Page images
PDF
EPUB

"a fatter morfel, he yielded up the letters patent to "be cancelled."

§ 121. It was, however, refolved by the House of Lords, in the case of the barony of Ruthyn,-" That "no peer of this realm can drown or extinguish his "honour, (but that it defcends to his defcendants), neither by furrender, 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 refolution in the above cafe.

Lord viscount Purbeck had furrendered his dignity to the king, by fine; and after his decease, the dignity was claimed by his heir.

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

Lords' Jour. vol. 4. 159.

Shower's

Cafes in Parl,

I.

The king's attorney-general, (Sir William Jones), endeavoured to fupport the furrender upon the authority of feveral ancient precedents. The Houfe of Lords came to the following refolution:-" Forafmuch as Lords' Jour. upon debate of the petitioner's cafe, who claims the vol. 13.p.255.

A Peer degraded for Poverty.

Rot. Parl.

vol. 6. 173.

4 Inft. 355.

title of Viscount Purbeck, a queftion in law did "arife; whether a fine, levied to the king by a peer "of the realm of his title of honour, can bar and "extinguish that title; the lords fpiritual and tem

66

poral in parliament affembled, upon very long "debate; and having heard his majesty's attorney"general, are unanimoufly of opinion, and do refolve, "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 perfon, claiming under him that levied, or fhall levy, fuch fine."

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

By an act of parliament made in 17 Edw. 4., recit. 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 fuftentation of the fame dignity fufficient livelihood; and, for the great offences, unkindness, and misbehavings that the faid 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 faid George. And that it was openly known, that the faid George Nevill had not, nor by inheritance might have, any livelihood to fupport the name, eftate, and dignity of Duke of Bedford; as oftentimes it was feen 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 caufed great extortion, embracery, and maintenance to be had, to the great

trouble

trouble of all fuch countries, where fuch estate should happen to be inhabited: wherefore the king, by the advice of the lords fpiritual, &c., ordained, that from thenceforth the faid erection and making of the fame duke, and all the names of dignity to the faid George, or to John Nevill his father, fhould be from thenceforth void and of none effect.

§ 124. Sir William Blackstone has observed, that I Comm. this is a fingular inftance; which ferves at the fame 408. time, by having happened, to fhew the power of parliament; and, by having happened but once, to fhew how tender the parliament hath been in exerting so high a power. It hath been faid, 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 exprefsly held by later authorities, that a peer cannot be 12 Mod. 56. degraded, but by act of parliament.

But

§ 125. It appears formerly to have been doubted, whether a barony by writ was not extinguished by the acceptance of a new barony of the fame name. it is now fettled, that the acceptance of a new dignity doth not merge or destroy an ancient one.

:

A Dignity

not extin guifhed by a new Title.

Coll. 122,

123.

$126. In the cafe of lord Delawarre, it was re- 11 Rep. 1. folved in parliament 39 Eliz.; that a grant of a new barony of Delawarre to William Weft, who was not then in poffeffion of the old barony of Delawarre, did not merge or extinguish the old barony.

§ 127. And

Coll. 321.

Infra,

An Earldom

does not attract a Barony.

Coll. 195.

1 Inft. 15 b. n. 3.

§ 127. And in the cafe of the barony of lord Willoughby de Broke, it was refolved 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 poffeffion of the ancient barony by writ), did not deftroy fuch ancient barony. But the fame continued and defcended to his fifter, and fole heir, and from her to Sir Richard Verney; who was feated in the House of Lords accord, ing to the date of the ancient barony.

§ 128. It was alfo formerly held, that, where a perfon, having a barony created by writ, and confe quently defcendible to his heir general, was created an Earl to him and the heirs male of his body; the earldom attracted the barony, fo that it could not be afterwards feparated from it.

§ 129. This doctrine, however, was fully exploded in the cafe 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 iffue two fons, Lords' Jour. the eldest of whom had iffue a daughter only. And it was refolved, that the barony defcended to the daughter, and the earldom to the younger brother; and that the earldom did not attract the barony.

Tol. 4. 149.

§ 130. So, where the earldom becomes extinct, the barony will, notwithstanding, defcend to the heir general.

131. In

§ 131. In the year 1669, the claim of Benjamin Coll. 286. Mildmay to the barony of Fitzwalter was heard before the King in Council, affifted by the two Chief Juftices, 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 fummoned to parliament by writ, in 23 Edw. 1. and several times after. The title defcended to Robert Fitzwalter, who was created Viscount Fitzwalter and Earl of Suffex, by Hen. 8. This Earl of Suffex had two fons, Henry Earl of Suffex, and Sir Humphrey Ratcliff. Henry had two fons, Thomas Earl of Suffex, who died without iffue, and Henry Earl of Suffex, who left one fon, Robert Earl of Suffex, and one daughter, Lady Frances, who married Sir Thomas Mildmay, to whom the petitioner was heir.

The counsel on the other fide infifted, that the barony was merged and extinct in the earldom, by coming to Edward the last Earl of Suffex; who died without iffue.

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

« PreviousContinue »