HL Deb 22 March 1923 vol 53 cc529-36

LORD ASKWITH had placed the following Notice on the Paper:—

To move for a return of the Peerages called out of abeyance and the dates when they were so called out from the year 1600 to the present time, with particulars of the titles, ranks, dates of original Peerages, and number of years that each Peerage had remained in abeyance, and of any attainder or outlawry (with dates) which had to be reversed before the calling out; and also a return with similar particulars of the Peerages for which a claim was made, co-heirship admitted, but no action taken by the Crown, and the date of such claims.

The noble Lord said: My Lords, I do not make this Motion from any antiquarian or genealogical interest, however wise those reasons may be, nor do I desire to give undue work to the officers of this House. Probably in dealing with the Peerage question among the records of the House they will be able to obtain such Return without any undue difficulty. The reason I move is that it may be of considerable practical value at the present time in considering the question of Peerages in abeyance which have come up, and may come up, not only before the Committee for Privileges but also for the consideration of this House, and possibly may assist His Majesty's advisers and the Crown itself in the course they take with regard to Peerages in respect of which the practice has been varied during the course of years.

The history of the Peerage, as your Lordships know, has had considerable variations since it first started, and perhaps no portion of the theory attaching to the Peerage has undergone more variations than the question of abeyance. Abeyance itself, as compared with the theory of the middle ages, is a new thing. It did not arise as a custom until the reign of Charles II, and I think the Barony of Ferrers of Chartley was one of the first Baronies so called out of abeyance. Attention had also been drawn to the Barony of Windsor, 1660, the case of the Barony of Darcy in 1641, and the curious case of the Barony of Despenser in 1604.

But abeyances were called out for many years in favour of such fractions of Peerages as were entitled to a considerable portion of the whole, and they were called out only after very few years during which the abeyance ran. So much was this the case that, writing in 1825 with regard to the Barony of Ros, which had been called out of abeyance in 1806, the historian Nicholas made this remark: He is not aware of any similar instance of the grace of the Crown having been exercised in favour of the co-heir who did not wholly represent one moiety of the dignity, excepting in the case of the Barony of Zouche of Harynworth, which is not precisely a point, because though Sir Cecil Bishopp was only the eldest co-heir of one moiety of that Barony, no descendants could be traced of the co-heir of the other moiety after the time of the Commonwealth. The historian Nicholas may not have been exactly right. There are one or two cases which might throw doubt on such a sweeping statement, such as the case of the Barony of Clifford. Shortly afterwards the practice altered; a new practice came in. It was satirised in a very amusing way by Disraeli in his famous novel "Sybil," whore he talks of the way genealogies were got together and the way Peerages were disposed of to persons who came forward and claimed them.

Tho claiming and granting of Peerages met with a considerable rebuff during the Premiership of Sir Robert Peel, who refused to advise the Crown to call out several Baronies in regard to which the Committee for Privileges had found that the genealogies were correct and that they were in abeyance in certain co-heirs. He took no action, or advised the Crown to take no action, in the case of Fitzwalter and in that of the Barony of Wharton. Disraeli followed the same practice. He did, indeed, call out of abeyance the Barony of Mowbray, but he called it out in favour of Lord Stourton, who was already the senior Baron by patent, and in the case of the Barony of Wharton he gave one of the co-heirs a new Peerage, the Barony of Lamington, although the Barony of Wharton went back to the early sixteenth century. So both Disraeli and Sir Robert Peel evidently considered that there was no obligation on the Crown to call Baronies out of abeyance, and that they could be left in the condition in which they were without any action being taken by the Crown.

Since that date another change in the practice has taken place. Instead of Peerages being called out of abeyance in favour of persons who owned a considerable fraction of the Peerage or which had been in abeyance only a short time, we now find that Peerages have been given to claimants who owned but one thirty-sixth of the Peerage, with collateral lines where the co-heirs were not apparent owing to the strain not having been traced further and also in favour of claimants in one case where the Peerage had not been heard of for 547 years. To such an extent has this gone that during the last twenty years there have been nine Peerages called out of abeyance which have respectively been in abeyance for 440, 336, 297, 318, 547, 159, 185, 273, and 327 years. That is a very great change indeed from the system which existed since the time of Charles II, and although time is now not considered it has become much easier to obviate the difficulties which formerly existed with regard to time. Through the efforts of historians and the Colleges of Heralds and the investigation of experts pedigrees have become much more easy to trace. Records have been obtained from all sources.

Further, a ruling of the Committee for Privileges that, instead of a claimant proving every little point himself, he can make use of evidence that has been given by claimants to other Peerages and therefore bring in at somebody else's expense a whole mass of ancestors whose ancestry to himself he would have had to prove in detail and at enormous expense, has saved claimants very much difficulty, and has also led to a much speedier hearing and at the same time to far greater ease in obtaining Peerages.

You have, then, this state of affairs, that a very small fraction of a Peerage seems to entitle a person to that Peerage, and a very great gap between the period when the ancestor sat and the time when the claim is made is of no account, while at the same time you have a very great movement at the present moment towards what I might call syndicating Peerages. There are in this country certain families who have a very large number of Peerages in the family. In Scotland the devolution would generally go to the eldest daughter, and as the eldest daughter might marry a Peer and the title would go into his family, the tendency there would be, not for Peerages to go into abeyance, but for the number of Peerages to be reduced. In England, on the contrary, beginning in 1892 with two ladies to whom the Baronies of Fauconberg and D'Arcy were allotted, several claimants have come forward and divided up the Peerages of a family between them. That course has been followed in many cases, and, the senior coheirs not objecting, a junior line has come into the Peerage, sisters sometimes dividing Peerages between them. Recent instances have shown that where there are several sisters there is a regular division among them of the Peerages that happen to be in the family.

Surely this is a matter of which an observer might well take cognizance. It must cause difficulty to the Crown; it introduces an element into the conventions and situation of this House which does not reduce the numbers of the House—a point which I see Lord Newton is to raise this afternoon—while it affects the constitution of the House itself. A new system has sprung up quite alien to ancient history. Under that new system a family has the power, subject to the exercise of discretion on the part of the Crown, to bring into this House a considerable number of its members, and the Crown itself is in this difficulty, that certain Ministers in the course of the last hundred years have advised the Crown not to call Peerages out of abeyance, while other Ministers have advised that every Peerage should be called out of abeyance. That is invidious for the persons who have taken the trouble to claim the Peerage, and places the Crown in a very difficult position.

I do not wish to anticipate the details of this Return, if the noble and learned Viscount on the Woolsack is favourable to granting it, but I do think that in that ease it may raise possibilities for further consideration. Many years ago a Committee under the Chairmanship of Lord Redesdale recommended that Peerages in abeyance should not be called out after they had been in abeyance beyond a certain period. I am not sure that that would be the wisest method. I would prefer something simpler which would deal with the question in such a way that no Peerage should be called out of abeyance when no claim has been made and when the genealogy has not been proved for a period of, say, fifty years. That would at least give an opportunity to the Crown to discover what class of person is being dealt with, and whether it is feasible that a Peerage should be called out of abeyance.

That leads me shortly to one remark on the other portion of this Motion, the question of attainder and outlawry. If such a simple rule as I have suggested could be adopted, then the question of attainder or outlawry would be of very little importance. I do not know that outlawry has occurred at all, except in one case which was recently heard before the Committee for Privileges, that of an Irish Barony, where, even if the claimant had his outlawry reversed in a collateral line, he would not be a member of your Lordships House. With regard to attainders, these have been reversed chiefly with regard to those who took part in the Jacobite disorders in the eighteenth century. Recently the Houses of Parliament have taken to reversing an attainder of the time of James 1, and I am not sure that claims have not been made that attainders of the Tudor Sovereigns should be reversed. That is indeed going into very ancient: history and dealing with the proceedings of our ancestors in a manner of which it is very difficult to see the value.

It has been suggested that all attainders should be reversed en bloc, that criminality is not regarded as extending to the injury of descendants, and that the Forfeiture Act, although it is not, retrospective, might bring in the principle that the children were not guilty of any act of their fathers, and that a Peerage being inalienable nobody else would be affected. A far more simple way would be to deal with the question of abeyance itself, and if this Return provides any confirmation of the outline of difficulties that I have tried to bring before your Lordships, I shall consider whether it is feasible to bring some further Motion before your Lordships' House so as to give it further consideration, or to say that, on the request of the Crown, you would be willing to consider it. I beg to move.

THE LORD CHANCELLOR (VISCOUNT CAVE)

My Lords, the noble Lord has raised a question of considerable importance and also of some public and personal interest. As your Lordships know, Peerages usually fall into abeyance, some by attainder, and some because they are limited to heirs general, and have descended among a number of daughters, and so have become divided. In olden times it was very difficult to have a Peerage that had fallen into abeyance called out again. It was done only when the interval of abeyance was short and when the claimant held a very substantial share in the hereditament, as the Peerage was called. There is no doubt that the practice has somewhat changed, and from the beginning of the nineteenth century it has become more frequent for Peerages to be called out after a very long interval, indeed, sometimes, as the noble Lord said, after an interval of centuries, and to be called out upon the petition of a holder of some fractional part of the right to the Peerage. The Peerage has been revived in favour of that holder of a fractional part, to the exclusion and sometimes, I think, regrettable exclusion, of the holders of other parts of the hereditament, who have not taken the trouble or thought it worth while to petition.

The practice of calling out had been so frequent in the first half of the last century that, as the noble Lord has reminded the House, it became the subject of observation and even of satire. He referred to the passage in Disraeli's "Sybil," and I happen to have the passage here, where a character, who is referred to as a Peerage lawyer, is made to say this: The Whigs and I have so deluged the House of Lords that … if the Tories come in there will be no Peers made … if the Wigs go out … perhaps they may distribute a coronet or two among themselves; and I shall this year make three … In a word, if you wish to be Lord Bardolf I will undertake to make you so … which will give you precedence over every Peer on the Roll except three; and I made those; and it will not cost you a paltry twenty or thirty thousand pounds. Whether the emoluments of that particular industry are as great now as then the noble Lord perhaps knows much better than I do, but apart from that comment there is, in the Report made by Lord Redesdale's Committee an observation pointing out that the practice might be liable to be abused, and that the whole thing might well be looked into.

I think the time may have come—and this Return will show whether it has come—when such an Inquiry might well be made. In consequence of, or after, the observations to which I have referred, there was some cheek upon the practice of claiming old Peerages, but there has been a recent revival, and without making any reflection on anyone, I think that when the Return is made, and if the noble Lord again calls attention to the matter, there may be good reason for asking your Lordships, with the sanction of His Majesty, to consider and look into the whole matter and determine whether there ought not now to be some limit of time for these applications, and some rule as to the interest of persons who make them. I am very glad to accede to the noble Lord's request.

THE EARL OF BIRKENHEAD

My Lords, I have only a word or two to say on the subject, and my only reason for intervening in the debate at all is that for four years, in the capacity of Attorney-General, it was my duty to advise those of your Lordships who dealt with these matters. During the whole course of the time in which I argued these cases before your Lordships I inclined, as an independent adviser of the House, against the admission of these claims. I was not always successful, because those of your Lordships who presided over these cases very frequently took a view which did not commend itself to me, but the position which I took was a subordinate one; I could only put my point before your Lordships and leave it to you to determine.

I have not the slightest doubt that these claims have been too loosely admitted. I have not the slightest doubt that after, as the Lord Chancellor has said, 100 and even 180 years have passed, Peerages have been revived which, if they had been submitted, not to the juridical test imposed by this House, but to the ordinary tests imposed in ordinary legitimate cases in Courts of first instance, would never have been admitted. I sincerely hope that the result of the important point raised by Lord Askwith, and the observations of the Lord Chancellor, will be to see that these matters are in the future investigated in a spirit of extreme and grave vigilance, with which I am not satisfied some of the claims have been investigated in the past.

On Question, Motion for a Return agreed to, and ordered accordingly.