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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A35604 The Case of Charles Earl of Banbury 1698 (1698) Wing C891; ESTC R37530 2,583 1

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THE CASE OF CHARLES Earl of BANBURY THE Right Honourable William Knollis Created Lord Knollis and Viscount Wallingford and Knight of the most Noble Order of the Garter by King James the First and by Letters Patents of the 18 th of August 2 Car. I. Created Earl of Banbury To hold to him and the Heirs Males of his Body with a Clause of Precedence to take place next after Francis then Earl of Westmerland and before Henry then Viscount Mandevil and afterwards Earl of Manchester The said Earl having no Issue by Dorothy his first Lady did after her decease take to Wife the Lady Elizabeth eldest Daughter to the Right Honourable Thomas late Earl of Suffolk and they had Issue Edward Earl of Banbury who dyed without Issue and Nicholas late Earl of Banbury Some Questions arising in Parliament 3 Caroli upon the Clause of Precedence in the Patent of 2 Car. I. certain Earls did at the King's Request Grant Precedence to the then Earl of Banbury but ordered that he should have that precedence during Life only and not descendable to his Heirs Earl William dyed 25 May 1632. Earl Edward his Eldest Son being at the time of his Father's death aged little above five Years was not summoned to any of the Parliaments in time of King Charles the First nor could rightfully claim to be so summoned being under Age and so dyed without Issue as aforesaid Earl Nicholas being born January 3. 1630. did after his arrival to full Age sit in Parliament Convened in the Twelfth Year of the late King Charles the Second at the time of His Majesties happy Restauration In the Parliament summoned in the Thirteenth Year of the late King Charles the Second the said Earl Nicholas having received no Writ of Summons to that Parliament Addressed himself by humble Petition to his said late Majesty setting forth in effect the Matters before expressed and praying that he might be summoned by Writ to the said Parliament and enjoy the Priviledge and Precedency granted by the said Letters Patents of King Charles the First This Petition being by his Majesties Appointment delivered to the House of Peers by the Lord Great Chamberlain of England was thereupon by them taken into Consideration and thereupon referred to the Lords Committees for Priviledges who were upon hearing the Petitioners Counsel and the Kings Attorney General to make Report thereof The said Lords Committees being attended by Counsel and Witnesses on the Petitioners behalf and also by Mr. Attorney General for the King it was fully proved that the said Earl Nicholas was born of the Body of the said Countess Elizabeth during the Coverture between her and the said Earl William Mr. Attorney insisted on an Office by which it was found in 9 Caroli That the said Earl dyed without Issue and that it was reputed that he so dyed Whereunto it was insisted That by the Common Law of the Land if the Husband be within the four Seas and the Wife hath Issue no proof is to be admitted to prove the Child a Bastard And Mr. Attorney did admit the Law to be so And moreover it was proved Ex abundanti That the said Earl William was kind and conversant with his Countess and of a good state of Health using to ride abroad Hawking and Hunting although of great Age. And by a subsequent Inquisition found in 17 Car. primi it was found that the said Earl William had Issue as aforesaid viz. Edward the then Earl of Banbury his Son and Heir c. Upon the whole matter the Lords Committees came to this Resolution after several Attendances to Report their Opinions viz. That Nicholas Earl of Banbury being in the Eye of the Law Son to William late Earl of Banbury the House should therefore advise the King to send him a Writ to come to Parliament That the said Earl ought to have place in the House of Peers according to the Date of his Patent and not according to the Tenor of that part thereof which ranketh him before other Earls Created before him After those proceedings and before any final Determination thereupon the said Earl Nicholas having no Issue Male by the Lady Isabella Daughter of the Right Honourable the late Earl of Newport his first Wife took to Wife Anne the Daughter of the Right Honourable the late Lord Sherrard and had Issue by her Charles now Earl of Banbury his Eldest Son and Heir and about years since dyed leaving the said Charles Earl of Banbury an Infant under Age. The said Charles Earl of Banbury hath not been summoned to any of the Parliaments of his late Majesty King Charles the Second and by reason of his Infancy hath forborn to Claim or Petition for his Right But being now of full Age and not being summoned as other Peers are hath humbly Petitioned the House of Peers to consider his Case and represent the same to the King to the end he may be relieved according to Right The Clause whereby the King granted Precedence to Earl William and his Heirs Males beyond what he would have had by his Anciency and the Date of his Patent did first occasion the Question touching the enjoyment of his Honour which perhaps had never been otherwise questioned at all But admitting the Law therein to be one way or other the Honour of the Earldom is indubitably descended on CHARLES the now Earl of Banbury And neither the first Inquisition or any Opinions or Presumptions concurring therewith or founded thereon are to be received or regarded in prejudice of the Legal and Rightful Heir and the standing Rules of Law in Cases of Descent and favour of Legitimation upon these plain Reasons 1. The first Inquisition is no Evidence to conclude against other direct proof of the Fact made in the Case upon Oath before the Lords Committees of the Birth of Earl Nicholas 2. The second Inquisition is to the contrary and doth in effect Answer and Avoid the former 3. By Law no Proofs or Presumptions whatsoever ought to be received to Illegitimate Issue born within Lawful Wedlock while the Parents are both within the Four Seas And in this Case there was besides the second Inquisition Proof of Actual Kindness and Conversation between the Parents which the Law would intend if not proved 4. By Law no man ought to be Bastardized after his Death when he cannot Answer for himself 5. The Law doth so much favour Legitimation of Issue That if a Bastard actually born out of Wedlock became seized of an Inheritance and a Descent thereof to be cast on his Issue even the Right of the Lawful Heir or Mulier as the Law Terms it is thereby barr'd and therein that Descent from a mans Issue though Illegitimate doth differ from others The now Earl of Banbury is unquestionably descended from Earl Nicholas Actually Legal Heir of Earl William in all Regular Qualifications and Entitled to all the favourable Presumptions the Law doth afford And it would be an extraordinary thing both besides and contrary to all common Rules of Law and Justice to oppose a Legal Title upon pretence and Opinion of Fact so long since past and never proved examined or brought to Judgment in the Lives of the Parties concerned when themselves and many other Honourable Personages of their Alliance and Acquaintance might have given Proof and Testimony of their knowledge of many material Circumstances and other things now buried with them and the very truth whereof is become impossible to be throughly discovered and made out