Die Veneris, 28° Junii 1839.

The Earl of SHAFTESBURY in the Chair.

(The Judges being present.)

Mr. Attorney General was heard in reply on behalf of the Crown.

The Counsel were directed to withdraw.

The following Questions were proposed to the Judges :

"During the Abeyance of a Barony descendible to Heirs of the Body One of the Co-heirs was attainted for Treason; an Act of Parliament afterwards passed in the following Terms:

"An Act to restore in Blood the Sons and Daughters of Edward Lewknor, Esquire. Anno Primo Elizabeth., No 32.

"In most humble and lamentable wise shewen unto yo1 Heighness yo faithfull and most obedient Subiects Edward Lewkno', Thomas Lewkno', Steven Lewkno', and William Lewkno', Jane Lewkno', Maria Lewkno', Elizabethe Lewkno', Anne Lewkno', Dorathie Lewkno', and Lucrecie Lewkno', Sonnes and Daughters to Edwarde LewknoTM, late of Kyngeston Bowsey in the Countie of Sussex, Esquier, that where the said Edwarde Lewkno' their Father, in the Time of yo' Heighness Syster the Quene's Matie that deade is, was attaynted of Heighe Treason, and by reason thereof yo' saide Subiects and every of them standen and be Parsons in their Linage and Blood corrupted, whereby they and every of them be not only deprived of all Manor Degrees, States, Names, Fames, and of all Inheritance that shoulde or might have come vnto them or any of them from or by their saide Father, if the same their late Father had not been attaynted, but also of all and singular other Inheritance that shoulde or mighte by Possibilitie have come vnto yo' saide Subiectes by any other their collaterall Auncestor or Auncestors of the Parte of their saide Father, to whome they or any of them shoulde or mighte have coveyed or may cōveye themselves as nexte Cousen and Heyer of Blood by meane Degrees by their saide Father, whereby yo' saide Subiectes as now reste out of all Name and Reputation to their greate discomforte and daylie Sorrowes: And forasmuche as yo' saide Subiectes be and alwayes have been to yo' Heighnes trewe and faithfull Subiectes, it may therefore please yo Heighnes of yo' most noble and habundance Grace, and for the trewe and faithfull Service wch yo' saide Subiectes intend to dve to yo' Matie, and yor Heyres and Successores, during their Lives, that it may be at the humble Sute and Peticon of yo' saide Subiectes ordeyned, established, and enacted by yo' Heighnes, wt the Assent of the Lords

Braye Peerage

and Camoys Peerage.

Spirituall and Temporall, and of the Comens, in this presente Parlyament assembled, and by Authoritie of the same, that yo' saide Subiectes Edward Lewkno', Thomas Lewkno, Steven Lewkno, Wylliam Lewkno', Jane Lewkno, Mary Lewkno', Elizabethe Lewkno', Anne Lewkno', Dorathie Lewkno', and Lucrecie Lewkno', and every of them, and their Heyres, and the Heyres of every of them, from henceforth may and shall be by the Authoritie of this Acte restored and enhabled only in Blood and Lynage as Heyre and Heyres to the said Edward Lewkno' their Father, in suche the same and like Maner, Fourme, Degree, and Condičon, to all Intents, Cōstruccons, and Purposes, as they or any of them, theire Heyres or the Heyres of them, mighte or shoulde have been if the said Edward Lewknot their any of Father had not been attaynted; and also that yo' saide Subiectes Edward, Thomas, Steven, Willm, Jane, Mary, Elizabethe, Anne, Dorathie, and Lucrecie, and every of them, and their Heyres, and the Heyres of every of them, from henceforthe may and shall be enhabled to demaunde as to have, hold, and enioy all suche Lands, Tents, and Hereditaments, w theire Apptenances, which at anye Tyme hereafter shall descende, come, remayne, or reverte from any of theire collaterall or lyneall Auncestors of the Parte of the saide Edward Lewkno' their late Father, other than suche Castells, Mannors, Lands, Tents, Rents, Revercons, Remaynders, Servičs, Possessions, and other Hereditaments wch were the saide late Edward Lewkno" their saide Father, in Vse, Possession, Revercon, or otherwise, the Day of the Attaynder of the saide Edward Lewkno', or the Day of the saide Treason by him cōmitted, and other than such Castells, Honors, Mannors, Lands, Teñ, and other Hereditaments as yo" Heighness Sister Queene Mary or yor Heighness was or is entitled to have or mighte or oughte to have by force of the said Attayndor, or by reason of any Office founde or to be founde after the saide Attayndor, in such and like Manner, Fourme, and Condičon to all Intents, Costruccons, and Purposes as if the saide Edward Lewkno', late Father to your saide Subiectes, had never been attaynted, and as thoughe no such Attayndor of the saide Edward Lewknor had been had or made; and that yo' saide Subiectes Edwarde Lewkno', Thomas Lewkno', Steven Lewkno', and Willm Lewkno', Jane Lewkno, Mary Lewkno', Elizabethe Lewkno', Anne Lewkno', Dorathie Lewkno', and Lucrecie Lewkno', and every of them, and their Heyres and the Heyres of every of them, may hereafter vse and have any Accon or Sute, and make his or their Pedegrees and Conveyance in Blood, Lynage, and Degree as Heyres, or Heyres only as well to and from the saide Edwarde Lewknor their Father as als to and from any other Parson and Parsons, in like Manner, Fourme, Condiĉon, and Degree, to all Intents, Construcčons, and Purposes as if the said Edward Lewkno' their saide late Father had never ben attaynted, and as if no such Attayndor were or had been hadd; the Corrupcon of Blood betweene the saide Edward Lewkno' and yo' saide Subiectes and their Heyres, or any Acte of Parliamente or Judgment at the Comon Lawe concernynge the Attayndo' of the said Edward Lewkno', or any other Thinge wherebye the Blood of the saide Edward Lewkno is or shoulde bee corrupted, to the contrary in any wise not w'standinge: Provided alwayes, and be it enacted by th'Aucthorite aforesaide, that this presente Acte, or any thinge therein conteyned, shall not extende to enhable, restore, or entitle yo' saide Subiectes, or any of them, or any of their Heyres, to any Honours, Castells, Mannors, Lordeshippes, Lands, Tents, and other Hereditaments wch yo' Heigness now hathe or

had,

had, or is, mighte, or oughte to be entitled to have by reason of any Attayndor or Attayndors of the same Edwarde Lewkno', or otherwise, nor to any Castells, Honnors, Mannors, Lordeshippes, Lands, Tents, Rents, Revercons, Servics, and other Hereditaments, late of the saide Edward Lewkno', wch yor Mats Sister the late Quene Mary was entitled to haue by reason or force of the saide Attaindo' or otherwise, savinge to yo' Heighnes, yo' Heyres and Successores, and to all and euery other Parson and Parsons, Bodyes Politique, Corporate, their Heyres and Successors, and to the Heieres and Successors of euery of them, all such Estate, Possession, Righte, Title, Interest, Reverĉon, Remainder, Entrie, Lease and Leases, Clayme, Cōdičon, Tearme of Years, Rents, and all other Profitts and Comodities whatsoeuer as yo' Heighness or any of them haue in or to any Honnors, Castells, Mannors, Lands, Tents, Rents, Profits, and Hereditaments, in such Manner, Fourme, and Condičon, to all Intents and Purposes, as thoughe this Acte had neuer been had or made: Provided alwaise, that this Acte, ne any thinge therein conteyned, extende ne be preiudiciall to yo' saide moste humble Subiects or any of them, theire Heyers or Assignes, or the Heyers or Assignes of any of them, for or concerning any Mannors, Lands, Tents, or other Hereditaments wch yo' saide Subiectes or any of them haue or hathe by any good, lawfull, and perfecte Feoffment, Gifts, and Assurance, or other Conveyance to them or any of them had or made by any of their lyneall or collaterall Ancestors, or by any other

Parson or Parsons.'

"A. claims through the Co-heir who was so attainted. B. claims another Co-heir.

"First. Is it competent for the Crown to determine the Abeyance in favour of A.?

"Secondly. Is it competent for the Crown to determine the Abeyance in favour of B. ?"

The Judges requested Time to consider these Questions.

Proposed to adjourn this Committee sine Die;

Accordingly,

Adjourned sine Die.

Die Lunæ, 15° Juli 1839,

Braye Peerage and

Camoys Peerage.

The Earl of SHAFTESBURY in the Chair.

The Lord Chief Justice of the Court of Common Pleas delivered the unanimous Opinions of the Judges, in the Words following; videlicet,

My Lords, In the Questions proposed by your Lordships 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 Elizabeth, intituled "An Act to restore in Blood the Sons and Daughters of Edward Lewknor, Esquire," it is further supposed that A. claims through the Co-heir who was so attainted, and B. through another Co-heir, 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 the 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 Co-heirs 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 Co-heirs it pleases; but if the Crown do not exercise such Prerogative, and the Lines of all the Co-heirs but One become extinct, then the Abeyance is at an end, and such only surviving Co-heir is entitled as a Matter of Right to the Enjoyment of the Dignity. Lord Coke, indeed, in his First Institute, 165 a., seems to think that such has been the Law from the Time of the Conquest; but it has at all events been acted

Tindal, L. C. J.; Vaughan, J.; Parke, B.; Bosanquet, J.; Patteson, J.; Gurney, B.; Williams J.; Coleridge, J.; Erskine, J.; Maule, B.

upon

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; 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 that of the Barony of Grey of Ruthin. (See Collins's Claims, &c., pp. 175, 248.) 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 Co-heirs pending such Abeyance; it being contended on the one Part that the Attainder of One Co-heir operates as a Forfeiture and Extinguishment of the Dignity as to all, and consequently as a Restraint of the Exercise of the Royal Prerogative in giving a Preference to any of the unattainted Co-heirs; whereas it is argued on the. Part of the Claimants, that it can have no Effect whatever upon 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 Co-heirs equally, and that the Dignity being so vested jointly and equally in all the Co-heirs, and being at the same Time in its own Nature indivisible and impartible, the Attainder of One Co-heir 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 Question 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 Co-heirs of a Barony is that of unus hæres and unum corpus-it is unitas jures-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 Co-heirs of the Barony of Beaumont, he was then entitled of Right to the Barony; or, in other Words, whether One of Two Co-heirs 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 Co-heirs, 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 Co-heir 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