Page:The Complete Peerage Ed 2 Vol 1.djvu/86

opinion. Upon these opinions Lady Fane, who, as da. and h. of Henry, Lord Bergavenny, claimed as h. gen., prayed to be allowed the Barony, but nothing further took place until 1604, when the claims being renewed, the House of Lords avoided a formal decision, being 'not so perfectly and exactly resolved as might give clear and undoubted satisfaction to all the consciences and judgements of all the Lords for the precise point of Right;' it was agreed therefore that suit should be made to the King for ennobling both parties by way of restitution, the one to the Barony of Le Despencer, the other to the Barony of Bergavenny; and by a further resolution it was determined that Bergavenny should go to Nevill, and Le Despencer to Fane; this arrangement was approved of by the King, and a Writ of Summons was directed Edwardo Neville de Bergavenny Chr., 25 May, 2 Jas. 1604, and letters patent dated the same day confirmed the dignity of Le Despencer to Lady Fane."—Courthope, p. 17.^[1]
This Edward (Nevill), Lord Bergavenny, so sum. 1604 as above, though neither h. nor even coh. of any Barony cr. by writ of 1392, was allowed the same precedency^[2] as had been enjoyed by the former lords.^[3] This precedency was certainly not on account of his having been held to be a Baron by tenure, for the decision of the House was, "that the place,

1. The famous and prolonged struggle for the barony of Abergavenny between the heir-general and the heir male after the death of Henry, Lord Abergavenny is described and discussed by Sir Harris Nicolas in his Barony of l'Isle (1829), pp. 384–391. It has also been investigated anew by J. H. Round in his Peerage and Pedigree, where it is shown that all previous accounts of it are inaccurate, and that there were three stages, at successive periods: (i) Sir Thomas Fane, in right of his wife versus the elder Edward Nevill; (ii) Lady Fane, as a widow, versus the younger Edward Nevill, under Queen Elizabeth; (iii) the same parties, under James I. V.G.
2. That is to say a precedency based neither upon writ, nor tenure, but upon usage. V.G.
3. This appears to have been without a Royal Warrant. See Appendix C in this vol. as to precedency of Peers in Parl. granted by Royal Warrant since the Statute of Precedency of 31 Hen. VIII. The award made by Edward IV, 14 April 1473, in the case of the Barony of Dacre, is very similar to that made by James I as to the Barony of Bergavenny. Edward IV, after awarding the old Barony to the h. gen., declares that the h. male should be "called the Lord Dacre of Gillesland, and he and the heirs male of the said Thomas, late Lord Dacre to have place in our Parl. next adjoining beneath the place the said Richard Fenys, Knt., Lord Dacre [the h. gen.] now hath." Here then is a spec. precedency, extending even to Parl. (where, in this case, it has always been allowed), granted by the Crown to a newly created Barony. Neither in the case of Dacre nor of Bergavenny was the King's award carried out by patent, but in both by writ. The effect of this as to the Barony of Dacre of Gillesland was, that this Barony (when claimed in 1569 by Leonard Dacre the h. male of the body of the grantee, as against his nieces, the heirs gen.), was declared by the Commissioners of the Earl Marshal "to have commenced by writ 13 Edw. IV," and so "ought not to descend to the said Leonard as h. male." The royal award which (in the case of Dacre, though not in that of Bergavenny) declared expressly it should be to heirs male, not having been carried out by letters patent, went for nothing. It is difficult to see why the writ of 1604 in the case of Bergavenny (which has not, as in the