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dignitatem ipsius comitis, but augere his possessions for maintenance of his dignity, for so much appears by this word augere : for he doth, by the said letters patent, with exceeding great bounty, increase the revenues of the said earl in England, which the king did think was an increase of large possessions in England, instead of all that which was taken away from him by the act of the 28th of Henry the Eighth.
And whereas it was objected, that the general words honours and hereditaments, are explained and qualified by the said words relative subsequent, “which the said George or any to his use hath ; and therefore it shall not be intended of any honour or hereditament, but of such whereof others are seized to his use, and no man can be seized of the dignity, and therefore that the said act doth not extend to it : but that it is to be understood reddendo singula singulis, and these words, “which the said George Earl hath,” are sufficient to pass the dignity: and with this agrees the opinion of all the judges of England in Nevill's case, upon the like words in the statute of the 28th of Henry the Eighth, in the seventh part of my reports, fol. 33 and 34."*
It appears from this case that the spirit of the constitution condemns absenteeism, as an evil both to the king and people. It is clear that there was a tacit condition annexed to the grant of these immense estates to the barons, involving personal residence on the lands they held. They stood, as it were, between the crown and the subject, acting on the one hand as local lieutenants for the sovereign to preserve his prerogative and coerce rebellion, and on the other hand as conservators of the rights of the people among each other. Their duties, therefore, were not confined simply to legislation, as is the case with modern peers, for they also were obliged to see that the laws were enforced and obeyed in their respective neighbourhoods. “For those who are earls,” says Lord Coke, “have an office of great trust and confidence, and are created for two purposes : to advise the king in time of peace, and defend the king and country in time of war : and, therefore, antiquity hath given them two ensigns to resemble those two duties : for first, their head is adorned with a cap of honour and coronet, and their body with a robe in resemblance of counsel : secondly, they are girt with a sword in resemblance that they should be faithful and loyal to defend their prince and country.”+
The only excuse for a baron being absent from his estates, was personal attendance on the king, either in the señate or the field, but with these two exceptions it was a condition tacitly annexed, as Lord Coke expressly declares, to the estate of the dignity that he should reside on his baronial lands, for otherwise he would not have been able to advise the king in time of peace, and therefore must have failed in his feudal obligation. But, by living constantly among his tenants, he acquired a
* Coke's Reports, Part 13, page 106 et seq : Oct. Edit. 1793, Dublin. + Nevill's Case, Coke's Reports, 7th Part, p. 123.
real knowledge of their wants and wishes, and had opportunities of collecting local information which it was his duty to submit to the king when cited to attend at council. In conformity with these principles, the Earl of Shrewsbury forfeited his Irish estates, being a notorious absentee, " by reason whereof the king and his subjects wanted their defence and assistance there."
I am not aware whether the 28 H. 8. is repealed : if it still remains among the statutes, the sooner it is enforced the better; and if it be abrogated, a new law on the subject ought to be enacted in the spirit of the ancient one. This would effectually put an end to absenteeism, and create throughout Ireland a local resident gentry, who would spend their rentals among their tenants, instead of purchasing palaces at Florence and Naples. The same rule, founded in the spirit of the constitution, applies to the non-residence of the clergy, who have no absolute property in their benefices, but are trustees subject to the performance of a certain duty, to wit, the cure of souls. We may detect vestiges of the old system in modern practice. Noblemen quitting England for the Continent attend his majesty's levee to take leave, and again present themselves on their relurn, so that what was once compulsion, has been softened down into courtesy In Russia, however, the rule seems to be stricter, as no nobleman quits that country for foreign travel without obtaining the formal permission of the emperor, a practice quite consonant with the spirit of feudalism, "for no lord shall quit the realm without notice to the king, lest his services should be wanted.”
Another wholesome provision in the ancient constitutional law, to which the attention of the conservatives is invited, deprived a peer of his rank and privileges when his fortune was dilapidated, as appears from the remarks in the case of George Nevill, Duke of Bedford, embodied in the report of the case of the Earl of Shrewsbury. It is most desirable that this rule should be revived, by which many sinecures and pensions would be got rid of. It would also prevent that patronage and favoritism which prevails in naval and military promotions, in ecclesiastical preferments, and colonial appointments, the vast majority of which are conferred on the younger sons of needy lords, whose sole qualification consists in the richness of their blood and the poverty of their purse.
It would no doubt be difficult to fix a pecuniary standard for the peers, which would be free from every captious objection, as in all questions of this nature some line of demarcation must always be drawn. But there is no difficulty whatever in laying down the principle of the law. Many of our hereditary legislators are notoriously bankrupts, their estates being mortgaged for their full value: many live by open gaming: many are dependent on the minister of the day for jobs and places. Against them, the law could clearly be enforced, giving them however a fair trial, that they might show cause why their degradation should be suspended. Such
a measure would be only an act of justice to solvent peers, who are above the temptation of any ministerial bribe. It would purify the "order" from those stigmas which now attach to it, and we should no longer hear of our hereditary legislators colluding with jockeys to swindle on the turf, associated with common blacklegs in the management of a “hell," or making matrimonial excursions to the eastward of Temple Bar, to swap a coronet against the money bags of some successful stock jobber. If we are to have exclusiveness, let it be that of honour among the men and chastity among the women : it will then endure, because it will be respected.
Our ancestors, however, reduced this question into arithmetical precision, as we learn from the remarks of Lord Coke in his report of Nevill's case cited above. “And it is to be known that as in ancient times the senators of Rome were elected a censu of their revenues, so here in
ient times in conferring of nobility, respect was had to their revenues, by which their dignity and nobility might be supported and maintained. And therefore a knight ought to have £20 land per annum. A baron thirteen knights' fees and a quarter : an earl twenty knights' fees, (for there was not any duke in England from the time of the conquest until 11 Edw. III, and the Duke of Cornwall was the first duke after the conquest in England.) And that appears by the statute Magna Charta, c. 2. For always the fourth part of such revenue, which is requisite by the law to the dignity, shall be paid to the king as a relief: for the relief of a knight's fee is £5, which is the fourth part of £20, which is a knight's revenue : and the relief of a baron is 100 marks, which is the fourth part of his revenue, viz. 400 marks, and includes thirteen knight's fees and a quarter : and the relief of an earl is £100, which is the fourth part of £400, which is the revenue of an earl. And it appears by the records of the exchequer, that the relief of a duke shall amount to £200, and by consequence his revenue ought to be £800 per annum, and that is the reason in our books that every one of the nobility is presumed in law to have sufficient freehold ad sustinendum nomen et onus, for supporting bis rank and the burthen of it."
It was by reason of this legal presumption that the persons of peers of the realm were privileged from arrest for debt. Of this we have proof in the case of Isabel, Countess of Rutland, who, being a widow, was arrested by certain serjeants at mace, in consequence of which the attorney general lodged an information against them for false imprisonment. The arrest, be it observed, was not an initiatory proceeding before trial, but a capias ad satisfaciendum, on a judgment in debt given against her in the common pleas. The arrest was set aside, and the serjeants at mace punished, the judges having decided :
“That the person of one who is in law a countess by marriage or by descent, is not to be arrested for debt or trespass : for although, in respect
of her sex, she cannot sit in parliament, yet she is a peer of the realm, and shall be tried by her peers, as appears by the statute 20th Henry the Sixth, which was but a declaration of the common law. And there are two reasons why her person should not be arrested in such cases; one in respect of her dignity, and the other in respect that the law doth presume that she hath sufficient lands and tenements in which she may
be distrained. And both these points are well confirmed by our books, 11th of Henry the Fourth, 15 b., in a homine replegiando, against the Lady Spencer; it appears that the Lady Spencer was a peer of the realm, and that in debt or trespass, capias lieth not against an earl, baron, or baroness, et hujusmodi, for because of their estate and dignity they are intended (presumed) to have sufficient. 3d of Henry the Sixth, 48, a. An action of debt was brought against a man and his wife, Countess of D., against whom an exigent was prayed. Newton: you cannot have an exigent against an earl, and no more against a countess; and Fulthorpe there said, that the reason thereof was not only, because it cannot be intended that an earl can be without lands, but another reason is, for the dignity of his name.
Members of the House of Commons are privileged from arrest for debt on the fiction of their attending to their senatorial duties, and the same plea is usually set up for the hereditary peers. But it is clear, from the case of the Countess of Rutland, that this is an erroneous view of the subject, it being most specially and distinctly declared that the privilege hinges on the supposition of their possessing sufficient freehold to support their dignity, and not at all on account of their legislative functions, for their very rank as peers was forfeited through poverty, as we have shown in the case of Nevill, Duke of Bedford, and of course the deprivation of rank excluded them from a seat in the House of Lords.
At the present time, it is confessed on all hands that the House of Peers stands as much in need of reform as the House of Commons did, before it was purified by Earl Grey. The argument which disfranchised the rotten boroughs affirmed that the elective franchise was a trust, and not a property. The same constitutional argument may be applied, with equal, nay with encreased force, to the hereditary legislators, for the old law annexed two conditions absolute to the peerage; first, that every lord should reside on the lands of his barony: secondly, that he should possess sufficient freehold to maintain his dignity. Now, let these two conditions be applied to the modern peers, and a wholesome reform, bottomed on the spirit of the constitution, would be at once effected. We are far from thinking that such a reform would go far enough, because hereditary legislation is founded in folly, and quite at variance with the spirit of the age, and the existing interests of society. No legislative power ought to exist but what is delegated, for assumed power is usurpation and tyranny.
* Coke's Reports, Part 6, p. 52. Vol. I.-No. 3,
But even the application of the old law would root out many abuses, and prepare the way for ulterior improvements; and prudence admonishes all clear-sighted reformers to take their political debt by instalments.
ON CRUELTY TO ANIMALS.
There is no man of feeling, who has any idea of justice, but would confess, upon the principles of reason and common sense, that if he were to be put to unnecessary and unmerited pain by another man, his tormentor would do him an act of injustice: and from a sense of injustice in his own case, now that he is the sufferer, he must naturally infer, that, if he were to put another man of feeling to the same unnecessary and unmerited pain which he now suffers, the injustice committed by himself towards his neighbour would be exactly the same as the injustice of his tormentor towards him. Therefore, the man of feeling and justice will not put another man to unmerited pain, because he will not do that to another, which he is unwilling should be done unto himself. Nor will he take any advantage of his own superiority or strength, or of the accidents of fortune, to abuse them to the oppression of his inferior; because he knows that in the article of feeling all men are equal : and that the differences of strength or station are as much the gifts and appointments of God, as the differences of understanding, colour, or stature. Superiority of rank or station may give ability to communicate happiness, and seems so intended, for we are admonished “that unto whom much is given, of them much will be required ;” but it can give no right to inflict unnecessary or unmerited pain. A wise man would impeach his own wisdom, and be unworthy of the blessing of a good understanding, if he were to infer from thence that he had a right to despise or make game of a fool, or put him to any degree of mental pain. The stupidity of the fool ought rather to excite his compassion, and it demands the wise man's care and attention to the deficiencies of him who cannot protect himself.
It has pleased God, the Father of all men, to cover some with white skins, and others with black skins : but as there is neither merit nor demerit in complexion, the white man (notwithstanding the barbarity of prejudice and custom) can have no right, by virtue of his colour, to enslave, and tyrannize over, a black man ; nor has à fair man any right to abuse, despise, or insult a brown man. Nor has a tall man, by virtue of his stature, any right to trample a dwarf beneath his foot. For whether a man wise or foolish, white or black, fair or brown, tall or short, and we may add, rich or poor, (for it is no more a man's choice to be poor, than it is to be a fool, or a dwarf, or black, or tawney,) such he is by God's appointment; and, abstractedly considered, he is on these accounts neither a subject for pride, nor an object for contempt. Now, if