In writing historicals set in England in the early 1800s, it is necessary for me to possess more than a working knowledge of primogeniture, which is both the custom and the law of inheritance in practice at that time. In primogeniture, it is the right of the first born legitimate son to inherit the real property of his father, in preference to daughters, younger sons, elder illegitimate sons, and other relations in the male line. The son of the deceased eldest brother inherits before a living younger brother by right of substitution for the deceased heir. Estates were entailed, not upon the eldest son, but upon the eldest son’s first born son. By constantly extending the entail to the “grandson,” they became perpetual in nature.
But what if there are no sons? Then the family tree is searched for the nearest male blood relative, all the way back to the original holder of the estate. But things become even more convoluted when the heir goes missing before he has an apparent heir. Let us say the heir goes missing at sea. Believe it or not, the House of Lords would not automatically name the next in line as the new title owner. There is always the chance that the current lord survived the catastrophe he encountered. What would happen if he returned, say in 5 or 10 years? The ruling is that the title and the real estate would revert to the original owner, but not necessarily the personal property. The ruling is that the title and the real estate would revert back to original landowner, but not necessarily the personal property. It must not be forgotten that, by English law, ordinary leaseholds, whether they consist of lands or houses, count as personalty and are distributed as such on intestacy. Money in trust for investment in land is distributed as realty under the same rule of inheritance. What a legal mess! This little twerk of the law of inheritance is enough to set brother against brother in my latest romantic suspense, Angel Comes to the Devil’s Keep.
But was there a precedence for this type of ruling from the House of Lords? In fact, as a fundamental law, primogeniture is a practice of the landed aristocracy, rather than the general populace. Among the “upper crust” of society, generally, hereditary estates are entailed and not at the free disposal of individual landowners. There are few wealthy or noble families that have not employed the practice of primogeniture somewhere in their histories.
Occasionally, those histories become so complicated that it takes centuries for the peerage to be defined. For example, during the reign of Edward III, one of the companions of the Black Prince was Sir Robert Knollys, who earned the Blue Ribbon of the Garter for his valor. The Knolls’s family continued to receive the favor of successive reigns. One such person was Sir Francis Knollys, who married Catherine Gray, grand-niece of Queen Anne Boleyn. They produced two sons: Henry and William. According to Kidd and Williamson, editors of George Edward Cockayne’s The Complete Baronetage, Henry did not survive his father, and so William claimed the baronetcy in 1596. In 1603, King James presented William an additional title beyond the baronetcy, making William Baron Knollys of Grays, in Oxfordshire. In 1619, King James further favored William with an another barony, by naming him Baron Wallingford; later, in 1626, King Charles presented him as the Earl of Banbury.
William’s first wife Dorothy did not provide William an heir. Upon Dorothy’s death, he married Lady Elizabeth Howard. William was nearing sixty years at the time of the marriage, and Lady Elizabeth was but twenty. Yet, keep in mind, William did not pass until the age of eighty-five.
After Banbury’s death, in April 1633, an inquisition occurred, stating that Elizabeth was Banbury’s wife at the time of his death and that the earl died without a male heir. However, records show that Elizabeth delivered two sons before her husband’s death: Edward on 10 April 1627 (Banbury was 80 and Elizabeth 41 at the time) and Nicholas on 3 January 1631 (Banbury was 84 and Elizabeth 45). Generally speaking, common practice said if Banbury accepted the children as his and/or acknowledged them in some manner such as baptism or speaking of them as such to trustworthy witnesses, the boys would be considered his. Yet, the official investigation in 1633 skewed that ruling for it was written evidence to the contrary. Complicating the situation of whether the children were legitimate, after only five weeks of mourning Banbury, Elizabeth married Lord Vaux of Harrowden, a family friend. It was said the boys favored Vaux in countenance. Lady Elizabeth adopted Roman Catholicism, the religion of Lord Vaux. She, therefore, came under the scrutiny of the Long parliament, which was previously skeptical of her relationship with Vaux. Eventually, on 19 August 1643, the speaker issued a pass enabling her to remove to France, and on 13 June 1644 the House of Commons resolved that should she return she should be seized and kept under restraint. She died on 17 April 1658, and was buried at Dorking, Surrey, near the residence of her second husband. Vaux passed on 8 April 1661, and is said to have died without issue. (Lee, Sidney, ed. Dictionary of National Biography: Vol XXXI Kennett – Lambart: [London, Smith, Elder & Co., 1892. 287-288], accessed January 22, 2017. https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=Cal.+State+Papers%2C+Dom.+1654-5%2C+p.+55), page 287)
In 1640, William, Earl of Salisbury, guardian of the eldest boy Edward, filed in Chancery upon Edward’s behalf for a claim to the earldom. Witnesses and evidence were presented to substantiate the filing, but on 1809 (nearly 170 years later) the House of Lords rejected the claim. How did that come about?
A hearing in 1641 dealt with the question of Edward’s legitimacy; it found that Edward, Earl of Banbury, was the deceased earl’s son and heir because of the legal doctrine, Pater est quem nuptiæ demonstrant, which assumes in all cases of children born in wedlock that the husband is the children’s father. And although there was some debate as to whether Banbury recognized the child as his during the earl’s marriage to Elizabeth, a legal decision in favor of the claim to legitimacy was made. “Edward, the elder of the countess’s two sons, was styled ‘Earl of Banbury’ in a chancery suit to which in February 1640-1 he was party as an infant, for the purpose of establishing his right to a plot of land at Henley, styled the Bowling Place, and to other property left by his father. Under orders of the court of wards an inquiry into the late earl’s property was held at Abingdon on 1 April 1641, and the court found that ‘Edward, now Earl of Banbury, is, and at the time of the earl’s decease was, his son and next heir.’” (Lee, 287)
Unfortunately, another complication occurred after Edward’s being named earl for he was killed in a quarrel upon the road to Calais in 1645. Edward’s brother, Nicholas, naturally made a claim to the title, but he was a minor at the time and could not inherit. Nicholas then travelled to France with his mother in 1644, but in October 1646, he returned to England, for Lord Vaux settled all his lands at Harrowden on Lady Elizabeth, with the remainder to Knollys himself, who was styled “Earl of Banbury” in the deed. When Nicholas reached his majority, he moved to prove his right to the peerage and, thus, petitioned the Crown for his writ of summons to assume his seat in the House of Lords. The Committee of Privileges heard the petition, which granted the writ for Nicholas, Earl of Banbury.
Nicholas married Isabella, daughter of Mountjoy Blount, earl of Newport, and the pair soon fell into pecuniary difficulties. In February 1654, Nicholas, earl of Banbury, the Countess of Banbury, Lady Elizabeth Vaux and Lord Vaux petitioned Cromwell to remove the sequestration on Lord Vaux’s estate so they might compound or sell some of the land to pay their debts of some 10,000l. The earl had been confined at the time at the Upper Bench prison because of the debt. Isabella died soon afterwards, and Nicholas married Anne, daughter of William, Lord Sherard of Leitrim. “In June 1660 he attended the Convention parliament in the House of Lords, but it was not until 13 July 1660 that the first attempt was made to dispute his right to his seat there. It was then moved that ‘there being a person that now sits in this house as a peer of the realm, viz. the Earl of Banbury, it is ordered that this business shall be heard at the bar by counsel’ on the 23rd. Knollys attended the house daily in the week preceding that appointed for the hearing, and was present on the day itself. But no proceedings were taken, and on 24 July he was nominated, under the style of Earl of Banbury, to sit on the committee on the Excise Bill. On 21 Nov. it was ordered that the earl ‘hath leave to be absent for some time.’ On 29 Dec. the Convention parliament was dissolved. No writ of summons was sent to Knollys for the new parliament, meeting 8 May 1661. He therefore petitioned the king for the issue of the writ and for all the old earl’s rights of precedency. His petition, when forwarded to the House of Lords, was referred to a committee of privileges. This committee examined the servants who were at Harrowden at the time of his birth. The attorney-general argued on behalf of the king that the old earl had died childless, but the committee reported on 1 July 1661 that ‘Nicholas, Earl of Banbury, is a legitimate person.’” (Lee, 288)
His son Charles assumed the title upon Nicholas’s death. Likewise, Charles petitioned for his writ of summons, and the committee of privileges reported the history of the case, and the House of Lords agreed to hear counsel for and against the claim, but a delay occurred, one lasting some thirty years. During the delay, Charles had the misfortune of killing his brother-in-law, Captain Philip Lawson, in a duel. In November 1692, he was indicted and ultimately requested a trial by his peers before the House of Lords. This brought about another hearing upon whether Charles held a legitimate claim to the earldom. His petition to the House of Lords was dismissed with a ruling denying his right to be styled Banbury. He was removed to Newgate Prison.
According to “The Banbury Peerage Case” on the Bennet Dictionary: The Bennet Dictionary: Celebrated Claimants from Perkin Warbeck to Arthur Orton [(1874). accessed December 13, 2016. http://bennetdictionary.com/banbury-peerage-case/], the trial and the various pleas took more than a year, during which Charles was presented bail to move about in society. At length, the Lords intervened, and Parliament took up his case again, but the session was discontinued indefinitely, and no decision was forthcoming. The trial also quashed the indictment against him for the duel for the prisoner was styled in the charges as “Charles Knollys, esq.” instead of “the Earl of Banbury.”
Nothing more was heard upon the legitimacy of Charles’s claims until four years later when in 1698, Charles Banbury again petitioned the King for the writ of summons. The House of Lords accepted the case again, but it went from continuance to continuance, passing through the end of the reign of William III and into that of Anne. There was hope for a resolution in late 1713, but the sudden death of Queen Anne in August 1714 once more delayed the proceedings.
Charles next petitioned George I, but no definite decision was given. Charles, Earl of Banbury, died in 1740. During his lifetime, to no avail, he presented five petitions to the Crown. However, not being officially recognized as the Earl of Banbury did not prevent him and his family from enjoying their position in Society.
Charles was followed by another two Charleses and a William, who died in 1776. William’s brother Thomas held the title until his death in 1793, when his son William Knollys, then called Viscount Wallingford, sent a formal petition in 1806 to the Crown for the Banbury earldom, the question of which was again returned to the House of Lords. By 1806, there had been an “Earl of Banbury” for 180 years. Yet, William’s father, Thomas, had held a commission in the Third Regiment of Foot as a “Lieutenant-General.” As such, Thomas was styled by his military rank and not Banbury, causing William’s claim to be denied. Needless to say, primogeniture is not a clearly defined practice.
Angel Comes to the Devil’s Keep [Romantic Suspense]
Huntington McLaughlin, the Marquess of Malvern, wakes in a farmhouse, after a head injury, being tended by an ethereal “angel,” who claims to be his wife. However, reality is often deceptive, and Angelica Lovelace is far from innocent in Hunt’s difficulties. Yet, there is something about the woman that calls to him as no other ever has. When she attends his mother’s annual summer house party, their lives are intertwined in a series of mistaken identities, assaults, kidnappings, overlapping relations, and murders, which will either bring them together forever or tear them irretrievably apart. As Hunt attempts to right his world from problems caused by the head injury that has robbed him of parts of his memory, his best friend, the Earl of Remmington, makes it clear that he intends to claim Angelica as his wife. Hunt must decide whether to permit her to align herself with the earldom or claim the only woman who stirs his heart–and if he does the latter, can he still serve the dukedom with a hoydenish American heiress at his side?