Page:The Complete Peerage Ed 1 Vol 3.djvu/110

 DEVON. added a warrant of precedence " that he and they [his heirs] were to enjoy in Pari., as well as iu all other places whatsoever, such place and precedence as any of the on the failure of heirs male of the body of the grantee was considered to be extinct. (2) The Earldom of Wiltshire {Scrope), or. 1397, the grantee, who d. s.p., being beheaded and attainted in 1399 ; in this case neither the or. and heir, nor the nephew (each of whom was, successively, Lord Scrope of Bolton, and of great influence) nor any of their descendants (who continued till 1630 in the male line) petitioned for a reversal of the attainder, as considering themselves heirs to this Earldom, which was conferred on other families (Butler, Stafford, Boleyn and Paulott) iu 1449, 1470, 1529 and 1550 respectively. It was not till after the decision oflS31, iu the Devon case, that Mr. Scrope, of Dauby, eo. York, laid claim to this Earldom aa heir male collateral (3) The Barony of Hoo and Hastings (lino), cr. 1447, the grantee of which (/. s.p.m. iu 1455, when his br. Sir Thomas Hoo became his heir male, and survived him more than 30 years, but never claimed the dignity aa such heir. (4). The Barony of Kgremont {Percy), cr. 1449, the grantee of which d. s.p. legit, in 1400, leaving Henry, Earl of Northumberland his br. and h. male, but neither he nor any of his descendants ever claimed the title as such heir. (0) The Barony of Richemount-Orey (Grey), cr. 1150, the grantee of which was attainted in 1461, and d. apparently s.p., and leaving his nephew Edmund, then Lord Grey de Ruthin, his heir male. Of these live cases not one appeal's to favour the construction given, in 1831, to the patent of 1553 in the case of the Earldom of Devon. In the " Report of the Proceedings on the claim to llic Earldom of Devon " [pub. iu 1832] by Sir Harris Nicolas (whose able but, of course, interested advocacy the claimant had secured) two other cases are quoted, both being Irish Peerages (the Viscountcy of Boyle of Kynalmeaky, and the Barony of Broghill) conferred on two brothers (Lewis Boyle and linger Boyle), younger sons of the Earl of Cork [I.] in 1627. The remainder, however, in each of these cases is set out quite clearly in the patent, viz., that failing the heir male of the body it should go to the Earl of Cork (the father) and the heir male of his body, failing which to the heirs male of the said Earl, while in the preamble to the creation of Kynalmeaky the intention is announced that the honour should remain to the heirs male of the said Earl " tam de corporc, qxtam a latere." These creations, consequently, by shewing the necessity of inserting special words to effect a rem. to collateral heirs male argue (as far as they go) a/jainsl rather instead of for the interpretation of the Devon remainder. The intention of the Crown in 1627 was quite clear : can the same be said iu 1553 >. It is to be considered (1) that the Earldom of Devon (unless considered as a creation de novo of 1355) came into the Courtenay family (like the Crown of Scotland to the family of Stuart) " with a lass," and, but for the attainder by Edward IV would have gone therefrom " with a lass" (more than 400 years ago) in 1471 (2) that Henry VI, in 1185, and Henry VIII (to whom the grantee was uncle) iu 1511 (with both of whom the Courtenay family as stout " Lancastrians ' ' were in the highest favour) cr. the heir male of that family (descendants but not representatives of the ancient Earls) Earl of Devon, with rem. to the heir male of the body (3) that iu the patent of 1553 is a clause that the grantee and his heirs male should have the precedence of any Earl of Devon that was the grantee's " antecessor." Can one suppose that this precedency was meant to be given to any Courtenay who was not descended from the old Earls of the house of Redvers ? Yet such might have been the effect if the heir male of the grantee had had to be sought for, but four generations higher than was the ease in 1831. It would seem, therefore, probable either that the words " de. corporc suo" were accidentally omitted or that the words "haredibus tuts masculis," without the addition of " quihiseunnuc " and with nothing in the preamble to guide their significance, were synonymous to " heirs male of the body." The expression " heirs mate" is certainly used very vaguely. "Nothing can' be more common among English Peerage-writers [says the learned John Riddel], in his " Scotch Peerage Late as connected with the case of the Earldom of Devon," 1833] than the acceptation of heirs male as simply restricted to heirs male of the body, for which he quotes not only " Cruise and " Collinn' Precedents " and (even) the House of Lords in 1677, but also the opinion of the Lords' committee [4th Peerage report, 18], that " the grant of a dignity to a man and his heirs is a grant to him and the heirs of his body only and will convey nothing to collaterals." He goes on to discuss the " import of the term heirs