were High Treason or no And in this the Justices were divided my self and divers others holding That this Act was not Treason but the chief Justice and divers others were against us 2. If it be High Treason then whether he may be indicted generally for the Counterfeiting of the Great Seal or else the special Fact must be expressed By reason of diversity of Opinions Râ—spectuatur vid. Fleta lib. 1. cap. 22. Item crimen falsi dicitur cum quis illicitus cui non fuerit ad haec data authoritas de sigillo Regis rapto vel invento et brevia Carteria vide le Attainder de Elizabeth Barton Edw. Bocking by Parliament c. 25. H. 8. c. 12. Hill 24 Eliz. In the Exchequer A Merchant brought eighty weigh of Bay-Salt by Sea to a Haven in England and out of the Ship sold 20 weighs and discharged them to another Ship wherein they were transported being never actually put on shore and for the residue viz. 60 weigh he agreed for the Custome and put them upon Land and now the dâ—nbt was 1 Eliz. cap. 12. for the words of the Statute concerning Exportation sent from the Wharfe Key or other place on the Land and concerning Importation taken up discharge and lay on Land If in this Case the said 20 weighs which alwayes were waterborn and never touched the Land ought to pay Custome as well inwards as outwards And it was Resolved That in both the Cases Custome ought to be paid and forasmuch as no Custome was paid It was Resolved That the Goods were forfeited Note No Act of Parliament can bind the King from any Prerogative which is sole and inseperable to his person but that he may dispence with it by a non obstante as his Soveraign Power of Commandines his Subjects to serve him for the publick Weal See 23 H. 6. cap. 8. 2 H. 7. 66. 13 R. 2. Parl. 2. cap. 1. See also 4 H. 4. cap. 31. Coke l. 2. fol. 69. But in things which are not incident solely and inseparably to the person of the King but belongs to every Subject and may be severed there an Act of Parliament may absolutely bind the King As if an Act of Parliament do disable any Subjects of the King to take any Land of his Grant or any of his Subjects as Bishops as it is done by the Statute 1 Jac. cap. 3. to Grant to the King this is good for to grant or take Lands or Tenements is common to every Subject Hill 4. Jac. Regis Care of High Commissioners If they have Power to Imprison Mich. 4 Jac. post prand There was moved a Question amongst the Judges and Sergeants at Sergeants Inn If the High Commissioners in Ecclesiastical Causes may by force of their Commission imprison any man or not First Resolved by all That before the Statute of the first of Eliz. the King might have granted a Commission to hear and determine Ecclesiastical Causes yet the Commissioners ought to proceed according to the Ecclesiastical Law allowed within the Realm Vide Caudrye's Case 5 Report Then all the Question rests upon the Act 1 Eliz. which hath three Branches 1. Such Commissioners have power to exercise Jurisdiction Spiritual and Ecclesiastical 2. By force of Letters-Patents they have power to visit reform c. all Heresies c. which by any manner of Spiritual or Ecclesiastical Power c. can or lawfully may be Reformed c. So that these Branches limit the Jurisdiction 3. That after such Commission delivered to them shall have power by vertue of this Act and the said Letters-Patents to exercise c. all the Premisses c. according to the Tenor c. This Branch gives them Power to execute their Commission But it was Objected That this Branch gave no power to the Queen to alter the Proceedings of the Ecclesiastical Law or to prescribe what manner of proceedings or punishment concerning the Lands Goods or Bodies of the Subject And this appears by the Title of the Act Restoring the intent being to make Restitution not any Innovation Vide a notable Case adjudged in this Point Hill 42. El. â—o 389. as to Imprisonment Smith's Case for at the last Consultation was granted And at last by the better Opinion as to things committed to them by Commission they may put Fine and Imprisonment By the 3 H. 7. cap. 14. 't is Ordained where Women as well Maids as Widows and Wives having substance c. for the lucre of such substance be taken by Misdoers contrary to their Wills and after marryed c. or defiled That what person henceforth so taketh c. against her will c. such taking c. to be Felony And the Misdâ—ers c. to be reputed as Felons Upon this great question was moved 4 5 Phil. Mar. in the Star-Chamber If the Eloym ent against her without Mariage or Carnal Copulation be Felony or no And the Opinion of Brook and some other of the Justices was that It was Felony But Sanders Lord Chief Justice was against it and afterwards as Peryam chief Baron did Report It was Resolved by all the Justices That such Eloynment onely is not Felony by the intent of the Statute without Marriage or Carnal Copulation Note By the express purview of the Act the Accessary both before and after is made Principal Pasch 4 Jac. Regis By the Commandement of the King it was referred to Popham Chief Baron and my self what Right the Queen which now is hath and in what Cases to a Right claim'd by her called Aurum Reginae that is to say Pro centum marcis argenti una marca Auri solvendum per illum qui se sponte obligat And upon consideration had thereof and view of Records and Presidents viz. Librum Rubrum in Scaccario fol. 56. de Auro Reginae where it is said that this is to be taken De iis qui sponte se obligant Regi c. which is the Foundation of this Claim And of a Record in the Tower 52 H. 3. And a Record in the Exchequer 4 Ed. 1. And a Record in the Exchequer Hill 12 Ed. 3. And in the Tower in the same year in Rot. Claus And of Acts of Parliament 15 Ed. 3. cap. 6. and 31 Ed. 3. cap. 13. and 13 R. 2. in Turri And divers other Presidents and Process out of the Exchequer in the time of R. 2. H. 4. and other Kings till H. 7. It was Resolved that the Queen hath Right to it but with these Limitations 1. It ought to be sponte by the Subject sine coactione And for this all Fines upon Judgments or by Offer or Fine for Alienation or any other Case where the Subject doth it not sponte sine aliqui coactione That the King of Right ought to have it there the Queen shall have nothing 2. It ought to be sponte sine consideration alicujus reventionis seu interesse That the King hath in esse in jure Coronae As upon Sale
in the Star-Chamber upon the Proclamation against Building and that I had given Sentence against the said Proclamation To which I answered That Presidents were to be seen and Considerations to be had upon Conference with my Brethren for Melius est recurrere quam male currere and Indictments conclude contra leges statuta never contra regiam Proclamationem At last my motion was allowed and the Lords appointed the two Chief Justices Chief Baron and Baron Altham to consider of it Note the King by his Proclamation or otherwise cannot change any part of the Common-Law Statute-Law or Customs of the Realm 11 H. 4. 37. Fortescue in laudibus legum Ang. cap. 9. 18 Ed. 4. 35 36 c. 31 H. 8. cap. 8. ubi non est lex ubi non est transgressio ergo That which cannot be punished without Proclamation cannot be punished with it Vide le Stat. 31 H. 8. cap. 8. But if a man be indicted upon a Contempt against a Proclamation he shall be Fined anâ— imprisoned Vide Fortescue cap. 9. 18 34 36 37 c. In all Cases the King out of his Providence and to prevent dangers may prohibite them before which will aggravate the Offence if it be afterwards committed And as it is a Grand Prerogative of the King to make Proclamations 22 H. 8. Procl B. yet we find Presidents of Proclamations utterly against Law and Reason and therefore void For Quae contra rationem Juris introducta sunt non debent trahi in sequentiam An Act made to License Forreiners to Merchandize in London H. 4. by Proclamation prohibited the Execution of it usque ad prox Parliament which was against Law Vide doâ—s claus 8 H. 4. Proc. in London but 9 H. 4. An Act was made That all Irish should depart the Realm before the Feast of the Nativity this only was in terrorem being utterly against Law Hollingshead 772. Anno Dom. 1546. 37 H. 8. The Whorâ—-houses vulgo Stews were suppressed by Proclamation and found of Trumpet In the same Term Râ—solved by the two Chief Justices Chief Baron and Baron Altham upon Conference between the Lords of the Privy-Council and them That the King by his Proclamation cannot create any Offence which was not an Offence before for then he may alter the Law And the Law of England is divided into three parts 1. Common-Law 2. Statute-Law 3. Custom But the Kings Proclamation is none of them Resolved also That he hath no Prerogative but what the Law of the Land allows him but he mry by Proclamation admonish his Subjects that they keep the Laws upon pain to be inflicted by Law c. Lastly If the Offence be not punishable in the Star-Chamber Prohibition by Proclamation cannot make it punishable there And after this Resolution no Proclamation imposing Fine and Imprisonment was made c. Mich. 8 Jac. Regis Prohibitions It was Resolved in this Term That if a man be excommunicated by the Ordinary where he ought not as after a general Pardon c. and the Defendant being Negligent doth not sue a Prohibition but remains excommunicate by 40 dayes and upon Certificate in Canc is taken by the Kings Writ de excommunicato capiendo no Prohibition lies in this Case because he is taken by the Kings Writ Then it was moved what remedy the Party hath who is wrongfully excommunicate to which it was answered he hath three Remedies 1. He may have a Writ out of Chancery to absolve him 14 H. 4. fol. 14. and with this agrees 7 Ed. 4. 14. 2. When he is excommunicate against the Law of this Realm so that he cannot have a Writ de Cauâ—fone admittenda then he ought Parere mandatis Ecclesiae in sorma Juris i. e. Ecclesiastici where in truth it 's Excommunicatio contra jus forman Juris i. e. Communis Juris But if he shew his Cause to the Bishop and Request him to assoyl him either because he was excommunicate after the Offence pardoned or that the Cause did not appear in Ecclesiastical Cognizance and he refuse he may have an Action Sur le Case against the Ordinary and with this agrees Dr. St. lib. 2. cap. 32. fol. 119. 3. If the Party be excommunicate for nonâ—e of the Causes mentioned in the Act 5 Eliz. cap. 23. then he may plead this in the Kings Bench and so avoid the Penalties in the Act. Note It was Resolved by the Court c. That where one is cited before the Dean of the Articles in cause of defamation for calling the Plaintiff Where out of the Diocess of London against the Statute of 23 H. 8. And the Plaintiff hath Sentence and the Defendant is excommunicated and so continues 80 dayes And upon Certificate into the Chancery a Writ of Excommunicato capiendo is granted and the Defendant taken and imprisoned thereby that he shall not have a Prohibition upon the Statute 23 H. 8. for no Writ in the Register extends to it but there is a Writ there called de cautione admittenda when the Defendant is taken by the Kings Writ de excommunicato capiendo de parendo mandatis Ecclesiae and to assoyl and deliver the Defendant But in the Case at Bar it does not appear to us judicially without Information that the Citation is against the forme of the Statute And the Information comes too late in this Case after the Defendant hath persisted so long in his Contumacy and is taken by the Kings Writ and imprisoned Admiralty It was Resolved per totam Curiam That if One be sued in the Admiralty-Court for a thing alledged to be done upon the High-Sea within the Admirals Jurisdiction and the Defendant plead and confess the thing done and after Sentence the Court will be advised to Grant a Prohibition upon surmise That it was done infra corpus comitatus against their own confession unless it can be made appear to the Court by matter in Writing or other good matter that this was done upon the Land for otherwise every one will stay till after Sentence and then for vexation only sue out a Prohibition And admonition was given to them that sue out Prohibitions That they should not keep them long in their Hands or untill they perceive they cannot prevail in the Ecclesiastical Court then to cast in their Prohibition for if they abuse that liberty to the vexation of the Party we will take such order as in case of a Writ of Priviledge if the Defendant keep it till the Jurors are ready c. it shall not be allowed Hill 8 Jacob. Regis In this Term in Doctor Trevor's Case who was Chancellor of a Bishop in Wales It was Resolved That the Office of a Chancellor and Register c. in Ecclesiastical Courts are within the Statute 5 Ed. 6. cap. 16. which Act being made for avoiding corruption of Officers c. and advancement of worthy Persons shall be expounded most beneficially to suppress Corruption And because the Law allows Ecclesiastical Courts to
THE RESOLUTIONS Of the JVDGES upon the several STATUTES Of Bankrupts As also The like Resolutions Upon 13 Eliz. and 27 Eliz Touching Fraudulent CONVEYANCES By T. B. Esq LONDON Printed for T. Twyford and are to be sold by Hen. Twyford and other Booksellers 1670. Pasch 4. Jacobi Regis Ford and Sheldon's Case upon Information in the Exchequer for the King THomas Ford a known Recusant bâ—fore the 23 of Eliz. for money lent to Sheldon some before and some after the said 23 Eliz. took Recognizance in the Names of others and also a Rent-charge to them in Fee with a Clause of Redemption by Deed the Condition of the Recognizance being for performance of the Covenanss in the Deeds and afterward was made the Statute of the 28 Eliz. which was That as often as any Failer was made in the payment of 20 l. a Month that so often the Queen by Process out of the Exchequer might take and enjoy all the Goods and two Parts c. And after the said Act Ford lent the several Sums of Money and took the Securities as aforesaid amounting in all to 21000 l. which being to Ford's use were all forfeited Afterwards 41 Eliz. was Convict of Recusancy and did not pay the 20 l. a Month If the King should have the Bâ—nefit of these Recognizances and Securities was the Qâ—estion 1. Upon Debate it was objected by Ford's Councel That the Recognizances had not been Forfeited though they had been made in Ford's Name the Statute speaking onely of Goods which doth not include Debts As if the King grant all the Goods of J. S. coming to him by Attainder the Patentee shall not have Debts And a Penal Law shall not be extended by Equity Obj. 2. That three Recognizances are not within the Intention of the Act being Savers of the Realty and acknowledged to perform Covenants as to the Rent-charge Ob. 3. No Fraud was in the Case And then no Statute being in this Case the common-Common-Law gives no benefit to the King As if Cestuy que use had been Attaint of Treason the Use being but a Trust could not be forfeited to the King And it not a Use A multo fortiori a meer Trust Ob. 4. What Forfeiture accrues to the King in this Case must be by force of the words Goods in the Statute which cannot be Ford having no Goods but a meer Trust Also one Recognizance was taken in the Names of others before the Stature and therefore cannot be thought to defeat the King of a Forfeiture which was not then in use Resolved 1. By all the Barons and Popham Chief Justice of England and divers other Justices that Personal Actions are as well included within this Word Goods in an Act of Parliament as Goods in Possession But because by Law things in Action cannot be granted over therefore by General Grant without special words can never pass And where the Statute saith Shall take seize and enjoy all the Goods and two parts c. the King may well enjoy a Debt due to a Recusant and by Process out of the Exchequer Levy it and so take and seize refers to Goods and two Parts of Lands in Possession Resolved 2. That it was Originally for the Loan of Money and both the Recognizance and Annuity were to secure the said Money And Recognizances fotfeited are but Chattels Personal Resolved 3. There was Covin apparent for he being a Recusant always as aforesaid and so chargeable to the King his taking the Recognizances in the Name of others shall be Construed with an Intent to prevent the King of his Forfeiture And so shall all Recognizances taken in others Names after the said Act be presumed to be taken As to Ceâ—â—uy que use who neither hath Jus in Re nor Jus ad Rem true it is he cannot Forfeit but an Act done to defraud the King of his lawful Duty the King shall not be barred thereof per obliquum if the Act was made de directo And for this If a man outlawed buy Goods in the Names of others the King shall have them notwithstanding So if an Accountant to the King purchase Lands in others Names yet the King shall sâ—ze those Lands for Money due to him And this appears by Walter Cherton's Case Trin. 24. Ed. 3. Rot. 4. in Scaccario for Reâ— fallere non vult falli autem non potest See another President Trin. 24. Ed. 3. Pot. 11. Resolved 4. Noâ—resert Whether the Duty do accâ—ue to the King by the Common-Law or by the Statute And though one of the Recognizances was taken before the Statute of the 28 of Eliz. yet that was to his use And though Ford was not Convict till the 41 of Eliz. that is not material for he was subject to a Forfeiture before Pasch 4 Jac. In Chancery 27 Junii 29 Eliz. The Case between the Lord St. John of Bletso and the Dean of Gloucester The Lord St. John brought a Quare Impedit in the Common-Pleas against the Defendant for the Church of Penmark in the County of Glamorgan which Suit was staid by Aid prayer and the Record removed into the Chancery The Plaintiff moved for a Procedendo and upon Oyer of Cause before Sir Thomas Bromley Lord Chancellor in the presence of Sir Gilbert Gerrard Master of he Rolls and Shute and Windham Justices and Popham Attorney and Egerton Sollicitor of the Queen the Plaintifâ— shewed a Gift in Tail of the said Advowson made to his Anc stor in 18 R. 2. and a Verdict for the same in 12 H. 8. and a presentation by his Grandfather to the said Church of a Clerk that was admitted instituted inducted and had possession divers years with other matters to prove the Plaintiffs Tâ—tle yet for that the Defendant and those from whom he claimes had time out of mind possessed the said Parsonage as Impropriate And for that it will be a dangerous President to all Owners of Impropriations It was Resolved by the Court of Chancery by the advice of the Justices and Councel Learned by the Queen aforesaid That no Procedendo in loquela be granted Vide Ridley fol. 153 154. the beginning of Appropriations and Annuities to be discharged of Tythes Vide ibid. 155. That the Saxon Kings appropriated eight Churches to the Monastery of Croyland Trin. 37 Eliz. In the Exchequer Chamber Crimes and Smith The Abbot of Sulby held the Parsonage of Iubbenhâ—m in Leicestershire to his proper use which as impropriate came to H. 8. by the dissolution of Monasteries 31 H. 8. who in the 37th year of his Reign granted it in Fee-Farm under which Grant the Plaintiff claimed The Defendant obtained a Presentation of the Queen and to destroy the said Impropriation shewed the Original Instrument of it 22 Ed. 4. with Condition in it That a Vicaridge should be competently endowed which was alledged never to be done But for that the Rectory was reputed and taken to be appropriate and a Vicar presented admitted instituted and inducted as a Vicar
Ecclesiastical Judge that were in danger of Premunire before 1 Eliz. are now in case of Premunire after the said Act the said Acts of Premunire not being repealed by 1 Eliz. 1. 2. And as to first and second Objections it was answered That true it is The Crown of England hath as well Ecclesiastical as Temporal Jurisdiction annex'd to it as appears by the Resolution in Cawdryes Case from Age to Age. And though this was de jure yet where the Pope became so Potent he usurped upon the Kings Ecclesiastical Power in this Realm but this was meer Usurpation And therefore all the Kings of this Realm Totis viribus proinde for establishing of their Temporal Law by which they inherit their Crown and by which c. were alwayes jealous in any part or point it should be incroached upon And if the Ecclesiastical Law did usurp upon the Temporal it was severely punished and the Offender judged an Enemy to the King by the ancient Statutes and every one might have killed him before the Statute of 5 Eliz. And this is the Reason the Crown it self is directed descendable by the Common Law and Treason against the Crown is punished by this Law And therefore usurpation by an Ecclesiasticall Judge upon it is said to be contra Coronam et dignitatem Regis And all Prohibitions since 1 Eliz. do conclude contra Coronam et dignitatem Regiam for as 't was resolved by all the Justices Pasch 4 Jac. Regis est contra Coronam c. when any Ecclesiastical Judge doth usurpe upon the Temporal Law for the cause of the Subject is drawn ad aliud examen when his Cause is not ended by the Common Law whereto by Birth-right he is inheritable 3. As to the Third though the Court by force of High-Commission is the Court of the King yet their proceedings are Ecclesiastical And therefore if they usurpe upon the Temporal Law this is the same offence which was before the Act 10 Eliz. 4. As to the Fourth though it be a new Court yet the antient Statutes extend to it in this word Alibi and in H. 8. times several new Bishopricks were erected yet never any question but the old Acts of Premuri did extend to them But to answer all Objections at once whereas the Act 1 Eliz. repealed the Statute 1 2 P. M. cap. 8. yet there is an express Proviso in the said Act 1 Eliz. That it shall not extend to Repeal any Clause or Matter contained in the 1 et 2 P. M. which in any sort concerneth any matter or cause of Premunire but that all of that stand in force See the said two Acts and also 16 R. 2. Also the Act of 1 Eliz. revives the Act 25 H. 8. cap. 10. which makes a Premunire in a Dean and Chapter c. for not electing certifying or admitting a Bishop elected by all which it appears the said Act of 1 Eliz. never intended to take away the offence of Premunire But note in what Cases a Premunire lyes and in what not 1. In all Causes when the Cause originally belongs to the Cognizance of the Ecclesiastical Court and Suit is prosecuted there as belonging to their Cognizance though in truth if rightly examined it ought to be determined â—t Common Law yet no Premunire lyes there but a Prohibition As if Tythes are severed from the nine parts and are carried away if the Parson sue for the Substraction of these Tythes in the Spiritual Court this is not in the case of Premunire Vide 10 H. 4. 2. agreeing with this Opinion So if a Parson sue for Tythes of surmising that they were Sylvae Caduae under the age of 20 years where in truth they were above yet a Prohibition lyeth and no Premunire 2. But though the Cause originally may appertain to the Cognizance of the Ecclesiastical Judge yet if he sue for it in the nature of a Suit which doth not belong to the Ecclesiastical Court but to the Common Law there a Premunire lyeth As in the former Case If the Parson after severing of Tythes will in any Ecclesiastical Court sue for carrying away his Tythes from the 9 parts which Action pertains to the Common Law In such case both the Actor and Judge incurr the danger of Premunire And so it was adjudged 17 H. 8. as Spillmâ—n Reports it One Turbâ—rvile sued a Premunire against a Parson that convened him into the Ecclesiastical Court and there libell'd against him for taking of Ty hes which were sever from the nine parts and the Parson was condemned to be out of the protection of the King to forfeit all his Lands Goods and Chattels and his Body to perpetual Imprisonment and damages to the Party So of a Mortuary delivered and re-taken if the Parson sue for this as for a Mortuary to him delivered he is in case of Premunire 10 H. 4. 2. So in the case put for tythe of Wood if it appear by the Libell that the Cognizance of the Case doth not belong to Court Christian the Premunire lyes as you may see in the Book of Entries tit Dismes fol. 221. But the tit Prohibition fol. 449. Divisione Dismes Ps 2 3 4 5 6. If the suit be pro Sylva caedua c. and the Suit be framed so as the Cognizance belongs to Court Christian though the truth be otherwise no Premunire but a Prohibition lyes 3. When the cause originally belongs to the Cognizance of the Common Law and not to the Ecclesiastical Court there though they Libel for it according to the course of the Ecclesiastical Law yet the Premunire lyeth because that this draws the cause which is determinable at Common Law ad aliud examen viz. to be decided by the Civil Law and so deprives the Subject of the Common Law his Birth-right and wiâ—h this agrees the Book of Entries tit Premunire fol. 229. b. 430. a. So that if the Original cause be Temporal though that they proceed by Citation Libel c. in Ecclesiastical manner yet this is in danger of Premunire And the reason of this is because he endeavours to draw Cognitionem quae ad Curiam domini Regis pertinet ad aliud examen that is that the Debt the Cognizance whereof belongs to the Court of the King he intends by the Original Suit to draw it to be determined by the Ecclesiastical Court And note In the Indictment of Premunire against Cardinal Woolsâ—y Mich. 21 H. 8. 14. it is said Quod Praedictus Cardinalis intend finaliter antiquissimas leges Angliae penitus subvertere et enervare univer sumque hoc Regnum Angliae et ejusdem Angliae populum legibus imperialibus vuilgo dict legibus Civilibus et â—orum legum Canonibus isperpetuum subjurare c. And this included within these words Ad aliud examen trahere viz. to decide that by the Civil Law which is determinable by the Common Law And upon this was a notable Case in Hill an 25 H. 8. of
die causa c. Et iidem Justiciarii hic visa causa illa ulterius fieri fecerint quod c. Et modo hic ad hunc diem viz. diem Sab. prox Oct. Sanct. Mich. isto eoâ—um termino venit praed Anthonius in propria persona suaâ— sub custod praed Guard ad Barr. hic praed idem Guardianus tunc hic mand Quod ante advent brevis praed vâ—z 9. die Oct. ult praeter praed Anthonii Roper mil. reducit se prison praed perantea Commissus virtute cujusdam â—arranti dat 30 die Junii ult praeter quod sequitur in haec verba viz. These are in his Majâ—sties Name to require and charge you by Vertute of his High-Commission for causes Ecclesiastical under the Great Seal of England to us and others directed that herewith you receive and take into your Custody the Body of Sir Anthony Roper Knight and him safely detain c. signifying unto you That the cause of his Commitment for that there being a certain cause c. betwixt him the said Sir Anthony Roper and John Bullbrooke Vicar of Bently for that he detained wrongfully from him the said Vicar a certain yearly Pension c. Given at Lambeth this thirtieth of June 1607. Et quod haec suit causa captionis et detentionis praed Anthonii in prison praed corpus tamen praed Anthonii modo hic paratus hâ—bet prout â— super quo visis praemissis per Justiciurios hic plenius examinatis videtur iisdem Justiciariis hic quod praed causa Commissionis praed Anthonii prison de Fleet praeâ— in retorn spâ—cificat minus sufficiens in lege existit c. Idco prad Anthonius a prisona prad per-Cur hic dimittitur ac idem Guardianus de hujusmodi Custodia per eand Cur. hic plene exoneretur And this was resolved una voce by Coke chief Justice Walmesly Warberton Daniel and Foster Justices And in the same Term in I am's Case A Parson in Noâ—folk that sued one of his Parishioners before the High-Commissioners for Scandal in saying only in the Church on a Sabbath day That he was a wicked man and an arrant Knave Prohibition lyes for this That it was not so enormous as the Staâ—â—te intended Hill 5 Jac. Regis Note It was moved to the Justices this Term upon consideration of the Acts of 34 H. 8. and 18 Eliz. If the Justices in Wales may be Constituted by Commission and it was conceived they could not but that it ought to be by Patent as hath been ever used since 34 H. 8. Then it was moved If the King by force of a Clause there in might do it which Clause is That the King 's most Royal Majesty shall and may at all times hereafter change adde alter minish and reform all manner c. And it seemed to divers of the Justices that this Power given to the King determin'd by his Death for divers Causes 1. Because it wants these Words His Successors and to draw it in Succession by Construction would be against the Intention of the Maker of the Act For they gave this high Power of Alteration c. of Laws to the King as to his most Excellent Wisdom shall be thought most meet which words want His Successors For they well knew his Wisdom did not go in Succession so the Power went not in Succession And for this that Eorum progressus ostendent multa quae ab initio provideri non possunt And what ensues upon this concerning this uniting of Wales and England none could divine But it was never the Intention of the said Act to give Power to the King and his Successors for ever to alter c. 2. Power of Alteration of Laws c. is a Point of Confidence concerning the Administration of Justice which the Act by omitting of his Successors intended to unite this Confidence to the Person of H. 8. and not to extend it without Limitation of time to his Successors 1 Ed. 5. 1. 1 H. 7. 1. 14 Ed. 4. 44. All Commissions concerning Administration of Justice determine by the King's Death Not so if he make a Lease durante bene placito or present one to a Church these are not void by his Death untill revoked by his Successor And upon Certificate of the Justices Opinion That the Justices of Wales cannot be Constituted by Commission Baron Snig had a Patent for the Circuit of Wales as others before him had Trin. 6 Jac. Regis This Term it was Resolved per totam Curiam in Communi Banco viz. Coke Chief Justice Walmesly Warberton Daniel and Foster in the Case of Allan Ball That the High-Commissions cannot be force of the Act 1 Eliz. cap. 1. send a Pursivant to Arrest any Person subjâ—ct to their Jurisdiction to answer to any matter before them But they ought to proceed according to Ecclesiasticall Law by Citation And in the Circuit of Northampton when the Lord Anderson and Glanvile were Justices of Assize a Pursivant was sent by the Commissioners to Arrest the Body of a Man to appear before them and in resistance of the Arrest and striving among them the Pursivant was killed And if this was Murther or not was doubted and it was Resolved that the Arrest was tortious and by consequence that this was not Murther though the killing of an Officer of Justice whose Authority is lawful in Execution of his Office is Murther But they may send Citation by a Puisivant and upon default proceed to Excommunication and then to have a Capias Excommunicatum which Writ de excommunicato capiendo is preserved and returnable by the Statute 5 Eliz. See Magna Charta and all the antient Statutes Vid. Rast Title Accusation Marmaduke Langdale's Case In the Case of Marmaduke Langdale of Leventhorp in the County of York by Joan his Wife being sued for maintenance before the Bishop of Canterbury and others High-Commissioners It was Resolved per totam Curiam praeter Walmesly that a Prohibition before granted was well maintainable because it was not any Enormity nor Offence within the Statute but a neglect of his duty and a Breach of his Vow of maintenance And the Rule of the Court was That the Plaintiff shall count against the High-Commissioners and upon Demurrer joyned the Case to be argued and adjudged and the Party grieved to have a Writ of Errour si sibi viderit expedire c. Upon Complaint made to the King and Councel by the Lord President of Wales and the Lord President of York against the Judges of the Realm and the King's Pleasure signified to them Upon Consideration had of the parts of the Complaint they Resolved upon these Answers And because of the Lord President of York first opened the Cause of his Grief more amply they first answered those Objections made on the behalf of that Councel And first as to the Institution of that Court. 1. After the Suppression of all Religious Houses Anno 27. H. 8. in
in the Court for such cause And the King would know their Opinions The Judges took time till this Term and then Fleming Chief Justice Tanfield Chief Baron Saig Altham Crook Bromley and Dodderidge Yelverton and Williams Justices being dead since last Term did deliver their Opinions to the Lord Chancellor That the Presidents of each Court are sufficient Warrant for their Proceedings in the same Court and for a long time and in many Successions of Reverend Judges Prohibitions upon Information without any other Plea pending have been granted Issues tryed Verdicts and Judgments given upon Demurrer All which being in force they unanimously agreed to give no Opinion against the Jurisdiction of the Common-Bench in this Case See my Treatise of the Jurisdiction of the Common-Bench in this Point Hill 10 Jac. Regis Parliament in Ireland The Lords of the Councel did write to the two Chief Justices and Chief Baron to look into Poynings Act made 10 H. 7. in Ireland and to consider thereof and certifie what shall be fit to be held concerning the same their Letter bore date Ultimo Janii 1612. Upon which in this Term the said Chief Justices Chief Baron Attorney and Sollicitor General were assembled two days at Sergeants Inne And they considered not onely of the said Act 10 H. 7. c. 4. called Poynings Act but also of an Act made in Ireland 3 4 P. M. c. 4. Entituled An Act declaring how Poynings Act shall be expounded and taken for by the said Act 10 H. 7. it is provided That no Parliament be hereafter holden in Ireland but when the Kings Lieutenant and Councell there first certifie the King under the Great Seal of that Land the causes c. and such causes c. affirmed by the King and his Councel to be good and expedient for the Land and his Licence thereupon c. A Parliament to be holden after the former before c. And any Parliament holden contrary c. to be void in Law Upon which Act divers Doubts were conceived 1. And first Whether the said Act 10 H. 7. does extend to the Successors of H. 7. the Act speaking onely of the King generally and not his Successors 2. If the Queen Mary were within the word King and both were held affirmatively for the word King being spoke indefinitely does extend in Law to all his Successors And this is so expounded by the Act 3 and 4 P. and M. viz. That the said Act 10 H. 7. shall extend to the King and Queens Majesty her Heirs and Successors Secondly where Povnings Act sayes the Kings Lieutenant and Councel the said Act 3 and 4 P. and M. explains it to extend to all other Officers the King shall Depute by what Name soever 3. The greatest Doubt was upon these words of Poynings Act And such Causes Considerations and Acts affirmed by the King and his Councel to be good and expedient for the Land c. Whether the King may make any change or alteration of the Causes c. which shall be transmitted hither from the Lieutenant and Councel of Ireland for that it is not affirmative but correction and alteration of them and therefore it was necessary to explain that the Act 3 and 4 P. and M. was in these words Either for the passing of the said Acts and in such form and tenor as they should be sent into England or else for the change or alteration of them or any part of them 4. Another Doubt arose from these words That dâ—ne a Parliament to be had If at the same Parl. other Acts which have been affirmed or altered here may be Enacted there which is explained by the said last Act in these words viz. For passing and agreeing upon such Acts and no others as shall be returned c. 5. A fifth Doubt arose from the same words Whether the Lieutenant and Councel of Ireland after the Parliament begun and pendente Parliamento may upon debate there transmit any other Considerations c. the which said Act 3 and 4 P. and M. is by express words explained they may And it was unanimously Resolved That the Causes Considerations and Acts transmitted hither under the Great Seal of Ireland ought to be kept in the Chancery in England and not be remanded 2. Iâ— they be affirmed they must be transcribed under the Great Seâ—l and so returned into Ireland 3. If the Acts transmitted hither be in any part altered or changed here the Act so altered must forthwith be returned under the Great Seal of England for the Transcript under the Irish Great Seal to remain in Chancery here shall not be amended but the Amendment shall be under the English Great Seal See 10 H. 6. 8. which begins Mich. 18 H. 6. Rot. 46. coram Rege how a Parliament was holden there before Poynings Act. See also another Act made in Ireland the same 10 H. 7. c. 22. vide R. 3. 12. Hibernia habet Parliamenta faciunt leges nostra statuta non ligant â—os quia non mittunt milites ad Parliamentum sed personae coâ—um sunt subjecti Regis sicut inhabitantâ—s Calinae Gascogniae Guienae But question is made of this in some of our Books vid. 20 H. 6. 8. 32 H 6 25. 1 H. 7. 3. 8 H. 7. 10. 8 R. 2. Precess 204. 13 Ed. 2. Tit. Bastard 11 H. 47. 7 Ed. 4. 27. Plow Comment 368. 13 Eliz. Dyer 35. 2 Eliz. Dyer 366. Calvins Case 7th of my Reports 226. 14 Ed. 3. 184. A Prâ—bend in England made Bishop of Dublin in Ireland his Prebendary is voâ—d See the Sâ—atute of Ireland c. That the Acts of Parliament made in England since the 10 H. 7. do not hind them in Ireland but all made in England before the 10 H. 7. by the Act made in Ireland 10 H. 7. c. 22. do bind them in Ireland Note Cambden King at Arms told me that some held if a Baron dyes having Issue divers Daughters the King confer the Dignity to him who marryes any of them as hath been done in divers Cases viz. In the case of the Lord Cromwel who had Issue divers Daughters And the King did confer the Dignity upon Burchier who marryed the youngest Daughter and he was called Cromwel and so in other Cases Note by Linwood it appears by the Canons Ecclesiastick none may exercise Ecclesiastick Jurisdiction unless he be within the Orders of the Church because none may pronounce Excommunication but a Spiritual Person But now by the 37 H. 8. c. 17. a Doctor of Law or Register though a Lay-man may execute Ecclesiastical Jurisdiction No Ecclesiastical may cite a Church-Warden to the Court but so as he may return home the same day Also the Canons limit how many Courts Ex Officio they may have in a year Mich. 11 Jac. Regis Note If a man give to one of his Children a certain sum in his life and after dyes though this is not given as a Child 's full Portion yet it
all his Right Estate c. The Plaintiff surjoyneth and saith that the said sum of 5 l. 6 s. 8 d. c. was not rationabilis finis as the said Thomas Bradley above hath alleadged c. Upon which the Defendant doth demur in Law c. And in this Case these Points were Resolved by Coke Chief Justice Walmesly Warberton Daniel and Foster Justices 1. If the Fine had been reasonable yet the Lords ought to have set a certain time and place when the same should be paid because it stands â—â—on the point of Forfeiture As if a man assures Lands to one and his Heirs upon condition to pay to the Bargainee and his Heirs 10 l. at such a place or that he and his heirs shall re-enter there because no time is limited the Bargainor ought to give notice to the Bargainee c. when he will tender the money and he cannot tender it when he pleaseth and with this agrees 19 Eliz. Dyer 244. So in the Case at the Bar the Copyholder is not bound to carry his Fine alwayes with him c. And though that the Rejoynder is that the Plaintift refused to pay the Fine so he might well do when the Request is not lawful or reasonable And he that is to pay a great Fine as 100 l. or more it is not reasonable that he carry it always with him And the Copyholder was not bound to do it because the Fine was incertain and arbitrable as was Resolved in Hulbarts Case in the 4th Part of my Reports among the Copy-hold Cases 2. It was Resolved That though the Fine be uncertain and arbitrable yet it ought to be secundum arbitrium boni viri and it ought to be reasonable because Excessus in re qualibet jure reprobatur communi for the Common-Law forbids any excessive Distress as appears 41 Ed. 3. 26. And this doth appear to be the Common-Law for the Statute of Articuli super Chartas extends onely for a grievous Distress taken for the Kings Debt See F. N. B. 147. a. and 27 Ass 51. 28 Ass 50. 11 H. 4. 2. and 8 H. 4. 16. c. And so if an excessive Amerciament be imposed in any Couâ—t-Baron or other Court not of Record the Party shall have Moderata mis ericordia And Magna Charta is but an Affirmance of the Common-Law in this Point See F. N. B. 75. And the Common-Law gives an Assize of Sovient Distress and multiplication of Distress found which is Excess And with this agrees 27 Ass 50 51. F. N. B. 178 b. And if Tenant in Dower hath Tenants at Will that are rich and makes them poor by excessive Tallages and Fines this is wast F. N. B. 61. b. 16 H. 3. Wast 135. and 16 H. 7. Vide also the Register Judicial fol. 25. B. Waste lyeth in Exulando Henricum Hermanum c. Villeynes Quorum quilibet tenet unum messuagium unam Virgat terrae in Villenagio in Villa praed c. By all which it appears the Common-Law forbids excessive oppressing of Villains c. So in the Case at Bar though the Fine is uncertain yet it ought to be reasonable and so it appears by the Custome alleadged by the Defendant See Hubbard's Case before in the 4th Part of my Reports And when reasonableness concerning a Fine is in question the same shall be determined by the Court in which the Action depend 21 H. 6. 30. 22 Ed. 4 27. and 50 29 H. 8. 32. c. 3. It was Resolved That the Fine in the Case at the Bar was unreasonable being for the admittance of a Copy-holder in Fee-simple upon a Surrender made for this is not like a voluntary Grant c. for there Arbitrio Domini res estimari debet But when the Lord is compellable to admit him to whose use the Surrender is And when Câ—stuy que use is admitted he shall be in by him who made the Surrender and the Lord is but an Instrument to present the same 4. It was Resolved That the Surjoinder is no more than what the Law saith And for the Causes aforesaid Judgment was given for the Plaintiff And Coke Chief Justice said in this Case That if the Court of Admiralty amerce the Defendant excessively at discretion as seems by 19 H. 6. 7. the same shall not bind the Party and be it excessive or not it shall be determined in the Court where the Action shall be brought And a Writ of Account against a Bayliff or Guardian Quod reddat â—i rationabilem compâ—tum c. for the Law requires Reason and no excuse or extremity in any thing Mich. 6 Jac. Regis in the Common-Pleas Porter and Rochester's Case This Term Lewis and Rochester who dwelt in Essex in the Diocess of London were sued for subtraction of Tythes growing in B. in the said County of Essex by Porter in the Court of the Arches of the B. of Canterbury in London And the Case was The Archbishop of Canterbury â—ath a peculiar Jurisdiction of 14 Parishes called a Deanry exempt from the Authority of the Bishop of London whereof the Parish of St. Mary de Arcubus is the chief And the Court is called the Arches because it is holden there And a great Question was moved If in the said Court of Arches holden in London he might cite any dwelling in Essex for substraction of Tythes growing in Essex or if he be prohibited by the Statute 23 H. 8. cap. 9. which after Debate at Bar by Councel and also by Dr. Ferrard Dr. James and others in open Court and lastly by all the Justices of the Common-Pleas A Prohibition was granted to the Court of Arches And in this Case divers Points were Resolved by the Court. 1. That â—â—l Acts of Parliament made by the King Lords and Commons in Parliament are parcel of the Laws of England and therefore shall be expounded by the Judges of the Laws of England and not by the Civillians Cannonist although the Acts concern Ecclesiastical Jurisdiction And in 10 H. 7. the Bishop of London caused onâ— to be imprisoned because the Plaintiff said he ought not to pay his Tythes to his Curate And the imprisoned Party brought his Action of false Imprisonment against those that arrested him by the Bishops Command and there the Matter is well argued what words are within the Statute and what words are not So upon the same Statute was Resolved in 5 Ed. 4. in Keysar's Case in the Kings Bench which see in my Book of Presidents And so the Statutes of Articuli Cleri de Prohibitione regiâ De Circuâ— spâ—cte agitis of 2 Ed. 6. cap. 13. c. have alwayes been expounded by the Judges of the Common-Law as was adjudged in Wood's Case Pasch 29 Eliz. So 21 H. 8. cap. 13. See 7 Eliz. Dyâ—r 233. 15 Eliz. Dyer 251. 14 Eliz. Dyer 312. 15 Eliz. Dyâ—r 327. 18 Eliz. Dyer 352 347. 22 Eliz. Dyer 377. 2. Resolved by Coke Chief Justice Warbâ—â—ton Daniel and
lawfully endowed and paid his first Fruits and Tenths Resolved by all the Court that it shall be presumed that the Vicaridge was lawfully endowed And that it is a dangerous President to examine Originalls of Impropriations and Endowments of Vicaridges for that they may perish And so it was decreed for the Plaintiff Hill 4. Jac. Regis Bedle and Beard Anno 31. Ed. 1. The King being seized of the Mannor of Kâ—mbolton to which the Advowson of the said Church was appendant by Letters Patents granted the said Mannor wish the Appâ—â—tenances to Humphry de Bohun Earl of Hereford in tayl generall Humphry de Bohun the Issue in tayl by his Deed. 4 Ed. 3. granted the said Advowson then full of an Incumbent to the Prior of Stonely and his Successors And at next avoydance they held In proprios usus Upon this Appropriation Concurrentibus his quae in jure requiruntur the Prior and his Successors held the same till the dissolution of the Monastery 27. H. 8. The said Mannor descended to Edward Duke of Buckingham as Issue to the Estate Tayl. And the Reversion descended to H. 8. The Duke 13 H. 8. was attaint of High Treason 14 H. 8. The King granted the said Mannor c. with all Advousons appendant c. to Richard Wingfield and his Heirs Males 16 H. 8. It was Enacted that the said Duke forfeit all Mannors c. Advousons c. which he had c. in 4 H. 8. The King 37 H. 8. granted and sold the said Rectory of Kimbolton as impropriate in Fee which by mean conveyance came to the Plaintiff for 1200 li. 37 Eliz. Beard the Defendant got a Presentation of the Queen by Lapse pretending the said Church was not lawfully impropriate to the Prior. 1. For that Humphry who granted to the Prior had nothing in it nothing passing to his Ancestor by these words Manâ—rium cum pertinentiis 2. Or for that having no more but an Estate Tayl by his death his Grant was void But Resolved by the Lord Chancellor Ellesmere with the principal Judges and upon consideration of Presidents that the Plaintiff shall enjoy the Rectory for though by any thing which can now be shewn the Impropriation is defective yet it shall be now intended in regard of the antient and continual possession that there was a lawfull grant of the King to the said Humphry who granted in Fee so that he might lawfully grant it to the said Priory Omnia pâ—â—sumitur Solâ—mniter esse acta And all shall be presumed to be done which might make the antient Impropriation good And antient Grants and Acts shall not be drawn in question though they cannot be shewn for Tempus edâ—x rerum Letters Patents and Writings may consume be lost or imbezilled And therefore the Church was allowed to be rightfully impropriate and the rather in regard of the antient and long possession of the Owners of the said Rectory Mich. 4. Jac. Regis Case of Forfeiture by Treason Hill 43 Eliz. A Case was moved to all the Justices Tenant in Tayl before the Statute of 27 H. 8. made a Feoffment in Fee to the use of himself and his Wife in Tayl. And after the said Statute the Husband was attaint of High Treason 31 H. 8. and dyed The Wife continued in possession and dyed their Issue enter and die and this descends to his Issue and all this found by Office The Question was if the Issue in Tayl or the King shall have the Land 1. And it was objected that the antient Estate Tayl cannot be forfeited because it was discontinued and such right of Action cannot be forfeited As was agreed in the Marquess of Winchesters Case 2. The Feoffor himself in this Case had not any right to the antient Estate Tayl it being extinguished by his Feoffment and therefore by his Attaint could not forfeit what he had not 3. The Issue in Tayl in remitted to that antient right which cannot be forfeited And the new Estate Tayl derived under the discontinuance which may be forfeited by the Statute 26 H. 8. cap. 13. is continued and by Act in Law viz. the discent and remitter avoided And the Kings Estate may be divested out of the King by remitter As if Tenant in Tail grant Land to the King c. and the King grant the Land to the Tenant in Tail for life the remainder to his Son and Heirs for life Tenant for life dies the Issue by and in Law is remitted and the Kings Estate is divested out of him This accords with Plow Com. 489. Nicols Case 1. Resolved that in this Case the Issue in Tail is barred for though right of Action cannot be given to the King by the 26 H. 8. yet when Tenant in Tail discontinues his Estate to the use of himself in Tail and after is attaint of Treason now by that Statute he doth not onely forfeit the new Estate in Tail but by this the right of the antient Estate is barred for ever And so note out of the said Statute a diversity between a naked right of Action not forfeitable and an Estate of Inheritance forfeiâ—able coupled with an antient right for which the Forfeiture of the possession is barred by the said Act And iâ— is not like the Case in Plow Com. of Remitter for this is no barre of an antient right Pasch 4 Jac. Regis Case at a Committee aoncerning Bishops At this Parliament held Pasch 4 Jac. Regis It was strongly urged at a Grand Committee of Lords and Commons in the Painted-Chamber that such Bishops as were made after the first day of the Session were not lawful Bishops 1. Admitting them Bishops yet the manner and form of their Seals Stiles Process and Proceeding in their Ecclesiastical Courts were not consonant to Law Because by the Statute 1 Ed. 6. cap. 2. it is provided That thenceforth Bishops should not be Elective but Donative by Letters-Patents of the King And for that at this day all Bishops were made by Election not Donation of the King therefore the saâ—d Bishops are not lawful 2. By the same Act it is provided That all Summons c. and Process in Ecclesiastical Courts shall be made in the King's Name and Stile and their Seals Engraven with the Kings Arms and Certificates made in the Kings Name It was therefore concluded Thâ—t the said Statute being still in force by Consequence all Bishops made after the Act 1 Jac. were not lawful Bishops And the Proceedings being in the Name of the Bishop makes them unlawful Quia non obserâ—ata forma infertur adâ—ullatio actus Upon Consideration had of these Objections by the Kings Commandment it was Resolved by Popham Chief Justice of England â—nd Coke Attorney of the King and after affirmed bâ— the Chief Baron and the other Justices Attendant to â—he Parliament that the said Act of the 1 Ed. 6. cap. 2. is not now in force being repealed annulled and annihlated by three several Acts of Parliament Any whereof being
though the King cannot take the Trees of his Subject growing upon his Freehold nor Gravel in the Inheritance of his Subject for reparation of his houses as 11 H. 4. 28. Yet 't is resolved that he may dig for Saltpeter because the Kings Ministers who dig for the same are bound to leave the Inheritance of the Subject in as good plight as they found it which they could not do if they should cut the Timber growing which would be to the Subjects disinherison The Case of Gravel for reparation of the Kings Houses may not be compared to this for Saltpeter extends to the defence of the whole Realm not so the reparation on of the Kings Houses 13 H. 4. The King may charge for Murage of a Town And so for Portage but not for making a Wall about his own House When Enemies invade the Realm it is lawful to come upon any Land adjoyning to the invaded Coast to make Trenches or Bulworks 8 Ed. 4. 23. And in such Cases they may dig for Gravel 3 H. 8. fo 15. And in this Case the Rule is true Princeps et republica ex justa causa possunt rem mean auferre 3. Resolved That the taking of Saltpeter is a purveyance of it for the making of Gunpowder for the necessary defence of the Realm And therefore is an incident inseparable from the Crown and ought to be taken onely by the Kings Ministers and not converted to any other use then the defence of the Realm And 't is not like Silver or Gold Mines for there the King hath Interest in the Mettall and may dig Quia quando lex alicui concedit aliquid Concedere videtur id sine quo res ipsa esse non potest Vide Plow Com. in le Case de Mynes so the King may dig for Treasure Trove eadem ratione 4. The Ministers of the King cannot undermine weaken or impair any the Walls of Foundations of any Houses or Buildings whatsoever Nor dig in the Flore of a Mansion-house which serves for the Habitation of a man because it is his place of refuge and defence There are two notable Presidents that the King by his Prerogative had power to prohibit Depopulation and provide for Habitation The one in the 43 Ed. 3. Rot. claus in turri num 23. provillade Southampton The other An. 21. R. 2. in dorso claus par 1. N. 15. Neither may the Kings Ministers dig in any Barn-floore used for Corn Hay c. but they may dig in the floores of Stables and Oxehouses so that they leave room for the Horses and other Cattel of the Owner and put it in convenient time into as good plight as they found it Also they may dig in Cellars and Vaults and and Mud-walls being not Walls of a Mansion-house and in the ruines and decayes of any Houses or Buildings 5. They ought to make the places where they dig as commodious to the Owner as before 6. They may work in the possession of the Subject but betwixt Sun-rising and Sun setting 7. They may not place any Furnace or other Vessels in any Subjects House without consent nor so near it as to prejudice the same 8. They are not to stay over long in a place nor to return thither again in a long time 9. Resolved That the owner of the Land cannot be restrained from digging and making Saltpeter for the King hath no Interest in it the property is in the owner of the Land Before the 31 Eliz. no King or Queen of this Realm granted any Licence for taking Saltpeter but in that 31 year there were two the one to George Constable Esque and the other generall to George Evelin Richard Hills and John Evelin And after Scilicet 18 Octob. 2. Jacob. Commission was granted to Evelin and others to take Saltpeter c. So that there were but three Licences ever made Case of Treason In this very Term one George Leake a Chancery Clark had upon an ordinary piece of Parchment by great deceit fixed with a kind of Glew another Parchment so thin that it appear but one piece And upon the thin piece he writ by good Warrant a Li ense which brought to the Chancellor was sealed with the Great Seal After the George took the thin piece upon which the writing was from the other to which the Seal was fixed and then all was blank with the Great Seal annext upon which blank the said George writ a Grant of the King of certain Lands and what Offence this was was the Question And after a long debate upon the 25 Ed. 3. 2 H. 4. 25. Stamford l. 1. fol. 3. 40 Ass pla 33. 37 H. 8. Title Treason 2 H. 4. Claus 42 Ed. 3. memb 8. in dorso where the Case was That King Richard the First by his Charter granted divers Lands and Liberties Abbati de Bruera in which the Abbot rased out this word Fittetrida and instead of it writ est leigh and upon shewing it obtained a confirmation of it from King Ed. 3. And an allowance of it in Banco R. And for this Offence the Abbot was called before the King and Council in the Star-Chamber where the Abbot being Convict it was part of the Sentence That the Charter confirmation and allowance of it should be brought in to be cancelled where note 1. The Antiquity of the Star-Chamber being then a Court. 2. That the rasure was not any Counterfeit of the Great Seal for if the Offence had been High Treason it should not have been determined before the King and Council 3. That Spiritual Persons were then punishable before Temporal Judges 4. That if there be a rasure of a Deed between Subject and Subject in a place material all the Deed becomes naught so if a Patentee rase his Heirs Patents in a place material Thence concluded That if the rasing of a word in the Kings Patent be not Treason then the rasing of two or three or all the words of the Patent and writing a new Grant is not Treason By the Statute of the 25 Ed. 3. it is provided That because many other Cases of like Treason might happen in time to come which men cannot think or declare at present That if another Case suffered Treason and not specified in the Act shall come before any of the Justices they shall stay without going to Judgment of Treason untill the Case be shewen before the King in Parliament 1. That though a Case happen like to the Cases of Treason mentioned in the said Act yet that the Judges ought not to judge it Treason but it ought to be declared in Parliament 2. That when a particular Case was adjudged High Treason as the Case of murdring an Embassador of a King Et Legatos violare contra jus Gentium est Afterwards George Leake upon Examination before the chief Justice of England made a clear Confession of of all the manner and circumstances of the Fact as aforesaid whereupon Two Questions were moved 1. Whether this Offence
2. Parl. accord 1 R. 3. against Benevolence Vide Claus 4 Ed. 3. n. 22. bis Case of Libells between Edwards and Wooton In Cam. Stellat The Case was That Doctor Wooton writ to Edmunds an infamous malicious scandalous and obscene Letter with his Name subscribed And this he Sealed and directed to his Loving Friend Mr. Edward Speed this and after the said Doctor dispersed to others a great number of Copies of the said Letter And it was Resolved by the Lord Chancellor Egerton the two chief Justices et per totam curiam That this was a subtle and a dangerous kind of Libell For though the writing of a private Letter without other Publicatior the Party to whom it is directed cannot have an Action Sur le Case but where it is published to others ' to the Plaintiffs Scandal Action lyeth The Doctor thought this could not in any manner have been punish't but 't was Resolved That the infamous Letter which in Law is a Libell shall be punished in the Star-Chamber being an Offence to the King and a motive to breach of the Peace And in the Case at Bar the dispersing of Copies of it aggravates the Offence for which also the Party may have an Action Sur le Case Note By the Civil Law a Person disabling himself to bear Office or making a Libell against himself shall be punished And though the Doctor subscribed his Name to the said Letter yet it importing matter Scandalous is in the Law a Libell The Law of the Lydians is That who slanders another shall be let Blood in the Tongue who hears it and ascents to it in the Ear c. Mich. 5 Jac. Regis Wooton and Edwins Case In Replevin the Defendant avowed and the Plaintiff demurred and the Case was thus William Hawes was seized in Fee of a Messuage and 55 Acres of Land five Acres of Meadow and six Acres of Pasture in Formanton in Com. Hereford and 27. Junii 28 H. 8. by Indenture demised the Tenement aforesaid to N. Traheron for 79 years Reddendo inde annuatim praefat Gulielm Hawes et assign suis 26 s. 8 d. at the Feasts of the Annunciation and St. Michael by equal portions And after the Lessor dyed and the Reversion descended to William his Son under whom the said John Edwin Claimed And the sole Point was If the Rent reserved in this Case shall go to the Heir or be determined by the death of the Lessor If the Lessor had reserved the Rent to him without more this shall determine by the death of the Lessor And the addition of the word Assignes shall not enlarge the reservation for the Assignes cannot have the Rent longer than the Lessor himself should have it Vide 18 Ed. 3. tit Ass 86. 10 Ed. 4. 18. 27 H. 8. 19. per Audlâ—y et vide Hâ—ll 33 Eliz. Rot. 1341. In a Replevin enter Richmond and Butcher Butcher avowed for Rent as Heir to his Father upon a Demise made by his Father of certain Lands for 21 years by these words Reddendo proinde durant termin 21 annos praefat Patri executor et assignat suis 10 l. legalis c. ad festa c. And it was adjudged That by this Reservation the Heir should not have the Rent because the Reservation was to the Father and his Executors c. not to his Heirs Mich. 5 Jac. Regis Case concerning Buggary The Letter of the Statute 25 H. 8. cap. 6. If any Person shall commit the detestable sin of Buggary with Mankind or Beast c. it is Felony which Act being Repealed 1 Mar. is revived and made perpetual 5 Eliz. cap. 17. and he lose his Clergy It appears by antient Authorities of the Law That this was Felony but they vary in the punishment For Britton who writ 5 Ed. 1. cap. 17. saith That Sorcerers Sodomers and Hereticks shall be burned F. N. B. 269. agrees with it But Fleta lib. 1. cap. 35. Christiani Apostati c. debent cumburi this agrees with Britton but Pecorantes et Sodomitae terra vivisâ—ffodiantur But in the Mirror of Justice vouched in Plow Com. in Fogosses Case the Crime is more high for there it is called Crimen laesae majestatis a horrible Sin against the King either Celestial or Terrestial in three manners 1. By Heresy 2. By Buggary 3. By Sodomy Note Sodomy is with mankind and is Felony and to make that Offence Opertet rem penetrate et semen naturae emittere et effundere for the Indictment is Contra ordinationem Creatoris et naturae ordinem rem habuit veneream dictumque puerum carnaliter cognovit and so it was held in the Case of Stafford Paederastes â—mator puerorum Vide Rot. Parl. 50 Ed. 3. 58. So in a Rape there must be penetration and emission of Seed Vide Stamf. fol. 44. which Statute makes the Accessary Guilty of Felony West 1. cap. 34. If a Man ravish a Woman 11 H. 4. 18. If one Ayd another in a Rape or be present he is principle in the Buggary Vide Levit. 18. 22. et cap. 10. 13. 1 Cor. 6. Case of Premunire In Doctor Cosines Book intituled An Answer c. and publisht 1584. And a Pamphlet lately publisht by Doctor Ridley they would obtrude upon the World That in regard by the Act 10 Eliz. cap. 1. all Spiritual and Ecclesiastical Power within the Realm is annexed to the Crown and the Law thereof is the Kings Ecclesiastical Law That therefore no Premunire lyes against any Spiritual Judge for any cause whatsoever And the Reasons some of their Profession give to confirm it are 1. That when the Statute of Premunire was made the Pope usurped Ecclesiastical Jurisdiction though de jure it belonged to the King But now since the King as well de facto as de jure is Supream Head of all The cause being changed the Law is changed also 2. â—T conclusion of the Writ of Premunire is in Domini Regis contemptum et prejudicium et dictae Coronae et dignitatum suarum Laesionem et exhaeredationem manifestam et contra forman statuti c. which proves the Jurisdictions united to the Crown and what is united to and derived from the Crown cannot be said contra Coronam et dignitatem Regis 3. The High Commission Court is the Kings Court and therefore though it may be said The Consistory Courts are Curiae Episcoporum yet that Court by force of the High Commission is the Kings and so their Proceedingâ— shall not be lyable to the Premunire 4. This new Court is erected by Act of Parliament c. And because the Sâ—atute of R. 2. speaks de curia Romana seu alibi c. This alibi cannot extend to a Court erected by Act of Parliament 10 Eliz. But to these Objections it was answered and resolved by divers Justices in this Term That without Question theâ— Statutes of 27 Ed. 3. 16 R. 2. c. de Premunire are yet in force And all proceedings before any
Sentence given by Commissioners of the Queen in a Cause Ecclesiasticall under the Great Seal That the said Sentence was unjust and wicked and that he thought the Delegates had done against their Conscience and what offence this was was referred to divers Judges to consider by whom it was Resolved That this Offence was a contempâ— as well against the Queen as to the Judges and punishable by the Common-Law by Fine and Imprisonment 5. Resolved When any Libell in Ecclesiastical Court contains many Articles if any of them do not belong to Court-Christian a Prohibition may be generally granted and upon motion Consultation may be made as to things which belong to Spiritual Jurisdiction And for these Reasons it was Resolved by all That the Prohibition in the case at Bar was well granted which in truth was granted by Fenner and Crooke Justices in the Vacation Note these general Rules concerning Prohibitions Quaesparsim inveniantur in libris nostris Non debet dici tendere in praejudicinm Ecclesiasticae libertatis quod rege et repub necessarium videtur Artic. Cleri c. 8. 2. Non est juri consonum quod quis super iis quorum cognitio ad nos pertinet in Curia Christianitatis trahetur in placitum Entries 444. 447. 3. Episcopus teneat placitum in Curia Christianitatis de iis quae mere sunt Spiritualia Circumspâ—cte agatis c. 4. Prohibeatur de caetero Hospitalariis et Templariis ne de caetero trahunt aliquem in placâ—tum coram conservatoribus privilegiorum de aliquare cujus cognitio ad Forum spectat Regium West 2. cap. 43. 5. Non concedantur citationes priusquam exprimatur super quare fieri debet citatio Ibidem 6. Resolved That this special Consultation being only of Heresy Schisme and erroneous Opinions c. that if they convict Fuller and if he recant the same c. that he shall never be punished by Ecclesiastical Law After the Consultation granted the Commissioners proceeded and convicted Fuller of Schisme and erroneous Opinions and imprisoned and fined him 200 l. And after in the same Term Fuller moved the Court of Kings Bench to have a Habeas Corpus et ei conceditur upon which Writ the Goaler did return the cause of his detention Mich. 5 Jac. Regis The Case of First-Fruits and Tenths Note Annates Primitiae and First-Fruits are all one It was the value of every Spiritual Livâ—ng by the year which the Pope claiming the disposition of all Ecclesiastical Livings reserved And those and Impropriations began about the time that Polidore Virgil lib. 8. cap 2. saith Vide Concilium Viennense quod Clemens quintus indixit pro annatibus These First-Fruits were given to the Crown 26 H. 8. cap. 3. Note Hill 34 Ed. 1. An. 1307. At a Parliament held at Carlisle great Complaint was made of Oppressions of Churches c. by William Testa called Mala Testa and Legate of the Pope in which Parliament the King with his Barons assent denied payment of First-Fruits And to this effect he writ to the Pope whereupon the Pope relinquished his Demand and the First-Fruits for Two years were by that Parliament given to the King Decimae id est Tenths of Spiritualties were perpetual and paid to the Pope till Pope Urban gave them to R. 2. to aid him against Charles King of France and others who supported Clement the 7th against him 5 H. 3. By the Popes Bulls all Tenths were paid to H. 3. for years These were given to the King 26 H. 8. cap. 6. Vide Dambert de prist Anglor c. fol. 128. cap. 10. et ibidem inter leges Juae fol. 78. cap. 4. Sir Anthony Roper's Case In the Case of Sir Anthony Roper drawn before the High Commissioners at the Suit of one Bullbrook Vicar of Bently for a Pension out of a Rectory Impropriate whereof Sir Anthony was seized in Fee And the High-Commissioners sentenced the said Sir Anthony to pay it which he refused whereupon they committed him to Prison who appeared in Court this Term by Habeas Corpus upon the return of which Writ the matter did appear And it was well debated by the Justices and Resolved 1. That the said Commissioners had not Authority in the said Case for when the Acts of the 27 H. 8. and 31 H. 8. of Monasteries had made Parsonages Impropriate c. although that Pensions were saved yet by the Preamble of the Act 34 H. 8. cap. 16. those to whom the Pensions appertain had not remedy for the said Pensions c. And if the King covenanted to discharge the Patentee c. of Pensions the Suit shall be made for the same in the Court of Augmentations and not else-where And if High-Commissioners will determine of Pensions they must do it by that Act 34 H. 8. which expresly gives it to Ordinaries and their Officials the High-Commissioners Power being granted long after by the Act 1 Eliz. But it was Objectâ—d That that Act of 1 Eliz. gave the Queen and her Successors Power to assign Commissioners c. And it was said That such Spiritual Jurisdiction which the Bishop should have is transferred to the High Commissioners But it was unanimously resolved by Coke Walmesly Warberton Daniel and Foster Justices That the Act 1 Eliz. extends not to this Case for divers Causes 1. Because the Act of the 1 Eliz. doth not take away nor alter any Act of Parliament but those onely which are expresly named therein And it was Râ—solved That the High-Commissioners cannot hold Plea for the double value of Tythes carried away before severance 2. Because the words in the 1 Eliz. are which by any manner of Spiritual Jurisdiction can or lawfully may be reformed And it appears That these words extend to Crime only and not to Cases of Interest betwixt Party and Party 3. Because this Jurisdiction was given to the Bishops by Act of Parliament viz. 34 H. 8. which is more Temporal than Spiritual as all of Parliament are 4. It was not the intent of the Act 1 Eliz. which revived the Statute 23 H. 8. cap. 9. That the High-Commissioners for private Causes shall send for Subjects out of any part of the Realm and so in effect confound the jurisdiction of the Ordinary an Officer so necessary that the Kings Courts cannot be without him in divers Cases 5. If that Act 1 Eliz. had extended to give High-Commissioners power to determine meum et tuum as Pensions Tythes c. the Party thereby also should have benefit to appeal otherwise this should be dissolve the Court of the Ordinary which is so antient and necessary in many Cases that without it Justice cannot be administred 6. The High-Commissioners cannot extend themselves but only to Crime Mich. 5 Jac. Regis Rot. 2254. Praecept fuit Guardiano prison Domini Regis de Flecte quod haberet qpud â—estm immediate c. Coâ—pus Anthonii Roper Mil. inprison praed sub custodia sua detent quocunque nominâ— cens reretur una cum
Kings Bench because no Writ of Error lyes but in Plaint Robert Bankes Case Mich. 6 Jac. Regis Mich. 6 Jac. Rot. 639. Robert Bankes Gent. brought an Action upon the Statute of Winton 13 Ed. 1. against the Inhabitants of the Hundred of Burnham in the County of Bucks and counted that certain misdoers to the Plaintiff unknown at Hitcham the 22d of Nov. 5 Jac. assaulted the Plaintiff and robbed him of 25 l. 3 5. 2 d. ob and that he immediately after the robbery the same 22d of Nov. at Joplow and Maalow the next Towns to Hitcham in the said County made Hâ—e-and Cry c. and after the said Robbery and within 20 dayes before the purchase of the Writ viz. the 19 of Fâ—br Aâ— 5. at Dorney in Com. praed the Plaintiff before Sir William Gâ—rrard Knight then Justice of Peace in the said County and living next the said Hundred being examined upon Oath according to the Statute 27 Elâ—z the Plaintiff upon his Oath said He knew not the Parties who robbed him and since the said Robbery 40 dayes are past and the said Inhabitants of Burnham have not made him any amends nor the Bodies of the Felons or any of them have taken but suffered them to escape to which the Defendants plead Not Guiley and Vâ— fa. was awarded de vicineto c. And the Jury gave a special Verdict and found that the Plaintiff was robbed and made Hue-and-Cry as aforesaid and found over That the Plaintiff was sworn before Sir William Gerrard as aforesaid and said upon his Oath in these English words viz. That he on Thursday the 22 d. of Nov. 1604. riding under Hitcham wood c. was then and there set upoâ— by Horsemen which he knew not and robbed of 25 l. 3 s. 2 d. ob but whether the said Oath so taken be true according to the said Statute 27 Eliz. the Jurors pray the direction of the Court. Mouses Case Mich. 6 Jac. Regis In an Action of Trespass brought by Mouse for a Casket and 113 l. taken and carryed away the Case was the Ferryman of Gravesend took 47 Passengers into his Barge to pass to London and Mouse was one of them the Barge being upon the Water a great Tempest happened so that the Barge and all the Passengers were in danger to be drowned if a Hogshead of Wine and other pouderous things were not cast out And it was Resolved per totam Curiam That in a case of necessity for saving the Lives of the Passengers it was lawful to the Defendant being a Passenger to cast the Plaintiff's Casket out of the Barge with what was in it for quod quis ob tutelam corporis sui fecerit jure id fecissâ— videtur Upon the special matter pleaded and Reply De injuria sua propria absque tali causa the first day of this Term the Issue being tryed and it was proved directly That the Men had been drowned if the things had not been cast out The Plaintiff was Non-sult Resolved also That though when the Ferry-man surcharge the Barge yet to save the Passengers Lives in such a Necessity it is lawful for the Passengers to cast the things out of the Barge yet the Owners shall have their Remedy upon the surchage against the Ferry-man but if there was no surcharge but the danger came by the Act of God then every one must bear his own losse for Interest Râ—ipub quod homines conserventur â— Ed. 4. 23. Bull. c. 12 H. 8. 15. 28 H. 8. Dyer 36. Mich. 5. Jac. Regis Prohibitions del Roy. Noâ—e On Sunday the 10. of Nov. in this Term the King upon Complaint made by Bancroft Arch-Bishop of Canterbury concerning Prohibitions the King was informed That when Question was made of what matters the Ecclesiastical Judges have Cognâ—zance c. in any Case in which there is not express Authority in Law the King himself may decide in his Royal Person the Judges being but his Delegates c. And the Arch-Bishop said this was clear in Divinity To which it was answered by Mee in the presence and with the clear Consent of all the Justices of England and Barons of the Exchequer that the King in his own person cannot adjudge any Case either Criminal as Treason c. or betwixt party and party concerning Inheritance Goods c. But it ought to be determined in some Court of Justice according to the Law and Custome of England and all Judgments are given Ideo consideratum est per Curium And the King hath his Court in the Upper House of Parliament in which he with his Lords is the Supream Judge over all Judges And in this respect the King is called Chief Justice 20 H. 7. 7. a. by â—rudnel and it appears in our Bookes 2 R. 3. 9. 21 H. 7. 8. that that the King may sit in the Star-Chamber but this was onely to consult not in judicio So in the Kings-Bench but the Court gives Judgment And 't is commonly said in our Books the King is alwayes present in Court and therefore he cannot be Non-suit And it appears by the Acts of Parliament 2 Ed. 3. c. 9. 2 Ed. 3. c. 1. That neither by the Great Seal nor by the little Seal Justice shall be delayed ergo The King cannot take any Cause out of any of his Courts and give Judgment upon it but in his own Cause he may stay it as appears 11 H. 4. 8. And the Judges informed the King that no King after the Conquest ever assumed to himself to give Judgment in any Cause whatsoever which concerned the Administration of Justice within the Realm 17 H. 6. 14. 39 Ed. 3. 14. the King cannot Arrest any man 1 H. 7. 4. Hussey chief Justice Reports being Attorney to Ed. 4. That Sir John Markham chief Justice said to Ed. 4. That the King cannot Arrest a man for suspition of Treason or Felony as his other Leiges may And it was greatly marvailed That the Archbishop durst inform the King that such absolute Power as aforesaid belonged to him by the Word of God Vide 4 H. 4. cap. 22. Westm 2. cap. 5. vide le stat de Marlbridge cap. 1. stat de Magn. Chart. cap. 29. 25 Ed. 3. c. 5. 43 Ed. 3. c. 3. 28 Ed. 3. c. 3. 37 Ed. 3. c. 18. vide 17 R. 2. ex Rotulis Parliamenti in Turri act 10. A controversy of Land between Parties was heard by the King and Sentence given which was repealed because it did belong to the Common Law Then the King said That the Law was grounded upon Reason and that He and Others had reason as well as the Judges To which it was answered by Me That true it was God had endued his Majesty with excellent Science but his Majesty was not learned in the Laws of England and Causes which concern the Life or Inheritance or Goods of his Subjects which are not to be decided by natural Reason but artificial Reason and Judgment of Law which
hath well observed Vide Dyer 298. vide le Stat. 27 Eliz. Pasch 9 Jacobi Regis Sir William Chancâ—ys Case In this Term Sir William Chancy having the priviledg of this Court and being a Prisoner in the Fleet was brought to â—he Bar by Habeas Corpus by the Guardian of the Fleet who returned That the said Sir William was committed to the Fleet by Warrant from the High-Commissioners in Ecclesiastical Causes which Warrant follows in these words viz. These are to Will and Require you in his Majesties Name by Vertue of his Hâ—gh-Commission c. to Us and others directed c. That herewithal you take and receive into your Custody the Body of Sir William Chancy Knight whom we will that you keep c. untill further Order c. letting you know the cause of his Committment to be for that being at the Suit of his Lady convented bâ—fore c. for Adultery and expelling her from his Company and Co-habiting with another Woman without allowing her any competent Maintenance and by his own Confession convict thereof he was thereupon enjoyned to allow his Wife a competent Maintenance c. and to perform such Submission and other order for his Adultery as by Law should be enjoyned him which he expresly refused to do in contempt c. Given at London 19 Martii 1611. subscribed Henry Mountague George Overall Thomas Morton Zach. Paâ—field And it was moved by Nicholas Serjeant a Councel with Sir William that this return was insufficient 1. Because Adultery ought to be punished by the Ordinary and not by the High-Commâ—ssioners on which the Offender is remediless and can have no appeal Quod fuit concessum per Coke Warberton and Foster but Walmesly doubted of Adultery 2. That by force of the Act of the 1. of Eliz. the High-Commissioners cannot imprison Sir William for Adultery nor for denying Alimony to his Wife And Doderidge the Kings Sâ—rjeant of Council on the other side did not defend the Imprisonment to be lawful And it was clearly agreed by Coke Walmesly Warberton and Foster That the Commissioners had not power to imprison in this Case And Walmâ—sly said That though they have used this Power for twenty years without any exception yet when it comes before them judicially they ought to Judge according to Law and upon this Sir William Chancy was Bailed And it was resolved per totam Curiam That when it appears upon the Return that the Imprisonment is not lawful the Court may discharge him of Imprisonment Also it was Resolved That the Return was insufficient in form 1. It is not shewn when the Adultery was committed 2. He was enjoyned to allow his Wife a competent Maintenance without any certainty and to perform such submission c. as by Law shall be enjoyned which is all infuturo and uncertain Vide in my Treatise at large the Reasons and Causes why the High-Commissioners may sue and imprison Vide Pasch 42 Eliz. Rot. 1209. Pasch 9 Jacobi Regis Empringham's Case In this Term a Case was moved in Star-Chamber upon a Bill exhibited by the Attorney-General against Robert Empringham Vice-Admiral in the County of York Marmaduke Ketthewell one of the Marshals of the Admiralty and Thomas Haâ—rison an Informer in the same Court for Oppression and Extortion in Fining and Imprisoning divers of the Kings Subjects in the said County which no Judge of the Admiralty can justifie because it is not a Court of Record but they proceed according to the Civil Law and upon their Sentence no Writ of Error lyeth but an Appeal Also the said Empringham hath caused divers to be cited to appear before him for things done in the Body of the County which were determinable by the Common Law and not before the Admiralty whose authority is limited to the High Sea And for these and other Oppressions they were fined and imprisoned and sentenced beside to make Restitution c. Trin. 9 Jacobi Regis Memorandum That upon the Thursday before this Term all the Justices of England by the Kings Command were assembled in the Council-Chamber at Whitehall where was Abbot Archbishop of Canterbury and with him two Bishops and divers Civillians the Archbishop complained of Prohibitions out of the Common-Pleas and delivery of Persons by Haheas Corpus but chiefly of Sir William Chancy I defended our proceedings according to my Treatise thereof which I delivered before the High-Commissioners And after great dispute between the Archbishop and Me at last he said He had a Point not yet touched upon in my Treatise which would give satisfaction to the Lords and Us also and upon which he would rely And that the Clause of Restitution and Annexation viz. And that all such Jurisdictions c. Spiritual and Ecclesiastical as by any power Spiritual hath heretofore or hereafter lawfully may be used c. for visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and of all Errors Heresies Schismes c. shâ—ll for ever by authority of this present Parliament be united and annexed to the Imperial Crown of this Realm And it was said That H. 8. and Ed. 6. did give Power by their Commissions to divers to impose Mulcts c. in Ecclesiasticall Causes c. and upon this he concludes That this having been used before 1 Eliz. this is given to Queen Eliz. and her Successors Also inasmuch as by 2 H. 4. and 2 H. 7. the Jurisdiction Ecclesiastical may Fine and Imprison in particular Causes therefore Power to Fine and Imprison in all Ecclesiastical Causes is given to the King And this he said he uttered that it might be answered 1. To which I for a time gave this Answer That it was good for the Weal-publick that the Judges at the Common-Law should interpret the Statutes within this Realm 2. It was said by me That before the Statute of 1 Eliz. no Ecclesiastical Judge may impose a Fine or Imprison for any Ecclesiastical or Spiritual Offence unless there be Authority by Act of Parliament And this was so affirmed by all the Justices Vide my Book of Presidents the Commission at large to Cromwel to be Vicegerent Afterwards in this very Term the Privy-Council sent for the Justices of the Common-Pleas only and there the Reasons of the said Resolution were largely debated and strong Opposition made hy Egerton Lord Chancellor but the Justices of the Common-Pleas remained constant in their Resolution Afterward the Council sent for the chief Justice of the Kings Bench Justice Williams Justice Crook Chief Baron Taâ—field Snig Althan and Bromly who were not acquainted with the Reasons of the said Rule of the Common-Pleas nor knew why they came before the Council And hearing the Lord Chancellor affirm That the High-Commissioners have alwayes by the Act 1 Eliz. imposed Fines and Imprisonments for exorbitant Crimes without any Conference with us or among then selves or hearing the matter debated were of Opinion with us And after at another day this
such a Custom in non Decimando for all Lay-people within the said Weild were lawful or not was the Question And to have a Prohibition it was said That though one particular man shall not prescribe in non Decimando yet such a general Custom within a great Countrey might well be as in 43 Ed. 3. 32. And the 45 Ed. 3. Custome 15. where an Abbot purchased Tenements after the Statute c. and saith That being Lord of the Town c. there was a Custom in the said Town that when Tenant cesseth for 2 years the Lord may enter c. And that his Tenant cessed for 2 years and he entred And the Rule of the Court is Because it was an usage only in that Town he was put to answer by which appears that a Custom was not good in a particular Town that perhaps might be good in a Countrey c. See 40 Ass 21. 27. 39 Ed. 3. 2. See also 7 H 6. 26. b. 16 Ed. 2. Prescription 53. Dyer 363. 22 H. 6. 14. 21 Ed. 4. 15. and 45 Ass 8. Doct. Stud. lib. 2. cap. 55 A particular Country may prescribe to pay no Tythes for Corn c. but with this Caution that the Minister hath sufficient portion besides to maintain him to celebrate Divine Service And fol. 172. it is holden That where Tythes have not been paid to Under-â—oods under 20 years growth that no Tythes shall be paid for the same And fol. 174. that such a Custome of a whole Country that no Tythes of a Lordship shall be paid is good But the Court would advise Whether such a Custom of a Town or Country be good But in anâ—ient times the Parishioners have given or procured to the Parson a Wood or other Lands c. To hold to him and his Successors in satisfaction of all Tythes of Wood in the same Parish the Parson so seized of the same that without question is a good discharge of his Tythes and if he sue for the same a Prohibition lyes I will cite an antient Judgment many years past Mic. 25 H. 3. Wilts Rot. 5. before the King at Westminster Samson Folyet brought an Attaint upon a Prohibition against Thomas Parson of Swindon because he sued him in the Spiritual Court for a Layâ—ee of the said Samson in Draycot contrary to the Kings Prohibition c. and the Parson was condemned in 20 Marks c. which agrees with the Rule and Reason of the Law continued unto this day For Presidents in Ed. 2. Ed. 1. H. 3. and King John and more antient are not to be now followed unless they agree with the Law and practice at this day Statutes having changed some and Desuetudo antiquated others There are two Points adjudged by the said Record 1. That satisfaction may be given in discharge of payment of Tythes And if the Successor of the Parson enjoy the thing given in satisfaction of the Tythes and yet sueth for Tythes in kind he shall have a Prohibition because that he chargeth his Layfee with Tythes which is discharged of them By which it doth appear that Tythes cannot be discharged and altogether taken away and extinâ— And herewith agrees the Register which is the most ancient Law-Book fol. 38. By which also it appears That Tythes may be discharged and that the matter of discharge ought to be determined by the Common-Law and not in the Spiritual Court Also by the Act of Circumspecte agatis made 13 Ed. 1. It is said S. Rector petat versus Paroâ—hianos oblationes decimas debitaâ— consuetas c. Which proves there are Tythes in kind and other Tythes due by Custom as a Modus Decimandi c. And yet it is Resolved 19 Ed. 3. Jurisdiction 28. the Ordinance of Circumspecte agatis is not a Statute and that the Prelates made the same and yet then the Prelates acknowledged That there were Tythes due by Custome which â—is a Modus Decimandi By which it appears also that Tythes by Custom may be altered to another thing See 8 Ed. 4. 14. F. N. B. 41. g. vide 3 Ed. 3. 17. 16 Ed. 3. Annuity 24. 40 Ed. 3. 3. b. and F. N. B. 152. And if the Lord of a Mannor hath alwayes holden his Mannor discharged of Tythes and the Parson had before time of memory divers Lands in the same Parish of the Gift of the Lord of which the Parson is seized at this in Fee in respect of which the Parson nor any of his Predâ—cessors ever had received any Tythes of the said Mannor If the Parson now sue for Tythes of the said Mannor the Owner of the Mannor may shew that special Matter c. And the Proof that the Lord of the Mannor gave the Lands that Tythes should never be paid at this day is good Evidence to prove the surmise of the Prohibition 19 Ed. 3. Tit. Jurisdiction 28. It is adjudged That Title of Prescription shall be 〈◊〉 in the Kings Court And therefore a Medus Lecimandi which accrues by Custam and Prescription likewise It appears 6 H. 4. cap. 6. that the Pope by his Bulls discharged divers from payment of Tythes against which the Act was made 31 H. 8. cap. 13. Possessions of Religious Persons given to the King were discharged of payment of Tythes in certain Cases 32 H. 8. cap. 7. provides all Tythes to be set as formerly except such as are discharged So 2 Ed. 6. c. 13. by which appears one may be discharged of Tythes five wayes 1. By the Law of the Realm viz. the Common-Law as Tythes shall not be paid of Coales Quarries Bricks Tyles c. F. N. B. 53. and Reg. 54. nor of the after-Pasture of a Meadow c. nor of Rakings nor of Wood to make Pales or Mounds or Hedges c. 2. By the Statutes of the Realm as 31 H. 8. 13. 45 Ed. 3. c. 3. By Priviledge as those of St. Johns of Jerusalem in England the Cistertians Temptors c. as appears 10 H. 7. 277 Dyer 4. By Prescription as by Modus Decimandi annuall recompence in satisfaction as aforesaid 5. By reall Composition as appears by the Writ cited out of the Register By all which appears That a man may be discharged of payment of Tythes as aforesaid So as now it is apparent by the Law of England both Antient and Modern that a Lay-man ought to prescribe in Modo Decimandi not in non Decimando and that in effeâ—â— agrees with Thomas Aquinas in his secunda secundae Quaest 86. ar ultimo See Doct. Stud. Lib. 2. cap. 55. fol. 164. That the Tenth Part is not due by the Law of God nor by the Law of Nature which he calls the Law of Reason And he cites John Gerson a Doctor of Divinity in a Treatise which he calleth Regulae morales viz. Solutio Decimarum Sacerdotibus est de Jure Divino quatenus inde sustenteâ—tur sed quoad tam hanc vei illam assignare aut in alios reditus commutarâ—
charged and therewith agrees 10 Ed. 3. 28. b. and the Star 22 H. 8. cap. 5. was but an affirmance of the Common-Law in that Point He that hath Toll of Men or Cattel passing over a Bridge ought to repair the same when no other is bound by Law to do it for he hath Toll to that purpose Et quisentit commodam sentire debet onus and with this agrees 14 Ed. 3. Bar. 276. Also a man may be bound to repair a Bridge ratione tenurae of certain Land but a particular person cannot be bound by Prescription for if he have not profit by the same his Ancestors Act shall not bind him But an Abbot or Corporation may be charged by Prescription and may bind their Successors Vide 21 E. 4. 28. 27 Ed. 3. 8. 22 Ass 8. 5 H. 7. 3. Yeaâ— they shall be compelled if time out of mind they have repaired it though of Alms and therewith agrees 10 E. 3. 28. So of a High-way all the Country ought to repair it but some may be bound particularly as in the Case of Bridges As he who hath Land adjoyning ought to scour and cleanse the Ditches next to the way to his Land and therewith agrees the Book 8 H. 7. 5. So of a common River all who have Passage by it ought to scour and cleanse it for it is as a common Street as it is said 17 Assi and 37 Ass 10. Pasch 7 Jacobi Regis Sir William Reades and Booth's Case In the great Case of Forgery in the Star-Chamber between Sir William Read Plaintiff and Roger Booth and Cuthbert Booth and others Defendants the Case was thus Roger Booth 38 Eliz. was Convict in that Court of publishing a Writing under Seal forged in Sir Thomas Greshams Name of a Rent charge of 100 l. out of all his Lands c. to one Markham for 99 years dated 21 year of Queen Elizabeth's Reign knowing it to be forged And afterwards the said Sir William Read exhibited the said Bill against the said Boothes and others for forging another Writing under Seal dated the 20th of Elizabeth in the said Sir Thomas Gresham's Name purporting a Deed of Feoffment of all his Lands except certain to Sir Rowland Heyward and Edward Hoogen and their Heirs in effect to the use of Markham the younger and his Heirs and for publishing the same knowing it to be forged was the Bill exhibited And upon hearing this Cause this Term these Doubts were moved upon the Star 1 Eliz. 1. If one who is Convict of publication of a Deed of eoffment or Rent-charge knowing the same to be forged again at another day forge another Deed of Feoffment or Rent-charge if he be within the Case of Felony within the Aâ—t which Doubt ariseth upon these words est-soons committed again any of the said Offences 2. The second Doubt was If a man commit two Forgeries one in 37 Eliz. the other in 38 Eliz. and he is first convicted of the last if he may now be impeached for the first 3. When Roger Booth was Convict in 38 Eliz. and after is charged with a new Forgery in 37 Eliz. If the Witnesses moving in truth that it was forged after the 〈◊〉 Conviction if the Star-Chamber hath Jurisdiction of 〈◊〉 4. When Cuthbert Booth who was never Convict of Forgery before if in truth the Forgery was done and so proved in 38 Eliz. If he might be convicted upon this Bill because the Forgery is alleadged before it was done 1 2. To the first and second Doubts It was resolved by the two Chief Justices and Chief Baron That if one be Convict of Forgery or publishing any Writing concerning Free-hold c. within the first Branch or concerning Interest or Term of Years c. in the second Branch and be convicted if afterwards he offend either against the first Branch or second that the same is Felony As if he forge a Writing concerning an Interest for Years within the second Branch and be convicted and after he forgeth a Charter of Feoffment within the first Branch et e converso that is Felony by express words of the Act. But if one forge a Writing in 37 Eliz and after he forge another in 38 Eliz. yet it is not Felony though he forge many Writings one after another for the Forgery c. which is Felony by the Act ought to be after Conviction or Condemnation of a former Writing 3. As to the third Doubt It was Resolved That the Allegation of the time by the Plaintiff in the Bill shall not alter the Offence but shall give to the Court Jurisdiction But if it appear that the Forgery or Publication was after the Sentence then the Court shall surcease 4. As to the last Point It was Resolved That the time of the Forgery is not material if it be committed before the exhibiting the Bill But if the date of such Writing supposed to be Forged had been mistaken there the Defendant could not be condemned of a Deed of another Date Pasch 7 Jac. Regis The Case of Sewers The Case was There was a Cawsey or Milstank of Stone in the River of Dee and in the City of Chester which Cawsey before the Reign of King Edward the first was Erected for the necessary maintenance of certain Mills at the end of the said Cawsey And now a certain Decree was made by certain Commissioners of Sewers for a Breach to be made by ten Poles in length in the said Cawsey and if by any Decree of the Commissioners by force of any Statute any breach may be made in that Cawsey was the Question And it was referred by Letters of the Lords of the Privy-Councel to the Chief Justices and Chief Baron who upon hearing of Councel Learned at divers dayes and good Consideration had of all Statutes of Sewers and Conferences among themselves It was Resolved as followeth 1. That the Stat. of Magna Chart. cap. 23. Quod omnâ—s Kidelli deponantur c. extended onely to Kidels viz. Open Wears for taking Fish But the first Stat. that extended to pulling down or abating any Mills Mill-Stanks or Cawseyes was 25 Ed. 3. cap. 4. which appointed onely such to be pulled down as were Erected in the Reign of King Edward the first or after But by 1 H. 4. cap. 12. upon complaint in Parliament of great damages by inhansing Mills Mill-stanks c. made before Edward the first 's Reign that Act appoints them to be surveyed and such as were found to be much inhansed to be corrected None of which Acts extend to the Case in question for that Cawsey was erected before Edw. 1. and never inhanced since the Erection And the 12 H. 4. c. 7. confirms all the said Acts. And by the 23 H. 8. c. 5. none of the said Statutes are repealed as to the Case in question for thereby the Form and Effect of the Commission of Sewers is appointed and power given to the Commissioners to survey Walls c. Fences Cawseys
receive any diminution of such Reverence and Respect in our Places which our Predecessors had We shall not be able to do You such acceptable Service as they did The state of the Question is not in statu deliberativo but in statu judiciali it is not disputed de bono but de vero non de lege fienda sed de lege lata Not to devise or frame new Laws but to inform You what Your Law of England is And it was never seen before that when the Question is of the Law that your Judges of the Law have been made Disputants with their Inferiours that daily plead before them in the several Courts at Westminster And though we are not afraid to dispute with Mr. Bennet and Mr. Bacon yet this Example being primae impressionis and your Mâ—jesty detesting Novelties We leave it to your Princely Consideration whether you will permit our answering in hoc statu judiciali But in obedâ—ence to your Majesties Command We will inform your Majesty touching the said Question which We and our Predecessors before Us have oftentimes adjudged upon Judicial Proceedings in your Courts of Justice at Westminster which Judgments cannot be reversed or examined for any Errour in Law if not by a Writ of Errour in a more High and Supream Court And that this is the antient Law of England appears by the Stat. of 4 H. 4. c. 22. And We being commanded to proceed all that was said by Us the Judges was to this effect That the Tryal de modo Decimandi ought to be by the Common-Law by a Jury of Twelve Men it appears in three Manners 1. By the Common-Law 2. By Acts of Parliament 3. By infinite Judgments and Judicial Proceedings long times past without interruption But first it is to see what is a Modus Decimandi Now Modus Decimandi is when Lands Tenements or Hereditaments have been given to the Parson and his Successors or an Annual certain Sum or other Profit alwayes time out of mind in full Satisfaction and Discharge of all Tythes in kind in such a place and such manner of Tything is now confessed by the other Party to be a good Bar of Tythes in Kind 1. That Modus Decimandi shall be tryed by the Common-Law and therefore put that which is the most common Case That the Lord of the Mannor of Dale prescribes to give to the Parson 40 s. yearly in full Satisfaction and Discharge of all Tythes growing within the said Mannor of Dale at the Feast of Easter The Parson sues the Lord of the Mannor of Dale for his Tythes of his Mannor in kind and he in Bar prescribes ut supra The Question is If the Lord of the Mannor of Dale may upon that have a Prohibition for if the Prohibition lye then the Ecclesiastical Court ought not to try it 1. First The Law of England is divided into Common-Law Statute and Customs and therefore the Customs of England are to be tryed by the Tryal which the Law of England appoints 2. Prescriptions by the Law of the Holy Church and by the Common-Law differ in the times of Limitation and therefore Prescriptions and Customs of England shall be tryed by the Common-Law See 20 H. 6. f. 17. 19 E. 3. Jurisdiction 28. The Bishop of Winchester brought a Writ of Annuity against the Arch-Deacon of Surrey and declared That he and his Successours were seized by the Hands of the Defendant by Title of Prescription and the Defendant demanded Judgment is the Court would hold Jurisdiction between Spiritual Persons c. Stone Justice Be assured That upon Title of Prescription we will there hold Jurisdiction And upon that Wilby Chief Justice gave the Rule Answer Upon which it follows That if a Modus Decimandi which is an Annual sum for Tythes by Prersciption comes in Debate between Spiritual Persons that the same shall be tryed here 32 E. 2. Jurisdiction 26. There was a Vicar who had onely Tythes and Oblations and an Abbot claimed an Annuity or Pension of him by Prescription and it was adjudged That the same Prescription though between Spiritual Persons shall be tryed here Vide 22 H. 6. 46. 47. 3. See the Record 25 H. 3. cited in the Case of Modus Decimandi before and see Register fol. 38. 4. See the Stat. of Circumspecte agatis Decimae debitae seu consuctae which proves that Tythes in kind and a Modus by Custom c. 5. 8 E. 4. 14. and F. N. B. 41. g. A Prohibition lyes for Lands given in discharge of Tythes 28 E. 3. 97. a. There was a Suit for Tythes and a Prohibition lyes 6. 7 E. 6. 79. If Tythes are sold for Money by the Sale the Things Spiritual are made Temporal And so in the Case de modo Decimandi 42 E. 3. 12. agrees 7. 22 E. 3. 2. Because any Appropriation is mixed with the Temporalty otherwise of that which is meer Temporal So it is of reall Composiâ—ion where the Patron ought to joyn Vid. 11 H. 4. 85. 2. Secondly By Acts of Parliament 1. The said Act of Circumspecte agatis that gives power to the Ecclesiastical Judge to sue for Tythes first due in Kind or by Custom viz. Modus Decimandi So as by that Act though the Yearly Sum soundeth in the Temporalty which was paid by Custom in discharge of Tythes yet because the same comes in the place of Tythes and by Constitution the Tythes are changed into Money and the Parson hath not any remedy for the same which is the Modus Decimandi at the Common-Law For that cause the Act is clear that the same was a Doubt at the Common-Law And the Stat. of Articuli Cleri cap. 1. If that corporal punishment be changed into poenam pecuniariam for that Pain Suit lyes in the Spiritual Court For which see Mich. 8 H. 3. Rot. 6. in Thesaur And by the 27 H. 8. cap. 20. It is Enacted That all Subjects of the Realm according to the Ecclesiastical Law and after the laudable Usages and Custom of the Parish c. shall yield and pay his Tythes c. and for substraction thereof may by due process c. compell him to yield the Duties and with that in effect agrees 32 H. 8. c. 7. By the 2 Ed. 3. c. 13. it is Enacted That all the Kings Subjects shall henceforth truly and justly without Fraud c. divide c. and pay all their Predial Tythes in their proper kind as they rise c. And always when an Act of Parl. commands or prohibits any Court be it Spiritual or Temporal to do any thing Spiritual or Temporal if the Stat. be not obtained a Prohibition lyes as upon the Stat. de artic super chart cap. 4. Quod communio Placita non tenentur in Scaccario A Prohibition lyes to the Court of Exchequer if the Barons hold a common Plea there as appears in the Register 187. b. So upon the Stat. West 2. Quod inquisitioâ—â—es quae magnae sunt examinationis non
The words whereof are Saving c. to the King c. all his Right c. of primer seizin and relief c. for Tenure in Socage or of the nature of Tenure in Socage in chief as heretofore hath bin used But there was no Custom before the Act for the King to have primer seizin c. Another President was in Pasch 37 Eliz. in the Book of Orders fol. 444. where the Case was That William Allet was seized of certain Lands in Pitsey called Lundsey holden of the Queen in Socage Tenure in chief and by Deed covenanted to stand seized to the use of his wife for life and afterwards to the use of Richard his younger Son in Fee and dyed and all was found by Office and it was Resolved ut supra But the Doubt oâ— the Case at Bar was because Henry the Feoffor had a Reversion in Fee which descended to the said William his eldest Son Trin. 7 Jacobi Regis The Case of the Admiralty A Bâ—ll was preferred in the Star-Chamber against Sir Richard Hawkins Vice-Admiral of the County of Devon and was charged that one William Hull and others were notorious Pyrates upon the High Seas and shewed in certain what Pyracy they had committed That the said Sir Richard Hawkins knowing the same did receive them and abet comfort them and for Bribes suffered them to be discharged And what Offence that was the Court referred to the consideration of the two Chief Justices and Chief Baron who heard Councel of both sides divers days at Sergeants Inne And it was Resolved by them 1. That the Admirals by the Common-Law ought not to meddle with any thing done within the Realm but onely with things done upon the Sea and that appeareth fully by the 13 R. 2. cap. 5. and therewith agrees 2 H. 4. c. 11. and 15 H. 2. c. 3. So also 2 H. 5. c. 6. 5 Eliz. c. 5. and this agrees with Stamf. fol. 51. 8 Ed. 2. Coron 399. See Plo. Com. 37 b. 2 R. 3. 12. 30 H. 6. 6. by Prisoit 2. It was Resolved That the Statutes are to be intended of a Power to hold Plea not of a Power to award Execution for notwithstanding the said Statutes the Judge of the Admiralty may do Execution within the Body of the County And therefore 19 H. 6. 7. the Case was W. T. at Southwark affirmed a Plaint of Trespass in the Admiralty against J. B. of a Trespass done upon the High-Sea Whereupon J. B. was cited to appear at the common day next ensuing at which day the said J. B. made default And according to the usage of the Court the said J. B. was amerced to 20 Marks Whereupon Command was made to P. as Minister of the said Court to take the Goods of the said J. B. to make agreement with the aforesaid W. T. by force of which he for the said 20 Marks took 5 Cowes and 100 Sheep in Execution for the said Money in the County of Ieicester And there it is holden by Newton and the whole Court That the Statutes restrain the power of the Court of Admiralty to hold Plea of a thing done within the body of the County but they do not restrain the Execution of the same Court to be served upon the Lands In which Case these Points were Resolved 1. Though the Court of Admiralty is not a Court of Record see Brooks Error 77. acc yet by Custom of the Court they may amerce the Defendant for his default by their discretion 2. That they may make Execution for the same of the Goods of the Defendant in corpore Comitatus and if he have not Goods may arrest his Body But the great question between them was If a man commit Pyracy upon the Sea and one knowing thereof receive and comfort the Defendant in the Body of the County if the Admiral and other the Commissioners by the Act 28 H. 8. cap. 16. may proceed by Indictment and Conviction against the Receiver and Abetter the Offence of the Accessary having his beginning within the Body of the County And it was Resolved by them That such a Receiver and an Abetter by the Common-Law could not be indicted and convicted because the Common-Law cannot take Cognizance of the Original Offence being done out of the Jurisdiction of the Common-Law and where it cannot punish the Principal it cannot punish the Accessary And therefore Coke Chief Justice reported to them a Case which was in Suffolk 28 Eliz. where Butler and others upon the Sea next to the Town of Iaystoff robbed divers of the Queens Subjects of their Goods which they brought into Norfolk and there were apprehended and brought before Me then a Justice of Peace in the same County and upon Examination they confessed a cruel and barbarous Pyracy and that the Goods then in their Custody were part of the Goods which they had so robbed And I was of Opinion that in that Case it could not be Felony punishable by the Common-Law because the Original Act was not offence whereof the Common-Law taketh knowledge and then the bringing them into the County could not make the same Felony punishable by our Law Yet I committed them to the Gaol untill the coming of the Justices of the Assizes And at the next Assizes the Opinion of Wray Chief Justice and Perian Justices of Assize was agreeing with Me ut supra and thereupon they were committed to Sir Robert Southwel then Vice-Admiral for those Countieâ— and this in effect agrees with Lacies Case which see in my Reports cited in Bingham's Case 2 Rep. 93. and in Constables Case C. 5. Rep. 107. See Pyracy was Fâ—lony 40 Ass 25. by Schard where a Captain of a Ship with some English-men robb'd the Kings Subjects upon the High Seas and the saith 't was Felony in the Norman Captain and Treason in the English-men which is to be understood of Petit-Treason and therefore in that Case the Pyrates being taken the Norman Captain was hang'd and the English drawn c. hang'd as appears by the same Book See Stamford 10. Trin. 7 Jac. Regis In the Common-Pleas Pettus and Godsalve's Case In a Fine levyed Trinity Term Anno quinto of this King between John Pettus Esq Plaintiff and Richard Godsalve and others Deforceants of the Mannor of Castre c. in Norfolk where in the â—hird Proclamation upon the Foot of the Fine the said Proclamation is said to be made in the sixth year of the King that now is which ought to have been Anno quinto And the fourth Proclamation is altogether left out because upon view of the Proclamations upon Dorsis upon Record not Finis ejusdem Termini per Justiciarios remaining with the Chirographer c. it appeareth the said Proclamations were duly made therefore it was adjudged that the Errours aforesaid should be amended and made to agree as well with the Prâ—clamation upon Record of the Fine and Entry of the Book as with the other Proclamations in Dorsis c. And
Law The Case was often argued at Bar and now this Term it was argued at the Bench by the Justices and therein these Points were resolved 1. That the first part of the Custom was absurd and repugnant but it extends not to the Case for the last part of the Custom which concerns the cutting down of the Trees concerns the Point in question and so the first part of the Custom is not material And when it was objected that the pleading that the Messuage of the Plaintiff was in decay was too general as appears by the Book 10 Ed. 4. 3. To that it was answered by Cook Chief â—ustice That the said Book proved the pleading in the Case at Bar was certain enough and therewith agrees 7 H. 6. 38. 34 H. 6. 17. 2. It was Resolved That in this Case without question there needs not to alleadge more certainty for the Copyholder doth not here take it according to the Custom but the Lord of the Mannor cuts it down and preventeth the Copyholder of his benefit and therefore he needeth not to shew any decay at all but onely for increasing of Damages for the Lord does the wrong when he cuts down the Tree which should serve for Reparations 3. It was Resolved That of Common-Right as a thing incident to the Grant the Copyholder may take House-bote Hedge-bote and Plough-bote upon his Copy-hold Quia concesso uno conceduntur omnia sine quibus id consistere non potest And with this agrees 9 H. 4. Wast 59. But the same may be restrained by Custome 4. It was Resolved That the Lord cannot take all the Timber-Trees but he ought to have sufficient for Reparation of the Customary Houses and for Plough-bote c. for otherwise great Depopulation will follow And it is to be understood that Bote being on old Saxon Word hath two significations First compensatio criminis as Frithbote signifies to be discharged for giving amends for breach â—f the Peace Manhote to be discharged of amends for the death of a man And secondly for Reparation as Bridgebote Burghbote Castlebote Parkbote c. And it is to be known that Bote and Estovers are all one And Estover is derived of the French Word Estover i. e. fovere i. e. to keep warm cherish c. And there are four kinds of Estovers viz. First Arandi Secondly Ardendi Thirdly Construendi And fourthly Claudendi viz. Ploughbote Firebote Housebote and Hedgebote 5. It was Resolved That the Copyholder shall have a general Action of Trespass against his Lord Quare clausum fregit arborem suam succidit For Custome hath fixed it to his Estate against his Lord. And the Copy-holder in this Case hath as great an Interest in the Timber Trees as he hath in his Messuage which he holds by Copy And if the Lord break or destroy the House without question the Copyholder shall have an Action of Trespass against his Lord Quare domum fregit and by the same Reason for the Timber-Trees which are annexed to the Land and which he may for Reparation of his Messuage or else it cannot stand See Trin. 40 Eliz. Rot. 37. in B. R. between Stebbing and Grosenor See Taylor 's Case in the Fourth Part of my Reports and see 5 H. 4. 2. 2 H. 4. 12. 2 E. 4. 15. 1 H. 6. 4. 7 H. 4. 15. 19 H. 6. 34. 11 H. 4. 28. 11 H. 4. 23. 21 H. 7. 14. b. acc 35 H. 6. 24. 30 H. 6. Tresp 10. c. 21 H. 7. 15. 11 H. 4. 23. See Fitz. Trespass ultimo in the Abridgement And afterwards the same Term Judgment was given on the principal Case for the Plaintiff Pasch 8 Jacobi In Communi Ranco The Parishioners of St. Alphage in Canterbury by Custome ought to choose the Parish-Clerk whom they chose accordingly The Parson by colour of a new Canon made at the Convocation in the Year of the King that now is which is not of force to take away any Custome drew the Clark before Dr. Newman Officiall of the Arch-Bishop of Canterbury to deprive him upon the Point of right Election and for other Causes And upon that it was moved at the Bar to have a Prohibition And upon hearing of Dr. Newman and himself and his Councel a Prohibition was granted by the whole Court because the Party chosen is a meer Temporal Man And the means of choosing him viz. the Custome is also meerly Temporal So as the Official cannot deprive him but upon occasion the Parishioners may displace him And this Office is like that of a Church-Warden who though they be chosen for two years yet for cause they may displace them as is held in 26 H. 8. 5. And though the Execution of the Office concerneth Divine Service yet the Office it self is meer Temporal See 3 E. 3. Annuity 30. 18 E. 3. 27. And it is to be known that the deprivation of a man of a Temporal Office or Place is a Temporal Thing Upon which no Appeal lyes by the 25 H. 8. but an Assize as in 4 Eliz. Dyer 209. And therewith agrees the Book 8 Ass Sirases Case But if a Dean of a Cathedral Church be deprived before the Commissioners of the King he may appeal to the Delegates within the said Act 25 H. 8. For a Deanery is a Spiritual Promotion and not Temporal And before that Act in such Case the Appeal was to Rome immediately Mich. 5 Jacobi Regis In Banco Regis Prichard and Hawkin's Case John Prichard brought an Action upon the Case against Robert Hawkins for Slanderous Words publish'd the last Day of August 3. Jacob. Viz. That Prichard which serves Mistriss Shelley did murder John Adam's Child Quandam Isabellam Adams modo defunct filia cujusdam Johannis Adams de c. innuendo Upon which a Writ of Errour was brought in the Exchequer-Chamber upon a Judgment given for Prichard in the Kings-Bench and the Judgment was reversed in Easter Term 7 Jac. because it doth not appear that Isabel was dead at the time of speaking the words for tunc defunct ought to have bin in stead of modo defunct Pasch 8 Jac. In Banco Regis Dison and Bestney's Case Humphry Dyson said of Nicholas Bestney a Councellor at Law of Grays-Inne Thou a Barrester Thou art no Barrester Thou art a Barretor Thou wert put from the Bar and darest not shew thy self there Thou study the Law thou hast as much Wit as a Daw. Upon Not Guilty pleaded the Jury found for the Plaintiff and gave 23 l. Damages upon which Judgment was given and upon Writ of Errour in the Exchequer-Chamber the Judgment was affirmed Pasch 8 Jac. Regis In Banco Regis Smith and Hill's Case Noah Smith brought an Action of Assault and Battery against Walter Hill in the Kings-Bench which began Pasch 7 Jac. Rot. 175. Upon Not Guilty pleaded a Verdict and Judgment for the Plaintiff and 107 l. given for Damages and Costs In a Writ of Errour in the Exchequer Chamber the Errour was
Law of what nature soever Therefore when one Captain Lee made suit to the King to have an Office to inventory the Goods of those that dyed Testate or Intestate It was Resolved by my Lord Chancellor and my Self That such Grant shall be utterly void being both against the Common-Law and the Statute 21 H. 8. In like manner when another sued to have the Registring of Birth-dayes and the time of death c. So Mich. 19 Jac. To make a New Office in the Kings-Bench onely for making Lattitats was resolved void So Littletons Suit to name an Officer to be a Gen. Reg. c. But the Suit was rejected notwithstanding the fair Pretences of it by the two Chief Justices and others See Hill 12 Jac. Regis 2. Secondly It was Resolved That it was inconvenient for divers Causes 1. For a private man to have private ends 2. The numbring of Strangers by a private man would inâ—er a Terrour and other Kings and Princes will take offence at it 3. It is to be considered what breach it will be to former Treaties 3. As to the third It may be performed without any Inconvenience and so it was divided by the Lord Burleigh and other Lords of the Councel 37 Eliz. To write Letters to the Mayors Bayliffs c. of every City Borough c. where any strangers are resident to certifie how many and of what quality c. which they are to know in respect of their Inhabitants c. and this may be done without any Writing which being shewn to the Lords was by them well approved and the Suits utterly disallowed Decemb. 3. Anno 3 H. 8. Commission was granted to divers to certifie the number of Strangers Artificers c. within London and Suburbs according to the Statutes See Candish Case 29 Eliz. 13 Eliz. A Grant of an Office to Thomas Knivâ—t to examine his Majesties Auditors and Clerks of the Pipe c. Resolved by the Court to be against Law for it belongs to the Barons who are Judges 25 Eliz. A Grant of an Office to Thomas Lichfield to examine all Deceits c. of the Queens Officers for 8 years Resolved to be void Sub-poena's in Chancery belonged antiently to the Six Clerks Queen Elizabeth granted the same to a particular man Affidavits Filing and keeping belonged to the Register King James granted them to a particular man So the erecting and putting down Innes did belong to the Justice of Peace the same King granted it to a particular man So likewise the taking of Depositions c. The Office of Alneger granted by the King to Simon Darlington and the Fees limited The Drawing Ingrossing and Writing all Licences and Pardons granted to Edward Bacon with former Fees and a Restraint to all others The Spa Office granted to Thomas George and others during life with the Fee of 2 s. and a restraint to others The Office of making and Registring all manner of Assurances and Policies c. granted to Richard Gandler Gent. with such Fees as the Lord Mayor and others should rate and a Restraint to others c. The Office of writing Tallies and Counter-Tallies granted to Sir Vincent Skinner The Office of ingrossing Patents to the Great Seal with encrease of Fees granted to Sir Richard Young and Mr. Pye Sed de hoc quaere Sir Stephen Proctor's Case In an Information in the Star-Chamber against Stephen Proctor Berkenhead and others for Scandall and Conspiracy against the Earl of Northampton and the Lord Wooton At the Hearing of the Case were present eight Lords viz. the Chief Baron the two Chief Justices two Bishops one Baron Chancellor of the Exchequer and the Lord Chancellor And the three Chief Justices and the Temporal Baron condemned Sir Stephen Proctor and fined and imprisoned him But the Lord Chancellor the two Bishops and the Chancellor of the Exchequer acquiâ—ted him And the Question was if Sir Stephen Proctor shall be condemned or acquitted And the matter was referred to the two Chief Justices calling to their assistance the Kings Learned Councel And first they Resolved That this Question must be determined by the Presidents of the Court of Star-Chamber that Court being against the Rule and Order of all Courts For in all other Courts if the Justices are equally divided no Judgment can be given So also is it in the Parliament and therefore this course must be warranted by the Custom of the Court. And as to that two Presidents onely were produced viz. One in Hillary Term 39 Eliz. Gibson Plaintiff and Griffith and others Defendants for a Ryot where at Hearing 8 being present 4 gave Judgment that the Defendants were guilty and 4 â— contra and no Sentence of Condemnation was ever entred because the Lord Chancellor was one of the 4 that acquitted them The other was in Hillary 45 Eliz. in an Information against Katherine and others for Forging a Will c. where 4 finding the Defendants guilty of Forgery and 4 onely of Misdemeanour whereof the Lord Chancellor was one Sentence was entred according to the Chancellors Voyce and no other President could be found in this Case as I reported this Term. Concerning Benevolence Note The Exaction under the good Name of Benevolence began thus When King Edw. the 4th had a Subsidy granted him by Parl. in the 12th year of his Reign because he could have no more by Parl and with a Parl. he could not have a Subsidy he invented this Devise wherein observe 3 Things 1. The Cause 2. The Invention 3. The Success 1. The Duke of Burgundy who marryed Edw. the 4th Sister sollicited the King to joyn in War with him against the French King whereto he easily consented to be revenged of him for aiding the Earl of Warwick c. And this was the cause 2. The Invention was The King called before him several times many of his wealthiest Subjects to declare to them his Necessity and Purpose to levy War and demanded of each of them a Sum of Money which by the King 's extraordinary courtesie to them they very freely yielded to Amongst the rest there was a Rich Widow of whom the King merily asked what she would give him for maintenance of his Wars By my Faith quoth she for your lovely Countenance sake you shall have 20 l. which being more than the King expected he thanked her and vouchsafed to kiss her Upon which she presently swore he should have 20 l. more 3. The Success was That where the King called this a Benevolence yet many of the People did much grudge at it and called it a Malevolince Primo Ed. 5. The Duke of Buckingham in Guild-Hall London among other Things inveighed in his Speech against this Taxation and 1 R. 3. c. 2 a Statute is made against it 6 H. 7. The King declaring in Parl that he had just cause of War against the French King desired a Benevolence according to the Example of Edw. 4. and publish'd That he would by their open Hands measure their
Benevolent Hearts By this means he collected great Sâ—ms of Money but with some grudge 11 H. 7. ca. 20. An Act was made for levying that Benevolence 20 H. 7. A Commission to levy what was granted 11 H. 7. 15 H 8. A Commission under the Great Seal called A Commission of Anticipation 16 H. 8. For Warre with Fraâ—ce a Benevolence levyed with great Curses against the Councel for it was for a sixth part of the value in Money or Plate against the Subjects good-will 26 H. 8. Another Benevolence levyed by Commission against the Subjects Will But if the Subjects will of their free Will give the King any Moneys this is not prohibited by any Stature This is proved by the 11 H. 7. c. 18. Feb. Anno 40 Eliz. Resolved by all the Justices and Barons That a free Grant to the Queen without coertion is lawful and accordingly they granted the Queen Quod not a hene Quia c. Pasch 12 Jac. Regis The Case of Dungannon in Ireland being a New Corporation was thus The King Constituted the Town of Dungannon to be a Free Borough Et ulterius volumus c. quod Inhabitantâ—s Villae praedictae sint unum corpus corporatum per nomen Praepositio 12 Burgensium Communiâ—atis Dungannon c. Et quod ipsi praedicti Praepositi Burgenses successores sui habeant potestaten eligendi duos Burgenses c. ad Parl. c. And the Doubt was If this Grant of Election of Burgesses of Parliament were good because it was granted but to parcel of the body viz. the Provost and Burgesses and not to the Commonalty And the Chief Baron thought this being but a Nomination it was sufficient to make the Provost and Burgesses onely to have it but this was denyed by all Justices and Barons For the power to Elect Burgesses is an Inheritance which the Provost and Burgesses are not capable of and ought to be vested in the entire Corporation And so it was Resolved by all That such a Grant made by the King should be void for the Inhabitants have not Capacity to take an Inheritance as in 15 Ed. 4. to have Common And Littleton saith in his Chapter of Burgage That the Burroughs which send Burgesses to Parliament were the most antient and chief Cities c. So that it shall be intended that at first they were incorporate Also Plus valet saepenumero vulgaris consuetudo quam regalis concessio But it was Resolved by Hâ—bbard Tanfield Altham Wiâ—th Nicols and Haughton that Quod Volumus was a good word of Grant as Pigot was of Opinion 21. Edw. 4. and this shall be implyed a Grant to all the Corporation that the Provost and Burgesses shall Elect c. And regularly when the Grant is indefinite viz. First Concedimus an incertain thing ulterius volumus quod Praepositus Burgenses Successores sui eligerint This shall be within the first Concedimus to all the Body But the Chief Justice of England and Dodderidge thought the contrary Note All the New Corporations were of the same Form and in none of them is any Clause to Elect New Burgesses so that when the modern Burgesses dye the power to Elect Burgesses is gone Mich. 12 Jacobi Regis A Question was moved to the Chief Baron and Justices of Sergeants Inn in Chancery-Lane That if a Felon be convict either by Verdict or Confession if immediatly by his Conviction his Goods and Chattels be forfoited And it was said That if the Felon after Conviction pray his Clergy he then shall clearly forfeit his Goods and Chattels for Quodam modo this is a Flight because refusing the Common-Law he flyes to Priviledge of Holy Church But it was Resolved by the chief Baron and Justices That immediatly by his Conviction his Goods and Chattels are forfeited and the praying of his Clergy is not any Forfeiture and with this agrees Stamf. sol 192. a. and also 1 R. 3. And of the same Opinion was the Chief Justice and Justices of Sergeants Inne in Fleetstreet Vid. Trin. 41 Eliz. 332. Mich. 12 Jacobi Regis Anne Hungate's Case in Cam. Stell In this Term a great Case was heard and determined in the Star-Chamber between Sir Henry Day who dyed pendent the Bill and Anne his Wife and Nicholas Bedingfield Esque and Elizabeth his Wife Plaintiffs And Anne Hungate Widow Sir Robert Winde Henry Branthwait Esque Thomas Townesend Esq Thomas Blomfield Gent. and George Min Gent Defendants The Case was thus Henry Hoogan Esq being seized of the Mannor of Hamonds and of divers Lands of East-Bradenham c. in Norfolk in Fee by Deed enfeoffed them in the use of the said Anne who took Hungate to Husband and had Issue by him a Son and a Daughter and he dyed Anne obtained the Wardship of the Son and after when the Son was of the Age of 21 years wanting onely 6 Weeks by Dedimus potestatem directed to Sir Robert Winâ—e Henry Branthwayt then Feoâ—ary and Thomas Townesend they took Cognizance of a Fine of the said Son being of the Age aforesaid and sick And the Bill charged them all with Practice in procuâ—ing the said Son to acknowledge the said Fine they knowing him under Age and in Wardship as aforesaid but there was no practice used by any of the Defendants but the Son of his own good-will levyed it And by Indâ—nture the use was limited to his Mother the said Anne and her Heirs with power of Revocation by the Son upon tender of 10 s. And this was in consideration that the Mother had paid the Debts of his Father which were very great and had obtained the Wardship of him and to confirm her Joynture And that his Mother if she pleased might give it to his Brother by Hungate who was but of half-bloud And it appeared the Mother knew the Son to be within Age but the Commissionars were ignorant of it nor did they send for the Church-Book in which his Age did appear being in the same Parish And the Plaintiffs Councel prayed that the Defendants should be punished for their Misdemeanour And that the Women Plaintiffs who were Cosins c. Heirs to the said Son of the entire bloud should be dis-inherited by the said Fine To which it was Resolved by the two Chief Justices and chief Baron That there was not any Crime punishable by the Law in this Case for the Judges of the Law and of this Court may punish Offences c. but they cannot create Offences nor do as Hannibal did to make his Way over the Alps when he could find none for Judicandum enim legibus ubi non est lex ibi nec est transgressio And therefore if a Fine levyed by an Infant be not Reversed during his Minority 't is unavoidable in Law because the Infants Age is to be tryed Non testium testimonio non juratorum veredicto sed Judicis inspectione solummodo F. N. B. sol 21. And for this it was Resolved by the said