Peerage Law in Georgian England

TITLES (IN DISPUTE):

One could not renounce an English title. 

In the mid 20th century,  a law was passed allowing a man to disclaim a title he had not yet taken up. However, the title became “dormant,” and no one could have it until the man who disclaimed it died. It had to be disclaimed within a year of succession. 

At one time, Scottish peers could turn in their titles to be reissued to them with a new heir, not a new holder. However, that was not possible with English titles. I know of no case where a man could step down from a title and present it to someone else.

The King, the Home Secretary and the House of Lords’ Committee on Privilege, plus, the College of Arms would be involved in all questions of peerage titles. Ordinary courts could deal with property and other questions, but they had no jurisdiction over peerage questions.

Before the law was passed allowing one to disclaim an inherited title (and the heir had to wait until the man was dead to take it up), the most a man could do was refuse to use the title or to take his seat in the Lords under the title.

 The title would be dormant. Some have been dormant for a hundred years or more and others for a mere twenty.  This is not the same thing as a title in abeyance.

Such an event would not have been contested in court. It might have been contested in the Committee for Privileges, which decided upon such claims. I’m not sure about specific Regency cases, but there are a TON of cases in the Peerage Law Handbook that one can get for free on Google Books: 

Peerage Law in England: A Practical Treatise for Lawyers and Laymen; With an Appendix of Peerage Charters and Letters Patent; (In English)

https://books.google.com/books?id=1GIWAAAAYAAJ&pg=PR3&hl=en#v=onepage&q&f=false

The History Hoydens group has a couple of blog posts that cover the basics and have links to specific cases:

http://historyhoydens.blogspot.com/2012/04/inheriting-english-peerage.html

http://historyhoydens.blogspot.com/2012/04/challenging-claim-to-peerage.html

A title with no apparent “taker” would go dormant, if there was a chance that the heir had had a legitimate son.  However, the property attached to the title could pass to another, because property could be given back to the rightful owner, but a peerage could not (This is a minor plot line in my Regency romantic suspense entitled, The Earl Claims His Comfort.)

Property and Peerage operated with different rules.

When a peer died, his heir or a claimant to the title put in a petition, a request for a writ of summons to Parliament. That was the time when one had to bring forth objections and other claims. That was what happened when the oldest son of the Earl of Berkley put in his claim. An objection was voiced about his legitimacy. After a thorough investigation, the fifth son was declared the earl and the older four became illegitimate.

When the Frederick Berkeley, 5th Earl of Berkley died, his oldest son applied for a Writ of Summons to the House of Lords. Berkeley and Mary Cole (who also passed under the name of Tudor), the daughter of a local publican and butcher, had seven sons and five daughters, but the disputed date of their marriage prevented their elder sons from succeeding as Earl of Berkeley and Baron Berkeley. The pair asserted their marriage had taken place on 30 March 1785, but the earliest ceremony of which there is incontrovertible proof was a wedding in Lambeth Church, Surrey, on 16 May 1796, at which date Mary was pregnant with their seventh child. Berkeley settled Berkeley Castle upon their eldest son, William FitzHardinge Berkeley, but William’s attempt to assume his father’s honours were disallowed by the House of Lords, who considered him illegitimate.

Therefore, the Committee on Privilege turned down the eldest’s request, saying he and the other brothers born before 1795 were illegitimate, and the earldom had fallen to the 16-year-old born in 1796. Berkeley’s titles devolved as a matter of law upon his fifth but first legitimate son, Thomas Morton Fitzhardinge Berkeley (1796–1882), but were never used by him and he did not take his seat in the House of Lords. Per his father’s will, he would have lost his small inheritance had he disputed his eldest brother’s claim to the titles. The boy was too young, for he had not reached his majority, to do anything about the matter, and his oldest brother and mother ran things. When he came of age, he still never put forth a claim to the earldom. However, he was, by right and law, the earl, so anything requiring the signature of the earl had to be signed by him. He signed responsibility over to his oldest brother, but the title itself went dormant until he died. 

In another case, two cousins fought over a peerage in front of the Committee One was finally chosen. Later the loser came forward with proof, he said, that the chosen one was actually illegitimate. “Sorry,” he was told. You had your chance and lost. Once a choice was made it was not undone. Sorry, once it is decided which one has the title, the other one is out of luck.

Many times in Regency-based novels we have the situation where for one reason or another, the hero refused the title he has inherited and “abdicates” his new peerage. The question is whether this is a viable plot line. 

The answer is a bit more complicated than we might expect. Let us say we have an earl who wishes to abdicate his title. He would have the option of refusing the title, the properties, and the money, but he would still technically be the earl until he dies and another secedes him. To have the full title and the honors accompanying it, the man would need to be confirmed before Parliament. [In my release, “Courting Lord Whitmire,”  there is a lengthy scene where Lord Andrew Whitmire appears before Parliament to claim the viscountcy after his father’s death.] Parliament demands that the person making the claim to the title present evidence of his right to it. If the man wishes to be styled as an earl, he must claim the title. He does not need to send in the Writ of Summons to the House of Lords, and he can refuse to use the title, but someone must care for the property, and no one else can have the title while he is alive.

If he wished to claim the privileges of the peerage, which included: Peers had some special privileges. The main one was the right to sit in the House of Lords, unless they were Roman Catholic, a minor, a female or a lunatic. They could not be arrested for debts. They had to advance the peerage as an affirmative defense. They did not have to sit on juries.  (This made sense as the House of Lords was in effect the supreme court and the last court of appeal). If arrested for a crime, they were allowed to be tried by the House of Peers. Their wives also claimed these privileges, except for sitting in the House of Lords. It was against the law to libel or slander a peer or to strike him. It was not until 1963 that anyone could walk away from a title.

A man could be stripped of his title by the Crown if he committed treason, but not only would be tried and executed for his action, but his family would also be held “guilty.” The University of Michigan‘s website refers to Blackstone’s summary of the laws: 

“Since High Treason was, and arguably remains, the most serious capital crime, testimony of two witnesses to the same overt act was required to convict, and the punishment in the Eighteenth century was severe. Blackstone states that ‘the punishment of high treason in general is very solemn and terrible’:

  1. That the offender be drawn to the gallows, and not carried or walk: though usually (by connivance length ripened by humanity into law) a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement 
  2. That he be hanged by the neck and then cut down alive
  3. That his entrails be taken out and burned, while he is yet alive
  4. That his head be cut off 
  5. That his body be divided in four parts 
  6. That his head and quarters be at the King’s disposal. [Blackstone, Wm., Knight. Chase, George, ed. Chase’s Blackstone Commentaries on the Laws of England in Four Books. New York: Baker, Voorhis & Co., 1936. p889.]

“The punishment did not end with the personal suffering of the offender: the punishment extended to his or her family. The law states that a person who is found guilty of treason must also undergo “forfeiture” and “corruption of blood.” In forfeiture, the person is force to give all their lands and property to the Crown. Corruption of blood prevents the person’s immediate family and hereditary heirs from owning property or conducting business—in effect ruining the offender’s family forever.”

On the other hand, if the peer committed suicide, nothing happened to the title. The son inherited as usual. It would be a rare man of that time who did not want a title just because his father had disgraced it. He was not required to claim it, but he could not sit in the House of Lords if he did not. He could change his name either by sign manual, deed poll, or just by doing it. However, those are extreme measures, and he would be compounding the failure of his father by not attending to the estate, the workers, the servants and all the others who depend on the family in one way or another. [I use all this legal rigamarole in my book, The Heartless Earl, which is available on Amazon and KU. The earl is accused of a crime that puts not only his life, but the earldom, in jeopardy.]

About reginajeffers

Regina Jeffers is the award-winning author of Austenesque, Regency and historical romantic suspense.
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