Plantagenet days. The earl got into difficulties, and as some say, for a consideration, and others, to spite his brother and debtor, surrendered his earldom and all the lands thereto belonging, to King Edward I. from whom he subsequently received it back with an altered limitation to himself and the heirs of his body. As he was a childless old man this was practically a short life interest to the exclusion of all his relatives, the nearest of whom but for the surrender would have succeeded. Soon after Bygod died, and the earldom fell into the hands of Edward II. who granted it to his brother Thomas of Brotherton in 1312. Lord Mowbray, the lineal descendant of this Thomas, recently came forward and claimed the earldom, but in 1906 the House of Lords decided against his claim on the ground that in law Bygod’s surrender was invalid, and that therefore Edward II. had no valid power to grant this particular earldom to Thomas of Brotherton. Historically there is little to support such a decision, and indeed this rigid application of the law is of comparatively recent date. Without doubt king, nobles and lawyers alike were all agreed, right down to Tudor days, that such surrenders were entirely valid. Many certainly were made, but, according to the decision of 1906, any living heirs of line of those nobles who thus got rid of their peerage honours can, if their pedigrees be provable, come to the House of Lords with a fair chance of reviving the ancient honours. Even as late as 1663 we find the Crown, naturally with the concurrence of its legal advisers, stating in the barony of Lucas patent (1663) that, on the appearance of co-heirs to a barony, the honour may be suspended or extinguished at the royal pleasure. The royal view of the law (at any rate as to extinction) was strongly objected to by the Lords, who guarded their privileges in Stuart days even more strictly than did the Commons. As early as 1626, in the celebrated dispute over the earldom of Oxford, the lord great chamberlainship and the baronies of Bolebec, Badlesmere and Sandford, Mr Justice Dodridge, who had been called in by the Lords to advise them, said that an earl could not give away or alien his inheritance, because it was “a personal dignity annexed to the posterity and fixed in the blood.” Fourteen years later, in the Grey de Ruthyn case, the Lords solemnly resolved, “That no peer of the realm can drown or extinguish his honour (but that it descends unto his descendants), neither by surrender, grant, fine nor any other conveyance to the king.” In 1678 the Lords became, if possible, even more definite, in view probably of the fact that the Crown had disregarded the Grey de Ruthyn resolution, having in 1660 taken into its hands, by surrender of Robert Villiers, 2nd viscount, the viscount of Purbeck. In 1676 the son of the second viscount applied for his writ of summons, and on the advice of Sir William jones, the attorney-general, who reported that “this (surrender) was a considerable question, never before resolved that he knew of,” the king referred the whole matter to the Lords. The Lords were very explicit, being “unanimously of the opinion, and do resolve that no fine now levied, or at any time hereafter to be levied by the king, can bar such title of honour (i.e. of a peer of the realm), or the right of any person claiming under him that levied, or shall levy such fine.” On these resolutions passed in the seventeenth century, the Lords of 1906 find illegal a surrender of 1302. The result seems strange, but it is, at any rate, logical from the legal point of view. It was urged that in 1302 no real parliament, in the sense applied to those of later years, was in existence; and consequently, a resolution founded on parliamentary principles should not apply. To this answer was made: Although it may be true that the law and practice of parliament had not then crystallized into the definite shape of even a hundred years later, the “Model Parliament” was summoned seven years before Bygod’s surrender, and it is necessary to have some definite occurrence from which to date a legal beginning-a point of law with which an historian can have little sympathy.
Briefly, perhaps, from the teaching of the case it may be permissible to state the rule as follows: In early days the Norman and Plantagenet kings took upon themselves to deal with the barons in a manner which, though illegal, was suffered because no one dared oppose them; but as time went on, becoming stronger and more determined to enforce their privileges and exalt their order the peers were able to compel recognition of their rights, and their resolutions in Stuart days were only declaratory of law which had always existed, but had been systematically disregarded by the Crown. This being so, resolutions of the peers deliberately and expressly laid down must, when in point, always be followed.
The application of the doctrine of corruption of blood to peerages arises out of their close connexion with the tenure of land, peerage dignities never having been regarded as personal until well on into the 14th century. Conviction for any kind of felony—and treason originally was a form of felony—was always followed Attainder and Corruption of Blood. by attainder. This resulted in the immediate corruption of the blood of the offender, and its capacity for inheritance was lost for ever. Such corruption with all its consequences could be set aside only by act of parliament. This stringent rule of forfeiture was to some extent mitigated by the passing in 1285 of the statute De Donis Conditionalibus (Blackstone’s Commentaries, ii. 116) which made possible the creation of estates tail, and when a tenant-in-tail was at tainted forfeiture extended only to his life interest. The statute De Donis was soon applied by the judges to such dignities as were entailed (e.g. dignities conferred by patent with limitations in tail), but it never affected baronies by writ, which were not estates in tail but in the nature of estates in fee simple descendible to heirs general. In the reign of Henry VIII. an act was passed (1534) which brought estates tail within the law of forfeiture, but for high treason only. The position then became that peerages of any kind were forfeitable by attainder following on high treason, while baronies by writ remained as before forfeit able for attainder following on felony. In 1708, just after the Union with Scotland, an act was passed by which on the death of the Pretender and three years after Queen Anne’s death the effects of corruption of blood consequent on attainder for high treason were to be abolished, and the actual offender only to be punished (stat. 7 Anne, c. 21, § 10). Owing to the 1745 rising, the operation of this act was postponed until the decease of the Pretender and all his sons (stat. 17 Geo. II. c. 39, § 3). In 1814 forfeiture for every crime other than high and petty treason and murder was restricted to the lifetime of the person attainted (stat. 54 Geo. III. c. 145). Finally in 1870 forfeiture, except upon outlawry, was altogether abolished and it was provided that “no judgment of or for any treason or felony should cause any attainder or corruption of blood, or any forfeiture or escheat.” The necessity for ascertaining the exact condition of the law with regard to attainder throughout the whole period of English parliamentary history will be realized when it is remembered that there still exist dormant and abeyant peerages dating from 1295 onwards which may at any time be the subject of claim before the House of Lords, and if any attainders exist in the history of such peerages the law governing their consequences is not the law as it exists to-day but as it existed when the attainder occurred. The dukedom of Atholl case of 1764 is interesting as showing the effect of attainder on a peerage where the person attainted does not actually succeed. John first duke of Atholl died in 1725 leaving two sons James and George, George the younger was attainted of treason in 1745 and died in 1760, leaving a son John. James, the second son of the first duke, who had succeeded his father in 1725 died in 1764 without issue. John his nephew then claimed the dukedom, and was allowed it on the ground that his father never having been in the possession of the dukedom his attainder could not bar his son, who succeeds by reason of his heirship to his uncle. It would have been otherwise had the younger son outlived his brother, for he would then have succeeded to the dukedom and so destroyed it by his attainder.
In many cases there have been passed special parliamentary acts of attainder and forfeiture, and these, of course, operate apart from the general law. In any event, attainder and forfeiture of a dignity, whether resulting from the rules of the common law or from special or general acts of parliament can
