continue the Honour would expose the [8] Family to Infamy; and therefore sometimes, to prevent the Son of Adultery from his succeeding to the Dignity, it may be convenient to surrender it; and yet this cannot be without the Concurrence of the Prince, who being the Source of Honour can best judge of the Reasons for stopping the Stream; and it cannot seem an harder Case to disinherit him of the Honour than of the Estate, which he may do; and if he leave his Honour without his Estate, it will be a Burden on his Shoulders which he will be unable to bear; and seeing it's necessary that there be a Concurrence of the Prince, it is indecent to suppose so vile a Thing of the Crown, as to comply with the Peevishness and Simplicity of the Parents, where there is no Reason for it. And as for what hath been alledged for the Invalidity of those Precedents, that they were in Cases of New Creations, and were in nature of Transmissions, he answered, That when an Honour is surrendered, and a new Honour granted, the former is either extinguished, or not, before the other takes Effect; if not, then the Party hath both together against the Will of the Donor; and perhaps the new Honour may be of that Name and Place, and those Persons may be concerned in it, that will not permit it to be effected; and if it be in the Power of the Ancestor, for the Advantage of his Posterity, by the Surrender of one Honour to take a greater, it may be also in his Power to do it for his Prejudice. As to the Objection, That by the same Reason an Honour may be extinguished it may also be Transferred; he answered, That there was a great Disparity betwixt them; for as to Alienations of Honours, there's great Reason they should be disallowed, for they all flow from the Prince, and therefore 'tis not fit they should be conferred on any but by the Prince; tho' the Kings of England have granted Power to a General to give the Honour of Knighthood, &c. in the Field, for the Reward and Incouragement of Valour; yet this Granting of Nobility is a Prerogative peculiar to the King's Personal one; no Man else can enable another: Time was indeed, when the Earls of Chester, having Counties Palatine, by Virtue of their Jura Regalia did create Barons, yet they never sat in Parliament as Peers, because Peerage being a Thing of so high a Nature cannot be given by any but a Sovereign, and is given as a Trust and Obligation, so that common Reason saith they are transferrable. It is said in our Law, that where Offices are granted to a Man in Fee, (See Jones 122, 123.) he may grant it over; yet in some Cases they are so near to the Crown, that they cannot be transferred, but must descend with the Blood: Upon the same Reason no Man can ever transfer an Honour, for the near Relation which it hath to the Crown: But in case of Extinguishment that Relation and Trust ceaseth, and so they are different Cases. Then lastly, as to the great Objection of the Judgment of the House of Lords in Roger Stafford's Case Anno 1640, he answered, That notwithstanding that Case, their Lordships had given him Leave to argue it, and therefore they intended not that should be any Impediment. 2. That is no Judgment; for they being a Court of Judicature, do as other [9] Judges, judge of the Matter before them only. Then the Question was, Whether an Honour could descend to the half Blood? They referred it to the Judges, who were of Opinion that it should. Thereupon ariseth another Question, Whether a Man might Convey or Transfer his Honour to another? 'Twas resolved he might not. This drew another Question; whereupon they resolved that a Lord could not Surrender his Dignity; the Original Cause was about a Descent to the half Blood, the Resolution is he cannot Surrender; how then can they pretend that to be a Judgment, when the Question in Point of Judgment was not before them. Suppose it had been resolved (and it's a Wonder it had not all that Time) that a Lord could not forfeit; and that had been a third step to have made it a perfect Business; for considering the Times, it had been a most convenient Resolution: But besides all that, the King's Counsel were never heard in the Point, and the Rejecting the Opinions of Learned Men, shews it was no Resolution of the whole House, tho' entred upon the Journal; and therefore he prayed Judgment against the Petitioner.
Earl of Shaftsbury's Argument.—The Earl of Shafsbury spoke in the House for the Petitioner.
The Stress of the Argument for the King in this Case is founded upon these two Assertions.
1. That Honours are taken to be within the Statute de donis, &c. and the general Rules of that Statute.
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