489 Officers Of Arms v Twysden

489 OFFICERS OF ARMS V TWYSDEN

Officers of Arms v Sir Roger Twysden of East Peckham, co. Kent, bart

January 1637 - February 1638

Abstract

The articles and personal answer give little information on this case. Most of it comes from the account which Twysden himself kept of proceedings. On 23 January 1637, Greenstead, an officer of the heralds, came to his house at Roydon Hall, Kent, with a summons dated 8 November 1636, calling him to appear before the Court of Chivalry on 28 January to answer the complaint of the Officers of Arms for fees unpaid at the funeral of his father Sir William in 1629. The heralds alleged that the privileges that King James had granted to baronets, to have 'assistants' at their funerals, conferred on them rights of compensation for the loss of fees if the heir chose to have a private funeral. Twysden decided that he was too unwell to appear at the court in person and got his brother, Francis, to go instead. The proceedings were then adjourned until the next court day, 11 February 1637. Meanwhile, Francis met John Philipot, Somerset Herald, who knew Twysden, and advised that the fees should be paid since, in an earlier case, Twysden's brother-in-law, Sir Christopher Yelverton had stood out at first, but finally yielded [see cause 491]. Francis replied by asking, 'Was he compelled to pay, or did he pay by way of gratuity?' When the court sat again on 11 February Somerset reported that Francis Twysden had alleged that Yelverton's payment had been made by way of alms, which so angered the judges that they committed him until he took out a bond of £40 for his appearance at their next court day on 16 February. Meanwhile, he was able to explain himself to the Earl Marshal and Twysden's friend, Sir Henry Marten, 'who chid him, whatever he thought, for speaking out.'

At length on 28 June 1637, Dr Duck presented the case on behalf of the Officers of Arms. It had long been the custom that where a burial had not taken place publicly the heralds had received a composition in lieu of fees, although he had to admit that there had been some intermission of the practice towards the end of Elizabeth's reign. For the purpose of avoiding future contention, he alleged the Commissioners of the Earl Marshal in 1618 ordered that certificates of death should be entered in the College and appointed set fees to be paid, as was evidenced by divers extant deeds. Twysden, a dedicated antiquarian, who kept his summons of 29 April 1637 because he thought it contravened the statute 13 Ric. II, c. 2 in that it did not specify why he had been sent for, decided to investigate in the Heralds' Office. Sir John Borough, Garter, received him civilly and repeated Duck's statement, that the nobility had always been expected to hold their funerals publicly. This Twysden did not dispute, but he desired to know whether it applied to the nobilitas major and minor or only the major , implying that baronets were only nobiles minores. Garter was obliged to admit that it was only the nobilitas major , and gave two examples of the Court of Wards and the Court of Chancery having ordered the payment of the heralds' funerary fees. He also claimed, however, that gentlemen were accustomed to compounding for the fees due, although being pressed for evidence that they had been compelled to do so, he could not produce any.

On 31 October 1637 Duck finally gave Twysden the articles to which he was to reply. The reply was delivered on 18 November, but the Earl Marshall excused Twysden's personal attendance. Apart from the general argument that there was no precedent for the claim, he put forward a special plea that when baronets were first created in 1611 (Sir William Twysden being one of them) the king set out terms whereby they paid no fee to the heralds, but paid £1,000 apiece to the king. Did he, then, intend them to be charged on their death? More especially, could the commissioners' promulgation of a scale of fees in 1618 bind those who had been created baronet seven years earlier, when no such scale was in force? On 28 November Dr Duck was ordered to consult over Twysden's response and proceedings were still in progress on 3 February 1638; but there is no evidence for the court's final decision.

Initial proceedings

10/12/6, Articles [Latin - badly damaged]

1. 'From time immemorial the funerals of noblemen and gentlemen of England have been conducted with pomp and ceremonies, and with the arms of the deceased according to their ranks and dignities, and the Kings of Arms and Heralds have directed the funerals and supervised the painting of the arms from time immemorial to the time of Queen Elizabeth.

2. The aforesaid use and custom being neglected by some heirs and executors, Queen Elizabeth ordered the Earls Marshall and the Commissioners for executing their office to take care that the use and custom should be continually observed.

3. In King James's time the Commissioners for the Office of Earl Marshal ordered that certificates after the death of noblemen and gentlemen should be entered in the register of arms and certain fees paid.

4. The fees of the Kings and Officers of Arms have been held to be due by various judgements and decrees of the King's Courts, namely the Court of Chancery, the Court of Wards and Liveries, the Prerogative Court of Canterbury and others.

5. During the last five years various heirs and executors of noblemen and gentlemen have been summoned before this court and compelled to pay and fees aforesaid by decrees of the court.'

[31 October 1637].

Signed by Arthur Duck.

19/7h, Personal answer [Latin]

Twysden argued that that there was no precedent for the claim and put forward a special plea: when baronets were first created in 1611 (Sir William Twysden being one of them) the King set out the terms on which he could create a man a baronet which meant that there was a kind of agreement between baronets and the king. The first baronets paid no fee on their creation (that is, they paid no fee to the Heralds: they paid £1,000 apiece to the king). Did the Court of Chivalry, intend them to be charged on their death? More especially, could the Commissioners' promulgation of a scale of fees in 1618 bind those who had been created baronet seven years earlier, when no such scale was in force?

Dated 18 November 1637.

Signed by Thomas Eden and Roger Twysden.

12/1b, Personal Answer [Latin - badly damaged]

Mentions a session of parliament.

Summary of proceedings

Dr Duck acted as counsel for the Kings of Arms and Dr Eden for Twysden. On 28 January 1637 Sir Roger Twysden was required to appear before the court and on 11 February his brother Francis was interrogated and bound for £40 to appear the next court day and 'answer such matter as shalbe objected against him' In February and April Twysden had to appear again to respond to the articles. In October 1637 John Greenstead was required to attend as a witness. On 18 November Twysden alleged that his father had been a baronet before him.

Notes

For another account of the case see, G. D. Squibb (ed.), Reports of Heraldic Cases in the Court of Chivalry, 1623-1732 (London, 1956), pp. 27-8.

For the Kings of Arms, see S. A. Baron, 'Sir John Borough (d.1643)'; S. Wright, 'Sir William Le Neve (1592-1661)'; and T. Woodcock, 'Sir Henry St George (1581-1644)', Oxford DNB (Oxford, 2004).

Sir Roger Twysden, knt and bart (1597-1672), was the son and heir of Sir William Twysden of Roydon Hall, knt and bart (1565-1628), and Anne, daughter of Sir Moyle Finch of Eastwell, knt and bart. Sir Roger married Isabella, daughter of Sir Nicholas Saunder of Ewell, co. Surrey, knt, at Greenwich in 1620. He was distinguished for his learning and assisted John Philpott in his Survey of Kent. He was a committed royalist for which he was imprisoned and sequestrated in the civil wars. He was also the author of several ecclesiastical works.

R. Hovenden (ed.), The Visitation of Kent taken inthe years 1619-21 (Publications of the Harleian Society, 42, 1898), p. 136; G. E. Cokayne (ed.), The Complete Baronetage, 1611-25 (Exeter, 1900), vol. 1, pp. 74-5.

Eight years after the funeral of his father, Sir William Twysden, Sir Roger Twysden was prosecuted by the heralds for directing his father's funeral without them:

'On 23 January 1637, Grynsted, an officer of the Heralds' Office, came to Roydon Hall and showed Twysden a sealed parchment dated 8 November 1636, summoning him to appear at a Court Marshall, to be held in the Painted Chamber, Westminster, on 28 January to answer the complaint of the Kings and Officers of Arms for fees unpaid at Sir William's funeral. The Heralds alleged that the privileges that King James had granted to baronets to have 'assistants' at their funerals conferred rights upon the Heralds and that, if the heir chose to have a private funeral, they were entitled to compensation for the loss of the customary fees. It was a difficult point and the Heralds' complaint caused Twysden some anxiety; he decided that he was too unwell to appear at the Court Marshall and got his brother, Frank, to enter an appearance for him. The proceedings were then adjourned until the next Court day, 11 February. In the meantime, Frank met Philipott, Somerset Herald, who, like many of the other sixteenth and seventeenth-century Heralds, was a Kent man and knew Twysden. In the way of friendship he advised that the fees should be paid and said that Twysden's brother-in-law Yelverton had stood out at first but had finally paid. "Yes", replied Frank "but was he compelled to pay, or did he pay by way of gratuity?" Philipott repudiated the saucy implication that the Heralds were in need of gratuities, and when Frank contended that if they received fees in every case it would produce an income of £20,000 a year, Philipott would not allow the figure would amount to more than £3,000 or £4,000.

When the Court sat again on 11 February Somerset reported that Frank Twysden had alleged that the payment made by Yelverton had been by way of alms, which so angered the Court that the young man stood committed for a while. Eventually he was freed, and bound over to appear at the next Court Day, 16 February (each cause that was pending had to come before the court at each session, even if only to be adjourned to the next). Fortunately for him, he had an opportunity of speaking with the Earl Marshall, and explaining away his rash words. He also told Twysden's good friend, Sir Henry Morton, a judge of the Admiralty Court, what he had really said, 'who chid him, whatever he thought, for speaking out...

Even after this contretemps had been disposed of the suit did not proceed smoothly. Twysden, warned to appear on 29 April 1637, kept the summons because he thought it contrary to the statute 13 Ric. II, c. 2, in that it did not specify the cause why he had been sent for. Of course he was in no doubt as to the reason, but for Twysden the preservation of freedom was to be found in the meticulous observance of the proper forms of procedure. He wwas in trouble for not allowing the officer to take the summons back with him, but this soon blew over when Twysden promised to deliver the parchment into Court.

At length on 28 June, the Court began to hear the merits of the dispute. Dr Duck, a learned civilian who was the King's Advocate in the Court, argued for the Kings-of-Arms and the Heralds that it had long been the custom that where a burial had not taken place publicly the Heralds had received a composition in lieu of fees, although he had to admit there had been some intermission of the practice towards the end of Elizabeth's reign. For the purpose of avoiding future contention, he alleged the Commissioners of the Earl Marshalship in 1618 ordered that certificates of death should be entered in the College and appointed set fees to be paid, as was evidenced by divers extant deeds. Duck's advice was to try the Heralds' Office so Twysden went off to pursue his inquiry there.

At the Office Twysden could find only an old man, who took him in to Sir John Burroughs, Garter King-of-Arms. Garter received him civilly and repeated Duck's statement, that the nobility had always been subject to have their funerals public. This Twysden did not dispute, but desired to know whether it applied to the nobilitas major and minor or only the major, implying that baronets were only nobiles minores, and not to be ranked with the earlier five orders of majores ranging from duke down to baron. Garter was obliged to admit that it was only the nobilitas major, and gave two examples of the Court of Wards and the Court of Chancery having ordered the payment of the Heralds' funerary fees. Gentlemen, said Garter, had been used to compound for the fees due, but being pressed for evidence that they had been compelled to do so, he could not produce any. This, retorted Twysden, did not then help the Heralds' case, for "he that gives the least blow to a priest is excommunicated, but he that shoots at him with a gun and misses goes free".

Although it was not referred to either by Dr Duck or Garter, a precedent might have been cited from King James's reign when proceedings were brought against sons of Sir Richard Conquest, Knight, of Bedfordshire for dispensing with the services of an officer of arms at Sir Richard's funeral, and they were ordered to pay £10 to the College of Arms for the benefit of the officer whose turn it was to serve at the funeral. True, there was another, and much more objectionable element in the Conquest case, that a painter-stainer had been engaged to perform functions proper only to a Herald, so the precedent was not on all fours with the Twysden case. Nevertheless, it is surprising that it was not referred to; perhaps no one remembered it... To his disquiet and annoyance 'a gentleman of the county' told Somerset that Twysden had expressed his willingness to pay the fees, and from the letter of remonstrance, elliptical though it is, which he addressed to Sir Edward Dering on 14 July, it is plain that it was Dering who had set this baseless rumour afoot.

Significantly, there was now a lengthy pause in the proceedings, and it was not until 31 October that Duck gave Twysden the articles that he was to reply to. The reply was delivered on 18 November, but the Earl Marshall excused Twysden's personal attendance. Apart from the general argument that there was no precedent for the claim, he put forward a special plea: when baronets were first created in 1611 (Sir William Twysden being one of them) the King set out the terms on which he could create a man a baronet, so there was, argued Twysden, a kind of agreement between baronets and the King. The first baronets paid no fee on their creation (that is, they paid no fee to the Heralds: they paid £1,000 apiece to the King); did he, then, intend them to be charged on their death? More especially, could the Commissioners' promulgation of a scale of fees in 1618 bind those who had been created baronet seven years earlier, when no such scale was in force?

There is so far as I am aware, no record of the determination of the suit. Probably the Heralds were glad to drop the case, for a decision against them would have made it difficult to bluff others into paying funerary fees. Twysden's resistance to the claim, typical of the man, must have surprised them. They expected him to behave like a gentleman, instead he reacted like a baronet with a knowledge of the law and a profound veneration for precedent.'

F.W. Jessup, Sir Roger Twysden, 1597-1672 (London, 1965), pp. 22-6.

Documents

• Initial proceedings
  • Articles: 10/12/6 (31 Oct 1637)
  • Personal answer: 19/7h (18 Nov 1637)
  • Personal answer: 12/1b (no date)
• Proceedings
  • Proceedings before Arundel: College of Arms MS. 'Court of Chivalry' (act book, 1636-8) [pressmark R.R. 68C] (hereafter 68C), fos. 51r-59r (28 Jan 1637)
  • Proceedings: 68C, fos. 23r-36v (11 Feb 1637)
  • Proceedings: 68C, fos. 1r-11r(16 Feb 1637)
  • Proceedings: 68C, fos. 14r-20v (16 Feb 1637)
  • Proceedings: 68C, fos. 37r-41v (29 Apr 1637)
  • Proceedings before Arundel: 8/26 (14 Oct 1637)
  • Proceedings before Maltravers: 8/27 (14 Oct 1637)
  • Proceedings before Marten: 8/27 (14 Oct 1637)
  • Proceedings before Marten: 8/26 (18 Oct 1637)
  • Proceedings before Maltravers: 8/28 (31 Oct 1637)
  • Proceedings before Maltravers: 8/29 (18 Nov 1637)
  • Proceedings before Maltravers: 8/30 (28 Nov 1637)
  • Proceedings before Arundel: 1/5, fos. 23-35 (3 Feb 1638)
  • Proceedings before Maltravers: 68C, fos. 60r-61r (c. 1636-8)

People mentioned in the case

• Borough, John, knight (also Burroughs)
• Conquest, Richard, knight
• Dering, Edward, baronet
• Duck, Arthur, lawyer
• Eden, Thomas, lawyer
• Finch, Anne
• Finch, Moyle, knight and baronet
• Greenstead, John
• Howard, Henry, baron Maltravers
• Howard, Thomas, earl of Arundel and Surrey
• Le Neve, William, knight
• Marten, Henry, knight (also Martin, Morton)
• Philipot, John, herald (also Phillpott)
• St George, Henry, knight
• Saunder, Isabella (also Saunders)
• Saunder, Nicholas, knight (also Saunders)
• Stuart, James I, king
• Tudor, Elizabeth I, queen
• Twysden, Anne
• Twysden, Francis
• Twysden, Roger, baronet
• Twysden, William, baronet
• Yelverton, Christopher, knight

Places mentioned in the case

• Kent
  • Eastwell Park
  • East Peckham [Peckham Magna]
  • Roydon Hall
• Middlesex
  • Westminster
• Surrey
  • Ewell
  • Greenwich

Topics of the case

• civil war
• Court of Chancery
• Court of Wards
• funeral
• Herald
• King of Arms
• other courts
• royalist
• sequestration