With whether the earldom continue or be extinct." at Dignities for feited by at and tainder." 36. Every kind of dignity is forfeited by the tainder for treason of the person possessed of it, can only be revived by a reversal of the attainder. 37. Charles Nevill Earl of Westmoreland, to him Nevill's case, 7 Rep. 33. and the heirs male of his body, by letters patent, was attainted of high treason by outlawry, and by act of parliament; and died without issue male: upon which Edward Nevill, in 2 Jac. 1., claimed to be Earl of Westmoreland, as heir male of the body of the first grantee. It was resolved by all the judges, that although the dignity was within the statute De Donis Conditionalibus, yet that it was forfeited by a condition in law, tacitè annexed to the estate of the dignity. For an earl has an office of trust and confidence; and when such a person, against the duty and end of his dignity, takes not only council, but also arms against the King, to destroy him, and thereof is attainted by due course of law, by that he hath forfeited his dignity; in the same manner as if tenant in tail of an office of trust misuse it, or use it not; these are forfeitures of such office for ever, by force of a condition in law tacitè annexed to their estates. It was also resolved, that if it had not been Tit. 2. c. 2. forfeited by the common law, it would have been forfeited by the statute 26 Hen. 8. 38. Persons upon whom judgment of high treason is pronounced, or who are outlawed upon an indictment for high treason, are said to be attainted of high treason. A person may also be attainted of high treason by a special act of parliament, of which there are many instances. And all the ancient acts of attainder Viscounty of are considered as having been passed, and operate from printed case, the first day of the sessions of parliament in which they Treat. of Digwere made. Strathallen, 1787. nities, c. 4. But those in remainder not affected. 7 Rep. 34 a. Collin's Pcer. Vol. II 321. Vol. XXVIII. 204. Printed cases, Dom. Proc. 1754. 39. Where a person is tenant in tail of a dignity, with remainder in tail to another, and the first tenant in tail is attainted of high treason, the dignity is forfeited, as to him and his descendants: but upon failure of such descendants, it becomes vested in the remainderman. 40. Thomas Percy, who was Earl of Northumberland, to him and the heirs male of his body, remainder to his brother Hugh Percy, in the same manner was attainted of high treason and executed, having no issue male; upon which Hugh Percy became Earl of Northumberland. 41. The celebrated Henry St. John was created Viscount Bolingbroke in 1712, to him and the heirs male of his body; remainder to his father, Sir Henry St. John, and the heirs male of his body. Lord Bolingbroke was attainted of high treason in 1715, by act of parliament; and though he afterwards obtained a partial repeal of the act of attainder, yet his dignity was never restored, Upon his death without issue in 1751, Frederick St. John, the grandson, and heir male of the body of Sir Henry St. John, succeeded to the estate in remainder in the dignity. The entry in the Journals is," Frederick, Viscount Bolingbroke, claiming by virtue of a special limitation contained in a patent granted to his uncle Henry, late Viscount Bolingbroke, dated 7th July, 11 Anne, was introduced in his robes, and took his seat." 42. The issue must be capable of inheriting the dignity, otherwise the remainder will take effect. 43. Thus in the case of Gordon v. The King's Advocate, the following question was put to the judges by the House of Lords.-" Tenant in tail male of lands in England, with remainder over, is attainted of high treason, and the estate tail thereby forfeited to the Crown; after this attainder tenant in tail has issue male born in foreign parts, out of the ligeance of the Crown of Great Britain, and dies, leaving such issue male. Quære, Is the estate or interest in the lands which were forfeited to the Crown as, aforesaid, continuing or determined?" The Lord Chief Baron having conferred with the other judges present, delivered their unanimous opinion, that the estate or interest in the lands so forfeited to the Crown as aforesaid, was determined. In consequence of which the person in remainder recovered the estate from the Crown. felony. 44. A dignity created by writ, and descendible to And also for heirs general is also forfeited by attainder for felony of the person possessed of it. For Lord Coke says, if he 1 Inst. 41 6. was noble or gentle before, he and all his posterity are, by the attainder, made ignoble. 45. Mervin Touchet, Baron Audley by writ in England, and Earl of Castlehaven, in Ireland, was attainted of felony, and executed in 1631. His son was created Lord Audley,and Earl of Castlehaven, by King Charles I.; and having faithfully served that prince, he obtained an act of parliament 29 & 30 Cha. 2. intituled "An act for restoring the honour of Baron Audley, of Hely, to James Lord Audley, and others therein mentioned." And the Lords Audley have ever since had precedence according to the date of the ancient barony. ties in tail. 46. But an entailed dignity is not forfeited by at- Except dignitainder of felony, except during the life of the person attainted; for the statute 26 Hen. 8. c. 13. by which estates tail are made forfeitable for high treason, does not extend to attainders for felony. 47. Charles Lord Stourton, to him and the heirs male of his body, was convicted of murder, and executed in 1557. He left three sons: John, the eldest, received a writ of summons to parliament in 1575; and was Journ Vol. I. placed immediately above Lord Latymer, in the seat of p. 731. his ancestor. In Dugdale's Baronage, it is said, that this John was restored in blood, by act of parliament : but this is a mistake; for though an act was brought in for the restitution of blood of John Lord Stourton, yet Id. p. 742. that was on the 7th of March following, on which day, 3 And. 9. Eden's Rep. Ap. Journ, Vol. XXIX. 690. Corruption of blood. Tit. 29. c. 2. Barony of Lumley. as appears from the Journals, he sat in the house; so that the object of the act must have been to enable Lord Stourton to derive pedigree through his father; and the act never passed. 48. Lawrence Earl Ferrers, to whose ancestor the dignity had been granted by letters patent in 1711, to hold to him and the heirs male of his body, was convicted and executed for murder, in the year 1760. But having left no issue, the dignity was not forfeited, but descended to his brother Washington Ferrers, who took his seat accordingly. 49. In the case of a dignity descendible to heirs general, the attainder for treason or felony of any ancestor of a person claiming such dignity, through whom the claimant must derive his title, though the person attainted was never possessed of the dignity, will bar such claim; for the blood of the person attainted, being corrupted, no pedigree can be derived through him: so that the dignity becomes vested in the Crown by escheat; and is thereby destroyed. 50. In 1723, the Reverend Robert Lumley Lloyd claimed the barony of Lumley, which was created by writ of summons in 8 Rich. 2. as heir to Ralph Lord Lumley, the person first summoned to parliament. It appeared that the title had descended to John Lord Lumley, and that George Lumley his eldest son was attainted of treason, and died in the lifetime of his father, leaving issue, John Lumley, who died without issue; and that Spandian Lloyd was his cousin and next heir, viz. eldest son of Barbara Williams, sister of Hale P. C. p. 1. the said John Lord Lumley. That Spandian Lloyd 356. died without issue; and that Henry Lloyd his next brother had issue Henry his eldest son, who was father to the claimant. The House of Lords resolved, that the petitioner had not any right to a writ of summons to parliament, as prayed by his petition. 51. In the case of entailed dignities, no corruption tend to entailed Tit. 29. c. 5. of blood takes place. A dignity in tail may therefore Does not exbe claimed by a son surviving an attainted father, who dignities. never was possessed of the dignity. For the son may in such a case claim from the first acquirer, per formam doni, as heir male of his body, within the description of the gift, without being affected by the attainder of his 2 Hale P. C. father, or any other lineal or collateral ancestor. 356. Athol. XXX. 466 52. In 1764, John Murray presented a petition to Dukedom of his Majesty, stating that his grandfather John Marquis Journ. Vol. of Athol was by letters patent created Duke of Athol, 469. to him and the heirs male of his body. That the said Duke of Athol died in 1725, leaving James his eldest son, who succeeded to the title, and George his second son, who was the petitioner's father. That the said George was in the year 1745 attainted of high treason, by act of parliament; and died in 1760, leaving the petitioner his eldest son. That James, the second duke of Athol, died in 1764, without leaving any issue male. That the petitioner had consulted many gentlemen learned in the law of England, particularly the Honourable Charles Yorke, Sir Fletcher Norton, and Mr. De Grey, whether the said attainder, under the circumstances of the case, could be any bar to the petitioner's succeeding to the said title upon the death of his said uncle, James Duke of Athol; and the said gentlemen were unanimously of opinion, that as by the law of England in a like case, no objection could arise from the said attainder; and as by the statute of 7 Anne, all persons attainted of treason in Scotland were liable to the same corruption of blood, pains, penalties, and forfeitures, as persons convicted or attainted of high treason in England, the petitioner would be clearly entitled to succeed to the said honours. The petitioner therefore prayed, that proper directions should be given for having the petitioner's right declared and established. This petition was referred to the House of Lords, who resolved that the petitioner had a right to the title claimed by his petition. |