R v. Viscount Purbeck
House of Lords
1 Eng. Rep. 1
Dominus Rex v. Viscount Purbeck
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 themselves off from the Body; and so the objection of quilibet potest Juri suo renuntiare is easily answered.
'Twas further argued on the same side, That
1. Whether a Peerage is governable by the ordinary Rules of Law concerning Inheritances.—An Honour goes not according to the Rules of the Common Law, nor is it governable by them, it is not therefore pertinent to argue from those Rules which hold in Cases of other Inheritances; for a Dignity descends to the Half-blood; there is no Coparcenership of it, but the Eldest takes the whole; a Fee-simple will go to a Noble-man without the word (Heirs). 1 Inst. 27. It differs from Estates in Land in the Intrinsick Matter, as well as the Manner of the Limitation, because it is given for two Reasons, for Counsel and Defence; and it is a Civil Interest, appointed by the Civil Constitution of the Realm, which goes with the Blood, and is inherent in the Blood, insomuch that it is agreed on all Hands, that it can't be transferred to a Stranger; and till Nevil's Case, 'twas doubted whether forfeitable for Treason; if a Lord die, his Son shall be introduced without the Ceremony usual at the first Creation; a Peer's eldest Son, and all Minors, sit behind the Chair of State, to prepare them for the Sitting in the House as Members, and because they have some Title to the Honour they are called Nobiles Nati, for the first time they fetch breath they have Nobility in them: So that he, that Surrenders by Fine, must not only extinguish his Estate in the Honour, but also the Nobility of his Blood.
2. The Peers are interested in each other.—Every Lord is not only a Lord for himself, but also hath a Right of Peerage, and is a Peer of the Realm, and therefore a Peer for every one of the House, and therefore hath the Privilege to demand his Writ Ex debito Justitiæ, and is to be tried by his Peers in Capital Crimes; and that appears farther from a Matter which happened in this House, 16 Car. 2. There was an Order mentioning the Bishops to be Lords of Parliament, not Peers; at which the Lords wondering, ordered a Committee to examine the Reason of it; which proves that Lord is not so high nor inclusive as Peers: So that if the Fine have any Operation, it takes [3] away not only his Right, but also the Right of the House of Lords.
3. Peerage how triable—The Trial of Baron or no Baron upon Issue in any Court of Judicature is by the Records of Parliament; but if a Fine may be levied in the Common Pleas, the Trial is drawn ad aliud Examen, and must then be by the Records of that Court. The Clerk of the Parliament always certifies if he be a Baron, because he hath the Record before him; but he cannot certify he is no Baron, because he hath not the Record thereof before him.
4. Things Personal do not pass by Fine. Honours Feodary and Officiary.—No Fine can be levied of a thing Personal, as an Annuity to a Man and his (Heirs,) but a Dignity is a thing Personal; and so he took notice of the Difference betwixt the Honours of Peerage, which are Personal, and the Honours that are Feodary and Officiary, which have reference to an Office or Land.
5. Argumentum ad inconvenienti. Precedents answered.—He did argue ab inconvenienti, that this Opinion can be no Inconveniency to the Crown; but the contrary makes Nobility a mere Pageantry, by putting it into the Hands of a weak and angry Father, to dispossess an hopeful Son of that which is his Birthright: The Titles of Esquire and Gentleman are drowned in the greater Dignity of that of a Peer, and when the greater are gone, the other must go with it: And then from being a Nobleman today, he and the rest of his Family must be below all Nobility, and be called Yeoman or Goodman Villers tomorrow, which may bring great Confusion to a Noble Family and all its Relatives; and surely this House will not put such a publick Disrespect on such a Family, by agreeing to so unjust an Act of one Man. And that which was most relied upon, was a Resolution of this House in Stafford's Case Anno 1640, which no Man without Indecency can question; it passed not sub silentio or obiter, but upon Debate; neither could it be any way invalid upon Account of the Times, for it was in the Infancy of that Parliament, and that wherein a Peer's Case, who sits now in this House, was judicially before them; and therefore there is no reason to shake that Judgment more than any other Judgment of that Time. My Lord Coke in his 4 Inst. Chapt. of Ireland, is of Opinion that Honours cannot be extinguished but by Act 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 can it be presumed that they were lost, for except it be produced it makes no Title; except they be produced, it shall not be intended there was any; neither can it be help'd by any concurrent Evidence, for if their were (Page's Case 5 Rep. 53.) a true Creation, there would be some Evidence in some of the Offices; but there is not in any of them the least vestigia of proof to ground a Presumption.
2. That Dignitites must be limited according to legal Rules, as other Inheritances. That Honours may be intailed within the Statute De donis. Hereditaments comprehends Honours. That a Creation may be destroyed, and how, and when. That whatever is within the Statute de donis is within the Statute of Fines. That an Honour may be released and extinguished. Precedents. Argumentum ab inconvenienti.—Dignities, as well as other Inheritances, must be limited according to the Rules of Law; the Dukedom of Cornwal (in 8 Rep. 1. the Prince's Case) was limited according to the strictest Rules of Law. And whereas it hath been said that Dignities differ from other Inheritances, that is where there is some particular Reason for it, as in the Case of Transmission or Alienation, which depends not upon the Manner of Creation, as shall be shewn afterwards: And for the Case of 1 Inst. 27. which was that an Inheritance of a Dignity may be created by other Words than other Inheritances are, as an Estate-Tail without the Words of his Body, there's not any such Thing in the Book: 'Tis said indeed, that if the King for Reward of Services done do grant Armories to a Man and his Heirs Male, 'tis an Intail of the Coat without saying of his Body; but I think that will not be taken for the Case of a Dignity; the Statute De donis Conditionalibus extends to Honours; the Word terram would be thought an improper Word to comprehend all Things tailable, yet said to extend to all, and to Honours too, 1 Inst. 20. and if an Honour can't be intailed, then no Remainder can be limited; and yet there be many Lords that sit in this House by Remainder by good Title. The Statute of 26 Hen. 8. 17. saith, That if a Man be attainted of Treason, he shall forfeit his Lands, Tenements, and Hereditaments: Now 'tis adjudged that the Word Hereditaments comprehends Honours, which shew that they are subject to the same Rules of Law that govern other Kind of Inheritances, and are comprehended with other Particulars without general Words. This being premised, it's a known Maxim in all Laws, Nihil rationi magis consentaneum quam rem eodem modo dissolvi quo constituitur, which Rule is so general, that the highest Authority, i.e. the Parliament, is not exempt from it; for 'tis not possible to establish any Thing so firm by Statute, which cannot by another Statute be [6] annulled. Now in the Creation of a Peer there are three Things; the Person that creates, the Person that is created, the Matter of Record whereby he is created. Now if the King, who is the Person that creates, and his Successors, agree with the Person that is created Peer and his Successors, the one to undo their Parts, and the other to give away their Parts, and there is a Matter of Record of as high a Nature concurring to effect this Dissolution, &c. in some Cases 'tis in the Power of an Ancestor, by his own Act, to destroy a Patent; as if a Scire facias in Chancery be brought against his Patent, and Matter is suggested whereby to avoid it, this shall (Bro. Tit. Patent, 37, 97.) vacate whatsoever was created by the Patent, and yet 'tis there in the Power of the Ancestor, by good Pleading, to have supported the Patent, and by bad pleading to destroy it; and therefore when the Foundation, which is the Patent, fails, the Honour, and whatever it be that is erected upon it, shall fail also: Every Estate, by the Consent of all Persons interested and concerned in the Thing, may be taken away; for the Law is so set against Perpetuities, that a Clause intimating it is void, and tho' an Honour is not (Jones's Rep. 109, 123.) assignable, yet it may be extinguished. It's true, if a Man hath but a Part of an Estate, as only an Estate for Life, he can't alone pass away the whole Estate, but none who hath the Inheritance in Tail or in Fee, but he may destroy the whole, and tho' any one have but Part, yet by the Concurrence of all that are concerned the Whole may be destroyed: It is admitted if he commit Treason, and is attainted thereof, he loseth the Honour for himself and his Posterity; now 'twas in his Power to do this Act overt; and if by an Act unlawful he hath Power to defeat the Descent of the Intail upon his Issue, there is the same Reason that by a lawful Act he should part with it; there are two Acts of Parliament in force which fortify the Fine; it must be granted that those Honours are within the Statute de donis, and then there can be no Reason they should not be within the Statutes of Fines, 4 Hen. 7. & 34 H. 8. which say that Tenant in Tail may levy a Fine of all Things that are intailable within the Statute de donis; whatever therefore is within the one is within both; and it is not sufficient to alledge that it is inconvenient that it should be within the Statute of Fines; for there is an Act of Parliament, and without an Act of Parliament to exempt it, it can't be exempted: It may be proved by great Variety of Precedents to have been the Practise in former Times, anciently nothing more frequent than to release Honours. See Selden's Titles of Honours 730. it was as frequent as to grant them: In later Times (Delaval's Case, 11 Rep. 1.) it hath been the Judgment of the Lords that Honours may be extinguished, which in 1668. was certified by all the King's Counsel Learned in the Law to be good Authority. But to go a little higher, Andrew Giffard Baron Pomfret in Fee, 4 Hen. 3. Rot. 100. surrendered to the King; so 23 Hen. 3. Simon Mountford, Esq.; Earl of Leicester, having a Mind to take an Honour from his eldest Son, and confer it upon his younger, and so it was surrendered and regranted [7] accordingly. Selden seems to construe this to be by way of Transmission, and not Surrender; yet others of later Authority (as Camden's Britan. Title Earl of Leicester) say expressly that he did Surrender it; and Selden himself says it was by Concurrence of the King: King Hen. 3. (Rot. Cr. 24. men. E. 1.) created one Earl of Richmond, and he surrendered to the King (Camden's Brit. Title Earl of Richmond.) Roger de Bigod surrendered not only the Office of Earl Marshal, but also the Earldom of Norfolk. William Duke of Juliers, whose Father came in with Edw. 3. was created Earl of Cambridge (40 Edw. 3. m. 21.) in Fee, his Son surrenders to the King, which Record we have here: So Edward the Third made his Son John of Gaunt (See Camden ubi supra) Earl of Richmond, who surrendered to the King. And lastly, in the Years 1639, 1679. Roger Stafford, whom the King intended to make a Viscount, by the Advice of the Learned Men levied a Fine thereof, by which 'tis now enjoyed. Lastly, he argued ab inconvenienti, for no Lord in the House will be in Safety if it should be otherways, there being many sitting in this House by Virtue of Surrenders from other Lords in former Days, and perhaps some of their Heirs are alive; and so if these Surrenders be adjudged invalid, it would shake their Lordships own Possessions, and make it dubitable, whether Foreigners and Persons unknown may not come and thrust them out; but if not so, it may cause Confusion amongst themselves, their former Honours having been surrendered to accept of others; and perhaps some, not thinking their Title secure, will stick to the former, and so occasion Dispute and Confusion about Precedency. And lastly, it will put a great Disgrace upon your Ancestors Proceedings, who deemed this Course legal; and those must shew very good Precedents that it hath been disavowed, if they will encounter such constant Practises.
Answer to Objections. 1. Whether Honour inherent in the Blood. 2. If Surrendering inconvenient. 3. Precedents of Surrenders supported. 4. Concerning the transferring of an Honour. Peerage conferr'd by the King only. Answer to Lord Stafford's Case. An Honour may descend to the half Blood; but not Transferrable.—In the next place it was answered to their Arguments and Objections; and as for that first Argument, That an Honour is inherent in the Blood, he answered, That this Inherency in the Blood is not essential to Honours, for an Honour may be created for Life, and then none of the Posterity or Blood of the Peer is thereby ennobled: It may be limited to the Heirs Male of the Body, so that an Honour may touch and enter far into the Blood, and yet not run with it; and farther, it may be limited to the Heirs by such a Wife, there the Issue by the second Venter shall never inherit the Dignity, and yet is as near to the Father, as those that are by the first, so that 'tis no true Ground that they go upon, that Nobility is inherent in the Blood. And for what was alledged as to the Inconveniency of Surrendering Dignities, he answered, That there may be necessary Reasons for the Extinguishment of an Honour, and it may be for the Benefit and Advantage of the Party and his Posterity; as if it do happen that the Family do fall into Poverty, and be not able to support the Honour of Peerage with Decency, and so this Honour would perhaps be a Disgrace to the rest of the Lords; and in a Child's Case, it may happen to a Noble Family to have those Afflictions, that to 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.
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:
1. They were bare Surrenders, no Fines.
2. Surrenders for the Benefit of the Family.—All those were made by Persons that had Advantage by them, having greater Honours granted unto them; or such whose Interest was beyond the Seas, and therefore were willing to quit their Dependencies here upon good Considerations that pleased them: Et volenti non fit Injuria.
3. Passed sub silentio. Lord Stafford's Case supported.—All these Surrenders passed sub silentio, and never admitted of any Dispute: But as for the sole melancholy Precedent of Roger Stafford 1638. which was condemned in Parliament 1640. 'tis to be [11] observed that Resolution can't be condemned because of the Times; for the Affront to the Lords, in taking such a Fine, was in 1638. and when could it be more properly remedied than in 1640. except it be expected there were a Prophetical Spirit of Judgment against a Thing not in Being; there were 94 Lords, present; and the Vote was Nemine Contradicente, which gives it as great an Authority as any Resolution that ever was. The King's Counsel were not heard in the Case of Ship-money, nor Knighthood-money, where they had more Right to claim to be heard than in this Case. To conclude; a Fine is a Judgment in the Common Pleas, and your Lordships Honours are not triable in that Court below in Westminster-hall; but if this Fine be allowable, they must be triable there as well as other Inheritances. And as to what has been said, That some of your Lordships sit here by Remainders, and they are in Danger, if Honours be not allowed to be intailed, it's denied; and if they be intailed, it's not of the same nature with other Inheritances; neither doth any Lord sit here by Title of a Remainder, but by Virtue of a new Grant in the same Patent.
Judgment that an Honour cannot be barred by Fine.—'Twas afterwards declared, That the Lords Spiritual and Temporal in Parliament assembled, upon a very long Debate, and having heard his Majesty's Attorney General, are unanimously of Opinion, and do resolve and adjudge, that no Fine levied, or at any Time hereafter to be levied to the King, can bar a Peer's Title of Honour, or the Right of any Person claiming such Title under him that levied, or shall levy such Fine.