Mistakes in Patents
It is opportune to refer here to the fact that once Letters Patent creating a peerage have pased the Great Seal there is no power to alter the form of that creation, even though a mistake may have been made, except by special Act of Parliament, resort to which has been very, very rare. One such mistake in the eighteenth century is perpetuated to this day.
The ancestor of Earl Annesley, William Annesley, sometime M.P. for Middleton, co. York, was created Baron Annesley in 1758. Twelve years later he was advanced to a viscounty, the intention being to create him Viscount Glenawly. But by a clerical error the title was written Glerawly in the Letters Patent, and Viscount Glerawly he and his heirs have been and will continue to be so long as the title exists.
This difficulty in altering either the style of a peerage or even its limitation once the patent has passed the Great Seal accounts for what is perhaps the most curious "double" in the peerage - that of the Earldom of Mansfield.
Lord Mansfield is Earl of Mansfield, co. Nottingham, and Earl of Mansfield, co. Middlesex, and the explanation affords an excellent example of the confusion which has prevailed at times with regard to peerage law, even among the most eminent lawyers. The first holder of the title was Sir William Murray, the famous advocate and Lord Chief Justice, that "silver-tongued Murray" who was a friend of Pope. He was the third son of the fifth Viscount Stormont, a Scottish peer who derived from a common ancestry with the Dukes of Atholl. Murray left no children, and when, in 1776, at the age of 71, then Lord Mansfield, he was created Earl of Mansfield, co. Nottingham, he was under the impression that no British peerage could be limited to a Scottish peer, even in remainder, though it could descend to that peer's successors. He therefore secured a special remainder to the wife of his nephew David, then seventh Viscount Stormont, and their issue.
Sixteen years later, when this belief was disproven in law, Mansfield secured another patent, dated August 1, 1792, creating him Earl of Mansfield, co. Middlesex (though there never was a Mansfield in Middlesex!), with remainder to his nephew and his issue. Why he should have gone to this trouble is not clear, for Lord Stormont already had four sons, and the succession in the Murray line was secured for the first creation. However, he did so, and when he died, some seven months later, at the age of 88, Lord Stormont became Earl of Mansfield under the second creation and his wife Countess of Mansfield under the first.
Fifty years passed before the two earldoms became united in one person, for the Countess lived until 1843, by which time her grandson had succeeded to the second creation as fourth Earl. The title is recorded on the Rolls of the House of Lords merely as that of Mansfield, but this fourth Earl, after succeeding his grandmother, always signed himself "Mansfield and Mansfield".
I have said that resort to special Act of Parliament for the purpose of altering the form or descent of a peerage is very, very rare. Actually I do not know of one instance in the peerages of England, Great Britain and the United Kingdom in which the form of a peerage has been so altered (the practice prevalent in Scotland up to the time of the Act of Union is dealt with elsewhere), and I believe there are only four cases on record where an Act of Parliament had been resorted to for the purpose of limiting descent - apart, that is, from the historic remedy of depriving a rebel peer of his dignities by Act of Attainder.
The first was in the reign of Richard II, when the Earldom of Oxford, descending to heirs general, but forfeited in 1388 by Robert de Vere, the ninth Earl, was restored in 1393 by Richard II in full Parliament to Robert's uncle and heir, Sir Aubrey de Vere, with descent restricted to heirs male. In 1626 the judges held that the assent of Parliament to this form of restoration was equivalent to an Act of Parliament, wherefore the limitation was valid.
The second was in the reign of Edward IV, in 1478, when George Neville was deprived by Act of Parliament of his Dukedom of Bedford on the ground that he had not the means to support the dignity - a reason which would probably afford more scope for action to-day than was the case then! The Act recited that as the said George, "as it is openly known, hath not nor by inheritance may have any livelihood to support the name, estate, and dignity, or any name, estate or dignity", it was "enacteth that from henceforth the same erection and making of duke, and of the name of dignity given to the said George or to the said John Neville, his father, be from henceforth void and of no effect, and that the said George and his heirs from henceforth, be no dukes nor marquis, earl, nor baron."
The poverty-stricken George, as it happened, died without issue five years later, so that no descendants were left to lament the disappearance of honours due to their ancestor's indigence.
In 1627 the Earldom of Arundel, the oldest of the English earldoms, the descent of which had certainly been erratic and probably irregular, was entailed by Act of Parliament on various branches of the family - all of them descended from the marriage of the fourth Duke of Norfolk to the Arundel heiress.
The fourth case occurred a century or so later, in the reign of Queen Anne, and concerned the peerages of the celebrated John Churchill, the first Duke of Marlborough. Churchill had been created successively Lord Churchill, Earl of Marlborough, and Marquess of Blandford and Duke of Marlborough, in each case with succession limited in the normal way to heirs male of his body. But a few months after receiving his dukedom Churchill's only son, John, died "of the smallpox" at Cambridge, at the age of twelve. There was definitely no prospect of other heirs male being born, and in the circumstances Marlborough was naturally desirous of his honours and dignities descending to his posterity through his daughters.
The normal course in such cases is to create new equivalent honours, with the succession provided for by special remainder (as will be seen in the examples quoted in the section headed "Special Remainders"). Instead an Act was passed in 1706 empowering the succession to pass to the Duke's daughters, in order of seniority, and their issue, together with the Royal manor of Woodstock, and the Hundred of Wooton, which, at the request of Parliament, Queen Anne had bestowed on the Duke and his heirs, and on which the splendid Palace of Blenheim had been built to the designs of Sir John Vanbrugh. So that when the Duke died in 1722 his daughter, Henrietta, who had married the second Earl of Godolphin, became Duchess in her own right. Oddly enough, her only son also died in the lifetime of his parent, whereupon the succession passed to the elder surviving son of the next daughter, Anne, who had married the third Earl of Sunderland, head of the House of Spencer. This accounts for the "Spencer" in the name of the famous war-time Prime Minister. Spencer, in fact, was now the patronymic, and remained so for nearly a century, until the sixth Duke sought and obtained a Royal Licence to assume and bear the additional surname and arms of his famous predecessor.