Restitution of Blood. son, who succeeded to the title, and George his second son, who was the petitioner's father. That the said George was in the year 1745 attainted of high treason, by act of parliament, and died in 1760, leaving the petitioner his eldest son. That James, the second duke of Athol, died in 1764, without leaving any issue male. That the petitioner had consulted many gentlemen learned in the law of England, particularly the Honourable Charles Yorke, Sir Fletcher Norton, and Mr. De Grey, whether the said attainder, under the circumstances of the case, could be any bar to the petitioner's succeeding to the said title upon the death of his said uncle, James Duke of Athol; and the said gentlemen were unanimously of opinion, that as by the law of England in a like case, no objection could arise from the said attainder; and as by the statute of 7 Anne, all persons attainted of treason in Scotland were liable to the same corruption of blood, pains, penalties, and forfeitures, as persons convicted or attainted of high treason in England, the petitioner would be clearly entitled to succeed to the said honors. The petitioner therefore prayed, that proper directions should be given for having the petitioner's right declared and established. This petition was referred to the House of Lords, who resolved that the petitioner had a right to the title claimed by his petition. 44. In all cases where a person has been attainted of high treason by Parliament, or by judgement on an indictment for high treason, petty treason, or felony, the corruption of blood can only be restored P, C. c. 27. by Parliament. Lord Hale says, restitutions by Par3 Inst. c.106. liament are of two kinds; one, a restitution in blood only, which removes the corruption, but restores not the party attaint or his heirs to the manors or honours lost by the attainder, unless it specially extend to them; the other is a general restitution, not only in blood, but to the lands, &c. of the party attainted: that a restitution in blood may be special and qualified; but generally a restitution in blood is construed liberally and extensively. 45. In the case of the barony of Lumley, the peti- ante, § 41. tioner's counsel produced an act of parliament made in 6 Edw. VI. upon the petition of John Lumley, eldest son and heir of George Lumley, son and heir apparent of John Lord Lumley, whereby, after a re-cital of the attainder of the said George Lumley, by reason whereof the said John Lumley stood, and was a person in his lineage and blood corrupted; and deprived of all degree, estate, name, fame, and of all other inheritance, that should or might by possibility have come to him by any other his collateral ancestors, on his said father's side, to whom he should or might have conveyed himself, as cousin and next heir of blood, by mesne degrees, by his said father. It was therefore enacted, that the said John Lumley and his heirs male of his body coming, might and should be accepted and called from thenceforth by the name of Lord Lumley; and that he and the heirs male of his body should have and enjoy, in and at all parliaments, and all other places, the room, name, place, and voice of a baron of the realm: and that the said John Lumley and his heirs, might be, and should be restored only in blood, as son and heir and heirs to the said George Lumley, and as cousin and heir and heirs of the said John Lord Lumley; and made only heir and heirs in blood, as well to the said George, as to the said John Lord Lumley, and either of them, by the name of Lord Lumley. It was contended on behalf of the Earl of Scarborough, who opposed the claim, that the attainder of George Lumley was not reversed by this act, and that the restitution of the said John Lord Lumley in blood only, while the attainder remained unreversed, could not possibly revive the ancient barony, which was before extinct, and merged in the Crown by that attainder. That the construction of the act contended for would have this absurdity, that the same act must give the same barony to the same person, under two different limitations, one in tail male, the other in fee simple, and both in possession; and was not therefore to be admitted. The House of Lords appears to have been of this opinion, and to have rejected the claim on that ground. 46. Where a person is outlawed for high treason, petty treason, or felony, his blood is also corrupted; but it may be restored by act of parliament, or by a reversal of the judgement of outlawry, by writ of 4 Burr. Rep. error. But a writ of error to reverse an outlawry in treason or felony, is not ex debito justitiæ; and therefore can only be obtained by the favour of the Crown. 2551. Journ. v. 17. 119. A Dignity may be lost by Poverty. 47. The House of Lords resolved in 1702, that they would not in future receive any bill for reversing outlawries, or restitution in blood, that should not be first signed by Her Majesty or her successors, kings or queens of the realm, and sent by her or them to their House first, to be considered there. 48. All titles of honour having been originally annexed to lands, it followed that no person could be a peer, without having an estate sufficient to support his dignity, which he could not alien without the consent of the Crown. A peer could, therefore, never be arrested for debt; the law presuming that 6 Rep. 52 6. he had sufficient lands and tenements in which he 7-34 a. might be distrained. And there is one instance of a peer being degraded by parliament, on account of his poverty. v. 6. 173. 12 Rep. 107. 49. By an act of parliament made in 17 Edw. IV., Rot. Parl. reciting, that the King had erected and made George 4 Inst. 355. Nevill Duke of Bedford, and had purposed to have given him, for the sustentation of the same dignity, sufficient livelihood; and for the great offences, unkindness, and misbehavings that John Nevill (his father) had done and committed to his Highness, as was openly known, he had no cause to depart any livelihood to the said George. And that it was openly known that the said George Nevill had not, nor by inheritance might have, any livelihood to support the name, estate, and dignity of Duke of Bedford: as oftentimes it was seen, that when any lord was called to high estate, and had not livelihood convenient to support the same dignity, it induced great poverty and indigence, and oftentimes caused great extortion, embracery, and maintenance to be had, to the great trouble of all such countries where such estate should happen to be inhabited. Wherefore the King, by the advice of the Lords spiritual, &c., ordained, that from thenceforth the said erection and making of the same duke, and all the names of dignity to the said George, or to John Nevill his father, should be from thenceforth void and of none effect. Idem, 107. 50. Sir W. Blackstone has observed, that Nevill's 1 Comm.402. degradation is a singular instance; which serves, at the same time, by having happened, to show the power of parliament; and by having happened but once, to show how tender the parliament hath been in exercising so high a power. 1 Not within the Statutes of Limita tion. Barony of Printed 51. As a dignity cannot be aliened, surrendered, or extinguished by the person possessed of it, neither can it be lost by the negligence of any person entitled thereto, in not claiming it within a particular time. From which it follows, that dignities are not within the statutes of limitation. This doctrine has been recognized by the House of Lords in a variety of cases, where claims to baronies, which had been dormant for centuries, have been received and admitted. 52. Even an adverse possession and exercise of a dignity by persons not entitled to it, for 85 years, will not bar the real owner. 53. Sir W. Willoughby, Knight, was, by letters patent, 1 Edw. VI., created Lord Willoughby of Parham, to him and the heirs male of his body. He was succeeded by Charles, his only son, who left fivẹ sons; William, Sir Ambrose, Edward, Charles, and Sir Thomas. The issue male of William, the eldest son, enjoyed the dignity till the year 1680, when they failed. Thomas Willoughby, the heir male of the fifth son, was then admitted to sit in parliament, as Lord Willoughby of Parham, upon the supposition that there was no issue male of any of the other sons; and he and his issue male enjoyed the dignity till the year 1765, when they became extinct. In 1767, Henry Willoughby, who was the heir male of Sir Ambrose, the second son of the second Lord Willoughby of Parham, claimed the dignity; and it was Journ.vol.31. resolved by the House of Lords,-"That the petitioner had a right to the title, dignity, and peerage of Willoughby of Parham, which was enjoyed from the year 1680 to the year 1765, by the male line, then extinct, of Sir Thomas Willoughby, youngest son of Charles Lord Willoughby of Parham, who were suc 530. |