Peerage

Henry VIII. and the Peerage.

The reign of Henry VIII. brought about far-reaching changes in the position of the peerage.

When that king ascended the throne the hereditary element was in a decided minority, but the balance was rapidly redressed until a bare hereditary majority was secured and the dissolution of the monasteries made possible. The peers, many now growri fat on abbey lands, at once began to consolidate their position; precedents were eagerly sought for, and the doctrine of ennobled blood began to find definite and vigorous expression. So long, the peers declared, as there is any ennobled blood, a peerage must exist ; and it can be extinguished only by act of parliament, failure of heirs or upon corruption of blood by attainder.

Surrender of Peerages.

From the doctrine of nobility of blood is derived the rule of law that no peerage (a Scots peerage is under Scots Law, which admits surrender) can be surrendered, extinguished or in any way got rid of unless the blood be cor rupted. The rule is well illustrated by the earldom of Norfolk case (Law Reports [1907], A.C. io), in which its development was traced, and the principle authoritatively confirmed. Histori cally, 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 de cision of 1906, any living heirs of line of those nobles who thus got rid of their peerage honours can, if their pedigrees be prov able and no attainders bar the way, come to the House of Lords with a fair chance of reviving the ancient honours.

Attainder and Corruption of Blood.

The application of the doctrine of corruption of blood to peerages arises out of their close connection 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 by at tainder. 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 (q.v.), which made possible the creation of estates tail, and when a tenant-in-tail was attainted 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 descend ible to heirs-general. In the reign of Henry VIII. an act was passed 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 follow ing on high treason, while baronies by writ remained, as before, forfeitable 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 punishable (stat. 7 Anne, c. 21, sec. 1o). Owing to the rising, the operation of this act was postponed until the decease of the Pretender and all his sons (stat. 17 Geo. II. c. 39, sec. 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 187o, 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." 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 for feiture of a dignity, whether resulting from the rules of the common law or from special or general acts of parliament can only be reversed by act of parliament.