Hereditary Peer - Inheritance of Titles

Inheritance of Titles

The mode of inheritance of a hereditary peerage is determined by the method of its creation. Titles may be created by writ of summons or by letters patent. The former is merely a summons of an individual to Parliament—it does not explicitly confer a peerage—and descent is always to heirs of the body, male and female. The latter method explicitly creates a peerage and names the dignity in question. Letters patent may state the course of descent; normally, only male heirs are allowed to succeed to the peerage. A child is deemed to be legitimate if its parents are married at the time of its birth or marry later; only legitimate children may succeed to a title, and furthermore, an English, Irish, or British (but not Scottish) peerage can only be inherited by a child born legitimate, not legitimated by a later marriage.

Normally, a peerage passes to the next holder on the death of the previous holder. However, Edward IV introduced a procedure known as a writ of acceleration, whereby it is possible for the eldest son of a peer with multiple titles to sit in the House of Lords by virtue of one of his father's subsidiary dignities.

A person who is a possible heir to a peerage is said to be "in remainder". A title becomes extinct (an opposite to extant, alive) when all possible heirs (as provided by the letters patent) have died out, i.e., there is nobody in remainder at the death of the holder. A title becomes dormant if nobody has claimed the title, or if no claim has been satisfactorily proven. A title goes into abeyance if there is more than one person equally entitled to be the holder.

In the past, peerages were sometimes forfeit or attainted under Acts of Parliament, most often as the result of treason on the part of the holder. The blood of an attainted peer was considered "corrupted", consequently his or her descendants could not inherit the title. If all descendants of the attainted peer were to die out, however, then an heir from another branch of the family not affected by the attainder could take the title. The Forfeiture Act 1870 abolished corruption of blood; instead of losing the peerage, a peer convicted of treason would be disqualified from sitting in Parliament for the period of imprisonment.

The Titles Deprivation Act 1917 permitted the Crown to suspend peerages if their holders had fought against the United Kingdom during the First World War. Guilt was to be determined by a committee of the Privy Council; either House of Parliament could reject the committee's report within 40 days of its presentation. In 1919, King George V issued an Order in Council suspending the Dukedom of Albany (together with its subsidiary peerages, the Earldom of Clarence and the Barony of Arklow), the Dukedom of Cumberland and Teviotdale (along with the Earldom of Armagh) and the Viscountcy of Taaffe (along with the Barony of Ballymote). Under the Titles Deprivation Act, the successors to the peerages may petition the Crown for a reinstatement of the titles; so far, none of them have chosen to do so.

Nothing prevents a British peerage from being held by a foreign citizen (although such peers cannot sit in the House of Lords). Several descendants of George III were British peers and German subjects; the Lords Fairfax of Cameron were American citizens for several generations.

A peer may also disclaim a hereditary peerage under the Peerage Act 1963. To do so, the peer must deliver an instrument of disclaimer to the Lord Chancellor within 12 months of succeeding to the peerage, or, if under the age of 21 at the time of succession, within 12 months of becoming 21 years old. If, at the time of succession, the peer is a member of the House of Commons, then the instrument must be delivered within one month of succession; meanwhile, the peer may not sit or vote in the House of Commons. Prior to the House of Lords Act 1999, a hereditary peer could not disclaim a peerage after having applied for a writ of summons to Parliament; now, however, hereditary peers do not have the automatic right to a writ of summons to the House. Irish peerages may not be disclaimed. A peer who disclaims the peerage loses all titles, rights and privileges associated with the peerage; his wife or her husband is similarly affected. No further hereditary peerages may be conferred upon the person, but life peerages may be. The peerage remains without a holder until the death of the peer making the disclaimer, when it descends normally.

A title held by someone who becomes monarch is said to merge in the Crown and ceases to exist, for the Sovereign cannot hold a dignity from himself. The Dukedom of Cornwall and of Rothesay, and the Earldom of Carrick, are special cases, which when not in use are said to lapse to the Crown: they are construed as existing, but held by no one, during such periods. These peerages are also special because they are never directly inherited. The Dukedom of Cornwall was held formerly by the eldest son of the King of England, and the Dukedom of Rothesay, the Earldom of Carrick, and certain non-peerage titles (Baron of Renfrew, Lord of the Isles and Prince and Great Steward of Scotland) by the eldest son of the King of Scotland. Since those titles have been united, the dukedoms and associated subsidiary titles are held by the eldest son of the monarch. In Scotland, the title Duke of Rothesay is used for life. In England and Northern Ireland, the title Duke of Cornwall is used until the heir-apparent is created Prince of Wales. At the same time as the Principality is created, the Duke is also created Earl of Chester. The earldom is a special case, because it is not hereditary, instead revesting or merging in the Crown if the Prince succeeds to the Crown or predeceases the monarch: thus George III was created Prince of Wales and Earl of Chester a month after his father's death.

The Dukedom of Cornwall is associated with the Duchy of Cornwall; the former is a peerage dignity, while the latter is a UK Crown dependency operating outside of the laws of England and Wales. This is evidenced by over 150 Acts of Parliament, many of which acknowledge that the duchy is exempt from the laws that govern England and Wales.(2) For example, the duchy is exempt from the provisions of the Town and County Planning Act 1990. Therefore the planning laws of England and Wales do not apply to the duchy. This was evidenced in 2002 when Kerrier District Council objected to duchy plans to commence development on one of its properties. The Head of State of the Duchy of Cornwall informed an estate whose income goes to the Duke of Cornwall, or, when there is no duke, to the Sovereign. The duchy is now considered to be a private estate and conveys to the Prince of Wales the majority of his income. The only other Duchy in the United Kingdom is the Duchy of Lancaster, which is also an estate rather than a peerage dignity. The Dukedom of Lancaster merged in the Crown when Henry of Monmouth, Duke of Lancaster became King Henry V. Nonetheless, the Duchy of Lancaster still continues to exist, theoretically run by the Chancellor of the Duchy of Lancaster. Normally, however, the Chancellor does not exercise any actual duties related to the Duchy, so he is normally available as a Minister without Portfolio. The Duchy is the inherited property that belongs personally to the monarch, rather than to the Crown. Thus, while income from the Crown Estate is turned over to the Exchequer in return for a civil list payment, the income from the Duchy forms a part of the Privy Purse, the personal funds of the Sovereign.