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 [...]hat they found, but only the majority of the Judges opi­ [...]ons.

Did give their advice, when they were only to certifie [...]hat they found, and their opinions (there being a grand dif­ [...]ence betwixt an opinion of the Lords in Parliament) de­claring [Page 2]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 [Page 3]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 Ear [...]s of Oxford according to the antient [Page 4]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 22 ^d. 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 [Page 6] 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 [Page 9]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 [Page 8] 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 p [...]ace 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 [Page 9]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 habita (que) 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,