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Corrected Date of Publication (TCP Date of Publication)
Errors appearing in the proceeding in the House of Peers in Parliament in the first and second years of the reign of King Charles the First, in the case betwixt Robert De Vere Earl of Oxford, and the Lord Willoughby of Eresby, concerning the office of Great Chamberlain of England.
Wing E3248; ESTC R176769
ERRORS Appearing in the PROCEEDINGS IN THE HOUSE Of PEERS IN PARLIAMENT In the First and Second Years of the Reign of King CHARLES the First In the Case betwixt Robert De Vere Earl of Oxford and the Lord Willoughby of Eresby Concerning the Office of Great Chamberlain of England LONDON Printed in the Year 1661. Errors appearing in the Proceedings in the House of PEERES in Parliament in the First and Second yeares of the Raign of King Charles the First in the Case betwixt Robert de Vere Earl of Oxford and the Lord Willoughby of Eresby concerning the Office of Great Chamberlain of England THe Intention of the KINGS Reference directing the Lords in Parliament to take the Judges Assistance and advice in matter of Law was not performed when they took the opinion but of Five Judges which were not half of the Judges of England Did not certifie the King according to his Reference âhat they found but only the majority of the Judges opiââons Did give their advice when they were only to certifie âhat they found and their opinions there being a grand difâââence betwixt an opinion of the Lords in Parliament declaring in which of the Competitors the Right resided and an advice of the Lords in Parliament how and in what manner his late Majestie should declare and settle the Earldome upon One and the Office upon the Other In the Report of the Judges of the 20th of March 1625 to the Peers in Parliament Recorded in the Journals of the House of Peeres there is a manifest Error as concerning the said Office of Great Chamberlain the Baronies of Bulbeck Sandford and Badlesmere for that they do therein mention that the Baronies of Bulbeck Sandford and Badlesmere descended to the general Heirs Of John the Fourth Earl of Oxford who had Issue John the Fifth Earl of Oxford and three Daughters one of them married to the Lord Latimer another to Wingfield and another to Knightley Which John the Fifth Earl of Oxford dying without Issue those Baronies descended upon his said Daughters and Heirs And being not divideable are and do remain in the Crown Whereupon the House agreed upon the Question That the Baronies of Bulbeck Sandford and Badlesmere are in the Kings disposition Whereas in truth It was John the Fourth Earl of Oxford of that Christian name who dyed in 18. H. 8. without Issue And the three Daughters mentioned were neither the Daughters of the said John the Fourth nor of the said John the Fifth But of Sir George Vere Knight third Son of John the Second Earl of Oxford who dyed in primo E. 4. And the said John the Fifth Earl of Oxford was the Father of John the Sixth Earl of Oxford of that Christian name from whom descended Edward Earl of Oxford and Henry Earl of Oxford his Son deceased without Issue and Awbrey de Vere his Second Son great Grandfather of Awbrey de Vere now Earl of Oxford And by the Judges not stating the whole Fact and the Lords in Parliament not certifying as the King required them what they found there happened also other manifest Errors in that Certificate and opinion viz. a making a Descent and Title to the said Lord Willoughby of the Office of Great Chamberlain in Fee which could not be if John the Fifth Earl of Oxford dyed without Issue leaving his three Daughters and Heirs who were as aforesaid severally marryed to the Lord Latimer and to Wingfield and Knightley For that there would then have been a descent to those three Daughters and Heirs of the Office of Great Chamberlain aswell as they supposed of the Baronies of Bulbeck Sandford and Badlesmere Whether they were the Sisters and Heirs as in truth they were of John the Fourth Earl of Oxford who dyed without Issue or the Daughters and Heirs as in truth they were not of John the Fifth Earl of Oxford who dyed not without Issue but hath Issue and Heir Male of his body Awbrey Earl of Oxford now living And if the Office be not dividable or as they concluded the Baronies to be must by their own reasons and opinion be in the King Or if John the Sixth Earl of Oxford Father of Mary the Lord Willoughbies Ancestress was not seized of the said Office in 4. Eliz. when he made the Deed of Uses or Intail Or if he were and did forfeit it by alienating that Office without the Kings Licence or pardon of Alienation which appears by the Arguments of the Lord Chief Justice Crew and Justice Dodridge to be a more then an ordinary point stirred in that case And if Tradition say truth was the only cause of Baron Trevors casting Vote Error and Opinion the Office of Great Chamberlain yet remaineth in the King And if the then Judges had rightly certified the Lords in Parliament in that particular and concerning that point It would have appeared to the Lords in Parliament or to His late Majestie if their Certificate opinion had not been mis-guided that the right of the said Office of Great Chamberlain was in the Earâs of Oxford according to the antient and constant usage and course of Baronies Offices and Places of Honor in England which hath as may be proved by divers precedents in other Families alwaies taken care that such Honors and Dignities should remain to the Heirs Males on whom the Lands of the Baronies though not the Baronies and Honors themselvs were entailed and passed by the Heirs Female though nearer in blood to the Ancestor which last enjoyed them and settled them upon the Males in a collateral line where the Males of the right line dyed without Issue Male being most agreeable tot he intention and meaning of the Grant of the said Office to Albericke de Vere Ancestor of the now Earl of Oxford by King H. 1. the said Office being not to be executed by a Woman to wear a Staff or attend the King in his Bedchamber Or if the Office of Great Chamberlain of England had in strictness of Law reverted to the Crown and come to the King he might where it was not dividable amongst Heirs Females have settled it as was done in this particular Office of Great Chamberlain upon an Earl of Oxford in 18. H. 8. And when the five Judges nemine dissentiente had the 20th day of March 1625. made their Report and certified their opinion to the House of Peers in Parliament that the Earldom of Oxford by virtue of an Intail by Act of Parliament in 16. R. 2. was descended and of right ought to come to the said Robert Earl of Oxford and the Heirs Male of his body The Lords in Parliament did the 22d. day of that March agree upon the question That the Earldom of Oxford was descended and ought of right to come to the Heir Male nemine dissentiente And agreeing upon the question concerning the said Office of Great Chamberlain that the Judges should consider and report to the House whether the Earl of Oxford who made the
Intail of the said Office were at that time seized of the said Office And admitting he were seized of the said Office Then whether such an Office may be conveyed by way of limitting uses The former of which Questions viz Whether John Earl of Oxford was seized of the said Office when he made the said Intail doth not at all appear in the Report of the Judges to have been considered as the House directed The Chief Justice Crew not at all mentioning it in his Argument And Justice Dodridge only leaving it as a matter of Fact not proved admitted it only by way of Supposition which by evidence since come to the Earl of Oxfords hands can be fully proved And the 20th of that March 1625. The Petition of William Earl of Derby and Elizabeth his Wife eldest Daughter of Edward Earl of Oxford to the King Praying His Majesty to give Order that the Lords in Parliament might upon the hearing of the Judges Opinions forbear to give their Voices for the Lord Willoughby in any thing which ought to descend upon the Heir general The Petitioners conceiving that their Title in right of the said Lady Elizabeth eldest Daughter of the said Edward Earl of Oxford Father of the said Henry Earl of Oxford ought to be preferred Being read in the House of Peers and the Lord Keeper signifying that His Majesty had referred that Petition unto their Lordships in such manner as He did reser the other Petitions Before the Judges Report of their Opinions concerning the Competitors the Earl of Oxford and the said Lord Willoughby and their several Claims to the Earldom of Oxford and Office of Great Chamberlain of England And giving in their several Opinions and the Reasons of their differences in opinion touching the said Office of Great Chamberlain of England upon Tuesday the 28th of March 1626. The House notwithstanding the Petition of the Earl of Derby and his Wife to be first heard before they should give their Votes concerning the Title of the said Lord Willoughby to the Office of Lord Great Chamberlain And their Order made the said 28th day of March 1626. That they would hear the Councel of the said Earl of Derby and the Lady Elizabeth his Wife and the Lord Willoughby at the Bar the next Thursday morning And then if the time would permit give their Resolutions touching the said Office Did notwithstanding that the Councel of the said Earl of Derby and his Lady and the Lord Willoughby were not as appeareth by the Journals of the House of Peers in Parliament heard the said Thursday being the 30th of March nor upon the next day being Fryday the 31. of that Moneth of March but respited until the first of April 1626. which was the next day after put the said 31. day of March 1626. to the Question Resolve and Agree that the said Office of Lord great Chamberlain was come and descended to the Heir General of the last Earl of Oxford not determining or mentioning whether the said Lord Willoughby or the Lady Elizabeth the Wife of the said Earl of Derby or the Lord Windsor not Petitioning were the Heirs general or which of them were of the half or the whole Blood to the last Earl of Oxford or for what reason or upon what grounds the Heirs of the Lord Latimer Wingfield and Knightley or the Lord Windsor and the Earl of Derby and his Wife were excluded which in that Case would have been necessary And the Duke of Buckingham thereupon signifying to the House that the King required that His Councel might be heard touching his Title and Claim to the Gift of the said Office It appeareth that that Vote and Resolve touching the descending of the said Office to the Heir General of the last Earl of Oxford was made before the Councel of the said Lady Elizabeth and the Earl of Derby were at all heard and before it could be discerned or determined by the House which of the Competitors viz. The said Lord Willoughby or the Earl of Derby's Lady were the Heirs General And before the Kings Title was heard or inquired into And upon the hearing afterwards of the Councel of the Competitors viz. The said Earl of Derby and his Wife the Lord Willoughby it doth not appear by the Journals of the House that the Judges were at all consulted or any Report made by them touching the Earl of Derbey's Petition Though in the Certificate of the House to His Majesty there is mention made that they had consulted the Judges which is to be understood in relation only to the Case betwixt the Earl of Oxford and the Lord Willoughby wherein they were consulted but not of the Earl of Derby wherein they were not consulted And the house did certifie the Iudges opinions That the Office of great Chamberlaine did belong to the said Lord Willoughby When in their Vote and Resolves of the 31 th of March 1626. they did only agree that it belonged to the Heir General not naming or mentioning which of the Competitors viz. the said Earl of Derby and the Lady Elizabeth his Wife or the Lord Willoughby was that Heir General And Justice Dodridge one of the three Judges who is supposed to have made the Majority of Voices That the Office of Great Chamberlain of England did belong to the said Lord Willoughby as Heir General of Henry the last Earl of Oxford deceased did not resolve or declare that the said Office of Great Chamberlain did as Justice Yelverton and Baron Trevor had declared it appertain to the said Lord Willoughby as Heir General to Henry the last Earl of Oxon but to the Heir General of Henry the last Earl of Oxford without naming the said Lord Willoughby or determining who was that Heir General So as it may well be concluded that there was but two Judges that declared the Lord Willoughby to be that Heir General And then not three Judges of the five nor the majority of those five Judges did as the Certificate of the House bearing date the fifth day of that April alleageth resolve that the said Office of Lord great Chamberlain did belong to the said Lord Willoughby For that if the Lord Windsors Lord Willoughbyes and the Countess of Derbeys Ancestors were of the half blood to Edward and Henry Earls of Oxford the said Robert Earl of Oxford was of the whole blood and collaterall line the linea recta being expired to John Earl of Oxford who in 4. Eliz. entailed upon him in Remainder the Office of Lord Great Chamberlaine and all the Lands belonging to the Earldom of Oxford some of which viz. The Castle of Hedingham being the Caput Baroniae and parcel of the Earldome were held in Grand Serjeanty by the Service of being great Chamberlaine And the Lord Willoughby could not as the house certified the King and as some of the Judges resolved be heire generall to Henry Earl of Oxford to whom his mother was but of the halfe blood but if heir generall to any must have been heir generall to the said Edward Earl of Oxford And upon the Resolves of the Peers in Parliament before the Kings Counsel were heard in it that the Office did descend to the Heir General of the last Earl of Oxford and their Resolves after hearing of the Kings Counsel that there should be a Salvo Jure Regis if the matter of Fact had been as it ought to have been truly stated to the King His Majesty might as in such Cases was usual have advised with his Councel learned in the Law how and in what manner to have given his Judgement therein Which advice with the Kings Councel learned in the Law appeareth not to have been taken Nor any Report made to the House of Peers of the Kings acceptance or liking of their Opinion and Certificate as it was of Queen Elizabeth in the 29th year of her Raign in the Case betwixt the Lord La Ware and the Lord Berkly for precedency The delivery of the Staff shortly after to the Lord Willoughby and his taking his pâace in the House of Peers according to the Statute of H. 8. makes not a legal Judgement either of the King or the House of Peers in Parliament For that doth not signifie any more then an Office during the Kings pleasure and a Temporary estate therein as when Sir Thomas Erpingham and others heretofore had and enjoyed that Office whilst it was wrongfully detained from the Earls of Oxford And if the King had given any Judgement in this Case it would have been in the form or manner usual of Judgements given and entred in Parliament As in that memorable Case betwixt John Earl of Arundel and John Duke of Norff. touching the Earldome of Arundel which the Duke of Norff. claimed as Heir General and the Earl of Arundel by reason of the possession of the Castle and Lordship of Arundel to which the Earldome of Arundel was united and appurtenant both the Competitors having Petitioned King H. 6. in Parliament in An. 11. of his Raign the Judgement was so emnly in this form and manner viz. Audita intellecta Petitione habitaque super materiis in eadem contentis aliis praemissis cum Justiciariis aliis Legis peritis ac caeteris de Consilio Domini Regis in dicto Parliamento existentibus deliberatione communicatione avisamento auditis etiam hinc inde nonnullis profundis et maturis rationibus allegationibus et motivis de Avisamento Assensu Praelatorum Ducum Comitum Baronum in instanti Parliamento existentium Dominus Rex hiis aliis ductus considerationibus motivis Decrevit Instituit Declaravit c. Salvo Jure ipsius Ducis Norfolciae vel alterius cujuslibet in hac parte c. And the like or in the form of a Judgment entred upon the Parliament Roll where the Questions for precedency betwixt Humfrey Duke of Buckingham and Henry Duke of Warwick in 23. H. 6. And in 26. H. 6. for precedency betwixt Thomas Earl of Devonshire and William Earl of Arundell