Page images

took his title, need not be in England: nor, in reality,

was there a necessity that there should be any place. Dugd. Bar. Albemarle was not in England ; and, nevertheless, at V. 3. p. 230. the time of Magna Charta, there was an earl of that

title ; and there had been dukes, who had lately borne that title.

Gerard v.
5 Mod. 64.

S 93. Sir Thomas Gerard having been created Lord Gerard of Gerard's Bromley, by letters patent, (he being theñ resident with his family in the said capital messuage), a question arose, whether the faid capital messuage became thereby caput baroniæ ; and it was held that it did not.

Dignities by
i Inst. 166.

$ 94. Where a person, who has a dignity, marries, his wife becomes entitled to the same during her life; unless she afterwards marries a commoner. But, where a woman, who has a dignity in her own right, marries a commoner, she still retains her dignity.

[merged small][ocr errors]

S 95. Lord Coke says, if a dutchess by marriage, afterwards marries a baron, she remains a dutchess, and does not lose her name; because her husband is noble. Mr. Hargrave, in a note on this passage, observes, that in some books it is said, if a woman, noble by birth, marries one of inferior nobility, she shall be styled by the dignity of her second husband.

At the coronation of his present majesty," the Dutchess Dowager of Leeds, then the wife of Lord Portmore, claimed to walk as a dutchefs, but it was refused.

S 96. It

S 96. It is said by Justice Doddridge, that, if a Coll. 130. woman, who acquires a dignity by marriage, elopes from her husband, she will lose her dignity. “ For, Tit.6.c.5.6.7. “ as then every woman shall lose her dower, so being “ advanced to titles of dignity by that husband, by “ fuch elopement she loseth them." I have met with no case that confirms this doctrine.



S 97. It seems to be doubtful, whether a person can Whether a

Dignity may refuse or waive a dignity conferred on him by the be refused. Crown. Lord Coke fays, “ if the king calleth any

44. knight or csquire to be a lord of parliament, he cannot refuse to serve the king there in illo communi

concilio, for the good of his country.” This opinion is contradicted by Lord Chancellor Cowper, who held, 1 P. Wms that the king could not create a subject a peer of the 592. rcalm, against his will; because then it would be in the

power of the king to ruin a subject, whose estate and circumstances might not be sufficient for the honour. His Lordship also held, that a minor might, when of age, waive a peerage granted to him during his infancy.

Lord Trevor was of a different opinion, and held, in Idem. conformity with Lord Coke, that the king had a right to the service of his subjects in any station he thought proper; and instanced in the case of the Crown's having power to compel a subject to be a sheriff, and to fine him for refusing to serve. He observed, that in Ante, f. 51. Lord Abergavenny's case it was admitted, the king might fine a person, whom he thought proper to fum. mon to the House of Peers; it being there said, that

a person


a person might choose to submit to a fine : and, if it were allowed, the king might fine one for not accepting the honour, and not appearing upon the writ: the king might fine toties quoties, where there was a refusal; and, consequently, might compel the subject to accept the honour. And that it was not to be

prefumed the king would grant a peerage to any one, to his wrong, any more than that he would make an ill use of his power of pardoning : all which were fuppositious, contrary to the principles upon which the constitution was framed, which depended upon the honour and justice of the Crown.

What Estate

$ 98. With respect to the estate, which may be may be had in a Dignity. had in a dignity or title of honour, while dignities were

annexed to lands, and held by tenure, the person in possession of the estate, if he was tenant in fee-simple, would, I presume, have had the same estate in the dignity.

r Inft. 27 a. Aute, f. 45.

$ 99. A person may also have a qualified fee in a dignity. Thus, Lord Coke says, that king Henry 6. by letters patent, granted to John, the son of John Talbot, that he and his heirs, lords of the manor of Kingston Life in the county of Berks, should thenceforth be lords and barons of Lifle, and peers of the realm; by which he held a fee-simple qualified in the dignity, determinable upon his or their ceafing to be lords of the manor of Kingston Lisle.

[ocr errors]

$ 100. As to dignities, derived from writs of fummons, Lord Coke says,-- " And it is to be observed

" that 13

[ocr errors]

« that, if he be generally called by writ to parliament, “ he hath a fee-simple in the barony, without any “ words of inheritance." But this expression is inaccurate ; and Lord Coke himself corrected it in the same page, by saying, " and thereby his blood is ennobled

to him and his heirs lineal.” Dignities of this kind, which are descendible to females, have generally been said to be held in fee, but this is a mistake; a person having a dignity of this kind, is not tenant in feefimple of it: for, in that case, it would descend to the heirs general, lineal, or collateral, of the person last seised; whereas a dignity of this kind is only inhe. Vide Tit. 29. ritable by such of his heirs as are lineally descended from the person first summoned to parliament, and not to any other of his heirs. It is, in fact, a fpecies of estate, not known to the law in any other instance, except in that of an office of honour.

Tit. 25.

$ 101. A dignity or title of honour may be intailed within the statute De Donis Conditionalibus, for it concerns land : and it was resolved by all the judges in Nevil's Case,

7 Rep. 33 7 James, that, where Ralph Nevil was by letters

раtent created Earl of Westmoreland, to him and the heirs male of his body, an estate tail was thereby created in the dignity, and not a fee-simple conditional at law. And Lord Coke fays, the judges observed that, with this resolution, agreed divers precedents, and the experience and practice always used : for the earldom of Northumberland was intailed by queen Mary to Thomas Percy, and the heirs male of his body; and, for default of such issue, that Hugh his brother should be earl, to him and the heirs male of his body; and, in


that case, by the attainder of Thomas for treason, Hugh was, after his death, Earl of Northumberland.

§ 102. A dignity may not only be intailed at its first creation, but also, a dignity which was originally descendible to heirs general, may be intailed by parliament on the heirs male of the perfon seised thereof.

Coll. 173

103. In the year 1626, a contest arose in consequence of the death of Henry de Vere Earl of Oxford, respecting the right to the earldom, between Robert de Vere claiming under an intail of the dignity, made by an act of parliament in 16 Rich. 2. as heir male of Aubrey de Vere, and Lord Willoughby of Ereby, claim. ing as heir general.

The case was referred by king Charles the first to the House of Lords, who called to their assistance Lord Chief Justice Crew, Lord Chief Baron Walter, Doddridge, and Yelverton, Justices, and Baron Trevor. Their opinion was delivered by Lord Chief Justice Crew; the exordium of which is so eloquent, that, for the gratification of the reader, it shall be tran. fçribed.

“ This great and weighty cause, incomparable to any other that hath happened at any time, requires great deliberation, and solid and mature judgment

to determine it : and, therefore, I wish all the judges 66 of England had heard it, (being a case fit for all), to the end we altogether might have given our

66 humble

« PreviousContinue »