Culture, England, Acts of Parliament

The Camoys Peerage. 15th July 1839. Lord Chief Justice Tindal this day delivered the opinion of the Judges: My Lords, in the questions proposed by your Lord ships' House to Her Majesty's Judges, it is first supposed that during the abeyance of a barony descendible to the heirs of the body, one of the coheirs is attainted for treason; and after reference made to a certain Act of Parliament, passed in the first year of Queen Eliza beth, intituled," An Act to restore in Blood the Sons and Daughters of Edward Lewknor, esquire," it is further supposed that A. claims through the coheir who was so attainted, and B. through another coheir; and your Lordships then require the opinion of the Judges on these two points, viz.: first, is it competent for the Crown to determine the abeyance in favour of A.? and, secondly, is it competent for the Crown to determine the abeyance in favour of B.? And although the consideration of the questions submitted to us involves some matters of curious learning, upon which no direct authority is to be found in the books; yet, looking at the principle by which we conceive the subject-matter of those questions is to be governed, and reasoning by the analogy to be derived from the decisions of our Courts of Law, so far as they can be held to apply to inheritances of so peculiar a nature as those under consideration; and still further bearing in mind the decisions of this House on cases which have been brought before it; the Judges, who have heard the argument at your Lordships' bar, have arrived at the unanimous opinion that both the questions proposed to us are to be answered in the affirmative.

My Lords, the general rule by which the abeyance of a dignity or title of honour is governed, was not disputed at your Lordships' bar; it has been indeed the established and undoubted law upon this subject from a very early period of our history, that in a case of a barony descendible either to the heirs general or to the heirs of the body, if the baron die leaving only daughters or sisters, or other coheirs, the dignity is in abeyance, so long as more than one of such coheirs is in existence; but so nevertheless that the Crown, the sovereign of honour and dignity, may at any time during such abeyance determine it by conferring the dignity on whichever of the coheirs it pleases; but if the Crown do not exercise such prerogative, and the lines of all the coheirs but one become extinct, then the abeyance is at an end; and such only surviving coheir is entitled as a matter of right to the enjoyment of the dignity. Lord Coke indeed, in his First Institute, seems to think that such has been the law from the time of the Conquest (z), but it has at all events been acted upon, at the least as early as the reign of Henry the Sixth; who, in the case of the Lord Cromwell dying without issue male, and leaving several daughters, preferred the youngest (a); and in more modern times this exercise of the Royal prerogative has been repeatedly put in force; as, amongst many others, in the case of the earldom of Oxford, in 1625, and in that of the barony of Grey of Ruthin (b). But the great contention at your Lordships' bar has turned not upon the fact but upon the nature and qualities of this abeyancy, and upon the legal consequences of the attainder of one of the coheirs pending such abeyance; it being contended on the one part that the attainder of one coheir operated as a forfeiture and extinguishment of the dignity as to all, and con sequently as a restraint of the exercise of the Royal prerogative in giving a preference to any of the unattainted coheirs; whereas it is argued on the part of the claimants that it can have no effect whatever on the unattainted line, but, at the utmost, restrains the Crown from conferring the dignity on any descendant in the attainted line, so long as the corruption of blood by means of the attainder continues.

Now the argument upon which the forfeiture or total extinguishment of the dignity rests for its support is this; that the abeyance of a dignity means no more than that the person who shall enjoy it is at the time in uncertainty and expectation; not that the inheritance itself is in suspense, but that such inheritance in the meantime descends to and vests in all the coheirs equally; and that the dignity being so vested jointly and equally in all the coheirs, and being at the same time in its own nature indivisible and impartible, the attainder of one coheir works the forfeiture of his share; and all the parts or shares in the barony being essential to the constitution of the dignity of baron, and one of them being forfeited, the whole becomes necessarily extinguished: and the authority which has been principally relied upon in support of these positions is the very learned speech of Lord Chief Justice Eyre, when called upon to deliver the opinions of the Judges, in answer to the questions proposed to them by this House in the year 1795, on occasion of a claim to the barony of Beaumont; in one part of which speech that learned person has expressed himself," that the title of the coheirs of a barony is that of unus hæres, and unus corpus: it is unitas juris: they must take it, and it must vest in them as the heir of the ancestors."

Now, before entering upon any discussion of the points submitted to us, it is to be observed that this dictum of Lord Chief Justice Eyre, upon which so great reliance has been placed, was not in any way necessary for the determination of the question put upon that occasion by your Lordships' House to the Judges. The question submitted to them was, whether, supposing the claimant to have proved himself one of the coheirs of the barony of Beaumont, he was then entitled, of right, to the barony; or, in other words, whether one of two coheirs was a complete heir to the ancestor? -a question which the Judges necessarily answered in the negative. But this answer must equally have been given by them whether the dignity had vested in the coheirs, or whether it had, by means of its being in abeyance, become vested in the Crown; in either case, the answer to the question must have been that the one coheir was not the complete heir, so as to claim the barony as a matter of right. The observation, therefore, to whatever weight it may be entitled as coming from so able a Judge, is not to be considered as bearing the same stamp of authority as the opinion of the Judges expressed on the very point on which they were called to advise.

Now it is obvious that the whole strength of the position advanced by the Attorney-general must depend on these two data: first, that when a barony is in abeyance, the share of each coheir in such barony descends to, and vests in, such coheir; and, secondly that the attainder of any one coheir operates as a forfeiture of the part so vested in him: for if either of these data fail, if on the other hand such be the nature of the abeyance of a dignity that it causes the dignity to revert to, or be in the Crown; or, in the language of the old books, to exist in contemplation of law only, instead of vesting in the coheirs, as is the case with lands and other descendible hereditaments,-it is manifest there can be no forfeiture by the coheir, of that which was not in him at the time of the attainder: and again, even admitting that the share of this impartible dignity did, upon the abeyance taking place, descend to and vest in the coheir, still if his interest is not a right of such a nature or description as can be the subject of forfeiture: in either case the consequence which has been deduced from the premises, that the whole dignity is extinguished or gone, becomes altogether untenable.

In order, therefore, to arrive at a just conclusion on the questions put to us, it may be advisable to consider, in the first place, the properties of the abeyance of a dignity, and the legal consequences which flow from such abeyance; and, in the next place, how far any right or interest which can by possibility vest in the coheir pending the abeyancy, is capable by law of being the subject matter of forfeiture. My Lords, all the instances found in the books of the inheritance in land or other tenements being in abeyance, have this common property; that there is no person in existence who is capable of taking. If tenant for term of another life dies, the freehold is said to be in abeyance until the occupant enters; if a man make lease for life, remainder to the right heirs of J. S., the fee simple is in abeyance till J. S. dies (c).

If the parson of a church dies, the freehold of the glebe is in none during the time the parsonage is void; but in abeyance, viz., in consideration and in the understanding of the law, until another be made parson of the same church; and immediately when another is made parson, the freehold in deed is in him as successor (d). And it is an admitted consequence that, where the right to the fee simple is in such abeyance, by possibility it may every hour come in esse; and there the fee simple cannot be charged, granted, or forfeited until it come in esse. If lease for life be made, remainder to the right heirs of J. S., the fee simple cannot be charged till J. S. be dead (e); or (as it is stated in Termes de la Ley, title Abeyance), after one comes in existence to take, it is no longer in abey ance, but in such sort that the right heir may grant, forfeit, or otherwise dispose of the same.

Further, the peculiar nature of the inheritance in a dignity or title of honour, has an important bearing on the question, whether it is capable of vesting in coheirs. That lands and tenements of inheritance vest in coheirs is undeniable; the law of parcenary is too well known to make it necessary to advert to it, but in all the instances in which inheritances are stated in our books to vest in coheirs, that is, in several persons making together one heir, it will be found the hereditament is always capable of being actually enjoyed by the coheirs. Land may be either held and enjoyed by all the coheirs jointly, or after partition made by each coheir in severalty. Where the tenements are in their nature entire and indivisible, as in the case of advowsons, the coheirs may enjoy by appointing to the living in turn, according to their seniority. If under the ancient law a villein had descended to the coheirs, either the profits were divided, or one coheir had the services of the villein for one week, the other for the next. In the case of common without number, or piscary, estovers, and the like, the eldest coheir shall take, and the rest shall have contribution, or if the eldest cannot make contribution, there shall be an allotment made to the one for so long time, and afterwards to the others; and so as to a mill or a toll. But in all these cases the subject-matter is capable of actual pernancy and enjoyment, and it is absolutely necessary for the purpose of having such enjoyment that it should descend to and vest in the coheirs; the inheritance therefore descends upon them, and they settle and arrange the mode of enjoyment amongst themselves. But far different is the case of a dignity; it is an inheritance which is peculiarly sui generis; it is not only in its nature impartible amongst the coheirs, but in its undivided state utterly incapable of being enjoyed by any one coheir. They cannot all take the barony; no one can take it by law in preference to another, nor is there any mode by mutual arrangement, concession, or otherwise, by which all can enable any individual coheir to wear the dignity. The reason therefore fails, for holding that they take the inheritance of the barony, when they cannot take it for any available purpose. And this consideration at the same time fortifies and confirms the doctrine of abeyance as understood in ancient times, which places the inheritance anywhere rather than in the coheirs.

And this mode of reasoning agrees with the law laid down by Lord Coke (f), viz." that the King, who is the Sovereign of honour and dignity, may, for the uncertainty, confer the dignity upon which of the daughters he pleases; "and again, with that of Whitlocke, who says," The King may revive the honour in the issue of either, or suffer it to lie in abeyance or unrevived: "language which, of itself, seems to import that the dignity has not vested in any of the coheirs; for he that has the power to confer must already have the dignity in himself before and at the time of his so conferring it; whereas, if the dignity was already vested in others, it must first be divested out of those coheirs, before, in strictness of language, the Sovereign would be in a condition to confer it. The writ of summons, or the patent, according as the coheir is a male or female, must, on that supposition, have a double operation, one of which is very foreign to their nature, namely, that of divesting the inherit ance in the dignity out of the several coheirs, except as to the one who is favoured and preferred, and unit ing the different shares in him.

Looking, therefore, at the peculiar description and properties of a dignity or name of nobility, there appears nothing in the nature of the inheritance or in reason, that should, a priori, cause it to descend to and vest in coheirs who are altogether incapable of taking in the only way in which the subject matter can be enjoyed, that is, by wearing the dignity; and, on the contrary, it would seem much more suitable to its nature, and more consonant to reason, that when it has arrived in the stream of descent at a point beyond which it can no longer proceed in its regular course, when it is confessedly by all in a state of abeyance, that it should revert to, and so long as such abeyance con tinues, remain in the Crown, that fountain of honour from which it originally proceeded.

But there is an authority on this subject, entitled to the greatest weight, and proving that this doctrine does not rest upon speculation and argument alone: I allude to the judgment in the case of the claims of the Lord Willoughby of Eresby, and the Earl of Oxford, to the great office of Lord Chamberlain, and the baronies of Bolbeck, SANFORD, and Badlesmere. In that case the Judges certify to your Lordships' House," That John, the fifth Earl of Oxford, dying without issue, those baronies descended upon his sisters and heirs; but these dignities being entire and not di vidable, they became incapable of the same, otherwise than by gift from the Crown, and they, in strictness of law, reverted unto and were in the disposition of King Henry 8 (g)." And again, ' in a further opinion, the language employed by the same eminent Judges is this: "That by the death of Earl John, in 18 Henry 8, without issue, having three sisters, those honours re turned to the Crown in strict construction of law (h):" and thereupon this House agreed," That the three baronies are in His Majesty's disposition." And in the formal certificate, delivered to the King, of the opinion of this House, they say, That, for the baronies, they are wholly in your Majesty's hands to dispose at your own pleasure (i)." Now, although it must be admitted that the generality of this certificate, which perhaps exceeded in its application what was intended by the learned Judges themselves, has been in subsequent cases qualified and limited by restraining the power of the Crown to that of selecting one amongst the coheirs; and again, in another particular, viz. that the coheirs being reduced to one, such surviving coheir has the right: still the main ground of the decision, viz. that the dignity had reverted to the Crown, remains altogether unshaken, and the inference to be drawn from that judgment is, that where all have equal pretence, and no one can claim ex debito, the dignity is to be considered as in the Crown. And as to the objection urged by Mr. Attorney-general, that there must of necessity be an actual descent and vesting in the coheirs, for on no other supposition could the only surviving coheir claim a writ of sum mons as a matter of right, -the answer may well be, that when the number is reduced to one, the only reason and cause of any suspension or abeyance is at an end, and that, the reason ceasing, the consequence also ceases, and the whole entire and impartible dignity may then be well supposed to fall upon the complete heir, as in the usual course of descent.

Now if it be the law that the barony does not descend to the coheirs, and vest in each, in separate parts and shares, there is at once an answer to the question, whether, whilst the dignity is in abeyance, the attainder of one of the coheirs shall operate as a forfeiture or extinguishment of such dignity: for upon that supposition there was nothing in the person attainted which could become the subject of forfeiture; the whole had reverted to the Crown for the preservation of the title until the coheirs were reduced to one, or until the Crown in the meantime declared a preference, privatio præsupponit habitum; and on the supposition above made, the party who was attainted had nothing in the dignity to forfeit.

But, my Lords, conceding for the sake of argument, and for that purpose only, that pending the abeyance the inheritance in the dignity had descended to and amongst the several coheirs in the same manner as any other inheritance, still no authority has been cited in support of the position, that the attainder of one coheir would operate as a forfeiture of the whole dignity. It is evident from the old authorities, that in the case of land a coheir attainted of felony or treason forfeits the share descended to him, and that share only. If the other coheirs sue, and there is a plea in abatement that one of the coheirs is not joined as a co-demandant, those who are demandants may reply that "he need not be joined, for that he has committed felony, so that he is not a parcener (j). If, therefore, the inheritance had descended, and had been considered as partible, the attainder of one coheir could not have operated as a forfeiture of the title to the shares vested in the other coheirs. And if such be the law in case of partible inheritances, it would surely be a strange conclusion that because, from the peculiar nature of a dignity, it is impartible, therefore the whole should be forfeited by the attainder of one. Forfeiture is always odious in the eye of the law; and the inference, at once more just and more consistent with the genius of our law, would be that where the inheritance is impartible, on that very account there should be no forfeiture at all; inasmuch as the opposite determination would confound in one common punishment the innocent with the guilty.

But, my Lords, it should be further considered whether the interest which devolves upon each coheir pending the abeyancy, supposing the dignity not to revert to the Crown, is of such nature and description as to be the subject of forfeiture either by common law or statute. That all dignities or titles of honour, whatever be the estate in them, are forfeited and lost by the attainder of the possessor for high treason, is undoubted law." Is it not," as has been justly asked by Mr. Charles Yorke, in his Considerations on the Law of Forfeiture (k)," both natural and politic that a distinction bestowed only for the praise of them who do well, should be forfeitable on the commission of crimes, for a terror to evil-doers?" But neither by common law or statute did the law of forfeiture comprehend within its limits any such right as that which is supposed to exist in the attainted coheir, or any right bearing any analogyto it. At common law, the only real estate which was forfeited by attainder for treason were all the lands of inheritance whereof the offender was seised in his own right, and all rights of entry to lands in the hands of a wrong-doer; and under the statutes 26 Henry 8, c. 13, and 33 Henry 8, c. 20, such forfeiture was made to extend to estates tail vested in possession; but it has always been held that neither by common law or statute was a mere right of action to lands in the hands of a stranger, as, for instance, in the hands of a discontinuee, or of the heir of the disseisor, forfeitable by attainder for treason. But how far does the interest which is in the attainted coheir at the time of the attainder fall short of a right of action? It is a part or portion only of the title of coheir to the dignity, giving the possessor of it, at the utmost, a jus precarium, a mere power of asking from the grace and favour of the Sovereign that the abeyant dignity may be conferred upon him, with the distant chance that, in case all the other lines should fail, the attainted coheir may, in case the corruption of blood be removed, wear the dignity himself.

Other considerations, of a nature perfectly distinct, range themselves on the same side of the question, and strengthen the inference that no forfeiture of the dignity can, under the circumstances assumed, take place. To hold that the dignity is extinguished or forfeited, whilst it remains with the Crown by an exercise of its prerogative to revive it and confer that dignity on one of the innocent coheirs, what is it in effect but to abridge and limit such prerogative of the Crown, and to operate more as a penalty upon the innocent coheirs than on the guilty offender? And I must confess I feel strongly the weight of the observation which has been made at your Lordships' bar, that if the attainder of one of the coheirs of a barony, whilst it is in abeyance, causes the extinguishment or forfeiture of the abeyant barony, it must be matter of very considerable doubt whether such an attainder, after the abeyance has been determined and the barony revived by the Crown, must not be attended with a similar consequence: for it is one and the same dignity, whether it is in abeyance or in possession; and upon all just principles of reasoning, the continued existence of such dignity must be held to depend equally in both cases upon the same title and the same connexion with the deceased ancestor.

But I forbear to pursue the consideration of these additional arguments, because, as it appears to me, the very principle now under discussion, viz. that the attainder of one of the coheirs shall not operate as a bar to one claiming through another of the coheirs to the dignity, has been virtually adopted and acted upon by your Lordships' House in several cases. I refer to the case of Powys barony (m), where John Gray, the descendant of one of the coheirs of Edward Charleton Lord Powys, was summoned to Parliament in the 22d Edward 4, after the attainder and before the restoration in blood of John Lord Tiptoft, the other coheir, enjoying upon that writ of summons the seat and precedence of his ancestor. I refer again to that of the barony of Beaumont (in), in the first petition of the claimant, to which barony he made title of sole heir, upon the ground that the attainder of the other coheir had extinguished that line; and which petition gave occasion to the learned discussion of Lord Chief Justice Eyre before referred to. Upon the occasion of the claimant's second petition, he stated his title as one of the coheirs of Henry the first Baron Beaumont, by his descent through Joan Lady Stapleton; Sir Henry Norreys, the son of Frideswide, the other coheir of the barony, having been attainted and executed in the 28th year of Henry 8. Upon this second petition the report of the very learned Attorney-general of the day, Sir John Scott, raises no difficulty as to the extinguishment or for feiture of the barony, but simply states it to be in abeyance; and the Committee of this House, after argument before Lord Loughborough, the then Lord Chancellor, came to the resolution which was after wards reported to the House, "That it appears to this Committee that the said barony remains in abeyance between the coheirs of the said William, descended from his sister Joan;" which resolution was received and adopted by this House.

My Lords, such being the grounds upon which the rights of the coheir in the unattainted line depend, it remains only to make an observation upon the legal operation and effect of the Act i Elizabeth, No. 32, to which your Lordships' question makes reference, with regard to the rights that may be claimed by the coheir in the attainted line. And, my Lords, it appears by this statute that nothing that had been lost by the attainder has been restored to the descendants of the attainted person, but that the corruption of blood is so completely removed thereby, that the heir may claim through his attainted ancestor, as if no attainder had taken place. That the previous attainder of the coheir effected no forfeiture of the abeyant barony has been already so fully discussed as to make it unnecessary to state more than that the descendant of such attainted cobeir may claim the right of petitioning Her Majesty that she would terminate the abeyance of the barony, by giving the preference to the line of such petitioner, in the same manner as if his ancestor had never been attainted.

Upon the whole, although I should not be justified in making my learned brethren responsible for the precise grounds upon which I have endeavoured to support their opinion and my own, yet I have their full authority to declare our unanimous answer to the questions proposed to us, as follows: 1st, that it is competent to the Crown to determine the abeyance in favour of A.; 2d, that it is competent for the Crown to determine the abeyance in favour of B.