Dominus Rex v. Viscount Purbeck [1677].
[Mew's Dig. x. 307. See also Cruise, Dignities p. 113: P.P. 1895, 272, p. 5.]
Peerage: Salk. 509.—Upon a Petition, the Question was in the House of Lords, Whether the Dignity of a Viscount could be surrendred to the King by a Fine? And it was argued at the Bar by three Counsel for the Petitioner, and by the Attorney General for the King. It was urged on behalf of the Petitioner, That a Dignity cannot be surrendred to the Crown; and that for these Reasons:
1. Arguments for the Petitioner, that a Peerage cannot be surrendered to the Crown, but may be forfeited, and why. Honours Feodary and Officiary.—It is a Personal Dignity annexed to the Blood, and so inseparable and immoveable, (See Ratcliff's Case 3 Rep. Rutland's Case 6 Rep. 53.) that it cannot be either transferred to any other Person, or surrendered to the Crown; it can neither move forward nor backward, but only downward to Posterity; and nothing but a Deficiency or a Corruption of the Blood can hinder the Descent, as if the Ancestor Felony, &c. For in that Case, the Heir conveying no be attainted of Treason or Inheritable Blood cannot make any claim to that which is annexed to the Inheritable Blood: And besides, there is a tacit Condition of Forfeiture annexed to those Dignities, by the Breach of which Condition the Dignity is determined; but by the Act of the Party there can be no Determination of it, unless there be an Attainder which corrupts the Blood. And he took a difference between ancient Honours and Dignities which were Feodary and Officiary, (as Earl Marshal of England) which have a Relation to an Office or Land, for such are Transferrable over, and such Lignities as are only Personal, Inherent in the Blood, and only savour quasi of the Realty, of which no Fine can be levied, as 'tis of an Annuity to a Man and his Heirs, no Fine can be levied.
2. A Dignity not within the Statute De Donis, nor Statute of Fines.—A Dignity was neither subject to a Condition at the Common Law, nor intailable by the Statute de Donis, &c. nor barrable by the Statute of Fines: Indeed in Nevil's Case, (7 Co. 33) something which savours of the contrary Opinion is said, but the Question there was, Whether 'twas forfeitable by Treason? And therefore the present Question is very foreign to the Matter there debated. [2] A Dignity differs from other Inheritances, being an Honour Personal affixed to the Blood, cannot be forfeited by a Non-performance of a Condition, except that tacit Condition in Law, and consequently cannot be intailed; and tho' the Title of a Viscount be of a Place, yet it is only Titular, for it is often taken from the Surnames of Families.
3. The Publick is interested in the Peerage.—The Title of Viscount, &c. is not so much a private Interest as a publick Right, for Peers are born Counsellors of State, and one Part of a Senatory Body, and therefore cannot be renounced without the Consent of all those who have interest in it; they cannot, without of the whole Body, whereof they are so considerable Members, cut the Consent
