of Parliament. Then as to the Precedents that have been urged on the other side, there are none directly to the Point; for as to Nevil's Case, there are very few cases cited there aright, and are not to be look'd upon as Law. The Case of my Lord of Northumberland in 3 & 4 Phil. & Mar. was by way of Creation, and so was the Case of Dudley. And Dugdale in his Baronage of England, pag. 270, gives an Account of it; and the rest of the Precedents are above Two Hundred Years old, which passed sub silentio, and are not to be vouched unless they were disputed. The first is Bigod's, who in the Time of Edw. 1. surrendered the Honour of Earl Marshal of England to the King, who granted it to him in Tail: This Honour is Officiary, and therefore nothing to the Purpose; and the Surrender [4] was made thro' Fear. Walsingham 95. The next is the Earl of Pembroke's Case, who in 8 Edw. 4. was made Earl in Tail, and by this he had the Grant of the Town of Haverfordwest; the King afterwards inclining to dignify his Son with that Title, procured him to surrender by Deed, and bestowed on him another Title, and gave a greater Estate, and an ancienter Honour. Here was an Estate Tail surrendered by Deed; it might work a kind of Discontinuance, but no legal effectual Surrender. And for the Case of Ch. Brandon, who in the Time of H. 8. was created Viscount Lisle, afterwards he surrendered that, and got a Dukedom; now no Man ever questioned the Efficacy of this Surrender, for he himself had no Reason to question it, for 'twas to his Advantage; and none other could question it, for he died without Issue, and his Honour with him: And so in the case of my Lord Stafford, he surrendered, and got a new Honour. So that it appeared all these Cases were either Honours referring to Offices and Lands, or else such as were for the regranting of greater Dignities, which they had no Reason to question, and so they passed sub silentio: But here is not one Precedent that they did ever Surrender to the Prejudice of their Blood, or move themselves quite out of the House by Fine or Deed. And further, If Precedents be good for the Surrender of an Honour by Fine, why not also for Transferring of it to another? for of this we have some Precedents, Daincourt's Case, 4 Inst. 126. One Branch of the Family sat in the House by virtue of a Grant from the other Branch from the Reign of Ed. 2. to Hen. 6. and the Case of the Earldom of Chester, first granted 17 H. 3. n. 25. and transferred 39 H. 3. And there was an Attempt made in the Lord Fitzwalter's Case, to make a Baron by transferring of the Dignity; but you will find all these Precedents disallowed: And 'twas said that no Man ever met with any Case where any Nobleman by Fine levied, or other Conveyance, became a Yeoman or Ignoble.
Peerage how triable. A Peer was Degraded for Poverty.—'Twas argued by another much to the same Effect, That Baronage and Peerage is to be determined by the Records of the Lords House, and if any other way be given, as there must be, if a Fine be allow'd to bar, then the old true way is gone: This was not a Fine conditional at the Common Law, and therefore not within the Statute De donis Conditionalibus, and an Honour being a Personal Dignity is not to be barred (Jones Rep. 123.) by Fine, being inherent in the Blood, &c. The Duke of Bedford was by authority of Parliament degraded, and that was for Poverty, and by Act of Parliament, and not by Surrender: Therefore Judgment was prayed for the Petitioner.
Arugment for the King.—The Attorney General argued pro Domino Rege upon these Reasons.
1. Viscount created by Letters Patent only. A Baron may be by Writ.—There is but a defective Proof of the Creation of this Honour, no Letters Patents, no Records of the Inrollment produced, nor any Entry in any Office of such a Patent, as is usual; all [5] that is pretended is, That he sat in some Parliaments afterwards as Viscount Purbeck; but that will not be accepted for Proof; for no Man can be created Viscount but by Letters Patent; a Writ of Summons will be an Evidence of a Creation, but will not amount to a Creation; there is a Ceremony equal almost to that of an Earl, there must be a Coronet; all which must be performed, or he must have Letters Patent to dispense with it, which being Matter of Record, must be produced. 18 Hen. 6. Beaumont was the first created Viscount, but there was never any since, nor then without Letters Patent; for he is to take place of some, and therefore he must have something to show for his Precedency; but a Baron is the lowest Dignity, and therefore may be created by Writ: Neither
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