417 
HERALDRY. 
of h!s children lofing the right in cafe he never takes his 
feat ; for they will fucceed to their grandfather ; nume¬ 
rous inftances of which will appear in the following 
hiftory of our nobility. Creation by writ has alfo one 
advantage over that by patent; for a perfon created by 
writ holds the dignity to him and his heirs, without the 
neceffity of any words to that purport in the writ: but 
in letters patent there mutt be words to diredt the inhe¬ 
ritance, elfe the dignity only endures to the grantee for 
life. For a man or woman may be created noble for 
their own lives, and the dignity not defcend to their 
heirs at all, or defcend only to fome particular heirs: 
as where the-peerage is limited to a man and the heirs 
male of his body by his prefent lady, and not to fuch 
heirs by any former or future wife. 
One of the great privileges of the nobility is, the 
right of being tried by their peers. It isfaid, however, 
that this does not extend to the bifhops ; who, though 
they are lords of parliament, and lit there jure ecclefue, 
yet are not ennobled in blood ; but we mult confider, 
that, belonging to the ecclefiaftical hierarchy, they have 
there a tribunal before which they might be cited if the 
purity of their lives and habits was ever to be put in 
queliion. As to their peerage,, as they hold it in virtue 
of their epifcopal confecration, it mult ceafe with their 
title, that is, with their life. 
As to peerelfes, no provifion was made for their trial 
when accufed of treafon or felony, till after Eleanor 
duchefs of Gloucefter, wife to the lord protestor, had 
been accufed of treafon, and found guilty of witchcraft, 
in an ecclelialtical fynod, through the intrigues of car¬ 
dinal Beaufort. This very extraordinary conviction 
gave occalion to a fpecial ftatute, 20 Henry VI. c. 9, 
which enaCts, that peerelfes, either in their own right, 
or by marriage, fhall be tried before the fame judicature 
as peers of the realm. If a woman, noble in her own 
blood, marries a commoner, Ihe Hill remains noble, and 
fhall be tried by her peers; but if Ihe be only noble by 
marriage, then by an after-marriage with a commoner, 
the lofes her nobility : it is not in her blood : therefore, 
as by marriage it is gained, fo by marriage it may alfo 
be loll. Yet if a duchefs-dowager marries a baron, Ihe 
continues a duchefs Hill ; for all the nobility are pares, 
and therefore it is no degradation. A peer, or peerefs, 
either in her own right or by marriage, cannot be arrefted 
in civil cafes: and they have alfo many peculiar privi¬ 
leges annexed to their peerage in the courle of judicial 
proceedings. A peer, fitting in judgment, gives not his 
verdiCf upon oath, like an ordinary perfon, but “ upon 
his honour." He anfwers alfo to bills in chancery upon 
his honour, and not upon his oath : but, when he is 
examined as a witnefs either in civil or criminal cafes, 
he mujl he [worn ; for the refpeCt which is fliown to a peer 
does not exiend fo far as to overturn a folemn maxim 
of the law ; “ in judicio non creditur nifijuratus." 
In ancient times the nobility had the adjuftment of 
various caufes of difpute and inquietude within their 
territorial jurifdiCtions, and which was then of fingular 
utility in humanizing the country, and inculcating prin¬ 
ciples of honour, juftice, and mercy; the moft notable 
examples of which were to be looked for among the 
higher orders, and enforced by the laws of chivalry and 
knighthood. The Earl Marlhal of England formerly 
held a “court of honour,” wherein were decided all 
difputes relative to armorial bearings, and the point 
d’honeur among gentlemen. A curious and laudable 
deciiion of this court is given by Mr. Dallavvay in his 
elegant “ Progrefs of Heraldry,” p. 295 : Anthony Fel¬ 
ton, efq. being the party aggrieved, and Edmund 
Withepoole, efq. the aggrelfor. The complaint was, 
t^at the latter had offered to the former the difgrace of 
the baftinado, in the town of Ipfwich. The canfe was 
tried with due folemnity ; and it is recorded, that the 
parties having appeared in court on the 23d of May, 
*598, “The Earl Marlhal having called for his affil- 
Von.IX, No. 596. 
tants, Thomas lord Howard of Walden, John lord Lum- 
ley, Thomas lord Dareie, of Chichefter, fir William 
Knollys, knt. comptroller of her majeffy’s houfehold, 
fir Walter Ralegh, captain of her majefty’s guard, fir 
Robert Sydney, lord governor of Flulhing, and fir Ed¬ 
ward Dier, chancellor of the Order of the Garter, did 
decree the caufe in this fort : That the faid Edmund 
Withepoole fliould acknowledge he had done wrong to 
the laid Felton, and to himfelf, in taking quarrel againft 
him without ground, and in proceeding in it without 
reafon. That the faid Withepoole fliould confefs to the 
faid Felton, he knew him to be a gentleman unfit to be 
ftroken, or to have any fuch difgrace offered him ; that 
from henceforward he would maintain the faid Felton’s 
reputation again ft any that by his former unadvifed act 
fliould feek to impaire it; and that what he now fpake 
he fpake from his heart, and would at all times and in 
all places avow'. To the w'hich order the faid Withe¬ 
poole did fubmitt himfelf, and performed it accordingly. 
Whereupon the faid Felton is declared to be free from 
all touch of difgrace, fince at Jthe time of the affault 
made upon him he drew his (word, and as a gentleman 
offered to defend his reputation ; and fince till this day 
lie hath bin reftrayned by authoritie front feeking any 
means to right himfelf, and now doth receive fuch fatif- 
fadtion as the Earl Marlhal and his affiftants think to be 
fit for the one partie to give, and the other to receave. 
(Signed) R. Essex, Earl Marfhal.” 
When the many and fhocking evils which arife from 
the prefent fafliionable practice of duelling, befides the 
difgrace it reflects upon civilized fociety, are duly ap¬ 
preciated, the public will pofiibly regret that this court, 
fo well calculated to inveftigate and fettle difputes of 
honour, fhould ever have fallen into difufe. All con- 
troverfies relative to the unauthorized alfumption of 
arms, were the peculiar province of this court; and its 
ufage in thefe Cafes is both entertaining and inftruftive. 
A memorable inftance is the following: Hugh lord 
Maltby exhibited to tlie earl marflial a complaint againft 
Hamond Beckwith, for having aflumed his arms. A 
mandate was iftued to the faid Beckwith, bearing date 
January 18, 1339, fummoninghim to produce fuch evi¬ 
dences and records of his arms “ as we fhall allow, grant, 
and fet our hands to, to your reft and pofterity for ever : 
and alfo to your appearing on the fourteenth of October 
in the year aforefaid.” Beckwith, having appeared and 
eftablifhed his claim, received the ufual certificate, 
“ Whereof I Earl Marfhal, Peter Mauly, lord Bellaqua, 
lord chamberlain, Henry lord Percy, fir Robert Boyntuii, 
and fir William Hatton, knights, did fee and allow it as. 
due coat-armour to him lineally defcended, and have fet 
our hands ail'd feals on the day and year aforefaid, iu 
the prefence of many.” 
A more folemn, but moft unjuft, decifion in a cafe of 
aflumption of coat-armour, is that very ancient one al¬ 
luded to above, relative to the arms of England in the 
time of the Confeflor. When the gallant lord Surrey 
had incurred the difpleafure of Henry VIII. and Ilia 
ruin was decided on, he was charged with the affump- 
tion of the royal bearing of Edward the Confeflor. The 
noble family of Howard had, ever fince the year 1394, 
ufed it, by the authority of the king, in right of defeent. 
The principal witnefs againft him was his Own fifter, 
Mary duchefs of. Richmond, and the relidl of his moft 
intimate frifend. In the courfe of her depofition fhe al¬ 
leges, “ That fhe thought he had more than feven rolls 
of arms, and that fome that he had added were of An¬ 
jou and Lancelot du Lac. And that her father, (the 
duke of Norfolk,) fince the attainder of the* duke of 
Buckingham, (who bore the King’s Arms,) where the 
arms of her mother, daughter of the faid duke, were 
rayned in his coat, had put a blank quarter in the place ; 
but that her brother had re-alTumed them. Alfo that, 
inftead of the duke’s coronet, was put to his arms a cap 
of maintenance purple with powdered fur, and with a 
5 O crown 
