the Countess of Banbury had given birth to a son, Edward, and in 1731 had another son, Nicholas. Lord Banbury must have been eighty-four or eighty-five at the period of the birth of his second son, and died in May the following year, 1632, having left a will of earlier date unaltered, and not made any mention of a son in the codicil. An inquisition taken at Burford nine months afterwards, respecting the lands of which he died seised, found that the earl died without heirs male of his body. The Countess of Banbury married Edward Lord Vaux within five weeks of the earl's decease. In 1640 a bill was filed in Chancery by Edward Earl of Banbury, an infant, for the discovery of deeds and writings, against one Stevens, who claimed title under a conveyance for life, or lease for years, from Earl William, and stated that the plaintiff was not his son and heir. Five witnesses were examined to prove his birth at Earl William's mansion-house, and that the earl and countess lived lovingly and kindly together. Their depositions, on being tendered in evidence in support of the claim in February 1809, were, after referring to the opinions of the judges, rejected as inadmissible to prove the facts stated therein. A commission, in consequence of these depositions, was ordered by the Court of Wards, and the inquisition held under this writ found that Edward, now Earl of Banbury, is, and at the time of the earl's decease was, his son and next heir. In June 1641 the Countess of Banbury and her youngest son obtained a licence to travel. Edward Knollys, the eldest son of Lord Banbury, assumed the title, and was killed near Calais during his minority in 1646. Nicholas, then fifteen, immediately assumed the title.

When the peers assembled at the convention parliament in April 1660, Earl Banbury's right to the dignity was not questioned till July, nearly three months after parliament had met ; and upwards of one month afterwards he is mentioned as present in the House of Lords. A day was appointed for investigating the earl's right to the title, but no proceedings took place, and he sat undisturbed till December. On the meeting of parliament in May the following year, no writ was issued to the Earl of Banbury, who immediately petitioned the king, that he might enjoy all the precedency and privileges granted by the letters patent of that dignity. This

claim excited the jealousy of the eight earls, who had been created between the coronation and date of his father's patent; but the Committee of Privileges heard his counsel and witnesses, who proved that Nicholas was born at the House of Lord Vaux, and equivocated in their testimony. The committee reported that Nicholas Earl of Banbury is a legitimate person. The attorney-general objected to issuing a writ of summons, on the ground that the Earl of Banbury was reputed childless, as proved by his majesty's message, and for the strictly tenchnical reason that the inquisitio post mortem, 9 Car. I. had found that the late earl died without issue male, which could not be avoided without a traverse. The description in the settlement deed of 1646 was the Right Honourable Nicholas, now Earl of Banbury, heretofore called Nicholas Vaux; and the attorney-general laid stress on this designation, and on the fact of the countess marrying within five weeks; but hasty marriages, though suspicious, were by no means uncommon, and the marriage settlement of Lord Banbury himself with the countess was executed within little more than two months after the death of his first wife.

The House would not adopt the report of the Committee of Privileges, but had the whole matter examined at the bar, and directed that the report should be recommitted. The committee again reported that Nicholas Earl of Banbury, being in the eye of the law son to the late earl, the House should advise the king to send him a writ to come to parliament, but no writ was ever sent. In 1670 Lord Banbury presented a petition to the House of Lords, "that he may receive such a writ of summons to the parliament, as may enable him to serve his majesty there, according to the duty of his place and quality. No proceedings took place, and in four years the earl died. His son Charles attained his majority in 1684, and the very next year petitioned for his summons. His prayers proving equally futile, he did an act which compelled a decision. Having the misfortune to kill his brother in law in a duel, he was indicted by the name of Charles Knollys, Esq., and prayed the House of Lords that he might be tried by his peers: it was resolved that he had no right to the title, and that his petition should be dismissed. He was more fortunate in the Queen's Bench, where his plea in abate

ment, "he not being named Earl of Banbury in the indictment," was allowed by the four judges. The brave Chief Justice Holt refused to give the angry lords the reasons for his judgment, asserting with manly freedom, "What a judge does in open court, he can never be arraigned for it as a judge. I am not in any way to be arraigned for what I do judicially. The judgment may be arraigned in a proper method by writ of error." Some rash peers would fain have sent the independent judge to the Tower for presuming to dispute their jurisdiction; but the counsels of more discreet senators prevailed, and the majesty of the law was successfully vindicated. The precedent has been followed in our own times, which have seen with admiration the Chief Justice of the Queen's Bench scorning to succumb to the usurped tyranny of the lower branch of the legislature, and equally triumphant in his spirited opposition.

Charles, Earl of Banbury, renewed his claim in 1712 by petitioning Queen Anne, whose demise put a sudden stop to the proceedings then in agitation. The unlucky peer renewed his prayer on the accession of George II., and the attorneygeneral reported that a new reference to the House of Lords on the claim was a matter not of law but of prudence, which must be left to the king's determination; the royal will was adverse, and for nearly eighty years the claim rested in abeyance, without any abandonment of the right, but without a. renewal of struggles long importunate, and always defeated.

The descendants bore a barren title, but made no further effort to force open the reluctant door of the House of Lords till the commencement of the present century, when, on a prayer from Colonel Knollys by the style of William, Earl of Banbury, Sir Vicary Gibbs reported to refer his petition to the House of Lords, where it lay under close scrutiny and discussion eight or nine years. At the final hearing, against that strong phalanx of lawyers, Lords Eldon, Ellenborough and Redesdale, Lord Erskine earnestly contended that all the facts on which they relied might have occurred, and yet the children been the real issue of their ostensible father.

"Notwithstanding all that has been urged by the noble and learned lords opposite, I adhere to the opinion I expressed at an early period of the debate. I admit that the claimant labours un

der great disadvantage. The facts involved in his case are extraordinary, and the grave has long since closed over all the individuals whose evidence could afford him any assistance. His claim is almost as old as the patent of his ancestor, and successive generations have passed away without a recognition of it by this House. Yet time would be the instrument of injustice if it operated to raise any legal bar to the claimant's right. Questions of peerage are not fettered by the rules of law, that prescribe the limitation of actions, and it is one of the brightest privileges of our order that we transmit to our descendants a title to the honours we have inherited, or earned, which is incapable either of alienation or surrender. But I will go further, and assert, that lapse of time ought not in any way to prejudice the clamaint, for what laches can be imputed in a case where there has been continual claim? Nicholas, the second Earl of Banbury, presented his petition as soon as there was a monarch on the throne to receive it; and a series of claims have been kept up by his issue to the present hour.

"The rules relating to the bastardy of children born in wedlock may be reduced to a single point, i. e. that the presumption in fa vour of the legitimacy of the child must stand until the contrary be proved by the impossibility of the husband being the father, and this impossibility must arise, either from his physical inability, or from non-access. It has been urged that strong impossibility is sufficient, but this I confidently deny. We do not sit here to balance improbabilities on such a topic as this. . . . . . . The nature of the presumption arising from the access of the husband being ascertained, it is evident, that, if access can be proved, the inference from it is irresistible, whatever moral probability may exist of the adulterer being the father; whatever suspicions may arise from the conduct of the wife, or the situation of the family; the issue must be legitimate. Such is the law of the land. Women are not shut up here as in the Eastern world, and the presumption of their virtue is inseparable from their liberty. If the presumption was once overthrown, the field would be laid open to unlimited inquiries into the privacy of domestic life; no man's legitimacy would be secure, and the law would be accessory to the perpetration of every species of imposture and iniquity."

Lord Erskine then cited several cases in which reputation, adultery, treatment of the child, all went for nothing as nonaccess could not be shown; dwelling especially on the case of Boughton v. Boughton tried before Lord Ellenborough.

"The separation of the husband and wife-the intercourse of the

latter with Sir Edward Boughton-and the recognition of the child by that gentleman, were fully established. The baptismal registerthe conduct of the mother--the reputation of the world—and the proceedings in Chancery marked her as an illegitimate child. The single circumstance of the mother's husband being alive was all that could be urged to the contrary. The legal presumption in favour of legitimacy wrung a verdict from the jury, which no one can doubt they would have gladly withheld.

"From these principles, supported by these cases, I infer that, without proof of non-access, the presumption derivable from access must be conclusive. Such is the law of England as it existed from early times to the present hour. I am not here to defend the law, but to administer it. Perhaps the lawgiver may have laid down a rule not always infallible; he may in some instances have diverted hereditary wealth from its proper channel, by enriching the fruit of an adulterous intercourse, and he may thus have created the relation of parent and child where it had no real existence. In my opinion these occasional, and very rare, deviations from justice amount to nothing more than the price, which every member of the community may be called upon to pay for the privilege of an enlightened code. No laws can be framed sufficiently comprehensive to embrace the infinite varieties of human action, and the labours of the lawgiver must be confined to the development of those principles, which constitute the support and security of society. He views man with reference to the general good, and that alone. He legislates for men in general, and not for particular cases. No one can doubt that the interests of society are best consulted by making a question of such frequent occurrence as legitimacy to rest on a limited number of distinct facts, easy to be proved, but not to be counterfeited, instead of leaving it to be the result of inference from a series of indefinite facts, separately trifling, and only of importance collectively from the object to which they are applied. Marriage and cohabitation afford us a more sure solution of the question of legitimacy than we could arrive at by any reasoning on the conduct of the husband and wife."

He then artfully combats the presumption drawn from the extreme age of Lord Banbury:

man.

"There is no statute of limitations on the powers and faculties of Instances of robust longevity might be cited still more extraordinary. Sir Stephen Fox married at the age of 77, and had four children, the first child was born when the father was 78, the second and third were twins in the following year, and the fourth was born