Sons Called Up in Fathers' Baronies
With one exception, a person can become a peer only by creation or inheritance. That exception is in the case of the eldest son of a peer. By immemorial usage the Crown has power to accelerate in certain cases the descent of a peerage, so as to make it pass during the life of the holder to his or her eldest son and heir apparent just as if the parent were dead. This power, however, can be exercised only where the parent is the holder of more than one peerage. Thus, if the father holds an earldom as well as a barony, the son may be summoned to a seat in the House of Lords in right of the father's barony.
The earliest recorded instance of this is in 1399, when Henry Percy, the famous "Hotspur", eldest son of the then Earl of Northumberland, was summoned to and sat in Parliament in right of his father's barony.
There have been many instances since. The latest occurred during the late war, when the present Earl of Selborne, then bearing the courtesy title of Viscount Wolmer, was called up in his father's Barony of Selborne, and Viscount Cranborne, elder son and heir of the Marquess of Salisbury (to which title he later succeeded), was called up in his father's Barony of Cecil of Essendon. In each case the new peer was still known by his courtesy viscountcy, in the former case to avoid confusion between two Selborne peerages, and in the latter to avoid confusion with Lord Cranborne's uncle, Viscount Cecil of Chelwood.
Because a majority of instances, and all recent ones, have occurred in the case of earls or peers of higher degree than that of earl, there appears to be a belief in some quarters that the practice cannot be applied to the eldest sons of viscounts or barons. This is not so. The eldest son of any peer can have his passage to the Upper House thus accelerated provided his father holds more than one peerage. In 1628 the son of Viscount Conway was summoned in his father's Barony of Conway and Ragley, and in 1680 the son and heir apparent of Lord D'Arcy and Conyers was summoned in the lifetime of his father in the latter's Barony of Conyers. It is true that the latter instance is the only one of a baron's son being so summoned, but the precedent would obviously hold good.
Should a son so ennobled die during his father's lifetime the peerage thus vested in him would descend to his son as though he had inherited the barony in the normal way. This principle was established in the case of Charles Boyle, eldest son of the first Earl of Burlington, who was summoned to Parliament in 1689 in his father's Barony of Clifford of Lanesborough. He died in his father's lifetime, leaving a son. The son, another Charles, thereupon claimed and was allowed the barony.
Reference has already been made to the fact that once a patent has passed the Great Seal only a special Act of Parliament can alter it, so any mistake that has been made must stand. The same care has to be exercised in issuing a writ of summons to an eldest son in the circumstances which we are considering, for any mistake will simply be perpetuated. The summons must be addressed to the son in the name of his father's barony, otherwise the writ and sitting will create a new barony.
Thus in the case of Charles Pawlet (or Paulet), son and heir apparent of the second Duke of Bolton (a title once held by successive Marquesses of Winchester), the writ was addressed to him as "Carlo Pawlet de Basing", whereas the name of the Duke's barony was St. John de Basing. This writ and sitting were held to constitute the creation of a new peerage.
In this case, however, the error was not long perpetuated, for "Carlo", who succeeded as third Duke, left no legitimate issue, and the family honours passed to his brother, while the erroneously created barony died with him. He was the Duke of Bolton who married Lavinia Fenton (Mrs. Beswick), famous as Polly Peachum in The Beggar's Opera. She had been his mistress for years before the opportunity arose to marry her, and during that period had borne him three sons. Two became clergymen in the Church of England and the third a lieutenant-colonel in the Army.
A peerage created in error in this way would be on a par with the ancient baronies by writ and inheritable by females. It is to this fact that the Duke of Atholl owes his English baronies of Strange and Percy.
The original Barony of Strange, of Knokin, was a minor title of the Earls of Derby, and was held by the second, third and fourth and fifth Earls. The fifth Earl died in 1594 without male issue, when the earldom passed to his brother, William, but the Barony of Strange in fact fell in abeyance between his three daughters, the Countesses of Castlehaven, Bridgewater and Huntingdon.
Its history from that point is curious. It seems to have been assumed that William inherited the barony also, and thirty-four years later, in 1628, his elder son, James, was summoned to Parliament in his father's lifetime as Baron Strange. The error persisted for more than a century, during which time successive heirs to the earldom were known by the courtesy style of Lord Strange; with an interval from 1714 to 1732 when the barony was held (erroneously, as it turned out) by two female heirs in succession, the daughter and grand-daughter of the ninth Earl.
The mistake seems to have been discovered some time after the death of the latter's brother, the tenth Earl. With this Earl the senior line of the Stanleys in the male line became extinct, and the earldom reverted to Sir Edward Stanley, fifth baronet, head of a cadet branch descended from a younger grandson of the first Earl. His son, James, who died during his father's lifetime, was in turn styled Lord Strange, as heir to the earldom.
When a remote kinsman succeeds, as in this case, the descent from the original grantee has to be proved very carefully, and it was presumably during this complicated investigation that doubts first arose about the 1628 writ of summons to the sixth Earl's son. Later it was definitely decided that the original Strange barony was in fact in abeyance between the heirs of the fifth Earl's daughters, and that in consequence the 1628 writ had created a new barony. As in the circumstances of its creation this new peerage was inheritable by females, it was promptly claimed and allowed to James, second Duke of Atholl, maternal great-grandson of the original grantee, and his only direct descendant, who had already succeeded, on the death of the tenth Earl of Derby, to the Stanley sovereignty of the Isle of Man.
Oddly enough, the barony might have been attached to the Atholl dukedom for that generation only had not the Duke's daughter married her cousin. For she was his only surviving issue and succeeded to the barony. But she had previously married the cousin, who was heir to the Duke's other honours.
Nor would this seem to be the end of the story, for the present Duke, the ninth, is unmarried, and his heir presumptive is a distant kinsman. But his heirship derives from his descent from the third Duke, and as this is a barony by writ, descendants through the female line of later dukes will have a prior right. In this case the barony will fall into abeyance between the families of Drummond of Megginch, MacGregor of MacGregor, and the Earls of Perth, descendants of the three daughters of the fourth Duke. The possibility of this goodly fellowship of heirs thinning out to a single claimant would appear to be remote, so the prospect is that this English barony will be submerged between three ancient Scottish houses, unless at some time or other the Crown exercises its prerogative in favour of any one of them.
Thus far we have followed the fortunes of what, for purposes of clarity, we may call the Strange barony-by-mistake. To complete the story we should see what happened to the real original Barony of Strange, which, it will be remembered, we left in abeyance in 1594 between the three daughters of the fifth Earl of Derby. That abeyance lasted for 327 years, until 1921, when it was terminated in favour of Viscountess St. Davids, a descendant of the third daughter, the Countess of Huntingdon. With the St. Davids viscounty it will remain unless and until a subsequent holder has an only child, a daughter, who will carry it by marriage to still another family; or there are two or more daughters and no son, in which case it would again fall into abeyance.
It is a curious coincidence that one family should become possessed of a peerage on two occasions as the result of a mistake. The Percy barony accrued to the Atholl family by just such another error. As I have recorded in dealing with special remainders, the seventh Duke of Somerset, whose father had married the heiress of the last Earl of Northumberland in the male Percy line, was summoned to the House of Lords in 1722 in what was thought to be his mother's barony of Percy. No such barony was in fact vested in her, but the effect of the summons and the sitting was to create a new barony by writ, heritable by and through females. This barony descended to the Duke of Somerset's only child, a daughter, whose husband became first Duke of Northumberland of the present line. When the fourth Duke died in 1869 his other honours went to the heir male, his cousin, second Earl of Beverley, descended from the second son of the first Duke, but the barony went to his grand-nephew and heir-general, seventh Duke of Atholl, and grandson of a sister of the second Duke of Northumberland.
This case of the Atholl dukedom is interesting not only, as we have seen, as illustrating the vagaries of female descent, but also as showing the uncertainties in the fortunes of peerages arising from broken male descent.
Altogether the present Duke of Atholl possesses nineteen separate and distinct peerages. But when the next heir inherits, he will lose not only the Strange and Percy baronies, but the Earldom of Strange, the Barony of Murray (of Stanley) and the Barony of Glenlyon, which will become extinct. For he is heir through the third Duke, and these last three titles were acquired by later generations, to whose creations he is not heir.
Oddly enough, although the next Duke will still be left with fourteen peerages, he will be without a seat in the House of Lords, for all these are Scottish peerages, which do not carry a seat in the Upper House. There is irony in the fact that each one of the five peerages which he will lose conferred that right.