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« a fatter morsel, he yielded up the letters patent to 6 be cancelled,"

vol. 4. 15.

§ 121. It was, however, resolved by the House of Lords, in the case of the barony of Ruthyn,--" That Lords' Jour. % no peer of this realm can drown or extinguish his “ honour, (but that it descends to his descendants), $ neither by surrender, grant, fine, nor any other " conveyance, to the king."

$ 122. Some years afterwards the question arose, and was agitated in the House of Lords; where it was decided in conformity to the resolution in the above case.

Lord viscount Purbeck had surrendered his dignity Shower's

Cases in Parl, to the king, by fine; and after his decease, the digpity was claimed by his heir.

1.

It was argued on behalf of the petitioner, that this was a personal dignity, annexed to the blood, and so inseparable and immovable, that it could not be either transferred to any other person, or surrendered to the crown. It could neither move forward nor backward, but only downward to posterity; and nothing but deficiency, or a corruption of the blood, could hinder the descent.

The king's attorney-general, (Sir William Jones), endeavoured to support the surrender upon the authority of several ancient precedents. The House of Lords came to the following resolution :-“ Forasmuch as Lords' Jour. upon debate of the petitioner's case, who claims the vol. 13.p.255. « title of Viscount Purbeck, a question in law did " arise; whether a fine, levied to the king by a peer " of the realm of his title of honour, can bar and

66 title

extinguish that title; the lords spiritual and tem“ poral in parliament assembled, upon very long “ debate; and having heard his majesty's attorney“ general, are unanimously of opinion, and do resolve, “ that no fine, now levied or at any time hereafter to “ be levied to the king, can bar such title of honour,

or the right of any person, claiming under him “ that levied, or shall levy, such fine."

A Peer de graded for Poverty.

§ 123. There is one instance of a peer being degraded for poverty.

Rot. Parl. By an act of parliament made in 17 Edw. 4., recit. . vol. 6. 173. 4 Inft. 355.

ing that the king had erected and made George Nevill 12 Rep. 107. 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 the said 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 fupport the fame dignity, it induced great poverty and indigence, and oftentimes caused great extortion, embracery, and maintenance to be had, to the great

trouble

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 faid 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.

$ 124. Sir William Blackstone has observed, that 1 Comm. this is a singular instance; which serves at the same 400. time, by having happened, to shew the

power

of

parliament; and, by having happened but once, to shew how tender the parliament hath been in exerting so high a power. It hath been said, indeed, that if a baron wastes his estate so that he is not able to support the degree, the king may degrade him. But it is expressly held by later authorities, that a peer cannot be s2 Mod. 56. degraded, but by act of parliament.

not extin.

§ 125. It appears formerly to have been doubted, A Dignity whether a barony by writ was not extinguished by the guished by a acceptance of a new barony of the same name. But new Title, it is now settled, that the acceptance of a new dignity doth not merge of destroy an ancient one.

Coll. 122,

123

§ 126. In the case of lord Delawarre, it was re- 11 Rep. I. folved in parliament 39 Eliz.; that a grant of a new barony of Delawarre to William West, who was not then in possession of the old barony of Delawarre, did not merge or extinguish the old barony.

$ 127. And

Coll. 321.

$ 127. And in the case of the barony of lord Willoughby de Broke, it was resolved by the House of Lords, that the grant of a new barony of Willoughby de Broke to Sir Foulk Greville, by letters patent to him and his heirs male, (he being in possession of the ancient barony by writ), did not destroy such ancient barony. But the same continued and descended to his fifter, and sole heir, and from her to Sir Richard Verney; who was seated in the House of Lords accord, ing to the date of the ancient barony,

Infra,

An Earldom does not attract a Barony.

$ 128. It was also formerly held, that, where a person, having a barony created by writ, and conse, quently descendible to his heir general, was created an Earl to him and the heirs male of his body; the earldom attracted the barony, so that it could not be afterwards separated from it.

Coll. 195

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$ 129. This doctrine, however, was fully exploded · Inft. 15 b. in the case of the barony of Grey of Ruthyn; in which

it appeared, that Lord Grey, being a baron by writ, was created Earl of Kent by letters patent to him and

the heirs male of his body, and had issue two sons, Lords' Jour.

the eldest of whom had issue a daughter only. And Tol. 4. 149.

it was resolved, that the barony descended to the daughter, and the earldom to the

younger brother

i and that the earldom did not attract the barony.

$ 130. So, where the earldom becomes extinct, the barony will, notwithstanding, descend to the heir general.

131. In

Dignities

. $ 136. § 131. In the year 1669, the claim of Benjamin Coll. 286. Mildmay to the barony of Fitzwalter was heard before the King in Council, assisted by the two Chief Justices, the Lord Chief Baron Hale, the King's Chief Serjeant, and the Attorney and Solicitor-General. The petitioner deduced his pedigree from Robert Fitzwalter, who was summoned to parliament by writ, in 23 Edw. I. and several times after. The title descended to Robert Fitzwalter, who was created Viscount Fitzwalter and Earl of Sussex, by Hen. 8. This Earl of Sussex had two sons, Henry Earl of Sussex, and Sir Humphrey Ratcliff. Henry had two sons, Thomas Earl of Sussex, who died without issue, and Henry Earl of Sussex, who left one son, Robert Earl of Sussex, and one daughter, Lady Frances, who married Sir Thomas Mildmay, to whom the petitioner was heir.

The counsel on the other side insisted, that the barony was merged and extin&t in the earldom, by coming to Edward the last Earl of Susex; who died without issue.

The question being put to the Judges, they unania mously agreed, that, “ if a Baron in fee simple be “ be made an Earl, the barony will defcend to the “ heir general, whether the earldom continue or be “ extinct;" with which opinion and resolution his Majesty being fully satisfied in council, it was ordered by his Majesty in council, that the petitioner be admitted humbly to address himself to his Majesty, for his writ, to fit in the House of Peers, as Baron Fitzwalter.

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