Barony of Grey of Codnor

HL Deb 27 July 1989 vol 510 cc1569-77

11.48 a.m.

Lord Wilberforce rose to move, That the report of the Committee for Privileges be agreed to (HL Paper 59).

The noble and learned Lord said: My Lords, I have the honour to present to your Lordships the Report of the Committee for Privileges in this matter and in due course to move that it be accepted by your Lordships.

As noble Lords know, the case concerns the Barony of Grey of Codnor arising out of a petition from Mr. Charles Legh Shuldham Cornwall-Legh that the abeyance of this barony be terminated in his favour. The report of the committee is submitted in House of Lords Paper 59, a pleasantly but rather deceptively slim volume, but is accompanied by a supplementary volume numbered 59/1 which contains a more detailed report of the proceedings of the committee, part of which your Lordships may find rather good reading.

As noble Lords will see, the report itself contains eight recommendations which I shall draw to your Lordships' attention, accompanied by a learned opinion from my noble and learned friend Lord Jauncey of Tullichettle, which will apprise your Lordships of the difficulties of what would otherwise appear to be a simple case. I feel that a little explanation—not in the nature of lecture, I hope—is necessary in this case for two reasons. First, there has not been a case of abeyance brought before this House for 50 years, and not all of your Lordships were present at that time. Secondly, the case itself is a little unusual, if not startling.

The abeyance itself has lasted for 493 years, which is not a record. There has been found a case of 547 years, but one must agree that, even by the standards of your Lordships' House, 493 years is rather a long time. Moreover, the present petitioner, Mr. Cornwall-Legh, has himself claimed only one twelfth part of the dignity, which again gives one pause for thought.

That makes it necessary to make it clear to your Lordships that this is a case—a rather exceptional case—of a barony by writ which is a peculiar type of peerage. Originally it was the primary source of peerage because peerages by letters patent, of which there are quite a number of representatives in this House, came in only in the 14th century.

Some noble Lords may not be familiar with the distinctive features of a barony by writ. There are two. First, as to origin, there is no document which describes the nature of the barony by writ or its tenure. The barony by writ arises, as one would think, from a writ of summons from the sovereign to attend Parliament, followed by, and this is very important, attendance in a Parliament—a properly constituted Parliament—by the person summoned. The necessity for personal attendance, on top of the issue of a writ, was, it appears, invented by that great lawyer, Lord Coke, in the 17th century. No one has been able to find out what he based it on, but it was obviously good sense because otherwise the House would have been deluged by people who claimed that writs had been issued. The necessity for sitting was obviously a sensible way of keeping down the numbers. At any rate, the necessity of sitting pursuant to a writ has been accepted ever since then. Noble Lords will see that that has an important bearing on the recommendations in this case.

So much for origin. Then one comes to the matter of descent. If one has a peerage by letters patent, as most of your Lordships do, the patent describes the nature of the descent as to heirs male, to heirs female, for life. It is there in the document. One does not have to look any further. But in the case of a peerage by writ of summons, there is no document and descent therefore depends on the common law and goes to heirs general. That brings about the situation of abeyance. It often happens that, if the holder of a barony dies without male heir and with only females succeeding him—daughters or aunts or collaterals—the females take as co-heiresses, no one of them being entitled to the barony. It is what is called impartible. Three co-heiresses have it, but no one has it in preference to the other. It is in abeyance until that situation is terminated. That situation remains until the abeyance is terminated, either through all the shares becoming reunited in one person or by the discretion of the sovereign.

There is one other point about the descent; namely, that co-heiresses take equally. There is no seniority and no primogeniture. The older has no preference over the younger, and the younger no preference over the older. There are cases in the books where abeyances have been terminated not in favour of the older of the co-heiresses but in favour of the middle one or of the younger one.

A peerage is in abeyance not having been amalgamated in the person of one single heir. What happens next, if one wishes to terminate it, is that a person—one of the co-heirs—puts in a petition to the Crown asking for termination in his favour. The Crown normally takes the advice of one of the Law Officers, the Attorney-General, who reports on the matter. He can either recommend acceptance or rejection of the claim or that the matter be referred to the House of Lords. That makes the important point that references to the House of Lords are facultative or optional. The House of Lords has no right to be consulted, although it often is. It is entirely in the discretion of the sovereign through the Attorney-General. When it comes to the House of Lords, the task of the House of Lords is strictly limited. It is to establish the facts, and it is for the establishment of the facts that the matter is referred to the Committee for Privileges.

I should refer your Lordships to the reference in this case in order that you may see the limitations on the duties of the House on this occasion. The reference in this case is in the following words: if His Majesty"—

I think that was King Edward VIII— being moved upon this Petition is graciously pleased to refer the same to the right honourable the House of Peers to examine the allegations thereof as to what relates to the Petitioners' title therein mentioned and to inform His Majesty how the same shall appear to their Lordships".

That was dated 3rd November 1936 and was signed "John Simon". That is the reference on which noble Lords are now called to act.

On the facts being found by the Committee for Privileges, if accepted by this House, the matter then goes to the Sovereign. It is then in the Sovereign's discretion to decide about the termination. The Sovereign may decide either not to determine at all or to determine it in favour of any one of the co-heirs. Unfortunately, it is not a matter for your Lordships. It is a matter for Her Majesty on, no doubt, taking appropriate advice.

I should mention two other points that arise out of the dates that I have given. Your Lordships may know that this House has previously been very concerned about the number of these abeyance claims, often dating a long way back to the misty past, which have come up and given rise to a great deal of inquiry and difficulty. So in 1926 the House established a Select Committee under the chairmanship of the noble and learned Lord, Lord Sumner, a distinguished Lord of Appeal, to inquire into the matter. The Sumner Committee produced an interesting and learned report, going into the whole history of these abeyances and peerages, and submitted a number of resolutions for presentation to His Majesty, King George V. That was done by an address presented to His Majesty which His Majesty accepted. His Majesty retains an ultimate discretion, but nevertheless the recommendations are those of the Sumner Committee and are normally thought to govern each case.

There are two important points contained in the recommendations. First, no abeyance should be considered which is longer in date than 100 years. Secondly, no claim should be entertained unless the claimant lays claim to at least one third of the dignity. Your Lordships will see at a glance that that particular petition would have fallen foul on both counts; it is much more than 100 years and much less than one third of a dignity

What happened was that the matter was referred by His Majesty to the Attorney-General, Sir Thomas Inskip, in July 1928. He gave a long advice and produced a report examining a number of the facts which was very valuable to us. He took the point that, as the claimant, who was then the present petitioner's father, had submitted his claim before the Sumner Address was presented to the Sovereign, he should not be bound by the limitations in those recommendations. Therefore, despite the fact that he was outside the recommendations, his petition should be admitted.

However, the father did not proceed with his claim. He died in 1934. The petition was then revived by his son, the present petitioner, in 1936. The succeeding Attorney-General, Sir Donald Somervell, then took the matter under advisement and, one may think rather benevolently, decided that the son should have the benefit of the relaxation of the rules granted to the father and therefore that the son's petition too should be allowed in, notwithstanding the Sumner recommendations.

So on that the present reference was made to the House of Lords. Your Lordships' committee took the view that, the reference having been made, whatever we might think about it, we were bound by the reference, called upon to act under the reference and must do our duty under the reference. One must of course add that no similar claim could now be made with any hope of success because clearly it would be excluded by the Sumner principles.

The second point is also rather startling. Your Lordships will notice that the reference by Sir John Simon to this House was as long ago as 1936. Of course one expects that peerage claims should proceed at a somewhat dignified and leisurely pace; but 53 years is by all standards a little slow. When I had the honour of being nominated as chairman of your Lordships' committee in June this year I thought that we had better look into this matter. I asked for the file and a very bulky file was obtained from the administrative offices of this House.

It appeared that the present claimant had submitted to the office claims for prolongations. adjournments and extensions of time on a number of occasions during that period. They had been granted on account of World War II, because of his public duties, in view of the expense etc. At any rate extensions were given from 1936 going very nearly up to the present time.

On that, and at any rate without the disapproval of the Solicitor-General, your Lordships' committee took the view that it would not be right to blame the petitioner for this delay or to exclude him from the doors of the committee on that account. So we entertained the claim.

I come at last to the report. The committee made a very careful inquiry into this matter. Matters were put before it in the form of 105 propositions, each of which was supported by detailed evidence. That evidence extended into a great number of documents, comprising I believe 1,000 pages (although that figure could be a little misleading because one should not double count both the mediaeval Latin and the translations). At any rate there were a great number of pages in a great number of documents of great interest, as well as heraldic evidence, tombstones and so on which had to be looked at.

All that was very carefully checked by the Crown through the Treasury Solicitor's office and carefully analysed for us by the Solicitor-General. We had the benefit of some very learned evidence from Mr. Woodcock, the Somerset Herald. On the basis of that, these recommendations were put forward.

Perhaps your Lordships would be good enough to look at them. I can dispose of them fairly quickly. The first is: That the Barony of Grey of Codnor is an ancient Barony in fee".

There is no doubt about that.

The second recommendation requires a moment of attention because it states that it was proved by the sitting of Richard de Grey in Parliament on 17th December 1397 that the Barony of Grey was vested in the aforesaid Richard de Grey in the reign of Richard II. The case as originally put forward was that an ancestor of Richard de Grey in 1298 had first been summoned to Parliament. That is undoubtedly the case. Each of the three so-called "Lord Barons of Grey" were summoned to Parliament but your Lordships' committee was not able to find any evidence that they actually sat in Parliament. Indeed, the petition of the petitioner does not allege that they sat in Parliament. Your Lordships will appreciate the difficulty of establishing that a certain man did sit in a particular parliament and that that parliament was a properly constituted one.

However, we were perfectly satisfied—and your Lordships will find it analysed in detail in the opinion of my noble and learned friend—that Richard de Grey, the 4th baron, did sit pursuant to a writ in 1397; and with the consent of the petitioner himself, and with the approval of the Solicitor-General, your Lordships' committee decided that the right date to take was 1397 rather than the earlier date of 1298. That of course is of some importance from the point of view of precedence, because it would be a matter of considerable hesitation before your Lordships were inclined to displace a number of well established baronies in due order of precedence. One clearly should not do so without very definite evidence. Therefore we did not feel that it was right to date the barony earlier than 1397.

As to descent, this matter is really fairly simple in presentation although it took a lot of time to investigate. Your committee found that there were three co-heiresses of the last baron who died without legitimate, although not altogether without illegitimate, issue. They seem to have been very estimable people incidentally and were very well provided for by the baron at the time.

On page vi of the report your Lordships will find a short summary of the heirs. This is taken from my noble and learned friend's opinion and there are detailed pedigrees of course to be found in the report of the proceedings. There are three ladies: Lucy, Eleanor and Elizabeth. One of the main points that troubled the committee was whether any of those three or all of them ever existed.

It is clear that Elizabeth existed. However there was some doubt about the existence of Lucy and Eleanor. Your Lordships' committee came to the conclusion, mainly on the strength of a document of Henry VIII and some valuable heraldic evidence that satisfied us, that both Lucy and Eleanor existed as co-heiresses as well as Elizabeth.

Your Lordships will then see under Lucy the name of Thomas Cornwall—that is the descent through which the present petitioner claims; the other co-heirs claim through the other branches. Under Eleanor the present 7th Earl of Bradford claims as a co-heir. Under Elizabeth, as your Lordships will see in a moment, there is something of a problem.

Under paragraph (iii) in the resolutions, your Lordships will see the finding that the barony fell into abeyance between the heirs and co-heirs of the three paternal aunts Lucy, Eleanor and Elizabeth Zouche. Paragraph (iv) deals with the representatives and co-heirs of Lucy and those persons are listed. There are detailed pedigrees of those persons should your Lordships wish to consult them.

But your Lordships should notice the last words, which read: and the heirs, if any, of Mary, younger daughter of the 11th Lord Zouche".

That is a case in which inquiries ran into the sands. We were not able to find out whether Mary, daughter of the 11th Lord Zouche, had any heirs and therefore that has to be left uncertain.

Paragraph (v) is a clear case. The descent is clearly traced from Eleanor Newport down to the 7th Earl of Bradford, who now sits in this House.

Paragraph (vi) deals with the case of Elizabeth. We were able to find that she had issue but we were not able to discover whether any descendants of such issue now exist.

So this is quite in accordance with practice and the petitioner is required to satisfy the committee that all proper and possible inquiries have been made with a view to tracing these particular classes of issue. The committee is entitled to find that such proper inquiries have been made, and investigations conducted, and to put forward its report on that basis. That is what we have done.

Finally, we come to the conclusion that the barony is in abeyance before the aforesaid representatives and co-heirs and the heirs of the said Elizabeth Zouche; it comes to the total of 12 people; and finally, that the Barony of Grey is at Her Majesty's disposal.

As I have already made clear to your Lordships, it is now a matter for Her Majesty to decide in Her discretion what to do with the barony. The facts have been found by the committee. If your Lordships consider that the committee has done its job and has achieved the task referred to it by the Home Secretary in 1936, your Lordships may think fit to agree with this report. I beg to move that your Lordships accept the report.

Moved, That the Report of the Committee for Privileges be agreed to (HL Paper 9).—(Lord Wilberforce.)

12.11 p.m.

Lord Mowbray and Stourton

My Lords, having heard the noble and learned Lord, Lord Wilberforce, I am amazed at my temerity in daring to put my name down to speak after him.

This morning we are witnessing the final stage of the appeal to the Crown to determine the abeyance of the ancient Barony of Grey of Codnor in favour of the petitioner, Mr. Charles Cornwall-Legh. The noble and learned Lord, Lord Wilberforce, in his splendid oration on the mediaeval period, and his most detailed explanations, has put us all heavily in his debt. I should perhaps mention that two of my peerages are of the kind known as by writ—which he so well described—and my third peerage, Stourton, is by letters patent. I am therefore an animal of both types. As he pointed out to us, it is now 83 years since the petitioner's father began what was to become this very long case, and, as has been said, 493 years since this peerage was last in existence.

It will probably be the last such case to be allowed, since in 1927, as the noble and learned Lord told us, it was recommended that no petition for the determination of an abeyance should be entertained if it had subsisted for more than 100 years. But an exception was made for this particular barony as it had got into the pipeline, so to speak, just in time. The last case previous to this dealing with such a long abeyance was of course the ancient Barony of Strabolgi called out in 1916 in favour of the grandfather of the present distinguished holder of the title, himself a member of the Committee for Privileges whose report we are now discussing.

I find it interesting that the last Lord Grey of Codnor left a widow on his death in 1496—Katherine, who was sister to my direct male ancestor, Edward 6th Lord Stourton, and she enjoyed her Grey jointure until her death in 1521. Another point of interest for me about the Greys of Codnor is the fact that they were responsible for bringing the Carmelites to this country and settled them on their estates at Aylesford in Kent, where the priory of their foundation continues to flourish--very remarkably still with Carmelites.

The noble and learned Lord, Lord Jauncey of Tullichettle, played a leading part in the Committee for Privileges and possibly it is the first time that a Scots legal brain has been found in a Law Lord dealing with an English peerage case. I found his broad sweep of inquiry most refreshing.

The finalisation of this case will give great pleasure to one whom I consider one of the greatest genealogists and heralds; namely, Sir Anthony Wagner, now clarenceux king of arms, a former distinguished Garter. It was he who was in charge of the research in this case from 1936 until 1983, when illness forced him to hand over the completion of the works still remaining to be done to Mr. Thomas Woodcock, Somerset Herald. It was Mr. Woodcock who was able to overcome one of the last difficulties by a piece of heraldic evidence—found, curiously enough, owing to the compiling of a new index of heraldic arms in the college by Sir Anthony in his time. It is amusing to think that it is only 140 years ago that Disraeli produced his Sybil where he invented Mr. Hatton, the famous peerage lawyer of the Inner Temple, who explained to a client, "If you wish to be Lord X, I will undertake to make you so and will give you precedence over every peer in the roll except three (and I made them) and it will not cost you a paltry £20,000 or £30,000".

The days of the Mr. Hattons have long gone and it is refreshing to see the result of such long labour and research rewarded by such a succinct report to this House. I congratulate the noble and learned chairman and all the other members of the Committee for Privileges.

12.17 p.m.

Lord Campbell of Alloway

My Lords, my name is not on the list but I have been told that I may speak briefly with your Lordships' leave. I wish to say very little other than to thank the noble and learned Lord, Lord Wilberforce, not only for moving this Motion but also for the way that he moved it. It was a truly great personal privilege to be able to serve under his chairmanship. I think that your Lordships would wish a word of tribute to be paid to the noble and learned Lord not only for his industry in sorting out a mass of complex material—the noble and learned Lord referred to a bulky file; there were many bulky files with family trees, and so forth—but also his expertise in having sorted out before we sat all the salient issues. Without that, this hearing could have taken several weeks instead of a matter of days.

A word of gratitude is due to the noble and learned Lord, Lord Jauncey of Tullichettle, for his most detailed and erudite opinion with which all members of the committee agreed. I suppose one may end with a word of congratulations to my noble friend Lord Mowbray and Stourton, who remains premier Baron, albeit by a whisker.

12.18 p.m.

Earl Ferrers

My Lords, my name is not on the list either. The only reason I seek to make a very short intervention is not because the Government have any views on this—they do not—but simply to thank the noble and learned Lord, Lord Wilberforce, and his committee for what they have done. My noble friend Lord Campbell of Alloway said that he found it a great privilege to serve under the noble and learned Lord, Lord Wilberforce. I found it an enormous privilege to listen to the noble and learned Lord. His speech contained history, genealogy, and documents in Latin. It was fascinating. We are deeply grateful to him.

The noble and learned Lord said that he did not wish to divest himself of a lecture. Had anyone put his speech into such a category—nobody did and nobody would—I can assure him that it would have been a very acceptable lecture.

12.19 p.m.

Lord Wilberforce

My Lords, I need say nothing more in closing except to remedy an omission. I notice that the report does not contain the names of the Committee for Privileges set up by your Lordships. Your Lordships should know that it consisted of the noble and learned Lord, Lord Elwyn-Jones, with his great experience as a Law Officer; the noble Lord, Lord Strabolgi, to whom reference has been made, who was associated with these matters personally; the noble Lord, Lord Campbell of Alloway; and my noble and learned friend Lord Jauncey, of Tullichettle. I am grateful to them for all the support they gave and the kind words that have been said.

I should like to add our gratitude to the staff of the Judicial Office, who showed great efficiency in printing all these documents and making them accessible to your Lordships, thus enabling this matter, which only started its way in the committee in June 1989, to reach its final stage just before the end of the Session. That may console us a little for the long period which elapsed before then. I commend the Motion.

On Question, Motion agreed to, the resolution and judgment to be laid before Her Majesty by the Lords with white staves.