Infra, c. 3. Bar. Vol. II. 195. Collins 122. bray, which was the most ancient title of the Norfolk family, and was placed first upon the barons' bench. 80. This practice has been adopted in all other similar cases; and it has been determined, that a writ of summons of this kind creates a dignity, which is hereditary in the blood of the person so summoned. 81. In all letters patent, by which a dignity is created, there is a clause of investiture, similar to that contained in the ancient charters. And Dugdale says, the solemn investiture of barons created by letters paAppend. No. 5. tent was performed by the King himself, by putting on the new baron a robe of scarlet, and a hood furred with minever. This form continued till the 18 James 1., when the lawyers declared that the delivery of the letters patent was sufficient, without any ceremony... 12 Rep. 71. Journ. Vol. 1 Inst. 16 b. 12 Rep. 71. 82. In the case of letters patent, the creation of the dignity is perfect and complete, as soon as the great seal is put to the patent. Therefore, although the grantee should die before he takes his seat, yet the dignity will descend to his posterity. 83. Henry Waldegrave being created Baron Waldegrave by letters patent, 1 James 2., to him and the heirs male of his body, but dying before he sat in parliament, his eldest son was introduced in his robes, and took his seat. The late Lord Walsingham took his seat under the same circumstances. 84. It is laid down by Lord Coke, that where a person is created a peer by letters patent, the state of inheritance must be limited by apt and proper words, or else the grant is void. The usual limitation is to Vide infra, c.3. the heirs male of the body of the first grantee. In some it is confined to heirs male by a particular person; and in some the dignity is limited, in default of heirs male, to the eldest heir female. Barony of Say and Sele, printed case, 1781. 85. A dignity originally created by writ may be revived or restored by letters patent; and in such a case the letters patent have been called letters of restitution. 3 Vol. XV. 241. 1 Inst. 16 b. 86. Where a man possessed of a dignity marries, his By marriage. wife becomes entitled to the same during her life, un- Lords' Journ. less she afterwards marries a commoner, in which case she loses the dignity: but if a woman be noble by birth, 6 Rep. 53 6. whosoever she marries, she remains noble; for birthright is character indelibilis. dignities may 87. The Crown being the fountain of honour, may on whom confer dignities on any person whatever, no qualifica- be conferred. tion being requisite for that purpose. "Their number 1 Comm. 517. (says Sir W. Blackstone,) is indefinite, and may be increased at will by the power of the Crown; and once, in the reign of Queen Anne, there was an instance of creating no less than twelve together." Dukedom of Brandon, Dom. Whether they can be refused. 4 Inst. 44. 88. It was formerly held by the House of Lords, that a person who was a peer of Scotland could not be created an English peer: but this is now altered. 89. It seems doubtful whether a person can refuse or waive a dignity. Lord Coke says, "If the King calleth any knight or esquire to be a lord of parliament, he cannot refuse to serve the King there, in illo communi consilio, for the good of his country." And in Lord Ante. Abergavenny's case, the judges appear to have been of that opinion. 90. This doctrine is contradicted by Lord Chancellor 1 P. Wms. 592. Cowper, who held that the King could not create a subject a peer of the realm against his will; because it would be then in the power of the King to ruin a subject, whose estate and circumstances might not be sufficient for the honour. He also held, that a minor might, when of age, waive a peerage granted to him during his minority. 91. Lord Trevor was of a different opinion; and Idem. held, in conformity with Lord Coke, that the King had a right to the services of his subjects, in any situation he thought proper and instanced the case of the Crown's having power to compel a subject to be a sheriff; and to fine him for refusing to serve. He observed that, in Lord Abergavenny's case, it was admitted the King might fine a person whom he thought proper to summon to the House of Peers; it being there said, that a person might choose to submit to a fine and if it were allowed the King might fine one for not accepting the honour, and not appearing upon the writ; the King might fine, toties quoties, where there was a refusal; and consequently might compel the subject to accept the honour. That it was not to be presumed the King would grant a peerage to any one to his wrong, any more than he would make an ill use of pardoning all which were suppositions contrary to the principles upon which the constitution was framed, which depended upon the honour and justice of the Crown. Real Property. ALL Dignities having been originally annexed to lands, Dignities are were considered incorporeal hereditaments, wherein a person might have a freehold estate. And although dignities are now become little more than personal honours, yet they are still classed under the head of -real property. 2. In conformity to this principle it was formerly held that a dignity must have been created of some particular place, in order that it might appear to be annexed to land, and thereby become a real heredita 1 Inst. 20 a. 1 Ld. Raym, 10. Gerard v. Ge rard, 5 Mod. 3 Lev.401. ment. But Lord Holt was of opinion that this is not now necessary. 3. Where a person is created a baron of a particular place, that place, though a family mansion, does not however thereby become the caput baroniæ, so as to exclude a widow from being endowed of it. 4. Thomas Gerard having been created Lord Gerard of Gerard's Bromly, by letters patent, he being then 64. 1284. resident of the said capital messuage, a question arose in a writ of dower, brought by the widow of a Lord Gerard, whether the said capital messuage became thereby caput baroniæ. It was resolved that it did not, because it was not a feudal barony; for the authorities 1Ld. Raym.72. cited must be intended of feudal baronies; and this privilege was allowed to them, because they ought, upon necessity, to defend the realm, to which they were bound by tenure. For the King, at the creation of the barony, gave to the baron lands and rents, to hold of him for the defence of the realm. Then this could not be a feudal barony; for it was in the seisin of the Gerards before; therefore was not given to the Gerards by the King, at the creation of the barony.. The widow recovered dower. What estate may be had therein. C. 1. § 45. 1 Inst. 16 b. 5. While dignities were annexed to lands, the persons seised of those lands, if tenants in fee simple, must have had the same estate in the dignity; and a person might also have a qualified fee in a dignity as appears from the case of John Talbot; which has been already stated.. 6. As to dignities created by writs of summons, Lord Coke says, " And it is to be observed, that if he be generally called by writ to parliament, he hath a fee simple in the barony, without any words of inheritance." This expression is inaccurate; and Lord Coke has corrected it in the same page by adding, "and thereby his blood is ennobled to him and his heirs lineal." |