Page:The Complete Peerage Ed 2 Vol 4.djvu/754

 732 APPENDIX H PEERAGE CASES DESPENSERQ When Henry (Nevill), Lord Abergavenny, died in 1586/7, he left an only child, Mary, wife of Sir Thomas Fane, as his sole heir general. His heir male, on whom the Castle of Abergavenny and the estates were entailed, was his cousin, Edward Nevill. Sir Thomas Fane claimed the Barony y«r^ uxoris; Edward Nevill claimed it by right of tenure. Both claimants died early in 1588/9, before the case could be tried in the Earl Marshal's Court. Edward Nevill the younger assumed the title, which called forth a protest from Lady Fane in a petition to the Queen. The claimants came before the Earl Marshal's Court in Nov. 1598, and again in Feb. 1598/9. After the last hearing the Earl Marshal sent the following question to the two Chief Justices: "Whether he may not signifie unto her Majestie that the disposition of the Lord Bergavenny resteth wholy in her gracious will and pleasure. " Wher as the heir is collateral and so farr removed and the heir generall incapable in respect of her sex, and the entaile of the lands confirmed by Parliament to the heir male." The reply of the Judges was entirely in favour of the heir general. Here the matter apparently rested for nearly five years, when new petitions were presented by both claimants to James 1, Nevill asking to have the case referred to the House of Lords, on whose Journals it first appears on 5 Apr. 1 604. " The House, unable to arrive at a decision. . . finally referred the rival claims to the King, inviting him to ennoble 'both parties by way of Restitution.' "('') As Lady Fane and Edward Nevill were coheirs to the Barony of Despenser, this gave the King an opening to compromise, and he left the House to allocate these dignities. Edward Nevill was summoned to Parliament as Lord Abergavenny, 25 May 1604, and Lady Fane that day received letters patent of the Barony of Despenser, with the precedence of 1265. The opinion of the Judges in 1599 is a very early declaration of the rights of the heir general, and contrasts remarkably with the complete ignoring of such rights in coheirs at about the same time, as seen in the De la Warr case (ante, pp. 709-1 1). It is, in fact, a much more expHcit state- ment of the principle than can be extracted from the Clifton case, which is regarded as having settled the law finally in 1673/4 by the simple resolution " That the said Catherine Lady O'Brien hath right to the Barony of Clifton." The result of the Abergavenny case again shows the tendency of dignity to follow the lands. According to the law as now settled, that the Crown (^) For this case see J. H. Round, Pet-rage and Pedigree, vol. i, pp. 78-89 and 166-201, where the very confused account given in Collins's Proceedings is disentangled. (•>) Idem, p. 176.