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female of his body, and sometimes to the heirs general of his body. It may even be made to descend to some particular heirs male ; as where it is limited to a man, and the heirs male of his body by Elizabeth, his present lady, and not to such heirs by any former or future wife. It may also be limited to the grantee and his heirs collateral as well as lineal ; and if a peerage be granted to a man “ and his heirs male,it will descend, in default of heirs male of his body, to his heirs male collateral (ir). Moreover, the right of primogeniture holds good among males in the descent of dignities, though it is otherwise as to females (y); for if a man holds a peerage to him and the heirs of his body, and dies, leaving only daughters, the dignity is in abeyance, and the king may in that case bestow it on which of them he pleases. Where there is no charter or instrument of creation in existence, and nothing to show how the dignity is to descend, the prima facie presumption of law is, that it is descendible to the heirs male (-). · [Let us next take a view of a few of the principal incidents of nobility, properly so regarded. First, we must observe, that when accused of treason or felony, a peer of the realm is tried by his peers. For the great are more or less obnoxious to the popular envy; and were they to be judged by the people, they would, moreover, be deprived of the privilege of being tried by their peers, which is secured to the whole community by Magna Carta, c. 29 (a). But this does not apply in the case of libel, perjury, conspiracy, and other misdemeanors in for, in all these cases a peer is tried by an ordinary jury in the court where the indictment is found. It is said, (also, that the privilege does not extend to bishops, who, though they are lords of parliament, and sit there by virtue of their baronies, are yet not ennobled in blood, and consequently are not peers with the nobility (6); and it was so resolved by the house of lords in 1692. But both the resolution, and the doctrine of ennobled blood, on which it is supported, are apparently devoid of historical justification (c). As regards peeresses, however, the 20 Hen. VI. (1442) c. 9 has declared the law to be, that peeresses, either in their own right or by marriage, shall be tried before the same judicature as other peers of the realm (d). If a woman, noble in her own right, marries a commoner, she still remains noble, and shall be tried by her peers ; but if she be only noble by marriage, then by a second marriage with a commoner, she loses her dignity. For as by marriage it is gained, by marriage it is also lost (e). Yet if a duchess dowager marries a baron, she continues a duchess still, for all the nobility are pares, and therefore it is no degradation ().] By courtesy, all dowager peeresses, though afterwards married to commoners, are ordinarily addressed by their former title ; and it seems that a peer, who has been divorced by his wife, cannot by any proceedings in the ordinary courts restrain her, upon her marriage with a commoner, from continuing to use her former title (g).

(x) Deron Peerage Case (1831), 5 Bligh (x.s.) 313.

(y) Cru. Dig. vol. ii. p. 244.

(z) See Mar Peerage, Kellie's Claim (1876), 1 App. Ca. 1; and see the 48 & 49 Vict. (1885), c. 48, “ An Act for the restitution of

the antient dignity and title of Earl of Mar.”

(a) For the latest instance of a trial in the House of Lords, see the Trial of Earl Russell, [1901] A. C. 446.

Secondly, peers have certain privileges with reference to judicial proceedings ; for a peer, sitting in judgment on his peers, gives not his verdict upon oath, like an ordinary juryman, but upon his honour (), and he used to answer to proceedings in chancery upon his honour, and not upon his oath (i). But, when he is examined as a (6) 3 Inst. 30, 31.

($) Co. Litt. 16 b; 2 Inst. ubi (c) See Stubbs, Const. Hist. iii. sup. 443, n. 2.

(9) Cowley v. Cowley, [1901] (d) Isabel Countess of Rutland's A. C. 450. Case (1606), Moore, 769 ; 2 Inst. 50; (h) 2 Inst. 49. 6 Rep. 52 b; Staundf. P. C. 215. (i) Meers v. Stourton (1711),

(e) Dyer, 79; Co. Litt. 16. 1 P. Wms. 146.

(witness, either in civil or criminal cases, he must be sworn (k); for the respect which the law shows to the honour of a peer does not extend so far as to overturn a settled maxim, that in judicio non creditur nisi juratis (1). The honour of peers was, however, so highly esteemed by the law, that it was more penal to spread false reports regarding them and certain other great officers of the realm, than it was regarding other men ; such scandal being called scandalum magnatum, and, by divers antient statutes (m), subjecting the offender to peculiar punishments.] But it is to be noted that, as respects punishment for crimes committed by him, a peer, when once convicted, is on the same footing with other men.

The privileges of peerage, it is lastly to be observed, are not extended by the law to such persons as hold foreign titles of nobility, who are in this country no more than commoners. But since the Union with Scotland all the peers of Scotland are peers of Great Britain, and, save a seat in the House of Lords, have all the attendant privileges; and since the Union with Ireland all peers of Ireland, with the exception of such as are elected members of the House of Commons, have all the privileges of peerage, save only the right to a seat in the House of Lords.

And here it is convenient to observe, that the peerage, regarded as a dignity, presents the following varieties, that is to say :-(1) Peerages which in their creation were peerages of England ; (2) Peerages which in their creation were peerages of the United Kingdom of Great Britain ; (3) Peerages which in their creation were peerages of the united peerages of Great Britain and Ireland ; (1) Peerages which in their creation were peerages of Scotland ; and (5) Peerages which in their

(k) Meers v. Lord Stourton (m) 3 Edw. 1, (1275), c. 34 ; (1711), Salk. 512.

2 Ric. 2, st. 1 (1378), c. 5 ; 12 Ric. (l) Earl of Lincoln's Case (1626), 2 (1388), c. 11: all repealed by Cro, Car. 64.

Statute Law Revision Act, 1887.

creation were peerages of Ireland. The dates of the first class are antecedent to the Union with Scotland in 1707 ; of the second class subsequent to that event, and antecedent to the Union with Ireland in 1801; of the third class subsequent to the union last mentioned ; of the fourth class antecedent to the Union with Scotland ; and of the fifth class either antecedent to the Union with Ireland or subsequent, for several Irish peerages have been created since that event, under a power contained in the Act of Union with Ireland, allowing one Irish peerage to be created for every three which become extinct, till the number sinks to one hundred, below which the Irish peerage is not to be allowed to fall.

[A peer cannot surrender (11) or lose his nobility but by death or attainder, though there was an instance in the reign of Edward the Fourth of the degradation of George Neville, Duke of Bedford, by Act of Parliament, on account of his poverty, which rendered him unable to support his dignity (o). That is, however, a singular instance, which serves at the same time, by having happened once, to show the power of parliament ; and, by having happened but once, to show how tender the parliament hath been in exerting so high a power. It was once asserted, indeed, that if a baron wasted his estate, so that he was not able to support his dignity. the king might degrade him (p); but the later authorities have held, that a peer cannot be degraded, save by Act of Parliament (9).] If, however, a peer become a bankrupt, he is, by the Bankruptey Act, 1883, disqualified thereby from sitting and voting in the House of Lords until his bankruptcy is determined ; and, so long as he is disqualified, no writ of summons can be issued to him.

(1) The Purbeck Case (1678), Collins' Baronage, 306.

(0) 4 Inst. 355.
(P) Moore, 768.

(1) Earl of Shrewsbury's Care (1612), 12 Rep. 107; Knowle's Case (1694), 12 Mod. 56.

Secondly, as to the Commonalty of this Realm.—These, like the nobility, are divided into several degrees. But, as the lords, though different in rank, are all of them peers in respect of their nobility, so the commoners, though some are greatly superior to others, yet all are in law peers amongst themselves, in respect of their want of nobility (v).

The first name of dignity, next beneath a peer, was formerly that of vidames (rice-domini), or ralrasors (ravasores) (s), who are mentioned by our antient lawyers (t) as viri magna dignitatis ; and Sir Edward Coke speaks highly of them. But they are now quite obsolete ; and our legal antiquaries are not even agreed upon their original or antient office (u).

At the present time, therefore, the first dignity after the nobility, is a knight of the order of St. George, or of the Garter ; first instituted (in the opinion of Selden) by Edward the Third, in the eighteenth year of his reign (v). Next follows (but not till after certain official dignities, including among others, privy councillors, and the judges) a knight banneret (u), who, indeed, by the 5 Ric. II. st. 2 (1382) c. 4, and 14 Ric. II. (1390) c. 11, is ranked next after barons ; and his precedence before the younger sons of viscounts was confirmed to him by order of King James the First, in the tenth year of his reign (y). But in order to entitle himself to this rank, he must have been created by the king in person, in the field, under the royal banners, in time of open war (2) ; otherwise he ranks after baronets, who are the next order. The title of baronet is a dignity of inheritance, created by letters patent, and

(r) 2 Inst. 29.
(*) Camden, Britan. lit. Ordines.
(1) Bracton, I. 1, ch. 8.

(u) See Pollock and Maitland, Hist. of Eng. Law, vol. i. p. 545, and Maitland, Domexday Book, p. 81.

(c) Seld. Tit. of Hon. pt. 2, ch. 5, xl. citing Froissart, vol. i. ch. 101.

(x) See the Table of Precedence, post, p. 591.

(y) Seld. Tit. of Hon 'pt. 2, ch. 11, iii.

(-) 4 Inst. 6.

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