Page:The Complete Peerage Ed 2 Vol 4.djvu/682

664 APPENDIX H All the early creations, ranging from Stephen to 15 Edw. II, are in fee simple or in tail general; up to 36 Edw. Ill there is only one creation in tail male. Are we to believe that in the space of nearly 230 years the Crown only once declared its real intention as shown by the use of appropriate terms of inheritance ?(") If Lord Redesdale's interpretation of "heirs" is correct, we should expect to find that the peerages in question always descended to heirs male of the body of the grantee, but when we examine the devolution of these dignities we find that this is by no means the fact. It is possible that a simple explanation of the intensely hereditary nature of the earliest limitations is to be found In the fact that at the time of Stephen's creations the official unhereditary earldoms — relics of Saxon administration — had not entirely disappeared. If, as is probable, the tradition of office still clung to the name of Earl, Stephen and Maud in bestowing dignities of similar style may have wished to emphasize the personal (as opposed to primarily official) nature of the creations by using very comprehensive words of inheritance. Another consideration strongly supports the view that the expressions used in the charters mean exactly what they say, and no less. The estate of inheritance best known to lawyers and laymen alike at that time was land, and an estate in fee simple was a form of property very familiar to them. There was no conception then of an earldom apart from lands. It is to be expected that, in defining the course of descent for a dignity which was associated in their minds with lands, the lawyers of the day should have used the same terms as they would have employed in the case of real property. There was the closest analogy between an estate in lands held in fee and a dignity of peerage held in fee. To grasp this it is necessary for the moment to sweep aside modern legal decisions as to the validity ot the actual surrender of those dignities, which, we are told, could not be surrendered, because the King, his Chancellor, and other eminent lawyers In the 14th century did not understand peerage law of the 20th century. It is historically a fact that peerages were surrendered. C") A peer could, during his life, surrender his peerage to the Sovereign; but if he died a peer, no testamentary disposition could divert the succession of the dignity from the course marked out by the terms of the grant. And so also with an estate in fee simple In land. For centuries after the Conquest (') a man holding such an estate could dispose of it during his life ; but if he died in possession, no devise by will could deprive his heir of the inheritance. (^) A distinction must be drawn between the territorial earldoms created before and the personal earldoms created during and after a period which may be defined roughly as the beginning of the 14th century. The Committee, by its generalisations on the meaning of terms of inheritance, obscured what really happened; namely, that whereas the early limitations were intended to be interpreted strictly in accordance with the words used and in most cases followed the course of descent designated, from about Edward II's reign, when the first creation in tail male occurs, while the terms of crea- tion used were thesame, the interpretation of them began to change. Seepost, pp. 677-79. (•>) See vol. iii. Appendix A. (') Until the passing of the statute 32 Hen. VIII.