is the one beginning "And for Us Our heirs", for it is this one which varies between the different degrees. Dukes and Marquesses get the full treatment: a metaphorical [7] sword, cap, coronet and golden rod [9]. Earls get almost the same, but no rod. Viscounts and Barons however get the much reduced
And for Us Our heirs and successors do appoint give and grant unto him the said name state degree style dignity title and honour of [Viscount Lewis] to have and to hold unto him and the heirs male of his body lawfully begotten and to be begotten
So far, these Letters Patent are in the standard form, which as you notice is always to heirs male lawfully begotten (Life Peers omit that bit naturally). But, while Her Majesty cannot change the descent of a Peerage once created [10], She can create a Peerage with different rules. These are called special remainders, and were in the past used to, for example, allow a title to descend to a brother or uncle of the first holder where he was childless or only had daughters.

For example, the Barony of Fairhaven was created in 1961 with the remainder [11]
and in default of such issue with remainder to his younger brother Henry Rogers Broughton (commonly called the Honourable Henry Rogers Broughton) and to the heirs male of his body lawfully begotten

The Prince of Wales got what looks like a remainder, though in truth I like many suspect that the Principality of Wales and the Earldom of Chester are actually a sui generis species of life peerage [12]

To hold to him and his heirs Kings of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas for ever

(obviously modified to suit the current Royal Style). Some special remainders, that given to the Countess of Cromartie in 1861 being an extreme example, could be amazingly complicated and prolix, compared to these simple examples.

When life peers are introduced in the House of Lords, the Reading Clerk reads their Letters Patent aloud at the despatch box. Before 1999, only hereditary peers who were newly created were introduced (if they succeeded to the dignity Hansard just records "sat first after the death of his father" once they proved - if necessary - the descent) so none of the 92 representative peers will ever have theirs read by definition.

Baronies by Writ

Letters Patent were, before 1999, not the only way to create a Peerage. It was held by ancient custom that the mere receipt of a Writ of Summons (which all Peers got alongside their Patents normally) was sufficient provided the person summoned took up their seat. This was true even if the writ was issued as a result of the most egregious error. It is believed that, in actuality, this is the original method of creating baronial titles - that is they became hereditary not by some declaration of the Crown, but because the Crown invariably summoned the heirs of deceased barons to Parliament [13][14].

So, did this happen? Umm, yes. Examples include a farcical series of events surrounding the Baron Wharton: the barony, along with some other titles, should have been extinguished in 1729 when the holder was declared an outlaw. In 1844, the Committee of Privileges incorrectly decided that the barony was actually a barony by writ anyway (it wasn't, more on why this matters in a bit) and thus abyeant. That abeyance was then purportedly terminated in 1916, but in actuality an entirely new Wharton Barony was created by writ instead.

Equally, in 1722 the son of the Duke of Somerset was purportedly summoned to Parliament by Writ in Acceleration (see blog passim) in the name of Baron Percy. Except that the Percy barony was extinct, and had been since 1670. Consequently, since all peers sitting by Writ in Acceleration receive a Writ of Summons, a new barony was created - though of less importance than Wharton since Percy would eventually inherit Somerset anyway.

Even more amusingly, this was not the first time this very error had occurred! In 1628, the son of the then Earl of Derby was summoned by Writ in Acceleration in the name of Baron Strange. Now, the Strange barony that the Derbys purportedly held was claimed to be the second creation (of three, at the time), but this (being created in 1299) was abeyant [15][16]. Consequently, a new, fourth, Strange barony had in fact created. It and the Earldom subsequently parted company, and Lady Strange, as a Peeress suo iure was for a time a post-1999 representative peer.

Unlike the default state with Letters Patent, baronies by writ are inheritable by the heirs general lawfully begotten. Which is what creates the curious phenomenon of abeyance, since that formulation whilst permitting a sole daughter to inherit, instead causes multiple daughters to inherit as co-heirs. To me, given the inevitable complexities abeyance introduces, it is no surprise errors were made. Abeyance I will blog about more fully another day.

Were the Lords of Appeal in Ordinary Peers?

I am persuaded that the answer to this question is: no. By way of background, before the creation of the Supreme Court [17] the highest court in the United Kingdom [18] was the House of Lords (the High Court of the Queen in Parliament Assembled). To facilitate this [19], the Appellate Jurisdiction Act 1876 had enabled Her Majesty to appoint persons to the Lords for their lives (so not creating a steady stream of hereditary dignities) to staff the Appellate and Appeal Committees of the House which had been delegated its judicial functions. In particular, it provided that
For the purpose of aiding the House of Lords in the hearing and determination of appeals, Her Majesty may, at any time after the passing of this Act, by letters patent appoint two qualified persons to be Lords of Appeal in Ordinary [...] Every Lord of Appeal in Ordinary, unless he is otherwise entitled to sit as a member of the House of Lords, shall by virtue and according to the date of his appointment be entitled during his life to rank as a Baron by such style as Her Majesty may be pleased to appoint, [...]

(Initially, until 1887, it was provided that a Lord of Appeal in Ordinary would cease to be a member of the Lords on retirement too, which prompts some of the discussion we see in Hansard below). Italics are mine but also demonstrate the matter clearly. These were not peerages. If they were the section would have also declared that as well as ranking as a Baron they enjoyed the rights of Barons. In the Letters Patent we see something similar, viz.

Elizabeth the Second by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and Our other Realms and Territories Queen Head of the Commonwealth Defender of the Faith

To whom these Presents shall come

Greeting

Whereas Our [Trusty and Well-Beloved Baroness Hale] has resigned her Office of a Lord of Appeal in Ordinary and the same is now vacant Now Know Ye that We of Our especial grace have in pursuance of the Appellate Jurisdiction Act 1876 as amended by subsequent enactments nominated and appointed and by these Presents Do nominate and appoint Our [Trusty and Well-Beloved Benjamin Lewis] to be a Lord of Appeal in Ordinary by the style of Baron Lewis to hold the said Office so long as he shall well behave himself therein subject to the provisions in the said Act mentioned with all wages profits privileges rank and precedence whatsoever to the said Office belonging or in anywise appertaining and to hold the said style of Baron unto him the said [Benjamin Lewis] during his life

In Witness whereof We have caused these Our Letters to be made Patent

Witness Ourself at Westminster the [26th] day of [August] in the [fifty-ninth] year of Our Reign

See in the italics how the privileges of the Office of Lord of Appeal in Ordinary (held quamdiu se bene gesserit) are separate from the style and rank as a Baron? In addition to this, one of the rights of a baron (pre-1999 anyway) was to sit in Parliament, so if the Lords of Appeal in Ordinary had all the rights of barons, they would necessarily have a seat for (at least) life in the House.

It is to me curious that while in the debates in the Lords on this bill [20] these new Lords of Appeal in Ordinary were referred to as "Peers", Disraeli was clear in the Commons that [21]
Besides this, we propose that there shall be two Lords of Appeal in Ordinary, chosen from the Bench or from the learned Bar, who shall be summoned to Parliament as Barons, who shall exercise their privileges as Barons while they hold these offices, and who when they have ceased to hold them will still possess the rank.

Which seems a choice of words much more in accord with the statutory scheme. Indeed, Sir William Harcourt (who appears to broadly have been opposed to keeping the House of Lords as the final court of appeal) also said [22]

What a farce it was, for it seemed that when one of them ceased to be a Judge he would cease to be a Peer in the ordinary sense of the word; and that suggested that in order to improve our Judicature we should be compelled to separate it from the hereditary Peerage

where the intentionally anomalous status of these "Peers" is made clear. Further, Sir George Bowyer  ( a Liberal so also an opponent) then went on to say [23]
The two persons who might be appointed as Lords Justices to assist the House of Lords would not be Peers, although they might be Lords of Parliament. They would be in a position analogous to that of the Bishops, who were not hereditary Peers. 
This curious confusion between terminology used in each House was commented on by Sir John Simon S.L. [24] in the Committee of the Whole House [25]
It had been said that these Lords of Appeal would be Lords of Parliament only and not Peers; but such high authorities as the Lord Chancellor, Lord Selborne, and Lord Hatherley had spoken of them as Peers. They had also been compared to the Scotch and Irish Peers, and even to the Bishops; but he contended that there was no analogy whatever between them.
The consideration in Committee was adjourned to take some Supply business and the House was later counted out. A month later, this thread being picked up again, Sir George reiterated his earlier point [26]
It was true they were to sit and vote, but they would not be Peers; their position would resemble that of the Bishops, who also were Lords of Parliament, not Peers. The hereditary character of the House of Lords was the real essence of the Peerage, and where there was not a hereditary right there was no Peerage. To show that the Bishops were not Peers, he would just state that if a Bishop were charged with felony, he would not, as a Peer would be under similar circumstances, be tried by the Court of the High Steward in the House of Lords, but by an ordinary jury, like any other commoner. These would not be "Peers made by statute," for the Act would simply empower the Queen to make a Lord of ​ Parliament, and if he resigned his office he would, like a Bishop who resigned, be no longer a Member of the House of Lords, and would no longer be summoned to sit there. There were Constitutional objections to the creation of life Peerages, as it would tend to degrade the House of Lords to the level of those miserable Senates which existed in Continental countries, and this was probably the reason why the Bill did not propose to make life Peers.
Which while he was no proponent of the Bill, to me accurately sets out the position: the Lords of Appeal were intentionally not Peers. And the reasons given appear to me to be cogent (for the time) too - it was desired to keep the Peerage, an hereditary dignity, separate from these life dignities.

Amusingly, the Attorney-General [27] later in the same debate made a, to modern eyes, prescient point [28]
It would be very dangerous to place in the hands of a Prime Minister the power of creating at any particular juncture of politics a number of life Peers under the disguise of appointing Assistant Lords of Appeal. 

I think these quotes from Hansard make it clear that, while in the upper house discussions were quite unclear (perhaps it was just obvious to them the difference between these quasi-Peers and the real ones?), in the Commons the matter was clear cut. The Lords of Appeal in Ordinary were not to be Peers. Though as we noted earlier, a decade later they were given a life membership of the House regardless.

Although several are still alive, no new Lords of Appeal in Ordinary can be created, so this will be an ever diminishing set of persons who rank as Barons, but are not, in actuality, Barons.

Of course, the new Justices of the Supreme Court might have the style of Lord Surname, but they do not even rank as Barons at all. 

Colophon

Did I ever mention how I love Letters Patent? I also can't remember who tipped me off about Lords of Appeal in Ordinary not being Peers, but thank you!

[1] Well, I find this fun, anyway.
[2] S.I. 1992 No. 1730; amended by S.I. 1996 No. 276 (changes to Commission Areas for Justices of the Peace); S.I. 2020 No. 3064 (more changes to Justices of Peace, but more importantly, the House of Lords Act 1999); and S.I. 2002 No. 3131 (to add "Great Women" to a part of the Writs of Summons for a Lord Spiritual)
[3] In truth, making this blog manageable, there are only three variations. The only differences between Dukes and Marquesses and between Viscounts and Barons being the form of the title itself. I have long wondered, partially inspired by this video of HRH the Duke of York taking his seat in the Lords (the last member of the Royal Family to do so, as it happens) if this is why the customary set of three is Duke-Earl-Baron, since there you see three Patents which actually differ a bit.
[4] For a Duchess suo iure this would read "to dignify invest and really ennoble her with such name state degree style dignity title and honour of Duchess of ...", with comparable forms for lower degrees.
[5] Before the 2000 amendments as a result of the House of Lords Act 1999, the phrase "may have hold and possess a seat place and voice in the Parliaments and Public Assemblies and Councils of Us Our heirs and successors within Our United Kingdom amongst the Dukes and also that he and his heirs male aforesaid successively" appeared here; it remains in the Patents of Life Peers.
[6] Ditto, "have heretofore used and enjoyed or"
[7] For the Prince of Wales they are very much real, and that idiotic [8] ceremony in the first season of The Crown where supposedly the Duke of Edinburgh was invested was basically just the Welsh ceremony mangled. Before Georgian times there was an actual ceremony, though, which did involve caps and coronets and so on.
[8] In my entirely not humble opinion, that scene is one of the singularly most egregious errors in the whole thing. Mostly because it was wrong and unnecessary at the same time. 
[9] Think sceptre. There will be more on coronets another day.
[10] Only an Act of Parliament can.
[11] The London Gazette, issue 42421, page 5506; but I am indebted to Sir David Beamish, the former Clerk of the Parliaments, who maintains a list of these (and many other things) on peerages.info
[12] Same list, curiously not actually mentioned in the Gazette.
[13] It was also held in 1621 by the House of Lords (in the case of the first Earl of Bristol) that the writ was a right of a Peer and the King could not deny it - only an Act of Parliament could.
[14] There is some subtlety to this, but this is the basic idea.
[15] It fell into abeyance in 1594 and remained so until 1921.
[16] The first and third creations were extinct. Interestingly the first, second, and third creations were all by writ too!
[17] By the Constitutional Reform Act 2005, effective 2009.
[18] Except Scottish criminal cases, because ... well just because.
[19] The Wenslydale peerage case is a topic for another day, before anyone mentions it.
[20] Lords Hansard, volume 227, columns 909-927; 1286-1292; 1944-1946.
[21] Commons Hansard, volume 229, column 1686 (the full speech spanning columns 1680-1693)
[22] ibid. column 1705
[23] ibid. column 1710
[24] S.L. means "Seargent at Law", a now obsolete rank of lawyer superior to the Queen's Council; consequently in Hansard Sir John is always listed as Mr. Seargent Simon
[25] Commons Hansard, volume 230, column 1163
[26] Commons Hansard, volume 231, columns 761-2
[27] At the time, Sir John Holker, QC. He had formerly been Solicitor-General.
[28] ibid. column 884

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