by Saito Takauji (aka Matthew Blackacre)
The nobility of England stretches back far enough to qualify as having existed since time immemorial–a legal term of art both in period and modernly, rather than being simple poetry[1]. Whether conceptualized as sub-infuedated landowners of Norman lords, Roman patricians, or the jarls and thegns of the Anglo-Saxon, the tradition of class stratification and privilege has a deep history. It is unsurprising, then, that along with that tradition would also come a rich history of legal arguments and precedents.
By the end of the Tudor period, the legal status of the nobility was considerably more settled than it had previously been–even if still more unsettled than it would be in succeeding times. A nobleman attending Parliament in the 16th century would have been able to know firmly his place in society, his privileges and responsibilities, and what legal recourses he would have if denied any of these. Especially after the upper house of the Parliament became formally known as the House of Lords in 1544, the model for what it meant to be a Peer was set for the next several centuries (barring modification of precedent and the odd civil war).
- Basics of English Peerage
The status that our theoretical Tudor nobleman would have been aware of was one markedly different than his cousins on the continent would have enjoyed. Even to this day the basic functions of the English (or British) peerage is quite confusing to both Americans and fellow Europeans, as it seems to contravene what we think of when we think of ‘nobility’.
One of the most important distinctions of the English nobility is how small it is, not just in terms of absolute numbers but in terms of who can consider themselves to be one. It is only those individuals with actual landed titles who are nobles, and their spouses if female; thus in England the terms “peerage” and “nobility” are synonymous[2], and one cannot be one and not the other. The children of a nobleman are not noble themselves, even the heir: “Even the eldest or only son and heir apparent of a peer is not during his father’s lifetime a noble, unless indeed he acquires a peerage by creation or by descent from and through his mother.”[3] The only other alternative to bring an heir in to the nobility was to issue a writ of acceleration, which in essence allowed an heir to succeed to one of his father’s subsidiary baronies; he was from then a member of the House of Lords, and counted as the next holder of the Barony. Beyond that the children of a peer were at best potential nobles, and in all otherways functionally commoners.
This is in stark contrast to the Roman concept of the Patrician[4] where all members of a family share that status, which in Europe includes some systems of nobility where all the members of a noble family may be able to use their rank as a title[5].
This is an important distinction, because it means that the number of people who could exercise the actual legal privileges of the peerage was always much smaller than those who could claim the social privilege of such. It also meant that an heir who had not been issued a writ of acceleration or been given his own independent peerage was able to stand for election to the House of Commons, and not infrequently did; he only became ineligible for the lower house upon acceleration or full inheritance.
One of the foundational principles of the English peerage was that all unowned land in the Kingdom belonged to the Crown, which could dispense with it as they saw fit. Combined with this is the legal position of the Crown as the fountain (or font) of honor, the source from which all awards and recognitions ultimately flow[6]. While this was most directly articulated in the Prince’s Case of 1606[7], it was treated in that decision as being an ancient and universally accepted custom.
The Crown could therefore, at least until the early modern and modern era, create whomever it pleased as a Peer and did so. While not always popular, the Crown could and did create peerages for close personal friends[8] and even for a mistress and future wife[9]. No individual had the right to a Peerage, and before they were created they did not exist–thus no one could attempt to force the Crown to make one: “The bounty of the crown in the very act of giving calls into existence the thing granted.”[10] But once a Peerage was created, it moved beyond the authority of the Crown to alter without legal cause.
Under English law a Peerage is a form of real property, an incorporeal hereditament. Its intangible nature makes it a rather unusual form of inheritable real property, and its place in society leaves it open to some unusual restrictions that don’t apply to other forms of real property; but it is nonetheless treated as such in the broadest sense. Importantly that means that once given it cannot be arbitrarily stripped; only the function of law can remove a peerage from a holder. This was most directly recognized, again as a longstanding principle, in 1605[11], but this recognition was only formally stating the logical corollary to previous precedent. It had long been held that when a Peer was convicted of treason, their property was subject to attainder (seizure) by the Crown; thus when the Duke of Suffolk lost his head for supporting Lady Jane Grey, he also lost the Dukedom of Suffolk[12]. If a title was treated as real property when it was being seized for treason, it must therefore also be treated as a form of real property in other circumstances.
But it is also far more restricted than other forms of real property. A peerage is entirely dictated by the document creating it, if one exists. Called letters patent, the form is still used to this day in both medieval recreation ceremonies and in the commissions issued to military officers and elected officials. The patent creating the peerage lists the terms governing its ongoing existence–who it may be inherited by and in what circumstances most importantly. In the absence of a patent, either because the peerage was made by a writ of summons to the House of Lords or because the peerage was created accidentally[13], the Peerage functioned according to the basic rules which applied to most peerages:
- That they were granted to a man, and the heirs male of his body;
- That any legitimate male line descendant of the original grantor could be eligible to inherit the title if it descended to them; and
- That in the absence of any heirs meeting the above criteria the peerage would cease to exist.
Those basic rules were shared by both the patent-less baronies by writ and the overwhelming majority of peerages created by patent. Heirs male of the body specifies that the heir must both be male and a naturally born son of the preceding holder–it could not descend either through the female line or by adoption. Some titles did and do allow for descent through the female line, most often if there is no available son or even to sisters if no children exist; the most famous of these is perhaps the Earldom of Mar, an ancient Scottish title which has been held by a number of women over its history[14].
The legal restriction on the descent of a peerage is also why a peerage is subject to additional restrictions beyond the normal ones on real property. Unless a life peerage, which is a form of life estate bestowed on an individual only for the extent of their life, a peerage is given to the original holder and a certain segment of their descendants. Those descendants do not have the right to use the title or act as peers until they actually inherit it, but they do have a legal interest in the peerage as potential holders; in this way a peerage is similar to a trust made for specific beneficiaries. Because those descendants, even ones not yet born, have an interest in the title it cannot be sold or given away; in legal terms it is inalienable. Only in the modern era was a method created, called disclaiming, by which a hereditary peer could get rid of their title; and even in this case after the death of the disclaiming peer the title will still pass on to the next heir in line[15].
These legal restrictions are also what makes it difficult to save the hereditary Peerage from extinction. A Peer cannot simply decide to alter the inheritance of their Peerage, nor can the Crown unilaterally do so. In order to keep ancient titles from dying out in the modern era, it would take either an act of Parliament to alter all Peerage inheritance or a surrender and regrant from the Crown similar to other times in history[16]
- To Judge a Peer
As movers and shakers of wealth and importance it is little surprise that Peers would be involved in the momentous acts that make up the history of England; and as human affairs never work out quite the way that any individual would like them to, they are not always on the winning or popular side. Peers and issues related to Peerage therefore come up not infrequently during history, leading to the question of who is to judge these matters.
The simplest and earliest answer is the Crown. As the font of honor, the Crown is the ultimate authority to whom the right belongs to decide matters related to Peerage[17]. It is, after all, the King to whom a Peer is peer; it follows that the one they are being made a peer to would have the ultimate jurisdiction in deciding how that functions. Before Parliament becomes more firmly established, the King exercises this power more directly–although by the 15th century it was with the consultation and ultimate consent of Parliament. Thus we see Henry VI decide a claim to the Earldom of Arundel[18]: “…and consulting the judges and others learned in the law, and the rest of the King’s Counsel, the King, by the advice and consent of prelates, dukes, earls and barons in the then Parliament, granted the prayer of the petition…”[19]. Henry VI would similarly sit in judgment in Parliament in matters between the Earl Marshall and Earl of Warwick[20], and between the Earl of Arundel and Earl of Devonshire[21].
Notably this last case was essentially referred to the House of Lords by the King, and they to a committee of peers who were also judges[22] to determine how they should proceed. The judges determined that it was not wholly a matter of law–but a “…matter of Parliament belonging to the King’s Highness and to the lords spiritual and temporal in Parliament by them to be decided and determined.”[23] The King, with the advice and consent of the House of Lords, hence declared judgment[24]. This case firmed up what would be much of the procedure going forward–that it was a matter both for the King and the Lords themselves to determine matters of inheritance and precedence.
Thus a century later we see Elizabeth I deciding these matters exclusively through the mechanisms of the House of Lords. In both the matter of the baronies of Willoughby and de la Warr, the question is referred to committees within the upper house of Parliament and their determinations are endorsed by the Queen[25].
This power came to be seen as an inherent one in the House of Lords, to regulate its own membership. Just out of the Tudor period it begins to more fully assert that inherent authority to “determine who are its members and what are their precedence inter se; and inasmuch as this precedence depends on ancienty, what is their ancienty, and from time to time to declare the law generally in regard to peerage law and rights.”[26] This power perhaps peaks in the Hamilton case, where the Lords determined whether the Act of Union disallowed a Scottish Peer from receiving a subsequent British Peerage which would give them a seat in Parliament[27]; and in the Wensleydale Peerage case[28] of the Victorian era where the Lords rebuffed the Queen’s authority to make a Life Peer without a Parliamentary act allowing her to do so (said act only being actually passed in the 20th Century).
Regardless of whether it was the King through Parliament or Parliament in its own name exercising the jurisdiction, it was long recognized as being solely in that jurisdiction to decide Peerage matters. A normal court of law had no authority, whether in the Tudor or Victorian era, to determine matters relating to the Peerage. Chief Justice Fortescue is quoted during a legal matter in the reign of Henry VI as explicitly placing the matter of the attainder of a peerage beyond the realm of an ordinary court of law[29].
That is not to say that laws cannot be passed which govern peers, however. As early as Richard II there were several laws promulgated which governed Peers, including the De Scandalis Magnatum[30] to be addressed later and a statute requiring attendance at Parliament by Peers[31]. But these serve to reinforce the above: It is only the Crown, and then the Crown in Parliament, which can regulate the conduct and privileges of the Peerage.
- Privileges of the Peerage
To be a Peer was not just to (potentially) be one of the wealthiest and most important men in the Kingdom of England[32]; it was also to be the recipient and holder of a number of legal privileges which made you legally superior to the common man (and even your non-Peer family members).
It is important to note that there are parallel tracks of privilege at play in a peer’s life. There are both the inherent privileges of peerage and the Parliamentary privileges they enjoy as members of the House of Lords[33]. Thus some of the privileges below are confined to Parliamentary service (such as the freedom of speech) while others are inherent within the character of peerage.
The first and foremost privilege of a peer is to be summoned to Parliament[34]. As we have seen in the cases of peers created by accident, it is indeed the summoning of a peer to parliament which is considered to be the vital part of making a peer. The only circumstances in which a peer could not be summoned to Parliament are if they did not hold an English (but rather Irish or Scottish, during the times when there was one crown for separate Kingdoms) Peerage, or if they were disqualified[35] (such as for infancy, felony, or bankruptcy[36]). If a peer was not summoned to Parliament he could, as a right, petition the Crown to remedy this; and if the Crown ignored the claim, appeal to Parliament itself under the Lords’ inherent authority to regulate their own admission[37]. While the most famous test case of this, that of the Earl of Bristol, is out of the Tudor period (it occurred during the Stuart reign of James I), the House of Lords in deciding it stated principles based in earlier cases; and the Crown acceded[38].
Note that as mentioned above, this was both a right and a duty. As early as Edward III certain Peers are granted waivers of their duty to attend Parliament, with a reason of infirmity[39]. Otherwise the legal requirement of the peerage to attend Parliament and give counsel to the King is well-established; a statute of Richard II[40] codifies the requirement and makes it an offense against Parliament to not attend or depart without permission.
Next in consequence, if only slightly, is the fact that you could only be tried for major crimes in Parliament itself[41]. This included treason, all felonies, and misprision (concealment) of the above[42]. It applied also, after Henry VI, to Peeresses[43], whether in their own right (suo jure) or as the wives of peers or their widows (who have not remarried a commoner)[44]. This right is seen as going back to the Conquest and the direct feudal nature of the noble systems brought in by the Normans: “In the rather minute legal descriptions of classes before 1066 significantly lacking is a group triable only by the witan, an omission in great contrast to the precise term in contemporary eleventh century Normandy of ‘pares curiae,’ denoting men triable only by co-suitors of the same lord.”[45]. The right could also be used to give recompense to the heir of a peer who was not tried in accordance with it, such as in the case of Edward, Earl of Arundel, who was beheaded without trial by his peers and his title and estates forfeited; his heir, Richard, petitioned Parliament and eventual had both title and estates restored to him as a result of the breach of this right[46]
Not that this was not a contentious right. The peers constantly wanted to retain or even expand their rights to try themselves, while the Crown consistently found it an inconvenience they had no wish to stomach. Henry III fought (and won, in the long run) against Peers trying themselves for misdemeanors, while the peers themselves gave up the right to judge Baronial civil suits exclusively in 1234[47]. The argument between the peers and the Crown was only formalized in this matter in the 1540s during the reign of Henry VIII, where the Crown consented to firmly and formally recognize the right in all felonies so long as the peers recognized his creation of the Court of the Lord High Steward for the purposes of holding the trial; the peers got their protections, but the Crown got to select the nobles who would do the trying, and everyone was at least moderately satisfied[48]. Especially with the caveat that the Court of the Lord High Steward sits only if a Peer is to be tried when Parliament is not in session; otherwise it is the Court of the King in Parliament[49].
Either as an extension to the above or as an independent privilege, a peer was also broadly free from arrest in all matters not subject to trial by Parliament (or breach of the peace)[50]. While this was once again not set in statutory stone until it was tested by James II just out of the Tudor period, when it was pressed by the House of Lords it was treated as a right since time immemorial[51]. It was even held, albeit well out of period, that this right applied even if someone had been arrested as a commoner and succeeded to a peerage while in jail[52].
Peers also enjoyed, after 1547, a unique twist on the benefit of clergy discussed in an earlier chapter. In that year they insisted on the right of a Peer to go without punishment for their first conviction of any crime except treason and murder, a privilege which would not go abolished until 1841[53].
A peer’s person was also protected against libel and slander, as we now modernly recognize them. “In an age which understood society as a divinely ordained hierarchy ascending by degrees of ‘quality,’ it could only follow that “disgraceful words and speeches against eminent persons” constituted a far more serious offence than those directed against individuals of less quality.”[54] This was first codified into law under Richard II with the Scandalum Magnatum, or Scandal of the Magnates act[55]. Punishments for this could be both criminal[56] and civil[57] in nature. The civil suit could be brought in any regular common law court as well as the Star Chamber[58], a particular court mentioned previously and to be discussed at length in a later chapter. This gave a peer broad latitude to punish those who spoke ill of them, whether justly or not, and meant that in many ways they could act without fear of some repercussions. Rather than being unjust, as one might view it modernly, some commentators viewed this as being an improvement over the medieval solution where “when a man was injured by words, he carved out his own remedy by his sword.”[59] Importantly, however, this right was not a complete immunity to criticism: “First, it forbade only ‘news.’ The offensive material could be neither political nor theological doctrines but had to be news, albeit that word was broadly understood. Second, unlike libel law, Scandalum Magnatum may have condemned only material that was untrue.”[60] When it was invoked, however, the criminal penalties could be quite severe. Of the expanded criminal penalties in the Scandalum Magnatum: “Previous penalties were enlarged to include the pillory, fines, whippings, loss of ears and brands in the face…”[61]
A privilege which would serve an important purpose even in the modern era was the peer’s privilege of freedom of speech in Parliament[62]. A peer was broadly immune from civil actions for their speech while in the House of Lords, which eventually translated in to the same privilege for members of the whole English/British/UK Parliament[63] and the United States Congress[64]. This privilege allowed the House of Lords, and afterwards parliament, to serve as a much more independent body and debate freely; it is indeed modernly seen as an essential function of an independent legislature.
Other privileges which would have been available to a Tudor peer included immunity from many kinds of civil suit, immunity from summons as a witness, the right to send proxies to vote in the House, exemption from service on a jury, personal access to the sovereign, and the right of peers on their way to and from parliament to take 1-2 of the King’s deer either in the presence of a forester or blowing a horn to announce themselves[65]
- Loss of Peerage
As stated previously, there were very few circumstances in which a peerage could be taken away from a family. It could not be unilaterally taken, sold, given away, or denied (until the 20th century, at least). Historically the major ways in which a peerage died off was either due to a lack of eligible heirs, or through attainder.
As stated by the foremost commentator of English law, Sir William Blackstone: “And, therefore, either upon judgment of outlawry or of death for treason or felony a man shall be said to be attainted.”[66] Once attainted, the person so judged suffered serious consequences to their property (in addition to the sentence of death, of course): Upon treason all his property went to the crown; on felony to the King or to the landholder’s lord (if not the King), except the King is entitled to them for one year and one day[67]. Attainder also conferred “corruption of blood,” a legal status meaning that the person so judged could neither inherit nor could one inherit through them; it dammed the stream of inheritance completely from the attainted person, in any direction[68]. While there were legal specifics which could work around this in certain cases (largely when lands were held in fee tail, i.e. with specific provisions for remainders to other people rather than full free ownership which was known as fee simple), generally speaking once attainted they were gone. Monarchs or an Act of Parliament could restore land or title and end the corruption of blood[69], but beyond that (not uncommon) step the peerage was lost.
[1] See, e.g., Custom – English Law, Encyclopaedia Britannica (https://www.britannica.com/topic/custom-English-law).
[2] Francis Beaufort Palmer, Peerage Law in England: A Practical Treatise for Lawyers and Laymen, Stevens and Sons Ltd. (1907), at 6. (Hereinafter ‘Palmer’).
[3] Id., 7.
[4] See, e.g., Patrician, Encyclopaedia Britannica (https://www.britannica.com/topic/patrician).
[5] Italy being one. See, e.g., Louis Mendola, Italian Titles of Nobility, Regalis.com (http://www.regalis.com/nobletitles.htm).
[6] Palmer, supra at 178, 1.
[7] The Prince’s Case (1606) 8 Co Rep 1; 77 ER 496.
[8] Such as Eubulus le Strange, 1st Baron Strange. See, e.g., Elizabeth Ashworth, Who is Eble le Strange, ElizabethAshworth.com (https://elizabethashworth.com/2014/03/31/who-was-eble-le-strange/).
[9] Anne Boleyn, who was made Marchioness of Pembroke by Henry VIII in 1532; she was only the third suo jure (in her own right) Peeress in English history. Anne Boleyn, Oxford Reference (https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095414752).
[10] Palmer, supra at 178, 2.
[11] Nevil’s Case, 8 Co. 33 (1605).
[12] See, e.g., Essential Guide to the Peerage: Glossary, Debrett’s (https://www.debretts.com/expertise/essential-guide-to-the-peerage/glossary/).
[13] Which has happened–if the King summons the wrong person to Parliament, the King has still created a new Peer. That he is probably annoyed at. This happened six times to the Neville family and the Baronies of Bergavenny. See, e.g., Edward Neville, ThePeerage.com (http://www.thepeerage.com/p10272.htm#i102720) (“He was created 1st Lord Abergavenny [England by writ] on 5 September 1450, also known as Lord Bergavenny.”)
[14] See, e.g., Holders, EarldomOfMar.com (http://www.earldomofmar.co.uk/content/Holders.html). This is also a matter of differences between Scots and English law, but serves the purpose of illustration.
[15] See, e.g., David Douglas-Home, The Douglas Archives (http://www.douglashistory.co.uk/history/families/earls_of_home.html#.X4jY6sJKiUk). The 15rh Earl of Home is the son of former Prime Minister Alexander Douglas-Home, who disclaimed the Peerage in order to become Prime Minister; accordingly the title went into abeyance until Alexander (who was granted a life peerage after retiring as Baron Home) died, at which point his son David became the Earl.
[16] See, e.g., Michael Waldman, The Last Dukes, BBC Two (2015).
[17] Palmer, supra at 178, 9.
[18] 11 Hen. VI, 1433.
[19] Palmer, supra at 178, 9.
[20] Rot. Par. 3 Hen. VI.
[21] 27 Hen. VI, 1449.
[22] Palmer, supra at 178, 10.
[23] Id.
[24] Id.
[25] Id.
[26] Id., 12.
[27] Id., 14.
[28] 5 H.L.C. 958
[29] Palmer, supra at 178, 15.
[30] 2 Rich II c. 5 (1384)
[31] 5 Rich II st. 2, c. 4.
[32] Even in the Tudor period, the actual relative wealth and power of Peers varied; it is only a few reigns later that the title of Baronet will be introduced by James I in order to give wealthy gentlemen a chance to buy a hereditary but non-noble and non-Peerage title because they need an infusion of wealth. See, e.g., Baronet, Encyclopaedia Britannica (https://www.britannica.com/topic/baronet).
[33] Sir David Natzler and Mark Hutton, Erskine May: Parliamentary Practice, UK Parliament (25th Edition, 2019).
[34] Palmer, supra at 178, 137.
[35] Id.
[36] Id., 142-143.
[37] Id., 138.
[38] Id, 139.
[39] Patent Rolls, 21 Edw. III, excusing the Earls of Devon and Northhampton at request of his eldest son and because of his infirmities (providing he sends a proxy), respectively.
[40] 5 Rich II c. 4.
[41] Colin Rhys Lovell, The Trial of Peers in Great Britain, 55 American Historical Review 1, 69-81 (October 1949) (Hereinafter ‘Lovell’).
[42] Id., 69.
[43] 29 Hen. VI c. 9. A statute enacted after the Duchess of Gloucester was subject to an “irregular” trial for Sorcery. See Lovell, supra at 209, 70.
[44] Lovell, supra at 209, 69.
[45] Id.
[46] Palmer, supra at 178, 146-147.
[47] Lovell, supra at 209, 70.
[48] Id., 71. This also ensured that no commoners could be appointed to judge Peers as justices in the Lords, which had been possible (although an outrage, presumably) previously.
[49] Palmer, supra at 178, 147.
[50] Id., 144.
[51] Id.
[52] Id., 145.
[53] Lovell, supra at 209, 73-74.
[54] John C. Lassiter, Defamation of Peers: The Rise and Decline of the Action for Scandalum Magnatum, 1497-1773, 22 American Journal of Legal History 3, 216-236 (July, 1978).
[55] Palmer, supra at 178, 151.
[56] Phillip Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 Stan.. L. Rev. 661 (1985) (hereinafter ‘Hamburger’).
[57] Lassiter, supra at 229, 217.
[58] Id.
[59] Id., 218 (quoting Sir Francis Pembertion in 1677).
[60] Hamburger, supra at 231, 668.
[61] Richard Harvey, The Law and Humor of Newspaper Libel, 10 Georgetown Law Journal 1, 30-43 (November 1921).
[62] Palmer, supra at 178, 150.
[63] See, e.g., Parliamentary Privilege, UK Parliament (https://www.parliament.uk/site-information/glossary/parliamentary-privilege/).
[64] See, e.g., Privilege of Speech or Debate, Legal Information Institute (Cornell Law School) (https://www.law.cornell.edu/constitution-conan/article-1/section-6/clause-1/privilege-of-speech-or-debate).
[65] Palmer, supra at 178, 150-152.
[66] Id., 187.
[67] Id.
[68] Id.
[69] Id., 216.