Cox, Noel --- "Property law, imperial and British titles: The Duke of Marlborough and the Principality of Mindelheim" [2009] ALRS 26; (2009) 77 The Legal History Review/Tijdschrift voor
Last Updated: 16 August 2010
Property law and imperial and British titles: The Dukes of Marlborough and the Principality of Mindelheim
Noel Cox[1]
Abstract
The title of prince of the Holy Roman Empire was conferred in 1704 upon all the children heirs and lawful descendants, male and female, of John Churchill, the first duke of Marlborough. The title of prince of Mindelheim was granted in 1705 to all male descendants and daughters of the first duke. But following the Treaty of Utrecht in 1713 and the Treaty of Rastatt in 1714 the principality passed to Bavaria. The right of the dukes of Marlborough to use the style and title was thus lost, and any residual rights would have expired in 1722 on the death of the duke, as they could not pass to a daughter (unlike his British titles). Despite this it is still common practice to describe the Duke of Marlborough as a Prince of the Holy Roman Empire and Prince of Mindelheim. This paper considers the differences in the treatment of the descent of the British and imperial titles.
Keywords
Duke of Marlborough; John Churchill; Principality of Mindelheim; Principality of Mellenburg; prince of the Holy Roman Empire; peerage; statutory entail; alienation;
Introduction
Field Marshal Sir John Churchill, first duke of Marlborough, was one of the
greatest military commanders in history. He held the office
of Captain-General
of the English and then British army (the late seventeenth and early eighteenth
century equivalent of Commander-in-Chief
of the Forces), in 1690-1691 and
1702-1711. During the War of the Spanish Succession he was commander-in-chief of
the combined armies
of Great Britain and the Netherlands, and his greatest
victories over the French were at Ramillies (1706), and Oudenarde
(1708).[2]
But it is
for the Battle of Blenheim (1704), in which Anglo-Austrian forces, led by
Churchill and the Austrian general, Prince Eugene
of
Savoy,[3] defeated the
French and Bavarians under the French marshal Camille, Duc de
Tallard,[4] and the
Elector Maximilian II Emanuel of Bavaria, that Churchill is best remembered. It
was also this victory, above all others,
which cemented his European reputation,
and which led to him being given the titles which he, and his wife Sarah, had
sought.
Churchill’s military achievements were matched by his (and his
wife’s) political and social ambitions. He was always ready
to accept, and
often actively sought, what he saw as appropriate recognition for his undoubted
talents. It was a sign of his eminence
as a general – and of the
relatively permissive nature of English society – that he rose so high in
the army and then
the political elite, given his own modest and relatively
humble origins. Indeed the dukedom of Marlborough is the only British dukedom
still in existence to have been conferred on a man who was born the son of a
commoner, and with no prospect of inheriting either
a title or large
estates.[5] Churchill
was a self-made man, unusual at this time in England, but even more so in
Germany. As shall be shown, this difference was
to have important consequences
for Churchill, and his family.
Another distinction which Churchill eagerly
accepted – though his influential wife, Sarah, was
opposed[6] – was
the rank and title of a prince of the Holy Roman Empire. This was conferred upon
the duke by a grateful Emperor Leopold
I, after the victory at Blenheim. The
substantive principality of Mindelheim followed in 1705; thus making John
Churchill Fürst
von
Mindelheim.[7] No
British subject before or since ever received a territorial principality of the
Holy Roman Empire, though many have received foreign
titles,[8] some of them
imperial; and one, Richard of Cornwall, Earl of Cornwall and Count of Poitou,
was even briefly King of Germany (formerly
“King of the Romans”,
heir to the imperial
crown).[9]
But the
duke’s humble origins were to present a particular challenge to the
imperial authorities, for many of the existing imperial
princes were opposed to
Churchill being honoured in this way, though they may have owed their own
thrones to Churchill’s abilities
as a general. The Churchills were a
long-established West Country family of minor gentry, armigerous, and claiming
descent from Roger
de Courcil, alleged companion-in-arms to William the
Conqueror. But they were commoners, and not regarded as at all equal in blood
to
the other princes of the Empire. Indeed, in accordance with established English
law, Churchill’s immediate and more distant
family, even his son, known by
the courtesy title of Marquess of Blandford, remained commoners even after his
own ennoblement.
The great duke’s only son, John Churchill, Marquess of
Blandford, had died of small-pox at Cambridge in February 1703, only
two months
after his father had been created duke of Marlborough and marquess of
Blandford.[10] These
titles had been created with the usual remainder to his heir male. To prevent
their extinction with the death of the first
duke, his English titles, were
settled on his heirs female by the Duke of Marlborough Annuity Act
1706.[11] The manor of
Woodstock, which was granted 28th January
1705[12] with an
estate of 9,000 hectares (22,000 acres) in Oxfordshire, Blenheim Palace (built
on the manor),[13] and
a pension of £5,000 a year on the Post Office, were similarly treated. A
statutory entail was relatively uncommon, but the
alteration of the peerage
grant was especially unusual.
In the event, the duke was to have no further
sons, and John Churchill was succeeded on his death in 1722 by his eldest
daughter,
Henrietta, as duchess of Marlborough in her own right. Her own son,
William Godolphin, Marquess of Blandford, died in 1731, and on
her death she was
succeeded as third duke by Sir Charles Spencer, his son, who was also her
nephew, as Henrietta’s sister Lady
Anne Churchill had married Charles
Spencer, third earl of Sunderland. Sir Charles Spencer’s younger brother,
the Honourable
John Spencer, of Althorp, Northamptonshire, was the ancestor of
the earls Spencer.[14]
The fifth duke took the surname Spencer-Churchill in 1817, but the dukes are in
fact direct male line descendants of John Churchill,
first duke of Marlborough,
through his second daughter.
The present duke is John George Vanderbilt
Henry Spencer-Churchill (the 11th duke). His British
titles are duke of Marlborough (England 1702), marquess of Blandford (England
1702), earl of Sunderland (England
1643), earl of Marlborough (England 1689),
baron Spencer (of Eyemouth, England 1603), and baron Churchill (of Sandridge,
England
1685). The Spencer connection brought the titles of earl of Sunderland
and baron Spencer, and John Churchill had himself been given
the other titles.
The Duke of Marlborough Annuity Act
1706[15] did not
affect the imperial titles, which accordingly became extinct upon the death of
the first duke of Marlborough, in 1722 (though
his daughters remained princesses
of the Holy Roman Empire until their own deaths). Therefore Henrietta, duchess
of Marlborough (in
her own right, in accordance with the special remainder of
the Duke of Marlborough Annuity Act
1706[16]), the second
of the line, was also the last of the family to enjoy imperial honours. She
could not pass the imperial title to her
son, nor could she pass it to Charles
Spencer, third duke of Marlborough.
Neither could Henrietta, duchess of
Marlborough and Charles, duke of Marlborough, be princess or prince respectively
of Mindelheim,
though, in part, for different reasons. This paper considers the
reasons why the title of Prince of the Holy Roman Empire, and the
Principality
of Mindelheim, could not be held by the dukes of Marlborough after the death of
the first duke, despite common repute
to the contrary.
Imperial titles for Churchill
Most standard reference books describe the current duke of Marlborough as a
prince of the Holy Roman Empire (1704), and as the prince
of Mindelheim
(1705).[17] This would
appear to be legally incorrect, at least in part, if not wholly so, for the
reasons given above. We may ask how could
this confusion might have arisen. To
answer that we must look at the circumstances of the creation, and the nature of
the titles
bestowed.
Count Johann Wenzel Wratislaw, envoy of Emperor Leopold
I, had conveyed to the duke a proposal to create him a prince of the Holy
Roman
Empire, with territory and a seat in the imperial
Diet.[18] This was not
to be merely a titular honour, like his English dukedom and lesser titles, but a
substantive territorial principality.
The empire was a form of federation, with
member states enjoying varying degrees of independence. Since the Peace of
Westphalia in
1648 the tenants-in-chief of the emperor were deemed to be
sovereign princes, however miniscule their territories might actually
be.[19] This meant
that Churchill would possess not merely an honorific imperial title, but also
his own independent territory.
The duke wrote to his wife Sarah, on
4th June 1704, that Count Wratislaw had told him that
the Emperor wanted to make him a sovereign prince of the
empire.[20] The
duchess was not eager, but did not actively oppose the plan. The emperor sought
the formal approval of the Queen,
Anne.[21] This was
duly given – something which Queen Elizabeth I would never have
done,[22] nor,
probably, later Sovereigns.
But Leopold had acted precipitously, and
difficulties were now encountered. There were no imperial lands then available,
which necessitated
a delay. But more importantly reservations were expressed by
some existing imperial princes. Churchill was a new man, only a small
country
gentleman, from a country at the very edge of Europe, indeed one that was
outside the boundaries of the
empire.[23] But,
though faced with opposition from some the largely German imperial nobility, the
emperor felt personally committed to grant
Churchill at least an honorific
title[24] – the
princely title, but without sovereignty or a seat in the imperial parliament,
the diet. This initially was what Churchill
received, though this itself was to
cause its own problems.
Like peerages, imperial titles descended (and indeed
still descend, where the families survive) in accordance with the conditions
of
the original grant. Most of these were to all male descendants of the grantee
and their daughters. Thus the sons of a prince would
be
princes,[25] and each
would pass the title to their sons, and so on ad infinitum. But, in the
case of a sovereign territory, only the eldest son would actually be the ruler
(on the basis of the principle of masculine
primogeniture), though all male
members of the family would enjoy the title. Although daughters would have the
style of princess,
they would not pass this to their own sons or daughters.
The title of prince of the Holy Roman Empire was granted to Churchill, all
his children, heirs and lawful descendants, male and female.
But did this mean
male descendants, his daughters and their descendants? Churchill may have
assumed that it did, when he wrote:
What is offered will in historie for ever remaine an honour to [our] family.[26]
He was either assuming that the title was subject to a special remainder, so
that it would pass through a daughter (as his English
titles were later to do),
or that he would have a son to succeed him. The former is most likely, though
the Duke of Marlborough Annuity
Act
1706[27] was yet to be
passed.[28] Yet the
evidence indicates that this interpretation was not shared by the German
princes, who were opposed to the notion of female
succession, or succession
through the female
line.[29] In no case
was an imperial title, titular or substantive, inherited by all heirs, male and
female. In any case, as the duke was 54
years old, the birth of a son was not
altogether out of the question, though Sarah duchess of Marlborough was by then
too old to
bear a child herself. Remarriage in the event of Sarah’s death,
and the subsequent birth of a son and heir, were remote possibilities
at
best.
The emperor had promised Churchill not merely a title, but also a seat
in the Diet and a sovereign territory of his own. He was now
in a difficult
position. He could at least give him a title – and leave the question of
territory, and succession, for later
and more settled times. Emperor Leopold
informed Churchill on the 28th August 1704 that he had
created him a Prince of the Empire, with the rank of Highness, and addressed him
as “Most Illustrious
Cousin and most dear
Prince”.[30]
This title was to be for himself and his heirs male and female.
But
Churchill had wanted an effective principality, not an empty
title.[31] This was
known in Germany. Wratislaw told the emperor that a principality would be
necessary to avoid offending a man on whom the
empire, then in the last century
of its long life, still
depended.[32] Leopold
was caught in an awkward position, since he could not afford to offend the
German princes of an empire which had possessed
more appearance than substance
for centuries.
A territorial principality was however eventually granted, and
Churchill was created prince of Mindelheim, in Suabia, on
18th November 1705, ironically not by Leopold, but by
his son, Emperor Joseph. Churchill was invested with the principality at an
imperial
Diet at Innsbrück on the 24th May 1706.
Thus Churchill was finally to have a seat in the imperial diet, and a sovereign
principality, as he had desired.
But what was the nature of these titles?
There were two forms, titular and substantive. But the distinctions were not
clear-cut. The
honorary status of prince of the Holy Roman Empire might be
granted to certain individuals, and might become effective as a sovereign
principality in time, if certain conditions were met. The individuals who
received princely titles included:
(i) Independent sovereigns outside the Empire (such as the Grand Master of the Sovereign Military Order of Malta[33]);
(ii) Sovereigns who were vassals of the Empire, but outside its territory (such as the Prince of Piombino[34]);
(iii) Members of the Empire, like the Princes Kinsky[35] or Paar, and those who never had a vote or seat, but held a seat as count in one or several of the four comital councils, or who had neither a vote nor a seat in the imperial Diet (as Salm-Reifferscheidt-Raitz[36]); and
(iv) Foreigners of note,[37] like the Princes Belmonte,[38] Chigi,[39] Orsini,[40] Orloff,[41] Potemkin,[42] Lubomirski,[43] and Radziwill.[44]
The effective co-states of the Holy Roman Empire, or Reichsstand, had to meet three conditions or requirements post-1648 to be sovereign rather than merely titular:
(i) holding of an immediate fief of the Empire;
(ii) a vote (votum
virile) and a seat in the imperial Diet; and
(iii) direct participation
in the expenses of the empire.
Not all princes met all three requirements, so one may distinguish between
effective and honorary princes of the Holy Roman
Empire.[45] Churchill
wished for, and received, the former (effective – a sovereign
principality), having first been made one of the latter
(an honorary
principality). But these two principalities remained distinct, with Churchill
being both a Prince of the Holy Roman
Empire, and the Prince of
Mindelheim.
Despite opposition from many princes, the imperial authorities
sought a principality for Churchill, to give him an immediate fief
of the
Empire. The king of Prussia proposed a grant of the principality of
Donauwörth. This did not, however, proceed. Instead,
Churchill received the
principality of Mindelheim, which had been bought by an elector of Bavaria in
the sixteenth century. This
had been confiscated from the Elector Max Emmanuel
in 1704 for his treachery, and was effectively occupied by imperial forces after
the battle of Blenheim. It was therefore available to be given to a new prince.
What better man to be the new prince of Mindelheim
than the victor of Blenheim,
saviour of the empire?
The principality of Mindelheim was situated south of
the Danube, 45 kilometres (28 miles) south-west of Augsburg, and 77 kilometres
(48 miles) west of München. It covered an area of 39 square kilometres (15
square miles),[46] and
had a nominal income at this time of
£1,500.[47]
Churchill had to meet the cost of the imperial investiture, which was reduced to
£4,500[48] from
the usual
£12-15,000,[49]
as a special favour by the emperor. He also avoided a wartime imperial tax of
£6,000.[50]
Churchill now held an immediate fief of the Empire, had a vote and a seat in
the imperial Diet, and (perhaps less welcome) direct
participation in the
expenses of the empire. His principality was effective and substantive, and not
merely honorary. The king of
Prussia, an ally of Churchill, through his
representative the prince of Anhalt-Dassau, moved that the title should descend
successively
to all the heirs of Churchill’s body. But many of the princes
were opposed to this. The lack of a male heir would prevent the
Churchills
becoming hereditary princes of the empire, and this fact was essential to the
eventual agreement of the princes. Thus
no special remainder was
provided[51] –
thus rendering Churchill’s notion of “an honour to [our]
family”[52]
rather nugatory. Perhaps he thought that the Duke of Marlborough Annuity Act
1706[53] applied to
the principality, but at least he now had an effective personal principality.
The “honorary” prince of the
Empire (1704) was a different matter,
since this did not bring with it a seat in the diet, nor the control of any
territory.
Churchill visited Mindelheim in late May 1713 (just after the
Treaty of Utrecht was signed), receiving royal honours from his
subjects.[54] But the
fate of the principality, and of Churchill’s effective sovereignty,
depended upon the details of the peace treaty which
would bring the war to an
end. Since the threat of France was ended Churchill was no longer needed by the
empire, and he was to pay
price. The Principality of Mindelheim was lost in 1714
to the elector of Bavaria, without any compensation being paid to the
duke.[55]
Churchill retained the rank and title of (titular or honorary) prince, under
the 1704 grant. He died without male heir 1722, and was
succeeded by his
daughter in his British
titles.[56] The
duchess was succeeded by the third duke (her grandson) in 1733, and the present
duke is descended in the male line from that
duke. But Churchill ceased to be de
facto and de jure Prince of Mindelheim in 1714, and the family lost any possible
claim to the
Principality in 1722, as no succession by females or through the
female line was tolerated in the empire.
It has been suggested that, after
Treaty of Utrecht in 1713 (and the Treaty of Rastatt in 1714, between France and
the Holy Roman
Empire), Mindelheim was exchanged for the county of Mellenburg,
Upper Austria, which was then elevated into a principality by Emperor
Charles
VI.[57] But other
sources state simply that Emperor Charles VI wrote apologetic letters to
Churchill,[58] and
that he did not replace Mindelheim. The immediate sense of obligation in
1704-1706, which had led the imperial authorities to
grant Churchill an
effective principality, no longer exited, and a merely titular principality was
deemed sufficient for the English
general.
Ultimately, as will be seen, it
is probably of only academic interest whether Mellenburg was indeed conferred
upon Churchill, since
neither principality could have remained in the possession
of the family after the death of the duke in 1722.
Churchill lost his seat
and vote in the imperial Diet, a price he perhaps thought worth paying in the
cause of peace. His descendants
might have become one of the mediatised houses
of the empire had they retained their principality until the end of the empire,
but
they did not do so. Mediatised houses are those families that occupied
sovereign territories within the Holy Roman Empire and its
successor states in
what is now modern Germany and
Austria.[59] But not
every intermediate state enjoyed the same status. Some princes were mediatised,
though they were never independent, such
as those members of the Diet ad
personam (“personaliter”). Mediatised duchies, principalities
and counties of the Empire also included princes entitled to a collective
vote
as members of one of four comital councils. Mediatised ducal, princely and
countly families (the “standesherm”)
were concentrated in Suabia,
Franconia, and the Wetterau in north-west Germany, where indeed Mindelheim was
located.
But mediatised princes, who continued to enjoy recognition as
quasi-sovereign although they lacked territory, were a creation of the
last
years of the eighteenth century and the early part of the nineteenth, by which
time the German-dominated princes had largely
forgotten the man whom many had
dismissed as the “upstart Englishman”. More importantly, no special
provision had been
made for his imperial titles to pass to the issue of his
daughters (or indeed to his daughters). The imperial honorary titles must
thus
have expired with the death of his younger daughter, Lady Mary Churchill
(duchess of Montagu), in 1751, and the effective principality
was lost much
earlier.
Whatever the situation regarding his imperial lands and titles,
Churchill’s British titles, and his estate at Woodstock, were
profoundly
different, and were subject to special statutory provisions, and did pass to the
heirs of his daughters.
Alienation and statutory entails
The rewards Churchill received from Queen Anne (and earlier King William III)
included titles and land. Statutory restrictions on
the disposal of Crown lands
necessitated the passage of the statute 3 & 4 Anne c 6 (1704). Due to the
death of the first duke’s
son, the marquess of Blandford, and the
increasingly unlikely prospects of a son and heir being born to the duke, as
noted above
a special remainder to the titles was provided by the statute 6 Anne
c. 4 or 7 (1706). A special remainder serves to alter the rules
of succession
which would otherwise apply to a peerage. In the event of failure of his male
issue, the British titles, and Blenheim
Palace and its estates, were to pass to
Churchill’s daughters and their male issue in tail male severally in
succession with
remainders
over.[60]
This was
in accordance with the normal rules for the descent of peerages, subject only to
the statutory special remainder. As Lord
Wrenbury observed in the Rhondda
Case in the House of Lords:
A peerage is an inalienable incorporeal hereditament created by the act of the Sovereign in which, if and when he creates it, carries with it certain attributes which attach to it not by reason of any grant of those attributes by the Crown, but as essentially existing at common law by reason of the ennoblement created by grant of the peerage.[61]
The key difference from the position of the principality of Mindelheim is
that here (with the British titles) we are concerned with
a titular honour
– though one which gave membership of the House of Lords until 1999. It
was not one which enjoyed territorial
sovereignty, or indeed had any lands
inherently associated with
it[62] –
although the manor of Woodstock, in Oxfordshire, which had an estate of 9,000
hectares (22,000 acres), was associated with
the title. Unlike the imperial
fiefdoms, possession of which were jealously guarded by the imperial diet and
the wider body of princes,
membership of the House of Lords was relatively
freely granted – and thus the presumption was that Churchill’s
titles
would be hereditary, as a family honour.
The first element of a
British peerage is that it is a title or dignity created by the
Crown.[63] But it is
also in the form of inalienable (or at least normally inalienable) property.
English law – and the law in Scotland
in relation to peerages differs from
that in England and Wales in some respects – recognises a peerage as an
incorporeal and
impartible hereditament, inalienable and descendable according
to the words of limitation in the grant, if
any.[64] As a
descendable dignity, peerages were covered by the Statute of Westminster the
Second 1285 (De Donis
Conditionalibus).[65]
A peerage is descendable as an estate in fee tail, rather than as a fee simple
conditional,[66]
whether it is conferred with any territorial qualification or
not.[67] A peerage
does not have any connection with the tenure of
land,[68] but it is
customary for viscounts and barons at least to have a territorial designation
(“Baron [ ... ] of [ ... ] in Our County
of [ ...
]”).[69] The
naming of a place is not, however, essential to the creation of a
peerage.[70]
The
estate in fee tail of the peerage, also called an estate tail, is limited to a
person and the heirs of his body, or to a person
and the particular heirs of his
body. Each successive heir to a peerage succeeds to the peerage in the terms of
the original
grant.[71] A
limitation to “his heirs” will not carry the peerage to collateral
heirs[72] though a
grant to the grantee and his heirs male
will.[73] A peerage
cannot be created with a limitation of descent which is unknown to the law of
real property.[74] Nor
can a peerage be the subject of a trust, nor pass to a trustee in
bankruptcy.[75]
There are other aspects in which a peerage is quite dissimilar to real or
personal property. Just as a peerage is a special type
of property that is also
a dignity or
honour[76] – so
the method of creation for a peerage differs from that required for ordinary
property.[77] An
hereditary peerage could be created either by the issue of a writ of summons to
the House of
Lords,[78] followed by
the taking of his seat by the recipient of the
writ[79] or by letters
patent, the latter method having being invariably adopted since very early
times.[80] The ending
of the right of hereditary peers to a writ of summons – unless otherwise
qualified (by office or election) –
by the House of Lords Act 1999, would
appear to render the first method of creation obsolete as well as obsolescent.
The dukedom
of Marlborough was of the former type.
A peerage created by
letters patent descends according to the limitation expressed in the letters
patent, which is almost always
to the heirs male of the body of the
grantee,[81] that is
to and through the male line in direct lineal descent from the
grantee.[82] The
patent must specify the patentee, the name of the dignity and its
limitation.[83]
Without a special limitation in the letters patent – such limitations
were commonly used as a special honour, to for example,
some of the military
leaders of the Second World War who lacked sons but had
daughters[84] –
only a peerage created by writ of summons could ever devolve upon a
female.[85] Unlike an
imperial title, female succession to a British peerage was possible, though
rare.
The patent in English peerages in effect provides a limitation and
definition of the effect of the issue of a writ of summons. It
was because of
these rules of descent were regarded as essential to the nature of a peerage
that statutory authority was needed to
create peerages for
life.[86] The right to
a peerage is distinct from a title of honour conferring a particular rank in the
peerage, which is merely a collateral
matter.[87]
A
peer, once created by the Crown in the exercise of the royal prerogative, is
ennobled in blood,[88]
so that no one can be deprived of a peerage except by or under the authority of
an Act of
Parliament.[89] This
is true whether or not the peerage confers membership of the House of Lords. But
the ennoblement in blood does not make the
peerage the same as the nobility of
much of Europe, which was – and in some cases remains – a distinct
legal caste. Members
of the family of a peer, even his heir apparent, are, in
law, commoners. Nor, once conferred, may a peerage be renounced (though
Scottish
peerages might be), although an heir, upon succeeding to a peerage, may renounce
the dignity for his lifetime, under the
Peerage Act
1963.[90] The peerage
is attached to the individual and his or her heirs and successors without regard
to their personal opinion. In the case
of the dukes of Marlborough this was
backed by statutory provisions, but was not otherwise dissimilar to all other
peerages. It was,
however, radically different to the imperial princely titles,
which conveyed nobility upon all members of the family.
The Churchill
estates – based on Blenheim Palace, named after the duke’s great
victory – was also subject to statutory
provisions. They were entailed, so
that it would remain in the possession of the dukes of Marlborough as a
perpetual reminder of
the glorious victory. Entailed estates are not, however,
exclusively or even predominantly statutory in nature. An estate tail which
has
been granted by the Crown in consideration of money or services, the reversion
remaining in the Crown, cannot be barred, or
ended.[91] In certain
cases where estates have been granted for eminent services, or where family
arrangements are confirmed by Act of Parliament,
holders of the estates who are
tenants in tail are forbidden by statute to bar the
entail,[92] and the
Blenheim estates are of this nature.
An entail meant that an estate could not
be alienated. This served the purpose of preserving an estate from possible
spendthrifts
– an important provision, and one of particular relevance
where the estate itself was such a singular example of national
thanksgiving.
An estate tail, or an entailed estate, now takes effect as an
entailed interest, though commonly still called an
estate.[93] The widest
estate which is entailed is limited to a man and the heirs of his body without
restriction as to the wife of whom the
heirs are to be born or of the sex of the
heirs.[94] A similar
limitation is to a woman and the heirs of her
body.[95] These are an
“estate in tail general”. It is also possible to restrict the heirs
to heirs male or heirs female, called
an “estate in tail male
general”,[96] or
“estate in tail female
general”.[97] In
a tail male, the son of a daughter cannot
inherit.[98] An estate
may be limited to a specific couple, making it an “estate in tail
special”.[99]
This may also be limited to heirs male or
female.[100] A
limitation to a man and the heirs of his body other than the eldest son is also
good, and will be recognised by the
courts.[101]
Before
1926 an entailed estate could be created in England by deed, will or executory
instrument.[102]
From 1926 to 1996 they could only be created by
deed.[103] Since the
coming into force on 1st January 1997 of the Trusts of
Land and Appointment of Trustees Act 1996 it has not been possible to create any
new entailed
interests.[104]
However, as well as dating from 1705, and thus pre-dating the statutory
limitation, the title to the Blenheim estate is backed by
express statutory
authority.
The current duke of Marlborough is tenant in tail in possession of
one of seventeen United Nations Educational Scientific and Cultural
Organisation
(UNESCO) World Heritage Sites in England, and the only one which is a stately
home still lived in by a descendant of
its original owner.
Ironically,
however, in 1993 a new settlement was proposed, with the current duke as one of
three trustees. The trust fund would be
held in trust to pay the income to duke
for his life, and subject to protective trusts for the marquess of Blanford for
life. This
was approved by the Chancery Division of the High Court, in the face
of opposition by the present marquess of
Blandford.[105] The
marquess, a long-time drug addict, was regarded by his father as unfit to manage
the estate, and the entail was adjusted to preserve
the estate intact for future
generations.
Blenheim is only the best known of a number of entailed estates
in the United Kingdom. Other settled estates include the Bolton
estates,[106]
settled in 1535 by Lord
Mountjoye,[107] and
the Abergavenny
estates,[108]
settled in
1555,[109] and
alienated by the Marquess of Abergavenny’s Estate Act
1946.[110]
The
Wellington estates were entailed by the Act for an annuity etc. to the Duke of
Wellington
1813-14.[111] This
was altered by the Wellington Museum Act
1947,[112] and
replaced by the Wellington Estates Act
1972.[113]
The
(private) Act for an annuity for Lord Nelson
1806[114]
established the Trafalgar estates and the Nelson annuity. The annuity was
terminated by the Trafalgar Estates Act
1947.[115] The
Pendrell annuities, which do not include land, date from the time of King
Charles
II.[116]
The
statutory entailing of the Blenheim estates, and perhaps more crucially, the
creation of a special remainder for the dukedom of
Marlborough, ensured that the
titles and estate in England remained extant and intact. This arrangement was
completed during the
lifetime of the first duke, and by the time of his death
some 15 years later the circumstances of the arrangements may have been
forgotten. As the English titles passed to the duke’s daughter and to
subsequent heirs, so the notion seems to have arisen
that the imperial titles
descended similarly. This was probably aided by lack of familiarity with
imperial titles – especially
after the dis-establishment of the Holy Roman
Empire in the wake of another French onslaught – and an erroneous and
ill-founded
assumption that the statutory provisions affected all the
duke’s titles. There seems to have been much more concern with the
preservation of the estates than with the titles, unlike in Germany, where the
preservation of the princely title was given higher
priority.
The reality is
that at least four separate sets of legal rules applied. There are the common
law rules with respect to entailed land,
the common law governing peerages, the
statutory provisions with respect to the estate and titles, and the imperial
laws governing
the princely titles. Given this complexity, confused further by
the political permutations over whether Churchill would get an honorific
or
effective principality, and whether or not there would be a special remainder
for his imperial titles, and that he received two
titles, superficially similar
but with different remainders, it is scarcely to be wondered that a degree of
uncertainty arose.
Conclusion
The present duke of Marlborough enjoys his British titles, not because of any
special remainders in the patents of creation, but because
of an Act of
Parliament. This Act had no bearing upon the imperial titles conferred upon the
first duke, which thus descended in
accordance with their original instruments
of creation.
The title of prince of the Holy Roman Empire, conferred in 1704
upon all his children heirs and lawful descendants, male and female,
expired in
1751 with the death of his younger daughter, Lady Mary Churchill, duchess of
Montagu (who was this also entitled to be
known as Princess Mary Churchill). The
imperial titular principality was not what would be called in English law an
estate in tail
general. It is rather a titular honour held by grant which
contained a limitation to all male descendants and daughters, or what
might be
called an estate in tail male general.
Similarly, the title (and
principality) of prince of Mindelheim, granted in 1705 to all male descendants
and daughters, would have
reverted to the emperor in 1722, as it could not pass
to a daughter without a special remainder. However the principality had already
passed to Bavaria. The right of the duke of Marlborough to use the style and
title was thereupon lost. Even the title of prince of
Mellenburg would have
expired in 1722.
As recipients of unprecedented imperial honours, it is
fitting that the greatest monument to the great duke in England, Blenheim
Palace,
should be entailed to the dukes of Marlborough for all time. But it is a
pity that the imperial honours were not subject to special
remainders, so that
the current duke might enjoy them too. The treatment of his British and imperial
honours were different in part
because of the different nature of peerages
– which were combined real property and political dignity, and imperial
titles,
which were sovereign (or quasi-sovereign). The relative weakness of the
emperor, compared with the English Queen, was also an important
element.
[1] LLB LLM(Hons)
MTheol PhD Auckland MA Lambeth LTh Lampeter GradDipTertTchg
AUT FRHistS, Barrister of the High Court of New Zealand, and of the
Supreme Courts of the Australian Capital Territory, New South Wales,
the
Northern Territory, Queensland, South Australia, Tasmania, and Victoria,
Professor of Law at the Auckland University of Technology,
New Zealand.
noel.cox@aut.ac.nz
[2]
See, for instance, J.R. Jones, Marlborough, Cambridge
1993.
[3]
François-Eugène, Prince of
Savoy-Carignan.
[4]
Camille d’Hostun de la Baume, Duc de
Tallard.
[5] All
others have been conferred on someone already holding a lesser
title.
[6] Sir W.
Spencer Churchill, Marlborough: His Life and Times, London 1936,
vol. III, p. 47.
[7]
Mindelheim was a minor state of Unterallgäu in Bavaria, Germany. Mindelheim
was part of the territory of Rechberg until 1467
when it was made a Lordship for
the House of Frundsberg. It was raised to a Barony in 1569, was annexed by
Maxelrain in 1586, then
by Leuchtenberg in 1618, and created a Principality in
1705.
[8] The Field
Marshal the Duke of Wellington was prince of Waterloo (Belgium Netherlands,
1815); duke de Vittoria (literally “of
the Victory”; Portugal,
1812), marquis de Torres Vedras (Portugal, 1812), and count de Vimeira
(Portugal, 1811); grandee 1st class (Spain, 1812), and
duque de Cuidad Rodrigo (Spain, 1812). In contrast, Vice Admiral Viscount Nelson
received only the Sicilian
dukedom of Bronte (1799), though doubtless he would
have received other honours had he survived the Battle of Trafalgar (1805).
[9] The second son
of King John, Richard was nominally German King 1257-72.
[10] Churchill,
op. cit. (supra, n. 6), vol. I, p. 631; George Edward Cokayne
(“G.E.C.”) ed., The Complete Peerage: The Complete Peerage of
England, Scotland, Ireland, Great Britain, and the United Kingdom Extant,
Extinct, or
Dormant, London 1887-1898,
“Marlborough”.
[11]
6 Anne c. 4 or 7, not 6 (England). In July 1993 action taken by duke to end
statutory entail to allow his younger son to inherit
the entailed estate, due
the perceived unfitness of the eldest, the heir to the dukedom, to manage the
estate.
[12]
Letters patent 5th May 1705, in fee simple; Hambro
v. Duke of Marlborough [1994] Ch. 158,
159.
[13] Some
£300,000 was spent on the palace, the majority from the civil list, and
£60,000 by the duke himself. It is very difficult
to give an accurate
assessment of the present day value of money. “Measuring Worth –
Purchasing Power of British Pound
Calculator”
(http://www.measuringworth.com/calculators/ppoweruk/) is one of many attempts to
produce a tool capable of calculating
approximate values. Using this,
£300,000 in 1706 was estimated to be worth £40m in 2005; Lawrence H.
Officer, “Purchasing
Power of British Pounds from 1264 to 2005.”
MeasuringWorth.com,
2007.
[14] Contrary
to idle speculation, Diana Princess of Wales was not a princess of the Holy
Roman Empire, as her family were descended in
the male line from the Spencers,
not the Churchills.
[15] 6 Anne c. 4
or 7 (England).
[16]
Ibid.
[17]
See, for instance, Burke’s Peerage, and Debretts
Peerage.
[18]
The Marlborough-Godolphin Correspondence ed. H. Snyder, Oxford 1975, pp.
318-320; Blenheim MSS. E2; printed Ven. W.C. Coxe, Memoirs of the Duke of
Marlborough, London 1820, vol. I, pp.
252-253.
[19] See
B. Teschke, The myth of 1648: class, geopolitics, and
the making of modern international relations, New York
2003.
[20]
15th June 1704; Sir W. Spencer Churchill,
Marlborough: His Life and Times, London 1934, vol. II, pp.
485-486.
[21]
20th June 1704 rescript to Count Wratislaw; Churchill,
op. cit. (supra, n. 20), vol. II, p.
486.
[22] Wratislaw
to Emperor, 22nd August 1704; Churchill, op.
cit. (supra, n. 20), vol. II, p. 487; Feldzüge, vol. VI, p.
866.
[23] This was
not necessarily a bar to the granting of a title to Churchill. There were, as
will be seen, a number of titles held by princes
outside the confines of the
empire.
[24]
Emperor Leopold I to duke, 17th August 1704; printed
Coxe, op. cit. (supra, n. 18), vol. I, pp.
325-326.
[25] There
were some variations. For instance, cadets of ducal families are called
prince.
[26] Duke
to duchess, 4th June 1704; Snyder, op. cit.
(supra, n. 18), p. 319; Blenheim MSS. E2; printed Coxe, op.
cit. (supra, n. 18), vol. I, pp.
252-253.
[27] 6
Anne c. 4 or 7 (England).
[28]
Burke’s Peerage, and other secondary sources, seem to believe this
also. The former stays “with all his descendants, of either sex, to be
princes
...
also”.
[29]
Salic or Salique Law, an ancient law of Pharamond, King of the Franks, which
excluded female rulers, was long thought fundamental
to Western laws of
succession.
[30]
Emperor Leopold I to duke, 28th August 1704; Thomas
Lediard, Life of John Duke of Marlborough, 1736, vol. I, p.
419.
[31] Duke to
Sidney Earl of Godolphin, 11th September 1704; Snyder,
op. cit. (supra, n. 18), pp. 370-371; Blenheim MSS. A1-14;
printed Coxe, op. cit. (supra, n. 18), vol. I, p. 327. Duke to
Sidney Earl of Godolphin, 22nd September 1704; Ven.
W.C. Coxe, Memoirs of the Duke of Marlborough, London 1820, vol. II, p.
23.
[32] Churchill,
op. cit. (supra, n. 20), vol. II, pp.
488-489.
[33]
Prince of the Holy Roman Empire (Reichsfürst) 1607, cf. in 1620, Austrian
prince (HSH) 27th December 1880, cf 1889 and 1905. They
were styled Most Eminent Highness by Italian royal decree 1927 (though for much
longer by usage).
The Papal rank equivalent to Cardinal dated from 1630.
[34] In Tuscany,
Italy. In 1594 the Principality of Piombino was created by Emperor Rudolf II of
Habsburg. In 1634 the title was acquired
by the Ludovisi family, and, in 1708,
by the Boncompagni. In 1805 Napoleon assigned it, together with Lucca
(Principality of Lucca
and Piombino). After the Napoleon’s final defeat
and the congress of Vienna, the state of Piombino was annexed to the Grand
Duchy
of Tuscany. It became part of the unified Kingdom of Italy in
1860.
[35] The
Counts and later Princes Kinsky (formerly Wchinsky or Tynsky, in Czech
Kinský, plural Kinští, old name
Vchynské) were one of the oldest and most illustrious families
originating from the Kingdom of Bohemia, now the Czech
Republic.
[36] The
Salm-Reifferscheidt-Raitz family were made princes and altgraves in 1790.
Members of the family are called Altgrave/Altgravine
(with the style
“His/Her Serene Highness”).
[37] Fra C.
Toumanoff, “Genealogical Imperialism” (1985) 6(134) (N.S.) Coat
of Arms 145, 151 n7.
[38] Prince
Belmonte (Principe o Principessa di Belmonte) is a title created in 1619 by the
Spanish crown for the dynasty founded by the
Barons of Badolato and Belmonte,
direct descendants of the papal family of the Counts of Lavagna who were
ennobled in the eleventh
century. The first holder of the title “Prince of
Belmonte” was Grand Seneschal of the Kingdom of Naples, one of the
seven
Great Offices of State. During the eighteenth century the Belmonte Princes were
created Princes of the Holy Roman Empire.
[39] The
Chigi-Albani are a Roman princely family of Sienese extraction, descended from
the counts of
Ardenghesca.
[40]
Orsini family was one of the most celebrated princely families in mediæval
Italy and renaissance Rome, and which, in former
times, had large possessions in
Hungary. Members of the Orsini family include popes Celestine III (1191-1198),
Nicholas III (1277-1280),
and Benedict XIII (1724-1730). The princes Orsini und
Rosenberg were members of the comital council (personaliter) 1683, and the
head
of the family was made a prince 1724, confirmed 1790. Succession was to all male
descendants and their daughters from 1629.
They held the title of His Serene
Highness and Prince Assistant to the Papal Throne 1735-1958.
[41] Orlov
(Орлов) is the name of a Russian noble
family which produced several distinguished statesmen, diplomatists and
soldiers. The family first
gained distinction in the person of four Orlov
brothers, of whom the senior was Catherine the Great’s lover, and the two
junior
were notable military commanders. As none of the brothers left a
legitimate male issue the title and arms of Counts Orlov passed
in 1856 to the
related Davydov
family.
[42]
Created in 1776 for Prince Grigori Alexandrovich Potemkin
(Григоìрий
Алексаìндрович
Потёмкин), Russian General Field
Marshal, statesman, and favourite of Catherine II
the Great. He is primarily
remembered for his efforts to colonize the sparsely populated wild steppes of
the southern Ukraine, which
passed to Russia under the Treaty of Kuchuk-Kainarji
in 1774.
[43] A
Polish szlachta (noble) family. In 1595, Emperor Rudolph II gave a member of the
family the title of Count of Wiśnicz. Later
the title of Prince and Count
of Wiśnicz and Jaroslaw was conferred the recipient and his sons was
granted by Emperor Ferdinand
II.
[44]
Radziwiłł is a family which has been of considerable importance for
centuries, first in the Grand Duchy of Lithuania and
later in the
Polish-Lithuanian
Commonwealth.
[45]
Toumanoff, op. cit. (supra, n. 37), 147. Duke and Prince Jean
Engelbert d’Arenberg, “The Lesser Princes of the Holy Roman Empire
in the Napoleonic
Era” dissertation, Washington, DC, 1950, published as
Les Princes du St-Empire à l’époque
napoléonienne, Louvain 1951, pp. 15ff, quoted in Almanach de
Gotha, London 1998, pp.
275-286.
[46]
Churchill, op. cit. (supra, n. 20), vol. II, p.
489.
[47] Using
“Measuring Worth – Purchasing Power of British Pound
Calculator” (http://www.measuringworth.com/calculators/ppoweruk/)
£1,500 in 1706 was estimated to be worth £200,000 in 2005; Lawrence H.
Officer, “Purchasing Power of British Pounds
from 1264 to 2005.”
MeasuringWorth.com,
2007.
[48] Again
using “Measuring Worth – Purchasing Power of British Pound
Calculator” (http://www.measuringworth.com/calculators/ppoweruk/),
£4,500 in 1706 was estimated to be worth £600,000 in
2005.
[49] Ibid,
£1.6m-£2m in
2005.
[50] Ibid,
£800,000 in
2005.
[51] The
proceedings of the grant of the imperial titles are printed in full in
Erhöhung in Reichs-Fürst Stand .. des ... Hertzogs zu
Marleborough (1707), including:
(a) the emperor’s diploma, creating Churchill and all his children heirs and lawful descendants, male and female, princes of the Holy Roman Empire, and granting him, as an augmentation of honour to his arms, the imperial eagle, on the breast of which arms should be displayed. A St. George’s cross in a canton was granted to his father, Sir W. Churchill, as an honourable augmentation by King Charles II, for impoverishing himself in the cause of St. Charles King and Martyr in the Civil Wars.
(b) A later diploma, erecting the lordship of Mindelheim in Suabia, which it granted to him, into a principality held immediately of the Emperor.
(c) An account of the consequent proceedings of the Electoral College and of the duke’s introduction 22nd November 1706.
[52] Duke to
duchess, 4th June 1704; Snyder, op. cit.
(supra, n. 18), p. 319; Blenheim MSS. E2; printed Coxe, op.
cit. (supra, n. 18), vol. I, pp.
252-253.
[53] 6
Anne c. 4 or 7 (England).
[54] Sarah to
James Craggs, 7th June 1713; B.M. Stowe 751, f
61.
[55]
Sersanders, Churchill’s secret agent (or rather confidential agent, as we
would probably term him today) to the Elector of
Bavaria, was authorised to
include it in the peace treaty negotiations; Sir W. Spencer Churchill,
Marlborough: His Life and Times, London 1936, vol. III, p.
47.
[56] By the
statute 6 Anne c. 4 or 7
(England).
[57] H.
Montgomery-Massingberd, Blenheim Revisited: The Spencer-Churchills and their
Palace, London 1985, p.
39.
[58] Churchill,
op. cit. (supra, n. 55), vol. III, p.
50.
[59] In modern
(post-1919) Germany it is unlawful to assume a title, which is part of the
family name (§ 132a StGB: Mißbrauch
von Titeln, Berufsbezeichnungen
und Abzeichen). In Austria titles were formally abolished in 1919. Even if the
Dukes of Marlborough
were entitled to be styled Princes of Mindelheim, or
Princes of the Holy Roman Empire, their titles could only be one of courtesy
according to German and Austrian
law.
[60] Hambro
v. Duke of Marlborough [1994] Ch. 158,
159.
[61]
Rhondda’s Viscountess Claim [1922] 2 A.C.
339.
[62] R.
v. Knollys [1792] EngR 1920; (1694) 1 Ld. Raym. 10; 91 E.R. 904; Re
Rivett-Carnac’s Will, (1885) 30 Ch.D. 136,
136.
[63] The
Sovereign cannot herself hold a dignity: Buckhurst Peerage Case (1876) 2
App. Cas. 1, per Lord Cairns, L.C.; considered by Viscountess Rhondda’s
Claim [1922] 2 A.C. 339. The Sovereign has traditionally claimed the title
of Duke of Lancaster, somewhat oddly, even when a Queen Regnant. This title,
dating
from a grant to Prince John of Gaunt in 1362, merged with the crown with
the accession of King Henry VI. The title, being a peerage
governed by the
ordinary rules of descent, could not have been inherited by Queen Elizabeth I,
nor have descended to the present
Queen. As the Sovereign is font of honour,
they can use whatever title they wish, provided it does not conflict with the
royal style
and title established by law: Norfolk Earldom Case [1907]
A.C. 10, 17 (H.L.) per Lord
Davey.
[64]
Nevil’s Case [1572] EngR 259; (1604) 7 Co. Rep. 33a; 77 E.R. 460; R. v. Viscount
Purbeck (1678) Show. Parl. Cas. 1, 5; [1677] EngR 22; 1 E.R. 1; Norfolk Earldom Case
[1907] A.C. 10; Viscountess Rhondda’s Claim [1922] 2 A.C. 339. If
the peerage is a barony by writ, there will, of course, be no words of
limitation. In English law, letters patent purporting to
create a peerage
without including words of limitation will be held to be bad. In Scotland a
grant in fee would be presumed –
Perth Earldom Case [1848] EngR 832; (1848) 2 H.L.
Cas. 865; 9 E.R. 1322; Herries Peerage Case (1858) L.R. 2 Sc. & Div.
258; Mar Peerage Case (1875) 1 App. Cas. 1, 24, 36. This presumption is,
however, rebuttable – Herries Peerage Case, ibid; Mar Peerage
Case, ibid.
[65] 13 Edw. I c.
1
(England).
[66]
Re Rivett-Carnac’s Will (1885) 30 Ch.D.
136.
[67] Earl
Ferrers’ Case (1760) 2 Eden. 373; 28 E.R. 942.
[68] This was not
always so, however. From the time of Henry VI until 1861 it was believed that
peerages by tenure were possible; Arundel Case (1433) 4 Rot. Parl. 441;
Berkeley Peerage Case [1861] EngR 124; (1861) 8 H.L.C 21; 11 E.R. 333.
[69] See the Crown
Office (Forms and Proclamations Rules) Order 1992, S.I. 1992/1730, art. 2,
Schedule, Part III, Forms
D-G.
[70] R. v.
Knollys [1792] EngR 1920; (1694) 1 Ld. Raym. 10; 91 E.R. 904; Re Rivett-Carnac’s
Will (1885) 30 Ch.D. 136, 136; indeed, with a peerage created by writ of
summons this would not be
possible.
[71] A
declaration of legitimacy obtained pursuant to the provisions of the Legitimacy
Declaration Act 1858 (21 & 22 Vict. c. 93)
(United Kingdom) is good for
peerages and other dignities: Ampthill Peerage Case [1977] A.C. 547.
While the laws governing legitimacy have become more liberal since the
nineteenth century, they do not in general allow the inheritance
of dignities by
illegitimate
issue.
[72]
Wiltes Peerage Case (1869) L.R. 4 H.L. 26, not following Devon Peerage
Case [1831] EngR 251; (1831) 2 Dow. & Cl. 200; 5 E.R.
293.
[73] But not
to his heirs general, as would a grant of land to the grantee and his heirs male
– Wiltes Peerage Case (1869) L.R. 4 H.L.
26.
[74] Wiltes
Peerage Case (1869) L.R. 4 H.L. 26; Cope v. Earl De La Warr
(1873) 8 Ch. App. 982; Buckhurst Peerage Case (1876) 2 App. Cas. 1, 20,
per Lord Cairns,
L.C.
[75]
Buckhurst Peerage Case (1876) 2 App. Cas. 1, Re Earl of Aylesford’s
Settled Estates (1886) 32 Ch.D. 162. Members of the House of Commons are
disqualified from sitting or voting if bankrupt; Insolvency Act 1986 (United
Kingdom), s.
427.
[76]
Norfolk Earldom Case [1907] A.C. 10, 17 (H.L.) per Lord
Davey.
[77] For the
creation of new types of dignities, see the Parliamentary Report as to the
Dignity of a Peer of the Realm, London 1829, first published
25th May 1820, vol. 2, p.
37.
[78] Early
Irish baronies were prescriptive, and descent was always to the heirs male of
the body of the presumed grantee: R. v. Levet [1792] EngR 2548; (1612) 1 Bulst. 194; 80
E.R. 882. There is, however, only one Irish barony by writ in existence, that of
Le Poer (now held by the Marquess of Waterford), whose ancestor
was called to
the Irish House of Lords in 1375: Le Power and Coroghmore Barony Case
(1921) Report of the Attorney-General 5,
6.
[79] Lord
Abergavenny’s Case [1572] EngR 437; (1610) 12 Co. Rep. 70; 77 E.R. 1348;
Verney’s Case [1728] EngR 372; (1695) Skin. 432; 90 E.R. 191. The actual taking of
the seat must be proven: De Wahull Peerage Case (1892) cited in St
John Peerage Case [1915] A.C. 282, 291. The existence of the writ may be
presumed: Braye Peerage Case [1839] EngR 996; (1839) 6 Cl. & Fin. 757; 7 E.R. 882.
Where a writ alone is used, a barony by writ, or barony in fee is created. A
writ alone was usual till the middle of the reign of
King Henry VII. Somewhat
different rules apply to Irish and Scottish peerages, but as the rules for
British and United Kingdom peers
follows that of the English peerage, and the
majority of peers belong to one or both of these, the rules of the English
peerage are
what principally concern us here.
[80] The first
peerage created by letters patent was that for John de Beauchamp, created Lord
de Beauchamp and Baron of Kidderminster
in 1388. Limitation was to his heirs
male of his body. See the Report as to the Dignity of a Peer of the
Realm, cit. cit (supra, n. 77), vol. v, p. 81. Where letters
patents were used, the necessity of taking a seat was removed, although formal
investiture
remained common until the early seventeenth century. The formal
investiture of the Prince of Wales and Earl of Chester, revived in
1911,
provides a good example of the older form. Some peerages have been created by
act of Parliament, or by charter (De Vere’s Case (1385) 8
State Tr. N.S. 646), and in the early years it was not always clear which method
had in fact been used. See The Prince’s Case (1606) 8 Co. Rep. 1
13b; [1572] EngR 449; 77 E.R. 496.
[81] A grant of a
peerage to the grantee and his heirs male is valid, though a similar grant of
land would be void: Wiltes Peerage Case (1869) L.R. 4 H.L.
26.
[82] A grant to
“heirs male” rather than “heirs male of the body”
will be void: Devon Peerage Case [1831] EngR 251; (1831) 2 Dow. & Cl. 200; 5 E.R. 293;
Wiltes Peerage Case (1869) L.R. 4 H.L.
26.
[83] Modern
practice may be seen in Crown Office (Forms and Proclamations Rules) Order 1992,
S.I. 1992/1730, art. 2 (1), Schedule, Part
III.
[84] Lord
Louis Mountbatten was created Earl Mountbatten of Burma, with special remainder
to his daughters in order of seniority. These
sorts of remainders were used only
13 times between 1643 and 1831, but after 1876 became more common, with seven
used 1876-92.
[85]
The doctrine that these baronies by writ (also called baronies in fee) were
descendable to the heir general is historically unsound,
but now well entrenched
in law: Lord Grey’s Case (1640) Cro. Cas. 601; 79 E.R. 1117;
Clifton Barony Case (1673) in Sir Edward Coke, Coke upon Littleton
(“First Institutes”) (New York, reprint 1979 of
19th ed. 1832), 16b; Vaux Peerage Case (1837) 5
Cl. & Fin. 526; 7 E.R. 505; Braye Peerage Case [1839] EngR 996; (1839) 6 Cl. &
Fin. 757; 7 E.R. 882; Hastings Peerage Case [1841] EngR 714; (1841) 8 Cl. & Fin. 144,
157; [1841] EngR 714; 8 E.R. 58; Wharton Peerage Case [1845] EngR 1171; (1845) 12 Cl. & Fin. 295; 8 E.R.
1419.
[86]
Appellate Jurisdiction Acts 1876-1947 (United Kingdom). Despite the Life
Peerages Act 1958 (6 & 7 Eliz. II c. 21) (United Kingdom) the Crown
still does not have the power to confer peerages for life. Creations must be in
accordance with one or
other of the statutory measures: Wensleydale Peerage
Case [1856] EngR 294; (1856) 5 H.L.C 958; 10 E.R.
1181.
[87]
Norfolk Earldom Case [1907] A.C. 10, 17, per Lord Davey. Degrees are added
by an exercise of the prerogative: Report as to the Dignity of a Peer of the
Realm, cit. cit (supra, n. 77), vol. II p. 37. Only earls and
barons preceded the establishment of Parliament, and a writ of summons does not
create any
peerage except that of the degree of baron, whatever style is used in
the writ: Norfolk Earldom Case, cit. cit. (supra, n. 63).
[88] Report as
to the Dignity of a Peer of the Realm, cit. cit (supra, n.
77), vol. I, p.
393.
[89]
Countess of Shrewsbury’s Case [1572] EngR 117; (1612) 12 Co. Rep. 106; 77 E.R.
1369; R. v. Viscount Purbeck (1678) Show. Parl. Cas. 1, 5; [1677] EngR 22; 1 E.R. 1. Nor,
could a peer loose his title by attainder for treason or felony – Earl
Ferrers’ Case (1760) 2 Eden. 373; 28 E.R. 942. Attainder, or
corruption of blood, was in any case abolished by s. 1 Forfeiture Act 1870 (33
& 34 Vict. c. 23) (United Kingdom).
[90] Although no
one could be deprived of a peerage without Act of Parliament, it was once not
unknown for peerages to be surrendered
to the Crown, though it is now held that
they may not be alienated. Until 1660 there were many instances where surrenders
were made,
the last being by the Earl of Buckingham, son of Viscountess Purbeck.
It was held in the Purbeck Case of 1678 that a titular dignity could be
surrendered, though not a feudal dignity. A peerage was held to be a feudal
dignity rather
than a titular dignity, and therefore unalienable.
[91] Feigned
Recoveries Act 1542 (34 & 35 Hen. VIII c. 20) (England), s. 1. Though
repealed in part by the Statute Law (Repeals) Act
1888 (United Kingdom), and as
to the remainder by the Statute Law (Repeals) Act 1969 (United Kingdom), s. 1,
Sch. Pt. III, remains
effective still (s. 4(4) of the 1969
Act).
[92] Davis
v. Duke of Marlborough (1818) 1 Swan. 74; [1818] EngR 281; 36 E.R. 303; Osborne v. Duke of
Marlborough (1866) 14 W.R. 886; Re Duke of Marlborough’s Blenheim
Estates and Settled Lands Act (1892) 8 T.L.R.
582.
[93] Law of
Property Act 1925 (15 & 16 Geo. V. c. 19) (United Kingdom), s.
130.
[94] Sir
Thomas Littleton, Treatise on Tenures (“Littleton’s
Tenures”), London 1593, first published 1481 or 1482, s.
14.
[95]
Littleton’s Tenures, op. cit. (supra, n. 94), s.
15.
[96]
Littleton’s Tenures, op. cit. (supra, n. 94), s.
21.
[97]
Littleton’s Tenures, op. cit. (supra, n. 94), s.
22.
[98]
Littleton’s Tenures, op. cit. (supra, n. 94), s. 24;
Co. Litt. 25a,
25b.
[99]
Littleton’s Tenures, op. cit. (supra, n. 94), s.
29.
[100]
Littleton’s Tenures, op. cit. (supra, n. 94), s.
25.
[101]
Elliot v. Elliot [1916] 1 I.R.
30.
[102] Lord
Glenorchy v. Bosville (1733) Cas. temp. Talb. 3, 9; 2 Eq. Cas. Abr. 718; 22
E.R. 604; Sackville-West v. Viscount Holmesdale (1870) L.R. 4 H.L.
543.
[103] Law of
Property Act 1925 (15 & 16 Geo. V. c. 19) (United Kingdom), s. 130(1).
[104] ss 2 (6),
27 (2), Sch. 1 para
5(1).
[105]
Hambro v. Duke of Marlborough [1994] Ch. 158; [1994] 3 All E.R.
332.
[106] Re
Bolton Estates, Russell v. Meyrick [1903] 2 Ch. 461 (CA); Re Bolton
Estates Act 1863 [1904] 2 Ch. 289.
[107] Broke
Estate Act 1535 (27 Hen. VIII c. 16) (England), a private Act of
Parliament.
[108]
Earl of Abergavenny v. Brace (1872) L.R. 7 Exch. 145. The Most Honourable
Christopher George Charles Nevill, is 6th marquess of
Abergavenny (1876), earl of Lewes (United Kingdom 1876), and earl of Abergavenny
(Great Britain 1784), viscount Nevill
(Great Britain 1784), and baron
Abergavenny (England 1450).
[109] An Act
concerning the restitution of the heirs male of Sir Edward Neville, knight (2
& 3 Ph. & M. c. 23) (England), a private
Act of
Parliament.
[110]
s. 3. The marquess’ seat is now Eridge Park, Tunbridge Wells, East Sussex.
In 1873 the earl had 11,000 hectares (28,000 acres),
in 1967 the head of the
family, now a marquess, had 400 hectares (1,000
acres).
[111] 54
Geo. III c. 161 (United Kingdom), s. 28. The present duke is the
8th, Brigadier Arthur Valerian Wellesley, KG LVO OBE MC
OStJ DL. His British titles are duke of Wellington (United Kingdom, 1814),
marquess
of Wellington (United Kingdom, 1812), marquess of Douro (United
Kingdom, 1814), earl of Mornington (Ireland, 1790), earl of Wellington
(United
Kingdom, 1812), viscount Wellington (of Talavera and Wellington, Somersetshire,
United Kingdom, 1809), baron Douro (United
Kingdom, 1809).
[112] 10 &
11 Geo. VI c. 46 (United
Kingdom).
[113]
s. 3(1). The duke’s seats are Stratfield Saye House, Reading, Berkshire
RE7 2BZ, built 1817, and Apsley House, 149 Piccadilly,
London W1V 9FA. In 1991
the duke had 2,800 hectares (7,000 acres) in the United Kingdom. Like the Duke
of Marlborough, Arthur Wellesley’s
foreign titles brought him some lands,
but unlike Churchill, Wellesley’s titles were merely honorary, the land
being simply
estates and woodlands assigned to the duke to provide him with an
income proportionate with his newly acquired dignity. As Prince
of Waterloo
(1815, Belgium Netherlands), he was one of the greatest landowners in Belgium.
The current duke still holds 1,000 hectares
(2,600 acres), 10 kilometres (6
miles) south of Brussels, though the ownership has been challenged, and his
hereditary pension has
ceased. As duke of Cuidad Rodrigo (1812, Spain) he has
1,200 hectares (3,000 acres) at Molino del Rey, near
Granada.
[114] 46
Geo. III c. 146 (United Kingdom). This Act also made every successive earl a
Nelson, whatever their original surname (almost a
statutory opposite to the
“names and arms clause”, where a beneficiary must assume another
name in order to inherit;
cf. Noel Cox, “Names and Arms Clauses and Law of
Arms in the common law courts” (Winter 1999) XIII(188) (N.S.) Coat of
Arms 167-172.
Trafalgar House, Wiltshire, was built for Sir Peter
Vandeput in 1733. It was presented to Earl Nelson (brother of Vice Admiral
Viscount
Nelson) in 1806, and rebuilt in 1814. The present,
9th, earl is Peter Nelson. His British titles are earl
Nelson (of Trafalgar and of Merton, United Kingdom 1805), viscount Merton
(United
Kingdom, 1805), and baron Nelson (of the Nile and of Hilborough,
Norfolk, United Kingdom,
1801).
[115] 10
& 11 Geo. VI c. 34 (United Kingdom), s. 1. It was sold by the
5th earl Nelson in 1948, and the estate and house were
separated in 1958. The house has had various owners, and was bought by the Earl
Radnor 1990, along with an estate of 1,200 hectares (3,000 acres). Lord Radnor
had lived at Longford Castle, near Salisbury, Wiltshire.
The Trafalgar estate
was bought in 1995 by Michael Wade to form an opera house, but the house is
currently a wedding venue, and used
by private tour
groups.
[116]
Re Grant of King Charles II, Giffard v. Penderel-Brodhurst (1936) 80 Sol. J.
92.