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be recognized and fixed in the progress of society and the development of unwritten law; and consequently the work reads as a proper sequel,-a good companion to that by Mr. Flintoff. Accordingly we have due attention paid to the constitution of Parliament, its usages, laws and powers; to the functions, the prerogative, the revenue, the exemptions, &c. of the sovereign, together with the privileges of the other branches of the royal family. And here it is interesting to find how the constitution has provided for conjunctures which
uncertain occurrence. For example, The heir-apparent to the crown is usually created Prince of Wales and Earl of Chester ; but he is immediately on his birth Duke of Cornwall. This is a very peculiar species of inheritance, created by act of Parliament, whereof there is no other instance. The Duchy of Cornwall is in the Queen until she has male issue ; and on the birth of an heir-apparent, he will immediately become Duke of Cornwall by inheritance; but to hold the dukedom only so long as he does not inherit the crown and have a son and heir; for as soon as the father becomes King, the law vests the Duchy of Cornwall in his heir-apparent.
The constitution, the powers, the jurisdiction and the functions of the judicial institutions, from the highest in the land down to those of petty courts, are discussed; while not less interesting, and perhaps not less important, as regards the well-being of the nation, is the nature of our local machinery for the preservation of order, the enforcement of justice, and the dignity of indispensable forms; there being included in this class whatever belongs to the institution of sheriffs, justices of the peace, coroners, corporation-authorities, and so forth. Nor are the peculiar conditions of clergy and laity overlooked, both as the one order is contrasted with the other, and as each divides into degrees, even down to merchants, tradesmen, artificers, and labourers. We may also refer to curious and useful information furnished by our author with regard to the position and liberties of natural-born subjects, of denizens, and of aliens. We have intimated that Mr. Bowyer is explicit relative to the privileges of the members of the royal family. Take him on the matter of precedence :
The younger sons and daughters of the Sovereign are entitled to a peculiar place in the House of Lords ; for it is enacted by the stat. 31 Hen. VIII. c. x. that no person except the King's children shall presume to sit or have place at the side of the Cloth of Estate in the Parliament Chamber. It was also decided by the House of Lords, to whom the settlement of the place and precedence of Edward Duke of York, second son of Frederick Prince of Wales, and grandson of George the Second, was referred by the King, that under the description of the King's children his grandsons are included ; and that the Duke of York ought to have place next to the Duke of Cumberland, the King's youngest son, and might have a seat on the left hand of the Cloth of Estate.
But when, by the decease of King George the Second, those royal personages ceased to be the children, and became the brother and uncle of the reigning Sovereign, they, as Blackstone informs us, left their seats on the side of the Cloth of Estate; so that when the Duke of Gloucester, second brother of King George the Third, took his seat in the House of Peers, he was placed on the upper end of the Earl's bench, (on which the Dukes usually sit,) next to his Royal Highness the Duke of York,
What makes an English gentleman ?
“As for gentlemen," says Sir Thomas Smith, " they be made good cheap in this kingdom ; for whosoever studieth the laws of the realm, who studieth in the universities, who professeth the liberal sciences, and (to be short) who can live idly and without manual labour, and will bear the port, charge, and countenance of a gentleman, he shall be called master, and be taken for a gentleman." Yet it would seem that, strictly speaking, according to the law, Lord Coke's definition is correct.
Every gentleman must be arma gerens ; and the best trial of a gentleman in blood (which is the lowest degree of nobility) is by bearing of arms. . . . . So in these days the rule is, nobiles sunt qui insignia gentilicia generis sui proferre possunt.” And hence we may deduce that there are gentlemen by hereditary descent, and gentlemen by grant of coat-armour.
Some of the institutions and courts which were once in high repute, have of course gone out, or fallen into desuetude, with change of manners and opinions ; such, for example, as found support in what are called the dark and the feudal ages. The Court of Chivalry may be quoted :-
Certain general words in the statute 13 Rich. II. c. ii. support the claim of this court, “1. To give relief to such of the nobility and gentry as think themselves aggrieved in matters of honour; and 2. To keep up the distinction of degrees and quality. Whence it follows, that the civil jurisdiction of this Court of Chivalry is principally in two points ; the redressing injuries of honour, and correcting encroachments in matters of coatarmour, precedency, and other distinctions of families. As a court of honour, it is to give satisfaction to all such as are aggrieved in that point ; a point of a nature so nice and delicate, that its wrongs and injuries escape the notice of the common law, and yet are fit to be redressed somewhere. Such, for instance, as calling a man a coward, or giving him the lie ; for which, as they are productive of 10 immediate damage to his person or property, no action will lie in the Courts at Westminster; and yet they are such injuries as will prompt every man of spirit to demand some honourable amends; which, by the ancient law of the land, were appointed to be given in the Court of Chivalry. But modern resolutions have determined, that how much soever 'such a jurisdiction may be expedient, yet no action for words will lie therein.
As to the other point of its civil jurisdiction, the redressing of encroachments and usurpations in matters of heraldry and coat-armour, it is the business of this court, according to Sir Matthew Hale, to adjust the right
of armorial ensigns, bearings, crests, supporters, pennons, &c.; and also rights of place or precedence, where the King's patent, or act of Parliament (which cannot be overruled by this court), have not already determined it.
Art. IV.-History of the Earldoms of Strathern, Monteith, and Airth.
By Sir Harris Nicolas. Pickering. With this History we have a "Report of the Proceedings before the House of Lords on the claim of Robert Barclay Allardice, Esq. to the Earldom of Airth ;" this claim, which was in the course of legal proceedings, extended to the Earldoms of Strathern and Monteith, having given rise to the learned pedigree-finder's volume. And a volume of very considerable interest it is, even although the reader may be neither lawyer nor antiquary, neither versed in heraldic nor genealogical lore. To be sure the work will be chiefly valuable to persons who already possess, or wish to acquire, a knowledge of Peerage law; but Sir Harris has arranged and illustrated the
dryer points of his subject in such a manner as to render them fit for the general reader; these points being often curious in themselves, and even romantic in their character, as well as results. We have not only many family incidents and details, exhibiting strikingly Scottish individual character at periods when the lineaments were most strongly marked; but even the national history, at notable epochs, is indicated by remarkable passages in the archives of single families. The fortunes of some of the most ancient and renowned Scottish houses are indeed wonderful. Mutability stamps them, and renders them, whether in the zenith of their barbaric power, or in their prostration and utter ruin, fit themes for the novelist and the romantic dramatist. The moral which they teach is not less impressive if drawn from the reluctance to part with the semblance of power and state when the substance is gone, and the aversion to adapt the ideas manfully to the reality of circumstances, than is the lesson which their sudden vicissitudes bequeath. А notice of some of the circumstances in the history of these Earldoms, and of the claims which have been advanced by members of the houses mentioned, will indicate not merely how intricate their condition in a legal sense may become, but how significantly and widely the facts may point, and how strangely affect the position of individuals.
The truth is, that the branch of the Stuart family, which occupied the throne so long, was not legitimate. The first king of the line was Robert the Second, who had in an early period of his life three sons by Elizabeth, daughter of Sir Adam Muir, the eldest of whom ascended the throne, having been legitimized by the subsequent
marriage of his parents ; although there was issue by an earlier marriage, the children, however, being younger in years, yet older in respect of legitimacy by the law of Scotland: the Pope's dispensation was only discovered about a century ago.
The issue of Elizabeth Muir having mounted the throne, jealousies continued long after to be cherished by the royal family towards the junior but more legitimate descendants; while the aspirations of the latter on the other hand were nct less pointed and keen. And thus enmities were fostered, intrigues hatched, and troubles entailed.
King Robert created his eldest any born in wedlock Earl of Strathern. There is no existing charter of this creation ; but according to a subsequent charter, the title was granted to heirs ; and, in fact, till the reign of James the First, the earldom continued, the family having by this time acquired vast possessions. James, however, requiring money, as well as being determined to limit the power of the nobles, some of whom were almost in a condition, at least of a mind, to divide the sway with him, seized upon the earldom, when the earl, a minor, was a hostage in England; alleging that the title had reverted to the Crown; at the same time creating the youth Earl of Monteith instead, with certain annexed lands. The assassination of the monarch was not unconnected with these strong measures.
During several centuries the earldom of Monteith, the title and the territory, in as far as legal recognition went, were definite and
But William Graham, the seventh earl, who was not only lucky enough to stand in the highest favour with Charles the First, but rash enough to cherish an inordinate ambition beyond this, laid claim to the title of Earl of Strathern, and also to such lands, not in the possession of the Crown, territorially belonging to the earldom, as had been granted to subjects. Charles consented so far as to grant to him and his heirs-male the title of Earl of Strathern, with precedency.
William Graham's ambition was, of course, fed by these concessions, and vaulted higher, till he met with a check that issued in the creation of a new title, that of Airth; if not to the extinction of the earldoms of Strathern and Monteith, at least to their merging in that of the new creation. And now commenced the downfal of the proud house; and from this point, too, the reader of the History cannot but obtain a curious view of the parties who figured in the intrigues connected with these earldoms. Two or three extracts will indicate the form which the maneuvres took, and also the characters of some of the parties,-lawyers as well as courtiers. We quote:
“ The admission of the Earl of Monteith,” says Sir Harris Nicolas, “ to the ancient Earldom of Strathern, roused the jealousy of the Peers, over
whom he had thereby obtained precedence; and the fears of numerous persons were excited lest his claim to the territorial Earldom should affect their right to their estates. A powerful confederacy was formed against him; and his own ambition and imprudence having afforded ample materials for the designs of his enemies, his fall was even more rapid than his elevation,
A statement was prepared and circulated by the Earls of Seaforth and Tullibardin, Sir John Scot of Scotstarvet, Director of the Chancery, and others, in which it was asserted that the admission of the Earl of Monteith to the Earldom of Strathern, as heir of Prince David, would be “ dangerous and prejudicial to his Majesty, to the public peace, and to the state of the country ; on the ground that as the children of King Robert the Second by Elizabeth Muir were born before marriage, the recognition of the Earl of Monteith as heir of Prince David, the eldest son of King Robert's marriage with Euphemia Ross, would give him a better right to the crown of Scotland than the King himself.” Six “ Reasons” were assigned to show the expediency of forbidding the Earl of Monteith to pursue his claim to the Earldom of Strathern
1st. That it was not judicious for his Majesty to promote the succession of the descendants of Euphemia Ross to such an estate and power in the country, as might, in case of a commotion, "give them occasion to think upon the kingdom."
2nd. That it would be an imputation upon his Majesty's honour to restore that Earldom to the successors of Malise Graham, from whom it was taken by King James the First,“ a virtuous and just Prince ;" because such restoration would be to asperse that Monarch with “ injury, oppression, and avarice," and be a justification of his murder by Sir Robert Graham, for having wrongfully usurped the Earldom.
3rd. That as the Earldom had been annexed to the Crown by Parliament, it would be inexpedient to repeal that proceeding:
4th. That as the Earldom had been “set in few" by Parliament to various tenants in the year 1508, many“ honest gentlemen” would be ruined and divested of their estates if it were to be again separated from the Crown.
5th. That if the Earl of Monteith were to recover the Earldom, it would produce great diminution of his Majesty's" rent and obedience !" because much land and many persons would be subjected to the Earl, as they would then hold of him; among others, the Earls of Montrose, Perth, Tullibardin, the Viscount of Duplin, Lord Maderty, &c.
6th. That King James the Sixth always refused to grant the title, and still more the territorial Earldom of Strathern, to any subject; saying to those who sought it, that “ he had no more for the blood and slaughter of King James the First."
The Earl of Monteith was proud and powerful; the King was his friend and was displeased with his favourite's revilers and wily enemies. But he also had his eye upon the points to which their arguments and insinuations tended. He therefore, although the occasion and the case were disrelished, called for further investigavol. II. (1842.) NO. I.