Peerage law

The British peerage is governed by a body of law that has developed over several centuries. Much of this law has been established by a few important cases, and some of the more significant of these are addressed in this article.

Peerage disputes

, as fount of honour, may determine all petitions claiming peerages. The sovereign upon the Attorney General's advice can grant the claim or, in contentious matters, send it to the House of Lords, who in turn send it to the Select Committee for Privileges. Next, the sovereign makes a final decision based upon the Committee for Privileges' recommendation.
The Committee for Privileges also has a role in terminating abeyant peerages. A co-heir may petition the sovereign for a termination of the abeyance in his or her favour; the sovereign can choose to grant the petition, but if there is any doubt as to the petitioner's pedigree, the claim is usually referred to the Committee for Privileges. If the claim is unopposed, the committee will generally award the claim to the petitioner. Under a decision of 1927, however, the committee can deny a claim if the peerage has been in abeyance for more than 100 years, or if the petitioner holds less than one-third of the claim. Incidentally, the House of Lords made a standing order in 1954 directing that the committee may deny a claim if the co-heirs have entered into an "improper arrangement." This rule prevents co-heirs of multiple baronies by writ from agreeing not to contest each other's claims, thereby dividing the baronies by writ amongst themselves.
In claims regarding the Peerage of Scotland, the Court of the Lord Lyon King of Arms in Scotland has a major role in identifying the rightful heir or heiress to an aristocratic title. These titles are composed of Dukedoms, Marquessates, Earldoms, and Viscounties, plus Lordships. Only the Lords have jurisdiction over succession to peerages, but the Lyon Court does have jurisdiction over succession to coats-of-arms. Under Scottish law, an individual's heir succeeds to his arms undifferenced, while other descendants may succeed to arms differenced by special marks, called cadency marks. The case before the Lyon Court involves a dispute as to who may lawfully succeed to a deceased peer's arms "undifferenced" — the lawful successor to the arms will normally also be the successor to the peerage.
For further information about the Committee for Privileges, see:

Significant cases

''The Earl of Bristol's Case'' (1626)

The reign of Charles I was marked by the growing absolutism of the monarchy. In 1626, the King decided not to issue a writ of summons to John Digby, 1st Earl of Bristol, who was charged with, but not convicted of, high treason. Since he could not be admitted to the House without such a writ, Lord Bristol made a petition to the House of Lords. The Committee for Privileges reported,
There was some delay, but Lord Bristol eventually received the King's writ of summons. The writ was accompanied by a letter from the Lord Keeper of the Great Seal, Thomas Coventry; it read,
Lord Bristol nevertheless attended Parliament, arguing that a writ personally issued by the sovereign was of more weight than the letter of a Lord Keeper. The practice of denying writs of summons to eligible peers has since been abandoned.

''Rex v Purbeck'' (1678)

For the early part of English history, peers sometimes surrendered their peerages to the Crown. Most surrenders occurred during the early years of the nation, but surrender occurred as late as 1640, when Roger Stafford, 6th Baron Stafford was ordered to surrender his dignity to the Crown in return for eight hundred pounds sterling. Later that year, however, the House of Lords, in order to guard the position of its members, which had been threatened by the power to order surrenders of peerages, resolved,
Nevertheless, the Crown accepted the surrender of the Viscountcy of Purbeck, which had been created for John Villiers in 1619. In 1624, Frances, Viscountess Purbeck, who had been separated from her husband and engaged in a relationship with another man, gave birth to a presumably illegitimate son, Robert. In 1657, when the first viscount died, Robert surrendered his peerage under the presumption that he was illegitimate. He was then elected to the House of Commons. In 1660, he was charged before the House of Lords for "treasonable and blasphemous speech." He asserted that, since he was a member of the House of Commons, the Lords had no right to punish him. The House of Lords responded by declaring that he was not a commoner, but a peer, and was therefore subject to the authority of the Lords. Immediately, he "levied a fine" to the King, surrendering his peerages to the Crown. In 1676, his son applied for a writ of summons to Parliament, claiming the viscountcy. The matter was referred to the House of Lords, which unanimously ruled in Rex v Purbeck that no "fine" could allow a peer to dispose of his peerage.
Peerages in the Peerage of Scotland were not subject to these rules prior to the Acts of Union 1707. In Scots law prior to that date, it was possible to surrender a peerage and receive a regrant, the procedure being known as a novodamus. One instance was the novodamus of the Dukedom of Queensberry, the new dukedom having a remainder preventing the title from passing to the second duke's eldest son, who was insane. Additionally, it is now possible to "disclaim" a peerage—doing so deprives the holder of the peerage for life, but does not destroy it, as it descends upon the death of the peer making the disclaimer.

''Mar Peerage Case'' (1875)

The Earldom of Mar is the oldest extant title in Great Britain, and probably in Europe. The origins of the title are unclear, but is known that in 1404, a man named Alexander Stewart forced the suo jure Countess, Isabel Douglas, to sign a charter conveying the peerage to him and his heirs. Later, the countess married Stewart and revoked the old charter. She then agreed to convey the earldom to him for his life, following which it would pass to her own heirs. In 1426, Lord Mar resigned his title and the King of Scots regranted it, thereby legitimising his wife's actions. The King specified that the earldom and lands of Mar would revert to the Crown upon the death of the Earl, which occurred in 1435. Robert, Lord Erskine, the heir to the deceased Earl, claimed the earldom under the countess' charter, but the King claimed it under his own patent. In 1457, James II obtained a court order favouring his position; the lands, therefore, were transferred to the Crown. Later kings granted the earldom and associated lands to members of the royal family. In each case, however, the earldom returned to the Crown either because of the treason of the holder or a failure to produce heirs. Mary, Queen of Scots, finally did justice in 1565 by restoring the earldom to John Erskine, the heir of the dispossessed Robert Erskine.
Upon the death of the ninth Earl of Mar in 1866, the earldom was disputed between two of his kinsmen. The heir-general to the earldom was John Goodeve-Erskine, son of the sister of the ninth Earl. Walter Erskine, 12th Earl of Kellie, claimed the title as heir-male of the seventh Earl of Mar. Goodeve-Erskine's claim was originally unopposed; he even participated in elections for representative peers. Later, the Earl of Kellie petitioned to be recognised as a peer. He died before it could be considered; the claim was carried on by his son, also named Walter, the 13th Earl of Kellie. The petition made several claims:

The original Earldom of Mar was a territorial title rather than a title of peerage and was therefore "indivisible."
Alexander Stewart obtained a new Royal charter for the earldom, rather than receiving it in right of his wife Isabel.
After the death of Alexander Stewart, his lands were passed to the Sovereign in accordance with the patent, and thereafter were disposed of by the Crown.
As the territorial earldom was "indivisible," upon the termination of the territory, the earldom must have ended also.
Therefore, since the territorial earldom had already become non-existent, Mary's 1565 grant was not a revival of that title. Rather, it was a totally new creation, this time in the form of a peerage title.
Since the instrument of Queen Mary's 1565 grant cannot be found, the presumption ought to be that the earldom passes to heirs-male, and not to heirs-general. Thus, the Earl of Kellie is entitled to the Earldom of Mar as he is the late Earl of Mar's heir male, while John Goodeve-Erskine was an heir-general.

Goodeve-Erskine had different ideas, however. He portrayed the Crown's takeover of the territorial earldom not as pursuant to a lawful patent, but rather as an act of tyranny. He argued:

James I, in a tyrannical act, seized the lands of Alexander Stewart, when these should have passed to Robert, Lord Erskine.
The "true" Earls never agreed to terminate their claim to the earldom.
Queen Mary's 1565 grant was a restitution of the old territorial earldom rather than a new creation.
Because the title is a restoration of a territorial earldom, and because the territorial earldom could pass to heirs-general, John Goodeve-Erskine was the rightful heir, being the late Earl of Mar's heir-general.

The House of Lords Committee on Privileges, which did not include any Scottish members, ruled in 1875 that the Earldom of Mar was newly created in 1565, passed only to heirs-male, and therefore belonged to the Earl of Kellie, and not to Goodeve-Erskine. The Lord Chancellor, Roundell Palmer, 1st Baron Selborne, declared it to be "final, right or wrong, and not to be questioned". Many Scottish peers were outraged; the Earl of Crawford and Balcarres even wrote a two-volume history of the earldom refuting the ruling of the committee. It was argued that the 1565 earldom was merely a product of the imagination of the House of Lords, and that Goodeve-Erskine was the true heir to the ancient earldom. Many in Parliament agreed, but the decision of the Lords could not be overturned. Instead, the Earldom of Mar Restitution Act 1885 was passed ; it declared that because of the doubts relating to the 1565 creation, it would be assumed that there are two earldoms of Mar. The earldom created in 1565 would be held by the Earl of Kellie. The ancient earldom, however, was declared to be still in existence, and was given to John Goodeve-Erskine.