Page:The Complete Peerage Ed 2 Vol 4.djvu/702

 68o APPENDIX H patent recites that, as Laurence succeeded Aymer de Valence in part of the inheritance and was descended from the elder sister, et sic peritorum assertione, quos super hoc consuliinus, sibi debetur prerogativam nominis et honoris, justum ^ debitum reputamus ut idem Laurentius, ex senior! sorori causam habens, assumat et habeat nomen Comitis Pembrock', iifc.C) The emphasis which is laid on the fact that Laurence ought to enjoy the earldom because he is descended from the elder sister strikes at the root of the principle of abeyance, the essence of which is equality of title in the coheirs. Edward III, being quite ignorant of the law which has only been evolved during the last three hundred years, followed the very natural course of applying the ancient law of Henry III. Within the last few years a case came before the Committee for Privileges in which there seemed a possibility of a legal decision being given on the application of the doctrine of abeyance to earldoms. In 1909 the Duke of Atholl, as senior coheir, petitioned for the determination of the abeyance which was alleged to exist in the Earldom of Oxford, which was created in fee in 1142 and confirmed in ii56.('') This earldom descended in the male line to Robert de Vere, 9th Earl, who was attainted and deprived of all his honours in 11 Ric. II, and died s.p. in 1392. In that year Aubrey de Vere, uncle and heir of the said Robert, was created, " with the assent of Parliament," Earl of Oxford with remainder to ses heirs masks a toutz jours, which earldom became extinct in 1703. The petitioner's case was that this was a new creation, and that the ancient earldom fell into abeyance on the death, s.p., of John de Vere in 1526. The Crown contended that in 16 Ric. II the ancient earldom was restored with a new limitation and that consequently no abeyance had occurred. As the terms of inheritance of a dignity can only be altered by Act of Parliament, everything turned on the interpretation of the words de assensu Parliamenti nostri in the charter of 1392. It was argued also for the Crown that the wording of the charter differed from the form used for creations of earldoms at that date. The Attorney General pointed out that the words of creation in the case of the earldoms of Suffolk (1385), Huntingdon (1387), Rutland (1390), Somerset (1397), Wilts (1397), and Gloucester (1397) were frefedmus et creamus, whereas in the Oxford charter the words used were restituimus, dedimus, et concessimus.if) The view of the Crown was upheld by the Committee, who reported on 5 Dec. 19 12 that the petitioner had not made out his claim to the Earl- dom of Oxford. The problem of abeyance was therefore not discussed.C*) (*) Lordi" Reports^ Third Report, p. 180. {'') See observations on this case post, sub Peerage Cases. (') Transcript of shorthand notes of Minutes of Proceedings, 2 Dec. 1912, p. 230. (^) The Cromartie case, in which an earldom created in 1861, with an extra- ordinary shifting remainder, was allowed to the elder of two coheirs in 1895, is not dealt with here because it has no bearing on the doctrine of abeyance in relation to ancient earldoms. See sub Cromartie, vol. iii.