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Because it further appeared by the Journals, that in the year 1692, although the House had thus for above thirty years together neglected as we conceive its most manifest duty to the King and to the claimant, by refusing to come to any decision upon a claim thus brought before them in a legal form by the King's authority, and by themselves so often referred to the Lords' Committees for Privileges, according to the ancient forms and customs of Parliament, yet, that nevertheless when the same case did not call upon the Lords, nor even entitled them (as we shall insist hereafter) to decide upon the claim of Peerage so as to affect the inheritance, but only to grant or to reject the petition of Charles Earl of Banbury, son of Earl Nicholas, then deceased, praying to be tried upon an indictment for murder, as a Peer of the realm, the House upon the very same evidence only which it had had before it for above thirty years without coming to any decision, did then resolve, that the said Charles had no right to the title of Earl of Banbury.
Because upon all the matters aforesaid (the said resolution being no bar, as we shall protest against hereafter) the claimant was entitled to the judgment of the Committee, unless new evidence had been brought forward, sufficient to controvert a title so supported; and for this purpose accordingly other circumstances were established not formerly in evidence, but which were not in our opinions commensurate with their object when brought to the standard of law, which by our own consent had been erected by the judges.
Because consistently with that standard, they could only be produced to establish a judicial belief and conviction, that William the first Earl of Banbury, had had no access to, or in other words sexual intercourse with his Countess, by which he could have been the father of Earl Nicholas; and for that purpose only the following facts were proved and brought in review by argument before the Committee; viz.
That William the first Earl was above eighty years of age when Nicholas must have been begotten, and had been married to his Countess for above twenty years without her having had any children, and that after Earl William's death she had within a period equally forbidden by decency and custom, married the Lord Vaux, in whose house at Harrowden, Earl Nicholas appeared to have been born.
But these circumstances, though insisted upon in debate as material to be considered and acted on as evidence, we may altogether put aside before proceeding to others which require far greater consideration. Because with regard to the great age of Earl William, we answer, that there is no authority in the law, nor any instance in any recorded or known trial where the circumstance of age, however advanced, without proof of impotency from its consequences, or from disease or infirmity, has ever been considered by any Judge, or left as a fact to any Jury, as a circumstance to affect legitimacy; on the contrary, Bracton expressly considers it (and was cited for that purpose before the Committee) as matter which may be legally proved, and then undoubtedly, if believed, it is decisive. In the same manner we deny, that the length of time for which a woman may have been barren after marriage, can be legally considered as a circumstance to affect legitimacy, unless it be proved that from infirmity or from age, she was incapable of having children; but we admit, that the following facts which were also proved before the Committee, are of an entirely different character, and which we have duly and deeply considered. 1st, That King Charles I, to induce the House of Lords to consent to an illegal precedency conferred upon Earl William by his patent, sent a message to the House whilst considering the question, asking, as the Journal records it, ‘That the Earl being old and childless, might enjoy it during his time;’ which message, though before the birth of Nicholas, being subsequent to the birth of Edward the eldest son of Lady Banbury, then an infant nearly a year old, it was argued with great force, that it went strongly to show, not only that Earl William was at that time considered to be childless, but that from his silent acceptance of the precedency thus conditionally yielded to him, he so considered himself. 2ndly, That though possessed of three different estates, which by antecedent settlements were intended to preserve such property in his name and family, he aliened one of them in fee to his Countess, to whom he had given besides the whole of his personal estate; a second to the Earl of Holland; and the third to Sir William Knollys, who in the default of children of the Earl, would have been entitled to inherit it in the course of descent, and that this last estate so aliened was a royal grant for services, with a reversion in the Crown, and of course not alienable, but which must have descended to Earl Nicholas. From these facts it was argued, that it was unreasonable to believe, or rather incredible, that Earl William knew he had issue by his Countess, who were to enjoy after him the honours of his house; and that with regard to the estate so aliened to Sir William Knollys, which was not by law alienable, it was unreasonable to believe that Earl Nicholas would not have claimed and enjoyed it, which it was proved he never had. 3rdly, That on the death of Earl William, he was found by an inquisition post mortem to have died without heirs of his body, and that certain persons named in it were his heirs. From this fact also it was maintained with great force, that as the Crown had a special interest in such inquisitions during the existence of the feudal tenures, and as it was manifest that deeds which must have been in the possession of the family had been examined by the Jury, it was not reasonably to be believed, but rather incredible, that such an inquisition could have been found, if the children of the Countess had been visible, and known and received as the children of Earl William deceased. 4thly, That though there was indeed another inquisition eight years afterwards, proceeding from a due authority as being for property in another county, and which found that Earl William had left Edward his son and heir, yet it was argued that as it found only the small insignificant property of the Bowling Place at Henley, in Oxfordshire, such proceeding by inquisition was by no means necessary, and that, as such property if disputed might have been recovered in a Court of Law, it ought to be considered as a fraud to support the spurious descent of the children of Lady Banbury, brought forward as it was alleged after her husband's death, by getting rid of the powerful presumption arising from the first inquisition immediately upon his death. 5thly, That by a deed to which Lord Vaux, Lady Banbury then his wife after Earl William's death, and Lord Salisbury and Lord Howard, very near relations, were parties, and which was made to settle estates of Lord Vaux’s on Earl Nicholas, he was, though styled in the deed Earl of Banbury, described as theretofore known by the name of Nicholas Vaux, from which it was argued that he
had been considered by Lady Banbury herself, and by other near relations, as the son of Lord Vaux and not of Earl William, a presumption strongly fortified, as was contended, by the settlement in question. From all these accumulating facts and circumstances it was argued, that there was sufficient evidence before the committee to establish, not only that Lady Banbury was living in adultery with Lord Vaux, when her children were begotten, but also, and without which the rule given by the Judges could not be satisfied, that Earl William had no sexual intercourse with his Countess by which he could have been the father of her children. Lastly, To invest these circumstances with a weight not intrinsically belonging to them, resort was had to arguments of length of time upon all questions of inheritance; but whilst we acknowledge the soundness of the presumptions which the law has in that respect established, we not only reject them as inapplicable to the present question, but maintain that length of time divests the circumstances above relied on, of all their force and their effect. Because all presumptions from length of time depend upon a principle which is founded upon the very nature and character of man; viz. That in a country governed by law, and where impartial justice is so universally administered, it is to be presumed that every man will enjoy what is his own ; and that they who for a great length of time have not clothed their rights with possession (without being able duly to account for it) either never had such rights, or had for some cause or consideration released or abandoned them. In cases therefore where property depends upon conveyances and titles, positive Statutes of Limitation have been by the Legislature most wisely enacted; and in cases of incorporeal rights to which these statutes do not reach, the Judges have by analogy introduced the soundest rules of evidence which by degrees have ripened into rules of law, to protect property and rights against unjust invasion, when time may have destroyed all the means of resistance or defence. Because it was therefore with the utmost surprise that in accumulating the circumstances just recited, and indeed throughout the whole debate, we heard it maintained that the claimant's case ought now to be received with every possible jealousy and caution, because the grave had swallowed up all witnesses who WOL. II. H h
might in other times have opposed it by their testimony; but against this argument not only in fairness to the claimant, but for the preservation of the universal and immutable rules of justice, we solemnly protest. If the claimant indeed had not brought forward his claim when it was first interrupted, if he had not submitted it to the only tribunal which had jurisdiction to decide it, or if that tribunal when appealed to had in the first instance, and whilst witnesses to the transaction were living given judgment against him, which though never confirmed so as to become conclusive, had never been reversed, we should have considered the matter to be nevertheless concluded; but when on the contrary it appears beyond all controversy that the claimant did bring forward his claim of right at the earliest period, and when it was first interrupted ; that that claim was not only twice adjudged in his favour by the Lords' Committees for Privileges, the only tribunal which by the forms and customs of Parliament had jurisdiction to examine it; when the evidence given before that Committee was not only found sufficient by it, but was so admitted by those public servants of the Crown who were appointed to contest his title; when those judgments of the Committees for Privileges were not only not reversed whilst witnesses were living who might have supported them, but were not impugned by either evidence or argument when repeatedly brought before the House, we protest against the application of length of time as an objection; since we find the claimant out of possession, not because he had not appealed to a competent tribunal until witnesses were dead who might have opposed his title, but because whilst witnesses were living, the tribunal to which he had appealed and which was alone competent to the decision, had contrary to all precedent and to every rule and principle of justice pertinaciously refused to decide. Because if in 1661 Earl William's great age, the King's message to the House that he was childless, the first inquisition to the same effect (even if the second had never existed), the conveyances of all his hereditary property without notice of his children, the nonclaim of Earl Nicholas, and the settlement upon him by Lord Vaux, describing him as some time or other bearing the name of his family; if all these circumstances had been urged against him at that period, we might admit without danger to the