§ 3. Real or supposed restrictions on Creation. With regard to restrictions on the Crown's right to create peers, one may say that the right to confer the dignity of the peerage is, as to the United Kingdom, unlimited; as to the Scotch and Irish peerage it is limited by the Acts of Union. with Scotland and Ireland. There is, however, some uncertainty as to the sort of estate in a dignity which the Crown may legally confer. And until the question of the legal existence of baronies by tenure was set at rest it was not absolutely certain that the holder of such a supposed dignity might not transfer it at his pleasure and so, to that extent, encroach on the royal prerogative of creating peers.

Let us take first the recognised limitations imposed by the Acts of Union.

tions in

Scotch

The Act of Union with Scotland provides that the peerage Limitaof Scotland shall after that Act be the peerage of Great Acts of Britain, and makes no provision for any increase of the Union. Scotch peerage, or for the maintenance of its numbers at peers. their then existing figure. It would follow that if the Queen made a new peer of Scotland he would not be admitted to vote at the election of Scotch representative peers. Indeed an Act of the present reign 1 takes away the right to vote in respect of any peerage in virtue of which the vote has not been exercised since 1800.

1

peers.

The Act of Union with Ireland provides that the Crown Irish may make one peer of Ireland for every three that become extinct after the Union until the number fall to 100, and that the number of Irish peers not entitled by the possession of other peerages to an hereditary seat in the House of Lords of the United Kingdom shall never fall below 100.

The Crown therefore cannot create a peer of Scotland; and can only create a peer of Ireland under the circumstances defined in the Act of Union with Ireland. We now come to Permissible limitathe doubtful question of the right of the Crown to create tions of

peerages,

I 10 & 11 Vict. c. 52.

said to be the same

as of

realty.

peerages with limitations which would not be admissible in the case of grants other than those of dignities.

In the Devon peerage case it was held that a grant of an earldom made to a man and his heirs male was good, a grant differing from an estate tail in the absence of words of procreation and from an estate in fee by reason of the restriction as to sex. In the Wiltes claim of peerage2 it was held that a similar grant was bad. There were other reasons for holding that the claimant in the Wiltes case could not sustain his claim, for William le Scrope the first Earl of Wiltes was alleged to have forfeited his earldom, upon his execution, in the troubles which ended in the dethronement of Richard II. But Lord Chelmsford seems to express a strong opinion that the grant was bad. He asks 'whether it is competent to the Crown to give to a dignity a descendible quality unknown to the law, and thereby to introduce a new species of inheritance and succession?' and adds, 'the question put in this way seems to answer itself. The Crown can have no such power unless there is something so peculiar in a dignity, so entirely within the province of the Crown to mould at its pleasure, that a limitation void as to every other subject of grant is good and valid in the creation of a peerage. No one has pushed the argument to this extravagant length, and yet, if any one limitation which the law prohibits in a grant of property may be applied by the Crown to the grant of a dignity, it is difficult to see how you can stop short of holding that there is no restriction upon the Crown's establishing any order of succession to a dignity, however novel and extraordinary.'

It must be admitted that the rule as to the possible limitations and the descent of dignities is by no means clear. Lord Chelmsford denies the right of the Crown to create by patent any limitation of a dignity which would not be permissible in the case of real estate. And this must be taken with the further restriction mentioned by Coke (1 Inst. 16, b.), that a

1 2 Dow & Cl. 200.

2 L. R. iv. H. L. 126.

man or woman might be ennobled for life but not for years, because then such a dignity might pass to executors or administrators; it would in fact be personalty.

creations

But it is difficult to see why the Crown should be restricted But in in creations by patent if the creation by writ confers an by writ, estate such as, in the case of realty, is unknown to the law. And that such an estate is conferred by writ seems clear from the words of Coke, who says that a writ of summons confers on the person summoned a fee simple in the barony without words of inheritance.' Such an estate would be to the grantee and his heirs general subject to the condition of taking his seat: but he qualifies this statement almost immediately by saying that thereby his blood is ennobled to him and his heirs lineal, Cruise commenting on these the limitadicta of Coke says, 'a person having a dignity by writ is not anomaltenant in fee simple of it, for in that case it would descend to ous. heirs general, whether lineal or collateral, of the person last seised; whereas a dignity of this description is only inheritable by such heirs as are lineally descended from the person first summoned to Parliament and not to any other heirs. It is in fact a species of estate not known to the law in any other instance except that of an office of honour'.'

tion seems

estate in

writ.

It would seem then that a dignity conferred by writ of Nature of summons and not expressly limited by an accompanying dignity by patent is like a donatio conditionalis such as the Statute of Westminster II was intended to perpetuate, or that it is an estate tail created without words of limitation and incapable of being barred. If, as seems tolerably clear, the Crown could at the present day create a barony by writ, it can create such an estate in a dignity as the law would not recognise in the

'Cruise, on Dignities, p. 100, and see Pike, Const. Hist. of the House of Lords, 124.

2 Hansard, vol. 140, p. 331. Lord Campbell says 'the writ without the patent is conclusive evidence of an intention to create a barony in fee which is clearly within the prerogative of the crown.' It is presumed that the 'fee' must be understood with the limitations cited from Coke on the previous page.

Baronies

by tenure;

grounds of claim.

First settlement

case of land and can thereby 'give to a dignity a descendible quality unknown to the law.' With submission it may be questioned whether Lord Chelmsford's reasoning in this part of his judgment in the Wiltes peerage case is well founded.

It remains to consider the vexed question of baronies by tenure, which, if they could be held to exist, would encroach upon the exclusive prerogative of the Crown to summon whom it will to its Councils and to the Lords' House of Parliament. But the question has been decided adversely to the validity of such baronies in the Berkeley peerage case.

The Berkeley peerage case came to be decided in 1861, upon a reference by the Crown to the House of Lords of a petition of Sir Maurice Berkeley to the Queen to be declared Baron of Berkeley and to receive a writ of summons to Parliament.

The ground of the petition was that Sir Maurice was for the time being entitled to the castle and lands constituting what had been the territorial barony of Berkeley; and it may be said shortly, that in order to prove his case the petitioner had to show, first, that the right to a writ of summons had shifted with the right to the castle and lands of Berkeley, and secondly, that it had shifted in such a way as to make a precedent for the disposition by will of a barony by tenure.

As to the first point the petitioner was able to make out a case. There were two settlements of the castle and territorial barony of Berkeley by which it might be alleged that the Parliamentary barony had been allowed to pass to the person for the time entitled under the settlement.

Of these settlements the first took place in the reign of of barony. Edward III, when Thomas, Lord Berkeley, with license from the Crown, settled the castle and lands constituting the territorial barony upon himself for life with remainder to his son Maurice in tail male. The result of this settlement was that when, in the third generation, male heirs failed in the direct line of descent, not only the lands but the writ of summons to Parliament went out of the direct line to the nearest male

heir'. There seemed no doubt that this was a genuine exercise of a right to direct the devolution of a barony by tenure, and that the baron summoned as just described was recognised by the House of Lords as entitled to the same precedence as though he had been in the direct line of descent.

settle

The second settlement was more doubtful in its application Second to the matter in dispute. William Lord Berkeley, in the ment. reign of Henry VII, having barred the entail above described by suffering a fine, settled the territorial barony upon the heirs of his body, with remainder to Henry VII, and the heirs of his body, with a reversion to his own right heirs. William died childless, and his lands passed under the settlement to Henry VII, and his brother Maurice was never summoned to Parliament. When Edward VI died childless the reversion fell in, and Maurice's great-grandson acquired the property and was summoned to Parliament, taking the precedence due to the ancient barony. But in the meantime, though Maurice Berkeley was never summoned to Parliament, his son Maurice was summoned, yet only as junior baron, and he never obtained the high precedence due to the old Berkeley barony. When Maurice died childless his brother Thomas was summoned, and on the death of Thomas, his son, also named Thomas, was summoned, and this last enjoyed the precedence of the old barony. Shortly before his death the reversion had fallen in by the death of Edward VI, and Thomas's son Henry obtained the Berkeley lands as well as the Berkeley peerage.

Upon these facts it seems open to question whether the Parliamentary barony was not recognised, with or without the precedence due to it, as vested in the heirs of William the settlor, during some part of the time that the territorial barony was vested in the Crown.

These two settlements made the strength of the claimant's

Maurice left sons of whom the eldest, Thomas, took the barony, but on his death left an only daughter, who was excluded from the succession by the entail. The barony passed to James, the nephew of Thomas and eldest grandson of Maurice, and this James was regularly summoned until his death in 1463.