2. And then secondly, That Honours are to be governed as other Inheritances, by the Rule of the Common Law.
Extrajudicial Resolutions of the Judges are of weak Authority. When the first Honour entailed by Patent.—As for the first, it hath not been proved; for the Resolution in Nevil's Case 2 Jac. was Extrajudicial, and no Judgment of any Cause before them; and in such Cases the Judges do not hold themselves to be upon Oath; and if there be two or more of another Opinion, they do not refuse to sign the Resolution of the major Part, and so it goes under the Denomination of all the Judges; but if it were a Judgment of them altogether, they could neither alter nor make new the Law, neither could they make that intended within the Statute de donis, &c. which was not in Being till many Ages after; Beauchamp in Richard the Second's time being the first Honour that was entailed by Patent.
2. That Honours are not governed by the Rules of Common Law; Are Personal Dignities; Triable only by the Lords. Can be taken away only by Act of Parliament. The whole Kingdom has an Interest in every Peer. The King cannot Surrender or alien his Crown. Honours may be forfeited, and why.—The second Assertion is contrary to the Opinion of the most Learned Men, the Honour and Dignity of the House, the constant Practise of Westminster-hall, and the direct Evidence of the Thing itself. Justice Berkley, a very learned Judge, declared his Opinion Febr. 6. 1640. as appears by the Records of this House, That Honours descend from the first that was seized of them, contrary to the Rules of other Inheritances; and that Honours are not governed by the Rules of the Common Law. Justice Dodderidge, in Jones 207. is of Opinion, That Honours are Personal Dignities which are affixed to the Blood; the Lords never yet suffered their Honours to be tried at any Court at Law, or any other where, save before themselves, tho' their other Inheritances are tried there [10] as well as other Mens: So possessio fratris holds of Lands, but not of a Dignity, which is not disposed of as other Inheritances, nor will it be guided by the strict Rules of Law. The Lord Coke is of Opinion in Bedford's Case, That an Honour could not be taken away but by Act of Parliament; therefore it will be allowed that the Concurrence of all Parties concerned may extinguish this as well other Inheritances, but the Concurrence of all cannot be without Act of Parliament; for the whole Kingdom have an Interest in the Peerage of every Lord: It is a dangerous Doctrine to say our Judicature and Legislature is our own only. The House of Lords is the next Thing to the Crown, tho' that be far above them; yet those that reach at that must take them out of the way first; they were voted useless and dangerous before the Crown was laid aside; and as in Descent of the Crown the whole Kingdom hath such an Interest in it, as the King cannot Surrender or alien it; so in a proportionable Degree, tho' far less, the King and Kingdom have an Interest in their Lordships, and Dignities, and Titles. It is true they may be forfeited, but it doth not follow that they may be extinguished by Surrender. There be two Reasons for the Forfeiture:
1. There is a Condition in Law, that they shall be true and loyal to the Government.
2. The Reasons do not hold in a Surrender. Precedents answered.—Honours are inherent in the Blood, and when that is corrupted, that which is inherent is taken away; but in Case of a Surrender these Reasons do not hold; there is no Breach of any Condition in Law, nor any Corruption of the Blood; for these Reasons Felony without Clergy forfeits Honours; whereas other Inheritances, tho' Fee-simple, are lost but for a Year and a Day, and so are Freeholds for Lives; which is another clear Instance that Honours are not governed by the Rules of Law. It is pressed as a known Law, that Honours are grantable for Lives; a Point of greater Consequence than the Thing in Debate: It's not a fair way of arguing, nor to be allowed of. As for the Precedents that are, Selden 730. is expresly against them; for it saith that the Honours of Baronages were in Abbots only in Right of their Abbies, not inherent in them: So that 'tis plainly inferred that other Honours are Personal Dignities. The Lord Delaware's Case 11 Rep. makes nothing for them; for it doth not follow, that because he could not Surrender that which was not in him, therefore he might Surrender that which was in him. As to the other Precedents, he gave these three Reasons:
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