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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, <fec., the name, title, estate, and
honour of earl of Oxford, to have the said title to him and his heirs
male for ever." (Rot. Part., vol. iii., p. 303.)
(a) Sir W. Scrope was childless but had two brothers, both of
whom were in the royal favour, and to whom as heirs male the
dignity would descend.
(6) " We, considering the probity, the wise and provident cir-
cumspection, and the illustriousness of manners and birth, of our
beloved and trusty William Le Scrope, chevalier, and willing de-
servedly to exalt him by the prerogative of honour, do create him
in parliament to be earl of \Viltes ; and do invest him with the
style, name, and honour of the place aforesaid, by the girding of
the sword, to have to him and his heirs male for ever. And in
order that the earl and his heirs aforesaid, for the decency of so
great a name and honour, may be the better and more honourably
GRANT OF THE EARLDOM OF WILTES. 31
If the grant had purported to have been made with the
assent of parliament, it would have been, in effect, an act of
parliament ; and being made, as it was, in the presence of
and with the knowledge of parliament (a), the assent of
parliament might fairly be inferred. It would require
able to support the burdens incumbent on the same, of our special
grace we have given and gi-anted, and by this charter confirm to the
earl and his heirs aforesaid .20, to be received every year out of
the issues of the county of Wiltes, by the hands of the sheriff of the
county for ever. These being witnesses, the archbishop of York,
bishops of London, Winchester, and Exeter, chancellor, John duke
of Lancaster, Edmund duke of York, Aubrey de Vere earl of Oxford,
Percy earl of Northumberland."
(a) It was along with several other grants of dignities made in
full parliament and entered on the rolls. The earls indeed appear,
according to usual practice, to have been invested with these dignities
in open parliament. And that it would require some specific action
on the part of parliament to defeat the patent by some act of revo-
cation, appears to have been implied in what afterwards took place
as to one of the dignities granted, in the case of the contest between
the earl-rnarshal and the earl of Warwick as to precedence, which
is thus correctly stated by a learned author from the rolls : " A
contest for precedence having arisen in the parliament of Henry VI.,
between the earl-marshal and the earl of Warwick, the commons
interfered, stating that they understood that the earl-marshal's
father had been created duke of Norfolk by letters patent made in
21 Richard II., and that, if so, the earl-marshal was entitled to
precedence. The letters patent were produced, and it is stated that
the dignity had descended to the earl-marshal. The judgment is,
that although all the proceedings in the parliament of Richard II.
were revoked and annulled in the parliament of 1 Henry IV., yet
the creation of a duke or earl, or any other dignity, pertained to
the king alone, and not to parliament : ' Pro eo tamen quod hujus
modi creatio ducum sive comitum aut aliorum dignitatum, ad solum
regem pertinet, et non ad parliamentum.' (Rot. ParL, vol. iv., 267.)
And as no special revocation of the grant of the dukedom appeared
on the roll of the parliament, and as several other persons on whom
dignities had been conferred in that parliament by King Richard II.
had always enjoyed the same, the king, with the consent of the lords
and commons, declared that the earl-marshal shall have the dignity
32 DESCENT OF HEREDITARY DIGNITIES.
some particular action on the part of parliament to defeat
the patent, even supposing it competent for parliament to
take such action, as, if the patent was contrary to law,
it surely would be. And on the other hand, if not contrary
to law, then as a lawful exercise of prerogative, it would
stand good and valid at all events until revoked by some
judicial process.
That it was not supposed in that age that there was
nothing objectionable in the grant of a dignity to a man
and his heirs male is manifest from this, that there were
several instances of such limitations in those times (a).
And if, so far from there having been, either at that time
or at any subsequent time, any indication on the part of
parliament of any objection to the form in which the grant
was made as in any degree contrary to law, the earl's title to
the earldom was repeatedly recognized on the Holls of Par-
liament, and similar grants take place with the knowledge
of parliament, without any objection, it might. fairly be in-
ferred, either that Parliament approved of such grants, or
saw no reason to disapprove of them, in which case they
could hardly be deemed contrary to law, or invalid on the
ground that they were contrary to public policy ; or, that
parliament felt that grants of dignities were entirely within
of duke of Norfolk." (Cruise on Dignities, 84, citing Rot. Parl,
vol. iv., 267.)
(a) Thus in the same reign of Richard II., the earldom of Oxford
had been granted to Aubrey de Vere and his heirs male, and was
so granted with the assent of parliament. So, the baronies of Hoo
and Hastings, Egremont and Richmout Grey, were thus limited in
the reign of Henry VI. Littleton, writing in that reign, says not a
word against such limitations in cases of estates, except that they
are to be taken as making the estates descendible to the heirs general,
which, as the common law giv r es the preference to males, would come
entirely to the same thing.
DESCENT OF THE EARLDOM OF WILTES. 33
the prerogative of the crown, that it had no right to in-
terfere, unless there was some violation of positive law, or
some manifest and necessary illegality, which did not exist in
this case.
The earldom having thus been granted with the full
assent of the principal peers of parliament, the title of the
earl of Wiltes was repeatedly afterwards recognized in
parliament by entries on the rolls, and even in the statute
book (a).
The earldom having thus, then, been granted by the
crown to descend to heirs male generally that is, heirs
male collateral it would so descend, unless and until it was
legally lost or forfeited, as it could only be by the attainder of
some person possessed of it for treason that is, his attainder
for that crime either by legal judgment (6), or by act of
(a) Thus when the acts of the parliament came to be formally
drawn up and recorded on the statute roll, the act which annulled
the proceedings of the former parliament was thus entered : " The
lords, who were appellants that is to say, the duke of Aumaule,
the duke of Surrey, the duke of Exeter, the earl of Salisbury, and
William earl of Wiltes prayed to the king, revoking," &c. And
again, in the act by which authority was given by parb'ament
(according to a usual practice in those times) to certain commis-
sioners to examine and answer petitions exhibited to the king :
" Our lord the king, at the request of the commons, ordain and
assign by authority of parliament John duke of Lancaster, the
duke of York, the duke of Aumaule, &c., and William earl of
Wiltes, together with John Bushy, Henry Green, and John Russell,
chevaliers," <fcc. (21 Rich. II., c. 16.) So, in the accusation by
Henry of Derby against the duke of Norfolk, he alleged the duke
to have said, " This project belongs to the earl of Wiltes." (Rot.
Parl., iii., 360, 362 ; Lingard's Hist. Eng., viii., c. 4.) Thus, there-
fore, in every possible way short of a parliamentary enactment, the
title of the earl of Wiltes was recognised, not only by the principal
peers of parliament, but by the whole parliament in acts of parlia-
ment, as well as mentioned on the rolls of parliament.
(6) " Nullus liber homo capiatur aut exuletur, aut aliquo modo
34 FORFEITURE OF HEREDITARY DIGNITIES.
parliament. And if there was no legal judgment for that
crime during his life, he could only be attainted after his
death by act of parliament.
It was well understood in that age that atter a man had
been executed without legal trial, he could only be affected
by an act of attainder for treason (a), and that in the
absence of either legal judgment or act of attainder, an act
of indemnity was necessary even for the security of those
who had executed him.
From the earliest period in our history, it is believed that
no instance can be adduced in which it can be proved that
there has been a forfeiture of any dignity or estate, except
destruatur, nisi per legale judicium parium suorum vel (or et) per
legem terrse." Now this clearly meant trial before condemnation,
and trial in a man's lifetime. There never was any judicial pro-
ceeding of a criminal kind known to the law which could be put
in force against a man after his death. Hence, when Simon de
Montfort, earl of Leicester, had been slain in battle, though in open
treason and rebellion against his sovereign, this was not deemed
sufficient to ground the penalty of forfeiture against his heir ; and
so it was enacted in parliament that he and all who had adhered to
him should incur forfeiture. (Rot. 50 Hen. III., n. 13 ; apud Brady,
cited by Lingai'd, Hist. Eng., vol. ii., c. 6.) Hence the provisions
in the Dictum de Kenilworth'jaf. a subsequent compromise. This was
probably the first instance of an act of attainder.
(a) This was remarkably illustrated in the reign of Edward II.,
whicli, like that of Richard II., was full of terrible incidents and
deeds of blood. When the duke of Lancaster and the barons had
murdered the king's minister without trial, they knew that an
act of attainder or indemnity was necessary for their security, and
as the king would not consent to an attainder, they were content
with an amnesty, and the result was that there was no forfeiture.
" The associated barons, after the execution of Gaveston, demanded
for their own security that he should be declared a traitor, a demand
which the king spurned with indignation. At length ... a general
amnesty was proclaimed." (Lingard, vol. iii., c. 9.) At the same
time an act of indemnity was also passed in favour of those who had
been adherents of Gaveston. (7 Edw. II., stat. 1.)
NO FORFEIT ORE WITHOUT ATTAINDER. 35
either upon legal judgment (a), or upon attainder of par-
liament for treason.
When in that age, as often happened in the violent con-
tests which took place between contending parties, a peer
was irregularly and illegally put to death (6), it was always
considered necessary that there should be an act of in-
demnity, as it was for the same reason considered that
(a) This must have been by lawful trial according to the terms of
the Great Charter, u per legate judicium parium" which in the case
of a lord of parliament meant trial by his peers, as was held in the
case of Thomas earl of Lancaster (vide ante), for that being one
of the peers and magnates of the realm (unus parium et magnatum
regni], he was condemned without the legal judgment of his peers.
(2 Inst., 48 ; Rot. Parl, 4 Edward III., 13.) And in the reign of
Edward II. it was held that a peer could only be tried for treason
by his peers (Year Book, 10 Edward IV., fol. 6) ; so by the terms of
the Great Charter a commoner could only be tried by commoners.
Hence it is conceived the true doctrine has always been that com-
moners could not be impeached before the peers. It is true, Alice
Ferrers was apparently impeached in the reign of Edward III.,
but it is said it was ordained in parliament, that she should
be banished and forfeit her goods (Rot. Parl., iii., 16), which looks
like an act of attainder. And if it was a judicial proceeding, it
appears to have been reversed as erroneous on the ground above
suggested. (Ibid., 41.) Commoners were impeached in the reign of
Richard II., but all the proceedings in that reign were violent and
illegal, as was observed by lord Hale.
(b) As in the case of the earl of Aruudel, who had been illegally
put to death with the Despensers in the reign of Edward II. It was
considered necessary to have an act of indemnity, and such act was
accordingly passed, and recited that they bad encroached on the royal
power, and that the magnates and people of the realm had vanquished
and destroyed them ; wherefore it was enacted that no one who came
to aid in their pursuit, in which pursuit the king was pursued, taken,
and put in prison, should be impeached, molested, nor grieved,
in the king's courts, for the pursuit of the king, nor the pursuit of
any other, or the taking of their persons or goods, or the death of a
man, nor anything done in the pursuit. (Edward III., c. 1.) The
terms of this act of indemnity were (except as to the recitals) pre-
D 2
36 FORFEITURE OF HEREDITARY DIGNITIES.
the illegality which rendered the indemnity necessary pre-
cluded any legal forfeiture, which could only be the result
of a legal attainder.
And in such case, where there had been no act of
attainder for treason, but only an indemnity for the
execution, it would not be deemed necessary to have an
act of reversal, in order to prevent a forfeiture (a). On the
contrary, it would rather be considered that the act of in-
demnity implied illegality, and that an illegal act could
have no legal results.
The judgment of attainder for treason was deemed, in
those days, the fitting penalty for the treason and treachery
cisely the same as those afterwards used in the case of the earl of
"Wiltes, and it will be found that it was adjudged by parliament not
only that they involved no forfeiture, but that it clearly appeared that
the earl was unduly put to death, and therefore that any words as
to his destruction were void.
(a) Thus in the case of the earl of Arundel, already alluded to, there
was, it has just been seen, an act of indemnity, which recited that
they and the earl had been guilty of encroaching on the royal power,
and that they had therefore been vanquished and destroyed words
which did not involve any declaration of treason nor any affirmation
of a judgment for treason, although they might appear to cast some
kind of doubt, reproach, or imputation on the earl's conduct. And
therefore the earl's son afterwards presented a petition, that as no for-
feiture was adjudged against his father he might be declared entitled
to his inheritance; and it was declared by the king and parliament,
not only that in the recitals of the statute nothing was found which
could be a just cause why the said earl should have been destroyed and
put to death without judgment and due process of law, but that it
clearly appeared that he was unduly put to death, and that the words
in the statute touching the death and destruction of the earl (i.e.,
that they, the magnates and people of the realm, vanquished and
destroyed the said earl) were erroneous and null and void, and
adjudged that the said earl's son should hold his inheritance. (Rot.
Parl., 28 Edward III., st. 13.) This was a distinct declaration that
no reversal was necessary.
NOT FOEFEITED WITHOUT ATTAINDER. 37
of a knight or nobleman to his sovereign (a), and it -was
the infamy of the crime which was deemed to inflict the
taint, so that a conviction for the crime was sufficient to have
the effect.
There must, however, to effect a forfeiture, be a legal
judgment of attainder for treason, and this required a legal
trial. Trial could only be in a man's lifetime, and a peer
could only be tried by his peers. Sometimes there was a
semblance of legal trial of a peer before his peers in parlia-
ment (6), and the semblance of a regular procedure, so as
(a) As ia the case of the earl of Carlisle, in the reign of Edward II.,
upon whom the judgment ran thus : " "Whereas our lord the king,
on account of the loyalty he thought he had observed in you, made
you earl, and gave you land to support the estate of an earl, and
you have traitorously gone against him, this court doth adjudge that
you shall be degraded, and lose the title of earl for yourself and your
heirs for ever." (Rym., 999, cited in Lingard, vol. iii., c. 1.) This
was the kind of case in which the penalty of attainder of blood was
inflicted, as if the taint of the treason infected the blood, destroyed
its inheritable quality, and prevented posterity from inheriting.
It did not, indeed, require express words to inflict this penalty the
conviction for treason was sufficient to have that effect, as it was the
crime which inflicted the taint. As in the case of Mortimer, " who
was impeached under Edward III. for treason, the peers declared
the charges true, and, as judges of parliament, condemned him to be
drawn and hanged as a traitor and eueniy of the kingdom." (Lin-
gard, vol. iii., c. 2.) But this only applied to treason.
(i) Thus, in the case of the earl of Lancaster, who, in the reign
of Edward II., was taken in open treason and rebellion. " He was
brought before the king, six earls, and the royal barons ; of his
guilt there could be no doubt ; he was told that it was useless to
speak in his defence, and was condemned to be drawn, hanged, and
beheaded." (Lingard, vol. iii., c. 1.) It appears from the petition
of reversal that there was a record drawn up, headed " Pleas of the
Crown," before the king himself, in the presence of (naming the
peers), and it carefully stated that the earl had been taken in open
rebellion and treason, and that it was adjudged that he, for his said
treason, which was manifest and notorious, should be beheaded, &c.
But it did not state that he had been arraigned or put to answer,
38 FORFEITURE OF HEREDITARY DIGNITIES.
to appear to bring the case within the terms of the Great
Charter. And if it were intended to inflict an attainder
and forfeiture, a record would be drawn up in order to
have the semblance of a legal judgment for treason.
In such cases, where the semblance of legal forms had
been observed, and there were records of what had the
semblance of legal judgments, it was necessary for the
heirs, in order to get rid of them, and avoid a forfeiture of
estates or dignities, to have judgments of reversal (a) ; and
if the proceedings on the face of them were irregular, they
were so reversed if otherwise, they were dealt with either
by parliament or by the king's grace.
nor that it was in parliament. Yet there was a semblance of a
trial before peers in what might have been a parliament. So in the
case of the earl of Kent, executed in the early part of the reign of
Edward III.: he was truly tried before the peers in parliament, and
they adjudged him to suffer the penalty of treason. (Lingard,
vol. iii., c. 2.) The trial, indeed, was in every sense regular, and the
unfortunate earl confessed facts which in law might amount to
treason, he having been deceived and betrayed into the notion that
his brother Edward II. was living.
(a) Thus, in the case of the eaii of Lancaster, as lord Coke says,
" a record was made of it, and the record was reversed in parliament
as erroneous." (Rot. Parl, 4 Edw. III., 13.) The petition stated
that the earl had been unreasonably condemned to death (non re-
sotiablement estoit jugge a la morte) by erroneous proceedings, by
means of which judgment his heirs had been disinherited, of which
a record was in the chancery, which record was read ; and it ap-
peared that there was no statement that the earl had been arraigned
and put to answer, or that it was a legal judgment of the peers.
And for these errors the record was reversed and annulled. (Rot.
Part., ii., 1.) In the case of the earl of Kent, however, as the pro-
ceedings were regular, it is remarkable that though the petition
prayed a reversal of the process as erroneous, there was no judg-
ment of reversal, but only an entry that the king allowed of his
grace that the heir should have the inheritance. (Rot. Parl., ii., 33.)
And it appears afterwards, from a case in the Year Book, that he
sued as heir of the earl. ( Year Book, Edw. III.)
NOT FORFEITED WITHOUT ATTAINDER. 39
Sometimes men's enemies, unable to compass their de-
struction by lawful means, did so by force and violence (a),
by means of which, as sir J. Mackintosh observes, " under
the fair semblance of popular principles and parliamentary
order, crimes of a black and base kind were perpetrated,
and legal forms were made the cloak for the most illegal
and iniquitous violation of justice."
Consequently, when the objects of such illegal proceed-
ings were pursued and seized, and murdered, without legal
trial (as afterwards happened to the earl of Wiltes), it was
considered necessary by their murderers to procure an act
of indemnity (&).
(a) This was remarkably illustrated in the case of the Despensers.
" Lancaster,' 1 says Dr. Lingard, " advanced to London, where he
cantoned his followers. The confederates proceeded to Westminster,
filled the hall with armed men, and ordered articles of accusation
against the Despensers to be read in their absence, and concluding
thus : ' Therefore, we, the peers of the land, earls and barons, in
the presence of our lord the king, do award that the Despensers be
disinherited for ever, and banished never* to return, and that if they
should return they be dealt with as enemies of the kingdom.' The
king and the barons of his party were intimidated by armed men,
and gave their assent ; and the ordinance was duly entered on the
roll." (Lingard, vol. iii., c. 1.) It was clearly illegal, being con-
trary to Magna Charta, as a judicial proceeding the accused not
having been summoned and arraigned nor impeached ; and as an
act of parliament it was null there being no assent of the com-
mons, nor a free assent of the king.
(b) Such act was accordingly, although, as it afterwards appeared,
by force and violence, obtained in the case of the Despensers, and it
ran thus : " That no man for things done by the said great men,
their allies and adherents, in pursuing and destroying (en pursuant
et destruanf) Hugh Le Despenser, the son and father, shall be ap-
pealed, impeached, molested, or grieved in any court, but that of
all such felonies they be acquitted.'' (Stat. of Realm i., c. 85.) And
as such an act had passed it was repealed, and the repeal was
directed to sir Henry Le Scrope, the chief justice of the King's
Bench. The repeal was repealed. (Ibid-, 252.)
40 FORFEITURE OF HEREDITARY DIGNITIES.
In such cases, although it might make little difference to
the victim of political jealousy or personal hatred, whether
forms of law were observed but perverted, or altogether
violated, it made all the difference in the world as to his
heirs, with reference to forfeiture (a), which could only be
incurred by legal attainder or conviction for treason, either
by lawful trial or act of parliament.
The law in that age drew so strong a distinction, indeed,
between the infliction of forfeiture on the party himself
and upon his heirs, that (6) in the case of entailed estates
(a) And it is to be borne in mind that in dealing with the question
of forfeiture, we are dealing with the inheritance, and with the rights
of heirs, and whatever may be said as to the policy of the law of
forfeiture as applied not only to the guilty party but his innocent
heirs, it is impossible to vindicate the application of the legal penalty,
except in cases where there has been a legal trial. It is in this view,
therefore, that the Hon. Charles Yorke, in his Considerations on
the Law of Forfeiture, does vindicate it, and he expressly points
out that it only applies where there has been a legal conviction for
treason or felony.
(6) Littleton, temp. Henry VI., after stating that where a man
is attainted, his blood is corrupted, proceeds to say : " But the issue
in tail as to tenements tailed is not, in such case, barred, because he
is inheritable by power of the statute de donis, which says that
alienation by tenant in tail shall not prejudice the issue ;" and aliena-
tions have actually been construed to include forfeitures by treason,
" and therefore such attainder of the ancestor shall not put him out of
his right." (Littleton's Tenures, a. 747.) This law was so far altered
by statute 26 Hen. VIII., c. 13, that the offender incurs forfeiture of
any estate tail he hath, i.e., at the time of his attainder. And so,
lord Coke says, " If tenant in tail in possession, or he that hath a
right of entry, be attainted for high treason, the estate tail is barred,
and the land is forfeited to the king," (1 Inst., 372,) and so it was
settled law in his time that neither the act, nor the attainder of
issue in tail not in possession created a forfeiture of a dignity.
(Lord Lumley's case, 3 Coke's Reports.) So that if the earldom of
Wiltes was legally entailed on heirs male, no intermediate attainder
would create forfeiture.
NOT FORFEITED WITHOUT ATTAINDER, 41
it did not allow of forfeiture of the heirs' interest by at-
tainder, and though that law was afterwards altered by
statute, it was only as to subsequent forfeitures.
It was understood, in those times, that if estates were
entailed, they could not be forfeited by the attainder of the
holder, and in the case of estates this could be shown by
deeds or other documents (a) ; but it was most likely
otherwise of ancient dignities, of which the original grant
might be lost, or which might have been granted without
charter, merely by investiture, and in such a case restitu-
tion by parliament would be necessary.
It is doubtful, therefore, whether there could be any for-
feiture of the earldom, even by an attainder. But it is, at all
events, manifest that there could be no forfeiture without
an attainder : that is, a legal attainder, either by lawful
judgment for treason in the earl's lifetime, or by act of
attainder for treason after his death.
In every instance in that age where the proceeding was
irregular, there was a confirmation by act of parliament (6),
and either the proceeding confirmed, or the act itself ex-
pressly stated a charge of treason.
(a) Thus in the reign of Richard II., in the case of the earldom of
Oxford, it was recited " that it had been shown to the king that lands
and tenements which had been forfeited to the king by the judg-
ment against the earl in parliament had been entailed, and by
force of the entail ought to descend to Aubrey De Vere, as uncle and
heir to the late earl ; and he therefore, by assent of parliament,
granted to Aubrey leases of the lands. And though the said
Aubrey had nothing to show in special that the name and estate of
earl of Oxford were entailed on him, nevertheless the king, having
regard to his services, and that his ancestors had been earls
of Oxford in ancient time, and willing that the estate and name of
earl of Oxford should be continued, restored the earldom to him and
his heirs male."
(6) As in the case of the appeal against the earls of Oxford and
42 FORFEITURE OF HEREDITARY DIGNITIES.
Thus this would be distinctly recited and enacted, and
then it would be carefully declared that this act was passed
Suffolk for treason, which is stated thus upon the rolls: "At a
parliament held in presence of the king came the duke of Gloucester,
the earl of Derby, the earl of Arundel, the earl of "Warwick, and
the earl-marshal, and showed that they, before the duke of York,
Monsieur Richard Le Scrope (lord Scrope of JBolton) and others, then
commissioners of the king ordained in the last parliament, appealed
(i. e., accused) Robert De Vere, Michael de la Pole, &c., of high treason
against the king and his realm, and that was certified by the said
commissioners to the king. . . . And now they come and appeal the
said De Vere, &c., of high treason ;" and then it was stated that
proclamation had been made to the accused to appear, and that the
lords appellants were ready to pursue their " appeal, and declared
their articles of accusation. Then the accused were demanded, and
their default recorded, and they were adjudged by the lords to be
convicted of high treason." (Rot. Parl., iii., 237.) That is to say,
there was a distinct judgment of treason given in parliament.
The proceeding, byway of appeal, however, being illegal, (for which
reason appeals in parliament were abolished in I Hen. IV., c. 1,) it was
considered necessary by the lords appellants the duke of Gloucester
and earl of Derby, &c. to obtain an act of attainder against them,
and such act was accordingly obtained, and it was in these terms :
" That the said duke, &c., did assemble, forcibly, and rode and
pursued (et pursuerenf) until they had disturbed the power gathered
by the said traitors and their adherents, which said traitors be
attainted in this present parliament of the treason aforesaid. And
that all that was done in the assemblies, ridings, appeals, and
pursuits aforesaid be approved and affirmed ; and that the said duke
be not impeached," &c. (Stat. of Realm, ii., 48.) This, be it
observed, was formally enacted in the usual and proper terms, and
it is important to observe the terms of these enactments with
reference to the subsequent case of the earl of Wiltes : " We, at the
request of the commons, and with the assent of all the barons, <fcc.,
and all others of this parliament, do grant the request of the
commons after the form of their petition." In their anxiety to be safe,
the lords appellants obtained an indemnity for their proceedings,
and also a confirmation of them : " Also of the assent aforesaid we
will and grant that they be not impeached nor molested, &c." And
then follows this confirmation : " That the appeals, pursuits, accuse-
NOT FORFEITED WITHOUT ATTAINDER. 43
because the proceeding confirmed (a), although irregular
and illegal, was profitable for the realm that is, politically
expedient,
It was so well understood in that age, that if there had
not been a lawful judgment for treason obtained against a
person in his lifetime, he could only be proceeded against
criminally by act of parliament, and that the only mode
of inflicting a forfeiture upon his heirs was by act of at-
tainder for treason, that at the very time in question (6),
ments, judgments, and executions be approved, affirmed, and estab-
lished, as duly made for the weal and profit of the king and the
realm" that is, appeals and judgments for treason.
(a) " That this approval, affirmance, and establishment of the said
appeals, pursuits, judgments, and executions aforesaid be not drawn
in example in time to come, but as much as is done touching the said
matters shall stand for the time that is past, seeing they were so
profitable to the king and realm, and made of great necessity; and
that no justice have power to give judgment of other cases of treason,
nor in any other manner, than they had before the beginning of this
parliament." (Slot. Realm, 49.)
(b) This was the case of the duke of Gloucester, thus recorded on
the rolls. In this parliament the earls of Rutland and Kent, the
earl-marshal, Mowbray the earl of Nottingham, and other peers,
(among whom was lord Despenser, along with sir William Le
Scrope, the future earl of Wilteshire,) exhibited a bill of appeal
against the duke of Gloucester and the earls of Warwick and
Arundel, and sir Thomas Mortimer, for high treason, grounded on
their having extorted the commission already entered illegal. And
the appeal now came on to be heard. The earl of Arundel appeared
and pleaded his pardon ; but it was overruled by the lords, and
they proceeded to give judgment against him : " Upon which the
duke of Lancaster, and all the lords, with assent of the king,
awarded that the earl was guilty, and convicted of all the points of
which he was appealed. And they adjudged him a traitor to the
king, and sentenced him to be hung, &c., and to forfeit all his lands
and tenements." (Rot. Part., iii., 377.) Then the duke of Gloucester
was called, but upon the return of the earl-marshal it appeared
that he was dead that is, he had died pending the proceeding,
44 FORFEITURE OF HEREDITARY DIGNITIES.
proceedings for treason having been commenced against a
nobleman, whose death occurred before their conclusion, it
was deemed necessary to turn the proceedings into an act
of attainder.
And it will be observed that it was well known in that
age that it was the only proceeding possible against a man
having been, as was believed, slain in prison. Upon this, it is
most important to observe, the proceeding was abandoned as a
judicial proceeding, and turned into a proceeding by way of act of
attainder. The lords appellants indeed prayed judgment upon their
appeal : " And upon this the appellants prayed that the duke should
be adjudged a traitor ; and all his lands and tenements, notwith-
standing his death, should be forfeited :" but it is to be observed
that judgment was not given upon the appeal. It was evidently
considered that it would be too gross a violation of all legal principle,
and all idea of justice, to continue a judicial proceeding when the
party accused was no longer alive to answer. Nevertheless it was
resolved not to abandon the proceeding altogether, and accordingly
it was turned into a proceeding by act : " Upon which the commons
of the parliament prayed the king and the lords of parliament, that
as it was notoriously known to the king, and all the estates of the
present parliament, and all the realm, that the duke had made war
against the king, &c., that the duke should be adjudged a traitor
and that his lands and tenements should be forfeited. And upon
that the lords, with the assent of the king, awarded the said duke
guilty of levying war, and a traitor, and that all his lands, tene-
ments, and hereditaments should be forfeited." (Rot. Parl, iii., 378.)
This is alluded to by lord Coke as an act of attainder, vide post.
That it was an act of attainder is clear, for it was an enactment by
the king and the two estates of the realm. So in the case of sir E.
Plesyngton, "It was shown to the king in parliament that Plesyngton,
who was dead, had been aiding and abetting Gloucester in his
treason, and it was therefore prayed to the king that he would
ordain the same judgment against sir Robert as against the duke,
notwithstanding his death. And upon that the king, by the assent
of the lords and the knights of counties, by the authority of the said
parliament, awarded the said sir Robert a traitor, and that his lands
and tenements should be forfeited." (Eot. Part., iii., 387.) This was
clearly an act of attainder, and is so regarded by lord Coke.
(2 Inst.)
NOT FORFEITED WITHOUT ATTAINDER. 45
who was dead, and that it required a distinct affirmation
by parliament of the crime of treason. Whether it was,
as in the case of Gloucester, by any confirmation of some
prior judgment or confession ; or, as in the case of Plesyng-
ton, by way of original affirmation of guilt, it was equally
necessary that there should be a distinct affirmation by par-
liament of the crime of treason, or of some prior judgment
for treason, re-affirmed by parliament as a judgment for
treason. It is to be observed also that, in the case of a
party not in custody (a), there was not any judicial or
(a) As in the case of sir Thomas Mortimer, who was charged, but
it appeared that he was not in custody and could not be taken, and
it seems to have been considered that this put a stop to the appeal.
" Upon that the commons in the said parliament, affirming the
appeal to be good and lawful, accused and impeached the said Mor-
timer of the treasons comprised in the appeal ; and prayed the king
that, as it was notorious that he could not be taken, he might be
convicted and adjudged a traitor, and all his lands and tenements
forfeited ; upon which the lords, with the assent of the king and the
commons, awarded that the said Mortimer should be proclaimed,
and that if he did not appear within three mouths he should be
adjudged a traitor, and convicted and attainted of all the treasons
of which he was appealed, and that all his lands and tenements
should be forfeited." And upon the return of the proclamations and
default, the commons proceeded to pray judgment against him :
" The commons showed that they had impeached the said Mor-
timer, &c., upon which the lords, with William Le Scrope, earl of
Wilteshire, as procurator for the clergy, with the assent of the king,
awarded that the judgment should hold and take effect." (Rot. ParL,
iii., 38.) That is, the judgment provided conditionally by the act
of attainder. The proceeding is curious, as a kind of confirmation of
their proceedings, by appeal, by impeachment, and act of attainder,
probably without precedent. Either the proceeding by act or by
impeachment would be available in the case of the absence of the
accused, although no judgment, (except outlawry) could be given
on any criminal judicial proceeding in his absence. But in the case
of the death of the accused no proceeding was considered available
but act of attainder. This course had been therefore taken in the
46 FORFEITURE OF HEREDITARY DIGNITIES.
legal proceeding of a criminal character against a person
who is absent, except the procedure to outlawry. In this
case, therefore, as in the case of a party who was dead, the
proceeding was turned into an act of attainder.
The common law of the land on the subject of forfeiture
by attainder (a), viz., that on an attainder for treason, all
inheritances were forfeited and destroyed, was illustrated
by numerous cases in the reign of Edward IV., and the
subsequent reigns. That is to say, such forfeiture was an
case of the duke of Gloucester, who was dead ; and it was also
taken in another case the case of Plesyngton.
(a) Thus, for instance, in a petition to parliament in the 12 & 13
Ed\v. IV., stating, " That before a commission of oyer and terminer,
one Brown was convicted for treason, and of the same treason was
atteynted (i.e., convicted), by force of which atteyndre, by the
common law of the realm, all lands, tenements, inheritances, and
possessions, which were his at the time of the said treason, were
forfeited, and all other persons which should have been his heirs by
common law or custom, if the said atteyndre had not been, by
occasion of the said atteyndre were disinherited and disabled for
ever to claim, any lands, tenements, or inheritances as heirs to the
said Brown, or to any of his ancestors." (Rot. Parl., vi., 19.) In
the case of the duke of Clarence, the terms of an act of attainder
against a peer were illustrated, and they ran thus : " The king, by
the advice and assent of his lords, and by the commons in this
parliament assembled, and by the authority of the same, enact and
ordain that the said duke be convict and attaint of high treason,
and that he forfeit from him and his heirs for ever, the honour,
estate, and dignity of duke." (Rot. Parl., vi., 192.) And the case of
the duke of Buckingham in the next reign tbat of Richard III.
was an instance of an attainder by act of parliament of a nobleman
already executed : " It is enacted, by the authority of parliament,
that the said Henry, late duke, and others, as Thomas, late marquis
of Dorset, for their treasons before specified, stand and be convicted
of high treason, and forfeit to the king all lordships, baronies, lands,
tenements, and hereditaments." (Rot. Parl., vi., 247.) In all these
cases there arc always words of enactment, and cf conviction and
attaint of high treason.
NO FORFEITURE WITHOUT ATTAINDER. 47
incident of conviction for treason, and was a perpetual dis-
ability to the heirs of the person convicted.
The law was the same whether the conviction or attaint
was by legal trial or by act of parliament (a) the phrase
" attainder " meaning the result of a conviction or a lawful
equivalent to conviction, as a parliamentary enactment to
the same effect was deemed to be.
So strong is the doctrine of law that a peer cannot be
deprived of his dignity, except either by a legal conviction
or by act of parliament, that in the only case (6) that has
(a) Thus on the same roll there was a petition by one of those
who were attainted by act of parliament in the 1st of the reign.
It stated, "that in the parliament held in that year he was convicted
and attainted of high treason, wherefore it was by authority of the
same parliament ordeyned that he should forfeit all lands, tene-
ments, hereditaments, and possessions as in the said act of conviction
and attainder is more expressly conteyned." (Rot. Parl., vi., 20.)
There it will be observed that the phrases "conviction" and "at-
tainder" are used as synonymous, and so they are all through the
law books. There were numerous other similar petitions on the
roll.
(6) The case of Nevill, duke of "Bedford, who had fallen into poverty
and was deprived of his dukedom by special act of parliament
17 Edw. IV. (Rot. Parl, vol. vi., 173 ; 4 Inst., 355.) In lord
Shrewsbury's case the judges to whom it was referred, after noticing
the above act, said, that although Nevill had not any possessions to
support his dignity, yet it could not be taken away from him but
by act of parliament. (12 Coke's Reports, 107.) That a dignity
is forfeited or lost by the attainder for high treason of the person
possessed of it, applies only to an attainder in due course of law, or
act of parliament, but a conviction for treason against the sovereign
was recognised as clear law in the case of the earldom of Westmore-
land, in the reign of James I. In that case, Charles Neville, earl of
Westmoreland, was attainted of high treason by outlawry and by
act of parliament, and died without issue, and the heir of the first
earl claimed. The case, by command of the king, was submitted to
the judges, who held that the earldom was forfeited. " For an earl,"
they said, "has an office of great trust and confidence; and when
48 FORFEITURE OF HEREDITARY DIGNITIES.
ever occurred (until the present,) in which it was attempted
to deprive a peer of his dignity without a legal conviction
for crime, it was by special act of parliament ; and the
judges afterwards held that but for the Act the deprivation
would not have been effective.
That by an act of parliament really so passed a person
might be attainted, although absent, or dead, and actually
innocent (a), was not doubted in that age, nor has it ever
been doubted in any subsequent age.
But the iniquity of condemning a man without affording
him an opportunity of being heard in his defence, is so
obvious and so great (6), that it would be indecent to assume
such a person, against the duty and end of his dignity, takes counsel
and arms against the king to destroy him, and is thereof attainted
in due course of law, by that he had forfeited his dignity " (Neville's
Case, 7 Coke's Reports, 33) that is to say, by a conviction for
treason.
(a) Thus, lord Coke says, "It was with the proceeding in parlia-
ment against sir John Mortimer, (2 Hen. I.,) who was indicted of
high treason for words (to the effect that the earl of March was
right heir to the crown, &c., which indictment being insufficient
in law, as by the same appeareth, was confirmed by an authority of
parliament, and he being brought into parliament without any
arraignment or answer, judgment in parliament was given against
him, as by the record of parliament appeareth." (4 Inst., 38). All
that appears on the printed roll is, that " de avisamento dominorum
et ad supplicationem communitatis in praesenti parliamento exist-
entium, redditum fuit quoddam judicium versus Mortimer cujus
quidem judicii recordum patet in quadam cedula edita et prsesenti
rotulo consulta." (Rot Parl., iv., 202.) No doubt lord Coke had seen
the full record, but enough appears on the roll as printed to con-
firm his statement, that there was an act of attainder by parlia-
ment.
(6) " Albeit," says lord Coke, " If I find an attainder by parlia-
ment, of high treason of a subject never called to answer, though
I question not the power of parliament, for, without question
the attainder standeth of force in law ; yet this I say of the man-,
ner of the proceeding: Auferat oblivio si potest ; si non ittcunque
NOT FORFEITED WITHOUT ATTAINDER. 49
it in any case in which it did not appear most manifest that
the person convicted was, beyond all doubt, guilty of treason.
These considerations would have all the greater force
when applied to an irregular execution taking place in an
age of turbulence and violence, an age of civil war, in which
the partizans of each faction, as they gained the ascen-
dency, murdered their opponents without any regard for
law or justice.
In the case of the earl of Wiltes, therefore, the earldom
could not be forfeited, unless there was either a legal judg-
ment against him, in his lifetime, for treason, (or an irre-
gular judgment for treason, in his lifetime, confirmed by an
act of parliament,) or, after his death, an act of attainder
for treason (a). There could not possibly be a legal forfei-
ture, if there was simply an illegal execution of him (b), by a
silentium tegat, for the more high and absolute the jurisdiction of
the court is, the more just and honourable it ought to be in the pro-
ceeding, and to give example of justice to inferior courts. (2 Inst.,
38.) Thus lord Coke speaks of it as something so monstrous, that it
ought rather, if clear, to be concealed than disclosed, as being to the
shame and scandal of parliament, and certainly not to be presumed
or inferred.
(a) Thus, speaking of the execution of sir John Mortimer, exe-
cuted in the beginning of the reign of Henry IV., without any trial
or evidence, and merely upon an indictment against him, Hume
observes that " the people had at this time a very feeble sense of
law and constitution, and power was very imperfectly restrained
within these limits. "When the proceedings of a parliament were so
irregular, it is easy to imagine that those of a king would be more
so." (Hist. Eng., c. 21.) And it may be added, those of an usurper
peculiarly so. The proceedings of such an age are surely not to be
helped and eked out and extended by inference and implication,
to the disherison of distant and innocent heirs, but are rather to be
scrutinized somewhat strictly by the light of those rules of law
which were then so often disregarded, and which in substance are
only dictates of justice and reason.
(6) What took place is thus described by the chroniclers. Wai-
50 FORFEITURE OF HEREDITARY DIGNITIES.
subject who was then a rebel, prosecuting a treasonable
design upon the crown, which he afterwards usurped, and
singham says, " The duke of York, hearing that the duke of Lan-
caster had set sail, and was prepared to invade the kingdom, having
called to council the chancellor, and William Le Scrope, earl of Wiltes,
the treasurer of the realm, and the knights of the king's council,
John Busby, William Bagot, Henry Grene, and John Russell,
asked them what was to be done in this matter. They advised him
to quit London .... but the aforesaid wicked councillors, and the
treasurer, William Le Scrope, fled in haste to the castle of Bristol.
And the duke of Lancaster, having landed, these came to meet him,
&c., and they came with speed to Bristol, and laid siege to the
castle, where, at length, the treasurer, William Le Scrope, John
Busby, and Henry Grene, were taken prisoners, and they were
forthwith, on the morrow, beheaded, at the outcry of the populace."
William of Worcester says more briefly, " the duke rode to Bristol,
and there beheaded William Le Scrope, earl of Wiltes, treasurer of
England, and Henry Grene, and John Busby, knights." Graftou
says, " the duke came to Bristol, and there, without resistance, took
sir William Le Scrope, earl of Wiltes, high treasurer of England, sir
John Busby, and sir Henry Grene, who were forthwith adjudged
and beheaded " that is, adjudged to be beheaded. That the act
was done in furtherance of the design upon the throne is manifest,
though the design was not avowed, but, on the contrary, dis-
claimed, which shows that the act was not done even by a claimant
of the throne. In order to acquire popular support, Henry solemnly
denied that he had come for any other purpose than to recover his
inheritance, but having thus raised a large army, he artfully made
use of the execution of the earl to strike terror into all who might
be disposed to resist his real designs, which he then proceeded, step
by step, to follow out. " Henry," says the chronicler, " sent the
heads of the earl and the councillors in a basket to London, with this
letter : 'I, Henry of Lancaster, duke of Hereford and earl of
Derby, commend myself to all the people of London, high and low.
My good friends, I send you my salutation and acquaint you that I
have come over to take my rightful inheritance. I beg of you to
let me know if you will be on my side or not, and I care not which,
for I have people enough to fight all the world for one day. But
take in good part the present 1 have sent you" The ghastly present
and the grim warning had their effect, and the Londoners at once
adopted his side.
NOT FORFEITED WITHOUT ATTAINDER, 51
whose act, in executing him, therefore, was clearly not only
illegal, but treasonable.
It is impossible that a crime could either confer or take
away a legal right that it should confer upon the perpe-
trator a right of forfeiture, or inflict upon the victim the
penalty of forfeiture.
It is to be borne in mind that at that time the law of treason
was declared and contained in the statutes of Edward III. and
Richard II. (a), by which it was treason not only to compass
(a) The statute 21 Rich. II. c. 3. At previous parliaments the law of
treason was declared by several statutes. The 25 Edw. III. declared
the law thus : " That if any one levy war against the king in or be
adhering to his enemies, giving them comfort or aid in his realm,
and thereof be attainted of overt act." By the statute 28 Edw. III.,
c. 3, it was also provided that none shall be taken unless it be by
presentment or indictment at the common law, nor shall be out of
his franchise or freehold unless he be put to answer and forejudged
in due course of law that is, in the case of a commoner, trial by jury ;
in the case of a peer, trial by his peers in parliament. Then by the
stat. Rich. II., " It is ordained and established (by the king) with the
assent and accord of the peers and commons, &c., that any one
who shall compass and purpose the death of the king, or to de-
pose him, or who shall raise the people and march against
him to make war within his realm, and who shall thereof be duly
attainted in parliament, shall be adjudged as a traitor of (i.e., guilty
of) high treason, and forfeit for himself and his heirs all his lands,
tenements, and inheritances whatsoever." (Stat. of Realm, 21 Rich. II.,
c. 3.) Even, therefore, had Henry been lawful sovereign, and had
the earl of Wiltes levied war against him, and been slain, as he
might lawfully have been if taken in war against him that would
not have been a sufficient ground of forfeiture, because not a legal
judgment. But as Henry was a rebel and a traitor in arms against
his sovereign, Henry's execution of the earl could not have been
otherwise than illegal, even had the earl been taken in arms against
him. In the reign of Henry VII., parliament enacted and declared
that the subjects of England are bound by the duty of their allegi-
ance to serve their sovereign in defence of him and his realm
against every rebellion which may be raised against him, and enacted
x 2
2 FORFEITURE OF HEREDITARY DIGNITIES.
the death of the king, but to depose him, or to train people
to march against the king, or to make war within the realm,
and if any should be duly attainted of this in parliament, he
should be adjudged a traitor, and forfeit for himself and his
heirs all inheritance. From which it is manifest that it would
be the party thus levying war against the king who would
be guilty of treason ] and it is also manifest that no one
could be liable to forfeiture for treason by reason of at-
tainder, unless he was duly attainted of treason in parlia-
ment i.e., unless some act of parliament declared him
guilty of treason, or confirmed some lawful, legal judgment
against him for treason.
In the absence of any charge, or any possibility of a charge
of treason, or of any lawful trial for treason, there could,
of course, have been no legal judgment for treason ; and so
no forfeiture by reason of judgment. And, as after a man's
death there could be no judicial proceedings against him
of a criminal nature, there could then be no forfeiture,
except by act of attainder that is, an act of parliament
distinctly attainting the earl for treason. A mere confir-
mation of a judgment which was, in fact, no judg-
ment at all, but only a sentence of death, and certainly
was not, nor could possibly have been, a judgment for
that no person attending the king in his wars shall, for such service,
be convicted of any offence a clear declaration, on the authority of
parliament, that the officers of the crown may, to repress rebellion,
levy war upon rebels, and that for homicides committed in such
suppression, they shall not be amenable to criminal law." (Foster's
Crown Law, 390.) The earl, therefore, would have had a right to
levy war against Henry, but Henry had no right to levy war
against the earl, the minister of his sovereign, so that the execution
of the earl in any possible view was illegal, and so far as it was
prompted by private malice and revenge, it was an act of murder ;
while, as an act in furtherance of a treasonable design, it was itself
an act of treason.
NOT FORFEITED WITHOUT ATTAINDER. 53
treason could not be sufficient : and still less a mere act of
indemnity or amnesty ; and nothing could effect a legal
forfeiture hut an act of attainder.
Even to legalize the execution of the earl, or the seizure
of his property (a), an act of parliament would be neces-
sary, by way of indemnity, though if such seizure had taken
place, an act of indemnity would be all that was necessary.
But to bar the heirs of an incorporeal hereditament, such
as an inheritable dignity, a legal forfeiture would be neces-
sary, which could only be effected by an act of attainder.
If there had been such an act and an act never reversed
or repealed many important questions would have arisen
as to the validity of such an act, under the circumstances
of the case that is, as to the validity of an act of attainder
obtained by an usurper from a pretended parliament, not
lawfully summoned (6), and before he had even attained
(a) It should here be stated, that after the execution of the earl,
and before Henry's assumption of the crown, and while he had the
king in his custody, he made grants of the late earl's lands and goods
under the name of the king, using his name and seal for the purpose,
as he had used them for the issuing of writs for the summoning of a
new parliament. These grants were issued in the name of Richard,
within a few weeks of the earl's execution, and while the king was
a captive. Of course they were really made by Henry, for it is idle
to imagine that the king would have so eagerly and illegally granted
away the lands of his own tried friend and minister. Elsynge
expressly points out that the writs to summon parliament, issued
after the king's captivity, were ante dated, for the very reason that
they were really issued without authority. This, of course, was
entirely illegal, for as the earl had been illegally executed without
the pretence, or the possibility of a pretence, of any legal charge
or lawful trial, there could be nothing to affect the legal rights
which devolved upon his heirs, and a murder could hardly create a
forfeiture.
(6) Every step in the proceedings of Henry was marked by the
most flagrant illegality. He had the king in close custody ; and he
54 FORFEITURE OF HEREDITARY DIGNITIES.
the status or position of a sovereign de facto certainly
long before he attained (if he ever did) the status of a
sovereign de jure.
issued, in his name, the writs to convene a parliament. Elsynge
points out that, conscious that they would be deemed invalid if
issued by him or by the king under duress, he ante dated them in
order to make it appear that they had been really issued by Richard
before he was a prisoner. In the meantime he had, as the historian
truly says, "extorted" a resignation from Richard; and then, in
like manner, conscious of the utter illegality and nullity of the
enforced resignation, he proceeded to a pretence of " deposition" by
a pretended parliament not legally summoned, and which, in reality,
was only an assembly of his creatures ; most of the peers were
absent. After the cruel execution of the earl of Wiltes, no one
durst appear in support of the king ; and Henry had assembled a
large body of adherents, under the pretence that he only came to
recover his inheritance, and had then proceeded to a " deposition,"
not only without the least indication of a claim to the crown on his
own part, but after solemnly swearing that he had no such design.
In consequence, when, all of a sudden, upon the pretended deposition
of Richard, Henry "challenged" the crown again a pretence of
title which all historians describe as " ridiculous" every one was
taken by surprise, and no one was prepared to resist him. The rightful
heir was the earl of March, to whom, it soon appeared, the peers
and the people were attached, and in the course of a month they
were in arms in support of his title that is, the greater portion of
the very peers who were present at this pretended parliament for the
deposition of Richard, and who had by fraud been tricked and sur-
prised into a recognition of Henry, retracted that recognition as soon
as they recovered their freedom, and began to wage war in defence
of the rightful sovereign. And although that effort at resistance
was suppressed, others took place, and Henry had to fight for the
throne for some years ; nor was the crown really conquered until
the suppression of the resistance urged by the most powerful of the
nobility some three or four years afterwards. It could not have
been then that Henry was really de facto sovereign, nor did he
venture to ask for a parliamentary settlement of his title until some
years later. It was not until then, at all events, that he attained,
if he ever did attain, the position of a sovereign dejure. And, in-
deed, lord Hale, who entered largely into the question, appears to
NOT FORFEITED WITHOUT ATTAINDER, 55
It is, however, unnecessary to enter into these questions,
if, even assuming a valid act of a lawful parliament, it was
not an act of attainder, which alone could effect a forfeiture
and destroy the title of the heirs to an inheritable dignity,
but only an act of indemnity, which would be all that was
practically necessary, in the case of a person already exe-
cuted, and whose property had already been seized, and
would be all that, in the case of a recent and even incom-
plete usurpation of the crown, was prudent or practically
possible.
For the charge of treason would, of course, mean treason
have been of opinion that Henry IV. never was anything more than
an usurper, though it is possible that in this he forgot the parlia-
mentary settlement, which took place in the 7 & 8 Henry IV. It
is, however, remarkable that Henry never ventured upon a regular
trial for treason, which would have tested the legality of his title.
Lord Hale appears to have been of opinion that there could be no
conquest " until after a continuance for a long time of peaceable pos-
session of the throne, and of peaceable submission to the occupant,
and a total destruction of the opposite party," which, in the case of
Henry, most undoubtedly had not taken place until the final sup-
pression of the resistance of the great nobles who were in arms
against him. And he adds : " All that is intended of a conquest by
a foreign prince or state, and not an usurpation by a subject,
either upon his prince or fellow subjects ; for several ages
and descents do not purge the unlawfulness of such an usur-
pation.'-' (Hole's Hist, of the Common Law, c. v.) And he applied
this afterwards. At the time, then, that Henry summoned his first
parliament, after gaining by a trick and a surprise an uncertain and
disputed and disturbed possession of the crown, he was not de facto
sovereign certainly not de jure ; and the pretended parliament
he assembled, was not, for a reason pointed out by all historians, a
real or lawful pai'liament, because the commons were not returned
or elected, but those who had already been returned, and who, no
doubt, were known to be the usurper's creatures, were ordered to sit
again. This, it is obvious, was no real parliament, and it was at this
pretended parliament the only proceedings took place as to the
earldom of Wiltes.
56 FORFEITURE OF HEREDITARY DIGNITIES.
against the rightful sovereign (), and it would have been
equally dangerous and absurd to have charged the crime
of treason against a minister of a rightful king for ad-
hering to his sovereign.
Nothing, therefore, could have been more injudicious or
dangerous than for an usurper, under such circumstances, to
have attempted an attainder for treason against an ad-
herent of the late king, before his own assumption of the
crown. It would be far safer to rest the execution rather
upon the ground of conquest (&), which, if odious, was, at all
events, less dangerous, and could be restricted, as it was
carefully restricted, to the particular case.
In setting up the right of conquest to that limited extent,
he was sure to have the sanction of parliament, because to
that extent it could not be disputed without totally im-
peaching his conduct, and contesting his claim to the throne,
which some, at that time, were prepared to do ; and the
right of conquest on the ground of political expediency
(a) It has been absurdly supposed that it was held by the courts
of law, in the reign of Edward IV., that there could be treason
against one who was not a rightful sovereign. This is supposed to
have been held in the case of lord Grey ; but, on the contrary, it
is distinctly stated in that case that he had held a castle against the
king that is Edward IV. and was taken in rebellion against him ;
though it is said that the reason for his degradation from knight-
hood was his doubleness, i.e., treachery to both kings. (Year Book,
4 Edw. IV., fol. 20.) It has been hastily su}posed that this obser-
vation applied to the treason for which he was executed.
(V) Henry, accordingly, had said, " It is not my will that any man
think that by way of conquest I would disherit any man of his
heritage franchise, or other rights that he ought to have, or put him
out of that he has by the good laws of the realm, except those
persons that have been against the good purpose and the common
profit of the realm." (Rot. Part. iii. 423.) That is to say, the earl
of Wiltes and the others, who had recently been slain.
NATURE OF PROCEEDINGS IN PARLIAMENT. 57
would suffice to obtain an indemnity, which was all that
was practically necessary ().
In considering what took place in parliament in such
a case, it would be necessary to distinguish between any
mere irregular proceeding, such as in those troubled times
might often occur (6), and any actual enactment, or act of
parliament.
() The earl had left no issue, and his next heirs were lord
Scrope's sons, who were not likely to claim an earldom the estates
of the earldom being gone. An earldom in those days was a great
burden without a great estate, for which reason the late earl had
grants of estates for its support. Those estates were confiscated, and
when an act of indemnity was passed, the earldom would practically
not be claimable.
(6) Such a proceeding had occurred just before what took place
with regard to the earl of Wiltes, and is entered upon the roll
not the statute rolls, or the rolls of parliament, recording pro-
ceedings taken in parliament as a parliament, but proceedings de-
scribed and entered under a separate head as pleas of the crown
before the king in parliament ; a kind of proceeding which would be
applicable to the trial of peers that is, peel's who were living but
could not be applicable to a peer who was dead. The proceedings re-
lated to the earls of Gloucester, Huntingdon, and other peers, who had
taken part in certain proceedings under Eichard. The chief justice,
in pronouncing judgment, said : " Upon which the king and his
lords thought that this appeal, and the matter contained thereiu,
was so great and high, and so much mischief fell thereof, and one
person dead and one in prison, forfeitures of heritages and disherison,
and high estates taken because of these forfeitures ; in great oppres-
sion and charge of the common people. And all bygone and pro-
ceeded out of the course of the common law, so that by the course of
the common law it might not well be redressed nor punished, but by
the king and his lords in this high court of parliament. Where-
fore all the lords thought that there should be such judgment given
in this case upon the lords appellants, as might be safety and
security to the king, and with mercy and grace of the king." And
then came the judgment upon the lords appellants : "Upon which
the lords in this parliament, by assent of the king, adjudge and de-
clare that the dukes of Arundel, Exeter, &c., lose and forego from
58 FORFEITURE OF HEREDITARY DIGNITIES.
There might, and probably would, in such a case, be some
irregular proceeding (a) as irregular as any proceeding
them and their heirs the names that they now have, as dukes, and
the earl of Gloucester, the name of earl, and all the lands they had
of them that were attainted." (Rot. Parl. iii. 382.) This, probably,
would have been, in law, utterly null and void, as a judgment for
them was no judicial proceeding against these lords upon any legal
charge, and it was not an act of parliament, for the forms of an
act do not appear to have been pursued. But, at all events, there
was here some distinct statement, be it judgment, or be it enact-
ment, of some distinct charge and offence, and a distinct declaration,
by way of judgment or enactment, that there should be a forfeiture
of dignities to which it may be added that, as the lords accused were
living and present, and liable to be tried by their peers, there was
jurisdiction, and some colour of legality or validity. Very different,
and quite the reverse of all this, was what took place in the case of
the earl of Wiltes, in which there was no statement of charge or
offence, and no affirmation of any distinct judgment for any offence,
and no enactment of anything but indemnity. And as the earl was
dead, he could only be affected by enactment.
(a) What took place is thus recorded on the roll, just after the
irregular proceeding already referred to : " The commons prayed
the king that the pursuit, arrest, and judgment, and whatever had
been done (et quant que fuist fait) against William Le Scrope,
chevalier, might be affirmed in this parliament, and held for good.''
That is, as the context shows, good, not in the sense of being legal,
but in the sense of being profitable for the public good, as it might
have been though utterly illegal, and so a fit subject for a bill
of indemnity. " Monsieur Richard Le Scrope rose, and with great
humility and weeping, (ove grande humilite et chiere plorant,)
prayed the king that nothing done in this parliament might turn to
the disherison of the said Richard, or his children, upon which it
was demanded of him whether what had been done was good, or
not ?" That is, good, as having been for the public good. It is evi-
dent that it was in that sense the question was understood by
lord Scrope, and in that sense he answered it. In any other sense
it would have been idle ; for if the execution had been legal, what
could it matter what lord Scrope thought of it ? But it would be
important to obtain his admission of the expediency of the act,
with a view to an indemnity, and upon that ground the king
proceeds to put it. It will be observed, that in this record,
NATURE OF PROCEEDINGS IN PARLIAMENT. 5.0
naturally would be, in regard to the case of a peer who had
been murdered by an usurper, and of which the natural
both the earl and lord Scrope of Bolton are described merely by
their names and knighthood, and so on the rolls of parliament,
1 Hen. IV., in the list of peers, " monsieur Richard Le Scrope" comes
before le sieur De Bergavenny, le baron De Greystock, and several
other peel's. And in a subsequent entry he appears in a list of
lords present, but is only called " Richard Scrope," all the other
barons being called "sieur." So on the rolls of the 6 Hen. IV.
appears a petition from lord Scrope of Masham, who is described as
Stephen Le Scrope, of Masham, chevalier ; so on the roll of the 7& 8
Hen. IV. ; yet there is no doubt he vras a peer. He was summoned to
parliament until his death, and so was his son after him, until, in
2 Hen. V., he was attainted for treason. It is manifest that there
was no great care taken in the designation of peers by patent ; and
Mr. Hallam observes upon the constant irregularities on the rolls
in this respect : " And upon this the king rehearsed (or declared)
how, at the time he claimed the realm, &c., it was not his will that
any should think that by way of conquest he would wish to deprive
any one of his inheritance, except those who were against the good
purpose and common profit of the realm, which he held only the
said William, &c., to have been, and guilty of all the evil which had
come upon the realm." Here there is the only appearance of any-
thing like a charge, and it amounts only to a vague charge of mal-
administration or misgovernment. And what follows 1 What is
the result ? " And upon that it was demanded of all the lords their
opinion of the pursuit, arrest, and judgment aforesaid, and what had
been done as aforesaid. And the lords of one accord said that the
pursuit, arrest, judgment, and what had been done was good; and
they affirmed it as good and profitable." That is, expedient for the
public welfare, and so a proper subject for an act of indemnity ; that
is all the lords said, and all the commons had asked, or could be
understood to assent to. The king, indeed, added an opinion of his
own. It is to be observed that, throughout, the king confined him-
self to assertion of a conquest, and a conquest of lands and tene-
ments. " And then the king declared that it was not his intent to
have any lands nor tenements of which the said William, &c., were
enfeofied, to the use of others, notwithstanding the conquest afore-
said ; and, moreover, the king said to the said Richard, that he
would not have any land, which belonged to him nor any of his
60 FORFEITURE OF HEREDITARY DIC4NIT1ES.
result would be, merely that there should be an act of
indemnity.
The mere assertion of the right of conquest would be in-
sufficient to ground a legal forfeiture, for, even if there were
any conquest (a), it could only have been a conquest of the
children living, for that he held him to be a loyal knight. And,
moreover, the king declared, that the statute that none should forfeit
after their death stood in force, and that this ordinance and declara-
tion was not prejudicial to it, for that they were judged and con-
quered (juggez et conquis) in their lives. This refers to the statute
25 Edw. III., repealed in 28 Edw. III., c. 3 that none shall be taken
unless it be by presentment or indictment or suit at the common law :
nor shall be put out of his freehold or franchise, unless he be duly put
to answer, and forejudged of the same by due course of law : which,
necessarily, meant in his lifetime, as there was no judicial proceeding
known to the law by which, after a man's death, his lands or titles
could be forfeited : the procedure in such case had always been by
act of attainder. Hence the hollowness of the usurper's pretence of
a forfeiture by a judgment in the earl's lifetime. It will be observed
that that which is called by the commons a "judgment " of the king,
and by the king an "ordinance," or " declaration," was clearly neither
a statute nor a judgment of parliament ; it was not entered on the
statute roll, or, moreover, on the rolls of parliament, in that part
where parliamentary proceedings are recorded, but under the head
of " Pleas of the Crown," which would be the proper place to enter
judicial proceedings before the lords against a peer. But it is not
called a judgment of parliament, or of the lords ; and as a judgment
would be null and void, because there could be no judicial proceed-
ings against a man after his death, it was only a " declaration " by
the king and peers preparatory to an act of indemnity.
(a) Thus lord Hale says, " where the conqueror has a real
right to the throne, or makes some pretence or claim thereto,
and in pursuance of such claim raises war, and by his forces
obtains what he so pretends a title to, this kind of conquest,
does only re-estate the victor in those rights of government, which
the conquered prince, or the prince to whom the conqueror pretends
a right of succession had, whereby he becomes only a successor,
not a conqueror upon the people ; and, therefore, has no more right
of altering their laws, or taking away their liberties, or possessions,
CONQUEST NO FORFEITURE. 61
sovereign, and would have left all the ri/jhts of subjects
intact, and entirely as they were before that is, only liable
to forfeiture by virtue of legal judgments of courts of law,
or to the acts of attainder.
Moreover, this supposed right of conquest (a) would be
a claim entirely unfounded, and on which no sovereign
would venture to rest, without the sanction of parliament
obtained in a regular form, as an act of parliament, to
which all that had thus passed was only preliminary.
It is to be observed further, that if the declaration was
limited to the assertion of a right of conquest, and of con-
quest over the lands and tenements (b), it would not
than the conquered prince, or the prince to whom he pretends a
right of succession had ; for his victory extends no further than the
succession, and does not at all affect the rights of the people." Thus,
therefore, as Eichard could not have deprived Scrope of his peerage
by having him hanged without trial, and then getting his creatures
in parliament to say it was good, so neither could Henry. Even if he
was conqueror, he was only successor.
(a) " Hence it was," says Hale, " that though the people unjustly
assisted Henry IV. in his usurpation of the throne, yet he was not ad-
mitted thereunto until he had declared that he claimed not as succes-
sor; only he reserved to himself the liberty of extending a pretence of
conquest against the Scropes, who were slain in battle against him,"
(this was a mistake they were not slain in battle, nor even after
battle, but in cold blood,) "which yet he durst not rest upon without
a confirmation in parliament." ( Vide Rot. Parl. 1 Henry IV., No. 56,
Pars II., No. 17.) Lord Hale, it will be observed, calls it a pretence
of conquest, and it is manifest from his statement of the law, and
Henry's statement of the facts, that there was no conquest at all
events, at the time now in question, when the first parliament
avowedly summoned by Henry assembled. But in Hale's view it
would not matter, for if there were a conquest, it would be only a
succession.
(b) For this reason, lord Coke observes in his comments upon
the section in Littleton relating to estates tail : " If lands and
tenements be given to a man and his heirs male, that does not
62 FORFEITURE OF HEREDITARY DIGNITIES.
include a dignity not attached to land or held by tenure,
but personal and inheritable, for that would be neither land
nor tenement, but hereditament.
Such a proceeding, even if entered upon the rolls of
parliament (a), could not possibly be entered as a statute,'
apply to grants of arms or dignities." (Coke upon Littleton, 27.) The
phrase might possibly have applied to the ancient earldoms or
baronies, which were annexed to tenure of land, and granted by
grants of tenantry, but they had ceased to exist before the time in
question.
(a) It was considered in that age that nothing had the force and
effect of an act of parliament, until it had been enrolled or recorded,
so as that the assent of parliament could be given to it in a definite
form. There were always complaints in the previous reigns, if
there had been any departure from this practice, which was dictated
by obvious necessity as, otherwise, no one could know for certainty
what had been enacted. Thus in the reign of Edward III., there
had been such complaints. (Rot. Parl., 21 Edward III., n. 8.) So
in the reign of. Richard II., the commons prayed that they might
view the ordinances before they were confirmed (Rot. JTarl., 5
Richard II., s. 23.) To be viewed, it is obvious that they must be
reduced to some definite form. And in the reign of Henry IV., the
commons prayed that some of their number might be present at the
engrossing of the roll. (Rot. Parl., 8 Henry IV., n. 65.) And to avoid
the mischief and evils which must otherwise have arisen, either the
acts were in the first instance prepared in a written form, or the
petitions of the commons, after the assent of the lords and the king,
reduced to a regular form by the judges or others, and, then for
the most part, entered on the roll of statutes. Till the reign of
Edward III., the acts were drawn up in the first instance ; after-
wards the petition of the commons, with the assent of the king and
assent of the lords, were entered on the rolls, and from these the act
ivds passed ; and whether or not it was entered on the statute rolls,
as it usually would be, it was not an act until it had been reduced
into a definite form. And in 8 Henry IV., the commons prayed
that some of them might be present at the engrossing of the parlia-
ment roll. (8 Henry IV., 11.) When, therefore, a question arises as to
whether there has been an act of parliament, the question is whether
there is a definite form of enactment proposed, to which the king's
NO FORFEITURE BY CONQUEST. 63
since the assertion of the sovereign, in a particular and
special case of a right of conquest, would of itself be illegal,
and require an act of indemnity as an avowal of illegality.
Such proceedings, so irregular in their form and nature
that they could only be preliminary to some act of parlia-
ment, would naturally be preliminary to an act, not of
attainder (a), but of indemnity. For " conquest/' or the
assent and the authority of parliament are entered on the rolls as
arose on the trial of lord Macclesfield, with reference to an act of
this very king, Henry IV. the Act 11 Henry IV. which is not
on the statute roll. As, nevertheless, it appears in the form of an
enactment by parliament with the assent of the king, and this was
entered 011 the roll, it was held an act of parliament. (Trial of lord
Macclesfield, State Trials, vol. vi.) It would be an entire error to
imagine that any thing written on the roll of parliament, even though
with the assent of the king, lords, and commons, would be an act of
parliament. Thus an exposition of the law written on the rolls
was held not to be a statute, but only words written to the intent
that what was in doubt as to the common law might be set at rest.
(Year Book, 15 Edward IV., fol. 13.) It was of the essence of an act
of parliament, that it should be drawn up in a definite form, and
have words of enactment by the king, with the assent of the lords and
commons. Thus in the reign of Henry VII., it was said, if an act
of parliament shall be framed, with "the assent of the king, and
the lords and commons, it is enacted, that is a good act of parlia-
ment ; yet it shall not be an act if they do not all make it, but it
shall be implied they made it, when it is said that it was enacted by
their assent.'' (Year Book, 11 Henry VII., 27.) This, again, plainly
implies that there is something in a definite form. So it was said,
in parliament the king would that J. S. should be attainted and lose
his land, and the lords assented to it, and nothing was said of the
assent of the commons; and it was held by all the judges that it was
no act; upon which he was restored. (4 Henry VII., 18.)
(a) In that age, an act of attainder required to be first put into
the form of a bill in writing, enacting the attainder, and then in
that form to receive the assent of the king, lords, and commons ;
after which it would be recorded or enrolled. This was illustrated
in a case which occurred in the reign of Henry VI. Sir J. P. was
attainted of certain offences by act of parliament, whereto the
64 FORFEITURE OF HEREDITARY DIGNITIES.
right of the sword, exercised illegally, which waives all
question of criminality, and overrides all considerations of
law is, indeed, inconsistent with law, and rests on avowed
illegality, and, therefore, necessarily requires, on the restora-
tion of law, a bill of indemnity. But an actual enactment,
arrived at by parliament, should be sought in the statute
roll, and if recorded there, it must be taken to contain
the mind and will of parliament on the subject.
In order to effect a forfeiture, as the result of the attaint
or attainder for treason (a), it would be necessary that the
act should either enact the attainder itself for treason, or
contain express words of forfeiture. Because, apart from
express enactment, forfeiture is the penalty of attainder,
and the essence of the attainder would be the attainder for
the specific crime of treason.
If the act contained no express words of forfeiture of
the dignity, nor any express attainder for treason, it
commons were assenting, that if he came not in by such a day he
should forfeit ; but the lords gave a longer day, and the bill was re-
delivered to the commons. And Kerby, clerk of the parliament,
said, the usage of parliament was, that if a bill came first to the
commons, and they passed it, it was endorsed, soit baile as seigneurs
let it be delivered to the lords ; and if neither the king nor lords
altered it, then it was delivered to the clerk of the parliament to be
enrolled, and if it were a common (i.e., public) bill, it was enrolled ;
if a private particular (i.e. private) bill, it was put upon the plea.
(Brooke's Abridgment : " Parliament," fol. 4, cites 33 Henry VI., 17.)
All this implies plainly that the act was reduced to some definite
form of enactment before it was considered an act.
(a) Thus it is always laid down in the books that the forfeiture is
the consequence of the attainder for treason. '(39 Hen. VI., f. 36.)
Thus, it was said by the judges in the reign of Henry VII., in a
case of a man attainted by act of parliament, for high treason,
" When a man is attainted by parliament, it is concluded that
he shall lose his lands, although the act does not go on by express
words to say that he shall lose them." (4 Hen. VII., f. 11.)
INDEMNITY DIFFERENT FROM ATTAINDER. 65
would be no act of attainder, and there would be no for-
feiture (a).
Even as to the acts, the subject of indemnity, indem-
nity would imply illegality ; a legal forfeiture would have
required no indemnity. There had been, therefore, no
forfeiture of anything ; there had been a murder and seizure
(a) Words of indemnity would be merely applicable to the ads
indemnified the act of execution, or of confiscation of property
and would not be reasonably or possibly applicable to an incorporeal
hereditament a mere dignity, which could not be seized and con-
fiscated, and could not be the subject of an act of indemnity. In
the present instance the only act of parliament which was made in
the matter, appears upon the rolls entered in the proper form and
manner, as are all the other acts of parliament in the reign :
" Henry, &c., at his parliament, c., of the assent of the prelates,
dukes, earls, barons, and at the request of the commons assem-
bled in parliament, hath made and ordained certain statutes."
And then after a confirmation of laws and liberties comes this act,
entitled, "None shall be impeached that did assist king Henry IV.,
or helped to pursue king Richard II. or his adherents." "That
110 person, of whatever estate or condition, who came to aid the
king in pursuing those who were against the good intent (le
bon intent) of our lord the king and the common people of the
realm, in which pursuit king Richard was pursued and taken and
put in prison, and still remains in prison, shall be impeached, or
molested in any court for the pursuit of the said king, nor for the
pursuit of other persons, or death of a man, or anything done in the
said pursuit," (Statutes of the Realm, 1 Hen. IV. c. 2.) This, of
course, refers to the earl and his companions, as no one else had
been pursued and taken, and the words used are the same as those
used in the previous description. There was, it will be observed,
no attempt to charge treason, and without an attainder for treason
there could be no forfeiture of the dignity. There had been, be it
observed, no forfeiture of anything. There was no forfeiture of
estates, nor could there be, for it would have required an attainder
as much as forfeiture of a dignity. There had been no forfeiture at
all in a legal sense ; if there had been there would have been no
need of the act of indemnity, for as already observed, indemnity
implies illegality, and forfeiture can only be by a legal act.
F
66 FORFEITURE OF DIGNITIES.
of property, and now there was an indemnity for those
acts. That was very different from a legal forfeiture ; it
was the very opposite of a legal forfeiture. It implied
that there had been no legal forfeiture, nor any legal affir-
mation of a forfeiture, for if there had been, an indemnity
would not have been required (a).
It is manifest, from the very passing of an act of indem-
nity, that it was not understood by parliament that there
had been any act of attainder, or any affirmation of a judg-
ment in any legal sense, or anything which involved a legal
forfeiture (which could only be of attainder), for otherwise
there could have been no necessity for the act of in-
demnity.
And, at all events, parliament having conveyed its mind
and will in the form of an act of indemnity, it would be
contrary to all legal principle, as well as to sense and jus-
tice, to revert back to any irregular proceeding which
preceded the act, and to infer an act of affirmation of an
irregular and illegal execution from mere vague words that
it should be held good and profitable.
Assuming, however, these words to have the effect of an
act of parliament, and assuming to the fullest possible
extent their absolute power and operation, by way of con-
firmation and ratification, this would only apply to the
extent of the terms so employed, and no further (6).
(a) It is to be observed that, as the preamble shows, the above
act of indemnity was drawn up at the close of the session (as was
usual in those times), and therefore after -what has been stated
as having passed in parliament in the course of the session.
(6) Thus it was held in a case elaborately argued in the reign of
Henry VI. relating to Sion Convent, where a grant by Henry V. was
pleaded, and it was shown that the king, Henry VI., had by letters
patent made by authority of parliament ratified and confirmed the
grant. It was then laid down that the effect of the act of parlia-
INDEMNITY NOT AN ATTAINDER. 67
For it has ever been a principle of law that penal
statutes should be construed strictly according to their
terms, and not at all by implication or inference beyond
their terms (). And upon this principle, the utmost
effect that could be given to the proceedings in parliament
would be this that the execution should be deemed to
have been lawful ; not that it was originally legal.
This would be a most extreme, unconstitutional, and un-
justifiable extension of the effect of an act of parliament,
and of the operation of an indemnity, and it would amount
to an implication of a declaration, and a declaratory enact-
ment by parliament, that an act notoriously, obviously,
necessarily illegal, and undoubtedly an act of murder, was
legal and lawful. So far from inferring or implying this, it
would be so scandalous and disreputable to parliament,
and pregnant with such monstrous and dangerous conse-
quences (for if legal in one case it would be legal in any
other), that it would be proper rather to be astute to avoid
and escape from such a scandalous conclusion.
And there being an act of parliament, carefully, in its
terms, confined to indemnity, and that being all that was
mcnt was to confirm everything contained in the grant, but that it
had no operation beyond the terms of the grant. It was said that
if the king granted land not his, and parliament confirmed it, the
grant was good, but then the act would affect nothing not contained
in the grant ; " for nothing is affirmed and ratified by the act, if it
was not in the grant before." (Year Book, 38 Henry VI. 36.) As to
all that the act affirmed it would be absolute. (Year Book, 9 Hen.
VII., f. 2.)
(a) This was held, in the reign of Henry VII., of a statute as to
"attaints," which were in fact attaints of persons for false verdict,
and involved consequences highly penal, and including forfeiture.
It was said that an attaint is penal, and is not to be taken by
equity, but according to the terms of the statute. (Year Bool; 4
Henry VII. 13.)
F 2
G8 FORFEITURE OF A DIGNITY.
practically necessary, it would only be proper to conclude
that this act conveyed and contained the mind and will of
parliament upon the subject ; and it being restricted en-
tirely to indemnity, which implies illegality, the natural
and legitimate conclusion would be, not that the proceed-
ings entailed any legal forfeiture which can only be the
result of a legal proceeding, or of express legislative enact-
ment -but that the proceedings, on the contrary, were
illegal, and required indemnity.
That being so, and such being the result of the only
proceedings in parliament having any direct operation
upon the case, it would probably be found that any subse-
quent proceedings, either of the king (a), or of parliament,
or of the courts of law (6), having any indirect bearing upon
the case, would have a tendency to support the same view,
and would be consistent with the same conclusions (c).
(a) Iu the next pai'liament there was a petition from the wife of
the late earl, praying for some provision for her : " Isabel, who
was the wife of William Le Scrope, most humbly prays that as her
husband, at the time of his death, had no time, on account of his
hasty death, to take order as to the support of the petitioner, and,
after his death, his lands and tenements \vere seized into the hands
of the king, on account of the judgment which was given on the said
William, so that she is left poor and desolate." (Rot. Parl., iii., 483.)
(6) In this petition of the widow of the murdered earl, which of
course is carefully framed in terms cautious and guarded, and points
out all the circumstances under which her husband's hasty death
took place, and waives all question as to the legality of the seizure
of the property, merely stating that it was seized on " account '' of the
judgment given on the earl, there is an absence of every ex-
pression that might be expected if he had been attainted ; and
although, in order to touch the king by a tone of humility, the earl's
title is not mentioned, it is to be observed that there is an entry on
the rolls of the exchequer made by some minister of the king, in
which he is mentioned as the late earl of Wiltes the entry being of
a payment in consequence of this petition. (See the case.)
(o) It was actually made an argument against the claimant, his
AN ACT OF ATTAINDER NECESSARY. 69
As, for example, any subsequent proceedings on the part
of the crown relative to the estates of the deceased earl (a) ;
the fact that the confiscation of his estates was not alluded
to, otherwise than as an act of conquest, and that in no
proceeding was it alluded to as having been by virtue of
any attainder, or as involving any forfeiture otherwise than
by conquest, would tend strongly to negative the notion of
an attainder.
So, any legal proceedings which took place relative to the
estates of any of the persons who had been executed, and im-
plying that their heirs had a legal right to their estates (b),
and that the execution had left no disability upon their
heirs, would lead strongly to the same conclusion that
descendant, that the unhappy widow did not style her late husband
" earl," as if it could possibly matter, since beyond all doubt he was
an earl. It will be observed that she did not describe him even as
knight, yet no one can doubt he was a knight. The argument is of
equal value on either point that is, it is simply worth nothing.
But the petition was entered on the roll as the petition of the widow
of " the late earl of Wiltes."
(a) Thus there is a record of a grant made to the earl of North-
umberland, of the Isle of Man (which had been granted to the earl),
and it is described as obtained by Henry by virtue of conquest
" quce fuerunt Willellme Le Scrope, ckivalier, defuncti, quern nuperin
vita sua conquestati fuimus et ipsum sic conquestatum decrevimus et
quce ratione conquestits illius tanquam conquestata cepimus in manum
nostrum," &c. (Mimttes of case, p. 51.) This language is evidently
such as would have been entirely inapplicable to the case of a for-
feiture by reason of legal attainder.
(6) Thus there was an enrolment of proceedings in the exchequer,
relative to the tenure of certain lands, claimed by lord "Willoughby,
during the minority of the heir of sir John Bushy, chevalier,
deceased. The first proceeding was by way of inquisition, and the
record states that John Bushy held, on the day he died (die quo
obiit) half a knight's fee of the king, in capite, (i.e., in chief, or direct
of the king,) which would give the king a right of wardship. Then
it is ordered by the barons, that his lands should be taken into the
70 FORFEITURE OF A DIGNITY.
is, that there had been no legal forfeiture, nor any cause of
legal forfeiture in the case (a), but only an unlawful execu-
tion and seizure, with an indemnity.
hands of the king by reason of the minority of the heir of the said
Bushy (ratione minoris cetatis heredis prcedicti Bushy), and be kept
safely (et ea solva custodiani). This language necessarily implies
that sir John Bushy had left an heir, and that his heir had a legal
right, and that the king only had a right of wardship, by reason of
the heir's minority. It is perfectly inconsistent with any notion of
an attainder or forfeiture. And as there had been first a legal in-
quisition, and then an order or decree of the Court of Exchequer
on the matter, the proceeding amounts to the decision or opinion of
a court of law upon the case, and indirectly in the case of the earl
ofWiltes. (Case, p. 41.)
(a) This appears plainly from a petition to the king, in a subse-
quent year of his reign, by the sou and heir of sir Henry Greene,
another of the earl's colleagues : " That in the first year of the
reign, the petitioner, Ralph Greene, had livery, in your chancery by
your writs, as son and heir of sir Henry Greene, who was adjudged
to death at Bristol, in the 23rd year of the reign of the late king
Richard, of all the lands, tenements, &c., which were of the said
sir Heniy in England. And whereas, in the parliament held in
the first year of your reign, the aforesaid judgment, at the prayer
of the commons in the said parliament, was by you, with the
assent of the lords of parliament, affirmed for a good judgment."
The heir could only have his land by a writ of livery out of the
chancery. (See Brooke's Abr., title Liverie of Seisin.') It seems
that Greene was allowed his writ of livery as of course, which does
not look as if there had been an attainder : " And you were pleased
in the same parliament to declare that you would hold, by way of
conquest, all the lands, tenements, &c., which were of the said
Henry. And it was of your grace, on the 6th September, in the
first year of your reign, by your letters patent, you granted to the
petitioner the issues and profits of the lands to him and his heirs,
&c. That it would please you, of your special grace, to grant him
livery of the lands out of your lauds, to him and his heirs, &c.,
although he had not specially sued out livery, &c." Upon which
the king, with the advice and assent of the lords, assents to the
petition a manifest proof that there had been no act of attainder.
It would have been necessary, before the petitioner could have any
estate or interest to him or his heirs, that there should have been
PROOF OF AN. ATTAINDER NECESSARY. 71
The same conclusion would be supported by any pro-
ceedings (a) which tended to show that there had been no
culpable conduct, on the part of the deceased persons, which
could have been the subject of criminal proceedings, even
assuming them to have been lawful.
But recourse to such evidence, in order to disprove an
act of attainder, would be unnecessary and almost idle, and
certainly inconsistent with legal principle. For an attain-
der, as a ground of forfeiture, must be proved, not dis-
proved (6). The onus is upon those who set up a for-
au act of reversal of the attainder. But there was no such act ;
there was only a grant by the king with the assent of the lords,
and no act of reversal of attainder. (Rot. Parl., iii., 450.)
(a) This appeared strongly from the proceeding in Bagot's case :
"The commons showed to the king that before this time sir W.
Bagot was accused of many horrible acts and offences, which, if true,
the commons supposed the king would have knowledge of, by the
examinations made at the time the said sir William was in distress.
And upon that the commons prayed that, as he had been found not
guilty, he might be restored to his lands and tenements. To which
it was answered, on the part of the king, that upon the impeach-
ments against the said sir William, he had pleaded a pardon, against
which it appeared to the lords that he ought not to be put to
answer. And also, that he was not attainted upon any impeach-
ment." And upon that the king said that Bagot should be restored.
This shows clearly that the late ministers had been guilty of no
serious misdemeanour, for Bagot was one of them, and a party to
their acts. (Rot. Parl., iii., 458.)
(b) Especially a forfeiture in such an age. When, in a later age,
the arbitrary proceedings which took place in this age were quoted
as precedents, it was remarked : " As for the instance used of the
judges in 2 Eich. II., although they suffered for their opinions given
to the king, I desire that the time when their opinion was delivered
may be considered to wit, in the time of Rich. II., and the time
when they suffered to wit, in the time of Henry IV. And it was
the saying of lord Egerton, that they suffered rather by the
potency of their enemies than the greatness of their offence."
(3 State Trials, 286.) Ix>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, <tc. (Rot. ParL, Hi., 460.)
(a) This was illustrated in the execution of archbishop Scrope
and earl Mowbray some years later (in 1405), when Henry was
undoubtedly de facto king. " The earl of Nottingham and the arch-
bishop of York brother to the earl of Wiltshire, whom Henry,
then duke of Lancaster, had beheaded at Bristol harboured a
violent hatred against the enemy of their families, and they deter-
mined, in conjunction with the earl of Northumberland, to seek
revenge against him. They betook themselves to arms before that
nobleman was prepared to join them, and published a manifesto, in
which they reproached Henry with his usurpation of the crown
and the murder of the late king, and they required that the right
line should be restored. . . . The earl of Westmoreland seized
the two rebels and carried them to the king, who was advancing
to suppress the insurrection. The trial and punishment of an arch-
bishop might have proved r. troublesome and dangerous under-
taking, had Henry proceeded regularly, and allowed time for an
opposition to form itself against that unusual measure. The celerity
of the execution alone could render it safe or prudent. Finding
that sir William Gascoigne, the chief justice, made some scruple
of acting on the occasion, he appointed Fulthorpe judge, who,
without any indictment, trial, or defence, pronounced sentence
upon them, which was presently executed." (Hume's Hist. Eng.,
vol. ii., c. 18.)
74 FORFEITURE OF A DIGNITY.
wholly illegal, be far too irregular (a) to have the effect of a
legal judgment for treason, as it would have altogether a
different character, and might, in a sense, be lawful without
being legal, so as to have any legal results.
Such an execution would probably only be ventured
upon in the heat of the contest in an actual rebellion, and
because a charge of treason could not be maintained.
A de facto sovereign, conscious that he had obtained the
throne by rebellion and by treason, would, before a par-
liamentary settlement of the crown, abstain from a pro-
secution for treason (6), which might only draw attention
(a) " In 1405, the army raised by Scrope, archbishop of York, and
Mowbray, the earl-marshal, having been dispersed by the capture
of the two leaders, they were taken to the royal presence at Bishop's
Thorpe, the primate's palace, when the king commanded the chief
justice to pronounce on them the sentence of death. Gascoigue
resolutely refused to obey, saying, ' Neither you, nor any of your
subjects, can, according to the law of the realm, sentence any prelate
to death, and the earl has a right to be tried by his peers.' " (Lives
of the Judges, by Foss, vol. iv., p. 165.) This was in accordance
with the judgment of parliament, in the case of the earl of Lan-
caster, in the reign of Edward III., and with the law laid down by
Littleton in the reign of Edward IV., and by lord Coke long after-
wards. (Neville's case, 8 Coke's Reports.) The rebellion being quite
suppressed, execution by martial law was not legal, and even if it
were, would not be a judgment for treason.
(5) Hence, although Henry summarily executed some who were
taken in arms against him, he never ventured upon a regular prose-
cution for treason. It was not until some years had passed that he
ventured to seek of parliament any settlement of the crown, and it
was done by merely enacting that the crown should abide with him
and his heirs, without any declaration or recognition of title.
(Hume's Hist. Eng., c. 181.) Although the earl of Northumberland
had raised an army against Henry, and his son had fought a
battle with him, and the earl only then made his submission,
Henry dui'st not venture upon a trial for treason in the case.
That, assuming his title the treason would be clear, is obvious.
He preferred, however, evading the necessity for it by accepting
NECESSITY FOR A LEGAL ATTAINDER. 75
to the absence of legal title, and expose his throne to
greater peril.
It would not be until after a parliamentary settlement
of the crown, and a descent of the crown to the heir of the
usurper, that a sovereign Avho had attained the throne by a
successful usurpation could venture upon a prosecution for
treason on an act of parliament (a) ; and even then, it would
probably, in an age when such an usurpation could take
place, be irregular and illegal ; and the trial of a peer by
commoners would certainly be so.
It would therefore require, to effect a legal forfeiture,
the earl's disclaimer of treasonable intention, and deferring to an
opinion professedly grounded on the" absence of treasonable intent,
but really prompted by the absence of title. The earl acknow-
ledged in parliament that he was guilty of not keeping the law as
his allegiance bound him, and of gathering power and giving of
liveries (i.e., of raising men contrary to the law) ; and upon special
consideration by the judges and lords in parliament, they adjudged
that it was not treason. (5 Hen. IV., Rot. Parl., u. 11, 12.) The
real reason was not that which was pretended.
(a) Thus it was with the trial and execution of the earl of Cam-
bridge and lord Scrope of Masham, in the reign of Henry V.
" The earl of Cambridge, son of the duke of York, having espoused
the sister of the earl of March, had zealously embraced the interests
of that family, and had held some conferences with lord Scrope of
Masham, and sir T. Grey, about the means of recovering to that
nobleman his right to the crown. The conspirators, as soon as
detected, acknowledged their guilt to the king, and he proceeded
without delay to their trial and execution. A jury of commoners
was summoned ; the conspirators were indicted before them ; a
confession was sworn to ; without other evidence sir T. Grey was
condemned and executed. But as the earl of Cambridge and lord
Scrope pleaded privilege of peerage, Henry thought proper to
summon a court of eighteen barons. The evidence given before the
jury was read to them. The prisoners were not examined nor pro-
duced in court, nor heard in their own defence, but received sen-
tence of death upon this proof, which was very irregular and
unsatisfactory, and they were executed." (Hume, c. 19.)
76 FORFEITURE OF A DIGNITY.
either an act of attainder or an act (a) affirming the irre-
gular attainder, and expressly affirming it as an attainder
for treason.
If there was no attainder of the earl, and therefore no
forfeiture of the earldom, then it could not be granted by
the crown to another family (6), and would continue to
descend, according to the patent, to his heirs male, as long
as they continued to exist.
In the absence of any judgment against the earl, in his
(a) Thus in the case of lord Scrope of Masham, and the earl of
Cambridge, the indictment for treason was set out, and it appeared
by the record that they had pleaded guilty to it, and that they
were condemned by their peers as guilty of treason, and thereupon
judgment was given against them for treason. " Therefore it is
considered that the said Heury lord Scrope, and the said Richard
earl of Cambridge, as traitors to the kiug, be drawn and hung, &c."
And the record being brought before parliament by the commons,
and their judgment given, " which record and process being read
before the lord keeper of the realm in parliament, it appears to the
court of parliament that the judgments given were rightly and law-
fully given, and that they be affirmed and held good and lawful,
(affirmarent fore et esse pares juste et legalia judicci,) and that all
the lands and tenements be forfeited." (Rot. Parl., iv., 69.) It does
not appear whether this was before or after the lords were executed,
or that the proceeding was brought before the court of parliament
judicially by way of error ; if not, there would be no judicial
authority in the above affirmation ; and it does not appear dis-
tinctly that it was an act of parliament. It was, however, a dis-
tinct declaration and confirmation of a charge of treason.
(&) It was so granted in the reign of Henry VI., to the Butler
family, but the grant, if there had been no foifeiture, would be, of
course, invalid ; for as was held long afterwards, " If a man is
created duke, and, for the maintenance of his dignity, the king give
him 20 a year annuity, he cannot grant it to another, for it is
incident to his dignity. (Dyer 2.) And, of course, a fortiori the king
could not grant to another the dignity itself. This re-grant, however,
is not material, because the new earl of Wiltshire was attainted
under Edward IV., and so of another re-grant of the earldom, as to
which, and subsequent re-grant, vide post.
AN ATTAINDER FOB TREASON. 77
lifetime, for treason (a), it would be necessary, in order
to attach the penalty of forfeiture to his heirs, that there
should have been an act of attainder for treason ; and if
there was neither a judgment against him in his lifetime
for treason, nor an attainder after his death for treason, the
mere " confirmation " of his sentence to death, and execu-
(a) It is obvious that the sense of justice, as well as legal principle,
must contrive to limit the application of this odious doctrine of for-
feiture to cases of crime. Thus a distinguished writer on the subject
says, " Honours seem peculiarly the proper subjects ^forfeiture. And
is it not natural and politic that a distinction bestowed only for the
praise of those who do well should be forfeitable on the commission
of crime for a terror to evil doers 1 " (The Hon. Charles Yorkes Con-
siderations on the Law of Forfeiture, p. 30.) And the writer goes on
to express that there is nothing unjust in the doctrine as applied to
treason, because it only applies to cases in which a party has been
legally convicted of the crime of treason only. (Ibid.} As to legal con-
viction, it requires a specific regular indictment for high treason,
prepared before a lawful tribunal, and duly tried by such lawful
tribunal, with a legal conviction and judgment thereon, against the
accused, " legale judicium perium," the lawful judgment of the peers,
according to the terms of Magua Charta. A distinguished writer
on the subject, touching on this point, vindicates the law of for-
feiture for treason, expressly for this reason, "The exact justice,
which is shown to the offender himself, in the clearness and cer-
tainty of the laws which mark out the crime. An overt act of some
statute-treason must be laid in the indictment, and proved iu
evidence by two witnesses ; no man is to be reasoned out of his life
and fortune by doubt and analogy, and rhetorical affirmations,
inhaucing misdemeanours into treason, as was anciently the case in
courts of justice." (Considerations on the Law of Forfeiture, p. 97.)
All the authorities, ancient or modern, require that in order to
inflict a forfeiture there must be either a legal judgment for treason,
or an act of attainder. Thus a learned author on the subject of dig-
nities says, treating of the very subject : " Persons upon whom
judgment of high treason is pronounced, or who are outlawed upon an
indictment for high treason, are need to be attainted of treason. A
person may also be attainted of treason by a special act of parliament,
of which there are many cases. (Cruise on Dignities, 119.)
78 FORFEITURE OF A DIGNITY.
tion, without any recital of a judgment or sentence for
treason, would be no affirmation of a judgment for treason,
and so would not amount to an attainder ; and therefore
would involve no forfeiture.
Even if there had been any act of attainder, it would
probably have been repealed or annulled by the general
act of repeal and reversal which passed upon the accession
of Edward IV. (a). Such an act would not probably have
been necessary as to acts of Henry IV. prior to his obtaining
(a) It recited "that of the crown and royal power, king Eichard the
Second was lawfully seised and possessed, unto the time that Henry,
late earl of Derby, against righteousness and justice, by force and
arms, against his faith and legiance, rered (raised) warre against the
said king, him took and imprisoned in the Towre of London of grete
violence, and, the said king so being in prison, and living, usurped
and intruded upon the royal power, taking upon himself the crown
and name of king, and that he wickedly offended and injured the
royal majesty of his sovereign, and that he unrighteously, against law
and conscience, usurped upon the said crown ; and that he, and also
Henry, his son, and the son of the said Henry, occupied the realm,
and exercised the government thereof, by unrighteous intrusion and
usurpation, and not otherwise. And that the said Henry therewith
not satisfied or content, but more grievous thing attempting, the
said king Eichard, king anoynted, coroned, and consecrate, against
God's law, man's legiauce and oath of fidelity, with uttermost
punition or tormenting, murdered and destroyed, with most vile,
heinous and lamentable death The commons, having
sufficient knowledge of the said unrighteous usurpation and intru-
sion by the said Henry upon the crown of England, beseech that it
be declared and adjudged, by the advice and assent of the lords
in this parliament, and by the authority of the same, that the said
Henry, for the said raising of war against the said king Eichard, then
his sovereign lord, and the violent taking, imprisoning, and horrible
cruel murder of him, against his faith, was a traitor : and be it
declared and established, by the advice, assent, and authority afore-
said, that all the statutes, acts, and ordinances heretofore made in
and for the destruction and avoiding of the said right and title of
the said king Eichard, or of his heirs to ask or have the crown, and
possession thereof be reputed void. (Rot. Parl., v., 465.)
REVERSAL OF ATTAINDER, 79
the sovereignty de facto, and therefore would not have been
necessary as to the proceedings in question, even assuming
that they had amounted to an act of attainder. As, however,
at the time of the accession of Edward IV. there had been
two descents of the crown since the usurpation of Henry IV.,
and under a legislative settlement of the crown to his heirs,
an act of parliament would be necessary to declare their
title void, and to annul all their regal acts, such a statute
was passed ; and it recited that Henry IV. was an usurper
and a traitor, and had been king de facto and not de jure,
and had usurped the- crown unlawfully ; and it expressly
repealed all his statutes and ordinances prejudicial to the
royal rights of Richard II.
This, it is manifest, would apply to any act, statute, or
ordinance of Henry, which would affirm any attainder or
forfeiture of any of the adherents of king Richard, so as to
vest their dignities or properties in Henry, as king ; for
that would surely be prejudicial to the royal right and
grade of Richard, who was then alive, and destroy his title,
especially as Henry himself had avowed that he had slain
the earl and the other ministers of Richard, because they
were against his good purpose that is, his purpose to seize
the crown. An act, or ordinance, affirming that this was
right, would, beyond all doubt, be to the prejudice of
Richard's right and title, and so would be repealed.
The exceptions to the statute make this more manifest.
It runs thus : " For eschewing of doubts which may arise
upon judicial acts made or done in the times of Henry IV,
Henry V., and Henry VI., late kings of England, succes-
sively, in deed and not of right : our lord the king, by the
advice and assent of the lords, and at the request of the
commons in parliament assembled, and by authority of
the same, hath declared and enacted" (be it observed
80 FORFEITURE OF A DIGNITY.
that, were it not that by the declaration that these kings
were not lawful kings, it was considered that all their acts
were annulled and avoided, there could have been no
" doubts " and no necessity for any exceptions, and the
exceptions following would have been idle and absurd. It
was enacted thus) : " That all judicial acts, recoveries, and
processes, in any courts, in any of the times of the said
pretended kings, in deed and not in right, other than by
authority of parliament holden in any of their times,
shall be of like force and effect as if the said acts, &c., had
or made, out of any of the said parliamentsj were had in
the time of any king lawfully reigning in the realm."
Here it will be observed that judicial acts in parlia-
ment were expressly excepted, and left to their proper
invalidity ; and naturally enough, for otherwise the attain-
ders, or pretended attainders, or confirmations of penal
proceedings against the adherents of the rightful sovereign,
would have been legalised.
Then there is a clause excepting all creations of nobility :
" And also all letters patent made by any of the said
pretended kings, to any persons, creating and ennobling
them to any dignity, shall be of like force and effect as if
granted by any king lawfully reigning, &c." Here it is to
be observed that there were no words in the act legalising
any attainder or judicial proceedings in parliament against
any adherents to the rightful sovereign. There was a
clause legalising creations of peerages^but none legalising
deprivations or forfeitv<res of peeragesj>>?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, <fec., repealed." (Rot.
Parl., vi., 88.) That is, the repeal was limited to Henry VI.,
and his family. There was no mention made of that part of the act
which attainted Henry IV., and though, no doubt, out of respect to
his descemtant'Henry VII.', that part of the act was not printed
from the printed statutes, and the rest of the act was retained
upon the statute roll and printed. The first act only having
attainted Hem-y IV. and his heirs from henceforth that is,
from the time of the passing of the act there was a subsequent act
attainting Henry VI., and various other persons, noblemen and
gentlemen. And this act attainting Henry VI., was repealed by
Henry VII., but it is most remarkable that there was no repeal of
the attainder of Henry IV., who, therefore, stands on the rolls of
parliament attainted as a traitorous usurper. (Rot. Parl., v., 480.)
82 FORFEITURE OF DIGNITIES.
act of attainder at all. Had there been an act of attain-
der (a), an act of reversal might have been necessary, as
in the cases of those who had been attainted by acts of
attainder under Henry IV. or his successors.
Wherever there had been a legal forfeiture by an act of
attainder (b), it would be necessary, as already has been
(a) As in the case of the earldom of Oxford, there was a petition
from John De Vere, earl of Oxford, setting forth : " That by right
strange means and grete power of Henry, late earl of Derby, with
other adherents to him confederated, of grete malice, purpensed, in
a parliament holden in the llth year of King Richard II., Robert
De Vere, late earl of Oxford, ancestor to your petitioner, was
attainted of high treason, &c. And after the said Henry, late
earl of Derby, intending to accomplish his malicious intent,
took upon him royal authority, and against the laws of God
and of the land, his faith and legiaiice, deposed your royal pro-
genitor, and took upon him to reign by usurpation as king of Eng-
land ; and at a parliament of the first year of his reign, it was
ordained that the attainder should stand." And then it was
prayed : " That the king, by the advice of the lords and the com-
mons in parliament assembled, would enact, that the said act of the
said Henry, late earl of Derby then in deed and not of right king
of England in affirmance of the act of attainder, should be re-
pealed, &c., and the petitioner restored to the earldom." (Rot.
Part., v., 539.) And it was so enacted accordingly. It was neces-
sarily so enacted in the case of the earl of Oxford, because there
had been an act of attainder. It was not necessary so to enact in
the case of the earl of Wiltes, because there had been no act of
attainder, and no legal conviction or judgment.
(b) As in the case of the earl of Cambridge, the judgment was
declared erroneous, and the affirmation of it repealed. (Rot. Parl.,
v., 484). So in the cases of the earl of Salisbury and lord Des-
penser, " and other true subjects of king Richard, who had been
attainted by parliament." There was a necessity for an act of
reversal and repeal in these cases, and accordingly such an act was
passed. The former case was one which occurred in the reign of
Henry V., after a parliamentary settlement and a descent of the
crown ; and the other cases occurred after Henry IV. was de facto
king. Thus there was a special act as to various persons, who had
been attainted by particular acts of parliament. This act recited
REVERSALS OF ATTAINDERS. 83
observed, that there should be an act of reversal. And,
accordingly, there was, it has been seen, a general act of
reversal, and, for particular reasons, some special acts of
reversal.
It was only, however, where there had been an act of
attainder (a) that there could be any necessity for any act
and declared, in terms applicable to the earl of Wiltes, " That certain
persons adhering to Henry IV., late in deed and not of right king of
England, after his unlawful and detestable usurpation and intrusion
against his faith and legiance, upon King Richard II., his righteous,
true, and natural lord, tyrannously murdered, with great cruelty and
horrible violence, in an outrageous, heady, fury, the earl of Salis-
bury and lord Despenser, and other true subjects and liegemen of
the said king Richard, after his death continuing their legiance to
Edward Mortimer, then next heir of blood to the said king
Richard," &c. (Rot. Parl., v.. 484.) This act, it will be observed,
refers especially to cases which had occurred after king Richard
was dead, and when Henry was certainly in possession of the
throne, and at a time when no one else made any claim to it ; BO
that he was then clearly king de facto, though not de jure. And it
was probably thought that in such cases an act of parliament was
necessary to repeal legislative acts, or legislative affirmations of
judicial acts. But in the case of the original earldom of Wiltes, as
there had been no act of attainder, there was no necessity for any
act of reversal.
(a) " That the said persons, for their said traitorous acts, stand and
be convicted and attainted of high treason, and forfeit to the king all
the lands, lordships, tenements, hereditaments, and possessions, with
the appurtenances, which any of these had." (Rot. Parl., v., 479.)
This, it will be seen, was a distinct act of attainder, and was re-
cognised as such. Upon this act of parliament, on which Thomas
Ormond was attainted by parliament, by the name of T. Ormond
Chevalier, and he was not a knight, it was held that he lost nothing
by the attainder, for that it could not be understood to be the same
person ; for the word " chevalier," it was said, was part of his name,
and, if so, then he could say that there was no such person as T.
Ormond Chevalier in rerum naturd ; and so it was adjudged that
the act was void, and this case was afterwards recognised as good
law in the reign of Edward IV., the reign in which the act passed.
( Year Book, 21 Edw. IV. fol. 72.) It would be necessary, however,
o 2
84 NO FORFEITURE OF THE EARLDOM OF WILTES.
of reversal; and, accordingly, in no instance will it be
found that there has been any act of reversal or restitution
where there had been neither legal judgment nor act of
attainder.
There having, then, been no forfeiture of the earldom of
Wiltes, either because there was no attainder, or because,
if there was, there was a reversal of it, the earldom would
in order to restore the Ormonds, to have an act of reversal. And,
accordingly, in the first parliament of Henry VII. the attainder and
forfeiture of the new earl of Wiltes were repealed, except as to the
earldom, although the petitioner was* the next heir, and would have
inherited it. The act ran thus : " That James, late earl of Wilte-
shire, and John his brother, were, by an act of 1 Edw. IV., attainted of
high treason, and died without issue, and your petitioner is brother and
heir of blood to the late earl, and also his brother ; therefore,
that he and his heirs be restored, ennobled, and have all such dignity
and estate, except only the name of carl of Wilteshire." (Rot. Parl., vi.,
291.) In 1470, Stafford, son of the duke of Buckingham, was created
earl of Wiltes, but in 1499, the new earldom became extinct by the
death of his son and heir. This was in the reign of Henry VII., and
accounts for the reservation of the earldom on the reversal of the
attainder. After this, the earldom of Wiltes was again regranted to
another family, in 1509, in favour, of course, of the last earl of the
new creation ; but on his death, in 1523, the earldom again became
extinct. It was again, in 1529, re-created in favour of sir J. Boleyn,
but again became extinct on his death. In 1550 it was once more
re-granted in favour of the family of Paulet, and in 1551 the then
holder of the title was created a marquis of Winchester. And
although the title of earl of Wilteshire was thus, for the last time,
regranted to another family, the title thereto has never been esta-
blished by any decision of the house, nor ras the question evei
arisen whether the grant was valid, since the original grantee had
already a seat as a baron ; and his heir, in the last century, was
summoned and took his seat by the higher title of marquis. It is
true that, in 1796, George Paulet claimed the marquisate of Win-
chester, the earldom of Wilteshire, and the barony of St. John : and
the attorney-general reported that he had made out his claim ; but
he was summoned and took his seat as marquis of Winchestei .
(Cruise on Dignities, 124.)
DESCENT OF THE EARLDOM. 85
continue to descend (a) in the course of descent limited by
the patent that is, to heirs male generally ; heirs male
collateral as well as lineal
The earldom would continue to descend to male heirs
as long as male heirs continued, however long they might
endure, and this, notwithstanding intermediate grants of an
earldom of the same name to other families, and enjoyment
of such earldoms (6).
(a) It has been already seen that the earldom was granted to
heirs male generally, because the earl had no issue, so that, unless it
had been so granted, in all probability the earldom would have been
extinct upon his death. He had, however, collateral heirs male his
brothers, both of whom were in favour with the king. He was, it
will be remembered, son of lord Scrope of Bolton, and, therefore,
the eldest of these brothers, who was lord Scrope's heir and heir
male, would succeed to the barony, supposing the barony de-
scendible either to heirs, or heirs male, or issue male. And such
male heirs continued to the 17th century in the right line. It was not,
however, at that time settled that a writ of summons did create an
inheritable dignity, still less was it settled in what course of descent
it went ; and it was not settled, as sir J. Mackintosh and Mr. Hallam
observe, until the 17th century. Practically it could be settled,
even as regards lord Scrope himself, only by renewal of the writ of
summons, and it was not renewed to him, nor to his son and heir,
who was also the heir of the earl of Wiltes. Lord Scrope died three
years after the earl, and his son and heir died soon after without
being summoned to parliament. The second male heir of the earl died
shortly after the third lord Scrope of Masham was executed for trea-
son against Henry V. Added to this, the earl's brother, archbishop
Scrope, was executed by Henry IV. ; and it will be seen, the feeling
of the family was not likely to be deemed very friendly to the House
of Lancaster. It is not,' therefore, surprising that it was about forty
years before a descendant of lord Scrope of Bolton was summoned
to parliament. This was in the reign of Henry VI., and Mr. Hallam
mentions the fact, citing Rot. Parl., vol. ii., p. 201. " In the 2nd of
Henry VI., Scrope of Bolton is called <Le sire de Scrope,' a proof
that he was reckoned among the barons." (Hist, of Middle Ages, c. 8.)
In 1445 the earldom of Wiltes was granted to the Butler family.
(6) In point of fact, the earldom of Wiltes was re-granted, or pur-
86 DESCENT OF THE EARLDOM.
Not only is mere lapse of time no bar to the claim of a
dignity, but its wrongful possession by some person not
entitled to it (a), even for so long a period as nearly a
century, has been held no bar, while claims to dignities
have been allowed repeatedly after the lapse of centuries.
Dignities, in this respect unlike estates, are not lost by
mere lapse of time (6) ; therefore, many are claimed after
ported to be re-granted, again and again. It was, however, clear law
in that age, that if the crown had granted an earldom to one family,
it could not (before a forfeiture) be granted to another (vide ante), so
that, if it could be deemed the same earldom, it was not legally re-
granted, and the grant was null and void, and could not affect the
title of the Scrope family. It becomes, however, immaterial to con-
sider the question, because no one has ever sat as earl of Wiltes
since the death of the original earl, except holders of intermediate
earldoms, who have been attainted.
(a) The dignity of loi'd Saye and Sele was allowed, in 1603, to
Fienues, although no one had borne the title for two centuries and a
half; the barony of Despenser was confirmed in 1604, though no one
had held it for above two centuries ; the barony of "Willoughby de
Broke was allowed in 1696, no one having held or claimed it for 160
years ; the barony of Berners was claimed and allowed in 1 720,
after the lapse of two centuries ; the barony of Willoughby of
Parham was allowed in 1767, although the ancestor had become
entitled a century before, and there had been an adverse possession
by another branch of the family for nearly a century.
(6) " Claims to baronies which have been long dormant are diffi-
cult to be made out, but whenever the right happens to be clearly
proved, the safety and dignity of the peerage are both concerned
that no length of time should bar or prejudice the title. Most of the
ancient baronies are so merged by the intermarriage of great fami-
lies, or so exposed to the objection of forfeiture, that very few in-
stances have occurred of claims of a like nature, but in all those
which have occurred, the length of time during which the honour
has remained dormant never has formed a ground of objection."
(Cruise on Dignities, 167.) Instances are then given of peerages
renewed after having been dormant for centuries. The barony of
Fitzwalter was allowed in 1669, after having been dormant for 400
LENGTH OF TIME NO BAR TO IT. 87
any lapse of time, however remote the period to which the
claim relates (a). It is a maxim as to dignities, that they
cannot be extinguished, otherwise than by forfeiture or by
act of parliament. And thus there may be a claim to a peer-
age which has been dormant for centuries ; and mere lapse
of time is no objection to action.
Claims to dignities have been allowed after the lapse of
centuries, and though none has been made which went back
so far as that of the earldom of Wiltes, which goes back
live hundred years, a claim has been heard which had
been dormant four hundred years from the time of Magna
Charta.
Not only is lapse of time no bar to a claim, but the longer
the descent (6), and the more ancient the dignity and the
years ; the barony of Berners was allowed in 1720, though dormant
for 200 years.
(a) The barony of Despenser was renewed after the lapse of more
than 200 years. The barony of Mow bray was renewed by Charles I.
in favour of the family of Howard, after it had been dormant from
the time of Edward III. It is in right of this renewal that the duke
of Norfolk claims to be premier baron of England. The barony of
Ferrers of Chartley was renewed by Edward IV. in favour of De-
vereux, though there had been no person summoned under that title
from the 5 Edw. II. Ill the reign of Elizabeth, the peerage of Dacres
was renewed, which, in the time of Henry II. belonged to Hubert
de Vaux ; and the peerage being so ancient, it could not be discovered
how he acquired it, nor what was the title on which he held it, which
could only be known by the course of descent.
(b) Thus lord chief justice Crew said, in the case of the earldom of
Oxford, " Here is represented to your lordships certamen honoris
illustrious honour. I heard a great peer of this realm, and learned,
say, when he lived, there was no king in Christendom had such a
subject as Oxford. He came in with the Conqueror, earl of Guienne :
shortly after the Conquest made great chamberlain, above 400 years
ago, by Henry I., the Conqueror's son ; confirmed by Henry II. This
great honour this high and noble dignity hath continued ever
since, in the remarkable surname De Vere, by so many ages, descents,
88 DESCENT OF THE EARLDOM OF WILTES.
family, the greater the interest the claim is naturally calcu-
lated to inspire.
The claim of any heir male of the first earl could not
possibly be open to objection, either on the ground of the
invalidity of the original grant, or on the ground of for-
feiture. As to the grant, it was in accordance with prece-
dents, some of them with the assent of parliament (a), and
it was also supported by the highest legal authority (6) ;
and generations, as no other kingdom can produce such a peer in one
and the selfsame name and title. I find in all this time but two at-
tainders of this noble family ; and those in stormy and tempestuous
times, when the government was unsettled and the kingdom in com-
petition. I have laboured to make a covenant with myself, that
affection may not press upon judgment, for I suppose that there is
no man that hath any apprehension of gentry or nobleness, but his
affection stands to the continuance of so noble a name and fame, and
would take hold of a twig.or twine thread to uphold it. And yet
Time hath his revolutions : there must be an end to all temporal
things, finis rerum an end of names and dignities, and whatsoever
is terrene : and why not of De Vere ? For where is De Bohun ?
where is Mowbray ? where is Mortimer ? Nay, what is more, and
most of all, where is Plantagenet ? They are entombed in the urns
and sepulchres of mortality. And yet, let the name and dignity of
De Vere-stand so long as it pleaseth God." That case turned upon
a grant of Richard II., and in the same terms as that of the earl-
dom of "Wiltes. The judges were unanimously of opinion that
though the earldom of Oxford was one generally held in fee simple
by the family of De Vere, yet that the honour of the earldom, in the
grant made by Richard, was entailed upon Aubrey De Vere and
his heirs male, and that this estate to the heirs male was well
created, and descended to the heir male. (Cruise, 101; Jones, 196.)
(a) There were the cases of Hoo and Hastings, Egremont and
Richmont Grey, in the reign of Hen. VI. ; the case of the earldom of
Oxford, with the assent of parliament, in the reign of Rich. II. ;
the case of the earldom of Devon, in the reign of Mary ; the
earldom of Airlie, in the reign of James I. ; and the earldom of Cork ,
in the reign of Charles I.
(b) The authority of lord Coke, who laid it down that a grant of
a dignity to heirs male was good. (Coke upon Littelton, 270). And
NO LEGAL OBJECTION TO IT. 89
while, on the other hand, an objection to the mode of de-
scent prescribed viz., to heirs male collateral as well as
lineal could not be sustained by anything which deserved
the name of judicial authority.
The objection to the grant could only be sustained by
some obscure obiter dictum (a) some isolated and irrele-
the law advisers of the crown must have been satisfied that it was
so, for notwithstanding the obiter dictum to the contrary in the case
of the earldom of Oxford, the crown almost immediately afterwards
granted two peerages to heirs male, one of them to the earl of Cork.
(Case, p. 21).
(a) The dictum of lord chief justice Crew, in the case of the earl of
Oxford, which in the reign of Charles I. came before parliament, and
in which the descent of the earldom to heirs male in accordance with
a grant precisely similar to that of the earldom of Wiltes was
supported. The case, as a whole, affords a strong confirmation of the
validity of that grant, and, in consequence, /of the descent of the
dignity to " the male heir." And it is only an isolated, irrelevant, ill-
considered dictum of the lord chief justice Crew which has been,
supposed to cast a doubt on the point. It is necessary, therefore, to
direct attention to the case, in order to understand the effect and
value of the observation thus made, and which, for want of such
attention, has been much misunderstood. The earldom appears not to
have been originally granted to the heirs male of the first earl, and
so stood when the earl was attainted in the 11 Rich. II., as otherwise
there would be no sense in the recital of the statute reversing the
attainder, and restoring the earldom. The Act recited that " sir
Aubrey De Vere showed entail of the estates, but not of the
dignity, yet the king, willing that the estate and name of earl of
Oxford should not cease, hath restored, and given and granted by
assent of parliament to sir Aubrey de Vere and his heirs male for
ever, the estate and honour of earl of Oxford." (16 Rich. II.) Thus,
therefore, the earldom was re-granted, and made descendible to heirs
male, which would preserve the name and title in the family. As
however, the earl, in the 11 Rich. II., had been attainted by treason,
it was considered necessary to make the restitution with the assent
of parliament, which wouldbe virtually an act of parliament. This
was the act of the 1G Rich. II. The act 21 Rich. II. repealed
and annulled all the proceedings of the 11 Rich. II., and restored
90 DESCENT OF EARLDOM TO HEIRS MALE.
vant observation, dropped, in the course of an argument, to
which it was not material, in a case on which the question
estates, saying nothing as to dignities. And the act of 21 Rich. II.
was annulled by 1 Hen. IV. And though the court appear to have
been quite awai'e of and recognised the act of 1 Edw. IV., repealing
the acts of Hen. IV., so far as they were detrimental to the rights of
the lawful king, that act was so long afterwards that it would not
account for the title of the earl of Oxford in the interval. Therefore
they were driven, in upholding the earldom, to rely on the act of
the 16 Rich. II. For then, they would not have to rely on the
act 21 Rich II., which has been repealed, nor on a charter alone
which might have been said to be defeated by reason of the
attainder, renewed by 1 Hen. IV. Therefore, the argument of
the chief justice was directed to show that the title to the earldom
rested on the 16 Rich. II., and in the argument he let fall some expres-
sions which had the appearance of implying that without an act of
parliament a dignity could not be limited to heirs male expres-
sions, however, which have been misunderstood, and were mere
arguments, and had no judicial authority. " In the case in question
the earldom is given, granted, and restored by assent of parliament
to Aubrey De Vere and his heirs male for ever, which is a special
limitation to the males by parliament, and are of the ordinary rules
of law, for the limitation subsists by parliament." The meaning of
this, it is conceived, was, that as the limitation was by assent of
parliament (i. e., as the chief justice goes on to show, by act of parlia-
ment), the ordinary rules of law which might interpose a difficulty
by reason of the renewal of the attainder did not apply. And he
drew the necessity for an act of parliament not to create an estate
or dignity descendible to heirs male, but to alter an estate or dignity
already existing, descendible to heirs general. "And this is a
qualified restitution and a gift of another estate. And if it were not
an act of parliament it could not properly make him earl, nor
give him this especial estate tail that parliament intended." That
is to say, without the act the attainder could not be reversed, and
the earldom could not be restored at all ; and next, without the act,
when it was restored, it would be of the old estate, descendible to
heirs general, not to heirs male, whereas the object was to preserve
it to heirs male, and hence the necessity for an act to alter the tenure
of the earldom, and make it descendible to heirs male. This is so
evidently the plain sense and meaning that it is extraordinary, and
could only have been by reason of some preconceived theory that it
NO LEGAL OBJECTION TO IT. 91
did not and could not arise, and based upon a hasty supposi-
tion of an identity between the course of descent, in regard
could ever have been supposed that the chief justice meant that
there could be no limitation of a dignity to heirs male without an
act of parliament. So far from it, he implies just the contrary, for
he calls it a special estate tail. Now, if it were a special estate tail,
then it would be clearly legal, and attainable as a mode of descent,
even of an estate tail in lands, and therefore, assuredly, would be
an estate or a dignity like an earldom. For it would be within the
statute de donis conditionalibus, which enacted that gifts of lands
and tenements in tail should be observed, i. e., that the lands should
descend according to the entail, notwithstanding any alienation by
the holder. Lord Coke had already pointed out that the statute
did not apply to dignities ; and chief justice Crew says the same
thing in the course of his judgment. But then it would not be
necessary to bring them within the statute to protect the entail,
because dignities cannot be alienated,, and the statute was only
requested to prevent alienation. As already has been shown, the only
necessity for a statute on the subject of special limitation of estates
in the nature of entails was to protect them from alienation, but
dignities cannot be alienated, which was held in this very case of
the earldom of Oxford, so that there could be no necessity for a
statute to protect such special limitation of a dignity. Mr. Justice
'Doddridge said, " If a man be created earl to him and his heir, all
men do know that although he have a fee simple, he cannot alien or
give away this inheritance, because it is a personal dignity annexed
to the posterity, and fixed in the blood." (Doddridge, J., in
the case of the earldom of Oxford, Jones' Eeports, 113,) In that case it
was held that it was so of an office of state such as the office of great
chamberlain so that it could not be alienated by the grantee. It
is true the chief justice goes on, under another head of his argument
what estate is given by 10 Eich. II., whether an entail or a special
estate to the males to say, " It is plain that in the case of a common
person, it were a fee simple if a common person made such a gift.
If the king made such a grant by patent, it is void in law ; it is
so in the king's case." But for this position no authority is cited ;
and it is clearly contrary to the former proposition that it was a
special estate tail. And it was merely put as an argument to them
that it was not to be taken as a grant in fee simple, and that it was a
grant in tail founded on the act of parliament. It was necessary, in
92 DESCENT OF EARLDOM TO HEIRS MALE.
to dignities and estates, which does not really exist, and the
very contrary to which is supported by all authority. For
so far from there being an identity between the course of de-
scent, in regard to dignities and estates, there are necessarily
great variances between them, and the course of descent
as to dignities is quite different from the course of de-
scent as to estates the rules and principles applicable in
regard to dignities being very different from those which
apply in respect of property, because the reasons applicable,
and the objects of public policy to be answered, are entirely
different in the two classes of cases.
And these differences between the course of descent as to
dignities, and as to estates, had been established in many
ways, with reference especially to that preference for male
heirs over female, and for male heirs collateral over female
heirs lineal, which forms the essence of a general limitation
to heirs male (a).
order to support the view taken by the court in favour of the heir
male, for if it was to be construed as a grant in fee simple, lord
Willoughby was entitled as the heir general. And unless it was
rested on the act, the revival of the attainder might have affected it,
so, as an argument to show that the grant could not be taken as a
grant in fee simple, the chief justice says that it had been altered by
the act into a grant to heirs male, and that an act was necessary for
that alienation, and therefore that it was by virtue of the act. And
in the heat and stress of this argument the above words were
dropped, which were, it is conceived, without any authority, and are
contrary to the high authority of lord Coke. However, these words
having been dropped by a judicial authority in the course of the
case, they produced an impression that a grant of a dignity to heirs
male could not be made without the authority of parliament.
(a) As already seen, the common law, as to estates, preferred heirs
male to heirs female, in the same degree, so that the elder of several
brothers took, though not the elder sister, and the course of descent
as to dignities gave a still greater preference, and preferred heirs
male to heirs female even in the same degree, so that (for example)
NO LEGAL OBJECTION TO IT. 93
And any objection to the validity of the grant of a dignity
to heirs male would be equally opposed to authority and
reason (a), which had alike established in all ages that
a descent of a dignity to heirs male general was more for
the benefit of the state, with a view to services to be ren-
dered to the state by the holder of the dignity, than its
descent to heirs general, which would include heirs female.
And that there could be no foundation in reason for any
dignities could, by prerogative, be made to descend on the male
issue of the elder of several sisters, which was in fact making them
descendible to heirs male. So the half blood could inherit dignities,
though not estates that is, a male of the half blood would inherit
before a female nearer in degree. This was quite contrary to the
law as to estates, in which a sister of the whole blood would inherit
before a brother of the half blood, yet it was settled in the Fitz-
Walter case (1670) that the half blood could inherit a dignity, and
as males have preference in the same degree, a brother of the half
blood w*il inherit a dignity before a sister of the whole blood. On
the other hand, it was settled in the Grey de Euthin case (1640), that
the heir of line that is, the heir in the right line of true descent
would inherit a dignity created by writ of summons in preference to
the heir of the whole blood.
(a) Lord Coke again and again points out that there is a difference
in the descent of dignities, because it was for the benefit of the
crown that they should descend to heirs male, who could render
services which females could not. This, which in ancient times
applied to military service as well as service in parliament, now
applies only to the latter, but the argument is equally cogent. To
some extent this was the common law course of descent. It is
common law that the next of the worthiest blood shall ever inherit,
as the male, and all descendants from him, before the female. (Cote
upon Littleton, 14.) This principle, however, he points out, was
carried further by the law in respect of dignities on the principle on
which knight's estates descended to the eldest son, even when
other land was divided. And then he goes on to point out that as
regards the descent of the crown the rule of descent is different from
that of the common law in several respects (Ib. 16), and in his
comments on the chapter of Magna Charta as to heirs of earls and
barons he says "heirs" meant male heirs. (1 Inst.)
94 VALIDITY OF GRANT OF THE EARLDOM.
objection to such a grant, but that the objection would be
without any reasonable ground, might well appe'ar from
this consideration, that it would make the dignity de-
scendible exactly as it would descend under a limitation to
heirs general, (which has never been objected to,) except
in omitting heirs female (a), so that the objection would
really come to this : that a dignity must be granted so as
to descend to heirs female that is, to heirs female lineal, in
preference to heirs male collateral although females are
incapable of rendering those services in parliament, which,
in modern times, have been supposed to be the consideration
and object of such grants.
If there were really any doubt of the validity of the
patent, it should be brought to a legal determination. The
validity of the grant of an inheritable dignity, which con-
stitutes an inheritance infinitely more noble than the largest
estates, could only be impeached by the crown, (or some
grantee of the crown,) in a solemn legal proceeding (&), in
(a) As already mentioned, on a grant to heirs general, the male
heirs of the second issue would have prefei'ence over females, and
females would only come in on failure of male heirs of the same
degree. But female heirs are, in the case of sisters, liable to be
involved in an abeyance, and on a grant to heirs general, the crown
cannot have recourse in such a case to heirs male collateral, and
the benefit of the dignity is lost to the state perhaps for a century.
(6) This was laid down in the case of the earldom of Banbury,
in the reign of William III., when the attorney-general set up a
resolution of the lords against the claim as conclusive ; and lord
chief justice Holt, and the whole Court of King's Bench, held
that it was not so, for that the lords had no judicial jurisdiction,
except by way of appeal ; and that, although ordinarily the crown
referred a claim to them, their opinion was not decisive ; and if the
claimant did not abide by the determination of the crown thereon,
the crown must send into chancery for the letters patent to be re-
pealed if repealed they can be by writ of scire facias, to be tried
HOW TO BE DETERMINED. 95
Avhich matters of law could be judicially determined in a
solemn manner by all the judges, and then carried by
in the King's Bench in the ordinary course. " For," said the lord
chief justice, " the earldom of Banbury was an inheritance ; and the
inheritances of peers in their honours are determinable by the same
law, and in the same manner, as those in their lands ; and the lords
have not, iior ever had, any right to determine them. The case of
the earl of Oxford was upon a reference by the king, for the way is
for a peer to sue to the king by a petition, which is a petition of
right ; and upon this the king, if the party submitted to the deter-
mination, refers it to the lords, who examine it and make their
report to the king. The resolutions of the house of peers in claims
to dignities, upon a reference from the crown, is merely for the pur-
pose of information, as appears from the way in which such refer-
ences are worded ; nor can they be considered as judgments, in any
sense of the word. And though the crown has generally acted in
conformity to such resolutions, yet it is clearly not bound by them.
The supreme jurisdiction in peerages is, and has ever been, deemed
part of the prerogative of the crown, and the authority of the crown
to proceed in the investigation of those cases is derived therefrom.
The usual language of the reference implies that it is made only for
advice or information of how the same shall appear to their lordships,
as to which there is nothing, even expressed or implied, that can be
construed into a waiver of the prerogative on the part of the crown."
(Cruise on Dignities, p. 298.) "And upon their report the king makes
a determination, &c. But if the party does not submit the matter to
the king, or does not abide by his determination, then the king ought to
indorse his petition with a soit droit fait, and send it into chancery ;
and it being there, a commission ought to issue to examine the
matter of the petition ; and this being found, then the attorney-general
ought either to traverse the matter or to demur ; and if he traverse
it ought to be sent into the King's Bench and tried there.'' (Citing
Stanford's Prerogative, 92.) " So that the subject has his remedy
in these cases by the common law of England, in an ordinary course,
in the courts of the king ; and they are not determiuable before the
lords in parliament, except when the party becomes remediless by de-
fault of justice in the inferior courts. And the lords have not one law
to determine their inheritance in their dignities, and another to deter-
mine their inheritance in their estates. But if the creation of these
barouies be a question, this ought to be tried by matter of record. If
96 DESCENT OF THE EARLDOM.
appeal to the House of Lords, and there judicially deter-
mined, with the advantage of deliberate consideration and
discussion.
These considerations would have greater and peculiar
force in a case in which the original holder of the earldom
had met his death on account of his adherence to his.
sovereign, and had been murdered in the prosecution of a
treasonable design upon the throne ; and in which, if any
difficulty had arisen (a), in the way of the claim by his
the derivation of the right be denied, as if such was the ancestor of
such, which is a matter of fact, this shall be tried by a jury, as other
matters of fact shall. As for the law and custom of parliament for
the determination of inheritances, I know of none but the common
law of England, which is the birthright of every Englishman. The
earl of Banbury could not be ousted of his dignity but by attainder
or act of parliament, or judgment in scire facias upon his patent."
At the end of lord chief justice Raymond's report of the case, there
is this passage : " Note, that this judgment was very distasteful to
some lords, and the lord chief justice was summoned to give his
reasons in the house of peers, and a committee was appointed to
hear and report them. But the chief justice refused to give them in
so extra-judicial a manner, and he said, ' if the record was removed
before the peers by writ of error, and it came judicially before them,
he would give his reasons.' But error was not brought."
(a) If, for instance, laches were of any consequence in such a case,
no one could doubt that it had been caused by the peculiar circum-
stances of the fate of the first earl. He had been murdered by an
usurper, and his estate, with all his deeds and writings, seized, in-
cluding, no doubt, the patent of his earldom. The usurper ascended
the throne, and obtained an act of indemnity, so that the estates
were gone ; and as to the grant, no record of it remained, except in
the archives of the crown, to which, during the continuance of the
usurper's dynasty, no member of the house of Scrope was very likely
to have access. The next two heirs to the earldom died within three
years, and the next was an infant, so that, in all probability, if the
terms of the grant were known to the family, the tradition of it
soon died out, and the estates of the family were only fitted for the
dignity of a baron and not suited for that of an earl. Moreover, the
earldom had been re-granted, by the usurper's successor, to another
REASONS FOR NON-CLAIM. 97
heir, it had arisen entirely by reason of the acts of a
wrongful possessor of the crown.
So far, however, from there having been any doubt
family. And that being so, even if the Scrope family had been
aware that the grant of the earldom of Wiltes was to heirs male,
which most probably they were not for Dugdale does not mention
it, no copy of it was existing at Bolton, nor was it mentioned in any
history, or on the rolls of parliament and even had they been dis-
posed at that time to claim an earldom, without the estates adequate
to its support, (which, most likely they would not be disposed to do),
they would not be likely to do so in the face of the fact, that the
dynasty of the usurper who had murdered their ancestor treated
the earldom as forfeited, and had actually assumed to re-grant it.
This, of course, was an illegal act, in any conceivable view, for there
clearly had been no forfeiture ; and if there were any pretence of a
doubt as to the validity of the original grant of the earldom, the
crown ought to have sued a scire facias to repeal it. While it stood,
it was, as against the crown, which had granted it. good and valid ;
and until there had been a legal revocation or forfeiture of it, it pre-
cluded a grant of the same title to another. But the fact that it was
so granted showed a determination on the part of the crown (perhaps
from not observing the terms of the original grant) to treat the
earldom as gone ; and as it was again and again re-granted until the
sixteenth century, it would be hopeless to claim it. Then, after the
troubled times of the Rebellion and the Revolution, there came penal
laws, prohibiting Catholics from holding lands ; and such times were
little favourable to a claim by a Catholic family to an ancient earl-
dom. Those penal laws continued in force until the last century,
and the laws disqualifying Catholics from sitting in parliament were
in force until 1829. About that time, by a mere accident, a disco-
very was made which led to the disclosure of the patent which
granted the earldom of Wiltes. In 1829, the original charter by
which the earldom of Wiltes had been granted was published in the
Appendix to the Report on the Dignity of a Peer. In like manner
the Devon charter was accidentally discovered by the late sir Harris
Nicolas. In 1830, the claim was made in the- Devon case, and in
the judgment in that case, the grant of the eai-ldom of Wiltes which
was in the same terms as in the Devon case was alluded to by the
lord chancellor. Then, and not, probably, until then, the attention
of the Scrope family was called to their claim.
98 CLAIM TO THE EARLDOM OP WILTES.
thrown upon the validity of such a grant of a dignity, it
has been held recognized again and again (a) by committees
of privilege, in the House of Lords, that such grants of
dignities are perfectly good and valid.
In one of those cases that of the earldom of Devon
brought before the House of Lords in our own time 3 the
case of the earldom of Wiltes, in which the terms of the
patent were the same, was naturally adverted to (&), and
(a) Asm the case of the earldom of Airlie, created in 1639, to be held
to the heirs male succeeding to a certain estate, which would have gone
without the least objection according to that limitation, but for the
occurrence of an attainder during the lifetime of a person in posses-
sion. The heir was attainted of treason in the lifetime of his father,
and survived him, leaving a brother possessed of the family estate.
It was admitted that (by virtue of an act of Anne as to forfeiture,)
the case depended upon English law, and also that, but for the
attainder, the right to the earldom would be indubitable ; and the
only question made was whether the attainder barred the descent
the attainted person being dead in the lifetime of his ancestor ; and on
that ground, and that ground alone, it was held that the claim was
defeated. (Cruise on Dignities, 132.) That is to say, it was not
doubted that the grant was valid, and that the attainder of issue not
in possession, and not dying in the life of the person in possession,
would have been no bar.
(6) In that case, the attorney-general of the day went no further,
in referring the case to the lords, than to express a doubt as to the
validity of the patent, which was precisely the same as in the Wiltes
case a doubt however evidently arising only from the false tradition
created by the obiter dictum of lord chief justice Crewe, and an
acquaintance with the distinct authority of lord Coke. But after
the Devon case there could, we might think, be no doubt. The lord
chancellor (lord Brougham) in giving judgment in the Devon case
showed attention to the Wiltes case. He said, " In the 21 Rich. II.,
nine peers were created, to all of whom the peerage was limited to
the heirs of their bodies, excepting earl Scrope, wliOj being a par-
ticular favorite, had the dignity granted to him and to his heirs
male in perpetuance, a circumstance which shows that though siich
a grant was not at that time general, it was not unknown. The
REASONS FOR NON-CLAIM. 99
the validity of such grants, already abundantly established
by the authority of lord Coke, was illustrated and enforced
by the vigorous reasoning of lord Brougham.
When, therefore, after a long period of non-claim, for
which there were ample and abundant reasons (a), the
grant in the present instance is in similar terms, and the proof of
pedigree is satisfactory. The only question, therefore, is, whether
by the laws which regulate the descent of honours, this grant carries
with it a right of succession in favour of collateral heirs. The rule
of construction applicable to grants of land has therefore truly been
said not to extend to grants of honour, or of armouries or arms, which
are but a species of honour. (Coke on Littleton.) The power of the
crown to make such a grant as this is not denied. This admission
rests on the fact that grants of a similar kind have been before
made. In the next place, on the reason of the thing, such a grant is
not objectionable, for it is hardly greater than a grant to the heirs
general of a man's body, on which the honour will descend to the
collateral heirs of the issue. If the crown grant a barony by
summons, with a seat in parliament, the dignity will descend to the
heirs in tail general, and will therefore vest in females as well as
males. Now if such a dignity should descend to a daughter, she
may marry a man of a different family, and the blood of the next
taker will only be connected with the original family by a female.
The same thing may happen again and again, until at last the
dignity gets to such a distance from the first family that it becomes
impossible to trace it to the original stock." In the Devon case the
grant was held valid, and the claim was allowed; the grant, be it
observed, being in the same terms as in the Wiltes case. And so in
1841, in the Hastings case, the claim was admitted on a patent in the
same terms. In the Hastings case, decided in 1841, no one had
been summoned, or sat in parliament, under the dignity claimed,
since 1325, and the honour had been unjustly assumed and borne by
another family from 1391 to 1642; but the non-claim and. the
usurpation had no effect, and upon proof of the claimant's title the
claim was admitted. The grant in the Hoo and Hastings case, as
in the Wiltes case, was to heirs male ; and it was in the time of
Hen. VI.
(a) The non-discovery of the patent would, of itself, have ac-
counted for it, and would be all the greater excuse, considering tho
u 2
100 CLAIM TO THE EARLDOM OF WILTES.
claim to the earldom of Wiltes was made by the undoubted
heir male of the original earl, it might have been supposed
that it would have appeared so clear, and so undoubted,
after the opinion in the case of the earldom of Devon (a),
that it might well have been admitted, even without a
reference to the House of Lords at all. And, considering
the circumstances under which the first earl had lost his
life in the service of crown, such an act would have been
as graceful, as it would undoubtedly have been legal.
And no one would certainly have supposed that after a
reference to the lords, and ten years' consideration of the
case, the crown would have opposed the claim and on the
circumstances uuder which it had been lost. The confiscation of the
estates granted for the support of the earldom would again have
been sufficient reason for the non-claim. Nor was this all ; the
heirs male continued to be Catholics, and the lineal heirs male ter-
minated in 1625, with the death, without issue, of a lord Scrope,
who had been created earl of Sunderland. The times which followed
were not times in which Catholics would be likely to claim a peer-
age, and in point of fact, the barony of Scrope continued unclaimed
after that time as well as the earldom. No one would say that the
claim to the barony was prejudiced by the delay of two centuries
amply accounted for by the penal laws against Catholics and yet
for that delay there was not the excuse which can be made for the
non-claim of the earldom, viz., that the patent had been lost, and
lost by the wrongful, illegal, and violent act of an usurper of the
crown ; and that the limitation in it was therefore beyond all doubt
unknown. The fact, however, of the non-claim of the barony would be
admitted to be no possible bar to the claim whether accounted for
or not accounted for ; so the non-claim of the earldom could be no
bar.
(a) In the Banbury case it was laid down that a reference to the
lords is only a voluntary courtesy on the part of the crown, and
not necessary. And, as in the Devon case, the house had held a
similar limitation to be valid and even before that case there had
only, as the attorney-general said, been a doubt as to the grant (a
doubt grounded only on an obiter dictum, against the weight of
authority and the current of precedent,) the crown might surely
COURSE TAKEN BY THE CROWN. 101
ground of the suggested invalidity of its own grant (a), or
on account of the supposed presumptions arising from the
illegal acts of an usurper.
The crown, however although it had repeatedly, in other
cases, made similar grants, all of which had been admitted
to be valid, and had never, in any other instance, dis-
puted the validity of such a grant, and did not in this case
venture to take those legal proceedings to set it aside, which
it would be its duty to take, if such a grant was illegal (6)
actually opposed the claim to the earldom of Wiltes (c)
on the ground that the original grant was invalid, and also
on the ground that the illegal act of an usurper in murder-
have been justified in deeming that there was no doubt at all after
that decision.
(a) The claim was in 1859, when there was a reference to the
House of Lords, where the case remained until the session of 1869. Tn
the course of those ten years two learned lords, whose names it is im-
possible to mention without respect, and both of whom heard the case,
lord Wensleydale and lord Cranworth, unhappily died. Two other
learned lords, elevated to the house in the meantime, lord Romilly
and lord Westbury, did not take part in the case, and thus it was
ultimately determined, in effect, by one English law lord, lord
Chelmsford, who would, no doubt, admit that it would have been
an advantage to have had the assistance of other learned lords.
(&) The proper course to set aside an illegal charter or grant by
letters patent, is to bring a writ of scire facias to repeal the grant.
So it was laid down in the Baubury case, of which Mr. Hallam
approved. (Const. Hist. And see Butter v. Chapman, 8 Meeson <
Welsby's Reports)
(c) No allusion was made to the re-grant of the earldom of Wiltes
to the family of Paulet. But that, in reality, raised no difficulty,
because, as already pointed out, the members of that ancient and
distinguished family had never sat by that title, having been
barons before they acquired it, and having afterwards acquired a
marquisate, by which title they have ever since sat ; so that in their
family it is a mere titular honour, which, in effect, is merged in a
greater.
102 CLAIM TO THE EARLDOM OF WILTES.
ing the first earl, and seizing his estates for which he
himself had deemed it necessary to obtain an act of in-
demnity amounted to a legal forfeiture of the dignity.
That is to say, the crown had lately acquiesced in the
opinion of the House of Lords in favour of the validity of
such a grant ; yet now, without venturing to take any legal
proceedings to set it aside, opposed it as invalid, and also
as legally forfeited ; and sought to obtain an extra-judicial
opinion against it, from the tribunal which might ultimately
have to determine upon it judicially ; and would thus have
been committed against it.
It is conceived that this course was unjust, and also un-
constitutional, and that if the crown intended to dispute
the validity of the grant, or to set up a legal forfeiture of it,
the proper and legal course should have been taken, in which
the opinions of the judges and the House of Lords would
have been legally and judicially obtained, without the
claim being prejudiced by any extra-judicial expressions
of opinion.
As it was, however, a course was taken, by which, at a
time when only one single English law lord survived to take
part in the case, an opinion was elicited in the House of
Lords against the claim (a-); although as that opinion itself
(a) Lord Chelmsf ord delivered the opinion. He said : the claimant
had proved his descent as heir male general to sir William Scrope,
who, by charter, in the 21st year of king Richard II., was created
earl of Wiltes, " to have to him and his heirs male for ever." The
questions which arose upon this claim were first, whether a patent
granting an English peerage to a man and his heirs male for ever
was a valid patent ; and, secondly, if so, whether the earldom
granted to sir William Scrope was not afterwards determined by
attainder or forfeiture, or in some other manner. The first question
was one of great interest and importance. The counsel for the
claimant, indeed, contended that it was no longer open to dispute, as
it had been conclusively settled in his favour by the decision of the
OPINION OF THE LORDS UPON IT. 103
was at variance with the opinion previously delivered in the
case of the earldom of Devon, it proceeded necessarily upon
committee for privileges upon the claim to the earldom of Devon,
which the present committee were bound implicitly to follow. But
he could not agree that the determination of one committee for
privileges must be a binding and conclusive authority upon another.
It might be conceded that an opinion expressed by those who were
exercising a quasi judicial function would always be entitled to
respect and consideration, but it could not claim, the authority of a
final decision upon any particular point of law in the same manner
as a judicial determination of the house sitting as a tribunal of
ultimate appeal from the judgments and decrees of the courts of law
and equity. The resolution of a committee for privilege in favour
of a claimant agreed to by the house, and communicated to the
crowu, and which was followed by a writ of summons to the claim-
ant by the title of the dignity claimed, established the right to that
dignity, at all events from the date of the writ of summons, which
could never afterwards be called in question ; but the nature of the
proceeding upon a claim to a peerage tended strongly to show that
a resolution of a committee for privilege was in no sense a judg-
ment, and though admitted to be prima facie valid and conclusive,
yet it did not establish a precedent which all future committees are
bound to follow. The proceedings commenced with a petition to the
crown the fountain of honour praying for a writ of summons by
the title of the dignity claimed. The petition was referred to the
attorney-general, who examined into the claim and reported upon
it. Although his report might be favourable to the claimant it was
in the discretion of the crown whether or not the claim should be
referred to the House of Lords. It was the modern practice in all
cases where the attorney-general reported in favour of the claim-
ant to refer the matter to the House of Lords, and for that House
to make an order that the petition be referred to the committee for
privileges. Upon the hearing of the case the committee came to a
resolution, which was reported to the House, either that the claim-
ant had established or that he had failed to establish his right to
the dignity claimed. The resolutions of the committee were merely
for the information and the advice of the crown. The crown,
although it generally acted upon, was not bound by them. It might
exercise its own discretion in giving or refusing its assent to the
resolutions. That they could not be regarded as final judgments,
104 CLAIM TO THE EARLDOM OF WILTES.
the avowed assumption, that such opinions are of no judicial
authority ; for if so, of course, the opinion in the Devon case
would have been itself a decisive authority.
No doubt, happily for the claimant, such expressions of
opinion, being extra-judicial, have no binding judicial au-
thority, though they are on that very account to be depre-
cated as tending to commit or prejudice the very tribunal
which would have judicially to determine on a legal litiga-
tion of the claim.
But the deliberate expression of opinion, after great con-
sideration, by a lord chancellor, and noble and learned lords,
in accordance with the authority of lord Coke and supported
by precedents, and acquiesced in by the crown, ought
surely to have been followed, in the absence of any appear-
ance of authority, or any attempt at reasoning to justify
departure from it. Instead of which, it appears to have
which, when once pronounced, must not be departed from, appeared
from the cases of the barony of Willoughby De Broke and the
dukedom of Brandon, mentioned in Cruise on Dignities (196 and
306). The noble and learned lord stated those cases, in each of which,
upon a second reference, the house resolved that the claimant was
entitled to the dukedom, in direct contradiction to their former
opinions. "Therefore it must be taken that if the House of Lords, as
a court of final appeal, should decide erroneously upon a question of
law, their error must be corrected by the interference of the legis-
lature. But if the opinions expressed by one committee for privi-
leges were to be binding upon all that followed, and, to use the
words of lord Eldon, a peer should be created by mistake, it was
not easy to see the way to the sort of corrective legislation which
could be applied, and an error once committed must be perpetuated
to all future time in the advice given by the house to the crown
upon the claim to dignities of a similar description. Upon these
grounds it appeared to him that the advice given to the crown with
reference to the claim to the earldom of Devon could not have the
effect of preventing the inquiry by this committee into the validity
of the limitation of the dignity now under consideration."
OPINION OF THE LORDS UPON IT. 105
been assumed, that because it \vas not necessarily conclu-
sive it was of no consequence at all (a), and that it might
be set at naught without the least pretence of an argu-
ment against it.
An opinion adverse to the validity of the grant could only
be based and accordingly was based on an assumption
of its invalidity ; that is, an assumption of a supposed
rule of law against grants of estates to heirs male ; and an
assumption that it applied to grants of dignities ; neither
assumption having the authority of any judicial decision,
(a) Lord Chelmsford thus summarily dealt with the question of
the validity of the grant : There was no reason to suppose that there
was any mistake in the wording of the patent of creation of the
earldom of Wiltes. Was, then, the patent with its limitations valid
or altogether void, or good for the grantee's life and void for the
rest ? The crown might undoubtedly create peerages with every
sort of limitation \vhich the law recognizes. It was even said that
a man might be ennobled during the life of another or for years,
but such grants could hardly be maintained, and were, at all events,
not likely to be made. In considering the patent of creation of this
peerage, he would assume that it was in entire conformity with
king Richard's intentions, and that he had every motive for creating
the dignity with the peculiar limitations assigned to it. The ques-
tion then presented itself, whether it was competent to the crown
to give a dignity, a descendible quality unknown to the law, and
thereby to introduce a new species of inheritances and succession. The
question put in that way seemed to answer itself. The crown could
have no such power, unless there was something so peculiar in a
dignity, so entirely within the province of the crown to mould at its
pleasure, that a limitation void as to every other subject of grant
was good and valid in the creation of a peerage." This was all lord
Chelmsford thought it necessary to say on the subject. He quietly
assumed that the patent was invalid, without even noticing the
authorities, or the reasoning in its favour. It is not too much to
say that lord Chelmsford's mere opinion (however entitled to
respect) is hardly enough to outweigh the authority of lord Coke
or the reasoning of lord Brougham.
106 CLAIM TO THE EARLDOM OF WILTES.
and the latter being against the whole current of au-
thority.
Such an opinion, in the absence of, and even against
authority, would probably proceed, and in this instance it
apparently did proceed, upon grounds entirely fallacious (a),
(a) Lord Chelmsford said, " it could only be after his death, and if
a successor appeared to claim the title, that an objection to the ex-
tension of the dignity beyond the life of the original possessor could
possibly arise." This was, it is conceived, a fallacy ; a grant is entire,
and if invalid, was invalid when originally issued, so that the
question of its validity arose when the first earl sat under it. Never-
theless, it has been shown it was abundantly recognized. Lord
Chelmsford proceeded : " With regard to the dignity now in question :
more than four centuries and a half had elapsed from the death of
the grantee and sole possessor of the title without any person assert-
ing a claim to it, although for nearly the whole of that long period
there had been no impediment to any one really entitled coming
forward and establishing his right. Much discussion arose as to
whether the earl of Wiltes had committed treason, and thereby for-
feited his dignity ; but he thought that of treason strictly so called
the earl could not have been guilty, because he was put to death
while Richard II. was still sovereign, to whose cause he adhered to
the last. That William Le Scrope had borne the title of earl of
Wiltes there could be no doubt, and held it under the grant in
question : which, if valid for him, was valid as to his heirs, and if
invalid as to his heirs, was invalid as to him ; for he was not created
by writ but by patent. The question was, whether, at all events, it
did not end with his life. From the time of the death of the earl to
the present claim, as already observed, not the slightest recognition
of the title had ever occurred. The only possible way of accounting
for this was the belief of those who would have been entitled to
succeed that no right of succession remained. It seemed to him
that it would be improper for this committee, in the obscurity which
surrounded the proceedings, to conjecture that in the forfeiture of
everything belonging to the earl of Wiltes which was left to forfeit,
his earldom was spared and permitted to continue as an hereditary
dignity. He should have been prepared to decide against the claim
upon that ground, even if he had thought that the grant of the title
in succession was originally valid ; but he felt bound to state the
FALLACY OP THE OPINION AGAINST IT. 107
upon prejudices, suspicions, or supposed presumptions aris-
ing from the long lapse of time, without, perhaps, sufficient
attention to the circumstances under which the earldom had
originally been lost, or the reasons for the non-claim which
the history of the case afforded.
It will be found, indeed, upon examination that the
opinion really proceeded upon assumptions entirely con-
trary to legal principle (a); as, for example, that a forfeiture
opinion to which, after an anxious and careful consideration, he had
been led that whatever might have been the right to the earldom
of Wiltes of William Le Scrope during his life, yet, as the prescribed
course of succession was now unknown to and unsanctioned by the
law of England, and which nothing but an act of parliament could
establish, the earldom of Wiltes ceased to exist, at all events upon
the death of William Le Scrope, and the claim of a right of succession
to the dignity necessarily failed."
(a) Lord Eedesdale said that, "after a careful consideration of the
evidence, it appeared to him that this claim must be considered as
already res judicata. There was a decision in the first year of the
reign of Henry IV., which could not be held to be less than a
judicial decision of the highest court of the realm, and it affirmed
that the proceedings against Scrope, Grene, and Bussy were good.
As regarded Scrope, it invoked the decision as to whether he was
rightly tried and convicted with the others as a commoner. It could
hardly be doubted that when arrested he claimed, as earl of Wiltes,
to be tried by his peers, and this was refused. That he was held to
be a commoner was clearly proved by his being called William Le
Scrope throughout these proceedings, and all the collateral evidence
showed that this must have been on account of the invalidity of the
original grant. The lords temporal were asked to affirm the pro-
ceedings which they did unanimously, and thereby declared that
William Scrope was rightly tried as a commoner, which could only
be because they held that the grant of the earldom of Wiltes was
void ab initio. It appeared to him impossible to pass over this
record without determining why William Scrope was not therein
recognized as earl of Wiltes. The attention of the counsel for the
claimant had been particularly directed to the point, and he failed
altogether to give any satisfactory explanation of it. It appeared to
him, therefore, that the invalidity of the grant was then decided,
108 CLAIM TO THE EAKLDOM OF WILTES.
may be presumed from laches or neglect, or that there
may be judicial proceedings against a man after his death,
or that an act of indemnity is an act of attainder, or that
an act of attainder may be without a declaration of guilt or
of crime.
It is not surprising that such an opinion should have
given great dissatisfaction (a), or that a discussion which
and that whether that decision was right or wrong, whether formal
or informal, according to our present notions, it would be a most
dangerous precedent if this committee should determine that a
decision as to the validity of a peerage, come to by the house
between four and five centuries ago and acquiesced in by the person
who could have then claimed it if rightly granted, might now be dis-
puted and set aside." It is astonishing that an English peer should
have fancied that there could be judicial proceedings against a man
after his death ; or that an execution by a rebel could be legal, or
that an indemnity could be an attainder, or that the proceedings of
an usurper and a knot of his fellow rebels could be deemed the
proceedings of a legal parliament ; or that the proceedings of such a
parliament were likely to be in accordance with justice, or to have
the least semblance of legal or judicial authority.
(a) The report of the committee of privileges on this case was
considered, and on the motion that it be received, the duke of Cleve-
land proposed an amendment that the petition of the claimant
to the dignity of earl of Wiltes be referred back to the com-
mittee of privileges, in order that the same may be reheard. The
noble duke was understood to object to the report on the ground that
it contravened the decision given in the Devon case in 1831, and that
several peers who heard the arguments had not concurred in the judg-
ment. The lord chancellor (lord Hatherley) remarked that the cir-
cumstances of this case were very peculiar. The earldom of Wiltes
was created in 1398, in favour of sir William Le Scrope, who held the
office of lord treasurer, with remainder " to his heirs male." On
the landing of Henry Bolingbroke, afterwards Henry IV., Le Scrope,
with two others of Richard II.'s adherents, sir John Bussy and sir
Henry Green, were seized, and, without much of the form of a trial,
were beheaded at Bristol. In the first parliament of Henry IV.
the commons prayed the king that the pursuit, arrest, and judg-
FALLACIES OF THE OPINION AGAINST IT. 109
took place upon it, should have made it manifest that it
had proceeded upon much misapprehension both of the
ments against Le Scrope and others should be declared valid and
good, and for the profit of the realm, and the opinion of the lords
temporal having been given in favour of this prayer, it was affirmed by
the king. Now, the report stated that in the proceedings at Bristol
he was styled sir William Le Scrope, (an entire error, vide ante,} and
that after his death his widow, describing herself as widow of sir
William Le Scrope, petitioned the king for assistance, which was
granted to her." (By the title of the widow of the earl of Wiltes,
vide ante.) " Moreover, no one had since sat in parliament as
earl of Wiltes, so that the claim stood in a different position from
that of the earldom of Devon." With great submission to the noble
and learned lord, that could make no difference as to the right to
sit. Not having heard the argument, however, the lord chancellor
did not pronounce any opinion on the judgment of the committee,
but simply remarked on the grounds on which the reception of the
report was opposed. He thought "it would be taking a very unusual
and very inconvenient course to re-hear the case." So the report
was received, and for the present the claim was unsuccessful. It will
be observed that, as to the facts of the case, the lord chancellor's
statement somewhat departed from the authentic records ; but it
is more important to observe that the points put forward as the
grounds of an opinion adverse to the claim, besides being inac-
curate in fact, were irrelevant in law, for the validity of the patent
cannot possibly turn upon matters subsequent to it, and must depend
entirely upon its terms ; and as to forfeiture, it has been shown to be
clear law, that there can be none, without either a legal judgment for
treason, or an act of attainder for treason, either of which would
require clear proof, whereas in this case both the one and the other
were disproved by the clearest and most positive proof. As to this the
writer may venture to refer to a passage in the notes to his edition
of Reeve's History of the Law, vol. iii., reign of Edward IV. (a).
(a) " It is proper here to notice the subjects of attainder and forfeiture. At-
tainder was a term used to denote conviction for treason or felony in a court of
law, and such conviction involved forfeiture. (Year Book, 8 Edw. IV., fol. 4.)
It is obvious that this law of forfeiture furnished in such an age a strong
temptation to the crown and its servile ministers to seek to obtain convictions ;
and this motive no doubt operated strongly in political cases. The civil wars
which had taken place, owing to the struggles between the two houses of
110 CLAIM TO THE EARLDOM OF WILTES.
facts and of the law. The only satisfaction is that it cannot
possibly be final, and that in a future let it be hoped a
not far distant time, justice must be done to the claimant
the earldom of Wiltes.
York and Lancaster for the sovereignty, had tended to confuse the law of
treason, and to introduce bills of attainder. The most remarkable event in
this reign has escaped the attention of historians, and that was the attainder
of Henry IV. by the title of earl of Derby for treason against Richard II.
(5 Rot. Parl., 463-4.) The act is set out at length in Bagot's case (9 Edw. IV.,
fol. 10.) That it was well grounded in law and in fact there can be no doubt ;
for beyond question Henry, being subject to Richard, did by force of arms
depose him, and put him to death, and this without the shadow of a pretence
of title as appears clearly from the recitals in the act. The legal effect
would be that all the judicial acts of the reign would be null and void ; and
accordingly an act is still in the statute-book (1 Edw. IV. c. 1) specifying such
of the ordinary judicial acts of the reigns of Henry IV., V., and VI., as
were intended to be legalised. No attainders are included, and it is con-
ceived that the legal result is that all the attainders for treason under those
sovereigns are reversed, if, indeed, they ever had any lawful force and effect,
and it is difficult to conceive of an usurper having legal power to attaint for
treason the adherents of the rightful sovereign. This appears to have been
overlooked by the committee of privileges on the claim to the earldom, of
"Wiltes, the first holder of which was murdered by Henry of Bollingbroke before
he became even a king de facto. The first parliament of Henry IV., indeed,
declared the "judgment" in the earl's case " good " (3 Hot. Parl., 453), but there
was no "judgment" upon any charge known to the law, nor could there be
the earl having only served his sovereign, and there could hardly be an attainder
of a man after his death (a). If there could be, then Henry himself was attainted
in the first year of Edward IV. ; and in the course of this reign his attainder
was pleaded, and it was alleged that by reason of it his honour of Bolingbroke
became vested in the king. (7 Edw. IV., fol. 11.) If there was anything that
could be called an "attainder" in the case of the earl of Wiltes, or in others
of the adherents of Richard II., it was null and void according to all the
authorities in this reign, which were not called to the attention of tho
house in the Wiltes case. (Notes to Reeve's History of tlie English Laio, by
Piulason, vol. iii., p. 33, Reign of Edw. IV.)
(a) Except by act of parliament. But in the present case, as has been Shown, there was
no act of attainder, but only an act of attainder. The writer ventures to refer to an article
on the Wiltea case in the Law Magazine, for August, 1869, and to an article in the
Law Journal for June, in accordance with the viewa here submitted.
Lately Published, in Three Volumes,
KEEVE'S HISTORY OF THE
ENGLISH LAW,
FBOM THE TIME OF THE EOMANS TO THE END
OF THE REIGN OF ELIZABETH,
WITH NUMEKOTJS NOTES, AND AN INTRODUCTION, ON
THE INFLUENCE OF THE ROMAN LAW IN THE
FORMATION OF OUR OWN.
In CJ)W Fslumes.
Vol. I. From the Time of the Eomans to the Reign of Edward I.
Vol. II. From the Reign of Edward I. to the Reign of Edward IV.
Vol. III. From the Reign of Edward IV. to the end of the Reign
of Elizabeth.
BY W. F. FINLASON, ESQ.
NOTICES OF THE WORK.
"The faults are but minor defects after all. The argument of the introduc-
tion is so well stated, and so carefully supported by references to authorities,
that it must to a considerable extent convince the reader that the author's
view is the correct one, and that many of the best features of the Roman law
were at a very early date incorporated with our own. And when dealing
with Reeve's work Mr. Finlason shows a range of reading, an amount of
research, and a prodigality of labour, which is never found except when such
a task has been undertaken con amore by one previously possessed of the
essential qualifications for such an undertaking. The notes and comments
now added to Reeves History, so greatly increase at once its volume and its
value, that it is at least an open question whether the work might not have
been advantageously re-cast by Mr. Finlason, who, however, has ' thought
better for many reasons, to adhere to the author's text.' But the fact that
Reeve's work ends with the reign of Queen Elizabeth may suggest to the
editor that in the legal history of later times there is a great and an attractive
field of literary labour practically unoccupied. We trust that the success of
his present venture may be sufficiently decided to induce him to go up and to
possess the land which thus lies invitingly before him." Standard.
" Mr. Finlason is already known as an industrious and painstaking author,
and he has now produced a work which will establish his reputation. "What
Stephen has done for Blackstone's Commentaries, Mr. Finlason has done for
Jteeve 1 's History of the English Law. No doubt Reeve's book is one that
ought to be diligently read by law students, but it has for some years been
too generally neglected. Mr. Finlason has come to the rescue, and his new
edition will find a prominent place in every law library. The term 'new
edition' does not fairly describe the volumes, the first of which is now
before us. Not only is Reeve's work re-published, but it is illustrated with
copious notes, that in themselves constitute an important, complete, and
original work. Although we differ from some of Mr. Finlason's conclusions, we
cordially recommend his introductory chapter to the attention of the student.
It is a clever, lucid, and well supported exposition of the principles of the
Eoman law, and he who desires to be an accomplished lawyer must master the
principles of that wonderful and noble monument of Roman genius and great-
ness. The exigencies of space forbid any further comment on this volume, and,
indeed, further comment would be superfluous. Suffice it to remark that our
author is widely read, and that every page is enriched with the results of his
observant study. "We cannot too highly praise the industry and research of
Mr. Finlason, and we repeat that the work before us will establish his
reputation, and that he deserves the thanks of the Profession, and of all those
who desire to study and understand the origin, history, early development,
and scope of the laws of England." Law Journal, Jan. 7, 1869.
"As to the scheme adopted by Mr. Finlason with regard to this edition,
everything is to be said in its favour. He has left the text of Reeve intact, a
piece of wisdom which deserves the higher commendation because anyone
possessing that profound knowledge of our common law which Mr. Finlasoii
pre-eminently does possess, must be sorely tempted in such a case to do some-
thing more than add notes, elaborate though they may be. The vohime
before us deals with the law from the time of the Romans to the end of the
reign of Hen. III. ; the second will carry us to the end of the reign of
Rich. III. ; and the third terminates the work at the close of the reign of
Elizabeth. It only remains to be said in conclusion that if the second and third
volumes fulfil the promise of the first, the work, when completed, will not only
be one of which the author may be justly proud, but which must add largely to
his reputation, and become a necessary addition to the library of the lawyer.
We trust every energy will be exerted to complete it rapidly, for the spirit of
inquiry abroad in the present day must render such a work of very consider-
able practical utility." Laic Times, Jan. 7, 1869.
"We need scarcely say that Mr.Finlason has brought great learning, industry,
and ability to the task. This introductory dissertation is elaborate and pro-
found ; his notes are ample and numerous. Every mistake in the text is
carefully noted and corrected ; and large stores of information are poured forth
as from a never-failing treasury. It may be questioned, however, whether it
would not have been well if Mr. Finlason had reserved the larger portion of
the learning which he has scattered about in endless notes for an original work
on the history of English law. He has limited his ambition at present to the
continuation of the work of Reeve from the end of the reign of Elizabeth,
where it concludes, to the present time." Law Magazine, May, 1869.
Preparing for Publication by the Author,
THE HISTORY OF THE ENGLISH LAW
FKOM THE EEIGN OF ELIZABETH TO THE EEIGN
OF VICTORIA.
In jFout Uolumra.
Vol. I. From the Reign of Elizabeth to the Revolution.
Vol. II. From the Revolution to the Reign of George III.
Vol. III. The Eeigns of George III. and George IV.
Vol. IV. The Reigns of William IV. and Victoria.
LONDON: STEVENS & RICHARDSON, PRINTERS, 5, GREAT QUEEN STREET, LINCOLN'S INN.
000 087 391
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