The Treaty of Union and the baronage

In 1934 a baron argued before the Lord Lyon that the Treaty of Union guaranteed the rights of the Order of Baronage. The Treaty does three things for the baronage, and none of them is a guarantee of titles. Here they are, article by article.

In 1934 Gordon of Hallhead, Baron of Esslemont, argued before the Lord Lyon that the right of the Scottish baronage to be styled “Baron of X” was among “the rights of the Order of Baronage in Scotland, guaranteed by Art. 22 of the Treaty of Union”, and on 4 September 1934 the Lord Lyon found the claim established and awarded the chapeau.¹ The argument has been repeated since. It deserves to be stated precisely, because the Treaty does three different things for the baronage, and none of them is a guarantee of titles.

Article XXII — representation

Article XXII fixed Scotland’s share of the new Parliament: “Of the Peers of Scotland at the time of the Union 16 shall be the number to Sit and Vote in the House of Lords, and 45 the number of the Representatives of Scotland in the House of Commons”. The thirty county members among the 45 were elected by the “barons and freeholders” under the Scottish electoral law the Treaty carried over — the law of 1587, for which see The baronage in the statutes — and that is the thread that connects the Article to the baronage; but the Article itself does not mention barons. It was repealed as spent by the Statute Law Revision (Scotland) Act 1964 and, in the English Act, by the Statute Law (Repeals) Act 1993.² Nothing in it survives to be founded on.

Article XX — heritable jurisdictions “as rights of property”

“That all heritable Offices, Superiorities, heritable Jurisdictions, Offices for life and Jurisdictions for life be reserved to the Owners thereof as Rights of Property in the same manner as they are now enjoyed by the Laws of Scotland notwithstanding of this Treaty.”

This is the Article that touched the baron: his court was a heritable jurisdiction, and the Treaty preserved it as property. Forty years later the Heritable Jurisdictions (Scotland) Act 1746 abolished the greater jurisdictions and cut the baron court to trifles — paying compensation precisely because Article XX had made them property.³ The Article is still on the statute book, but the jurisdictions it reserved are gone, and s. 63(1) of the 2000 Act ended the last remnant.⁴

Article XVIII — private right

Scots law was to “remain in the same force as before”, with the rule that “no alteration be made in Laws which concern private Right except for evident utility of the subjects within Scotland”. The law of baronies was part of the private law so protected. The Scottish Parliament altered it in 2000 for “evident utility” — and, note, chose to preserve the dignity while abolishing the tenure.⁴ That choice, not the Treaty, is the baronage’s present guarantee.

Article XXIII — peers only

The Article that did protect rank protected the peers: “all Peers of Scotland and their successors to their Honours and Dignities shall from and after the Union be Peers of Great Britain and have Rank and Precedency next and immediately after the Peers of the like orders and degrees in England”. There is no equivalent for the baronage, whose precedence rests on the Nova Scotia baronetcy patents (barons ranking after baronets and knights and before esquires) and on Lyon Court practice.⁵ See The Lord Lyon’s Case for the Baronage, section 1.

What the Union left

The honest summary is that the Union left the baronage as it found it: a subsisting order under Scots private law, with its jurisdictions reserved as property. Its later history — 1746, 1874, 2000 — was made by Parliament under the “evident utility” clause. Article XX describes the eighteenth-century position and the 2000 Act describes today’s. Article XXII, repealed and silent on barons, is not an authority for anything; the present guarantee of the dignity is section 63, and it is a guarantee the Scottish Parliament chose to give.