Page:The Complete Peerage Ed 1 Vol 3.djvu/375

 FITZ- WALTER. 373 Barony. jg t g T R Henry Mildmat, dejtm Lord Fitz Walter,^) XV. 1620. c(,,ls ' u to l "e deceased Lord and heir geu. to the 1st Lord Fitz Walter, being second son of Sir Thomas Mildmay, of Moulsham co. Essex (who rf. 11 July 160S), by Frances (6. 1552, m. 1580, rf. 1G27), sister of the half blood to Thomas and Henry, Earls of Sussex and Lords Fitz Walter, before mentioned, being only da. of Henry (Uadeliffe), 2d Earl of Sussex and Lord Fitz Walter, by his second wife, Anne, da. of Sir Philip Calthorpe. He was 6. about 1535 ; sue. his eldest br. Sir Thomas Mildmay (who d. s.p.) 13 Feb. 1625/6, in the estate of Moulsham, inheriting, also, that of Woodham Walter and Dunmow, from the family of Fitz-Walter. He claimed the Barony of Fitz- Walter by petition read in the Pari, (called "the Loug Parl."l, 9 Aug. 1641. He m. Elizabeth, 2d da. and coheir of Thomas Darcy, of Tolleshunt Darcy, co. Essex, by Camilla, da. of Vincent Guicciardini, of Florence. He rf. 1654. XVI. 165 J/. 16. Henry Mildmay, de jure Lord Fitz-Walter,^) grandson and h., being 1st s. and h. of Robert Mildmay, of Overstone, co. Northampton, by Mary, 3d da. and coheir of Sir Thomas Edmonds, of Overstone afsd.,('') which Robert was s. and h. ap. of Henry, the dc jure Lord Fitz- Walter (1629-54), next aboveuamed, but rf. v.p. 1616. His petition for this Barony was before the House of Lords in Aug. 1660.( c ) He rf. unm. and under age, at St. Martin's in the fields, and was bur. 24 March 1661/2, at Chelmsford. XVII. 1661 17. Benjamin Mildmay, [de jure^) 1661, and sub- and sequently, 1670, de facto] Loud Fitz-Walter, br. and h. He 1670. was b. in or before 1646. His petition for this Barony was before the House of Lords in Feb. 1667,( c ) but, pari, being prorogued, a decision by the Privy Council was, 19 Jan. 1669/70, given in his favour, and he was sum. to the House of Lords by writ, 10 Feb. 1669/70, directed lienjamino Mildmay de Fit: Walter, C/tivalicr," and placed {salvo jure), on the 14th inst., at the lower end of the Barons bench and subsequently (also salvo jure), 10 Nov. 1670 as "the last (■') According to the decision of the Privy Council in 1669 and the (consequent) issue of the writ 14 Feb. 1669/70, to Benjamin Mildmay as Lord Fitz Walter. CO Tho mother of this Mavy was Magdalen, da. and coheir of Sir John Wood, also of Overstone. See pedigree in Baker's " Northamptonshire," vol. i, p. 56. ( c ) The claim was opposed by " Robert Cheeke, Esq." s. and h. of Sir John C. of Pirgo, co. Essex (who rf. 1659), who was s. and h. of Henry C, by Frances, only sister of Edward (Radcliffe), 6th and last Earl of Sussex, who d. B.p. in 1643. The grounds urged against the Mildmay claim were (1) (Half blood, inasmuch as the mother of Lady Frances Mildmay was the second wife of the 2d Earl of Sussex (Lord Fitz- Walter), from which, wife the 3d and subsequent Lords did not descend (2) The attachment op a Barony to an Earldom, when (as in this case) it had once been held therewith ; aud (3) Barony by tenure, so that this Barony ought to devolve with the land. It was, however, decided (1 ) that Half blood could not be any impediment in the case of a dignity ; (2) that. Allho' a Baron in fee simple be created an Earl, the Barony shall descend to the heir general, whether or not the Earldom continue, or be extinct, and (3) as to the very important question of Barony by tenure that " whatever pretence there might be for presuming that there were originally Baronies by tenure, yet that Baronies by tenure had been discontinued for many yeai-s, and were then not in being, and so not Jit to be revived." Sir H. Nicolas in his " observations on dignities," remarks hereon ; " It does not appear on what ground Mr. Cheeke's counsel claimed the Barony of Fitz-Walter by tenure, for that Barony was originally attached to the tenure of the manor of Little Dunmow iu Essex (which was granted to Robert Fitz-Walter in the reign of Henry I), and, at the period when this claim was discussed it was not in the possession of cither of the claimants." It seems that this manor, which had descended, from the Fitz- Walters, to Sir Henry Mildmay, (who died seized thereof in 1629), was alienated to the family of May, was mortgaged, before 1672, by Sir John' May (to Edward Eversfield) and was afterwards, in 1700, sold by Sir Thomas May.