CHAPTER XIII.

TIME NO BAR.

It is well settled that mere delay in claiming a peerage will not bar the right to it. (See supra, p. 2.) A peerage once created devolves in accordance with the limitations of the origin of grant, unless and until it determines for default of persons inheritable or is extinguished by attainder or Act of Parliament, or unless and until the owner succeeds to the Crown, or unless the limitation is altered by Act of Parliament, and the same rule applies to a peerage in abeyance; the rights of the co-heirs are not barred by any mere delay, however great, in asserting them.

1839.

Thus, in the Hastings Case, 1841 (8 Cl. & Fin. 157), the peerage was Hastings Case, claimed and the title thereto established in 1841, after remaining 1841. unclaimed for 450 years—that is, since 1391. So in the Camoys Case, Camoys Case, 1839 (6 Cl. & Fin. 789), where the peerage was in abeyance, no one had sat in right of it since 1419, and yet in 1839-after a lapse of 420 years-it was held to be still subsisting, and was shortly afterwards called out of abeyance. The effect of lapse of time is well Cottenham, stated by the Lord Chancellor, Lord Cottenham, in the Hastings Case L. C., in Hastings Case, (supra), where he says: "One of the points for consideration was 1841. whether the absence of any exercise of the right to this title from the time it has been proved to have been last held by Sir John le Hastings, sixth Baron Hastings, who died in the year 1389, does not raise a presumption that there must at that time have been something which cannot now be traced, but which precluded the party who would otherwise have been entitled from claiming the barony at that period. . . . Though length of time itself is no bar to a claim to a dignity, yet where you are examining matters of fact, and endeavouring to ascertain the rights of persons who come forward to claim it, undoubtedly a great presumption is raised against the validity of that claim when you find the dignity descendible at a particular period in a way that would entitle a party to take it up, and you find that that claim was not made, or at all events, that the party did not succeed; unless there are circumstances in the case which enable your Lordships to come to a conclusion that the circumstance of the dignity

not having been taken up is satisfactorily explained. Where a title falls into abeyance, and is claimable either by two sisters or the descendants of two sisters, no doubt the prescription against the title does not exist, because neither of those parties could assert a claim to the title without the consent of the Crown; and if the Crown did not think proper to exercise its prerogative by deciding to which of the two sisters the title should descend, neither party could assert her title in her own name. If the Crown does not so decide in the first instance, after the title has fallen into abeyance, it may go on from generation to generation; and the circumstance, therefore, of its falling into abeyance and not being claimed, undoubtedly does not in that case raise any strong presumption against the claim. . . . There have been cases before your Lordships in which you have reported in favour of titles where that circumstance did not exist, and where the titles appear not to have been taken up by the next possessors, it not appearing that the circumstances of the cases were such as presented any impediment which would prevent them from claiming the titles. It must always depend on the particular circumstances of each case; it is at most but a presumption, that is to say, a presumption that there must have been something which cannot now be discovered, which might have prevented the party who would otherwise be entitled to the dignity from claiming it. . . . Sir John Hastings, who died in 1389, was the last possessor of the dignity, and there was this difficulty at your Lordships' bar: that the male descendants of Sir John by the second wife were the parties entitled to the peerage, but that they did not make any claim to it, and that from that period to the present there has not been any enjoyment of the dignity by any person in whom under those circumstances it would vest. If the case had stood nakedly upon those facts, although there are cases which would justify your Lordships in passing over that difficulty, and not concluding the case on account of not being able to explain how the non-enjoyment of the dignity happened-there would have been great difficulty in assuming that they were in fact entitled to the dignity, when no person descended from Sir John de Hastings had during so long a period asserted their title. But the circumstances of this case appear to me to remove that difficulty, because it appears that upon the death of the male line of Sir John de Hastings, called in the pedigree the second Baron Hastings, there being descendants of Elizabeth his daughter, the question arose how far the descendants of that daughter were entitled in preference to the descendants of the son of the second marriage, there being a rule of law applicable to land (possessio fratris), and the question arising whether the rule of law applicable to land did or did not apply to a dignity. . . . From the year 1540 the title was in abeyance, and in 1641, when it appears that it was decided

that the possessio fratris did not apply to a dignity, the parties then entitled to this dignity were not persons who could of their own authority take up and exercise the privilege, but they were the descendants of daughters who could not take the privilege without the act of the Crown declaring in whose behalf the abeyance should be determined. . . . When, therefore, your Lordships see that at the period at which the ancestors of the present claimants would have been entitled to assert the claim to the present dignity, a question of law existed which prevented that right from being asserted until a period at which the title descendible in the line of issue male of the second marriage had fallen into abeyance, I think you have circumstances proved sufficient to explain how it happened that the title had been so long suspended, and why no person came forward to assert it." The principle that lapse of time is no bar received recognition more Principle than once in the recent Norfolk Case, 1906 (1907, A. C. 10). During recognized in Norfolk Case, the argument of the case counsel for the claimant said: "It is firmly 1906. established that no length of time bars the peerage or the right to have it called out of abeyance so long as the facts are established. I do not propose to waste the time of your Lordships' Committee by citing authorities for that proposition, which may now be regarded as elementary." And in answer the Earl of Halsbury said, "There is no doubt as to that."

A later remark by Lord Ashbourne involves a similar recognition. Roger Bygod had purported, in 1302, to surrender the earldom, and this surrender was, in 1906, held to have been invalid; and Lord Ashbourne, commenting on this state of things, said: "Roger le Bygod had a brother living in 1302, and other kinsmen are stated to have been subsequently in existence. Supposing a claimant should now appear, proving a clear descent from a Bygod entitled to the old earldom, what answer could be made?"

adverse possession no bar.

Neither can a good title to a dignity be barred by a so-called adverse So-called possession, however long, for there is no such thing as adverse possession of a peerage. The Willoughby of Parham Case furnishes a good instance of this. The WilloughIn that case the barony of Willoughby of Parham was granted in tail by of Parham Barony Case, male in 1 Edw. VI., 1547. The title descended to the eldest son of 1767. the grantee and the heirs male of his body until 1685, when his male issue failed, and thereupon the title was claimed by and allowed to the descendants of the fifth son of the grantee, and was enjoyed by him and his issue male until 1765--that is, for a period of eighty years-when the heirs male of the fifth son became extinct. Two years later, in 1767, Henry Willoughby claimed the barony as heir male of the body of the second son of the grantee. The petition was referred to the House of Lords, and the title of the claimant to the

Journals,
Vol. 31, 530.

Ibid. 537.

barony by pedigree proved being established, the following resolution, as appears from the Journals of the House, was passed :—

"That the petitioner had a right to the title, dignity, and peerage of Willoughby of Parham, which was enjoyed from the year 1680 to the year 1765 by the male line, then extinct, of Sir Thomas Willoughby, youngest son of Charles, Lord Willoughby of Parham, who were successively summoned to Parliament by descent, in virtue of letters patent bearing date the 16th of February, 1 Edw. VI., and sat as heirs male of the body of Sir William, created Lord Willoughby of Parham by the said letters patent, contrary to right and the truth of the case. It then appearing that Sir Ambrose Willoughby, the second son of the said Charles, and elder brother of the said Sir Thomas, who was averred to have died without issue, left a son, and that the claimant was great-grandson and heir male of the body of such son, and consequently heir male of the body of the said Sir William, who was created Lord Willoughby of Parham. The male line of the eldest son of the said Charles, Lord Willoughby of Parham, having failed in or before the year 1680. And that the proof of the petitioner's pedigree being clear, the contrary possession ought to be no bar to his claim; as there was no person in being interested under such possession, without prejudice to the question if there was."

A writ of summons was accordingly issued to Henry Willoughby, the petitioner, and he took his seat as Lord Willoughby of Parham.

CHAPTER XIV.

REPRESENTATIVE PEERS.

peers.

By the Act of Union of England with Scotland, 1706 (5 Anne, c. 8), Scotch repreprovision was made for the union of the two kingdoms of England sentative and Scotland into one kingdom by the name of Great Britain, and for the election from time to time of sixteen Scotch representative peers to sit in the Parliament of Great Britain.

This Act has been amended by 10 & 11 Vict. c. 52, and by 14 & 15 Vict. c. 87 (1851).

visions.

Under these Acts whenever Parliament is to be convened a Act of Union, proclamation under the Great Seal has to be made for the 1706, and amending election, by the peers of Scotland, of the sixteen representative Acts. peers, and their election is notified in due course to the Clerk of the Main proHouse of Lords. The representative peers so elected are, by the Act of Union, given all privileges of Parliament which peers of England have or may have after the Union, and in particular the right to sit in Parliament and the right of sitting on the trial of peers. The Act of Union also gives to all peers of Scotland rank and precedence next after the peers of the like order and degrees in England at the time of the Union, and they are to enjoy all privileges of peers as fully as the peers of England; but the right of sitting in the House of Lords is confined to the sixteen representative peers.

The Acts make no provision for any addition to the Scotch peerage. Other legal A Scotch peer may not sit in the House of Commons.

A Scotch representative peer is entitled to sit during the continuance of the Parliament to which he was elected.

A Scotch representative peer may receive a peerage of the United Kingdom, but he thereupon ceases to be a representative peer, and a new election takes place to fill the vacancy.

Under the two Acts of Victoria above mentioned the House of Lords has a considerable measure of jurisdiction as to the determination of the right to vote at elections of representative peers for Scotland and in other respects.

incidents as to Scotch peerages.

By the Act of Union of Great Britain and Ireland, 1800 (39 & 40 Irish repreGeo. III. c. 67), similar provision was made for the union of Great sentative

peers.