BANBURY. 233 between the said Earl of Banbury aud several Peers of this Realm." Ou this the Report, 19 July 1661, was, that the Earl was " in the eye of the lawe, sonne of the lute William Earle of Banbury," and that the house of Peeres should therefore advise the King to send him a writ to come to Pari. ; " but that, as to the question of his precedency, they were of opinion that he " ought to have place in the House of Peeres according to the date of his patent." The House resolved to take this report into consideration but never, apparently, did so, aud on 9 Dec. following a bili was read for the first, time entitled " An act for declaring Nicholas, called Earl of Banbury, to be illegitimate," inasmuch as " the illegitimation of children born in wedlock ciu nocway be declared but by Act. of Pari." This attempt to obtain an ex post facto law to divest a man of rights (publicly acknowledged and long enjoyed) was abandoned after the first reading of the Bill, and the Earl was left in possession of his former status, viz. legal legitimacy, for, as was said in the " Purbeckj'V'case in 1678, " By bringing in a bill to bar him, his right to the title is confessed, for he cannot be barred of anything which he hath not right to." On 26 Oct. 1669 it was again referred to the Committee for Privileges to examine why the Earl's name was omitted from " the list by which the Lords were called," " he having formerly Bat as a Peer in this House." The report thereon, 25 Nov. 1669, recited all the proceedings against the Earl, as also the statement of Garter King of Arms that in the two Parliaments of 1640 no meution( b ) is made of an Earl of Banbury, and left " the business to the consideration of the House." On the 23 Feb. 1670 the Earl presents a petition (not to the King but) to the House of Lords stating " that he had the honour to be a Peer of this Realm," and praying his writ accordingly. No proceedings thereon took place aud within four years thereof the Earl died. He m. firstly Isabella, da. of Moutjoy (Blount), 1st Earl of Newport, by Anne, yst. da. anil coheir of John (Boteler), Loud Boteler. She d. s.p.m. and was bur. 2 March 1634-5 at St. Martins in the fields. He m. secondly, at Stapleford, co. Leic, 4 Oct. 1655, Anne, da. of William (Shkrahd), Lord Shkrard [I.], by Abigail, da and coheir of Cecil Cave. He d. at Boughton, co. Northampton, 14 March 1673, aud was bur. there. Admon. 28 Jan. 1674-5 to his widow, again 21 June 16S1, aud again 4 July 1683. His widow d. 6 March 16S0 at Harrowdeni Magna and was bur. the 10th at Boughton. Her admon. 21 June 16?1 and 4 July 1683. IV. 1G7.°). 4. Charles (Kxollys), Earl op Banbury, &c, s. and h. by 2nd wife, bap. at Boughton afsd., 3 June 1662, as "Viscount Wallingford s. and h. ap. of the Rt. Hon. Nicholas, Earl of Banbury." About a year after attaining his majority he, on 10 June 1685, petitioned the House for his writ of summons, which was reported on by the Lords' committee ami a day fixed for hearing counsel thereon, but no further proceedings were taken. The Earl, however, having had the misfortune to kill in a duel his br. in law, Capt. Philip Lawson, was indicted 7 Dec. 1692 as " Charles Knotty), Esq.," on which, on the 13th, he presented his petition to the House, praying, as a Peer, to be tried by his Peers. This being a legal question it was moved that the Judges be heard as "to the points of law in this case," which equitable motion, however, was rejected by a majority of 33 Peers to 29 ; after which it was carried, 3 7 Jan. 1692-3, that the Petitioner had no right to the Earldom of Banbury and his petition was dismissed accordingly. Against this resolution no less than 20 Peers "protested," the majority being (probably) ouly eight.( c ) The indictment had been removed, from Midx., by certiorari, in Hilary term 1692-3, to the King's bench, where the prisoner pleaded a misnmner, which plea (after about a year's delay, caused by the Attorn. Gen. insisting that the resolution of the Mouse was a proof of the nou existence of the Peerage and by " demurrers " aud " couuter demurrers " on either side) icas confirmed _ ( ) This is accounted for by his having been then a minor, " it not being usual to insert the names of Peers who were under age in such lists. The Earls of Oxford aud Wmchelaea, Lords Dclawarr, Chaudos, Petre and Teyuham were also minors and their names are likewise omitted."— See Nieolas' "Treatise, &c," p. 395. n ( c ) See Nicolas' " Treatise," abovenauied, p. 411, note 1. See also ante, under Aylesford," p. 211, note " c," for later instances in which the House of Lords have overruled the old legal doctrine of " Pater est quern nuptial detnonstrant."
