"This BooKe. is.miDe. I j/t Loos Ab6 you yt you b^RteLy Lo Be SO kyO^,thAt_yOUOJiU tAKG A LeteL pAyhetoscemy Booke BRotbe home A DISSERTATION HISTORY OF HEREDITARY DIGNITIES, PARTICULARLY AS TO THEIR COURSE OF DESCENT, AND THEIR FORFEITURE BY ATTAINDER. WITH SPECIAL REFERENCE TO 0f ($arttr0m 0f W$ BY W. F. FINLASON, ESQ., BARRISTER- AT-LAW. EDITOR OF " BEEVE'S HISTORY OF THE BNGLISH LAW." LONDON : BUTTERWORTHS, 7, FLEET STEEET, late 13ublisi)trs to tfic Queen's fBost eicdltnt 1869. LONDON : BTBVBNB AND RICHARDSON, PRINTERS, 5, GREAT QUEEN STREET, LINCOLN'S INN FIELDS, W.C. A DISSERTATION ON THE HISTORY OF HEREDITARY DIGNITIES. THE origin of our hereditary dignities is to be found in the earliest period of our history. " The ruins of antiquity/' says an old author, " show us a perpetuity of nobility from the beginning " (a). " Earls and barons " as Sir James Mackintosh observes, "appear at the very opening of our authentic history (b), and are coeval with kings, probably arising from the same usage which was the foundation of all legal authority " (c). And it will appear from a review of their history that, from the first, these dignities have professedly been conferred in consideration of some service to the state, and that their course of descent has been governed by a regard for similar considerations. Originally, indeed, they were more than mere dignities ; they were the titles of actual dominion. Earldoms, the most ancient of our orders of nobility and far older than the (a) RakeioeWs Ancient Customs of England. (6) Hist. Eng., vol. i., c. 3. (c) Earldoms appear the most ancient of our titles of nobility. The word " baron," as Spelman shows, meant originally only a lord of land, so that it was not necessarily a title of nobility, nor was so until after the Conquest ; and all the other titles are much more modern. B 2 2039767 4 ORIGIN OP HEREDITARY DIGNITIES. monarchy had their origin in those kingdoms (a) which divided the country long before England was a kingdom ; and when these were subdued under one sovereign, earls, as the rulers of provinces, continued still to exercise in their respective provinces the powers of sovereignty. They were, in short, viceroys (6), who raised the revenues and led the military forces of the territories over which they ruled sat at the head of the local courts and assemblies, and enforced the administration of justice and, in fact, exercised all the functions of government in their respec- tive provinces, while, at the same time, in the national go- vernment, they were the peers, companions, and councillors of the sovereign (c). In an age when earldoms ((?) the original, most ancient, (a) Sir J. Mackintosh cites a passage from an ancient chronicler, in which an earl of Kent is called sub-regitlus, or under-king ; and Dr. Lingard cites several passages from Bede and other ancient authors, in which earls are called sub-regidi and comites. (Hist. Eng., vol. i., c. 7.) (b) See Sir F. Palgrave's History of the Anglo-Saxons, c. 12, s. 14. That learned author says truly, that the Saxon earls and Danish jarls ruled over shires or provinces ; and he shows that at the time of the Conquest five great earldoms comprised all England. (c) The Mirror of Justice, the most ancient book of our law, written in the Norman age, but from memorials of the latest Saxon age, and not long after that age, states that the kings appointed their companions to govern the counties one in each county and these companions were called " comites'''' or " counts ;" whence the phrase " comitatus? or " county." Thus, in the Noman language, the earls were called " counts," and to this day their wives are called " countesses." The sheriff was the deputy "of the count or earl, whence he was called vicecomes, or viscount ; hence in a later age the title of nobility so called. (d) Baronies, which were, in fact, only lordships over land, and involved functions of a similar character, were yet, however large, much smaller than earldoms, so that these functions were exercised on a much smaller scale. All earls were barons, and earldoms included baronies ; but baronies, as in the cases of those who were EARLDOMS ORIGINALLY DOMINIONS. 5 and most potent of our dignities were in reality like king- doms, or vice-royalties, and involved functions not only of government, but of military command, which required to be firmly held, and were unfit for female hands, it was rational, and indeed inevitable, that the course of descent should not follow that of property (a), which was liable to division, or devolution to female heirs. And although, of course, earldoms, from the nature of their origin, (which could usually have been conquest,) comprised great terri- torial property, which might be divided, or descend to female heirs, it is obvious that, as dominions or vice- royalties, they would more fitly follow the course of descent applicable to sovereignties (b), and so neither be divided, nor descend to female heirs, but would descend to male heirs, and consequently, on failure of male heirs lineal, would descend to male heirs collateral. only barons, were probably lands, held as private property, which are to be distinguished from the dominions of earldoms. (a) The course of descent of property among the Saxons was that of equal division among the children, sisters having their shares. It is obvious that this course of descent, however suited to mere property, would be utterly unfitted for dominions, and functions of government, which could neither be conveniently divided, nor held by female heirs. (a) As Sir F. Palgrave observes, the Anglo-Saxon, like all Teutonic nations, discarded female heirs in the descent of sovereignties, as being, in those turbulent and primitive times, unfit to hold rule ; consequently no instance can be found, prior to the Conquest, of the inheritance of a kingdom by a female heir. Naturally it would be so with earldoms, which were but smaller kingdoms ; and in like manner no instance can be found of the inheritance of an earldom by a female heir. In one instance, which for that reason Sir F. Palgrave mentions as most remarkable, a female heir (in default of male heir), being a woman of rare vigour, attempted to assume the earldom ; and the chroniclers speak of her as having a right ; but the right, no doubt, really applied only to the possessions of her ancestor not to the dominion, from which she was soon ousted. 6 NATURE OF HEREDITARY DIGNITIES. It had become fully established long before the Conquest by the Normans (a), that earldoms, and all great baronies, were held on the tenure of military service for the defence of the realm service which, of course, could not be rendered by females, so that the dignity would naturally not descend to females, but rather, on failure of lineal male heirs, to collated male heirs. And in point of fact, we find, as a matter of history, that earldoms, though, like kingdoms, hereditary, did not, any more than kingdoms, descend to female heirs (6), but to male heirs, and, upon failure of male heirs lineal fit to assume the earldom, it went to the collateral male heir fit and competent to hold it. (a) Lord Coke says, that " in king Alfred's time knight's fees descended to the eldest son, for that by division of them between males the defence of the realm might be weakened ; but in those days socage lands (i.e., lands held on tenure of agricultural service) were divided between the heirs male." (1 Institute, f. 14.) It does not appear that it was so in Alfred's time, but it certainly was so in the time of Canute, for we find in his laws the " relief" of an earl or a " king's" thane (or a great baron who held of the Crown), and these reliefs (i.e., the donations required on the succession of the heir) were entirely military, consisting of war-horses, arms, and accoutrements. (Laws of Canute, c. 97.) This, of course, implies that the earldoms or baronies were held on tenure of military ser- vice, and it is not likely, therefore, that they would descend to females. (6) Thus it appears that at the time of the Conquest two brothers held the great earldoms of Mercia and Northumbria, and that they had a sister Algitha, who, it appears, had no earldom. (Sir F. Palgrave's History of the Saxons, c. 14.) On the contrary, it is clear she had none, not only because it is not mentioned, but because afterwards we find her son appointed to the earldom of Northumbria, not succeeding to any that she had held. Yet if the Saxon rule of in- heritance had been applied, some part of those enormous earldoms must have come to her. As it was, she no doubt had some private possessions, but no earldom. EARLDOMS CONTINUED AS DOMINIONS. 7 At the Norman Conquest, when the great earldoms were at first continued in the same families, and then, upon forfeiture, re -gran ted to others upon similar tenure, they remained for a time of the same character that is, founded upon conquest, and involving dominion (a), and therefore, though hereditary, descendible, in the same manner, to male and not to female heirs (6), and to male heirs collateral in preference to female heirs lineal. The course of descent of such great dignities, so closely connected with the crown, would naturally continue to follow the course of descent considered applicable to the crown (c) : as to which, long after the Conquest, it was (a) Thus the Conqueror granted to Hugh Lupus the earldom of Chester : " Ad conquirendum et tenendum sibi et heredibus suis ; adeo libere per gladium sicut ipse rex tenuit Angliam per coronam." " Titular earldoms, without lieutenancy (i.e., subordinate sovereignty) were irregular during the Normans." (Selden's Titles of Honor, vol. iii., p. 678.) " The kings of Norman blood granted an heredi- tary and successory perpetuity unto honourable titles, such as the titles of earldoms and baronies." (HakewelPs Ancient Customs.) (b) Roger Hoveden, giving the reason why the Conqueror made Cospatrick earl of Northumberland, says, " Nam ex materno san- guine attinebat ad eum honor illius comitatus ; erat enim ex matre Algitha filia Uthredi Comitis." (Hume's Hist. Eng., voL i., c. 2.) That is, it is given as the reason for conferring the earldom upon him, that he was of the blood of the old earls. (c) The question arose first on the death of Henry I., who, on his male issue becoming extinct, " after much deliberation (says the chronicler) at a great council compelled all the nobility to swear to receive his daughter as their sovereign." (William of Malmsbury.) If she had any right, of course there would have been no occasion for this compulsion. Mr. Hallam says, " I doubt whether the crown was universally acknowledged to be capable of descending to a female heir. Great aversion was shown by the nobility of Henry I. to his proposal of settling the kingdom on his daughter." (Citing Lyttletoris Hist. Henry II., vol. i., p. 162.) And it appears that even in the reign of Edward III. the succession was supposed to be confined to the male line. (Citing Rymer, t. v., p. 1141 ; Hallam's 8 NATCJflE OF HEREDITARY DIGNITIES. not recognized that a female heir had any right of succession, so that male, though collateral, would be preferred to female heirs, even although lineal. In other words, it went to male heirs generally. And a similar reason would apply to earldoms which had in a great degree regalian jurisdiction and dominion. After the Conquest, indeed, the earldoms granted were, from policy, made less powerful, and comprised less extent of dominion over territory (a). Yet still, in a great degree, Hist. Middle Ages, c. 8.) Mr. Hallam also observes, there was a great aversion to their admission ; and he points out that during the rebellions against John and Henry III., not a word was said in favour of one who, upon the common rules of succession, would have been undoubted heiress to the throne. Thus lord Coke, after stating that in the case of the king the rule of descent was different from that of subjects, and that half-blood was no im- pediment to the descent, goes on to say, " And the reason of all those cases is, that the quality of the person doth in these and in many other like cases alter the descent" which can only apply to dignities ; and thus, in the same section, he applies it to dignities, as to be an earl, &c. (1 Inst., 161.) Hume saj's, " In the progress and settlement of feudal law, the male succession to fiefs had taken place sometime before the female was admitted ; and estates being considered as military benefices, not as property, were transmitted to such only as could serve in the armies and perform in person the conditions upon which they were granted." (Hist. Eng., c. 7.) The historian thought that at this time the opinion on the subject had altered ; but Mr. Hallam, with more correctness, thinks the change was much later, even as to the crown. (a) Mr. Hallam points out that the " fiefs " or feuds granted to the Anglo-Norman earls and barons after the Conquest were less con- siderable : still they were the extreme in some instances, and had still regalian rights. The earl of Chester, he says, held from the first almost all that county, and the earl of Shrewsbury nearly all Salop. Chester was first called a county palatine under Henry II., but it previously possessed all regalian rights of jurisdiction, and acquired the whole country from the Mersey to the Kibble. (Hist. Middle Ages, c. 8.) Several eminent men, he observes, held it, but on the death of the earl Eanulph in 1232, it fell into a female EARLDOMS GRANTED AS DOMINIONS. 9 they retained their original character, and had their ancient regalian rights, which, indeed, in some instances, have continued even to our own times. Grants of earldoms continued to be made, as grants of dominion over counties (a), and as involving right to line, and soon escheated to the crown. (Hist. Middle Ages, c. 8.) That is to say, as Dugdale states, it was taken into the hand of the crown for want of a male heir, until the son of the eldest daughter became of age, and then the earldom was granted to him. If it_had. succeeded as propeijty, it would have been divided among the daughters. (a) Thus Dr. Lingard, after stating the grants of lands made by the conqueror to the great barons, says, " In addition to the grant of lauds, he conferred on them the earldom or command of the several counties. Thus, the new-appointed earls of Kent, Hereford, Shropshire, Norfolk, and Chester, had granted to them royal juris- diction. The earls," adds the historian, " besides their estates in the county, derived other property from their earldoms, especially the third part of the fees due to the crown from the suitors in the county court." (Hist. Eng., c. 8.) So Mr. Hallam says, the dignity of earl was not so merely official as in the Saxon times ; though the earl was entitled to the third part of the emoluments arising from the county court, and probably commanded the militia or military force of his county. Every earl was also a baron, and held an honour or barony of the crown, for which he paid a higher relief than an ordinary baron. (Hist. Midd. Ages,c. 8.) The historian mentions that Lord Lyttletou, in his Life of Henry II., is of opinion (with Selden) that titular earldoms, distinct from the lieutenancy of a county, were considered as irregular so late as Henry II., and he adds "In Dugdale's Baronage, I find none of this description in the first Norman reigns ; for even that of Clare was connected with the local earldom of Hertford." (Ibid.) Stephen created our earls with mere grants of lands as distinct from earldoms or dominions, but these were regarded as pseudo comites, and were discontinued. ( William of Malmsbury.) Long after the Conquest we read of earls exercising authority and dominion in their counties. Thus the chronicler says, the earl of Huntingdon came to exercise his authority in his county. (Matth. of Westm., vol. ii., A.D. 1260.) So we find, in the reign of Henry III., Hubert de Burgh created earl of Kent, and exercising his dominion there. (Ibid.) 10 DESCENT OF HEREDITARY DIGNITIES. receive part of the revenue derived therefrom : and to exercise therein functions of government and portions of royal jurisdiction. Earls were still, to a great degree, viceroys or lord-lieutenants within their respective coun- ties, and exercised, although as royal delegates, the royal power. The law of England, from the Conquest, made a great distinction between the descent of lands held by knight- service, and similar tenures, such as those of earldoms and baronies, and the descent of other lands the former de- scending only to male heirs (a). This distinction was founded on principles of public policy, which would pecu- liarly apply to earldoms and great baronies held on feudal tenure and military service. The course of descent as to estates, therefore, was un- suited to the descent of dignities intended to be held on the tenure of military service (6), or to be associated with (a) In the former, the principal fief descended to the eldest son {Leges Hen. /., c. 70), even when the other lands were divided. (Lord Holes' Hist. Com. Law.) The distinction continued to a much later period. Glanville, in the reign of Henry II., laid down, that if one having an inheritance died leaving several sons, it was to be distinguished whether he held by military tenure ("perfoedum militare tenens") for if he held by knight-service, the eldest son should succeed to the whole, otherwise it would be divided. (Glanville, lib. vii., c. 3.) The same author laid down that the earls and barons were to pay reliefs which were entirely military in their origin (lib. ix., c. 4) ; and in Magna Charta the reliefs of earls and barons are spoken of as due from their heirs by military service ("per servitum militare,"); and in commenting upon this, lord Coke points out that heir means male heir (2 Inst., 10) ; and elsewhere he points out that heir includes general heir. (1 Inst., 10.) (6) Indeed, so strong was the tendency that in some instances the course of descent even to male heirs was disturbed, in order to secure the barony to a better knight. Thus, in the case of Geoffrey de Mandeville, in the reign of Henry II., the king directed that the DESCENT OF ANCIENT EARLDOMS. 11 great offices of state : and thus, from the earliest times, the crown assumed the prerogative of directing the descent of dignities, and deviating from the course of descent as to estates. Moreover, even when the earldoms ceased to be domi- nions, the earls and barons not only continued to be closely connected with the government of their counties (a), barony should descend to a younger brother, because he was a better knight (eo quodfuit melior miles). (Madox, Hist. Exchequer, c. 13, sec. 81.) This must have been on the principle that dignities were granted for the good of the state, and that the descent must be subordinate to that end. It may have been upon this principle that the half-blood was allowed to succeed to dignities. An heir of the half-blood, it may have been suppossd, if a male, was fitter to succeed than a female of the whole blood. (a) Thus, for a long period, the earls were usually the sheriffs, who in those days exercised great power. " For first," says Lord Coke, '' the earl himself of the county had the office of sheriff of the county, and when he gave it over, the vicecomes, as the word signi- fieth, came instead of the earl." (2 List., 174.) Not that the office of sheriff then first came to exist, for sheriffs (shire-reeves) were known in the earliest Saxon times ; but their functions were fiscal, and the earls' dominions absorbed the most important powers of their office, and made them in fact their deputies in collect- ing the revenues of the counties, most of which the lords retained for their own use, until, as the royal power was strengthened, it was settled that they should only retain a third part. "When earls ceased to have dominion over the counties, they continued to get themselves appointed sheriffs ; but this was by royal appointment, which was revocable, or required renewal. Spelman says of earls and barons, . " Those that thus received their territories from the king, were said to hold them in capite, and were called pares regni, and were about the person of the king, to assist him in war, or to advise him in peace, either judicially or politically, in the great affairs of the kingdom. Hence they were called magnum consilium regni, for that in those times it belonged only to them to consult with the king in state matters, and matters of the kingdom." (Spelman' 's English Works?) And down to the time of Henry III., this magnum consilium was composed of the principal nobles who held earldoms and baronies. (Cruise on Dignities.) 12 DESCENT OF HEREDITARY DIGNITIES. but they were also called upon to exercise the most impor- tant functions as the chief magnates of the realm and the principal councillors of the crown. Upon these principles it would follow that although the grant of an earldom might be made generally to a man and his heirs (a), it would be understood to mean male Bractons speaks of earls or counts as the companions or councillors of the king " Comites reges sibi associent ad consiliendum etregendum populum Dei." In the Magna Charta, earls (or counts), and barons are mentioned in the same way (si aliquis comitum vel baronum nostrum). Thus the Leges Henrici Primi, make mention of "comites et barones" as exercising all great offices, judicial or otherwise. (Anglo-Saxon Laws, vol. i.) So Magna Charta " comites, barones, milites et tenentes ;" so in a record of Henry III. "comites et barones et omnes alii de regno." (Brady's Introd. to Hist. England). So in the confirmation of the charter by Edward I., mention is made of the earls and barons ; so in the statutes of Edward III., they were always stated to be made with the assent of the prelates, earls, barons, and commons. The first duke was the Prince of Wales, in the reign of Edward III. : and until then earls, with the greater barons, were the hereditary councillors of the crown. And as Dr. Lingard observes, up to that time, and for some time longer, the baronage, i.e., the earls and barons, had all the real power of a Par- liament ; and though the consent of the commons is mentioned, it was merely nominal, for those returned to Parliament were only the lesser barons, or the nominees of the barons. (a) Thus Mr. Hallam cites from Eymer a charter of Matilda creating Milo of Gloucester earl of Hereford, with the castle of that city in fee, to him and his heirs. (Rymer Fcedera, vol. i., p. 3.) And we afterwards find that De Bohun married the daughter, and acquired the lordship of Hereford, and then had a grant of the earldom, with a similar grant for the revenues of the county. (Thomson's Hist, of the Charter, citing Bank's 'JZxtinct Baronage, and other works of authority.) From this it appears that though the earldom was conferred in consequence of the possession of the lordship, it was not so annexed to it as to be inseparable, at all events, in the event of its falling to a female heir, and that it did not descend as of right even to her husband, but had to be re-granted. Yet in the case of an estate it would have so descended as of course. So again, on the death of the four sons of Marshal earl of Pembroke, TERRITORIAL DIGNITIES DESCENDIBLE. 13 heirs, and not female that is, not only as in descent of estates, male heirs in preference to female of the second degree, but male heirs only, to the exclusion of female heirs altogether ; so that a female heir even although lineal, and on failure of male heirs lineal would have no right to succeed to an earldom. When, indeed, earldoms were granted, as they afterwards were, not as dominions over counties, but as dignities which, though like great baronies attached and annexed to the possession of lands, involved no powers of government, they became, in fact, granted in respect of property (a), and thus eventually became baronies annexed to estates. And while the earldoms were thus territorial, and annexed to the tenure of land held as property, it was natural that they should be descendible as lands that is, that the estates and the title should descend together, according to the course of descent as to estates. their inheritance devolved on five sisters, and the king granted the earldom to the son of the eldest. (Thomson's Magna Charta.) In the case of the descent of an earldom to several sisters, there would be insuperable difficulty. Thus we find that at one time the elder sister's heir succeeded ; and thus on the death of Ranulph earl of Chester, in the reign of Henry III., leaving four daughters, of whom the eldest was married to the earl of Huntingdon, by whom she had a son; that son, Dugdale says, was appointed to the earldom, which, it would seem, was by the exercise of the royal prerogative to terminate an abeyance. No such phrase applies in the descent of estates, for, as Littleton lays down, the freehold in land cannot be in abeyance. This of itself shows a great difference between the rules of descent as to dignities and estates. (a) " William the Conqueror bestowed dignities upon his companions, some of them connected with the fees (i.e., estates) themselves, so that the possessors may seem to be ennobled by the possession of the places only." (HakeweWs Ancient Customs of England.) Thus the baronies, or great earldoms, for two centuries after the Conquest, were attached to the tenure of lands. (Ibid.) From the Conquest to the 14 DESCENT OF HEREDITARY DIGNITIES. And as these ancient earldoms were granted without any special limitations as to descent, (probably without parti- cular charters or grants, and only by investiture,) they would naturally, on that account, descend according to the common law rule of descent as to lands that is, to the heirs general, collateral as well as lineal, female as well as male (a). The consequence was that dignities, and even offices which were hereditary only as annexed to hereditary estates, were constantly being carried, through marriage with female heirs, into different families, distant from those of the original holders (6), and thus few dignities continued reign of Henry III.,-the earldoms appear to have been sometimes held like baronies by the tenure of certain lands which had been created into earldoms ; and on the forfeiture of the lands, the person on whom the crown conferred them, in most instances, assumed the title of earl. (Nicolas' Synopsis, c. 1.) Lord Coke says, "And when the king createth an earl of such a county or other place to hold the dignity to him and his heirs, the dignity is personal, and also con- cerneth lands and tenements." (Inst., 92.) (a) "Women, the heirs male failing, were not in ancient times for- bidden or barred, but that they might inherit the dignity of barons, and after they had borne a child, graced their husbands also with the same honour, and with the same by inheritance ennobled their chil- dren." (HakeweWs Ancient Customs, 99.) There were often no charters or grants of the ancient earldoms in existence, and probably never were any, as an earldom could be conferred by investiture, and in the absence of any particular charter directing the course of descent, the common law rule of descent as to estates prescribed only that they descended to males before females, and to the elder before the younger ; but to lineal heirs before collateral, so that a female lineal heir was preferred to a male heir, if collateral, though a male heir in the same degree was preferred to a female. Thus a daughter would succeed before a nephew, but a son before a daughter. (6) The De Mandevilles, soon after the Conquest, acquired the earldom of Gloucester by marriage with a daughter and co-heir of the earl, and on his death without issue, it went to the family of Clare, and the ancient earldom of Clare merged, in the first descent, LIMITATIONS OF DESCENT TO HEIRS MALE. 15 long in the same name and family. Moreover, there was often an inconvenience, and might be an indecency, in making a dignity be annexed to the ownership of an estate, which might be alienated to some family very unfitted for it. For these and other reasons there arose a disposition to limit the descent of dignities (a), and it may have been in that of Gloucester, and the united earldoms continued in the family of Clare one more generation. The earldom of Albermarle passed out of the family of De Fortibus, on the death of a female heir without issue, at the end of the thirteenth century. The ancient lordship of Saye, upon failure of male issue, passed into the family of Churton in the same century. The earldom of Norfolk passed from the Bigods in 1307, and the earldom of Hereford from the De Bohuns in 1371. The earldom of Hereford came to De Bohun by marriage, and the earldom of Chester was acquired by the De Lacys in the same way. So the barony of Fitz Walter in the reign of Henry VI. went into the Ratcliffe family, and the estates of the De Vescis came into the family of Clifford. The difficulty was the greater when the dignity was associated with some great office of state, as that of great chamberlain, which was made by Henry II. hereditary in the family of De Vere, with the earldom of Oxford, or high constable, held by the ancient house of Fitz Walter, or earl- marshal, hereditary in the family of the Marshals earls of Pem- broke. The office of constable of England came to De Bohun of Hereford', by his marriage with the daughter of Fitz Walter. The office of earl-marshal came to Bigod earl of Norfolk, in right of his mother, daughter of earl-marshal of Pembroke. In such cases the difficulty could only be got over in feudal times by requiring the lord's assent to a marriage or an alienation. (a) " King Edward I. thought fit to make fees (i.e., of baronies) to men only" (i.e., descendible only to men). "And ever since, in creat- ing any new earldom or barony by charter, it was provided that it should descend unto the heirs male alone, the women being quite excluded." (HakeweWa Ancient Customs). This author is in error in imagining that this change took place so suddenly in the reign of Edward I. Possibly he was thinking of the statute as to estates tail in that king's reign, which, however, only applied to estates in land, and, therefore, only to dignities annexed to tenure of lands, but not 16 DESCENT OF HEREDITARY DIGNITIES. with that object that it became usual, in settlements of great estates, to which, probably, dignities were annexed, to limit their descent to the issue of the grantees; and usually to the male issue that is, in the language of the law, heirs of the body. At all events, even as to estates, a disposition had also arisen to limit the course of descent to particular heirs, usually lineal heirs, especially male issue ; and a statute had passed (a) for that purpose, that is, to protect settled estates from alienation. And as dignities could not be alienated, except when annexed to estates which could be alienated, this protected dignities so annexed. But as dignities not so annexed could not be alienated, no such statute was necessary to protect such dignities from alienation, and it would be competent and sufficient for the crown, in its grant, to direct the limitation. The infirmity, however, of the limitation of a dignity to issue, or lineal heirs, especially when restricted to male issue, is that of liability to extinction through failure of the particular issue (6). And this could only be avoided by a to dignities not so annexed, which could not be alienatgd L, and were, therefore, not within the scope of a statute Kereditary against alienation. (a) The celebrated statute de donis conditionalibus, in the reign of Edward I., which directed that in gifts of lands the will of the donor shall be observed, so that if he directed that they should descend to issue male, the lands should so descend, and the issue 'should not be prejudiced by the parent's alienatiou. The object being to protect settlements, the statute was framed with reference to limitations for the benefit of issue, or children that is, for instance, " heirs male of the body" of the grantee. But the statute only applied to lands and tenements, because dignities could not be alienated, and baronies by tenure had died out. (&) The earldoms of Clare and Gloucester, as already mentioned, became extinct. So of all the other ancient earldoms existing at the time of the Conquest, or even at the time of the Great Charter. LIMITATIONS OF DESCENT. ENTAILS. 17 limitation, or a remainder to general heirs male, which would allow of the dignity going to heirs male collateral, failing direct heirs lineal. In the case of an estate, indeed, the law, common law, and statute (a), did its utmost to secure such a result, and prevent the loss of an estate through failure of heirs. For on failure of the heirs limited, the common law made the estate revert back to the donor, who would, in almost all cases, be of the blood and family of the original donees : and the statute passed as to estates was passed to aid and enforce the common law in this respect; and would apply to dignities annexed to estates. After the destruction and prostration of the great terri- torial earldoms, in the ware of the barons, and the rise of To the Great Charter are the names of the earls of Chester and Salisbury, earl Warrenne, Clare earl of Gloucester, Ferrers earl of Derby, Mandeville earl of Essex, Bigod earl of Norfolk, the earl of Hereford, and the lord of Albemarle, and Simon de Montfort earl of Leicester. In the Dictum de Kenilworth, the treaty made at the close of the great war of the barons, only two earls are mentioned as parties, Clare earl of Gloucester, and the earl of Hereford. The earldom of Derby is mentioned as forfeited. The great earldom of Leicester was forfeited, and its vast possessions went to found the great earldom of Lancaster, which was granted ever afterwards to princes of the blood. (a) That is the statute de donis conditionalibus, 13 Edward I., c. 1 (A. D. 12S5\ " That the will of the donor concerning lands, &c., be observed." The statute implies all through that it was passed to enforce the common law, and although Littleton says, "estates tail \vere by the statute," he probably meant practically. Lord Coke more correctly says, that it was passed to protect estates tail that is, protect them from alienation. By virtue of peculiar principles of law long since obsolete, the alienation, though not in accordance with law, did after a time bar the issue or the donor that is, the issue as long as there were issue, or the donor entitled to reversion on failure of issue. But if there were no alienation, then, at common law, the estate went back to the donor and his heirs that is, in most cases, the general heirs of the donee. - 18 DESCENT OF HEREDITARY DIGNITIES. the parliamentary system, which marked the great era of the reign of Edward I. (a), great constitutional changes took place, which, as the ancient earldoms and baronies by tenure died out, led to new modes of creating dignities ; in which, however, the same reasons of public policy had the same tendency to produce a disposition in favour of limitations to heirs male. The crown assumed the power of summoning, as peers of parliament, persons not possessed of great baronies ; who, perhaps, though they might be, and usually were (6), of (a) Prior to this era, the greater barons came to parliament as peers whether summoned or not. Partly, perhaps, on account of the uncertainty as to the persons who were entitled to come, the crown assumed the right to designate them by writs of summons, and afterwards to summon persons not possessed of baronies. This was a most important change in our constitution, and led to the division of the peers into two classes peers by baronage and peers by writ. Long afterwards it was held that the holder of an entire barony was entitled to a writ of summons (48 Edward III., c. 30), and "lords of parliament" (seigniors de parlement] were spoken of as those who were only so by virtue of summons. The latter were long regarded as an inferior order, and these writs were addressed to them only by name with the title "chevalier." (6) Thus it was as to the ancient and illustrious families of De Spenser and Le Scrope. The De Speusers were barons by tenure, and it was De Spenser who succeeded a great earl as grand justiciary of the realm, in the reign of Henry III. (See Lives of the Judges, by Mr. Foss, vol. iii.) He was summoned to parliament through that reign, and his son in that of Edward I. and Edward II. His son, in his father's lifetime, was summoned in the reign of Edward I. (which shows that he was probably a man of worth), and also in the reign of Edward II. The father was baron by tenure, and the son by writ, and the latter, who was the king's minister, was after- wards created earl of Winchester. His history and fate remarkably resemble the story of the earl of Wiltes. So as to the family of the Scropes. The Scropes were one of the most ancient and illustrious families in England. Dugrlale, followed by sir Harris Nicolas, traces them to the Conquest. In the reign of Edward I. they had large estates in Yorkshire, where they have ever since been seated ; and DESCENT OF BARONIES BY WRIT. 19 ancient family, were not possessed of baronies or large estates at all ; but were summoned to parliament, in respect rather of their abilities, and capacity for rendering good service, as counsellors of the crown. . It does not appear that the parliamentary barons, as they might be termed that is, barons only by virtue of writ of summons acquired by the summons any dignities inherit- able, or for their heirs (a). It was only the earls and barons sir William Le Scrope was a distinguished knight in that reign. He had two sons, sir Henry and sir Geoffrey, both of whom became judges, one chief justice of the King's Bench, the other chief baron of the Exchequer, a brilliant destiny to be attained by two members of the same family, in the same age, and sufficient to show that they were a family as distinguished for ability as antiquity. Sir Geoffrey Le Scrope was chief justice under Edward II., and was closely connected with the De Spensers, who at the same time were that king's ministers, and probably raised him to the bench. He was the father of sir Henry Le Scrope, who in the 24th year of Edward III. was summoned to parliament by the title of lord Scrope of Masharn, " a considerable person," snys Mr. Hallam, " in the reigns of Edward III. and Richard II." (Const. Hist. Eng!) (a) It it evident, as Mr. Hallain observes, that the writ of summons contained no words which implied an inheritance in the dignity; it merely summoned the particular person to give his advice, and by no means implied that his advice would be required for his heirs. In a single instance, the historian remarks, we find (in the reign of Henry VI.) a writ of summons extended to heirs male, but then it was the case of a barony, and was addressed to the lineal heir of the ancient barony of De Vesci, and therefore it was limited to heirs male, " vos, et heredes vestros masculos de corpore vestro legitime exeuutes, barones De Vesci." That is, it was limited to his issue male, barons of De Vesci. It would appear, however, that a writ of summons to any one, naming him baron, or dominus, as " baroni de Greystock, domino de Furnivall," gave an inheritable peerage ; not so a writ generally worded, merely naming the party " knight," unless he held by barony. And that was the usual form of the writ where the party did not hold by barony. It was not, says sir J. Mackintosh, until the IGth century, that it was settled that when a man was sum- moned to parliament, and had taken his seat, he and his heirs were ennobled. (Hist. Eng., vol. i.) Mr. Hallam quite concurs in this view. 20 DESCENT OF HEREDITARY DIGNITIES. who held baronies who were entitled to the summons, from whom the privilege descended to the heirs. In other cases, where the writ of summons was issued to persons not pos- sessed of baronies, if it was ever renewed to their heirs, it would, of course, be to male heirs, who were capable of sitting in parliament. The right of inheritance, in such cases, could only arise by reason of custom, or the usage of the crown (a), and the crown would not be likely to restrict its summonses to lineal male heirs, but would summon such male heirs (a) Some, says Mr. Hallam, were constantly summoned during their lives, none of whose posterity ever attained that honour; some who do not appear to have held land baronies, were constantly sum- moned, from father to son, and thus became hereditary lords of parliament by a sort of prescriptive right, which probably was the foundation for the extension of the same privilege afterwards to the descendants of all who had once been summoned. There is no evidence that the family of Scrope, for example, which was eminent under Edward III., and subsequent kings, and gave rise to two branches, the lords of Bolton and Masham, inherited any territorial dignity. (Hist, of Mid. Ages, c. 8.) That is, they were not barons by tenure. The historian is not quite accurate as to the descent of the Scropes, as to which see Lives of the Judges, by Mr. Foss, vol. iii., temp, Edward III. The barons merely by writ were regarded by the territorial barons as an inferior order, and thus lord Scrope of Bolton is con- stantly mentioned on the rolls as monsieur Richard Le Scrope, while the barons by tenure are described by the title " sire " or '' sieur." Mr. Hallam thinks monsieur was the designation of a ban- neret, but this is an error, as sir Richard Scrope is so described all through his life, although undoubtedly, as Mr. Hallam states, a baron. Mr. Hallam himself points out that in 2 Hen. VI. Scrope of Bolton is called " sieur Scrope," and observes very truly on " the want of consistency in old records." Thus, he says, Scrope of Masham, though certainly a baron, is called chevalier in an instrument of 1 Hen. V. (Rymer, t. ix., p. 13.) Yet next year he was tried by his peers in parliament. The collateral male heirs, however, of the persons originally summoned would naturally be summoned to par- liament. Those who inherited baronies and could be summoned, or in the case of descent to daughters, their husbands would be summoned, as in the case of sir John Oldcastle, summoned as lord Cobham in right of his wife who inherited the barony. (Rot. ParL, vol. iv., p. 107.) DIGNITIES DESCENDIBLE TO HEIRS MALE. 21 lineal or collateral as were fitted to render good service in parliament. The same reasons of public advantage which had led the crown to summon a person of merit and ability, would equally lead the crown to summon a collateral male heir, or male member of the family whether heir or not (a), in order to have the advantage of his services the heir, per- haps, being a minor, or not a man of equal merit. Thus the natural tendency in creations of dignities by writ would be for reasons analogous to those which applied to the old earldoms by tenure in favour of their limitation to heirs male in general. The creations by writ, however, (which were only applied to the lower degree of peerage the baronage), were not at first understood to confer here- ditary nobility (I), and hence arose creations by grant or letters patent. (a) An illustration of this occurs in the history of the Scropes. Mr. Hallam says," Scrope, chief justice at the beginning of the reign of Edward III." (it should be chief baron see Lives of the Judges, by Mr. Foss), " was the father of Henry lord Scrope of Masham, a con- siderable person in Edward III. and Eichard Il.'s governments." Sir Henry Scrope of Masham was summoned to parliament by Edward III. in his 24th year. Twenty years afterwards, his brother, sir Eichard Le Sc-rope of Bolton, was summoned to parliament as lord Scrope of Bolton, though lord Scrope of Masham had three sons. The reason is obvious. Sir Eichard Scrope was a man of great ability and experience in public affairs ; and, even supposing lord Henry Scrope's heir to have been a man of equal ability, he was young, and a man of no such experience. Where, as in the case of lord Scrope of Bolton there was a son who. at his death was able to render valuable service, of course he would be summoned to parliament for similar reasons. But supposing no son, or a son a minor, or a man of no ability, or no experience, reason would dictate a summons, if it was desired to summon any one of the family, to a collateral male representative. (6) In the time of Eichard II. it became a practice to create dig- nities by letters patent under the great seal. The first instance of 22 DESCENT OF HEREDITARY DIGNITIES. The greater dignity of an earldom, however, was always conferred by grant, or charter from the crown, and as it required great estates to support it, when it was granted to persons not already possessed of such estates, it was usual to grant estates for that purpose (a). In such cases, however, the dignities were personal in tenure, not territorial, though the titles and endowments were territorial ; and the course of descent was directed by the patents. In such cases, if the descent of the dignity was connected with the descent of the estate (6), and the mode of descent this kind is said to have been in the eleventh year of his reign, when John Beauchamp, of Holt, was created lord Beauchamp by letters patent, before whom, says lord Coke, there was never any baron created by letters patent, but by writ. (1 Inst., 11.) (a) Thus, in the reign of Edward III., Henry, son of Henry earl of Lancaster, was created earl of Derby, to him and the heirs male of his body ; De Bohun was created earl of Northampton, to him and the heirs of his body; De Audley was created earl of Gloucester, and De Clinton earl of Huntingdon in tail ; De Clifford earl of Suffolk in fee simple ; De Montacute earl of Salisbury in fee simple ; and all these creations were with donations of lands for the support of the dignities, and were by the king's grant with the assent of parliament. The grant of the duchy of Cornwall to the Black Prince was to him and his heirs, the eldest sons of the kings of England, which was held to be a qualified fee simple ; and as to the estates, it required the authority of parliament not being a mode of limitation allowed by law. (The Prince's case, 8 Coke, 77.) So Eichard II. created the earls of Cambridge and Buckingham dukes of York and Gloucester ; and they received for the support of their new dignity, grants of land from tlie crown to the yearly value of a thousand pounds. Henry of Bolingbroke, son of the duke of Lancaster, and Edward, son of the duke of York, were created earls of Derby and Rutland. (LingarcVs Hist, of Eng., vol. iii., c. 4.) (6) As in the case just cited of the grant of the duchy of Corn- wall, where a duchy was granted not only as a dignity but as a territory, and where the course of descent directed for the duchy that is, for the territory was, as lord Coke said, "against the GRANTS OP EARLDOMS AS DIGNITIES. 23 directed for the estate was not merely different from the course of descent laid down by the law as to estates, but contrary to some rule of law, it might be necessary that the grants should be made with the assent of parliament In such cases (a) the crown was enabled, by writ of sum- mons, to obtain in parliament the services of men of ability and experience in public affairs, although not of great estates, and afterwards to reward such services, by grants of earldoms, with grants of such estates as might be neces- sary to support the dignity the dignity, and its descent, being quite distinct from the estates. rules of the common law," and so could not be created without an act of parliament. (Prince's case, 8 Coke's Reports, 16.) And again : " It was impossible that the possessions of the duchy should be so indissolubly annexed to the dignity as the charter intended, without an act of parliament." (Ibid.) And further : " It would be impossible that an estate in land should cease and revive again as the charter intended, without an act of parliament." (Ibid.) Then, it will be observed, that the question was as to estates and as to limitations, contrary to rules of law, and impossible without violation of law. (a) As, in that of De La Pole, created by Eichard II. earl of Suffolk : De La Pole was the son of a merchant, who had been employed in public service in the reign of Edward III. He had gained great experience in public affairs, though he had no great estates ; and he had been summoned to parliament in that reign among the barons. He was employed by the young king, gained his confidence, and after having been for some years his councillor, and in his household, was appointed chancellor. It is worth obser- vation, that though a baron of parliament, he is only styled " che- valier " in the record of his receiving the Great Seal ; and on opening parliament he is described with no higher title. In his administration of affairs, he incurred great obloquy, which very likely was owing to jealousy, and this jealousy was greatly in- creased when he was created earl of Suffolk (the earldom having become extinct), with a grant of 1000 marks per annum to support its dignity, and the reversion of the lands of the late earl. (Rot. Parl.. iii., 206 ; Foss's Lives of the Judges, v. iii.) 24 DESCENT OF HEREDITARY DIGNITIES. The crown might limit the descent of the personal dig- nities it granted according to its pleasure, provided there was nothing in the limitation unlawful, that is contrary to law, as tending to any result injurious to the state. The descent might be limited to any class of heirs. And it was competent to the crown to attach conditions or qualifica- tions to the inheritance of the dignity, and to make it attach to the possession of an estate (a) by the heirs of the original grantee that is, not to the possession of the estate, but to the possession of it by the heirs. Even in the limitation of estates by private individuals, different from the course of descent at common law, the law had imposed no restriction, except that they should not be against or contrary to any express rule of law (6). In- (a) As in the instance mentioned by lord Coke, of the grant by Henry VI. to John Talbot, lord of the manor of Kingston Lisle, that he and his heirs, lords of the manor, should be peers of the realm by the title of baron Lisle. (Coke iipon Littleton, 21.) Lord Coke calls this qualified fee simple, and implies that it did not require the protection of any statute, for he observes that Littleton rightly confines his comments on the statute to lands and tene- ments, which, says lord Coke, do not include dignities. At the time Littleton wrote, in the same reign of Henry VI., several peerages were created to be held to the heirs male. " And," lord Coke says, in the same passage, "such a limitation was good." (6) As in the case thus mentioned by Littleton : " In the time of King Richard II., there was a justice of the Common Place (Pleas), living in Kent, called Richel, who had issue divers sonnes ; and his intent was that his eldest should have certain lands and tenements to him and to the heirs of his body, and for default of issue, the remainder to the second son, &c., and so to the third, &c. And because he would that none of his sonnes should alien to hurt the others that would be in remainder, he caused the deed to be to this effect, that if any of them alienated, their estate should cease, and the lands remain to the next son in succession." This was held void, "because," says lord Coke, "it was against express rules of law" (Littleton, sec. 720 ; Coke upon Littleton, 378.) That is to say, it was LIMITATIONS OF DESCENT ALLOWABLE. 25 deed, to provide for limitations different from the course of descent was the great object of deeds and settlements, and a statute had passed to protect such settlements. No statute was necessary to allow of any limitations of estates in any particular course of descent, or to any parti- cular class of heirs (a). A statute had only been necessary contrary to rules of law. Any estate tail at all would be different from the course of descent at common law, but not on that account void. (a) There has been much misapprehension on this point. There was no necessity for any statute to allow of any species of limita- tion of the gift of an estate, and no such statute was ever passed. The statute de donis conditionalibus, indeed, was passed to protect special limitations of estates from aliens KH? eve* 1 , to the prejudice of the issue intended to take under the gift ; but the very scope of the statute implied what, indeed, it recited as its basis, that such gifts should be observed that is, that such limitations should take effect. Moreover, all that the statute did was to protect them from alienation, which was all that it was necessary to do, for prior to the statute, when such special gifts were construed as conditional fees simple, the only mischief was that they might be altered by aliena- tion, and so the statute merely provided that the issue should not be prejudiced by alienation. If no alienation took place, the land would go according to the gift. No case ever decided the contrary ; and the only case cited by Littleton to that effect did not so decide ; and the dictum of Paston, J.. to that effect, that if laud be given to a man and his heirs male he has a fee simple, is quite con- sistent with the view above quoted, for, as lord Coke put it, the case would be one of qualified fee simple. The case, however, was one which did not really raise the question, for it was a case of devise with the remainder to heirs male of the body, and in default of issue, then to the next male heir and the heirs male of his body ; and the brother claimed as next male heir, he being also heir general ; and the decision was that the brother should have the land as heir general, notwithstanding that he was not heir of the body, the word " male " being rejected as void, the remainder taken as a fee simple, because in that case the law gave the male heir a preference ; and it was not necessary, therefore, that he should claim as heir male. (9 Henry VI., p. 23.) It is obvious that the 26 DESCENT OF HEREDITARY DIGNITIES, to protect, not to create such limitations, and was only necessary because estates could be alienated. But as digni- ties could not be alienated, the statute was not necessary to point did not really arise as it would have arisen had the gift been to the female heir. And that case was put in the course of the argument by one of the judges, and it was said that in such case, if there were son and daughter, the daughter should have the laud. (Martin, J., fol. 25.) As, however, the court could not agree about it, and it happened that the claimant, the heir male, was also heir general, the court gave him the land as heir general, so that it was not necessary to decide the point, viz., whether, on a gift of lauds to heirs male, the collateral heirs male would not take in preference to lineal heirs female. It is conceived that they clearly would, either at common law, as a qualified fee-simple, or by the statute dc donis as an estate tail. The terms of the statute de donis cer- tainly do not exclude such a limitation, though as the entails in that age were usually to heirs of the body, those entails only are men- tioned ; and Littleton, after exhausting all the cases of heirs of the body, says expressly that there are other estates tail ; although, forgetting this, he says that an estate to a man and his heirs male is not within the statute. Even, however, if it be not so, it could only follow that it is not protected by the statute from alienation ; and the statute has no application to dignities which cannot be alienated, and remain as at common law. This view is in accordance with the view taken by lord Coke, who laid the law down thus : " The statute de donis doth not create an estate tail, but of such estate as was fee simple conditional at common law, so now by the statute the land shall descend ; and the only mischief was that the donee after issue had power to alien in dishonour of his heirs." (7 Reports, 35.) And so elsewhere he says, " that a limitation to a man and his heirs, tenants of a manor, was a qualified fee simple." (Coke on Littleton, 27.) The view here submitted is supported by the judgment in a great case on the subject, where it was laid down as law : " That there were three sorts of estates at common law : 1, an absolute estate of inheritance to a man and his heirs ; 2, a fee simple qualified as to the time of duration ; 3, a fee simple restrained as to what heirs should inherit it. It was only a qualification as to what sort of heirs should inherit, and it was qualified as to the descent of it to such particular heirs as were expressed in the limi- tation ; and therefore if lands at common law were given to a man LIMITATIONS OF DESCENT TO MALE HEIRS. 27 protect limitations of dignities ; and such limitations were entirely in the power of the crown, provided they were not contrary to any rule of law. And even assuming any difficulty, arising from any legal rule, as to the limitation and descent of estates to heirs male, i.e. to heirs male, collateral as well as lineal, exclud- ing female heirs lineal or collateral, there could be no such difficulty in the limitation of dignities, since the rule of law applied only to estates (a), and so dignities might be limited either to lineal heirs male, or to heirs male generally, so as to include collateral heirs male. The tendency, indeed, was so strong to favour the limi- tation of dignities to male heirs, that grants of dignities to heirs appear to have been understood as meaning male heirs (6), so as thus to make the dignities descendible to and the heirs/male of his body, and he had issue two sons, and the eldest had issue a daughter, the second son should inherit." (Jdle v. Cook, Lord Raymond's Reports, 1148.) () For Littleton's proposition is limited to lands and tenements ; and a dignity (unless it were territorial or by tenure that is, attached to the tenure or possession of land as the old earldoms were,) is not a tenement, although it is an inheritance or hereditament. Hence, lord Coke, commenting upon the passage just cited from Littleton, says, " This rule extendeth but to lands or tenements, and not to the inheritance that noblemen and gentlemen have on their arms ; for where the nobleman and gentleman hath a fee simple on his arms, yet is the same descendible to heirs male lineal or collateral. For albeit a female be heir at the common law, yet the arms descend unto them that are able to bear them ; and if the king, for reward of service, granteth arms to a man and to his heirs without saying " of the body," that is good ; and, as hath been said, they shall de- scend accordingly." (Coke on Littleton, p. 27.) This doctrine, it is evident, applies to dignities, which, as already shown, were in that age granted especially for military service. (6) This is illustrated by the case of the earldom of Suffolk. In the reign of Edward II., Eobert de Ufford was created earl of Suffolk, to hold to him and his heirs. He left one son, who died 28 DESCENT OF HEREDITARY DIGNITIES. collateral heirs male, in preference to lineal heirs female. This was natural in an age where the object of these digni- ties was service, either military, or in parliament, which could only be rendered by men. And so there were other without issue in the reign of Richard II., leaving the issue of his three sisters his heirs that is, their three sons, who thus were heirs of the body of the first earl, and certainly his heirs. Thus the earldom fell into abeyance, from which it was in the power of the king to raise it, but he did not do so ; and, by a patent granting the earldom to Michael de la Pole, recited that the late earl had died without issue ; which would be true if the grant were construed as to heirs male, and otherwise would not be true. The memorandum on the rolls of the creation of Michael de la Pole earl of Suffolk, states that William earl of Suffolk had died without heirs male, and therefore he created Michael de la Pole earl of Suffolk. Upon this it has been remarked by very high authority (the Report of the Committee of the House of Lords, vol. ii., p. 191), " The recital in this patent that the late earl had died without heirs male, without mentioning whether he had left heirs of the body of his father, may, perhaps, be deemed to show that the grant of a dignity to a man and his heirs was then considered as a grant to heirs male only, unless the king should think fit to extend its operation to heirs general." In the grant of the earldom of Buckingham (Rot. ch. 14, Rich. II., N. 2.), the earldom was granted to him and his heirs; but by the same high authority it is observed : " It seems to have been then understood that such a grant of a dignity would not have con- veyed the dignity to collateral heirs of the grantee, or heirs to co-heirs ; and about this time the practice seems to have begun of confirming grants of dignities to the heirs male of the body. This was done in the patent of De la Pole, the earl of Suffolk ; and, perhaps, the fact that there existed heirs general of De Ufford, earl of Suffolk, who might claim as his heirs, suggested the limitation to heirs male of the body of Michael de la Pole." (Vol. ii., p. 172.) When not long afterwards, on the re-grant of the earldom of Oxford to the heirs male, it is remarked by the same high authority : " Per- haps the limitation to heirs male may have been considered, in the reign of Richard II., as the true interpretation of an ancient grant of the dignity of earl to a man and his heirs ; that by the word ' heirs ' in such a grant, heirs male only were intended." (Vol. ii., p. 275.) DESCENT OF DIGNITIES TO HEIKS MALE. 29 differences between the course of descent in cases of estates and of dignities for instance, the admission of the half-blood to inherit which could have had no better foundation in reason, and may have had the same. As the common law, in the descent of estates, gave the preference to heirs male of the same degree, though it pre- ferred lineal heirs female over heirs male collateral, so it seems that naturally, in feudal times, the law of dignities gave still greater preference, for reasons already mentioned, to heirs male (ci), preferring heirs male, although collateral, to heirs female, even lineal, or indeed excluding female heirs altogether, and constituting a species of entail. It was quite in conformity, therefore, with the tendency of the age, that when a case arose in which it was desired to perpetuate the dignity in the same name and family, the descent should be limited to heirs male (6). And it was (a) This seems to explaiu what took place in the reign of Richard II. in the case of the earldom of Oxford. After reciting that the heir of the late earl had nothing to show that the earldom was entailed, and that the king decreed that it should be continued, the king, with the assent of parliament, proceeded to restore and grant it to him and his heirs male, i.e., his heirs male general. This plainly implies that in that age this was thought in a grant of a dignity an entail. The Committee of the Lords on the Dignity of a Peer remark on this : " The word ' restored ' imports that Aubrey was to have the ancient dignity as possessed by his ancestors, but with limitation to heirs male only. Perhaps, indeed, the limitation to heirs male may have been considered in the reign of Richard II. as the true interpretation of an ancient grant of the dignity of an earl to a man and his heirs, and by such a grant heirs male only were intended." (Vol. ii., p. 275.) (6) In the case of the earl of Oxford it was done with the assent of parliament, because there was no act of attainder, which could only be reversed by parliament. The act recited : " Whereas, Robert de Vere, late duke of Ireland, and earl of Oxford, held certain lands and tenements, which by force of the judgment against him in parliament were forfeited ; but ought by entail to descend 30 DESCENT OF HEREDITARY DIGNITIES. not considered as requiring an act of parliament to legalise such alienation of the dignity. When, therefore, it was desired by the crown to grant an earldom to a minister who had no male issue, but had collateral male heirs (a) to whom it might be desired that it should descend, it was natural that the grant should make the dignity descendible to heirs male generally, so as not to be limited to lineal heirs male, of whom there were none, but to allow it to pass to collateral heirs male, who did exist, and were themselves also objects of the favour of the crown. It is difficult to conceive of anything more natural and reasonable, or more entirely free from the least semblance of reasonable objection. Accordingly, in the case in question, the patent was so framed (6), making the earldom descendible to heirs male generally, collateral as well as lineal. to sir Aubrey de Vere, as uncle and heir of the said Robert, and especially the earldom of Oxford was so entailed. The king, mindful of the services of the said sir Aubrey, and also thai his ancestors were in ancient times earls of Oxford, of his special graco restores, gives, and grants (restitut, done, et grante), by the assent of parliament, to the said sir Aubrey, rd Hale makes a similar remark. 72 FORFEITURE OF A DIGNITY. feiture to prove it, and if it could only have been by attainder for treason, then to show that attainder. In the absence of such an attainder, or of any act con- firming an irregular attainder for treason, an irregular and illegal execution would be no legal forfeiture. And this appears not only from legal principle but from all the events of the period. Executions of persons taken in actual warfare or rebellion, against an actual or pretended sove- reign (a), even though, supposing him to be de facto king, they might be in a certain sense lawful, would be very dif- ferent from legal judgments on a charge of treason against him, and would require to be followed by acts of attainder, in order to render them equivalent to such judgments, and entail upon the heirs the penalty of legal forfeiture. Any examples of acts or judgments of attainder (6) which (a) This was illustrated, soon after the execution of the earl of Wiltes, in the cases of the earls of Kent, Salisbury, and Hunting- don, who, with others, indignant at Henry's treacherous assumption of the crown, had risen in arras against him within a month after- wards, and were seized and beheaded (as Hume says) " according to the custom of the times." (Hist. Eng., vol. ii., c. 18.) " The earl of Huntingdon and others, who were taken prisoners, suffered death, by order from Henry." (Ibid.) These executions might or might not, in a sense, be lawful : assuming Henry to have been at the time de facto sovereign, they probably were so ; but neverthe- less, it was deemed that, as they were not legal or regular judgments for treason, it was necessary to have acts of attainder. (6) Thus, in the case already mentioned, there was an act of attainder which ran thus : "Whereas Thomas lately earl of Kent, John lately earl of Huntingdon, &c., late levied war to destro}' the king, and were taken and beheaded ; all the lords being in par- liament, by the assent of the king, declared and adjudged that they were traitors, and should forfeit all their lands and tenements, not- withstanding that they had died upon the field without process of law." (Rot. Parl., iii., 459.) It is doubtful whether this (which of course would be null and void as & judicial proceeding) was valid as an act of attainder, the assent of the commons not being declared, NO FORFEITURE BY AN EXECUTION. 73 occurred at the same period of our history, would be im- portant upon the question whether there had been any such attainder in the particular case in question. Execution, without legal trial, of a peer taken even in open rebellion against an actual sovereign (a), would, if not nor any enactment by "authority of parliament," though this might possibly be collected from the context and the concurrence of the commons in a subsequent act of the same session, restoring the heirs of the lords degraded, in which act there is a recognition of that just quoted: and on "the same day the commons showed how, at the last parliament, certain judgments and ordinances were made against the earls of Rutland, Kent, &c., as by the roll of judgments of the parliament will appear ; and since that time, God has separated the good from the evil of those lords, as is notoriously known ; and the earls of Rutland and Somerset have shown themselves loyal, &c., wherefore the commons prayed that they might be restored, >?wi<7e<:? they^ would have been valid if granted by any king lawfully jning (a). This act has, as regarded Henry IV., ever since remained (a) As they would not be if already granted. (Co. Lift., 3 16.) EEVERSAL OF ATTAINDERS. 81 undisturbed; and it is most remarkable that on the accession of Henry VII., although, as sir J. Mackintosh observes, it was really the restoration of the House of Lan- caster, the title of York was so well established that there was no attempt to disturb it ; and in the first entries on the rolls of parliament, the late king, Edward IV., was recog- nised as king (a). There was no repeal of the act of resumption above mentioned, nor even of the attainder of Henry IV. This general act of reversal, however intended to have a general operation in all cases not specifically provided for applied, be it observed, to all the acts of all the kings of the Lancastrian dynasty even those who had succeeded to the throne under a parliamentary title ; and it by no means implies the necessity for any act of reversal or restitution in this particular case, which is not a case of an (a) (Rot. Parl., vi., 271.) Aud this is the more remarkable, because thei-e was a repeal of the act, so far as it attainted Henry VI., who having succeeded to the throne under a parliamentary title, could hardly have been considered an usurper. Therefore there was an act of Henry VII., which enacted : " That the said act, and all acts of attainder made against the said King Henry VI., or against Queen Margaret, &c., be^against the said king,