Letters patent of Duke of Richmond, 1675
As authors try to come up with “hooky”, unique, interesting plots, they’re striking out into all kinds of really strange inheritance-based plots. I’ve seen a LOT of reader discussion about these in the past few months on Twitter, so I thought I’d do a bit of research and write up as concise a summary as I can. Most of what I’m relating here is from Peerage Law in England (1907).
THE CREATION OF A PEERAGE
We need to cover this, because it strongly influences the inheritance issue, and lots of plots revolve around inherence disputes. Plus, it’s a good way to show that the older the title, the more likely it is to not be limited to sons only.
The King is “the fountain of honor”, but once a peerage is bestowed, the crown has almost no control over them (the only exception being that when appealed to, the crown can choose from amongst co-heirs and terminate an abeyance in the favor of one of them, but this almost never happens). Only by a special Act of Parliament can a peerage be extinguished, and this is very, very rare (and usually requires an act of treason, at least until the modern age). And once ennobled, that nobility is inherent in the blood and can not be aliened or surrendered (so there are no “backsies” once a title has been inherited and conferred upon someone, hence how careful they are when reviewing someone’s claim).
The basics. Earldoms were mainly created by investiture and oral grant by the king (girding, literally belting the man). They were sometimes created by an Act of Parliament and would have a Royal Charter. Dukedoms, and marquisates were mainly created by charter. Viscounties (a late comer to England) have always been created by letters patent. Baronies are where it gets fun … initially they were connected to the land. In the time of Edward I they became distinct inheritances and were created by writ (being summoned to parliament). In 1387 came the first creation by letters patent. From the time of James I, creation of baronies was exclusively by letters patent.
These peerages can have different rules of inheritance, depending on how they were created. They can be in fee simple (usual for very old earldoms and baronies by writ), in fee tail general (all heirs of the body, meaning both sons and daughters), and in fee tail male. At their creation they might also have been in fee tail special (usually where there was no son and the inheritance was directed to a specific person such as a daughter’s son or husband or the title-holder’s brother. The second creation of the Duke of Marlborough is a good example of this).
When a title is in fee simple, it usually means there are no letters patent spelling anything out. The peerage was created by writ of summons or girding, and is so ancient that there are no records specifying a limitation of the tail. It is generally treated the same as in fee tail general for inheritance purposes, but this could be tricky, as fee simple legalistically means “to his heirs” not limited to “heirs of his body” (so collateral relations can inherit if all branches of direct descent fail, and this happened on occasion way, way back [usually within a generation or two of the creation of the title]; the law book says that such failure has bee “of such rare occurrence in the history of the peerage that this rule need not detain us”). The reason that quite a few baronies can be inherited by women is that when they are created by writ, they are inherited in fee simple. This is also true for some of the older earldoms (if you look at the law book, there is a list of them p. 118-119).
When a title is in fee tail general, the letters patent say “the heirs of his body”. Sons always have legal precedence over daughters and elder sons over younger sons (basic English law of primogeniture). But this is how you can get a female heir to a title, co-heiresses (when there are more than one daughter and no sons), and titles falling in abeyance (basically being put in limbo until only one claim remains, or until the Crown picks an heir, and yes, this is the one interference allowed the king).
Most common, of course, is for the title to be in fee tail male (the heirs of the body male) so that only sons are eligible to inherit.
PROCEDURE ON CLAIMS
Most claims are going to be straight forward and getting the claim settled will only take a few weeks (note: this formality does not prevent the claimant from using the title in the meantime and there is no law stating that the claimant HAS to come forward and make a claim, e.g. the Berkeley case where the elder brother was found to be illegitimate and the younger never claimed the title ). The heir makes a petition to the crown to be recognized. This petition is quite detailed (it’s more formal than just proving you’re the heir to the guy who just died). I’ll quote from the book: “The petition should be addressed to the Crown and should state in what way the peerage claimed was originally created, whether by charter or patent, or by girding or by writ and sitting thereon. It should further set out the facts which show that, according to the limitations of its creation, the peerage in question has descended to the claimant, or where the petition claims as a co-heir, the facts which show that the peerage is in abeyance and that the claimant is one of the co-heirs an who are the other co-heirs. The facts elide on should be set out in considerable detail. It is not enough to state generally that the peerage claimed has descended to the claimant, the line of descent must be traced.”
I get differing information about just who the petition goes to (I’m guessing it changed at some point). It goes to either the Attorney-General or the Lord Chancellor. They review it and if satisfied, present it to the sovereign. If they or the sovereign are unsure or if there is a complication (such as multiple claims), it goes to the Committee for Privileges for review.
There are rules about presenting a printed case and their being no vote allowed for two weeks after it is presented (presumably allowing time for the case to be reviewed). It is at this stage that any secondary claims must be presented. The person who believes they have a claim submits a request to the House of Lords to be heard. After they are heard, the Lords then decides if they can submit their own printed claim.
What happens when there is a dispute? Well, the Lords are inherently conservative when it comes to reviewing these cases. They have a strong liking for precedent and are generally inclined to side with those who have been generally believed to be the legal heir. When something truly ugly happens, usually both parties walk away with a title. One with the original title and one with a new one (Scroll down and read the Mar Case, which also illustrates the decisions of the Lords can not be overturned and are considered binding).
I highly recommend the review of Peerage Law in England to anyone who wants to devise an inheritance plot. It is full of actual case examples and all kinds of juicy tidbits that are perfect for creating a complicated and interesting legal plot. The book even details what kinds of evidence are considered legal and acceptable by the Lords (Charter or patent, sitting in Parliament, public/parish registers [marriage, birth, death], Heralds' books, family Bibles, letters, diaries, even inscriptions on tombstones).