Hereditary Peer - Letters Patent

Letters Patent

More often, letters patent are used to create peerages. Letters patent must explicitly name the recipient of the title and specify the course of descent; the exact meaning of the term is determined by common law. Normally, the patent specifies the peer's heirs-male of the body as successors; in such a case, the rules of agnatic succession apply, meaning that succession is through the male line only. Some very old titles, like the Earldom of Arlington, may pass to heirs of the body (not just heirs-male), these follow the same rules of descent as do baronies by writ and seem able to fall into abeyance as well. Many Scottish titles allow for passage to heirs-general of the body, in which case the rules of male primogeniture apply; they do not fall into abeyance, as under Scots law, sisters are not treated as equal co-heirs.

English and British letters patent that do not specify a course of descent are invalid, though the same is not true for the letters patent creating peers in the Peerage of Scotland. The House of Lords has ruled in certain cases that when the course of descent is not specified, or when the letters patent are lost, the title descends to heirs-male. It is possible, for some patents, to allow for succession by someone other than an heir-male. Several instances may be cited: the Barony of Nelson (to an elder brother and his heirs-male), the Earldom of Roberts (to a daughter and her heirs-male), the Barony of Amherst (to a nephew and his heirs-male) and the Dukedom of Dover (to a younger son and his heirs-male while the eldest son is still alive). In many cases, the peer in question had no sons, and the special grant was made to preclude an extinction of the peerage. However, in all cases the course of descent specified in the patent must be known in common law. For instance, the Crown may not make a "shifting limitation" in the letters patent; in other words, the patent may not vest the peerage in an individual and then, based on the occurrence of some event other than death (such as succession to a higher title) shift the title to another person. The doctrine was established in the Buckhurst Peerage Case (1876) 2 App Cas 1, in which the House of Lords deemed invalid letters patent aimed to keep the Barony of Buckhurst separate from the Earldom of De La Warr. The patent stipulated that, if the holder of the barony ever inherited the earldom, then he would be deprived of the barony, which would instead pass to the next successor as if the deprived holder died without issue.

Also, it is necessary for English patents to include limitation "of the body" as in "heirs-male of the body." The limitation indicates that only lineal descendants of the original peer may succeed to the peerage. In some very rare instances, the limitation was left out. In the Devon Peerage Case (1831) 2 Dow & Cl 200, the House of Lords permitted an heir who was a collateral descendant of the original peer to take his seat. The precedent, however, was reversed in 1859, when the House of Lords decided in the Wiltes Peerage Case (1869) LR 4 HL 26 that a patent that did not include the words "of the body" would be held void.

Letters patent are not absolute; they may be amended or revoked by Act of Parliament. For example, Parliament amended the letters patent creating the Dukedom of Marlborough in 1706. The patent originally provided that the dukedom could be inherited by the heirs-male of the body of the first duke, Captain-General Sir John Churchill. One son had died in infancy and the other died in 1703 from smallpox. Under Parliament's amendment to the patent, designed to allow the famous general's honour to survive after his death, the dukedom was allowed to pass to the Duke's daughters, the Lady Henrietta, the Countess of Sunderland, the Countess of Bridgewater and the Lady Mary, and their heirs-male, and thereafter "to all and every other the issue male and female, lineally descending of or from the said Duke of Marlborough, in such manner and for such estate as the same are before limited to the before-mentioned issue of the said Duke, it being intended that the said honours shall continue, remain, and be invested in all the issue of the said Duke, so long as any such issue male or female shall continue, and be held by them severally and successively in manner and form aforesaid, the elder and the descendants of every elder issue to be preferred before the younger of such issue."