the First by his Letters Patents Dated November the Third of his Reign reciteth Cum Praelati Magnates tota communitas quandam novam consuetudinem nobis haeredibus nostris de Lanis Pellibus Coriis viz. de sacco Lanae dimidium Marcae de 300 pellibus dimidium Marcae de lasto Corii 13 s. 4 d. concesserint c. whence Sir Edward Coke rightly observes the Grant was to Edward the First himself and his Heirs from the words Nobis haeredibus nostris in the Patent Coke Mag. Chart. c. 30. f. 58 59. 2. That no such Custome was before from the words quandam novam custumam and some other pertinent Observations he makes And he cites the year of the Letters Patents truly to be the Third year of Edward the First which was the year of the Statute of Westminster the First but he makes the Date of the Letters Patents to be November the Tenth of that year which in truth was November the Fifteenth He cites likewise the Patent Rolls of Edward the First for it M. 1. but omits the n which is n. 1. also He also cites the Fine Roll of 3 E. 1. to the same purpose M. 26. Rot. Pat. 3 E. 1. M 1. n. Rot. finium 3 E. 1. M. 24. But his citation differs in remarkable things from the Patent Roll 3 E. 1. which runs Cum Praelati Magnates tota Communitas Mercatorum Regni nostri and not tota Communitas nobis concesserint quandam novam consuetudinem de lanis pellibus Coriis tam in Anglia quam in Hibernia Wallia Regnum nostrum exeuntibus which are omitted also in Sir Edward Coke in perpetuum nobis haeredibus nostris capiendam sicut in forma inde provisa communiter concessa plenius continetur and the particulars are mentioned of the Grant It appears by the Preface of it the Statute of Westminster the First was made 3 E. 1. A son primer Parliament general apres son coronment lendemaine de la clause de Paschae that is on the Munday of Easter utas in the Third year of his Reign so as there was no Parliament of Edward the First before this his Third year The antiquae custumae upon Wools Woolfells and Leather were granted to Edward the First by Parliament as appears both by the Patent and Fine Rolls of 3 E. 1. Dated November the Fifteenth which must be by a Parliament before the Date of the Letters Patents whence it follows they were granted by the Statute of Westminster the First or by the same Parliament and probably therefore it was by a Rider as Proviso's now usually are annex'd by tacking to the Bill or Law of Westminster the First and from it after casually lost So as it is now clear That Antiqua Custuma upon Woolls Pells and Leather was not by the Common Law but by Act of Parliament 3 E. 1. And if any scruple remain'd of a power at Common Law to charge Merchandise in any other manner the Act of the Twelfth of the King which grants him Tunnage and Poundage clears it from question in these words And because no Rates can be imposed upon Merchandise Imported or Exported by Subjects or Aliens but by common consent in Parliament it Enacts that Rates upon Merchandise shall be according to the Book of Rates establisht by the Act c. Vpon this Supposition That by the Common Law Merchandise might be charged with Custome as Woolls Pells and Leather were Queen Mary by her Absolute Prerogative Dyer 1 Eliz. f. 165. b. laid an Imposition of Fourteen pence upon a Cloath Transported by Natives and One and twenty pence by Strangers as appears in Dyer 1 Eliz. And upon the same ground King James about the Twelfth of his Reign laid an Imposition upon Currans but these obtain'd not for Law and so possibly like Impositions might be laid on Wax or any other Merchandise but no such were laid de facto unless by the Grants of Tunnage and Poundage to the Kings for life by Parliament Nor is it a true Inference That if the Antiquae Custumae were at Common Law as every thing in one sense is taken for Common Law if it be Law when it appears not to be by Act of Parliament therefore it was by Arbitrary Imposition of the King for it might be by Act of Parliament not extant as this of 3 E. 1. and in truth most of the Common Law cannot be conceived to be Law otherwise than by Acts of Parliament or Power equivalent to them whereof the Rolls are lost for alwaies there was a power and practise of making new Laws 1. But it is not pretended that any Custome is laid upon Wax in any manner by the Common Law nor by Statute but by that of Tunnage and Poundage the Twelfth of this King 2. This Seisure and Arrest appears by the Special Verdict to be for Poundage according to the Book of Rates by the Statute made the Twelfth of the King cap. 4. which gives Two shillings to the King for every hundred weight of Wax and therefore not for any other Duty 3. At the Common Law wreck'd Goods as these are found to be could not be chargeable with Custome if other Goods were for at the Common Law all wreck was wholly the Kings and he could not have a small Duty of Custome out of that which was all his own West 1. c. 4. Vid. Stat. And by Westminster the First where wreck belongeth to another than to the King he shall have it in like manner that is as the King hath his It remains clear then That Wax is a Merchandise subject to pay the duty of Poundage by and according to the Act of the Twelfth of this King and not otherwise The Question then before us being narrow'd will be Whether Wax or any other Goods subject to the Duty of Tunnage and Poundage by the Act and Book of Rates the Twelfth of the King ship'd in Forraign parts as Merchandise not intended for England but for other Forraign parts proving to be wreck and cast by the Sea upon a Mannor to which wreck belongs by Prescription ought to answer the Duty of Tunnage and Poundage as if Imported as Merchandise in Ships and not as wreck for if any kind of Merchandise wreck'd be subject to the Duty all Merchandise mentioned in the Book of Rates is To resolve this Question I shall observe That all wreck cast on shoar in the Kingdom must be conceived as Goods Imported for though Goods Exported may be wreck'd at Sea equally as Goods to be Imported yet Goods Exported if wreck'd are not cast upon any shoar of the Kingdom as wreck under the notion of being Exported but under the notion of being some way Imported So as in this Question of wreck to speak of any Goods or Merchandise quatenus Exported will be useless And because the Resolution of this Case depends upon the words and intendment of the Act
for the Damages in Debt though by several Originals But it may be said That in a Writ of Error in this kind the foundation is destroy'd and no such Record is left Drury's Case 8. Rep. But as to that in Drury's Case 8. Rep. an Outlawry issued and Process of Capias upon the Outlawry the Sheriff retorn'd Non est inventus and the same day the party came into Court and demanded Oyer of the Exigent which was the Warrant of the Outlawry and shew'd the Exigent to be altogether uncertain and insufficient and consequently the Outlawry depending upon it to be null And the Court gave Iudgment accordingly though the Record of the Outlawry were never revers'd by Error which differs not from this Case where the Order of Commitment is Iudicially declar'd illegal though not quasht or revers'd by Error and consequently whatever depends upon it as the Fine and Commitment doth and the Outlawry in the former Case was more the Kings Interest than the Fine in this The Chief Justice deliver'd the Opinion of the Court and accordingly the Prisoners were discharg'd Hill 23 24 Car. II. B. C. Rot. 615. Edmund Sheppard Junior Plaintiff In Trespass Suff. ss against George Gosnold William Booth William Haygard and Henry Heringold Defendants THE Plaintiff declares for the forcible taking and carrying away at Gyppin in the said County the Eight and twentieth of January 22 Car. 2. Five and twenty hundred and Three quarters of a hundred of Wax of the said Edmunds there found and keeping and detaining the same under Arrest until the Plaintiff had paid Forty nine shillings to them the said Defendants for the delivery thereof to his Damage of 40 l. The Defendants plead Not Culpable and put themselves upon the Country c. The Jury find a Special Verdict 1. That before the Caption Arrest and Detention of the said Goods and at the time of the same Edmund Sheppard the younger was and is Lord of the Mannor of Bawdsey in the said County and thereof seis'd in his Demesne as of Fee and that he and all those whose Estate he hath and had at the time of the Trespass suppos'd in the said Mannor with the Appurtenances time out of mind had and accustomed to have all Goods and Chattels wreck'd upon the high Sea cast on shore upon the said Mannor as appertaining to the said Mannor 2. They further say The said Goods were shipped in Forraign parts as Merchandise and not intended to be imported into England but to be carried into other Forraign parts 3. That the said Goods were wreck'd upon the high Sea and by the Sea-shoar as wreck'd Goods cast upon the Shoar of the said Mannor within the same Mannor and thereby the said Edmund seis'd as wreck belonging to him as Lord of the said Mannor They further find That at the Parliament begun at Westminster the Five and Twentieth of April the Twelfth of the King and continued to the Nine and Twentieth of December following there was granted to the King a Subsidy call'd Poundage Of all Goods and Merchandises of every Merchant natural born Subject Denizen and Alien to be exported out of the Kingdom of England or any the Dominions thereto belonging or imported into the same by way of Merchandise of the value of Twenty shillings according to the particular Rates and Values of such Goods and Merchandises as they are respectively rated and valued in the Book of Rates intitled The Rates of Merchandise after in the said Act mentioned and referr'd to to One shilling c. Then they say That by the Book of Rates Wax inward or imported every hundred weight containing One hundred and twelve pounds is rated to Forty shillings and hard Wax the pound Three shillings four pence They find at the time of the Seisure of the Goods That the Defendants were the King's Officers duly appointed to collect the Subsidy of Poundage by the said Act granted and that for the Duty of Poundage not paid at the said time they seis'd and arrested the said Goods until the Plaintiff had paid them the said Fine of Forty nine shillings But whether the Goods and Chattels aforesaid so as aforesaid wreck'd be chargeable with the said duty of Poundage or not they know not And if not They find the Defendants Culpable and Assess Damages to the Plaintiff to Nine and forty shillings ultra misas custagia And if the said Goods be chargeable with the said Duty they find the Defendants not Culpable It is clear Dyer 31 H. 8. 43. b. n. 22. That formerly in the times of Henry the Eighth Queen Mary and Queen Elizabeth it was suppos'd that some Customes were due by the Common Law wherein the King had an Inheritance for certain Merchandise to be transported out of the Realm and that such Customes were not originally due by any Act of Parliament so is the Book 31 H. 8. It was the Opinion likewise of all the Justices in the Chequer Chamber when Edward the Sixth had granted to a Merchant Alien That he might Transport or Import all sorts of Merchandise not exceeding in the value of the Customes and Subsidies thereof Fifty pounds paying only to the King his Heirs and Successors pro Custumis Subsidiis oneribus quibuscunque of such Marchandises so much and no more as any English Merchant was to pay That this Patent remained good for the old Customes Dyer 1 Mar. f. 92. a. n. 17. wherein the King had an Inheritance by his Prerogative but was void by the Kings death as to Goods customable for his life only by the Statute of Tunnage c. So upon a Question rais'd upon occasion of a new Imposition laid by Queen Mary upon Clothes Dyer 1 Eliz. f. 165. a. b. n. 57 the Judges being consuited about it 1 Eliz. The Book is Nota That English Merchants do not pay at Common Law any Custome for any Wares or Merchandises whatever but Three that is Woolls Woolfells and Leather that is to say pro quolibet sacco lanae continent 26 pierres chescun pierr 14 pound un demy marke and for Three hundred Woolfells half a Mark and for a Last of Leather Thirteen shillings four pence and that was equal to Strangers and English Merchants This was in those several Reigns the Opinion of all the Iudges of the times whence we may learn how fallible even the Opinion of all the Judges is when the matter to be sesolved must be clear'd by Searchers not common and depends not upon Cases vulgarily known by Readers of the Year Books For since these Opinions it is known those Customes called the Old or Antiqua Custumae were granted to King Edward the First in the Third year of his Reign by Parliament as a new thing and was no Duty belonging to the Crown by the Common Law But the Act of Parliament it self by which this custome was granted is no where extant now but undeniable Evidence of it appears For King Edward
Whether the Temporal Courts of the King can take Conizance in general that it is not an Incestuous marriage by the Act of 32 H. 8. and consequently prohibit the questioning of it in the Ecclesiastical Courts Because the words of that Act are That no marriage shall be impeached Gods Law except without the Levitical Degrees and therefore within the meaning of that Act Some marriages might be impeach'd according to Gods Law though such marriage were out of the Levitical Degrees whereof this may be one As to the first Question The marriage of Harrison and Jane Resp 1 his wife is a lawful marriage by the Act of 32 H. 8. cap. 38. As to the Second I hold the Judges of the Temporal Courts Resp 2 have by that and other Acts of Parliament full Conizance of marriages within or without the Levitical Degrees As to the Third I hold that as the Law stands at this time Resp 3 the Kings Temporal Courts at Westminster have full Conizance what marriages are incestuous or not according to the Law of the Kingdom and may prohibit the Ecclesiastick Courts from questioning marriages as Incestuous which the said Courts in their Iudgment shall conceive not to be so Yet I shall agree the Ecclesiastick Courts may proceed in order to Divorcement and punishment concerning divers marriages and the Kings Courts at Westminster ought not to prohibit them though such marriages be wholly without the Levitical Degrees I shall begin in some measure first to clear the Second Question viz. Whether the Kings Temporal Courts have any Conizance of the Subject matter namely what marriages are within or without the Levitical Degrees Questions of that nature being as must be confessed regularly to be decided by the Law Divine whereof the Ecclesiastick Courts have generally the Conizance For it were improper for us to resolve a Question in a Law when it was left to an after Inquiry whether we had any Conizance of or skill in that Law by which the Question was to be determined There was a time when the Temporal Courts had no Conizance of lawful or unlawful marriages so was there a time when the Ecclesiastical Courts had no Conizance of matters Testamentary and probat of Wills Hensloes C. 9. Rep. but the Law-making power of the Kingdom gave them that which they had not before and the same hath given the Temporal Courts this now which they had not in former times By Conizance in this sense I intend Jurisdiction and Judicial Power as far as it extends concerning the lawfulness of marriages which an Act of Parliament hath given them Notwithstanding it will be said They want knowledge or skill in the Law by which it must be determined what are or are not the Levitical Degrees for they are not studied in that Divine Law they want skill in the Original in which it was written and in the History by which it is to be interpreted As specious as this seems it is a very empty Objection for no man is supposed necessarily ignorant of a Law which he is bound to observe It is irrational to suppose men necessarily ignorant of those Laws for breach of which they are to be punisht and therefore no Canon of Divine or Human Law ought to be supposed unknown to them who must be punisht for transgressing them We are obliged not to marry in the prohibited Degrees not to be Heretical or the like therefore we are supposed to know both Nor is it an Exception to disable a man of having any Church Dignity whatever that he is not knowing in the Hebrew or Greek Tongue All States receive the Scriptures in that Language wherein the several States think fit to publish them for common use and it is but very lately that the Christian Churches have become knowing in the Original Tongues wherein the Scriptures were written which is not a knowledge of obligation and required in all or any but acknowledged accidental and enjoy'd by some If it were enacted by Parliament That matters of Inheritance of Theft and Murther should be determined in the Courts of Westminster according to the Laws of Moses this Objection would not stand in the way no more can it in this particular concerning Incestuous marriages The Laws of one people have frequently been transferred over and become the Laws of another As those of the Twelve Tables from Greece to Rome in like manner those Laws of the Rhodians for Maritime Affairs made the Law of the Romans the Laws of England into Ireland and many such might be instanced As another lymn of this Objection it is said This Act 13 H. 8. seems rather a directing Act how the Courts Ecclesiastical should proceed touching marriages out of the Levitical Degrees than an Act impowering the Temporal Courts to prohibit their proceeding When the King's Laws prohibit any thing to be done there are regular ways to punish the Offender As for common Offences by Indictment or Information Erronious Judgments are remedied by Writs of Error or Appeal Incroaching Jurisdiction by Courts where no Writ of Error lies is corrected by the King's Writs of Prohibitions It is most proper for the King to hinder the violating of his Laws by impeaching of marriages which the Law will not have impeach'd by incroaching Iurisdiction as to hinder them from impeaching or drawing into question Contracts for Lands or other things whereof they have not Conizance And the King hath never otherwise remedied that fault against his Laws but by his Prohibitions out of his Courts of Iustice Nor is it consonant to Law or common Reason That they who offend by incroaching Jurisdiction against Law should be the redress allowed by Law only against such incroachment which were to provide against doing wrong by him who doth it By the Act no person of what estate or condition soever Rep. 1 2. p.m. but that was Rep. again 1 El. c. 1. is to be admitted to any of the Spiriual Courts and to any Process Plea or Allegation contrary to the Act. This Act therefore never intended the Ecclesiastick Courts should have any Judicial power to determine or judge what marriages were within or without the Levitical Degrees contrary or not contrary to the Act when it admits not any Process Plea or Allegation in a Spiritual Court contrary to the Act. For it is impossible that Court should have Conizance to determine the lawfulness or unlawfulness of a marriage which is forbid to admit Process Plea or Allegation against such marriage if it be lawful 1. This marriage not prohibited in the 18. of Leviticus nor the same degree with any there prohibited 2. If marriages neither prohibited in terminis in Leviticus nor being in the same degree with a marriage there prohibited should be unlawful there would be no stop or terminus of unlawful marriages 3. The 20. of Leviticus prohibits no other marriages than the 18. of Leviticus doth but appoints the punishments which the Eighteenth doth not 4. Not now to
and thereby declared to be prohibited by Gods Law are all the Degrees of marriage prohibited by Gods Law For take the words at most advantage for that purpose viz. Since many inconveniences have fallen by marrying within the Degrees prohibited by Gods Law That is to say The Son to marry the Mother the Brother the Sister c. and that the enumeration in the Act of prohibited Degrees had gone no further than to the Degrees of Consanguinity not enumerating any Degrees of Affinity as then it had been no Inference to conclude that there were no more prohibited Degrees by Gods Law intended by the Statute than the Degrees of Consanguinity only So now no Degrees being mentioned in the Statute to be prohibited by Gods Law but those which are express'd it cannot thence be concluded That the Statute intended no other than those to be prohibited by Gods Law For those are therefore mentioned to be prohibited because they were Degrees signally expressed and concerning which no question or doubt could be made In the same manner is it if a Statute should say Since many Inconveniences have happen'd by doing things prohibited by the Kings Laws that is to say By Depopulation of Farms by subtracting of Tithes by committing Dilapidations and of many other things forbidden by the Law It would not be concluded That the things so enumerated were all the things prohibited by the Kings Laws no more can it that the enumerated Degrees of prohibited Marriages in the Act by Gods Law are all the Degrees by Gods Law prohibited The next Statute is an Act of the same Parliament 28 H. 8. c. 16 28 H. 8. c. 16. making invalid Licences Dispensations Bulls and other Instruments purchas'd from Rome Which Act hath these words That all Marriages solemnized within this Realm By this Act the Levitical Degrees are made the third time of Lay Conizance or in any the Kings Dominions before the Third day of November in the Six and twentieth year of the King whereof there is no Divorce had by the Ecclesiastick Laws of the Realm and which be not prohibited by Gods Law limited and declared in the Act made this present Parliament for establishing the Kings Succession or otherwise by Holy Scripture shall be lawful and effectual by Authority of this present Parliament 1. By this Law all Marriages made before that Third of November 26 H. 8. no divorce being had are made good and lawful 2. All Marriages made before that time and not prohibited in the Degrees limited and declared in the Act of 28 H. 8. c. 7. if the Act had rested there and gone no further had been made good and if any of them had been questioned a Prohibition would have lain out of the Temporal Courts because the unlawfulness of marrying was restrained to the Degrees limited in 28 H. 8. c. 7. whereof the Temporal Judges had perfect Conizance as of a lay Law But the Act going further and saying Prohibited by Gods Law limited in the Act of 28. or otherwise by Holy Scripture leaves as is objected all Conuzance of Marriages as before to the Ecclesiastick Courts though not so amply So by those added words Or otherwise by holy Scripture the Act made all Marriages solemnized before that time not prohibited by Holy Scripture good and lawful by which Act though Marriages prohibited only by the Canon Law divided from Scripture were made good Yet the tryal was Whether the Marriage was prohibited by Holy Scripture which being only of Ecclesiastick Conizance they only could judge of the lawfulness And that the Temporal Courts could by that Act no more judge what Marriage was lawful or Incestuous by the Holy Scripture than what was Schism or Heresie by the Holy Scripture 3. By this Act it is evident The Law-makers thought some Marriages were or might be prohibited by Gods Law not limited in the Act of 28 H. 8. So if the Act had limited all Marriages lawful but those forbidden in the Five Books of Moses or in the Book of Moses called Leviticus though the unlawfulness of Marriage had been more restrain'd under that expression than under the general expression of Holy Scripture Yet Those Books being part of Holy Scripture the Secular Iudges had no more Conuzance of the parts than of the whole And so would it have been if the Act had restrained the unlawfulness of Marriage to the Eighteenth Chapter of Leviticus that being a part of the Book called Leviticus the Temporal Courts could have no more Conuzance of that part or Chapter of the Book than of the whole Book This I think is the full of the Objection The last Law and which is Cardo Questionis as being pleaded by the Plaintiff Harrison in the Books is the Act of 32 H. 8. cap. 38. consisting of several parts 32 H. 8. c. 28. some whereof are Repeal'd as the branch concerning Pre-contracts I shall therefore examine that Act as it stands in force 1. Marriages between Cosen Germans and all Marriages onwards between Collateral Cosens which were prohibited very far before the Council of Lateran and since it those to the fourth Degree to the making of this Act are made lawful and declared not to be against the Law of God viz in these words And be not prohibited by Gods Law 2. Restraining of Marriage by reason of Carnal Knowledge within any of those Degrees is expresly taken away Coke's Mag. Chart. f. 6. 84. and the Marriages declared not to be against the Law of God In these Sir Edward Coke in his Comment upon this Statute in his Magna Charta is express So if any Marriage within those Degrees shall be questioned as Incestuous in the Spiritual Courts a Prohibition will lye upon this Act because the Marriages by one part of the Act are declared expresly 1. Not to be against the Law of God 2. By another All Marriages contracted between lawful persons as we declare all persons to be lawful that are not prohibited by Gods Law to marry are lawful Ioyning then those two Clauses together That all Marriages are lawful not prohibited by the Law of God and that such Marriages of Cosen Germans and so onwards are not prohibited by Gods Law It is manifest that Prohibitions will lye in such Cases But these Marriages concern not the Case in question The next Clause in the Act and upon which the present Case stands That no Reservation or Prohibition Gods Law except shall trouble or impeach any Marriage without the Levitical Degrees The clear sense of which Clause must be That all Marriages are lawful which are not prohibited within the Levitical Degrees or otherwise by Gods Law So as the prohibiting of Marriages within the Levitical Degrees and within Gods Law whereof the Levitical Degrees are a part is no more or less in effect than to say All Marriages shall be lawful that Gods Law doth not prohibit Whence is collected That of Gods Law in general or of the Levitical Degrees in
by the Verdict 7 Car. afore the Act by which it is found he died seised of the Rectory of Kingston in Reversion and of the Advowson of the Vicaridge and died without Heir and that the same escheated to the King and if all the lands in question were held of the King it being found he died without Heir the proviso will save all to the King 3. Whether Nicholas Ramsey under whom the Plaintiffs claim be the person who had title to the lands in question if any had Because 1. The death of Robert the elder Brother is not sufficiently found before the Act of Naturalization for then he and not Nicholas was heir to John 2. Because if Robert the elder were dead before yet he left Issue three Daughters who were naturalized as well as Nicholas by the Act and are the heirs to the Earl being the Issue of his elder Brother If Robert had died after the Irish Act made this Verdict had been as true as now it is Therefore it is not sufficient to find him dead before the Act. Et Juratores ulterius dicunt quod praedictus Robertus filius primogenitus natu maximus praedicti Roberti patris postea obiit tempore mortis suae habens relinquens tres filias de corpore ipsius Roberti filii legitime procreatas viz. Margaret Isabel Janam Alienigenas natas in Regno Scotiae ante accessionem praedict Quae quidem Margaret Isabella Jana primo die Octobris Anno Regni Domini Caroli nuper Regis Angliae primi quarto decimo in plena vita fuerant habent exitus de carum corporibus exeuntes modo superstites in plena vita existentes apud Kingston super Thames praedict As to the second part in the Case of Aliens nothing interrupts the common course of Descents but Defectus Nationis as Bracton terms it Therefore that being taken away by naturalization they shall inherit as if it had not been and then the eldest Brothers Issue had inherited before the second Brother 1. It is admitted and will easily appear That one naturalized in Scotland since the Union cannot inherit in England 2. Ireland then differs from Scotland in a common difference with Gernsey Jersey Isle of Man Berwick and all the English Plantations for that they are Dominions belonging to the Crown of England which Scotland is not 3. If this difference which was never discussed in Calvin's Case alter not the Case from a naturalizing in Scotland it remains whether by Act of Parliament of England though not extant Ireland in this matter be not differenc'd from other Dominions belonging to England 1. He that is priviledg'd by the law of England to inherit there must be a Subject of the Kings 2. He must be more than a local Subject either in the Dominion of England or out of the Dominion of England for meer Aliens when locally in England or any other Dominions of the Kings are local Subjects 3. He must be otherwise a Subject than any Grant or Letters Patents of the King can make him 7 Rep. Calvins C. f. 7. a. 36 H. 6. Tit. Deniz Br. 9. Therefore a Denizen of England by Letters Patents for life in tayl or in fee whereby he becomes a Subject in regard of his person will not enable him to inherit in England but according to his Denization will enable his Children born in England to inherit him and much less will his Denization in any other Dominion Whence it follows That no Laws made in any other Dominion acquired by Conquest or new Plantation by the King's Lieutenants Substitutes Governours or People there by vertue of the King's Letters Patents can make a man inherit in England who could not otherwise inherit For what the King cannot do by his Letters Patents no delegated power under him can do by his Letters Patents It follows likewise upon the same reason That no tenure of Land by Homage Fealty or other Service in any other Dominion of the Kings acquired by Conquest or otherwise by any Grant or Letters Patents can make a man inherit in England who could not otherwise inherit Calvins Case f. 6. b. for that is not Homagium ligeum but Feodale as is rightly distinguished 4. A man born a Subject to one that is King of England cannot therefore inherit in England for then the Antenati in Scotland had inherited in England they were born Subjects to King James who was King of England but not born when he was King of England 5. A Subject born in any Dominion belonging to the Crown of England is inheritable in England as well as native Englishmen So the natural born Subjects of Ireland Gernsey Jersey Berwick and all the English Plantations inherit but the specifique reason of their inheriting in England is not because they are born in Dominions belonging to the Crown of England for if so none could inherit who wanted that and then the Postnati of Scotland should not inherit for Scotland is not a Dominion belonging to the Crown of England but to the King of England It remains then according to the Resolution and Reasons of Calvin's Case That the specifique and adequate cause why the Kings Subjects of other his Dominions than England do inherit in England is because they are born his natural Subjects as the English are he being actually King of England at the time of their birth when their subjection begins Cok. Rep. Calvins Case and so are born Liege-men to the same King But then since all Liegeance and Subjection are acts and obligations of Law for a man owes no liegeance excluding all Civil Law but a man is said a natural Subject because his Subjection begins with his birth that is as soon as he can be subject and a King is said to be a mans natural Prince because his Protection begins as soon as the Subject can be protected and in the same sense that a Country where a man is born is his natural Country or the Language he first speaks is his natural Tongue why should not an Act of Law making a man as if he had been born a Subject work the same effect as his being born a Subject which is an effect of law 1. The Reason is That naturalization is but a fiction of Law and can have effect but upon those consenting to that fiction Therefore it hath the like effect as a mans Birth hath where the Law-makers have power but not in other places where they have not Naturalizing in Ireland gives the same effect in Ireland as being born there so in Scotland as being born there but not in England which consents not to the fiction of Ireland or Scotland nor to any but her own 2. No fiction can make a natural Subject for he is correlative to a natural Prince and cannot have two natural Soveraigns but may have one Soveraign as a Queen Soveraign and her Husband in two persons no more than two natural Fathers or two natural
Mothers But if a fiction could make a natural Subject he hath two natural Princes one where he was born and the other where naturalized 3. If one naturalized in Ireland should in law make him naturally born there then one naturalized in Scotland after the Vnion should make him naturally born there consequently inheritable in England which is not contended 4. A naturalized person in a Dominion belonging to England is both the King 's Subject when he is King of England and inheritable in that his Dominion when naturaliz'd So the Antenati of Scotland are the King of England's Subjects when he is King of England and inheritable in that Dominion of his yet cannot inherit in England and being his Subjects before doth not make them less his Subjects when King of England Or if it did Nicholas Ramsey before he was naturalized in Ireland and became there a Subject to the King of England was a Subject in Scotland of the Kings There are four ways by which men born out of England may inherit in England besides by the Statute of Edward the Third De Natis ultra Mare 1. If they be born in any Dominion of the Kings when he is actually King of England 2. If they be made inheritable by Act of Parliament in England as by naturalization there 3. If they be born Subjects to a Prince holding his Kingdom or Territories as Homager and Liegeman to the King of England Calvins Case f. 21. b. during the time of his being Homager So the Welch were inheritable in England before 12 Ed. 1. though Subjects to the Princes of Wales who were Homagers to the King of England So were the Scotch in Edward the First 's time during the King of Scotlands Homage to him and to other Kings of England as long as it continued And that is the reason of the Case in 14. of Eliz. in the Lord Dyer Dyer 14 Eliz. f. 304. pl. 51. where a Scotch-man being arraign'd for a Rape of a Girl under Seven years of Age and praying his Tryal per medietatem Linguae because he was a Scot born it was denied him by the Opinion of the Iudges of both Benches for that among other reasons a Scot was never accounted an Alien here but rather a Subject So are the words of the Book But they did not consider that the Homage was determined then as it was consider'd after in Calvin's Case when only the Postnati of Scotland were admitted inheritable in England Vpon the same ground one Magdulph Subject to the King of Scots appeal'd from his Iudgment to Edward the First Pl. Parl. 21 E. 1. f. 152. 157. ut Superiori Domino Scotiae But this is to be understood where such Prince is Homager Subjectionis and not only Infeodationis for another King may hold of the King of England an Island or other Territory by Tenure and not be his Subject 4. If the King of England enter with his Army hostilly the Territories of another Prince and any be born within the places possessed by the Kings Army and consequently within his Protection such person is a Subject born to the King of England if from Parents Subjects and not Hostile 5 Eliz. Dyer f. 224. pl. 29. So was it resolved by the Iustices 5 Eliz. That one born in Tourney in France and conquered by Henry the Eighth being a Bastard between persons that were of the King's liegeance was enabled to purchase and implead within the Realm and was the same as if a French-man and French-woman should come into England and have a Son born there The like law if he had been born of French Parents in Tourney for it was part of the Dominions belonging to England pro tempore as Calice was Those under the King's Power as King of England in another Prince his Dominions are under his Laws Fleta l. 2. c. 3. 14 E. 1. King Edward the First being at Paris 14 E. 1. one Ingelram de Nogent stole silver Dishes in the King's House there and after dispute about his Tryal with the King of France and his Council he was convicted before the Steward of the King of England's House and executed though the Felony was done in France in Aliero Regno Fleta l. 2. c. 3. 12 E. 1. So Edmund de Murdak brought an Appeal in Gascoigne coram Seneschallo Hospitii Regis Angliae against one William de Lesnes of Robbery done to him 12 E. 1. infra metas Hospitii Regis infra quas invenit ipsum And the Defendant non potuit appellum illud per exceptionem alterius Regni declinare 1. Regularly who once was an Alien to England cannot be inheritable there but by Act of Parliament which is Common Experience But Ramsey was an Alien to England being Antenatus of Scotland and therefore cannot inherit here but by Act of Parliament If it be said there is an Exception to that viz. unless he be naturalized in Ireland that Exception must be well prov'd not suppos'd For the Question being Whether one naturalized in Ireland do thereby become as a Native of England must not be resolv'd by saying That he doth become as a Native of England otherwise it is prov'd only by begging the Question 2. The being no Alien in England belongs not to any made the King of Englands Subject by Act of Law when he is King of England but to such as are born so Natural legitimation respecteth actual Obedience to the Soveraign at the time of the birth Calvins Case f. 27. for the Antenati remain Aliens because they were born when there were several Kings of the several Kingdoms not because they are not by act of law afterwards become Subjects to the King of England by the Union of the Crowns But he that is naturaliz'd in Scotland or Ireland is not a Subject born to the King of England but made by a subsequent Act in law 3. And chiefly the manner of subjection of a Stranger naturaliz'd in Scotland or Ireland doth exactly agree with that of the Antenatus and not of the Postnatus For 1. The Antenatus was another Prince his Subject before he was the King of Englands 2. The Antenatus might have been an Enemy to England by a war between the several Kings before the Vnion So a Stranger naturalized in Scotland or Ireland was the natural Subject of some other Prince necessarily before he was naturaliz'd and then might have been an Enemy to the King of England by a war between his natural Soveraign and the King of England before he was naturalized But the Postnatus was never subject to any before he was the King of Englands nor ever in possibility of being an enemy to England both which are the properties of subjection in the native English Subject and is the reason why the Postnatus in England is as the Natives of England No fiction of Law can make a man a Natural Subject that is not for a Natural Subject and a Natural Prince are
Liegeance and Obedience of the King of England are Aliens born in respect of the time of their birth The time of his birth is chiefly to be considered for he cannot be a Subject born of one Kingdom that was born under the Liegeance of a King of another Kingdom albeit afterwards one Kingdom descend to the King of the other Therefore Ramsey being not under the Liegeance of the King of England at the time of his birth must still continue an Alien though he were naturalized in Ireland Notwithstanding all this it may be urg'd A person naturalized in England is the same as if he had been born in England and a person naturalized in Ireland is the same as if he had been born in Ireland But a person born in Ireland is the same as if he had been Obj. 1 born or naturalized in England Therefore a person naturalized in Ireland is the same as if he had been born or naturalized in England This seems subtile and concluding Answ For Answer I say That the same Syllogism may be made of a person naturalized in Scotland after the Vnion viz. A person naturalized in England is the same with a person born in England and a person naturalized in Scotland after the Vnion is the same with a person born in Scotland after the Vnion But a person born in Scotland after the Union is the same with a person born or naturalized in England Therefore a person naturalized in Scotland after the Union is the same with a person born or naturalized in England Yet it is agreed That a person naturalized in Scotland since the Union is no other than an Alien in England Therefore the same Conclusion should be made of one naturalized in Ireland To differ these two Cases it may be said That the naturalizing Obj. 2 of a person in Scotland can never appear to England because we cannot write to Scotland to certifie the Act of Naturalizing as we may to Ireland out of the Chancery and as was done in the present Case in question as by the Record appears This is a difference but not to the purpose and then it is the same as no difference For I will ask by way of Supposition Admit an Act of Parliament were made in England for clearing all Questions of this kind That all persons inheritable in any Dominion whatsoever whereof the King of England was King whether naturalized or Subjects born should be no Aliens in England it were then evident by the Law That a naturalized Subject of Scotland were no Alien in England yet the same Question would then remain as now doth How he should appear to be naturalized because the Chancery could not write to Scotland as it can to Ireland to certifie the Act of Naturalizing Answ 1 The fallacy of the Syllogism consists in this It is true that a person naturalized in Ireland is the same with a person born in Ireland that is by the Law of Ireland But when you assume That a person born in Ireland is the same with a person born or naturalized in England that is not by the Law of Ireland but by the Law of England And then the Syllogism will have four terms in it and conclude nothing Answ 2.3 But to answer the difference taken there are many things whereof the Kings Courts sometimes ought to be certified which cannot be certified by Certiorari or any other ordinary Writ 42 E. 3. f. 2. b. An Act of Parliament of Scotland may be evidence as a Sentence of Divorce or Deprivation and Forraign Laws for raising or abasing Mony or Customes upon accompt between Merchants but not as Records In the Case of the Lord Beaumond 42 E. 3. a Question grew Whether one born in Ross in Scotland were within the Kings Liegeance because part of Scotland then was and part not in his Liegeance the Court knew not how to proceed until Thorpe gave this Rule That doubtless the King had a Roll what parts of Scotland were in his Liegeance what not upon the Treaty or Conclusion made that therefore they must address themselves to the King to have that certified The like may now happen of Virginia Surenam or other places part of which are in the Kings Liegeance part not So the King hath or may have Rolls of all naturalized Subjects and upon petition to him where the occasions require it may cause the matter in his name to be certified The like may happen upon emergent Questions upon Leagues or Treaties to which there is no common access but by the Kings permission For illustration a feign'd Case is as good as a Case in fact Suppose a Law in Ireland 5 El. c. 4. f. 957 like that of 5. of the Queen That no man should set up Shop in Dublin unless he had serv'd as an Apprentice to the Trade for Seven years and suppose a Law in England That whosoever had served Seven years as an Apprentice in Dublin might set up Shop in London If by a particular Act of Parliament in Ireland J. S. be enabled to set up Shop in Dublin as if he had serv'd an Apprentiship for Seven years by this fiction he is enabled in Ireland to set up but not in London unless he have really served for Seven years as the Law in England requires Considerations That an Act of Parliament of Ireland should so operate as to effect a thing which could not by the Laws of England be done without an Act of Parliament in England regularly seems so strange that it is suppos'd an Act of Parliament of England did first impower the doing of it though it be not extant by an Act of Parliament The Argument then is 1. A man is naturalized in Ireland and thereby no Alien in England which could not lawfully be done without an Act of Parliament in England to impower the doing it Which in effect is to say a thing was done which could not lawfully be done without an Act of Parliament to warrant it Ergo it being done there was an Act of Parliament to warrant it 2. This Supposition seems rather true because other things relating to Ireland and admitted to be Law could not be but by Act of Parliament in England yet no such Act is extant that is that a Writ of Error lies in the Kings Bench to reverse a Judgment given in the Kings Bench in Ireland 3. That this must be by Act of Parliament not by Common Lew because such a Writ did not lye in Wales or Calais at Common Law to reverse an Error there Still the Argument is no better then before Some things are of known Law through many successions of Ages which could not commence without an Act of Parliament which is not extant Therefore a thing wholly new not warranted by any Testimony of former time because it cannot be lawful without an Act of Parliament must be suppos'd without other proof to be lawful by an Act of Parliament If the lawfulness of any
thing be in question suppose the Laws of Ireland were made the Laws of England by Act of Parliament here only Two were material to this Question 1. That a Postnatus of a Forraign Dominion of the Kings should be no Alien the Law is so in Ireland 2. That persons naturalized in England are naturalized for all the Dominions belonging to England if the Law were so in Ireland it follows not That one naturalized there must be naturalized in England thereby for England is not a Dominion belonging to Ireland but è contrario Fitz. Assise pla 382.18 E. 2 A Writ of Error lies to reverse a Iudgment in any Dominions belonging to England Breve Domini Regis non currit in Wallia is not to be intended of a Writ of Error but of such Writs as related to Tryals by Juries those never did run in Forraign Dominions that most commonly were governed by different Laws Error of a Judgment in Assize of Gower's Land in B. R. 18 E. 2. 21. H. 7. f. 31. b. A Writ of Non molestando issued out of the Chancery to the Mayor of Calais retornable in the Kings Bench and by the whole Court agreed That there are divers Presidents of Writs of Error to reverse Iudgments given in Calais though it was Objected They were governed by the Civil Law 7. Rep. f. 20. a. Calvins Case And Sir Edward Coke cites a Case of a Writ directed to the Mayor of Burdeaux a Town in Gascoigny and takes the difference between Mandatory Writs which issued to all the Dominions and Writs of ordinary remedy relating to Tryals in the Kingdom 7 Rep. Calvins Case f. 18. a. And speaking of Ireland among other things he saith That albeit no Reservation were in King John's Charter yet by Judgment of Law a Writ of Error did lye in the Kings Bench of England of an Erroneous Judgment in the Kings Bench in Ireland A Writ of Error lies not therefore to reverse a Iudgment in Ireland by Special Act of Parliament for it lies at Common Law to reverse Iudgments in any Inferior Dominions and if it did not Inferior and Provincial Governments as Ireland is might make what Laws they pleas'd for Iudgments are Laws when not to be revers'd Pla. Parl. 21 E. 1. f. 152 157. Magdulph appeal'd from the Court and Iudgment of the King of Scots before King Edward the First Ut Superiori Domino Scotiae And by the Case in 2 R. 3. f. 12. all the Iudges there agree 2 R. 3. f. 12. assembled in the Exchequer Chamber That a Writ of Error lay to reverse Iudgments in Ireland and that Ireland was subject as Calais Gascoigne and Guyen who were therefore subject as Ireland And therefore a Writ of Error would there lye as in Ireland Another Objection subtile enough is That if naturalizing Obj. 3 in Ireland which makes a man as born there shall not make him likewise as born that is no Alien in England That then naturalizing in England should not make a man no Alien in Ireland especially without naming Ireland and the same may be said That one denizen'd in England should not be so in Ireland Answ The Inference is not right in form nor true The Answer is The people of England now do and always did consist of Native Persons Naturaliz'd Persons and Denizen'd Persons and no people of what consistence soever they be can be Aliens to that they have conquer'd by Arms or otherwise subjected to themselves for it is a contradiction to be a stranger to that which is a mans own and against common reason and publique practise Therefore neither Natives or Persons Naturaliz'd or denizen'd of England or their Successors can ever be Aliens in Ireland which they conquer'd and subjected And though this is De Jure Belli Gentium observe what is said and truly by Sir Edward Coke in Calvin's Case in pursuance of other things said concerning Ireland In the Conquest of a Christian Kingdom 7. Rep. Calvins C. f. 18. a. as well those that served in Warr at the Conquest as those that remain'd at home for the Safety and Peace of their Country and other the Kings Subjects as well Antenati as Postnati are capable of Lands in the Kingdom or Country conquer'd and may maintain any real Action and have the like Priviledges there as they may have in England Another Objection hath been That if a person naturaliz'd in Obj. 4 Ireland and so the Kings natural Subject shall be an Alien here then if such person commit Treason beyond the Seas where no local Liegeance is to the King he cannot be tryed here for Treason contra ligeantiae suae debitum 26 H. 8. c. 13. 33 H. 8. c. 23. 35 H. 8. c. 2. Treason by an Irish man in Ireland or elsewhere may be tryed in England by those Statutes 33 El. Andersons Rep. f. 262. b. Orurks Case Calvins Case f. 23. a. by the Statute of 26 H. 8. or 35 H. 8. or any other Statute to that purpose 1. To that I answer That his Tryal must be as it would have been before those Laws made or as if those stood now repeal'd 2. His Tryal shall be in such case as the Tryal of a person naturalized in Scotland after the Union who is the Kings Subject but an Alien in England Ireland Though Ireland have its own Parliament yet is it not absolute sui juris for if it were England had no power over it and it were as free after Conquest and Subjection by England as before That it is a conquer'd Kingdom is not doubted but admitted in Calvin's Case several times And by an Act of Parliament of Ireland Stat. Hib. 11 12. 13 Jac. c. 5. appears in express words Whereas in former times after the Conquest of this Realm by his Majesties most Royal Progenitors Kings of England c. What things the Parliament of Ireland cannot do 1. It cannot Alien it self or any part of it self from being under the Dominion of England nor change its Subjection 2. It cannot make it self not subject to the Laws of and subordinate to the Parliament of England 3. It cannot change the Law of having Judgments there given revers'd for Error in England and others might be named 4. It cannot dispose the Crown of Ireland to the King of Englands second Son or any other but to the King of England Laws made in the Parliament of England binding Ireland A Law concerning the Homage of Parceners 14 H. 3. called Statutum Hiberniae A Statute at Nottingham 17 E. 1. called Ordinatio pro Statu Hiberniae Laws for Ireland made by E. 3. Pat. Rol. 5 E. 3. pars 1. m. 29. pla Parl. f. 586 per advisamentum Concilii nostri in ultimo Parliamento nostro apud Westm tento An Act that no Arch-bishop Bishop or Prior should be chosen 4 H. 5. c. 6. who were Irish nor come to Parliaments with Irish Attendants The late Acts
made in 17 Car. 1. and many others 17 Car. 1. 25 H. 8. c. 20 21. The Resolution of all the Judges in the Exchequer Chamber That they were bound by and subject to the Laws of England as those of Calais Gascoign and Guien in the Case of the Merchants of Waterford for shipping Staple Goods for Sluce in Flanders to which they pleaded the Kings Licence and Dispensation not pretending freedom from the Statute of 2 H. 6. c. 4. whereupon they were questioned Ireland receiv'd the Laws of England by the Charters and Commands of H. 2. King John H. 3. c. I know no Opinion that Ireland receiv'd the Laws of England by Act of Parliament of England nor had it been to purpose having also a Parliament of their own that might change them Sir Edward Coke is of Opinion Cok. Litt. f. 141. b. Patt 12 H. 3. That they received them by a Parliament of Ireland in several Books in the time of King John and grounds his Opinion upon the words of several Patents of H. 3. which mention King John to have gone into Ireland and carried with him discretos viros quorum communi Concilio ad instantiam Hiberniensium he appointed the Laws of England to be there observed Pat. 18 H. 3. Another Patent of 18 H. 3. he there cites wherein it is said That King John de communi omnium de Hibernia consensu ordained the English Laws to be there observed And the like in effect in 30 H. 3. Cok. 4. Inst f. 349. The same Charters he mentions but not in the same words especially that of 12 H. 3. 1. and to the same purpose that King John by a Parliament in Ireland established the Laws of England there in his 4. Institutes That which occasioned the mistake were the words De communi omnium assensu in the Patents which he conceiv'd to be a Parliament But the Original Act and Command of King John to this purpose and the Charter of 12 H. 3. at large whereof Sir Edward Coke had only short Notes will clear how the English Law came into Ireland and what that Communis assensus meant for they were not received by Act of Parliament in those times Tempore Regis Johannis Pat. 6. Johan m. 6. n. 17. Rex dat potestatem Justic suis Hiberniae quod brevia sua currant per totam terram nostram potestatem nostram Hiberniae quae ibidem nominantur Pat. 6. Johan Johannes Dei Gratia c. Justiciariis Baronibus Militibus omnibus fidelibus suis Hiberniae c. Sciatis quod dedimus potestatem Justic nostro Hibern quod brevia sua currant per totam terram nostram potestatem nostram Hiberniae scilicet breve de Recto de feodo dimidii Militis infra de morte antecessoris similiter de feod Domini Milit. infra Et erit terminus de morte antecessor post transfretationem H. Regis patris nostri de Hibernia in Angl. Et breve de Nova diss cujus erit terminus post primam Coronationem apud Cant. Et breve de fugitivis nativis in quo erit terminus post captionem Dublin Et breve de divisis faciend inter duas villas exceptis Baron Et ideo vobis mandamus firmiter praecipimus quod haec ita fieri firmiter tener per totam potestatem nostram Hiberniae faciatis Teste meipso apud Westmonasteriium secundo die Novembris 17. Claus 7. Johannis Rex M. filio Henr. Justitiar Hiberniae c. Sciatis quod Deremunt exposuit nobis ex parte Regis Connaciae quod idem Rex exigit tenere de nobis tertiam partem terrae de Connacia per C. Marcas per Annum sibi haeredibus suis nomine Baroniae Pat. 6. Johan m. 6. n. 17. Rex c. Justic Baronibus Militibus omnibus fidelibus suis Hibern c. Sciatis quod dedimus potestatem Justic nostro Hiberniae quod brevia sua currant per totam terram nostram potestatem nostram Hiberniae scilicet breve de Recto de feodo Dimidii Mil. infra de morte Antecessor similiter de feod dimid Mil. infra Et erit terminus de morte Antecessor post transfretationem Henr. Regis patris nostri de Hibern in Angl. Et breve de Nova Disseisina cujus erit terminus post primam Coronationem nostram apud Cant. Et breve de Fugit Nativis ejus erit terminus post captionem Dublin Et breve de divisis faciend inter duas villas except Baron Et ideo vobis Mandamus firmiter praecipimus quod haec ita fier firmiter teneri per totam potestatem nostram Hiberniae faciatis Teste meipso apud Westmonast ij die Novembris Claus 12 H. 3. m. 8. Rex dilecto fideli suo Richardo de Burgo Justic suo Hibern salutem De legibus consuetudinibus observandis in Hibernia Mandamus vobis firmiter Praecipientes quatenus certo die loco faciatis venir coram vobis Archiepiscopos Episcopos Abbates Priores Comites Barones Milites Libere tenentes Ballivos singulorum Comitatuum coram eis publice legi faciatis Chartam Domini J. Regis patris nostri cui Sigillum suum appensum est Pat. 6. Joh. n. 17. Dat. apud Westm 2 die Novemb. quam fieri fecit jurari à Magnatibus Hibern de Legibus consuetudinibus Angl. observandis in Hibernia Et praecipiatis eis ex parte nostra quod Leges illas consuetudines in Charta praed contentas de cetero firmiter teneant observent Et hoc idem per singulos comitatus Hibern clamari faciatis teneri prohibentes firmiter ex parte nostra super forisfacturam nostram ne quis contra hoc mandatum nostrum venire praesumat Eo excepto quod nec de morte nec de Catall Hiberniensium occisorum nihil statuatur ex parte nostra circa quindecim dies à die Sancti Michaelis Anno Regni nostri xij super quo respectum dedimus magnatibus nostris Hiberniae usque ad terminum praed Teste meipso apud Westmonast 8. die Maii Anno xij Patentes 30 H. 3. m. 1. Quia pro communi utilitate terrae Hibern unitate terrarum Regis Rex vult de communi Consilio Regis provisum est quod omnes Leges consuetudines quae in Regno Angliae tenentur in Hibern teneantur eadem terra eisdem Legibus subjaceat per easdem regatur sicut Dominus Johannes Rex cum ultimo esset in Hibernia Statuit fieri mandavit Quia etiam Rex vult quod omnia brevia de Communi jure quae currunt in Angl. similiter currant Hibernia sub novo Sigillo Regis Mandatum est Archiepiscopis c. quod pro pace tranquilitate ejusdem terrae per easdem Leges eos regi deduci permittant
eas in omnibus sequantur In cujus c. T. R. apud Wadestocks ix die Septembris Out of the Close Rolls of King Henry the Third his Time Clause 1 H. 3. dorso 14. The Kings thanks to G. de Mariscis Justice of Ireland The King signifies that himself and other his Lieges of Ireland should enjoy the Liberties which he had granted to his Lieges of England and that he will grant and confirm the same to them Clause 3. H. 3. m. 8. part 2. The King writes singly to Nicholas Son of Leonard Steward of Meth and to Nicholas de Verdenz and to Walter Purcell Steward of Lagenia and to Thomas the son of Adam and to the King of Connage and to Richard de Burgh and to J. Saint John Treasurer and to the other Barons of the Exchequer of Dublin That they be intendant and answerable to H. Lord Arch-bishop of Dublin as to the Lord the King's Keeper and Bailiff of the Kingdome of Ireland as the King had writ concerning the same matter to G. de Mariscis Justice of Ireland Clause 5. H. 3. m. 14. The King writes to his Justice of Ireland That whereas there is but a single Justice itinerant in Ireland which is said to be dissonant from the more approved custome in England for Reasons there specified two more Justices should be associated to him the one a Knight the other a Clerk and to make their Circuits together according to the Custome of the Kingdom of England Witness c. The Close Roll. 5 H. 3. m. 6. Dorso The King makes a Recital That though he had covenanted with Geoffrey de Mariscis That all Fines and other Profits of Ireland should be paid unto the Treasure and to other Bailiffs of the Kings Exchequer of Dublin yet he receiv'd all in his own Chamber and therefore is removed by the King from his Office Whereupon the King by advise of his Council of England establisheth that H. Arch-bishop of Ireland be Keeper of that Land till further order And writes to Thomas the son of Anthony to be answerable and intendant to him After the same manner it is written to sundry Irish Kings and Nobles there specially nominated Clause 7. H. 3. m. 9. The King writes to the Arch-bishop of Dublin his Justice of Ireland to reverse a Judgment there given in a Case concerning Lands in Dalkera between Geoffrey de Mariscis and Eve his wife Plaintiffs and Reignald Talbott Tenant By the Record of the same Plea returned into England the Judgment is reversed upon these two Errors The first because upon Reignald's shewing the Charter of King John the King's Father concerning the same Land in regard thereof desiring peace it was denyed him The second Because the Seisin was adjudged to the said Geoffrey and Eve because Reynald calling us to warranty had us not to warranty at the day set him by the Court which was a thing impossible for either Geoffrey or the Court themselves to do our Court not being above us to summon us or compel us against our will Therefore the King writes to the Justice of Ireland to re-seise Reynald because he was disseised by Erroneous Judgment Clause 28. H. 3. m. 7. The King writes to M. Donenald King of Tirchonill to aid him against the King of Scots Witness c. The like Letters to other Kings and Nobles of Ireland Clause 40. E. 3. m. 12. Dorso The King takes notice of an illegal proceeding to Judgment in Ireland Ordered to send the Record and Process into England It was objected by one of my Brothers That Ireland received not the Laws of England by Act of Parliament of England but at the Common Law by King John's Charter If his meaning be that the Fact was so I agree it but if he mean they could not receive them by Act of Parliament of England as my Brother Maynard did conjecturally inferr for his purpose then I deny my Brothers Assertion for doubtless they might have received them by Act of Parliament And I must clear my Brother Maynard from any mention of an Union as was discoursed of England and Ireland Nor was it at all to his purpose If any Union other than that of a Provincial Government under England had been Ireland had made no Laws more than Wales but England had made them for Ireland as it doth for Wales As for the Judgment Obj. One of my Brothers made a Question Whether George Ramsey the younger Brother inheriting John Earl of Holdernes before the naturalization of Nicholas Whether Nicholas as elder Brother being naturalized should have it from him Doubtless he should if his Naturalizing were good He saith the Plaintiff cannot have Iudgment because a third person by this Verdict hath the Title Answ If a Title appear for the King the Court ex Officio ought to give Iudgment for him though no party But if a man have a prior Possession and another enters upon him without Title I conceive the priority of Possession is a good Title against such an Entry equally when a Title appears for a third that is no party as if no Title appear'd for a third But who is this third party For any thing appears in the Verdict George Ramsey died before the Earl 2. It appears not that his Son John or the Defendant his Grand-child were born within the Kings Liegeance Patient appears to be born at Kingston and so the Daughters of Robert by the Verdict The Acts of Ireland except all Land whereof Office was found before the Act to entitle the King but that is in Ireland for the Act extends not to England If Nicholas have Title it is by the Law of England as a consequent of Naturalization So it may be for the Act of 7 Jac. cap. 2. he that is Naturalized in England since the Act must receive the Sacrament but if no Alien by consequent then he must no more receive the Sacrament than a Postnatus of Scotland Obj. Ireland is a distinct Kingdom from England and therefore cannot make any Law Obligative to England Answ That is no adequate Reason for by that Reason England being a distinct Kingdom should make no Law to bind Ireland which is not so England can naturalize if it please nominally a person in Ireland and not in England But he recover'd by saying That Ireland was subordinate to England and therefore could not make a Law Obligatory to England True for every Law is coactive and it is a contradiction that the Inferior which is civilly the lesser power should compel the Superior which is greater power Secondly He said England and Ireland were two distinct Kingdoms and no otherwise united than because they had one Soveraign Had this been said of Scotland and England it had been right for they are both absolute Kingdoms and each of them Sui Juris But Ireland far otherwise For it is a Dominion belonging to the Crown of England and follows that it cannot be separate from it but by
wife carnally known by his Son Or the Brother to marry his Brothers wife carnally known by his Brother Or any man married and carnally knowing his wife to marry his Wives daughter or his Wives sons daughter Or his Wives daughters daughter Or his Wives sister Then it declares Those marriages to be indispensable because against Gods Law and that there should be a separation of such marriages if any were and the Children procreat in them to be illegitimate But this Clause also of this Act of 28 H. 8. as some conceive is repeal'd by 1 2 Phil. Mar. c. 8. in these words And also all that part of the Act made in the said 28 H. 8. intituled An Act for the Establishment of the Succession of the Imperial Crown of the Realm that concerneth a Prohibition to marry within the degrees expressed in the said Act shall henceforth be repeal'd made frustrate void and of none effect By the Act of 1 2 Phil. Mar. two other Laws are likewise repeal'd which concern the question before us viz. An Act in 28 H. 8. c. 16. intituled An Act for the release of such as have obtained pretended Licences and Dispensations from the See of Rome And the Act of 32 H. 8. c. 38. which hath been often mentioned But these two last Acts are revived by the Act of 1 Eliz. c. 1. and in force but neither the Act of 25 H. 8. nor 28 H. 8. c. 7. are reviv'd in express terms And not only so but the Act of 1 El. c. 1. hath this Negative Clause That all other Laws and Statutes and the Branches and Clauses of any Act or Statute repeal'd by the said Act of Repeal made in the time of the said late King Philip and Queen Mary and not in this present Act specially mentioned and reviv'd shall stand remain and be repeal'd and void in such like manner and form as they were before the making of this Act. Whence it follows That this marriage is not now proved to be against Gods Law by either of these repeal'd Statutes of 25 H. 8. or 28 H. 8. c. 7. unless it be made out that one of them at least remains at this day in force And as for that The Act of 28 H. 8. c. 16. which makes void all Dispensations from the See of Rome and expresly revived by 1 Eliz. and all Branches Words and Sentences thereof hath these words As a Grace of the Kings to divers of his Subjects who had married by Dispensation notwithstanding that Act made all Dispensations from Rome void All marriages had from the Third of November 26 H. 8. for which no Divorce or Separation is had and which marriages be not prohibited by Gods Laws limited and declared in the Act made this present Parliament for Establishing the Kings Succession or otherwise by Holy Scriptures shall be good By which words I conceive the Clause of 28 H. 8. c. 7. repeal'd in Queen Maries time is again reviv'd Obj. It may be objected The Clause of 28 H. 8. c. 7. concerning marriages prohibited by Gods Law continues still repeal'd because it is not specially mentioned to be reviv'd by the Act of 1 Eliz. And therefore no Act is in force declaring the husbands marriage with his wives sister to be prohibited by Gods Law Answ An Act repeal'd is of no effect more than if it had been never made By the Act of 28 H. 8. c. 7. All marriages prohibited by Gods Law limited and declared by the Clause of that Act were unlawful notwithstanding any Dispensation had before the Repeal of that Clause By the Reviver in 1 Eliz. of 28 H. 8. c. 16. and of every Clause in it All marriages prohibited by Gods Law limited and declared by 28 H. 8. c. 7. were again unlawful as before the Repeal notwithstanding any Dispensation Therefore the Statute of 28 H. 8. c. 7. was revived by the Reviver of the Statute of 28 H. 8. c. 16. in 1 Eliz. and made as effectual as before it was repeal'd and so it continues If it had been enacted by Parliament after the Repeal of the Clause in 28 H. 8. c. 7. That all marriages prohibited by Gods Law limited and declared by 28 H. 8. c. 7. should be unlawful notwithstanding any Dispensation that enacting had revived the Clause in 28 H. 8. c. 7. Therefore the same thing being enacted by revival of 28 H. 8. c. 16. must have the same effect of reviving that Clause in 28 H. 8. c. 7. I will put it for more clearness by way of a Case A man before the Third of November 26 H. 8. by Dispensation from Rome had married his wives sisters daughter which marriage was prohibited by the Canons of the Church and no Divorce had been attempted in the Case until after 1 Eliz. and the Reviver of the Statute of 28 H. 8. c. 16. which made void all Dispensations from Rome It is plain That this marriage being not prohibited by Gods Law limited and declared in the Act of 28 H. 8. c. 7 was by the express words of the reviv'd Act of 28 H. 8. c. 16. a marriage to continue good without separation notwithstanding all Dispensations from Rome were null'd because it was no marriage excepted out of the Grace intended and given by that Act to the Kings Subjects married by Dispensation before November the Third 26 H. 8. and not then separated But if a marriage before the Third of November 26 H. 8. had been by Dispensation between the brother and sister or as this Case is between the husband and his wives sister and no Separation attempted until after 1 Eliz. and the Reviver of the Act of 28 H. 8. c. 16. These marriages were not to continue good and without Separation by 28 H. 8. c. 16. because they were marriages particularly excepted out of the Grace granted by that Act as being prohibited by Gods Law limited and declared in the Act of 28 H. 8. c. 7. which proves 28 H. 8. c. 7. to be in force by the Reviver of 28 H. 8. c. 16. and consequently the marriage in question to be clearly against Gods Law which is the thing to be proved In the Statute of 28 H. 8. c. 7. there are two Clauses concerning marriages The first declaring certain marriages there recited to be within the degrees prohibited by Gods Law which Clause concerns the present question and is before cited The second Clause in these words Be it therefore enacted That no person or persons Subjects or Resiants of this Realm or in any your Dominions of what estate degree or degrees soever they be shall from henceforth marry within the degrees afore rehearsed what pretence soever shall be made to the contrary thereof Then it proceeds That if there were any Divorce or Separation made of any such marriages by the Arch-bishops or Ministers of the Church of England such Separation should remain good and not be revokable by any Authority and the Children procreated
under such unlawful marriage should be illegitimate And if any such marriages were in any the Kings Dominions without Separation that there should be a separation from the Bonds of such unlawful marriage Now we must observe the Act of 1 2 Phil. Mar. c. 8. doth not repeal this Act entirely of 28 H. 8. c. 7. but repeals only one Clause of it the words of which Clause of Repeal are before cited and manifest this second Clause of the Act of 28 H. 8. and not the first to be the Clause intended to be repeal'd For there was no reason to repeal the Clause declaratory of marriages prohibited by Gods Law which the Church of Rome always acknowledged nor do the words of Repeal import any thing concerning marriages within degrees prohibited by Gods Law But as the time then was there was reason to repeal a Clause enacting all Separations of such marriages with which the Pope had dispenc'd should remain good against his Authority and that such marriages with which he had dispenc'd not yet separated should be separate And the words of the Clause of Repeal manifest the second Clause to be intended viz. All that part of the Act made in the said Eight and twentieth year of King Henry the Eighth which concerneth a prohibition to marry within the degrees expressed in the said Act shall be repeal'd c. As it is true That if a marriage be declared by Act of Parliament to be against Gods Law we must admit it to be so for by a Law that is by an Act of Parliament it is so declared By the same reason if by a lawful Canon a marriage be declared to be against Gods Law we must admit it to be so for a lawful Canon is the Law of the Kingdom as well as an Act of Parliament And whatever is the Law of the Kingdom is as much the Law as any thing else that is so for what is Law doth not suscipere magis aut minus But by a lawful Canon of this Kingdom which is enough and not only so but by a Canon warranted by Act of Parliament the marriage in question is declared to be prohibited by Gods Law therefore we must admit it to be so In a Synod or Convocation holden at London in the year 1603. for the Province of Canterbury by the Kings Writ and with the Kings Licence under the Great Seal of England to treat consult and agree of such Canons and Constitutions Ecclesiastick as should be there thought fit Several Canons were concluded and agreed To which King James gave his Royal Assent and Approbation and by his Letters Patents ratified and confirmed them according to the form of the Statute made in 25 H. 8. c. 19. and commanded the due observance of them Among which the Ninety ninth Canon is No person shall marry within the degrees prohibited by Gods Law and expressed in a Table set forth by Authority in the year of our Lord 1563. and all marriages so made and contracted shall be adjudged incestuous and unlawful and the aforesaid Table shall be in every Church publickly set up and fixed at the charge of the Parish Which is the same as No person shall marry within the degrees prohibited by Gods Law and which degrees are expressed in the Table c. For to the Question What is expressed in the Table there can be no Answer but the degrees prohibited by Gods Law But by this Table this marriage in question is expressed to be in a degree prohibited by Gods Law therefore it must be admitted to be so Another consequent is this That by this Canon and consequently by the Law of this Kingdom All marriages prohibited by that Table are declared to be within the degrees prohibited by Gods Law Note That any marriage unlawful by holy Scripture is declared here to be against Gods Law Judicially no otherwise than because by the Law of the Land the Scripture it self is declared and approved to be the Law of God for the Scripture cannot judge it self to be Scripture without some Judicature Therefore by the sixth Canon tempore Ed. 6. at a Convocation in London Anno 1552. the Authority of the Old Testament was declared Can. 1552. At a Convocation of both Provinces in London Anno 1562. the Canonical and Apocryphal Books of the Old Testament were particularly enumerated Can. 1563. and the Books of the New declared Canonical as Receiv'd By the seventh Canon the Authority of the Old Testament Declared By the Act it is said That the Clergy of this Kingdom nor any of them shall henceforth enact promulgate or execute any Canons Constitutions or Ordinances Provincial by whatsoever name or names they may be called in their Convocations in time coming which shall always be assembled by Authority of the Kings Writ unless the same Clergy may have the Kings most Royal Assent and Licence to make promulge and execute such Canons Constitutions and Ordinances Provincial c. The Chief Justice delivered the Resolution of the Court And accordingly a Consultation was granted In Camera Scaccarii Edward Thomas Plaintiff Thomas Sorrell Defendant THE Plaintiff by Information in the Kings Bench tam pro Domino Rege quam pro seipso demands of the Defendant Four hundred and fifty pounds for selling Wine in the Parish of Stepney in the County of Middlesex by Retail Ninety several times between the Tenth day of June the Seventeenth of the King and the Two and twentieth day of May the Eighteenth of the King to several persons without licence contrary to the Statute of 12 Car. 2. whereby he forfeited Five pounds for every several offence which amounts to Four hundred and fifty pounds The Defendant pleads Nil debet and therefore puts himself upon the Country The Iury find That as to all the Debt except Fifty pounds the Defendant owes nothing And as to the Fifty pounds they find the Statute of 7 E. 6. c. 5. concerning retailing of Wines prout in the Statute They find Letters Patents under the Great Seal dated 2 Febr. 9 Jac. _____ prout in the Letters Patents whereby King James incorporated the Company of Vintners in the City of London by the Name of Master Warden Freemen and Commonalty of the Mystery of Vintners in the said City and thereby among other things granted for him his Heirs and Successors to the said Master Warden and Freemen of the said Company and their Successors that they might always after within the said City and Suburbs of the same and within three Miles from the Walls or Gates thereof and in all and every other City and Sea-ports called Port-towns within the Kingdom of England and in all other Cities and Towns known by the name of Thorough-fare-towns where Posts were set and laid between Dover and London and between London and Barwick where any of the Freemen of the said Mystery did or should happen to dwell and keep a Wine Tavern and by themselves or servants sell Wine by
this difference holds in offences by penal Laws 22 Car. 2. c. 8. So a Mayor or Bayliff of a Town or other Toll-taker who is penally bound to provide true Market measures and doth not cannot be pardon'd by the King because the fault still continues but the punishment inflicted the King may pardon But by a Law all these offences may be pardon'd So it is generally true that malum per se cannot be dispensed with but thence to inferr as many do that every malum which the King cannot dispense with is malum per se is not true Nor is there in that Case any sufficient designation of what is malum per se and why to prevent error in disquisition concerning it though some instances thereof mala per se be very right I shall therefore endeavour to in stance in several kinds of mala per se which cannot be dispens'd with and in some mala prohibita by Acts of Parliament and otherwise which the King also cannot dispense with and to give the reason why he cannot in both thereby to make the conclusion I drive at less confused which is to differ penal Laws dispensable from those which are not Murther Adultery Stealing Incest Sacriledge Extortion Perjury Trespass and many other of the like kind all men will agree to be mala per se and indispensable All which are prohibited and by Statutes Nor is it much to say those are also prohibited by the Common Law and therefore cannot be dispens'd with if that were the reason nothing prohibited at the Common Law could be dispens'd with which is not so 2. Where the Suit is only the Kings for breach of a Law which is not to the particular damage of any third person the King may dispense but where the Suit is only the Kings but for the benefit and safety of a third person and the King is intitled to the Suit by the prosecution and complaint of such third person the King cannot release discharge or dispense with the Suit but by consent and agreement of the party concern'd As where upon complaint of any person a man hath entred into Recognizance to keep the Peace against such person the King cannot discharge such Recognizance before it be forfeited but the party whose safety is concerned may though the King only can sue the Recognizance Some more such Cases may be As the Laws of Nusances are pro bono publico so are all general penal Laws and if a Nusance cannot be dispens'd with for that reason it follows no penal Law for the same reason can be dispens'd with Therefore the reason is because the parties particularly damaged by a Nusance have their Actions on the Case for their damage whereof the King cannot deprive them by his dispensation And by the same reason other penal Laws the breach of which are to mens particular damage cannot be dispens'd with 3. Nusances and Ills prohibited by penal Acts of Parliament are of the same nature as to the publique 4 E. 4. f. 31. 22 E. 4. f. 22. 3 H. 7. f. 1. Br. Leet n. 2. 19 25 26 30. although as the Law is now received the mala or nocumenta prohibited by Acts of Parliament are not presentable in Leets or the Sheriffs Torn as Nusances at Common Law are of which some questionless cannot be dispens'd with As obstructing the High way diverting a Water-course breaking down a Bridge breaking the Assise of Bread and Ale for as to these the parties particularly damaged by them have their Actions which the King cannot discharge 4. Other ancient Nusances are by which no man hath a particular damage or action for it as if a man buy provision coming to the Market by the way which is a Nusance by forestalling the Market and sells it not in the Market forestall'd no Action lies for a particular damage to any man more than to every man but the King may punish it So if a may buy Corn growing in the field contrary to the Statute of 5 E. 6. c. 14. he is an Ingrosser So selling Corn in the Sheaf is against the Common Law by Robert Hadham's Case Cok. f. 197. c. 89. Hill 25 E. 3. coram Rege cited in Coke's Pleas of the Crown and punishable by the King but no particular person can have an Action for such ingrossing more than every man yet these are Nusances by the Common Law but so made by prohibiting Laws beyond memory As by a Law of King Athelstans Ne quis extra oppidum quid emat Sax. Laws f. 49. c. 12. Will. the firsts Laws f. 171. c. 60 61. Cok. Pleas Coron 197. forestalling was prohibited And by several Laws of William the First Ne venditio emptio fiat nisi coram testibus in civitatibus Item nullum mercatum vel forum sit nec fieri permittatur nisi in civitatibus regni nostri And no way differ from publique evils now prohibited by Parliament and may by it be permitted for the Statute of 15 Car. 2. c. 5. 15 Car. 2 c. 5. gives leave to ingross without forestalling when Corn exceeds not certain Rates Nor see I any reason why the King may not dispense with those Nusances by which no man hath right to a particular action as well as he may with any other offence against a penal Law by which no third person hath cause of Action Whence it follows That if an Act of Parliament call an offence a Nusance from which no particular damage can arise to a particular person to have his Action the King may dispense with such a nominal Nusance as with an offence against a penal Law for which a man can have no Action for his particular damage 5. The Register hath no Writ of Ad quod damnum upon any Licence to be granted but for alienation of Capite Land or in Mortmain or for diverting or obstructing a Water-course or High-way in which Cases the Writ is directed to the certain Sheriff or Escheator of the County where the Land-way or Water-course lye but for Licences for other things as Exportation or Importation of prohibited Commodities a Writ of Ad quod Damnum cannot be directed to any certain Sheriff or other Officer to enquire Nor is it enough to make a thing malum per se because prohibited at Common Law But the reason is The word Murther ex vi termini in the Language it is us'd in signifies unlawful killing a man The word Adultery unlawful Copulation Stealing unlawful taking from another Perjury unlawful swearing and Trespass ex vi termini an unlawful imprisonment or unlawful entry or the like upon anothers House or Lands and so do the other mala instanced If these mala might be dispens'd with in regard a dispensation as I said makes the thing to be done lawful to him who is dispens'd with it follows that the dispensation would make unlawful killing which the word Murther imports vi termini to be lawful unlawful
bono populi complicati as the King in his discretion shall think fit to order them for the good of the whole In this notion the estate of every Pater familias may be said to be pro bono Communi of his Family which yet is but at his discretion and management of it and they have no interest in it but have benefit by it Offences not to be dispens'd with There are other penal Laws by Acts of Parliament and punishable at the Kings Suit by Indictment or Presentment the transgressing of which is to the immediate wrong of particular persons and for which the Law gives them special Actions with which the King cannot dispense As he cannot licence a man to commit maintenance to make a forcible entry to carry distresses out of the hundred 8 H. 6. c. 9. Stat. 1 2 P. M. c. 12. contrary to the Statute which yet are no Mala in se for it is no Malum in se to maintain in a just cause to enter forcibly where the entry is lawful to carry a distress farther or nearer but are mala when prohibita and non when permissa as they would be wâ—re the Laws repeal'd and were before they were made From whence it is clear there are mala prohibita by Acts of Parliament with which the King cannot dispense And next it follows not that a Malum with which the King cannot dispense is a Malum in se which are the exceptions I took to the receiv'd Rule out of the Case of 11 H. 7. No non obstante can dispense in these Cases 8 H. 6. f. 19. The Chancellor of Oxfords Case Br. Pat. n. 15. and many the like for that were to grant that a man should not have lawful Actions brought against him or be impleaded at least in certain Actions which the King cannot grant For the same reason the King cannot licence a Baker Brewer or Victualler to break the Assise of Bread or Ale Stat. de Pistoribus c. 7. 31 E. 1. nor a Miller to take more Toll than the Law appoints nor a Taverner to break the Assise of Wine nor a Butcher to sell measled Swines flesh or Murrain flesh nor any man to forestall the Market by a non obstante of the Statute de Pistoribus which prohibits all these under severe penalties Nor can he licence Butchers Fishmongers Poultrers or other sellers of Victuals nor Hostlers to sell Hay and Oats at what price they please Stat. 23 E. 3. c. 6. 13 R. 2. c. 8. 9 Car. 1. Cam. Stell by a non obstante of the Statute of 23 E. 3. c. 6. and 13 R. 2. c. 8. which require that the prises be moderate And it was so resolved and decreed in the Star-Chamber by opinion of all the Judges 9 Car. 1. and that the Iustices of the Peace in the respective Counties were to ascertain the prises of Hay and Oats He cannot licence a Labourer to take more wages Regist f. 190. a tit de Servientibus In the Table of the Register the Title is de Laborariis nor any Officers to take more Fees than the Law allows nor to distrain a mans Plough-Beasts where there is other distress for in these and multitudes of like cases the damaged person hath his Action equally as for a Nusance to his particular hurt And even in the Case of a Common Informer who cannot sue but in the King's Name as well as his own when he is once intitled to Action which he never is but by commencing Suit for then the Action popular is become his proper Action the King can neither pardon release or otherwise discharge his right in the Suit as is fully resolved 1 H. 7. 1 H. 7. f. 3. and in many other Books much less can he discharge or prevent the Action of any other man The Statute of 12 Car. 2. c. 25. upon which this Case ariseth hath examples of penal Laws in both these kinds 12 Car. 2. c. 25 1. Every man is prohibited to sell Wine by retail contrary to the Act upon forfeiture of Five pounds for every offence from which offence no third man can possibly derive a particular damage to himself for which he can have an Action upon his Case 2. If any man should have an Action because another sold a pint of Wine without licence every man should have the like Action which the Law permits not Whence it follows That the offence wrongs none but the King and therefore he may as in like Cases dispense with it By a second Clause in that Act the mingling of Wine with several Ingredients therein mentioned is penally prohibited as by another Clause the sale of Wine at greater prizes than the Act limits He that shall offend either by unlawful mixtures or by selling dearer than the Law admits doth a particular wrong to the buyer for which he may have his Action and therefore the King cannot dispense with either of those Offences Dispensations void against Acts of Parliament for maintaining Native Artificers The Case of Monopolies the eleventh Report If Forreign Manufactures or Forreign Corn as by the Acts of 3 E. 4. c. 4. â— 3 E. 4. c. 3. be prohibited for support of those Artificers and the Husbandmen within the Kingdom a Licence to one or more to bring them in if general is void by the Case of Monopolies notwithstanding a Non obstante 1. All penal Laws when made and in force are equally necessary and in things necessary there is no gradation of more or less necessary 2. If any penal Laws were possibly less dispensable than others but upon the differences already given those capitally penal were less dispensable than those less penal but it is not so 11 H. 7. f. 11. for coyning mony of right Alloy in imitation of the Kings Coyn is capitally penal without licence but it may be licenced 1 H. 7. f. 3. If transporting Wooll were Felony yet the King may licence it It is capital to multiply Gold or Silver by the Statute of 5 H. 4. c. 4. but may be licenc'd Cok. plac Coronae f. 74. c. 20. as was done to John Faceby tempore H. 6. the Dispensation with a non obstante of that Statute may be seen Coke's placita Coronae f. 74. c. 20. If an Ad quod damnum issue to enquire ad quod damnum vel praejudicium a licence for a Mortmain will be One Inquiry is Si patria per donationem illam magis solito non oneretur c. Though the Retorn be that by such licence patria magis solito oneretur yet the licence if granted will be good which shews that Clause is for Information of the King that he may not licence what he would not and not for Restraint to hinder him to licence what he would Fitz. Nat. Br. Ad quod damum f. 222 b. Letter D. For by Fitz-herbert the usual licence now is with Et hoc absque aliquo
brevi de Ad quod damnum And when the King can licence without any Writ of Ad quod damnum he may if he will licence whatever the Retorn of the Writ be Though it be said in the Case of Monopolies That in the Kings Grant it is always a Condition expressed or implyed Quod patria plus solito non oneretur but that seems but gratis dictum So if the King will ex speciali gratia licence a Mortmain Dyer 9 10 El. f. 269. a. the Chancellor need not issue any Ad quod damnum for the King without words of Non obstante is sufficiently appris'd by asking his licence to do a thing which at Common Law might be done without it that now it cannot be done without it And that is all the use of a Non obstante But whether in such Cases licences limited to certain quantities of the Commodities to be imported be good as some collect from that Case as it is reported which appears not by the Iudgment nor in what Cases licences may be general or ought to be limited is not now properly before us 1. If Exportation Importation of a Commodity or the exercise of a Trade be prohibited generally by Parliament and no cause expressed of the Prohibition a licence may be granted to one or more without limitation to Export or Import or to exercise the Trade For by such general Restraint the end of the Law is conceived to be no more than to limit the over-numerous Exporters Importers or Traders in that kind by putting them to the difficulty of procuring licences and not otherwise and therefore such general licences shall not be accounted Monopolies 2. In such Cases the Law implies the King may licence as well as if the prohibitory Law had been that no such Importation Exportation or Trading should be without the King 's express licence in which Case the licence requires no limitation to a certain quantity 3. It is apparent That if the exercise of a Trade be generally prohibited the King's Licence must be without any Limitation to him that hath it to exercise his Trade as before it was prohibited else it is no licence at all 4. Where the King may dispense generally he is not bound to it but may limit his Dispensation if he think fit 5. If to avoid a Monopoly his Dispensation upon all prohibitory Laws generally must by Law be limited his limited Dispensation may be for greater quantities than were Imported or Exported before the Restraint because the quantity in the Dispensation is left indefinite and may be any quantity certain and consequently the end of the Restraint equally frustrated and the Monopoly as effectual as if the Licence had been general though it be limited 6. If a Commodity be prohibited to be Exported or Imported because too great quantities of it is carried out or brought in the Licences ought to be limited to answer the end of the Act. 7. If Importation of a Commodity be prohibited to maintain the Native Artificers of that Commodity in the Kingdome with livelyhood and so of Exportation no Licence either with stint or limitation or without it seems good by way of Merchandise for both of them may equally frustrate the end of the Act in the support of the Native Artificers for the former reason but such a Licence may be good to Import for a mans private use though in the Case of Monopolies it is said Such a Licence without any Limitation is a Monopoly which is as much perhaps by implication as to say that such a Licence with a Limitation is no Monopoly quod non credo As to the second Question Admitting King James might have dispens'd with particular persons for selling Wine by Retail as the constant course hath been since the Statute of 7 E. 6. Whether he could dispense with a Corporation or with this Corporation of Vintners and their Successors as he hath done having no possible knowledge of the persons themselves or of their number to whom he granted his Dispensation which is the Reason insisted on why his Grant is not good As to that 1. First That the nature of the offence is such as may be dispens'd with seems clear in reason of Law and by constant practice of licencing particular persons 2. Where the King can dispense with particular persons he is not confined to number or place but may licence as many and in such places as he thinks fit An Act of Parliament which generally prohibits a thing upon penalty which is popular or only given to the King may be inconvenient to divers particular persons in respect of person place time c. For this cause the Law hath given power to the King to dispense with particular persons But that Case touches not upon any inconvenience from the largeness of the Kings dispensation in respect of persons place or time which the Law leaves indefinite to the pleasure of the King as the remedy of inconveniences to persons and places by the penal Laws some of which may be very inconvenient to many particular persons and to many trading Towns others but to few persons or places and the remedy by Dispensation accordingly must sometimes be to great numbers of persons and places and sometimes to fewer If the wisdome of the Parliament hath made an Act to restrain pro bono publico the Importation of Forreign Manufactures that the Subjects of the Realm may apply themselves to the making of the said Manufactures for their support and livelyhood to grant to one or more the Importation of such Manufacture without any limitation non obstante the said Act is a Monopoly and void 3. It is admitted a Corporation is capable of a Dispensation as where the King hath an Inheritance in the thing concerning which the Dispensation is so it was express'd and therefore he may dispense with a Corporation of Merchants or with a Town Corporate not to pay Custome for some Commodity as he may with particular persons This seems to end the Question For if the offence in its nature may be dispens'd with and a Corporation be capable of a Dispensation the King 's not knowing the persons or numbers which is the pretended reason will not avoid the Dispensation in the present Case of the Vintners For by the same reason dispensations to Corporations and their Successors would be void in all Cases as well as in this for their persons and numbers must be equally unknown to the King in every Case as in the present Case That a dispensation may be granted to a Body Corporate or Aggregate as well as to private persons Suarez de Legibus which Mr. Attorney cited in this Case and is in truth a most learned Work is very express Suarez de Legibus l. 6. c. 12. f. 416. Dispensatio autem per se primo versari potest circa personam privatam quia solum est particularis exceptio à Communi Lege potest etiam ferri circa
communitatem aliquam quae sit pars majoris communitatis sicut uni Religioni Ecclesiae aut Civitati conceditur privilegium per quod excipitur à Lege Communi Potest etiam concedi toti communitati pro uno Actu vel pro certo tempore per modum suspensionis This last must be understood where the Dispensator is the intire Law-maker And accordingly Dispensations are as frequently granted by the Pope from whom the use of Dispensations was principally derived to us to Bodies Corporate that is to religious Orders as to private persons Laertius Cherubinus his Bullarium as is apparent in the Bullaries if any will consult them but I forbear citing them because they are Forreign Authorities 2 R. 3. f. 11 12. 1 H. 7. f. 2 3. E. 3. licens'd the Citizens of Waterford in Ireland their Heirs and Successors to carry their Staple Merchandise to what parts they pleased beyond the Seas being bound under great penalties by Act of Parliament to bring them to the Staple And the Iudges twice assembled 2 R. 3. 1 H. 7. made no question of the Kings Dispensation but the Question was because later Laws of Henry the Sixth's time had enacted the bringing of Irish Merchandise to the Staple at Calice Regist ad quod damnum f. 252. b. The King may licence an Aggregate Body Corporate and their Successors to damm up an ancient Current of the Sea through their Land for carriage by water to a Vill and that such passage and carriage shall be by a new Current as commodious as appears by a Writ of Ad quod damnum in the Register in the Case of the Prior and Covent of Christ-Church in Canterbury which is a Body Corporate The like licence may be to such Body Corporate and their Successors Regist f. 254. b to bring the Water-course of a Well for the use of that Community as by like Writ of Ad quod damnum appears in the Case of the Prior and Covent of K. for diverting such a Water-course for the use of their House And by another like Writ Regist f. 255. a in the Case of the Fraternity of Fryers Minors for diverting of a Water-course or part of it to serve the House of the Fraternity And so a Licence may be to a Corporation to stop up a High-way through their Land a more commodious being by them set out in place of it as is common in the Cases of particular persons And in all these Cases the benefit of the Licence is to every particular person of the Corporation more than to the Body Politique And these are not Licences where the King hath an Inheritance unless all High-ways and Water-courses be accounted the Kings Inheritance The like Dispensation or Exemption the King may grant to a Corporation that they shall be Toll-free which extends to every man and not to the Corporation only in their Corporate Capacity And a Dispensation and Exemption differ in sound only for a Dispensation is properly to licence a person to do a thing which he can do but is by a Law penally prohibited from doing it An Exemption is properly to licence a man or men not to do a thing which they are penally by a Law precepted to do Edward the Third granted to the Bailiffs Mayor 4 H. 6. f. 6. and Burgesses of Oxford that none of them should be sworn in Iuries with Forreigners that were not of the Town The like Grant was made to the Commonalty and Citizens of Norwich by Edward the Fourth 21 E. 4. f. 56. that they should not be put in Iuries out of the Town of Norfolk These are Dispensations or Exemptions to a Corporation and their Successors that none of them should serve in Iuries but within their Corporation which otherwise by the Law they must have done And the like we meet with daily to other Towns in the Circuits Now if it shall be said That High-ways the Water-streams Tolls of Markets Fines of Jurors and the like are the Kings Inheritance as well as his Customes are and therefore the King as to them may dispense with Corporations Then It is clear That penal Laws the breach of which enables no man to an Action for his damage thereby and the forfeiture and punishment for breaking them are much more the Kings Inheritance Therefore ex concesso the King may dispense with Corporations as to them Pl. Com. f. 487 Nicholls C. 2. The King cannot dispense in any Case but with his own Right and not with the Right of any other And every Right of the Crown is its Inheritance or Interest Therefore where the King can dispense at all he hath an Inheritance or Interest and consequently where he can dispense at all he may dispense to a Corporation If the Laws of 7 E. 6. and 12 Car. 2. had been penn'd thus Every man that sells Wine contrary to this Act shall pay the King Two pence for every pint so sold this Two pence had been a Duty and Inheritance to the King as his Customes are without difference and as the Duty of Six pence lately was upon every quart of French Wine retail'd Why then the greater or less the Duty be alters not the nature of the King's Inheritance in the Duty Therefore if the Acts had been That every seller of Wine contrary to the Act should pay the King Five pounds for every pint sold there Five pounds had equally been the King's Duty and Inheritance as the Two pence before and there had been no restraint to sell but what was made by payment of so great a Duty to the King Secondly The Acts so penn'd had equally hindred the selling of Wine as now they do by words prohibiting sale upon forfeiture of Five pounds for in both Cases the payment of Five pounds whether by Forfeiture or Duty is that which only prevents the selling Therefore the Laws were the same in effect either way penn'd and consequently the Forfeiture of Five pounds given as the Acts stand penn'd is equally the King's Inheritance as if it had been given by way of Duty In the next place I will shew what Dispensations or Licences are as I conceive unquestionably good to Corporations and their Successors 1. A Licence to purchase in Mortmain which none can have but a Corporation or single Body Politique 2. A Licence to make a Park Chase or Warren in their own Ground which the Law prohibits to be done without licence 3. A Licence to convert some quantity of their ancient Arable Land into Pasture which was prohibited by the Acts of 4 H. 7. 5 Eliz. and divers other Laws 4 H. 7. c. 19. most of which were repeal'd in 21 Jac. which is not material as to the Question in hand And that is an Offence also at the Common Law and I remember it proceeded against as such tempore Caâ—â—â— 1. in the Star-Chamber after the Repeal of most of the Statutes prohibiting it 4. A Licence to
Wine for that Objection reaches to Dispensations with single Persons as well as Corporations 2. The reason why the King cannot dispense in the Cases of Answ 2 buying Offices and Simoniacal Presentations is because the persons were made incapable to hold them and a person incapable is as a dead person and no person at all as to that wherein he is incapable For persons entred in Religion and dead in Law were not to all purposes dead but to such wherein they were incapable to take or give 3. A Member of the House of Commons is by 7 Jac. persona Answ 3 inhabilis and not to be permitted to enter the House before the Oath taken A particular Action is given by 2 H. 4. for such Suit in the Admiralty and such Licence gives the Admiralty a Iurisdiction against Law 4 5 P. M. Dyer 159. Domingo Belatta's Case A third Objection was That this general Dispensation answers Obj. 3 not the end and intention of the Act of 7 E. 6. but seems to frustrate and null that Law wholly And though the King can dispense with penal Laws yet not in such manner as to annihilate and make them void If this Objection held good in fact it is a material one Answ 1 but the Act of 7 E. 6. intended not that no Wine should be sold nor that it should be with great restraint sold but not so loosly as every man might sell it And since it is admitted that the Act of 7 E. 6. restrains not the King's power to licence selling Wine which perhaps was more a Question than this in hand it is clear the King may licence as if the Act had absolutely prohibited selling Wine and left it to the King to licence as he thought fit not abrogating the Law And if so The end of the Act being only that every man should not Answ 2 sell Wine that would as they might when the Act was made and not to restrain convenient numbers to sell for the Kingdoms use The King could not better answer the end of the Act than to restrain the sellers to Freemen of London To the Corporation of Vintners men bred up in the Trade Answ 3 and serving Apprentiships in it And that such should be licenc'd without restraint is most agreeable to the Laws of the Kingdom which permits not persons who had served Seven years to have a way of livelyhood to be hindred from exercising their Trades in any Town or part of the Kingdom Taylors of Ipswich C. Report 11. as was resolved in the Taylors of Ipswich Case in the Eleventh Report And therefore the King had well complyed with the ends of the Law had he licenced such to sell in any part of the Kingdom which he did not but confined them to Towns Obj. 4 It hath been said to the Case of Licences to Corporations for purchasing in Mortmain That the Laws against Mortmain are not penal because they may be dispens'd with without a Non obstante and so cannot penal Laws be Answ 1 It is durus sermo that those Laws are not penal which give the forfeiture of the Land 2. By the Statute of 1 H. 4. c. 6. and 4 H. 4. c. 4. the King is restrained in some Cases from granting as he might at the Common Law Therefore without a Non obstante of those Laws it cannot appear that the King would have granted it if he had been appris'd of those restraining Laws Therefore a Non obstante in such Case is requisite But when a man might by the Common Law purchase without licence as in the Case of Mortmain before the prohibiting Statutes or might Export or Import a prohibited Commodity before restraint by Statute a Licence ex specialia gratia is sufficient without a Non obstante For by petitioning for a Licence the King is sufficiently informed the Law permits not the thing without a Licence which is all the use of a Non obstante This enough appears by the Case in Dyer 269. where a Licence ex speciali gratia is good without issuing any Ad quod damnum in the Case of Mortmain 3. The Writ of Ad quod damnum in that Case which regularly issues informs the King better than a Non obstante would do Obj. 5 Next it hath been said in the Case of Mortmain the King dispenseth only with his own Right and concludes not the mean Lords It is true for the King in no case can dispense but with his own Right and not with anothers Answer hath been offered to the President of Waterford by Obj. 6 which the King dispens'd with the Offence of not bringing the Staple Merchandise from Ireland to Calais being so penal which was an Offence by 10 H. 6. c. and 14 H. 6. c. to the universal hurt of the Kingdom and therefore much greater than selling of Wine contrary to the Statute of 7 E. 6. c. but that was as hath been said Because those Merchants were to pay Custome to the King which was his Inheritance and with which he could dispense Answ This put together sounds thus The Merchants of Waterford were to pay Customes to the King for their Staple Merchandise for which he might dispense if he would but never did for any thing appears The Merchants of Waterford were upon penalties to bring their Staple Merchandise to Calais with which the King could not dispense had no Customes been due from them yet he did dispense with them for that which he could not viz. bringing their Goods to Calais because he did not dispense with them for that which he could viz. their Customes there is no Inference nor Coherence in this Answer But it also appears by the Statute 27 E. 3. c. 11. of the Staple for the reason therein given that the Merchants of Ireland were to pay their Customes in Ireland and to bring their Cockets of their payments there to the Staple lest otherwise they might be doubly charg'd Therefore the Customes which were paid in Ireland before the Goods brought to the Staple was no cause for dispensing with the Corporation of Waterford for not bringing their Merchandise to the Staple according to the penal Laws for that purpose The Licence of Edward the Third pleaded by the men of Waterford was perhaps after the Statute of 27 E. 3. when they were not to pay their Customes at the Staple but however the Licences by them pleaded 1 H. 7. by Henry the Sixth and Edward the Fourth were long after they were to pay their Customes in Ireland and not at the Staple I must say as my Brother Atkins observed before That in this Case the Plaintiffs Council argue against the Kings Prerogative for the extent of his Prerogative is the extent of his Power and the extent of his Power is to do what he hath will to do according to that ut summae potestatis Regis est posse quantum velit sic magnitudinis est velle quantum potest if therefore the King have a will
to dispense with a Corporation as it seems K. James had in this Case when the Patent was granted but by Law cannot his Power and consequently his Prerogative is less than if he could 1. Malum prohibitum is that which is prohibited per le Statute Per le Statute is not intended only an Act of Parliament but any obliging Law or Constitution as appears by the Case For it is said The King may dispense with a Bastard to take Holy Orders or with a Clerk to have two Benefices with cure which were mala prohibita by the Canon Law and by the Council of Lateran not by Act of Parliament 2. Many things are said to be prohibited by the Common Law and indeed most things so prohibited were primarily prohibited by Parliament or by a Power equivalent to it in making Laws which is the same but are said to be prohibited by the Common Law because the Original of the Constitution or prohibiting Law is not to be found of Record but is beyond memory and the Law known only from practical proceeding and usage in Courts of Justice as may appear by many Laws made in the time of the Saxon Kings of William the First and Henry the First yet extant in History which are now received as Common Law So if by accident the Records of all Acts of Parliament now extant none of which is elder than 9 H. 3. but new Laws were as frequent before as since should be destroyed by fire or other casualty the memorials of proceeding upon them found by the Records in Iudicial proceeding would upon like reason be accounted Common Law by Posterity 3. Publique Nusances are not mala in se but mala politica introducta though in some passages of Coke's Posthuma's they are termed mala in se because prohibited at Common Law which holds not for the reasons before given For liberty of High-ways strangers have not in Forreign Territories but by permission therefore not essential to Dominion because it may be lawfully prohibited 2. Liberty of the High-ways is prohibited with us in the night by the Statute of Winchester in some seasons of the year and in times of warr and for apprehension of Thieves in time of Peace c. The Assise of Bread and Ale is constituted by Statute and may be taken away Forestalling the Market and ingrossing hath like institution the first was prohibited by Athelstans Laws and William the First 's and may be permitted by a Law the second is allowed by the late Laws when Corn is at a certain low price quaere the Law tempore Car. 2. the pulling down of Bridges wholly or placing them in other places may be done by a Law and what may be or not be by a Law is no malum in se more than any other prohibitum by a Law is Judgment was given by the Advice of the Judges in the Kings Bench Quod Quaerens nil Capiat In a formedon in the Reverter Mich. 25 Car. II. C. B. Rot. 253. John Bole Esquire and Elizabeth his wife and John Ely Gent. and Sarah his wife Demandants against Anne Horton Widow Tenant of _____ The Writ ONe Messuage Thirty Acres of Land Fifteen Acres of Meadow Twenty Acres of Pasture and of the third part of One Messuage One hundred and forty Acres of Land Four and forty Acres of Meadow Eighty three Acres of Pasture with the Appurtenances in Tickhill and Wellingly which William Vescy Gent. Grand father of the said Elizabeth and Sarah whose Coheirs they are gave to John Vescy during the life of the said John and after the decease of the said John to the heirs males of the body of the said John begotten and for default of such issue to Robert Vescy and the heirs males of his body begotten and for default of such issue to William Vescy son of the said William the Grandfather and to the heirs males of his body begotten and for default of such issue to Matthew Vescy and the heirs males of his body begotten And which after the death of the said John Robert William the Son and Matthew to the said Elizabeth and Sarah Cosins and Coheirs of the said William the Grandfather that is to say Daughters and Coheirs of the said John Son and Heir of the said William the Grandfather ought to revert by form of the said gift for that the said John Robert William the Son and Matthew are dead without heirs males of their bodies lawfully begotten Then counts that The Count. William the Grandfather was seis'd of the Premisses in demand in his Demesne as of Fee and held the same in Soccage of the late King Charles as of his honour of Tickhill in the said County in free Soccage by fealty only and so seis'd the Eight and twentieth day of November 1628. at Tickhill aforesaid made his last Will in writing and thereby devised the said Lands to the said John Vescy for life and after to the heirs males of his body begotten And for default of such issue to Robert Vescy and the heirs males of his body and for default of such issue to William Vescy the Son and the heirs males of his body and for default of such issue to Matthew Vescy and the heirs males of his body and after the Six and twentieth of December 1628. at Tickhill aforesaid died so seis'd And the said John after his death entred and was seis'd by force of the said gift and died so seis'd without heir male of his body After the death of John Robert entred by vertue of his said Remainder and was seis'd accordingly and so seis'd died without heir male of his body after whose death William entred by vertue of his said Remainder and was seis'd accordingly and he being so seis'd Matthew died without heir male of his body and after the said William died seis'd of the premisses without heir male of his body After the death of which William the Son for that he died without heir male of his body begotten the right of the Premisses reverts to the said Elizabeth and Sarah who together with their said Husbands demand as Cosens and Coheirs of the said William the Grandfather that is to say Daughters and Coheirs of the said John Son and Heir of the said William the Grandfather and which after the death of the said John Robert William and Matthew for that they died without any heir male of their bodies ought to revert to them The Tenant Anne for Plea saith That the said William The Barr. whose Cosens and Coheirs the said Elizabeth and Sarah are by his Deed dated the Seventh of November 1655. in consideration of a marriage to be solemnized between him and Anne the now Tenant then by the name of Anne Hewett and of 1200 l. marriage Portion and for a Ioynture for the said Anne and in satisfaction of all Dower she might claim out of his Lands And for setling the said Lands upon the issue and heirs of
than a local Subject ibid. 286 5. He must be otherwise a Subject than any Grant or Letters Patents can make him ibid. 6. The Natives of Jersey Garnsey Ireland and the English Plantations c. are not Aliens 268 in loco 278 279 7. Those which are born in the Kings Forreign Plantations are born his Natural Subjects and shall inherit in England 279 8. A Natural Subject is correlative to a Natural Prince and a man cannot have two natural Soveraigns no more than two Fathers or two Mothers 280 273 in loco 283 9. The several ways by which men born out of England may inherit in England 281 10. An Antenatus in Scotland shall not inherit without an Act of Parliament because he is an Alien 274 in loco 284 287 11. Who are the Antenati Postnati and the difference between them 273 in loco 283 12. An Act of Parliament in Ireland shall never Naturalize an Alien to England to make him inheritable there 274 in loco 284 13. No Tenure by Homage c. in any of the Kings Dominions acquired by Conquest or by Grant or Letters Patents can make a man inheritable in England 279 14. No Laws made in any Dominion acquired by Conquest or new Plantation by the Kings Governor or people there by virtue of the Kings Letters Patents can make an Alien inheritable in England 279 15. One Naturalized in Scotland since the Union cannot inherit in England 268 in loco 278 279 280 285 16. A man born a Subject to one that is King of another Country and who afterwards comes to be King of England is an Alien and shall not inherit in England ibid. 285 286 17. An act of Law making a man as if he had been born a Subject shall not work the same effect as his being born a Subject which is an effect of Law 280 18. An Alien hath issue a Son and afterwards is Denizen'd and he afterwards hath another Son here the youngest Son shall inherit 285 Allegiance 1. All Allegiance and Subjection are acts and obligations of Law the subjection begins with the birth of the Subject at which time the Kings protection of him likewise begins 279 Appendant 1. Whatsoever is appendant to the Land goes to the Occupier thereof naturally 190 2. An Advowson may be appendant to a Mannor 12 Apprentice 1. The Law permits not persons who have served Seven years to have a way of livelyhood to be hindred from the exercise of their Trades in any Town or part of the Kingdom 356 Arch-bishop See Ordinary Dispensation 1. The Arch-bishop may dispense for a Plurality 20 Assets 1. The manner of pleading Assets ultra 104 Assignee and Assignment 1. Offices or acts of personal Trust cannot be assigned for that Trust which any man may have is not personal 180 181 2. An Occupant becomes an Assignee in Law to the first Lessee 204 3. If a man Covenants against himself his Executors Administrators and Assigns yet if his Assigns do a tortious act it is no breach of the Covenant because he may have remedy by Action for the tort 118 to 128 Assise 1. An Assise will not lye for a Rent issuing out of Tythes barely 204 Attaint See Title Statutes 3 11. 1. An Attaint lies only in Civil not Criminal Causes 145 146 2. Jurors are not finable for a false Verdict an Attaint only lies against them 145 Attorney 1. An Attorney cannot bring Debt for Soliciting but Case only 99 2. The Defendant cannot wage his Law for Attorneys Fees ibid. Attornment 1. By the Common Law an Attornment was requisite to entitle the Lord the Reversioner the Grantee of a Remainder or of a Rent by Deed or Fine to distrain for Rent in arrear 39 2. By a Grant and Attornment the Grantee becomes actually seised of the Rent 40 3. Attornment and power to distrain follows the possession and not the use 43 4. An Attornment cannot be for a time 27 5. An Attornment of the Tenant doth not disclaim but affirm his possession For it is the act of the Tenant by reason of his being in possession 193 6. A mans Estate in a Rent-charge may be enlarged diminished or altered and no new attornment or privity requisite to such alteration 44 7. Attornment is requisite to the Grant of an Estate for life but to a Confirmation to enlarge an Estate it is not 44 45 46 8. A Rent-charge is granted to Commence Seven years after the death of the Grantor Remainder in Fee Attornment must be made in the life time of the Grantor 46 9. If a Fine is levied of the Reversion of Land or of a Rent to uses the Cestuy que use may distrain without Attornment 50 51 10. Where a Rent Reversion or Remainder is sold by Bargain and Sale the Bargainee may distrain without Attornment 51 11. Where a man is seised of a Rent-charge and grants it over to which the Tenant attorns and he afterwards retakes that Estate here must be a new Attornment for the former privity is wholly destroyed 44 12. Where an Attornment shall be good to a contingent use 52 Bargain and Sale See Intollment 1. WHere a Rent Reversion or Remainder is sold by Bargain and Sale the Bargainee may distrain for the Rent without Attornment 51 Baron and Feme 1. The man after the marriage hath the deduction of the woman ad Domum Thalamum and all the civil power over her and not she over him 306 2. The Interdicts of carnal knowledg in the Levitical Law were directed to the men not to the women who are interdicted but by a consequent for the woman being interdicted to the man the man must also be interdicted to the woman for a man cannot marry a woman and she not marry him 305 Bishop See Ordinary Archbishop 1. What Bishops were originally 22 2. A Parson is chosen Bishop his Benefices are all void and the King shall present 19 20 3. It is not at all inconsistent for a Bishop to be an Incumbent 22 4. A Bishop may be an Incumbent after Consecration 24 5. How many Benefices a Bishop may retain by a Dispensation 25 6. No Canon Ecclesiastical can be made and executed without the Kings Royal assent 329 7. Bishops in Wales were originally of the foundation of the Prince of Wales 411 Canons Ecclesiastical See Title Ecclesiastical Court 1. WHat Canons are good and binding and what not 327 328 Capias ad Satisfaciendum See Execution Certiorari 1. A Certior lies out of the Chancery to Ireland to certifie an Act of Parliament but it doth not lye to Scotland 287 2. A Certiorari doth not lye to Wales to certifie a Record to the Courts at Westminster to the intent that Execution may issue out here upon it 398 Certificate 1. There are many things whereof the Kings Courts sometimes ought to be certified which cannot be certified by Certiorari 288 Chancery 1. The Chancery may grant a Habeas Corpus and discharge a Prisoner thereupon as well
as the Kings Bench 157 Commendam 1. Capere in Commendam is good where the Patron is not prejudiced 25 2. Retinere in Commendam is good where consented to by him that was to present to the Avoidance 25 3. Commendam Retinere may be for years 24 25 4. How many Benefices a Bishop may retain by a Dispensation 25 5. Although the King confirms it yet the Incumbent derives no Estate from the King but only by the Patrons presentment 26 Common See Title Statute 1. 1. No Common of Pasture can be claimed by Custome within the Mannor that may not be prescribed for out of the Mannor 254 2. Inhabitants not Incorporated cannot prescribe in a Common 254 3. How Copyholders must prescribe for Common ibid. 4. Where the Tenant may prescribe to have sola separalis Communia and where not 255 256 5. One or more Tenants may have solam separalem Communiam from other Commoners but not from the Lord 256 6. Where the Commoner claims habere solam separalem Pasturam how and upon what Action Whether the Lord shall be excluded or no the matter will come in question 253 7. Where a Commoner prescribes for Common for Cattel levant and couchant Antiquo Messuagio without any Land the prescription is naught because Cattel cannot be levant and couchant to a Common intent upon a Messuage only 252 253 8. Where the Lord may approve against the Commoners being an Exposition of the Statute of Merton 256 257 Common Pleas Court 1. The Common Pleas or Exchequer may upon the Return of a Habeas Corpus d scharge a Prisoner if it appear the Imprisonment is against Law 157 2. If the Imprisonment is just or doubtful and uncertain the Common Pleas cannot bayl him but must remand him 157 3. A Prohibition for incroaching of Jurisdiction lies in the Common Pleas 157 Condition 1. The difference between a Condition and Limitation 32 2. A Devise to the Son and Heir and if he did not pay all the Legacies that then it shall remain to the Legatees In default of payment this shall vest in the Legatees by Executory Devise 271 Condition of an Obligation 1. A Bond is entred into with Condition for quiet Enjoyment the Defendant pleads that the Plaintiff entred and might have quietly enjoyed the Plaintiff replyed That he was outed by J. S. the Replication is void because he did not say that J. S. had a good Title 121 122 Confirmation 1. A Confirmation cannot be for a time 27 2. Where it shall enlarge an Estate 44 45 3. The Kings Confirmation of a Commendam transfers no Right to the Incumbent 26 Constable See Title Officer  Construction of Law See Title Law 1. It is both equitable and of publick convenience that the Law should assist men to recover their dues when detained from them 38 2. It is an absurdity to say That a man hath a Right to a thing for which the Law gives him no remedy 47 138 Copyholder 1. They cannot prescribe against the Lord to have solam separalem Pasturam 254 255 2. How the Copyholders must prescribe for Common 254 Corporation 1. The King may dispense with a Corporation for any thing which in its nature may be dispensed with 347 348 2. The King may dispense with a Corporation as to penal Laws 349 350 3. What Licenses made by the King to Corporations are good and several instances of them 348 349 350 4. What Licenses to a Corporation are not good 351 352 Costs See Damages 1. Upon a Nonsuit or Discontinuance upon an Action brought against Officers they shall have their double Costs by the Statute of the One and twentieth of King James 117 Covenant 1. All Covenants between the Lessor and Lessee are Covenants in Law or express Covenants 118 2. An express Covenant restrains the general Covenant in Law 126 3. Where the Covenant is to enjoy against one or more particular men and where against all men 127 4. By a Covenant in Law the Lessee is to enjoy his Term against the lawful entry or interruption of any man but not against tortious Entries because the Lessee hath his proper remedy against the wrong-doers 118 119 5. If a stranger who hath no right outs the Lessee he shall not bring Covenant against the Lessor because he hath remedy by Action against the stranger But if he enter by elder Title then he shall have Covenant because he hath no other remedy 119 120 6. Though the Covenant is that the Lessee shall enjoy against all persons yet he shall not have Covenant against the Lessor unless he be legally outed 119 120 121 123 7. The Law shall never adjudge that a man covenants against the wrongful acts of strangers except the words are full and express 121 8. When the Covenant is to enjoy against all men the Covenant is not expresly to enjoy against tortious acts neither will the Law so interpret it 123 125 Coverture See Baron and Feme  County Palatine See Title Franchise  Court or Courts See Common Pleas Kings Bench. 1. The Court of Kings Bench cannot pretend to the only discharging of prisoners upon Habeas Corpus unless in case of priviledge but the Chancery may do it without question 157 2. Prohibitions for incroaching Jurisdiction may issue as well out of the Common Pleas as Kings Bench ibid. 209 3. The Judges of the Temporal Courts have full conizance of what Marriages are within the Levitical Degrees and what not 207 4. They have likewise conizance of what Marriages are incestuous and what not and may prohibit the Ecclesiastical Courts from questioning such Marriages 207 5. The Secular Judges are most conizant of Acts of Parliament 213 6. If a Court give Judgment judicially another Court is not bound to give the like Judgment unless it think that Judgment first given to be according to Law 383 7. The Court of the Sessions in London doth not differ in its essence nature and power from another Sessions in the Country but all differ in their accidents which make no alteration in their actings in the eye of the Law 140 Custome See Prescription 1. How things become strangely unnatural to man by custome only 224 Customes for Merchandize See Title Statutes 2 25. 1. The Customes called Custumae Antiquae for Wooll Wooll-fells and Leather were granted by Parliament to King Edward the First in the third year of his Reign and was no Duty at the Common Law 161 162 163 2. The several properties that Wines must have which are lyable to pay Tunnage and Poundage by the Act of 12 Car. 2. 165 3. No goods are to pay Custome but those which are brought in to Merchandize not such as come in by accident as in case of wreck 165 166 171 172 4. By the common Law all wrecks were the Kings and therefore not lyable to pay Custome because they were his own 164 Damages See Costs 1. In an Action upon the Case the whole Debt is
matter of the Law 239 14. A man hath no Right to any thing for which the Law gives no remedy 253 15. The effect of Law can do more than an act of Law 280 16. How things become natural by custome 224 17. What natural Laws are 226 227 18. Of transgressing Natural Laws and in what sense that is to be understood 226 227 228 19. It is not safe in case of a publick Law as between the Spiritual and Temporal Jurisdiction to change the Received Law 220 20. The Law of the Land cannot be altered by the Pope 20 21 132 21. Many Laws made in the time of the Saxon Kings are now received as Common Law 358 Lease Lessor Lessee See Title Statute 23. 1. A Demise having no certain commencement is void 85 2. In what cases the Lessee shall bring an Action against his Lessor for breach of Covenant upon a Covenant of Quiet Enjoyment without the lawful disturbance of himself c it being a full exposition of that Covenant when it is either by Law or Express and general or particular from 118 to 128 3. A Demise of Tythe with Land is good within the 13 El. but a Demise of Tythe barely is not good 203 204 4. A man leases Lands for certain years habendum post dimissionem inde factum to J. N. and J. N. hath no Lease in esse the Lease shall commence immediately from the Sealing 73 74 80 81 83 84 5. A power is granted to Demise Lands usually letten Lands which have been twice letten are within this Proviso 38 6. Which at any time before have been usually letten that which was not in lease at the time of the Proviso nor twenty years before is not within the Proviso 34 35 by the Demise of the Farm of H. the Mannor of H. will pass 71 7. Proviso that the Plaintiff may lease for One and twenty years reserving the ancient Rents so long as the Lessees shall pay the Rents these are words of limitation and the Non-payment of the Rent determines the term without a Demand 32 License See Title King Dispensation  Limitation 1. A Limitation determines a Lease without demand of the Rent 32 2. What words shall be taken to be a Limitation and no Condition 32 Livery and Seisin 1. Where a Rectory is granted Una cum Decimis de D the Tythe which alone cannot pass without Deed doth pass by the Livery of the Rectory and without Livery the Tythe will not pass because it was intended to pass with the Rectory by Livery 197 198 London 1. The Customes of London are confirmed by Act of Parliament 93 2. How Declarations are in London according to their Custome ibid. Marriages See Title Statute 16. 1. Incest was formerly of Spiritual Conizance 212 2. The Judges of the Temporal Courts have by several Acts of Parliament full conizance of Marriages within or without the Levitical Degrees 207 209 210 3. They have full conizance of what Marriages are Incestuous and what not according to the Law of the Kingdom and may prohibit the Spiritual Courts from questioning of them 207 209 210 305 4. The Interdicts of Marriage and carnal Knowledge in the Levitical Law were directed to the men not to the women who are interdicted by a consequent For the woman being interdicted to the man the man must also be interdicted to the woman for a man cannot marry a woman and she not marry him 305 5. A man married his Grand-fathers Brothers wife by the Mothers side and held lawful 206 207 6. A man married his first Wives sisters daughter and held unlawful and after a Prohibition a Consultation granted 247 321 322 7. For a man to marry his wives sister is a Marriage expresly prohibited within the Eighteenth of Leviticus 305 8. What Marriages are lawful and what not 210 218 219 305 306 307 308 309 9. How the words No Marriages shall be impeached Gods Law except shall be understood 211 10. What Marriages are prohibited within the Levitical Degrees 214 215 306 307 308 11. What Marriages are by Gods Law otherwise prohibited 220 221 12. Marriages contrary thereunto ought not to be dispensed with 214 216 13. Marriages with Cosen Germans lawful 218 219 14. All Marriages are lawful which are not prohibited within the Levitical Degrees or otherwise by Gods Law 219 240 242 305 15. In what sense any Marriages and Copulations of man with woman may be said to be natural and in what not 221 16. Marriages forbidden in Leviticus lawful before 222 17. Marriages lawful after restoring the world in Noah ibid. 18. Concerning Universal Obligation to the Levitical Prohibitions in cases of Matrimony and Incest 230 19. What Marriages were usual in old times 237 20. How simple Fornication was satisfied in the time of Moses ibid. 21. Who shall be said to be the near of kin which are prohibited Marriage 307 308 309 310 311 22. What Marriages are by the Matrimonial Table of England interdicted 315 316 317 318 23. Marriages within the Levitical Prohibitions were always unlawful but Marriages within the Levitical Degrees were not always unlawful 319 320 321 24. How the Levitical Degrees are to be reckoned 320 25. All Marriages prohibited by the Table are declared to be within the Degrees prohibited by Gods Law 328 26. In what the Parochial Matrimonial Table used in England agrees with the Karait Rabbins 311 312 27. The primitive Christian Church could punish Incestuous Marriages no otherwise than by forbidding them the Communion 313 28. By what Law the primitive Christian Churches conceived themselves obliged in the matter of Marriage to observe the Levitical prohibitions strictly and indispensibly 314 29. Amongst the Hebrews there was no Divorce for Incest but the Marriage was void and the Incest punished as in persons unmarried 313 Master and Servant 1. Although there is no Master or Servant originally in Nature but only parity yet after Laws have constituted those Relations 242 2. A Father cannot be Servant to his Son 243 Metropolitan See Arch-bishop Ordinary  Misrecital See Lease 1. Where a Lease is misrecited in the date and the habendum is to be from the date which is misrecited there the Lease shall commence from the Sealing 73 Monopoly 1. If Exportation or Importation of a Commodity or Exercise of a Trade is prohibited generally by Act of Parliament and no cause thereof expressed a license may be granted to one or more persons with a Non obstante for by such general Restraint the Law intended to limit the over-numerous Importers and Traders and such general Licenses shall not be accounted Monopolies 345 2. To avoid a Monopoly the Kings Dispensation upon all prohibitory Laws must generally be limited by Law 346 Naturalization See Title Alien  Non obstante 1. IT is a license to do a thing which at the Common Law might be done without it but now being restrained by some Act of Parliament cannot be done without it 345 356 2. Where a
Heirs is expresly forbidden by the Statute de Donis 374 Right See Title Action 1. Where there can be presumed to be no remedy there is no right 38 Seisin 1. THe profits of all and every part of the Land are the Esplees of the Land and prove the Seisin of the whole Land 255 2. In an Entry sur Disseisin or other Action where Esplees are to be alledged the profits of a Mine will not serve 254 Spoliation 1. The Writ of Spoliation lyes for one Incumbent against the other where the Patrons right comes in question 24 Statute See Recognizance 1. A Recognizance taken before the Chief Justice of the Common Pleas in the nature of a Statute Staple 102 Statutes in general 1. Where an Act of Parliament is dubious long usage is a just medium to expound it by and the meaning of things spoken and written must be as hath been constantly received by common acceptation 169 2. But where usage is against the obvious meaning of an Act by the vulgar and common acceptation of words then it is rather an oppression then exposition of the Act 170 3. When an Act of Parliament alters the Common Law the meaning shall not be strained beyond the words except in cases of publick utility when the end of the Act appears to be larger than the words themselves 179 4. Secular Judges are most conizant in Acts of Parliament 213 5. When the words of a Statute extend not to an inconvenience rarely happening but doth to those which often happen it is good reason not to strain the words further than they will reach by saying it is casus omissus and that the Law intended quae frequentius accidunt 373 6. But where the words of a Law do extend to an inconvenience seldom happening there it shall extend to it as well as if it happens more frequently 373 7. An Act of Parliament which generally prohibits a thing upon a penalty which is popular or only given to the King may be inconvenient to diverse particular persons in respect of person place time c. For this cause the Law hath given power to the King to dispense with particular persons 347 8. Whatsoever is declared by an Act of Parliament to be against Law we must admit it so for by a Law viz. by Act of Parliament it is so declared 327 9. Where the Kings Grant is void in its creation a saving of that Grant in an Act of Parliament shall not aid it 332 10. How an Act of Parliament may be proved there hath been such an Act where the Roll is lost 162 163 404 405 407 11. An Act of Parliament in Ireland cannot effect a thing which could not be done without an Act of Parliament in England 289 12. Distinct Kingdoms cannot be united but by mutual Acts of Parliament 300 13. A repealed Act of Parliament is of no more effect than if it had never been made 325 Statutes 1. Merton cap. 4. The Statute of Merton which gave the owner of the Soyl power to approve Common did not consider whether the Lord was equally bound to pasture with his Tenants or not but it considered that the Lord should approve his own Ground so as the Commoners had sufficient 256 257 2. The inconveniences before the making of the Statute and the several remedies that were provided by it 257 1. Westm 1. 3 E. 1. The Antiquae Custumae upon Woolls Woolfells and Leather were granted to E. 1. by Parliament and therefore they are not by the Common Law 162 163 1. Westm 1. cap. 38. Attaints in Pleas real were granted by this Statute 146 1. Westm 2. cap. 24. The Quare Ejecit infra terminum is given by this Statute for the recovery of the Term against the Feoffee for an Ejectment lay not against him he coming to the Land by Feoffment 127 Statute of Glocester 1. Restrained warranties from binding as at Common Law 366 377 2. Before this Statute all Warranties which descended to the Heirs of the Warrantors were barrs to them except they were Warranties which commenced by Disseisin 366 3. The reason why the warranty of Tenant in Tayl with assets binds the right of the Estate Tayl is in no respect from the Statute de Donis but by the equity of the Statute of Glocester by which the Warranty of the Tenant per Curtesie barrs not the Heir for his Mothers Land if his Father leaves not assets to descend 365 4. If this Statute had not been made the lineal Warranty of Tenant in Tayl had no more bound the right of the Estate Tayl by the Statute de Donis with assets descending than it doth without assets ibid. Westm 2. De Donis 1. All Issues in Tayl within this Statute are to claim by the Writ purposely formed there for them which is a Formedon in the Descender 369 2. it intended not to restrain the alienation of any Estates but such as were Fee-simples at the Common Law 370 3. This Statute intended not to preserve the Estate for the Issue or the Reversion for the Donor absolutely against all Warranties but against the alienation with or without Warranty of the Donee and Tenant in Tayl only 369 4. Therefore if Tenant for life alien with Warranty which descended upon the Reversioner that was not restrained by the Statute but left at the Common Law 370 5. By this Statute the Warranty of Tenant in Tayl will not barr the Donor or his Heir of the Reversion ibid. 6. The Donee in Tayl is hereby expresly restrained from all power of alienation whereby the Lands entayled may not revert to the Donor for want of issue in Tayl 371 7. See a further Exposition upon this Statute from fol. 371 to 393 1. Wales Statute de Rutland 12 E. 1. after the Conquest of it by Edward the First was annext to England Jure proprietatis and received Laws from England as Ireland did Vide postea 9 17 18. and had a Chancery of their own and was not bound by the Law of England until 27 H. 8. 300 301 399 400 2. Although Wales became of the Dominion of England from that time yet the Courts of England had nothing to do with the Administration of Justice there in other manner than now they have with the Barbadoes Jersey c. all which are of the Dominions of England and may be bound by Laws made respectively for them by an English Parliament 400 See for a further Exposition 401 402 c. Acton Burnell 13 E. 1. 1. Recognizances for Debt were taken before this Statute by the Chancellor two Chief Justices and Justices Itinerants neither are they hindred by this Statute from taking them as they did before 102 28 E. 3. c. 2. concerning Wales 1. Tryals and Writs in England for Lands in Wales were only for Lordships Marchers and not for Lands within the Principality of Wales Vide ante 7. pòstea 17 18. for the Lordships and Marchers were of the Dominion of England and held of
the Plaintiff entitle himself to an Advowson as appendant to a Mannor and sheweth a presentment as appendant for so are the words and the Defendant shews another Presentment without that that the Advowson is appendant this Traverse is good for if it be not appendant as the Plaintiff declares it is sufficient to destroy his Declaration and so there both are traversable but otherwise as the Case is here viz. the principal Case first cited I conceive the meaning clearly to be that in the principal case the Seisin in gross of the Advowson alledged in the Declaration was not traversable but the presentation which might be by Vsurpation and made a good Title though the Plaintiff were not seised in gross of the Advowson But if the Plaintiff declare the Advowson to be appendant to a Mannor and withal sets forth in his Declaration the Letters of Presentation to the Church as appendant there the Defendant may traverse either the appendency or the Presentation for though the Advowson were appendant yet if the Plaintiff presented not he had no Title Whence I infer that if the Plaintiff had only counted a Seisin of the Mannor to which the Advowson was appendant without shewing the presentment to be to the Church by vertue of the appendency the traverse of the appendency had not been good but it must have been of the Presentation which might have been by Usurpation notwithstanding the alledging barely of the appendency as is resolved before in the point in the Lord Buckhursts Case in Anderson and in the principal Case of 10 H. 7. But when the Count is of the appendency of the Advowson and also of the Presentation to it as appendant there there could be no Usurpation according to the Resolutions in Sir Henry Gaudies Case in the Lord Hobart before cited and in Greens Case in the 6th Report of the Lord Cook And the not observing of this difference made the Reporter at the end of thâ— L. Buckhursts Case deny this latter part of the Case in 0 H. 7. because it was clearly against the reason of the principal Case in 10 H. 7. and against the Resolution of the L. Buckhursts Case if the words of shewing the presentment to have been as appendant had been omitted in the Case But those words make the latter Case in 10 H. 7. exactly to agree with the Judgments both in Sir Henry Gaudies Case in Hob. and Greens Case in the 6th Rep. 15 H. 6. Fitzh Quare Imped num 77. To the 4 first Cases may be added the Case of 15. H. 6. where the Plaintiff counts in a Quare Impedit that his Ancestor was seised of a Mannor to which the Advowson is appendant and presented and dyed and that the Mannor descended to the Plaintiff and the Church became void whereby he ought to present the Defendant pleads that long after the Presentation alledged by the Plaintiff the Defendant was seised of the Advowson in Fee and presented such a one and after the Church became void and he presented the present Incumbent and this Plea was allowed a good plea by the Court without answering to the appendency alledged by the Plaintiff which was in effect avoided by the Defendants Presentation after And in this Case the Plaintiff was without remedy unless he could traverse the Presentation alledged by the Defendant otherwise than by his Writ of Droit d'Advowson Crook 2. Car. f. 61. Sir Greg. Fenner vers Nicholson Pasfield As also the Case in Crook If the Plaintiff make Title to present as being seised of an Advowson in gross or as appendant and the Defendant make Title as presented by reason of a Simoniacal presentation made by the Plaintiff and thereby a Devolution to present to the King under whom the Defendant claims because the Defendant doth admit the Advowson to be in gross or appendant in the plaintiff and that neither of them is inconsistent with the Title made by the Defendant he shall not traverse the Seisin in gross nor the appendency but because somewhat else is necessary to give the plaintiff right to present that is the vacancy of the Church either by death or resignation or deprivation which the plaintiff must alledg and which are inconsistent with the Defendants Title who claims not by vacancy by death resignation or deprivation but by the Simony therefore he shall traverse the vacancy alledged either by death resignation or deprivation as the Case falls out without one of which the plaintiff makes no Title and if the present vacancy be by either of them the Defendant hath no Title Now to apply these Cases to the question before us whether the Defendant should have traversed the Presentation of the Lord Wootton alledg'd by the plaintiff or the appendency which he hath done to the third Part of the Mannor and third Part of the Rectory of Burton Basset It seems clear That in all Cases of Quare Impedits the Defendant may safely traverse the Presentation alledged in the Plaintiffs Count if the matter of fact will admit him so to do for the Plaintiff hath no Title without alledging a Presentation in himself his Ancestor or those from whom he claims the Advowson but the Defendant must not traverse that is deny the Presentation alledged when there was a Presentation for then the issue must be found against him The Lord Wootton therefore having presented by what right soever it was there was no traversing his Presentation But by what right soever the Lord Wootton presented the Plaintiff hath no right to present unless the Lord Woottons Presentation were by the appendency to the third part of the mannor for he deriving no title to the Advowson as in gross nor any other way but as belonging to the third part of the Mannor which he derives from the Lord Wootton Therefore nothing is traversable by the Defendant but the appendency which if found against the Plaintiff he hath no colour of Title Pasc 19. Car. 2. Rot. 484. C. B. Henry Edes Plaintiff in a Quare Impedit against Walter Bishop of Oxford THat he was and is seised of the Advowson of the Church of Chymer in gross in Fee and thereto presented Will. Paul his Clerk who was instituted and inducted accordingly That after the Church becoming void and so remaining by the death of the said William Paul and it belongs to him to present he is hindred by the Defendant The said Bishop by Protestation saying the Church did not become void by death of the said William Paul pleads that the said Church was full of the said Paul The said W. Paul was created Bishop of Oxford whereby the said Church became void and the right of presentation devolv'd to the King by Prerogative 25 H. 8. c. 21. Then pleads the clause of the Act of 25 H. 8. which impowrs the Archbishop of Canterbury to give faculties and dispensations as the Pope did at large That after and before the Writ purchased Decimo of the King the
this Argument by saying the Dispensations in cases of Plurality were not alike with that of retaining the former Benefice when the Incumbent was created Bishop because in the case of Plurality there was no actual voidance and consequently no title to the Patron to present before Deprivation and that the Dispensation prevented the Deprivation which was a Spiritual Act wherewith the Patron had not to do and by a Consequent only prevented the voidance It is resolv'd in Holland's Case Digby's Case Hollands Case 4. Rep. Digby's Case 4. Rep. and many others that the Patron may present assoon as the Incumbent is Instituted in a second Living without deprivation and that the Law was anciently so therefore that evasion is not material Another answer hath been likewise offered and passeth in the New Books for current that in the case of Pluralities the voidance is by the Canon Law and therefore may be dispensed with by the same Law but in the case of a Bishop made the voidance is by the Common Law If Canon Law be made part of the Law of this Land then is it as much the Law of the Land and as well and by the same Authority as any other part of the Law of the Land And if it be not made the Law of the Land then hath it no more effect than a Law of Utopia therefore the Canon Law in force here is Law of the Land Besides their meaning is to be learn'd who say an Incumbents Benefice made a Bishop is void by the Common Law and not by the Canon Law The words of Thyrning in that case 11 H. 4. are who was then Chief Iustice 11 H. 4. f. 60. b. Da. Rep. f. 81. a. f. 68. b. I suppose that when a man Benefic'd is made a Bishop it is by the Law of holy Church that his Benefice becomes void and the same Law which gives the voidance may cause that it shall not be void and that concerns the power of the Apostle The Common Law doth not prohibit Pluralities nor make a voidance of his Benefice when the Incumbent is Bishop but the ancient Ecclesiastical Law of England Obj. 3 11 H. 4. f. 77. a. per Hill It is a Contradiction that the Incumbent being the Bishops Subject and the Bishop his Soveraign should be united the Servant qua Servant may as well be Master the Tenant qua Tenant Lord the Deputy the Deputor the Delegator the Delagated which is impossible Answ It is a Contradiction that a person Subject being so should not be Subject but no contradiction that a person Subject should cease to be so the subjection of the Incumbent ceaseth when the Rectory is in the Bishop the Deputy is not when the principal Officer executes the office in person and relation of Lord and Tenant destroy'd when the Lord occupies the Land himself If an Act of Parliament should enable every Bishop to hold his former Benefices no contradiction would follow nor doth now by the Dispensation And note all these Reasons deny the Popes power formerly the Arch-bishops now and the King 's also for they are not Reasons against the power of the party dispensing but that the Subject matter is capable of no dispensation There is no inconsistence for a Bishop to be an Incumbent for he is a Spiritual Corporation and being Patron of a Living might and may have it appropriate that is to be for him and his Successors perpetual Incumbents Da. Rep. f. 80. b. The Rectories of Eastmeane and Hambleden are appropriate ad Mensam of the Bishop of Winchester and many others in England and Ireland so appropriated Selden Hist of Tithes â— 6. par 3. f. 8â— b. c. 9. par 2. f. 253. Every Bishop many hundreds of years after Christ was universal Incumbent of his Diocess received all the profits which were but Offerings of Devotion out of which he paid the Salaries of such as officiated under him as Deacons or Curates in places appointed Quest 2 Second Question Whether the Pope formerly used to dispense in such a case and consequently the Arch-bishop now can by the Stat. of 25 H. 8. c. 21 1. Bishop of St. Davies Case The particular dispensation granted to the Bishop of St. Davies in 11 H. 4. is a full instance nor was it in the Argument of that case insisted that the Pope could not dispense with a Bishop to retain or receive a Benefice But the sole Question was Whether in that particular case because the Benefice to be retain'd belong'd to the presentation of a Church-man viz. the Bishop of Salisbury the Dispensation did not amount to a provision and so was within the Statute of Provisions 25 E. 3. 2. By the Statute of 28 H. 8. it appears the Bishop of Rome did grant Faculties and Dispensations to the King's Subjects 28 H. 8. c. 16. as Pluralities Unions Tryalities Appropriations Commendams Exemptions where Commendams are enumerated and by that Act all granted by the Pope are made void but to be renew'd in the Chancery 3. Procuring Commendams were so frequent in Ireland 7 E. 4. c. 2. that a special Act of Parliament was there made 7 E. 4. against all such as should purchase Bulls for any Commendam to put them out of the Kings protection 4. A Bastard instituted and inducted before Deprivation 11 H. 4. f. 78. a. f. 60. a. 11 H. 4. f. 76. b. a Secular Priest before he became regular whereof many were in England and Thyrning saith he knew that Edmond Monk of Berry who was with Edward the Third held many Benefices though a Monk and Pluralities were ordinarily dispensed with by the Pope 5. 11 H. 4. f. 38. a. Hankford saith he hath seen that the same man was Abbot of Glastenbury and Bishop of another Church simul semel Horton 11 H. 4. f. 76. a. The Pope may grant that one man may hold three Bishopricks at a time which Hankford agreed if with consent of the Patrons For if without their consent it was not dispensing to hold them but granting away the property of the Patrons which a Dispensation could not Henry Beaufort Vncle to Henry the Sixth Da. Rep. f. 80. 77. b. had a Dispensation to retain the Bishoprick of Winchester being Cardinal but it was ineffectual because obtained after he was Cardinal Cardinal Woolsey obtained before he was Cardinal a Dispensation to hold the Arch-bishoprick of York and the Abbey of St. Albans together with his Cardinalship Lindwood Titulo de Praebendis cap. Audistis Lindwood f. 100. b. Potestas quae secundum antiqua jura dabatur Episcopis ad dispensandum super pluralitate Beneficiorum restricta est saltem in dignitatibus Beneficiis curatis sed circa beneficia simplicia bene poterunt Episcopi dispensare And in the same Gloss In dignitatibus curatis solus Papa dispensat Authority in the point that a Rector of a Church dispens'd with according to 25 H.
is not sufficient by the Rule of the Act of 25. unless confirmed by the King It was otherwise in the Popes case before the Act. There are many Presidents in Mr. Noy's Book where in like Obj. 2 case the King after the death of a Bishop holding in Commendam after his translation to another See and after his resignation hath presented All those Presidents are since the Twentieth of the Queen which Answ 1 cannot alter the Law 2. Who knows in the cases of death whether those Presentations were not by consent of the Patrons and doubtless there are Presidents wherein the Patrons did present else this Question had been earlier But Judicandum est legibus non exemplis Vpon Translation of a Bishop holding a Commendam in the Answ 2 Retinere as long as he continued Bishop there the King ought to present for the Dispensation is determined upon his remove and then is as if it had not been and a Dispensation gives no property to the Living nor takes away any But where property is given to the Living as by Presentation Institution and Induction or by Grant as in Appropriations Hob. Colts and Glovers Case and sometimes otherwise by the King such presenting or granting for a year or six is to grant it during life As an Atturnment cannot be for a time nor a Confirmation nor a Denization or Naturalization and the like but such Acts are perfect Manwarings Case 21 Jac. Crook f. 691. as they may be notwithstanding Restriction to time as is agreed well in Manwaring's Case I shall say nothing of the case of Resignation as not being in the present Question Judgment was given by the Opinion of the whole Court That the Avoidance was by Death not by Cession Hill 19 20 Car. II. C. B. Rot. 1785. Baruck Tustian Tristram Plaintiff Anne Roper Vicountess Baltinglass Vidua Defendant in a Plea of Trespass and Ejectment THe Plaintiff declares That the Defendant vi Armis entred into 20 Messuages 1000 Acres of Land 200 Acres of Meadow and 500 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick Westbury and Looffield and into the Rectory of Thornbury which Thomas Gower Kt. and Baronet and George Hilliard to the said Baruck demis'd the First of Octob. 19 Car. 2. Habendum from the Feast of St. Michael the Arch-angel last past for the term of Five years next ensuing into which he the said Baruck the same day entred and was ousted and ejected by the Defendant ad damnum 40 l. To this the Defendant pleads Not Guilty And the Jury have found specially That the Defendant is not guilty in all those Tenements besides 5 Messuages 400 Acres of Land 50 Acres of Meadow 100 Acres of Pasture cum pertinentiis in Thornbury Shalston Evershaw Oldwick and Westbury and in the Rectory of Thornbury and besides in one Messuage 100 Acres of Land 50 Acres of Meadow and 100 Acres of Pasture cum pertinentiis in Looffield And as to the Trespass and Ejectment aforesaid in the said five Messuages c. and in the Rectory of Thornbury the Iury say upon their Oath that before the said Trespass and Ejectment suppos'd 22 Junii 12 Jac. Sir Arthur Throgmorton Kt. was seis'd in Fee of the aforesaid Rectory and Tenements last mentioned and of the said Premisses in Looffield and so seis'd A certain Indenture Tripartite was made 22 Junii 12 Jac. between him the said Sir Arthur of the first part Edward Lord Wootton Augustine Nicholls Kt. Francis Harvey Esq and Rowly Ward Esq of the second part and Sir Peter Temple and Anne Throgmorton Daughter of the said Sir Arthur of the third part To this effect That the said Sir Arthur Throgmorton did covenant and promise with the said Lord Wootton and Sir Augustine Nicholls in consideration of Marriage to be had between the said Sir Peter Temple and the said Anne and other the considerations mentioned in the said Indenture by Fine or Fines before the Feast of St. Michael the Arch-angel next ensuing or other good Conveyance to be levied by him and the said Dame Anne his wife to the said Lord Wootton c. The scite and precinct of the Priory of Looffield the Rectory of Thornbury and divers Mannors Lands and Tenements in the said Indenture mentioned several yearly Rents therein mentioned and all other his Lands in the Counties of Northampton Buckingham and Oxford at any time belonging to the said Priory to convey and assure To the use of himself for life without Impeachment of Waste Then to the use of Dame Anne his Wife Then to the use of the said Sir Peter Temple and the said Anne his Wife during their natural lives and the longer Liver of them and after both their Deceases To the use of the first Son of the Body of Anne by the said Sir Peter begotten and of the Heirs Males of the Body of the said first Son so to the sixth Son Then to the use of all other Sons in succession in like manner of the Body of Anne begotten by the said Sir Peter And for default of such Heirs To the use of all the Issues Female of the Body of the said Anne by the said Sir Peter begotten and the Heirs of the Bodies of the said Issues Female For default thereof To the first Son of the said Anne by any other Husband and his Heirs Males and so to the tenth In like manner to the Issues Female of the Body of Anne with divers Remainders over A Proviso That it be lawful for Sir Arthur at all times during his life to lett set and demise all or any the said Premisses aforesaid which at any time heretofore have been usually letten or demised to any person or persons for and during the term of One and twenty years or under in possession and not in Reversion or for or during any other number of years determinable upon one two or three Lives in Possession and not in Reversion reserving the Rents therefore now yielded or paid or more to be yearly due and payable during such Lease and Leases unto such person and persons unto whom the said Premises so to be demised shall come and be by virtue of these Presents if no such demise had been made so long as the same Lessees their Executors and Assigns shall duly pay the Rents and perform their Conditions according to the true meaning of their Indentures of Lease and commit no waste of and in the things to them demised The like Proviso verbatim for Sir Peter Temple and Anne his Wife to make like Leases during their Lives and the Life of the longer liver of them after the death of Sir Arthur and Dame Anne his Wife That a Fine was accordingly levied c. to the uses aforesaid They find that all the Messuages Lands Tenements and Rectory in the Declaration mentioned are compris'd in the said Indenture Tripartite They find the death of Sir Arthur Throgmorton and Anne his Wife 2. Septemb.
That Hugh Ivy Clerk the Tenth of May 22 Car. 2. at Wringlington demis'd to the said William One Messuage Twenty Acres of Land Twenty Acres of Meadow Twenty Acres of Pasture with the Appurtenances in Wringlington And also the Rectory and Parish Church of Wringlington Habendum to the said William and his Assigns from the Fifth day of May aforesaid for the term of Five years next ensuing By virtue whereof he entred into the said Tenements and Rectory and was possess'd until the Defendant the said Tenth day of May in the said year entred upon him and Ejected him to his Damage of Forty pounds The Defendant by words of course pleads he is not Culpable and Issue is joyn'd and the Verdict was taken by Default of the Defendant and the Jury find specially Upon the Special Verdict the Case appears to be this John Higden the Defendant was lawfully presented admitted instituted and inducted into the Rectory of Wringlington in the County of Somerset and Dioces of Bath and Wells in February 1664. being a Benefice with Cure of Souls and of clear yearly value of Fifty pounds per Annum and in the King's Books of no more than Five pounds yearly and that the Premisses demis'd were time out of mind and yet are parcel of the said Rectory That the said John Higden being lawful Incumbent of the said Church and Rectory of Wringlington the One and thirtieth of March 1669. was lawfully presented admitted instituted and inducted into the Rectory of Elme in the said County and Dioces being a Benefice with Cure of Souls also of clear yearly value ultra reprisas of Forty pounds per Annum and of the value of Ten pounds per Annum in the King's Books and subscribed the Articles of Religion according to the Act of the Thirteenth of the Queen 13 El. cap. 12. and was lawful Incumbent of the said Rectory of Elme but after did not read the Articles of Religion within two Months after his Induction in the Church of Elme according to the Act of 13 Eliz. Primo Maii 1669. Hugh Ivy Lessor of the Plaintiff was lawfully presented admitted instituted and inducted into the Rectory of Wringlington as suppos'd void and performed all things requisite for a lawful Incumbent of the said Rectory to perform both by subscribing and reading the Articles of Religion according to the Statute of 13 Eliz. And that he entred into the said Rectory and Premisses and made the Lease to the Plaintiff as in the Declaration That the said Higden the Defendant did enter upon the Plaintiff the said Tenth of May 1669. as by Declaration The Questions spoken to at the Barr in this Case have been two 1. Whether the Rectory of Wringlington being a Benefice with Cure and of clear yearly value of Fifty pounds and but of Five pounds in the King's Books shall be estimated according to Fifty pounds per Annum to make an Avoidance within the Statute of 21 H. 8. by the Incumbents accepting another Benefice with Cure But that is no Question within this Case for be it of value or under value the Case will be the same 2. Whether not reading the Articles according to the Statute of 13 Eliz. within two Months after induction into the Church of Elme shall exclude Higden not only from the Rectory of Elme but from the Rectory of Wringlington which is no point of this Case For whether he read or not read the Articles in the Church of Elme he is excluded from any right to the Church of Wringlington For this Case depends not at all upon any Interpretation of the Statute of 21 H. 8. of Pluralities but the Case is singly this Higden being actual and lawful Incumbent of Wringlington a Benefice with Cure be it under the value of Eight pounds yearly or of the value or more accepts another Benefice with Cure the Rectory of Elme and is admitted instituted and inducted lawfully to it be it of the value of Eight pounds or more or under The Patron of Wringlington within one month after admission institution and induction of Higden the Incumbent of Wringlington to the Rectory of Elme presents Hugh Ivy the Plaintiffs Lessor to Wringlington who is admitted instituted and inducted thereto the same day and after as by the Declaration enters and makes a Lease to the Plaintiff who is Ejected by the Defendant Higden The Doubt made by the Iury is if Higdens Entry be lawful It hath been resolv'd in Holland's Case and likewise in Digby's Case in the Fourth Report and often before since the Council of Lateran Anno Dom. 1215. Under Pope Innocent 3. Digby's Case Vid. Bon. C. pur Pluralities Anderson 1. part f. 200. b.p. 236 Vid. Moore 's Rep. a large Case to the same effect viz. Holland Digby's Case That if a man have a Benefice with Cure whatever the value be and is admitted and instituted into another Benefice with Cure of what value soever having no qualification or dispensation the first Benefice is ipso facto so void that the Patron may present another to it if he will But if the Patron will not present then if under the value no lapse shall incurr until deprivation of the first Benefice and notice but if of the value of Eight pounds or above the Patron at his peril must present within Six months by 21 H. 8. As to the Second Question Whether the Defendants not reading the Articles in the Church of Elme within two months after his induction there have excluded him not only from being Incumbent of Elme but also from Wringlington The Answer is First His not reading the Articles in the Church of Elme according to the Statute of 13. is neither any cause of nor doth contribute to his not being still Incumbent of Wringlington though as his Case is he hath no right to the Rectory of Wringlington since the admission institution and induction of Hugh Ivy the Plaintiffs Lessor into it as hath already appear'd Secondly As for the Rectory of Elme although it doth not appear that the Patron of Elme hath presented as he might have done or perhaps hath any other Clerk or that any other is admitted and instituted into that Church yet Mr. Higden can be no Incumbent there nor can sue for Tithes nor any other Duty because by not reading the Articles he stands depriv'd ipso facto For clearing this certain Clauses of the Act of 13 Eliz. are to be open'd The first is Every person after the end of this Session of Parliament to be admitted to a Benefice with Cure except that within two Months after his induction he publickly read the said Articles in the same Church whereof he shall have Cure in the time of Common-prayer there with Declaration of his unfeigned assent thereto c. shall be upon every such Default ipso facto immediately depriv'd There follows relative to this Clause Provided always That no Title to conferr or present by lapse shall accrue upon any deprivation
of Twelfth of the King c. 4. And that if any Merchandise in kind subject to the Duties by that Act proving wreck cast on shoar may be charg'd with the Duty every Merchandise within the Act proving wreck will be charg'd with it and if any wreck'd Goods be free all wreck'd Goods are free for the Act makes no difference in the kinds or species of the Merchandise I shall therefore recite some Clauses of the Act. 12 Car. 2. c. 4 The first is That there is given to the King of every Tun of Wine of the growth of France or of any the Dominions of the French King that shall come into the Port of London and the Members thereof by way of Merchandise by your natural born Subjects the Sum of Four pounds and Ten shillings of currant English mony and so after that rate And by Strangers and Aliens Six pounds of like mony And of every Tun of like Wines which shall be brought into all and every the other Ports and Places of this Kingdom and the Dominions thereof by way of Merchandise by your natural born Subjects the Sum of Three pounds and by Aliens Four pounds and Ten shillings From those words I observe That Wines liable to pay Tunnage by the Act must have these properties 1. They must be Wines which shall come or be brought into the Ports and Places of the Kingdom 2. They must come or be brought into such Ports or Places as Merchandise that is for sale and to that end for no other conception can be of Goods brought as Merchandise 3. They must come and be brought as Merchandise and for sale by the Kings natural born Subjects or by Strangers and Aliens as distinguisht from the natural Subjects 4. The Duty payable to the King is to be measur'd by the quality of him that imports the Commodity that is if the Importer be a natural Subject he pays less to the King and if an Alien more 5. All those Wines charg'd with the Duty by the Act so to come or be brought into the parts or places of the Kingdom are to be Forraign As of the growth of France the Levant Spain Portugal Rhenish Wines or of the growth of Germany 1. Whence it follows That Wines of Forraign growth and which by their kind are to pay Duty if they shall come or be brought into the parts or places of the Kingdom neither by the Kings natural Subjects nor by Aliens they are not chargeable with the Duties of this Act. 2. If they be not brought into the Ports and Places of the Kingdom as Merchandise viz. for sale they are not chargeable with the Duty But Wines or other Goods coming or brought into the Realm as wreck are neither brought into the Kingdom by any the Kings natural Subjects nor by any Strangers but by the Wind and Sea for such Goods want a Proprietor until the Law appoints one 3. Wreck'd Goods are not brought into the Kingdom being cast on shoar as Merchandise viz. for sale but are as all other the Native Goods of the Kingdom indifferent in themselves for sale or other use at the pleasure of the Proprietor 4. All Goods Forraign or Domestique are in their nature capable to be Merchandise that is to be sold but it follows not thence That wheresoever they are brought into the Kingdom they are brought as Merchandise and to be sold or should pay Custome for they are transfer'd from place to place more for other uses than for sale Nor are Goods which are brought to the Markets of the Kingdom to the end to be sold therefore to pay Custome for so all the Goods of the Kingdom would be customable but they must be Goods brought ab extra within the intention of the Act or for Exportation to be carried out of the Kingdom 5. All Goods charg'd with the Duties of the Act must be proprieted by a Merchant natural born or Merchant Alien and the greater or less Duty is to be paid as the Proprietor is an Alien or Native Merchant for so are the words of the Act in the Clause for Poundage of all manner of Goods and Merchandise of every Merchant natural born Subject Denizen and Alien to be brought into the Realm of the value of every Twenty shillings of the same Goods according to the Book of Rates But wreck'd Goods are not the Goods of any Merchant natural born Alien or Denizen whereby the Duty payable should be either demanded distinguisht or paid Therefore a Duty impossible to be known can be no Duty for civilly what cannot be known to be is as that which is not And it is a poor shift to say The Lord of the Mannor who hath the wreck is Merchant Proprietor For if so I ask Is he an Alien Merchant Proprietor or a Native If he be a natural Subject as he must be having his Mannor he cannot be an Alien and consequently the King can have no Alien Duty of wreck'd Goods but Goods intended by the Act to be charg'd with the Duty might be indifferently the Goods of Aliens or Natives But to clear this more put the Case The Act had only charg'd Merchandise imported by Aliens and not by Natives with the Duty Then the King could have had no Duty from wreck'd Goods at all for they could not be the Goods of an Alien Merchant Nor is wreck brought into the Mannor by the Lord more than a Waif or Estray is which if brought thither by him is no Waif or Estray Besides it is clear The Lord of a Mannor is no more a Merchant Native or Alien by reason of the property he hath in wreck Goods than he is a Merchant Native or Alien by the property he hath in his Horses or Cows for his property in a wreck is not qua Merchant of any kind but qua Lord of his Mannor and every Proprietor of Goods by what Title soever is as much Merchant as he 6. All Goods subject to the Duty of Tunnage and Poundage may be forfeited by the Disobedience and Mis-behaviour of the Merchant Proprietor or those trusted by him by the Act The words are If any Merchandise whereof the Subsidies aforesaid shall be due shall at any time be brought from the parts beyond the Sea into any Port Place or Creek of this Realm by way of Merchandise and unshipped to be laid on Land the Duties due for the same not paid nor lawfully tender'd nor agreed for according to the true meaning of this Act then the same Goods and Merchandises shall be forfeit to your Majesty 1. But wreck'd Goods cannot be imported into any Creek or Place of the Realm by way of Merchandise and unshipped to be laid on Land for if so imported and unshipped to be laid on Land it is no wreck and therefore are not Goods forfeitable by the Mis-behaviour of any within the Act and consequently not Goods intended to be charged with the Duties by the Act. 2. By this Clause the Owner or
Proprietor of Goods chargeable with the Kings Duty is to pay or agree for the Duty with the Customers before the unshipping or landing of the Goods else they are forfeited Et sunt alia quaedam quae in nullius bonis esse dicuntur sicut Wâ—eccum Maris grossus piscis c. Bract. l. 3. de Coron f. 120. c. 3. n. 4. Constables C. 5. Rep. f. 108. b. But wreck'd Goods are cast on Land and consequently landed having no Owner or Proprietor and therefore the Duty impossible to be paid or agreed for before their landing and when so landed and not before the Law makes the King or Lord of the Mannor their Proprietor but not fully neither until after a year and a day allowed to the first Owners to claim them if any such be by Stat. Westminster the First c. 4. Whence it follows That wrecks should be rather forfeited to the King which is not pretended as Goods landed the Kings Duty not paid or agreed for then seised until payment were according to the Act. 3. By this Clause Imported Goods intended to be charg'd by the Act are Goods to be brought from the parts beyond the Seas And therefore also wreck'd Goods are not to pay the Duty for the Native Commodities of the Kingdome Shipwrackt in their passage by Sea for Exportation may be Imported into the Realm as wreck yet never brought from the parts beyond the Sea as the Clause intends Goods charg'd should be 4. Goods cast into the Sea to unburthen a Ship in a storm and never intended for Merchandise are wreck when cast on shoar without any Shipwrack Bract. l. 2. f. 41. b. 5. Goods derelicted that is deserted by the Owners and cast into the Sea which happens upon various occasions as coming from infected Towns or Places and for many other respects will be wreck if cast on shoar afterwards though never purpos'd for Merchandise Bract. l. 2. f. 41. b. n. 3. Constables C. 5. Rep. Bract. l. 3. de Coron c. 3. n. 5 f. 120. a. more fully But Goods cast overboard to lighten a Ship are not by Bracton nor from him in Sir H. Constables Case esteemed Goods derelicted which is a Question not throughly examined Si autem ea mente ut nolit esse Dominus aliud erit per Bract. But by all the Clauses of the Act Goods Imported into the Realm as Merchandise only are to pay the Kings Subsidy therefore not wreck Imported and not as Merchandise 6. If a Law were made That Horses and Oxen brought to Market to be sold should pay the King a Poundage of their value and a Horse or Ox coming to Market happen to stray and be seis'd in a Mannor that had Strayes and there us'd according to the Law for Strayes until a year and a day were past without claim of the Owner whereby the property of the Horse or Ox was alter'd and the Lord of the Mannor had gain'd it will any man say Poundage should be paid for this Horse or Ox to the King for being brought to Market to be sold and the Case is the same or harder to pay Poundage for wreck It remains that some Objections be clear'd First It is said That by fraud of the Merchant or his Agents and the Lord of the Mannor Goods not shipwrackt at all may be cast overboard so as to be cast on shoar on the Mannor by the Tide and so the Kings Duty avoided by confederacy 1. This Supposal is remote and cannot be of some wrecks possible as of wrecks of derelicted Goods or of Goods cast into the Sea to unburthen a Ship 2. If the fraud appear there is no wreck and the King will be righted But to charge a legal property which the Lord of the Mannor hath in a wreck with payments because a fraud may be possible but appears not will destroy all property for what appears not to be must be taken in Law as if it were not The Second Objection is That the Kings Officers by usage have had in several Kings times the Duties of Tunnage and Poundage from wrecks 1. We desired to see ancient Presidents of that usage but could see but one in the time of King James and some in the time of the last King which are so new that they are not considerable 2. Where the penning of a Statute is dubious long usage is a just medium to expound it by For Jus Norma loquendi is govern'd by usage And the meaning of things spoken or written must be as it hath constantly been receiv'd to be by common Acceptation But if usage hath been against the obvious meaning of an Act of Parliament by the Vulgar and Common Acceptation of the Words then it is rather an Oppression of those concern'd than an Exposition of the Act especially as the usage may be circumstanc'd As for instance The Customers seize a mans Goods under pretence of a Duty against Law and thereby deprive him of the use of his Goods until he regains them by Law which must be by engaging in a Suit with the King rather than do so he is content to pay what is demanded for the King By this usage all the Goods in the Land may be charg'd with the Duties of Tonnage and Poundage for when the Concern is not great most men if put to it will rather pay a little wrongfully than free themselves from it over-chargeably And in the present Case The genuine meaning of the words and purpose of the Act is not according to the pretended usage but against it as hath been shew'd Therefore usage in this Case weighs not The Third Objection is from the words Imported and brought into the Realm or Dominions thereof and that wrecks are Goods and Merchandises imported into the Realm and therefore chargeable with the Duty There are no Goods as hath been said but may in a sense be termed Merchandise because all Goods may possibly be sold and when sold or intended to be they are Merchandise and in that sense wreck'd Goods are Merchandise and so are all Goods else It is also true That the Goods in question are by the Verdict found to be shipped in Forraign parts as Merchandise but not intended to be brought into England but to be carried to some other Forraign parts so are the words But by the words or some other Forraign parts they might be intended to be carried as Merchandise into some Forraign parts which are of the Kings Dominions or of the Dominions of the Kingdom of England for the Act mentions both And the Act limits the Duty not upon Goods in the former sense but upon Goods brought by way of Merchandise by Natives or Aliens into any the Kings Dominions which must be intended his Dominions as of the Crown of England for nothing could be enacted here concerning his Dominions not of the Crown of England But the Verdict is uncertain Whether they were to be carried to Forraign parts of the Dominions of
England or into parts not of the Dominion of England nor follows it because Goods were intended to be sold that is as Merchandise in a place where good market was for them that they were intended to be sold at any other place where no profit could be made or not so much or where such Goods were perhaps prohibited Commodities therefore the words of the Act brought as Merchandise must mean that the Goods are for Merchandise at the place they are brought unto And Goods brought or imported any where as Merchandise or by way of Merchandise that is to be sold must necessarily have an Owner to set and receive the price for which they are sold unless a man will say That Goods can sell themselves and set and receive their own prises But wreck Goods imported or brought any where have no Owner to sell or prize them at the time of their importation and therefore are not brought by way of or as Merchandise to England or any where else Secondly Though in a loose sense inanimate things are said to bring things as in certain Seasons Rain to bring Grass in other Seasons some Winds to bring Snow and Frost some Storms to bring certain Fowl and Fish upon the Coasts Yet when the bringing in or importing or bringing out and exporting hath reference to Acts of Deliberation and Purpose as of Goods for sale which must be done by a rational Agent or when the thing brought requires a rational bringer or importer as be it a Message an Answer an Accompt or the like No man will say That things to be imported or brought by such deliberative Agents who must have purpose in what they do can be intended to be imported or brought by casual and insensible Agents but by Persons and Mediums and Instruments proper for the actions of reasonable Agents Therefore we say not That Goods drown'd or lost in passing a Ferry a great River an arm of the Sea are exported though carried to Sea but Goods exported are such as are convey'd to Sea in Ships or other Naval Carriage of mans Artifice and by like reason Goods imported must not be Goods imported by the Wind Water or such inanimate means but in Ships Vessels and other Conveyances used by reasonable Agents as Merchants Mariners Sailors c. whence I conclude That Goods or Merchandise imported within the meaning of the Act can only be such as are imported with deliberation and by reasonable Agents not casually and without reason and therefore wreck'd Goods are no Goods imported within the intention of the Act and consequently not to answer the Kings Duties for Goods as Goods cannot offend forfeit unlade pay Duties or the like but men whose Goods they are And wreck'd Goods have not Owners to do these Offices when the Act requires they should be done Therefore the Act intended not to charge the Duty upon such Goods Judgment for the Plaintiff The Chief Justice delivered the Opinion of the Court. Hill 23 24 Car. II. C. B. Rot. 695. Richard Crowley Plaintiff In a Replevin against Thomas Swindles William Whitehouse Roger Walton Defendants THE Plaintiff declares That the Defendants the Thirtieth of December 22 Car. 2. at Kings Norton in a place there called Hurley field took his Beasts four Cows and four Heifers and detain'd them to his damage of Forty pounds The Defendants defend the Force And as Bailiffs of Mary Ashenhurst Widow justifie the Caption and that the place contains and did contain when the Caption is suppos'd Twenty Acres of Land in Kings Norton aforesaid That long before the Caption one Thomas Greaves Esquire was seis'd of One hundred Acres of Land and of One hundred Acres of Pasture in Kings Norton aforesaid in the said County of Worcester whereof the Locus in quo is and at the time of the Caption and time out of mind was parcel in his demesne as of Fee containing Twenty Acres That he long before the Caption that is 18 die Decemb. 16 Car. 1. at Kings Norton aforesaid by his Indenture in writing under his Seal which the Defendants produce dated the said day and year in consideration of former Service done by Edmond Ashenhurst to him the said Thomas did grant by his said Writing to the said Edmond and Mary his Wife one yearly Rent of Twenty pounds issuing out of the said Twenty Acres with the Appurtenances by the name of all his Lands and Hereditaments scituate in Kings Norton aforesaid Habendum the said Rent to the said Edmond and Mary and their Assigns after the decease of one Anne Greaves and Thomas Greaves Vncle to the Grantor or either of them which first should happen during the lives of Edmond and Mary and the longer liver of them at the Feasts of the Annunciation of the blessed Virgin Mary and St. Michael the Arch angel by equal portions The first payment to begin at such of the said Feasts as should first happen next after the decease of the said Anne Greaves and Thomas the Vncle or either of them That if the Rent were behind in part or in all it should be lawful for the Grantees and the Survivor of them to enter into all and singular the Lands in King's Norton of the Grantor and to distrain and detain until payment By vertue whereof the said Edmond and Mary became seis'd of the said Rent in their Demesne as of Free hold during their Lives as aforesaid The Defendants say further in Fact That after that is to say the last day of February in the Two and twentieth year of the now King the said Anne Greaves and Thomas the Vncle and Edmond the Husband died at King's Norton That for Twenty pounds of the said Rent for one whole year ending at the Feast of Saint Michael the Arch-Angel in the Two and twentieth year of the King unpaid to the said Mary the Defendants justifie the Caption as in Lands subject to the said Mary's Distress as her Bailiffs And averr her to be living at King's Norton aforesaid The Plaintiff demands Oyer of the Writing Indented by which it appears That the said Annuity was granted to Edmond and Mary and their Assigns in manner set forth by the Defendants in their Conuzance But with this variance in the Deed And if the aforesaid yearly Rents of Ten pounds and of Twenty pounds shall be unpaid at any the daies aforesaid in part or in all That it shall be lawful for the said Edmond and Mary at any time during the joynt natural Lives of the said Anne Greaves and Thomas Greaves the Uncle if the said Edmond and Mary or either of them should so long live and as often as the said Rents of Twenty pounds or any parcel should be behind to enter into all the said Thomas Greaves the Grantors Lands in King's Norton aforesaid and to Distrain Vpon Oyer of which Indenture the Plaintiff demurrs upon the Conuzance Two Exceptions have been taken to this Conuzance made by the Defendants The first for that
a House Barns and Tithe of Woolney and thereof seis'd in the right of his Prebendary makes a Lease to Astly of the Prebend una cum the Glebe House Barn and Tithe for Three Lives rendring the accustomed and ancient Rent of Five pounds Twelve shillings Astly demiseth to Taverner the House Glebe and Barn for a year reserving Twenty shillings and dies the Cestuy que vies living As I concluded before Taverner is Occupant of the House Barn and Glebe-land and consequently lyable to pay the whole Rent being Five pounds twelve shillings yearly though the Land House and Barn be found of the yearly value of Twenty shillings only but because the Rent cannot issue out of Tithes or things that lye in Grant it issues only out of the House Barn and Land which may be distrain'd on 2. If Taverner being Occupant of the Land shall not have the Tithes which remain'd in Astly according to his Lease for three Lives at the time of his death and whereof by their nature there can be no direct Occupancy It follows that the Lease made by Doctor Mallory is determin'd as to the Tithe for no other can have them yet continues in force as to the Land and House and all the Rent reserv'd which seems strange the Land and Tithe being granted by the same Demise for three Lives which still continue yet the Lease to be determined as to part 3. Though the Rent issue not out of the Tithe yet the Tithe was as well a Consideration for the payment of the Rent as the Land and Houses were and it seems unreasonable that the Lessor Doctor Mallory should by act in Law have back the greatest Consideration granted for payment of the Rent which is the Tithe and yet have the Rent wholly out of the Land by act in Law too which cannot yield it 4. Though Doctor Mallory could not have reserv'd a Rent out of the Tithe only to bind his Successor upon a Lease for Lives more than out of a Fair though it were as the ancient Rent and had been usually answered for the Fair as is resolv'd in Jewel Bishop of Sarum's Case Jewell's Case 5 Rep. Yet in this Case where the Tithe together with Land out of which Rent could issue was demis'd for the accustomed Rent the Successor could never avoid the Lease either in the whole or as to the Tithe only 13 Eliz. c. 10. This seems clear by the Statute of 13 Eliz. cap. 10. which saith All Leases made by any Spiritual or Ecclesiastical persons having any Lands Tenements Tithes or Hereditaments parcel of the Possessions of any Spiritual Promotion other than for One and twenty years or three Lives whereupon the accustomed yearly Rent or more shall be reserv'd shall be void Cokes Litt. f. 142. a. f. 144. a. Whence it is apparent this Statute intended that Leases in some sense might be made of Tithes for One and twenty years or Three Lives and an ancient Rent reserv'd but of a bare Tithe only a Rent could not be reserv'd according to Jewell's Case for neither Distress nor Assise can be of such Rent though an Assise may be de Portione Decimarum as is clear by the Lord Dyer 7 E. 6. and the difference rightly stated Therefore a Lease of Tithe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intention of the Statute or Tithe could in no sense be demis'd 5. Taverner the Lessee being Occupant here by his possession becomes subject to the payment of the Rent to Waste to Forfeiture Conditions and all things that Astly the Lessee or his Assignee if he had made any had been subject to Also Coke's Litt. 41. He must claim by a que Estate from Astly he must averr the Life of Cestuy que vie so as he becomes to all intents an Assignee in Law of the first Lessee 6. Without question the Occupant being chargeable with the Rent shall by Equity have the Tithe which was the principal Consideration for payment of the Rent when no man can have the benefit of the Tithe but the Lessor Doctor Mallory who gave it as a Consideration for the Rent which he must still have Therefore I conceive the Reason of Law here ought necessarily to follow the Reason of Equity and that the Occupant shall have the Tithe not as being immediate Occupant of the Tithe whereof no occupancy can be but when by his possession of the Land he becomes Occupant and the Law casts the Freehold upon him he likewise thereby becomes an Assignee in Law of Astly's Lease and Interest and consequently of the Tithe An ancient Rent reserv'd within the Statute of 1. or 13. of the Queen upon a Lease of One and twenty years or Three Lives is by express intention of that Statute a Rent for publique use and maintenance of Hospitality by Church-men as is resolv'd in Elsemere's Case Elsmers C. 5. Rep. the 5. Rep. and therefore if the Lessee provide not an Assignee to answer the Rent to the Successors of the Lessor for the ends of that Law the Law will do it for him and none fitter to be so than the Occupant in case of a Lease pur auter vie as this is And if the Occupant being Assignee hath pass'd all his Estate and Interest to the Plaintiff hath good cause of Action for the Tithe converted by the Defendant Pasch 22 Car. II. Judgment for the Defendant Three Justices against the Chief Justice Trin. 20 Car. II. C. B. Rot. 2043. Harrison versus Doctor Burwell In a Prohibition for his Marriage with Jane the Relict of Bartholomew Abbot his Great Uncle The Questions are Quest 1 WHether the marriage of Thomas Harrison the Plaintiff with Jane his now wife being the Relict of Bartholomew Abbot his great Vncle that is his Grand-fathers Brother by the Mothers side be a lawful marriage within the Act of 32 H. 8. cap. 38 Quest 2 Admitting it to be a lawful marriage within the meaning of that Act Whether the Kings Temporal Courts are properly Judges of it because the unlawfulness or lawfulness of it by that Act doth depend upon its being a marriage within or without the Levitical Degrees For if within those Degrees it is not a lawful marriage by that Act. And the right knowledge of marriages within or without those Degrees must arise from the right knowledge ot the Scriptures of the Old Testament specially the Interpretation of which hath been and regularly is of Ecclesiastick Conizance and not of Lay or Temporal Conizance in regard of the Language wherein it was writ and the receiv'd Interpretations concerning it in all succession of time Quest 3 Admitting the Kings Temporal Courts have by that Act of 32. or any other special Conizance of the Levitical Degrees and of marriages within them And though this be no marriage within the Levitical Degrees it being articled in general to be an Incestuous marriage
determine Whether the marriages mentioned within Leviticus 18. be only prohibited or marriages within the degrees there mentioned The Talmudists hold the first the Karaits the second strongly who in most concurr with our Parochial Table 5. This marriage not prohibited by the Canons 1 Jac. Can. 99. nor contained in the Parochial Table 6. Marriages between the Children and Parents in the ascending line intermediately prohibited and for what Reasons 7. How the words Gods Law except in the Act of 32 H. 8. and the words or otherwise by Holy Scripture in the Act of 28 H. 8. c. 16. are to be intended 8. The Defendant doth not Article That the Vncle Bartholomew Abbot did carnally know Jane his wife and then the marriage is not against Gods Law by 28 H. 8. c. 7 The mischief by the Act of 32 H. 8. was That the Bishop of Rome had always troubled the meer Iurisdiction and Regal Power of the Realm of England and unquieted the Subject by making that unlawful which by Gods word is lawful both in marriages and other things Therefore it is thought convenient for this time that two things be with diligence provided for The first was against dissolution of marriages consummate with bodily knowledge upon pretence of Pre-contracts The other by reason of other prohibitions to marry than Gods Law admitteth As in Kindred or Affinity between Cosen Germans and so to the fourth and fifth Degree which else were lawful and be not prohibited by Gods Law Again that freedom in them was given by Gods Law To remedy these two mischiefs All marriages consummate with bodily knowledge between lawful persons and all persons are declared to be lawful to marry which be not prohibited by Gods Law are made lawful by Authority of Parliament notwithstanding any Prae-contract c. But this part of the Clause to make good marriages notwithstanding pre-contracts is repeal'd 2 E. 6. c. 23. 1 El. c. 1. The other Clause remains which declares all persons lawful to marry who are not prohibited by Gods Law but is of no use to remedy the second mischief For if the Pope shall expound what persons of Consanguinity or Affinity are prohibited by Gods Law to marry he will expound Gods Law as the Canons and Popes formerly did That by the Word of God no man is to uncover the nakedness of the Kindred of his Flesh and therefore marriage is prohibited as farr as there are names of Kindred and memory which is the reason of the Old Canon Law to prohibit to the Seventh Degree for further they had not names of Kindred And if it would have remedied the Inconvenience to say in the Act That all marriages were lawful not prohibited by Gods Law and leave the Pope then to resolve what was prohibited by Gods Law it was to no purpose to have added more words to the Act but to have ended ther and the inconvenience of prohibiting marriages for Consanguinity or Affinity when God did not prohibit had still remain'd But the Act goes on And that no Prohibition or Reservation Gods Law except should impeach any marriage for Consanguinity or Affinity for so it must be understood without the Levitical Degrees for that was the second thing specially to be provided for as the Act saith Not that no marriage should be impeached without the Levitical Degrees which the Act intended not at all nor was it the thing to be provided for but not to be impeached for Kindred or Affinity without the Levitical Degrees as in Cosen Germans and so forth For who will say That by those words no marriage shall be impeached without the Levitical Degrees the Act intended that no marriage for natural Impotency for plurality of Husbands or Wives for Adultery and the like should not be impeached though it were out of the Levitical Degrees For the Act had no aspect upon such marriages but to hinder impeaching marriages for Consanguinity or Affinity without the Levitical Degrees which was the second thing by the Act to be at that time diligently provided for Therefore those words Gods Law except must referr to such other marriages as by Gods Law might be impeach'd and not to any for Consanguinity or Affinity for had not those words been the generality of the Expression No marriage shall be impeach'd without the Levitical Degrees had excluded the impeaching marriages for plurality of Wives or Husbands at a time for Impotency and for Adultery as Sir Edward Coke observes at the end of his Comment upon this Statute in his Second Institutes But if those words No marriage shall be impeach'd Gods Law except shall be understood That no marriage should be impeach'd not prohibited by the Scripture viz. Gods Law Then 1. There was no use of naming the Levitical Degrees at all 2. The Pope would have interpreted the Scripture which belong'd to him to have prohibited all marriages between Kindred as anciently and then the end of the Act had been frustrate 3. Wherein was the Kings Iurisdiction and Regal Power righted if prohibiting of marriage for Consanguinity or Affinity were to be proceeded in as formerly But all marriages without the Levitical Degrees being made lawful because the Secular Iudges by the Act of 28 H. 8. c. 7. had certain Conizance of them both expresly and in Consequence they were no more of Ecclesiastical Conizance than Contracts concerning Land or Lay Chattels were and therefore the questioning of them to be prohibited as the other This was to complain of the Pope as a wrong doer against the Law of God viz. Holy Scripture and diligently to provide remedy for it according to the Scripture whereof the wrong doer was the only decisive and infallible Interpreter as the Church then believed which is redressing a wrong by the Iudgment of the wrong doer Anciently before any Act of Parliament alter'd the Law the lawfulness or unlawfulness of marriages and which were incestuous which not were only of Ecclesiastical Conuzance and the Temporal Courts medled not to ratifie or prohibit any marriage The Statute de Circumspecte agatis 13 E. 1. Circumspecte agatis de Negotiis tangentibus Episcopum Norwic ejus Clerum non puniendo eos si placitum tenuerint in Curia Christianitatis de his quae mere sunt spiritualia viz. de Correctionibus quas faciant pro mortali peccato viz. pro fornicatione adulterio hujusmodi Mag. Chart. Cok. f. 488. upon that Statute Sir Edward Coke in his Comment upon this Statute and those words viz. pro fornicatione adulterio hujusmodi which by the express words of the Statute are said to be mere Spiritualia saith and truly That the word hujusmodi must be understood of offences of like nature with Fornication and Adultery as for solicitation of a womans Chastity which is less than Fornication or Adultery and for Incest which is greater So as the Conuzance of Incest was meerly Spiritual and concern'd not the lay Law at all originally 2. There was no time
Relatives and if an Act of Naturalization should thereby make a man a natural Subject the same Subject would have two natural Soveraigns one when he was born the other when naturalized which he can never have more then two Natural Fathers or two Natural Mothers except the Soveraigns be subordinate the Inferior holding his Kingdome as Liege Homager from the Superiour And perhaps in the Case of Severing the Kingdoms Calvins Case 27. as Sir Edward Coke saith Nor can an Act of Parliament in one place take away the natural subjection due to another Prince for want of power And the Law of England being That an Antenatus shall not inherit because an Alien without an Act of Parliament making him none The fiction of an Act in another Kingdom to which England never consented shall not alter the law here because he is made in Ireland as if born there If there were an Act of Parliament in England That persons naturalized in Ireland or Scotland should be no Aliens in England no man thinks that thereby Scotland or Ireland could naturalize a man in terminis in England But a man naturalized there would by consequent be naturalized in England because the law of England did warrant that consequent But to say That a man naturalized in Ireland is not directly naturalized in England but by consequent when the question is Whether one naturalized in Ireland be thereby naturalized in England is to beg for a proof that which is the question Therefore it must be first proved That there is a Law of England to warrant that consequent Inconveniences The Law of England is That no Alien can be naturalized but by Act of Parliament with the assent of the whole Nation 1. Now if this naturalization in Ireland should be effectual for England then a whole Nation should become Natives in England without Act of Parliament of what Country Religion or Manners soever they be by an Act of Ireland 2. If the Parliament of England should refuse to naturalize a number of men or Nation as dangerous or incommodious to the Kingdom yet they might be naturalized whether the Houses of Parliament would or not by an Act of Ireland 3. By this invention the King may naturalize in England without an Act of Parliament as well as he may Denizen for if the Parliament of Ireland enact That the King by Letters Patents shall naturalize in Ireland then they so naturalized in Ireland by Patent will be naturalized in England by consequent so they may enact the Deputy or Council of Ireland to naturalize 4. If an Alien hath Issue an Alien Son and the Father be denizen'd in England and after hath a Son born in England the Law hath been taken That the youngest Son shall inherit the Fathers Land Co. Litr. f. 8. a. Doct Stud. l. 1. Cr. 17 Jac. f. 539. Godfrey Dixons C. So is Sir Edward Coke Litr. f. 8. a. and other Books yet if the elder be naturaliz'd in Ireland the Estate which the youngest hath by the Law of England will be plucked from him Having thus opened the Inconveniences consequent to this Irish Naturalization the next is That Judges must judge according as the Law is not as it ought to be But then the Premisses must be clear out of the established Law and the Conclusion well deduc'd before great Inconveniences be admitted for Law But if Inconveniences necessarily follow out of the Law only the Parliament can cure them 1. I shall begin with the admitted Doctrine of Calvin's Case By that Case He that is born a Subject of the King of England in another Dominion than England is no Alien in England So the Scots born when the King of Scots was King of England are no Aliens those born before in Scotland are Therefore Nicholas Ramsey who is not born the Kings Subject of Ireland must be an Alien in England whose Law by the Rule of that Case makes only Subjects born and not made of another Dominion not to be Aliens in England 2. It is agreed to my hand That an Alien naturalized at this day in Scotland remains an Alien in England notwithstanding 3. By the Doctrine of Calvin's Case a natural born Subject to the Kings person of a Forraign Dominion is not priviledg'd in England from being an Alien else the Antenati of Scotland were priviledg'd for they are natural born Subjects to the Kings person as well as the Postnati 4. It stands not with the Resolution of that Case That the natural born Subjects of the Dominions belonging to the Crown of England qua such should be no Aliens in England which was the principal matter to have been discuss'd but was not in Calvin's Case and chiefly concerns the point in question The Case relied on to justifie the Iudgment in Calvins Case are several Authorities That the King of England's Subjects formerly were never accounted Aliens in England though they were all out of the Realm of England and many within the Realm of France But all these are admitted in that Case as most of them were Dominions belonging to the Crown of England and if so Of Normandy Brittain Aquitain Anjou Gascoigne Guien Calais Jersey and Gernsey Isle of Man Berwick and other Parts of Scotland Ireland Tourney c. What Inference could be made for the Resolution of Calvin's Case That because the Kings natural Subjects of Dominions belonging to the Crown of England as these did were no Aliens in England Therefore that Subjects of a Dominion not belonging to the Crown as the Postnati of Scotland are should be no Aliens in England Non sequitur Therefore it is for other reason then because natural Subjects of Dominions belonging to the Crown of England they were no Aliens by the meaning of that Resolution And the Adequate Reason being found out why they are not Aliens will determine the point in question 1. It was not because they were natural Subjects to him that was King of England for then the Antenati of Scotland would be no Aliens they being natural Subjects to him that is King of England as well as the Postnati 2. It was not because they were natural Subjects of Dominions belonging to the Crown of England for then the Postnati would be Aliens in England for they are not Subjects of a Dominion belonging to the Crown of England 3. It remains then the Reason can be no other but because they were born under the same Liegeance with the Subjects of England which is the direct reason of that Resolution in Calvins Case Calvins Case f. 18. b. a. The words are The time of the birth is of the essence of a Subject born for he cannot be a Subject to the King of England that is to be no Alien unless at the time of his birth he was under the Liegeance and Obedience of the King that is of England And that is the reason that Antenati in Scotland for that at the time of their birth they were not under the
Act of Parliament of England no more than Wales Gernsey Jersey Barwick the English Plantations all which are Dominions belonging to the Realm of England though not within the Territorial Dominion or Realm of England but follow it and are a part of its Royalty Thirdly That distinct Kingdoms cannot be united but by mutual Acts of Parliament True if they be Kingdoms sui Juris and independent upon each other as England and Scotland cannot be united but by reciprocal Acts of Parliament So upon the Peace made after Edward the Third's war with France Gascoign Guien Calais were united and annext to the Crown of England by the Parliaments of both Nations which is a secret piece of Story and mistaken by Sir Edward Coke who took it as a part of the Conquest of France and by no other Title But Wales after the Conquest of it by Edward the First was annext to England Jure Proprietatis 12 Ed. 1. by the Statute of Ruthland only and after more really by 27 H. 8. 34. but at first received Laws from England as Ireland did but not proceeded by Writs out of the English Chancery but had a Chancery of his own as Ireland hath was not bound by the Laws of England unnamed until 27 H. 8. no more than Ireland now is Ireland in nothing differs from it but in having a Parliament Gratiâ Regis subject to the Parliament of England it might have had so if the King pleas'd but it was annext to England None doubts Ireland as conquer'd as it and as much subject to the Parliament of England if it please The Court was divided viz. The Chief Justice and Tyrrell for the Plaintiff Wylde and Archer for the Defendant Trin. 25 Car. II. C. B. Rot. 1488. Thomas Hill and Sarah his Wife are Plaintiffs Thomas Good Surrogat of Sir Timothy Baldwyn Knight Doctor of Laws and Official of the Reverend Father in God Herbert Bishop of Hereford is Defendant In a Prohibition THE Plaintiffs who prosecute as well for the King as themselves set forth That all Pleas and Civil Transactions and the Exposition and Construction of all Statutes and all Penalties for the breach of them pertain only to the King and his Crown Then set forth the time of making the Act of 32 H. 8. c. 38. and the Act it self at large and that thereby it was enacted That from the time limited by the Act no Reservation or Prohibition Gods Law excepted should trouble or impeach any marriage without the Levitical Degrees And that no person shall be admitted after the time limited by the Act in any the Spiritual Courts within this Kingdom to any Process Plea or Allegation contrary to the Act. They set forth That after the making of the said Act and the time thereby limited the Plaintiffs being lawful persons to contract marriage and not prohibited by Gods Law and being persons without the Levitical Degrees the Twentieth day of September in the Four and twentieth year of the King at Lemster in the County of Hereford contracted matrimony in the face of the Church and the same consummated and solemninized with carnal knowledge and fruit of Children at Lemster aforesaid That by reason thereof the said Marriage is good and lawful and ought not to be null'd in Court Christian That notwithstanding the Defendant praemissorum non ignarus fraudulently intending to grieve and oppress the Plaintiffs unduly draws them into question before him in the Court Christian for an unlawful marriage as made within the Degrees prohibited by Gods Laws and there falso caute subdole libelling and supposing that whereas by the Laws and Canons Ecclesiastical of this Kingdom it is ordained That none should contract matrimony within the Degrees prohibited by Gods Law and expressed in a certain Table set forth by Publique Authority Anno 1563. and that all marriages so contracted should be esteemed incestuous and unlawful and therefore should be dissolved as void from the beginning And also That whereas by a certain Act of Parliament made and published in the Eight and twentieth year of King Henry the Eighth It is enacted That no person or persons subject or residing within the Realm of England or within the Kings Dominions should marry within the Degrees recited in the said Act upon any pretence whatsoever And That whereas the said Thomas Hill had taken to wife one Elizabeth Clark and for several years cohabited with her as man and wife and had carnal kdowledge of her He the said Thomas notwithstanding after the death of the said Elizabeth had married with and took to wife the said Sarah being the natural and lawful Sister of the said Elizabeth against the form of the said last mentioned Statute and them the said Thomas and Sarah had caus'd unjustly to appear before him in Court Christian to Answer touching the Premisses although the said marriage be lawful and according to Gods Law and without the Levitical Degrees And That although the Plaintiffs have for their discharge in the said Court Christian pleaded the said first recited Act yet the Defendant refuseth to admit the same but proceeds against them as for an incestuous marriage against the form of the Statute And that notwithstanding he was served with the Kings Writ of Prohibition to desist in that behalf in contempt of the King and to the Plaintiffs damage of One hundred pounds The Defendant denies any prosecution of the Plaintiffs contrary to the Kings Writ of Prohibition and thereupon Issue is joyn'd and demurrs upon the matter of the Declaration and prays a Consultation and the Plaintiffs joyn in Demurrer In the Argument upon Harrisons Case I said and still say That if granting Prohibitions to the Spiritual Courts in Cases of Matrimony were res integra now I saw no reason why we should grant them in any Case The matter being wholly of Ecclesiastick Conizance my Reasons were and are 1. Because in all times some marriages were lawful and others prohibited by Divine and Ecclesiastick Laws or Canons yet the Temporal Courts could not prohibit the impeaching of any marriage how lawful soever nor take notice of it 2. If by Act of Parliament anciently all marriages not prohibited by Gods Law or Canons of the Church had been declared lawful the Temporal Courts thereby had no power to prohibit the questioning of any marriage more than before for it had said no more than what the Law was and did say before such Act. So had it been enacted That all marriages should be lawful not prohibited by the Levitical Law the Church had retain'd the judging which were against the Levitical Law as they did when the unlawfulness was not confin'd only to the Levitical Law And the Question now concerning what are the Levitical Degrees whereof we assume the Conizance is but the same as the question would be concerning what marriages were prohibited in the Eighteenth of Leviticus For though such Acts of Parliaments had been yet they had given no new Iurisdiction or
requires Accordingly Sir Edward Coke commenting upon the Statute of 32 H. 8. in his second Institutes Cok. Inst 2 f. 683. sets forth a Scheme of the Levitical degrees as necessary to the exposition of that Statute and therein enumerates the marriage of the wives husband with her sister to be both within the Levitical degrees and prohibited by the Eighteenth Chapter of Leviticus One Man was sued before the High Commissioners Mans Case Moore 's Rep. f. 907. a. 33 Eliz. for marrying his wives sisters daughter and a Prohibition was granted as Moore Reports the Case because the marriage was not prohibited by the Levitical Law which was no Reason Crook reports the same Case Crook 33 El. f. 228. Mans Case and that a prohibition was granted but that a consultation was after granted and that a sentence of Divorce was given In reporting this Case of Mans Justice Crook's words are A Consultation was granted because the Prohibition is not to be if the marriage be not within the Levitical degrees Which is a great mistake for if the marriage be within the Levitical degrees no prohibition ought to issue for it ought not to be but when the marriage is without the Levitical degrees Then he adds But here the prohibition was general and therefore not good which is not intelligible whatever he intended by it For by the Libel it must necessarily appear to the Court That the marriage in question was either without the Levitical degrees or within them If it were without the degrees the Court did most unjustly to grant the Consultation for it ought not to have been granted If the marriage were within the Levitical degrees it had been unjust not to grant a Consultation But a Consultation was granted therefore the Court conceived the marriage of the husband with his wives sisters daughter to be a marriage within the Levitical degrees and not without them though it be not specified in the Eighteenth of Leviticus to be prohibited Cok. Litt. Edit 1. f. 235. a. Peirsons Case not Parsons Sir Edward Coke in the first Edition of his Littleton saith That one Peirson was sued in the Ecclesiastical Court for marrying his first wives sisters daughter against the Canons of the Church and that the Court of Common Pleas upon consideration taken of the Statute of 32 H. 8. granted a prohibition because the marriage was not prohibited by the Levitical degrees And these two Cases have been principally insisted on to prove no marriage is within the Levitical degrees if the degree be not particularly mentioned in the Eighteenth of Leviticus But upon occasion of Harrison's Case lately adjudg'd in this Court I made search for the Records of those two Cases but no Record could be found of Man's Case but by Crook a Consultation was granted in it Trin. 2 Jac. Rot. 1032. By the Record of Pierson's Case which was in Trinity 2 Jac. it appears that in Hillary Term following a Consultation was granted which Sir Edward Coke mentions not in his Littleton And in the Second Edition of his Littleton and all the subsequent Editions that Case is omitted Hob. f. 181. a. Howard vers Bartlet Rennington's Case I find likewise in the Lord Hobarts Reports That one Rennington was questioned by the High Commissioners for marrying his wives Neece and was sentenced to Penance and bound to abstain from her Company but they were not divorced à vinculo Matrimonii though there was cause saith the Book and therefore the wife had her Dower nor was there any prohibition in the Case So as by all these Cases the marriage of the husband with his wives sisters daughter is a marriage prohibited within the Levitical degrees for nearness of kindred to the wife Then of necessity the wives sisters marriage who is nearer to the wife with the wives husband must be prohibited à fortiori So I conceive these three Cases full against the Plaintiff It is not strange That at first Prohibitions were granted upon the Statute of 32. in Cases which were not specifically mentioned in the Eighteenth of Leviticus but after discussions of the Levitical degrees upon Consultations pray'd It was manifestly found That divers marriages must be prohibited within the Levitical degrees not nominally expressed in the Eighteenth of Leviticus As the marriage of the father with his own daughter Of the Grandson with his Grand-mother or Grand-fathers wife Of the Son with his Mothers brothers wife Of the Uncle with his brothers or sisters daughter Cok. Inst 2. f. 683 684. which since appears by Sir Edward Coke to be a prohibited marriage and others upon like reason And was resolved in Arch-bishop Laud's time in the Case of Sir Giles Alington who was deeply fined and a Sentence of Divorce given for marrying his brother or sisters daughter which I heard at Lambeth House And no prohibition was granted though moved for as was very probable and commonly reported but we find no Record of Prohibitions denied for there is no Entry made of Motions not granted but of Prohibitions granted there is which makes the granting of a Prohibition of no great Authority unless upon Action brought a Consultation be denied upon Demurrer So of the husband with his wives sisters daughter The third Assertion As to the third Assertion That admitting this marriage be without the Levitical degrees yet it is prohibited by Gods Law and therefore to be impeached notwithstanding the Statute of 32 H. 8. whose words are No marriage Gods Law excepted shall be impeached without the Levitical degrees When an Act of Parliament declares a marriage to be against Gods Law it must be admitted in all Courts and Proceedings of this Kingdom to be so By an Act 25 H. 8. c. 22. intituled An Act declaring the Establishment of the Succession of the Kings most Royal Majesty in the Imperial Crown of this Realm Among sundry marriages declared by that Act to be marriages within the degrees of marriage prohibited by Gods Law the marriage of a man with his wives sister is expresly declared to be prohibited by Gods Law and that a Divorce should be of such marriage if any such were But this Act is expresly repeal'd by an Act in 28 H. 8. c. 7. intituled An Act for the Establishment of the Imperial Crown of this Realm By that Act of 28 H. 8. it is declared in these words And furthermore since many Inconveniences have fallen as well in this Realm as others by reason of the marrying within the degrees of marriage prohibited by Gods Law That is to say The Son to marry the Mother or the Step-mother carnally known by his Father The Brother the Sisters The Father his Sons daughter or his Daughters daughter Or the Son to marry the Daughter of his Father procreat and born by his Step-mother Or the Son to marry his Aunt being his Fathers or Mothers sister Or to marry his Uncles wife carnally known by his Uncle Or the Father to marry his Sons
retail or in gross to their best advantage in their houses or elsewhere Non obstante the Statute of 7 E. 6. They find the Act of 12 Car. 2. c. 25. and the confirmation of it concerning the giving Licences to retail Wine and the Proviso therein prout Provided also That this Act or any thing therein contained shall not extend or be prejudicial to the Master Wardens Freemen and Commonalty of the Mystery of Vintners of the City of London or to any other City or Town Corporate but that they may use and enjoy such Liberties and Priviledges as heretofore they have lawfully used and enjoyed They find That the Master Wardens Freemen and Commonalty of the Mystery of Vintners in the City of London was an ancient Corporation of the said City of London at the time of the Act of 12 Car. 2. and incorporated by the Name of Master Wardens Freemen and Commonalty of the Mystery of Vintners of the City of London They find That the Defendant three years before and during all the time in the Information used the Trade of retailing of Wine and kept a Tavern in the Parish of Stepney in the County of Middlesex was an Inhabitant there and that the Defendants house in which the said Wine was sold is within two miles of the City of London They find That the Defendant within the time in the Information mentioned did sell Ten pints of Sack as in the Information mentioned to be drunk and spent in his said dwelling house being a Tavern in the said Parish of Stepney They find That at the time of the sale of the said Wine and three years before the Defendant was a natural born Subject of the King and a Freeman of the City of London of the said Company of Vintners Si pro quer quoad 50 l. pro quer Si pro Def. pro Def. 1 s. Vpon this Special Verdict three Questions have been raised 1. Whether the Patent of 9 Jac. was not void in its Creation 2. Admitting it was not void in its Creation Whether it became void by the death of King James 3. If it were a good Patent in the Creation nor was void by the death of King James Whether the Proviso in the Act of 12 Car. 2. Saving all the Right of the Master Wardens Freemen and Commonalty of Vintners in the City of London hath preserved all that Right which they had by the Patent of 9 Jac. against the Act of 12 Car. 2 1. I conceive That if the Patent 9 Jac. were not void in the Creation it remained good after the death of King James 2. If it were not void in the Creation nor by the death of King James all Right that the Master Wardens Freemen and Commonalty of Vintners had by it is still preserved by the Proviso in the Act of 12 Car. 2. but if the Patent of 9 Jac. was void in its Creation or by the death of King James then the Proviso in the Act of 12 Car. 2. aids them not at all So as now it is only insisted on That the Patent of 9 Jac. was void in its Creation for two Reasons 1. For that the Law of 7 E. 6. was such a Law pro bono publico as the King could not dispence against it more than with some other penal Laws pro bono publico 2. If he could to particular persons he could not to the Corporation of Vintners and their Successors whose number or persons the King could never know and that it stood not with the trust reposed in him by the Law to dispense so generally without any prospect of number or persons The Books have been plentifully urg'd at the Barr and by my Brothers who argued before me therefore I shall not Actum agere to repeat them But I observed not that any steddy Rule hath been drawn from the Cases cited to guid a mans Judgment where the King may or may not dispence in penal Laws excepting that old Rule taken from the Case of 11 H. 7. 11 H. 7. f. 11 12. That with Malum prohibitum by Stat. the King may dispence but not with Malum per se But I think that Rule hath more confounded mens Iudgments on that subject than rectified them Yet I conceive that Case and the Instances given in it rightly understood to be the best key afforded by our Books to open this dark Learning as it seems to me of Dispensations to which therefore I shall only or principally apply my self Before I enter upon it I must previously assent That every act a man is naturally enabled to do is in it self equally good as any other act he is so enabled to do And so all the Schoolmen agree That Actus qua actus non est malus Rom. 4.15 And that mens acts are good or bad only as they are precepted or prohibited by a Law according to that Truth Where there is no law there is no transgression Whence it follows That every Malum is in truth a Malum prohibitum by some Law In the next place I mean by the word Dispensation when I use it another thing than some of my Brothers defined it to be namely That it was Liberatio à poena or as others That it is provida relaxatio Juris which is defining an ignotum per ignotius but liberare à poena is the proper effect of a pardon not of a dispensation For a dispensation obtained doth jus dare and makes the thing prohibited lawful to be done by him who hath it upon which depends the true reason of many Cases which admit not of dispensation but a pardon frees from the punishment due for a thing unlawfully done Yet freedom from punishment is a consequent of a dispensation though not its effect But so it is also a consequent of repealing the Law and a consequent of an exception at the making of the Law of some particular person or persons from being bound by the Law I come now to the Case it self of 11 H. 7. wherein I agree That with Malum prohibitum by Stat. indefinitely understood the King may dispense But I deny that the King can dispense with every Malum prohibitum by Statute though prohibited by Statute only 1. The King may pardon Nusances that are transient and not continuing as a Nusance in the High-way which still continues and is not ended until removed cannot be pardon'd So of a Water-course diverted or a Bridge broken down Cok. Pla. Coron f. 237. they cannot be pardon'd so as to acquit the Nusance-maker for committing them but the fine or punishment impos'd for the doing may be pardon'd But breaking the Assise of Bread and Ale forestalling the Markets ingrossing regrating or the like which continue not but which are over assoon as done until done de novo again may be pardon'd like other offences So as the Offender shall not be impleaded for them otherwise than by persons who have receiv'd particular damage which the King cannot remit
of the Court if the name of the County be familiar to them as those of Wales are but not those of Ireland We must then look higher and search for surer Premisses than those late Awards of the Courts at Westminster to determine this Question And first it must be agreed That when Wales was a Kingdom or Territory governed by its own Laws and the people subject to a Prince peculiar to themselves immediately and not to the Crown of England no Process of any nature could issue thither from the Courts of England more than to any other Forreign Dominion that is not of the Dominion of England In which Assertion I neither do nor need affirm any thing Whether Wales were held from the Crown of England by Feodal Right or not and what sort of Liegeance the Princes of Wales and from what time did owe to the King of England For whatever that was yet Wales was governed by its own Laws and not bound by any Law made in England to bind them more than Scotland was when yet the King of Scotland did homage to the King of England for that very Kingdom of Scotland I begin then with the time that Wales came to be of the Dominion of the Crown of England and was obliged to such Laws as the Parliament of England would enact purposely to bind it This was not before the entire submission of Wales de alto basso as the words of the Statute of Rutland are to King E. 1. which a little in time preceded the making of those Laws for Wales called the Statute of Rutland Whether it was really a Statute by Parliament or concession of the King by his Charter for the future Government of Wales is not material for so at least it appears to be But by what transaction soever either of voluntary submission or partly by force of Arms it was effected it is evident that from that time Wales became absolutely of the Dominion of the Kingdom of England and not only of the Empire of the King of England as it might possibly have been for now Scotland is The words of the Statute of Rutland are Divina Providentia quae in sui dispositione non fallitur inter alia suae dispensationis munera quibus Nos Regnum Nostrum Angliae decorari dignata est terram Walliae cum incolis suis prius nobis jure feodali subjectam jam sui gratia in proprietatis nostrae Domin obstaculis quibuscunque cessantibus totaliter cum integritate convertir coronae regni praed tanquam partem corporis ejusdem annexit univit So as from this time it being of the Dominions of the English the Parliaments of England might make Courts to bind it but it was not immediately necessary it should but its former Laws excepting in point of Soveraignty might still obtain or such other as E. 1. should constitute to whom they had submitted and accordingly their Laws after their Submission were partly their Old Laws and partly New ordained by him Preamble Stat. Walliae Leges Consuetudines partium illarum hactenus usitatas coram nobis proceribus Regni nostri fecimus recitari quibus diligenter auditis plenius intellectis quasdam illarum de consilio procerum praedictorum delevimus quasdam permisimus quasdam correximus etiam quasdam alias adjiciendas faciendas decrevimus eas de caetero in terris Nostris in partibus illis perpetua firmitate teneri Observari volumus in forma subscripta Then follow the Ordinances appointing Writs Original and Judicial in many things varying from those of England and a particular manner of proceeding and a particular Justiciar to administer Justice and particular Chancery out of which the Writs for those parts were to issue So as though Wales became of the Dominion of England from that time yet the Courts of England had nothing to do with Administration of Justice there in other manners than now they have with the Western Islands Barbadoes St. Christophers Mevis New England which are of the Dominions of England and so is Ireland the Isles of Garnsey and Jersey at present all which may be bound by Laws made respectively for them by an English Parliament but all or most of them at present by Laws appointed and made by the King's Letters Patents and the King's Writs Original or Judicial from the Courts of Westminster go not there so anciently were Gascoign Guyen and Calais of the Dominions of England but governed by the Customes and Laws used there and out of the Jurisdiction of the Kings Courts And it is observable That these Territories of France were not held by the Crown of England by that right it had to all France as is much mistaken and particularly by Sir Edward Coke in Calvin's Case For those Territories by an Act and Conclusion of Peace made by E. 3. with the French which was ratified by the Parliaments of both Kingdoms those Territories were then annexed thereby to the Dominion of the Crown of England whereof I had a fair and ancient Copy from Mr. Selden but lost it by the fire And that Gascoign Guyen 2 R. 3. f. 12. and Calais were of the Dominions of England and Ireland appears by the Book 2 R. 3. f. 12. But to all Dominions of Acquisition to the Crown of England some Writs out of the King's Chancery have constantly run Sir Edward Coke in Calvin's Case Calvin's Case 7. Rep. f. 20. calleth them Brevia mandatoria non remedialia distinguishing Writs into Brevia mandatoria remedialia Brevia mandatoria non remedialia The first sort he saith never issue into Dominions belonging to England but not parts of it the other do More intelligibly it may be said That Writs in order to the particular Rights and Properties of the Subject which he calls Brevia mandatoria remedialia for this Writ is a Mandate issue not to Dominions that are no part of England but belonging to it For surely as they have their particular Laws so consequently they must have their particular Mandates or Writs in order to them And though their Laws should by accident be the same with those of England as hath happened to Ireland some times and now to Wales yet the Administration of them is not necessarily by and under the Jurisdiction of the Courts of England Brevia mandatoria non remedialia are Writs that concern not the particular Rights or Properties of the Subjects but the Government and Superintendency of the King Ne quid Respublica capiat detrimenti such are Writs for safe Conduct and protection Writs for Apprehension of persons in his Dominions of England and withdrawing to avoid the Law into other of his Dominions as he instances in such Writs to the Dominions of Gascoign viz. to the Major of Bourdeaux there to certifie concerning a person Outlaw'd in England if he were in Servitio Regis there of like nature are the Writs of
the Lords of Wales if it be not of Lands between the Lords themselves There is an ancient Book remarkable to the same purpose 8 E. 3. Term. Mich. 59. speaking of the Common Pleas This Court hath more Conuzance of Pleas of the Welch Shires than it hath of Pleas of the County of Chester for the Pleas of Quare Impedits and of Lands and Tenements held of the King in chief in Wales shall be pleaded here and they shall not be so of the County of Chester Fitz. Jurisdiction p. 34. 6 H. 5. Land in Wales immediately held of the King is pleadable in England per Haukford 6 H. 5. no such Book at large The Law and doubtless the Ordinance made by Parliament mentioned in 18 E. 2. concerning Lordships Marchers was the same concerning Land held in chief of the King and are mentioned in the Books as synonimous and were so for all Lordships Marchers were held from the Crown in chief nor could the King probably have other Lands in chief in Wales beside the Lordships Marchers for all was either of Lordships Marchers or Lands belonging to the Principality and held from it and not from the Crown in chief To this purpose there is an ancient Statute 28 E. 3. very convincing 28 E. 3. c. 2. All the Lords of the Marches of Wales shall be perpetually Attendants and annexed to the Crown of England as they and their Ancestors have been at all times before this in whose hands soever the same principality be or shall come And they being no part of the Principality and consequently not under the Statute and Ordinance of Wales 12 E. 1. It was provided by a Law That they should be impleaded in England and the Summons and Tryal to be by the Sheriff of and in the next adjoyning County Accordingly you find the practice was by many ancient Cases remembred but the Year-Books of E. 2 being never printed wherein only that Statute is mentioned otherwise than in Fitz-herbert's Abridgment and the Statute it self not extant gave occasion to men obiter in the time of H. 6. H. 7. long after to say that such impleading for matters arising in Wales in the Courts of England and the Tryals to be in the adjacent Counties because they knew not it came to pass by Act of Parliament was by the Common Law on which had they reflected with seriousness they had found it impossible For that Tryals concerning Lands in Wales quatenus particularly Wales after it became of the Dominion of England should by the Common Law be differing from other Tryals in England and in the adjacent Counties could not possibly be for Wales was made of the Dominion of England within time of memory viz. 12 E. 1. and whatever Tryal was at Common Law must be beyond all memory Therefore no such Tryal for Land in Wales particularly could be by the Common Law It remains then That if such were at Common Law it must be for Lands in all Dominions of the Acquisition of England consequently for Ireland Garnsey and Jersey Gascoign Guyen Calais Tournay as well as Wales but it was never in practice or pretence that any such Tryals should be for any Land in these places Therefore it is evident That it was and it could be no otherwise than by Act of Parliament that Wales differed from the other Dominions belonging to England in these Tryals Nor was it by any new Law made by E. 1. or any his Successors by the Clause in the end of the Statute of Rutland which hath nevâ—r been pretended For by that Clause power was given to change Laws simply for Wales but this way of Tryals changes the Law of England in order to Tryals for Land in Wales which that Clause neither doth nor could warrant Besides this new way of Tryals concerning Lordships Marchers held in chief from the King the Books are full that in Quare Impedits for disturbance to Churches in Wales the Summons and Tryal must be by the Sheriff of and in the adjacent Counties which is often affirmed and agitated in the Books but with as much confusion and as little clearness as the other concerning Land To this purpose is the Case before 8 E. 3. the Pleas of Quare Impedits 8 E. 3. 59. and of Land and Tenements held in chief of the King in Wales shall be pleaded there A Quare Impedit brought by the King against an Abbot 15 E. 3. Fitz. Jurisdiction p. 24. exception taken that the Church was in Wales where the Kings Writ runs not non allocatur for the King was party by the Book as a reason A Quare impedit cannot be brought in Wales 11 H. 6. f. 3. A B. because a Writ to the Bishop cannot be awarded for they will not obey it and so was the Opinion in that Case of Danby Morton and Newton that Quare Impedits for Churches in Wales must be brought only in the Kings Courts and the Opinion is there that the Prince could not direct a Writ to the Bishops in Wales upon Quare Impedits there brought So is the Book of 30 H. 6. of Churches in Wales 30 H. 6. f. 6. B. a Quare Impedit shall be brought in England the Case was cited before concerning Tryals of Lands in Wales A Quare Impedit was brought in the County of Hereford of a disturbance in Wales to present to a Church 35 H. 6. f. 30. A B. exception was taken by Littleton only to this that the Plaintiff did not shew in his Count or Writ that Hereford was the next adjoyning County but by the Book it was well enough for if Hereford were not the next adjoyning County the Defendant might shew it but no exception was taken to the bringing of the Writ into the County of Hereford if it were the next County 36 H 6. f. 33. A B. Quare Impedits shall be brought here of Churches in Wales and shall be sued in the Counties adjoyning for that the Justices read it Bishops will not obey any man there If a Quare Impedit be brought here of a Church in Wales it shall be tryed in the County adjoyning The reason there given is the same as in many other Books Car nous avomus power ad escrier al Evesque mes ils voylont parront ceo disobeyer It is manifestly mis-printed Car nous navomus power ad escrier al Evesque mes ils voylont parront ceo disobeyer which is not sense By these Books and many other it is clear Quare Impedits were formerly brought in England for Churches in Wales as real Writs were for Land and the Tryal was in the next adjoyning English County But as those Tryals for Land were only for Lordships Marchers held of the King in chief or part of them and that by special Act of Parliament as hath been opened So the Quare Impedits brought in England and Tryals there had upon them were not for all Churches in Wales
wants a Tryal See for this 32 H. 6 25. B. 8 Ass pl. 27. d. Dowdales Case Co. l. 6. Thus bringing Actions in England and trying them in Counties adjoyning to Wales without knowing the true reason of it also bringing Quare Impedits in like manner for Churches in Wales without distinguishing they were for Lands of Lordships Marchers held of the King and for Churches within such Lordships Marchers hath occasioned that great diversity and contrariety of Opinions in our Book and at length that common Error That matters in Wales of what nature soever are impleadable in England and to be tryed in the next adjoyning County When no such Law was ever pretended to be concerning other the Kings Dominions out of the Realm belonging to the English Crown of the same nature with Wales as Ireland the Isles of Garnsey and Jersey Calais Gascoign Guyen anciently Nor could it be pretended of Scotland if it should become a Dominion of the Crown of England it being at present but of the King of England though it was otherwise when the King came to the Crown And to say that Dominions contiguous with the Realm of England as Wales was and Scotland would be is a thing so simple to make a difference as it is not worth the answering for no such difference was assignable before Wales became of the Dominions of England and since the Common Law cannot make the difference as is observed before It remains to examine what other Alterations have been by Act of Parliament whereby Jurisdiction hath been given to the Courts of England in Wales without which it seems clear they could have none 1. And first by Parliament 26 H. 8. power was given to the Kings President and Council in the Marches of Wales in several Cases 2. Power was given to indict outlaw and proceed against Traytors Clippers of Mony Murtherers and other Felons within the Lordships Marchers of Wales so indicted in the adjoyning Counties by the same Statute but not against such Offenders within the Principality of Wales which was not Lordships Marchers 3. Some other Laws are of this nature about the same time to punish the perjury of Jurors in Wales generally before the Council of the Marchers 1 E 6. c. 10. â—1 Eliz. c. 3. That Proclamations upon Exigents should issue into Wales was ordained by the Statute of 1 E. 6. for by a Statute before in 6 H. 8. c. 4. such Proclamations went but to the adjoyning Counties Rastall Exigent but the Capias utlagatum went always as I take it being a Mandatory Writ for the King but by 1 E. 6. c. 10. That if any persons dwelling in Wales shall after the time limited by the Act be outlawed that then Writs of special Capias utlagatum single Capias utlagatum Non molestando and all other Process for or against any person outlawed shall issue to the Sheriffs of Wales as immediate Officers of the King's Bench and Common Pleas. Capias Utlagâ—tum So as the issuing of a Capias utlagatum into Wales is clear by Parliament 34 H. 8. Persons having Lands in Wales and bound in Statute Staples or Recognizances in England Process to be made against them out of the Chancery in England to the Sheriffs of Wales and for Recognizances acknowledged before either of the Chief Justices by them Process to be immediately pursued from the said Justices 34 H. 8. c. 26. All Process for urgent Causes to be directed into Wales by command of the Chancellor of England or any of the King's Council as hath been used The next is the Alteration made by the Statute of 27 H. 8. which was very great and by which it is commonly taken that Wales was to all purposes united with England and that since all Process may issue out of the Courts here to Wales It is said that the Dominion and Principality of Wales is and always hath been incorporated to the Realm of England that is ut per Stat. Walliae 12 E. 1. jure feodali non proprietatis and so it is expounded in Calvin's Case Cal. C. 7 Rep. f. 21. B. But there it is said by 12 E. 1. which is there taken for an Act of Parliament Wales was united and incorporated unto England and made parcel of England in possession and the Case of 7 H. 4. f. 14. there cited but this is clearly otherwise for unless that Stat. Walliae were an Act of Parliament it could not make Wales part of England which is much questioned for no such Parliament is found summoned nor Law made in it nor is it likely at that time a Parliament of England should be summoned there for Rutland is doubtless in Wales which had it been part of England then made all Laws made or to be made in England without naming Wales had extended to it which they did not before 27 H. 8. The Incorporation of Wales with England by that Act consists in these particulars generally 1. That all persons in Wales should enjoy all Liberties Priviledges and Laws in England as the natural born Subjects of England 2. That all persons inheritable to Land should inherit the same according to the Laws of England thereby inheriting in Gavel kind was abrogated 3. That Laws and Statutes of England and no other should for ever be practised and executed in Wales as they have been and shall be in England And as by this Act hereafter shall be further ordained By this Clause not only all the present Laws of England were induced into Wales but all future Statutes of England to be made were also for the future in like manner induced into Wales which was more than ever was done in Ireland though Ireland before and by Parning's Act had the present Laws then and Statutes of England introduced into Ireland but not the future Laws and Statutes to be made as in this Case was for Wales But this gave no Jurisdiction in general to the Courts of England over Wales more than before nor otherwise than if a Law were made in England That the Laws and Statutes of England now and for the future always to be made should be Laws in Ireland the Courts in England would not thereby have other Jurisdiction in Ireland than they already have in any respect The Vniting of Wales to England and Incorporating Note doth not thereby make the Laws used in England to extend to Wales without more express words Pl. Com. 129. B. 130. A. By this Act it appears That the Lordships Marchers in the Dominions of Wales did lye between the Shires of England and the Shires of Wales and were not in any Shire most of which Lordships were then in the King's possession and some in the possession of other Lords And that divers of them are by the Act united and joyned to the County of Glocester others to the County of Hereford and others to the County of Salop others respectively to the Shires of Glamorgan Carmarthen Pembrook
more Books Obj. 3 That by the Statute of 9 E. 3. Pleas of Releases or Deeds dated in Franchises within the Realm shall be tryed where the Action is brought Answ Wales is no Franchise or if it were not within the Realm for the questions concerning a Deed pleaded bearing date there but of Original Process for Causes arising and Tryals of them in the next County adjoyning and not in the County where the Action of a Deed dated in a Franchise of the Realm which do toto coelo differ and concerning Executions and Judgments here to be made in another Dominion The same may be said concerning the Statute of 12 E. 2. when Witnesses to Deeds in Forreign Franchises are to be summoned with the Iury and the Tryal notwithstanding their absence to proceed when the Writ is brought Obj. 4 Presidents of Process issued to the Sheriffs of Wales without a Judicial decision upon Argument are of no moment Many things may be done several ways as Bonds though they have regularly one common form yet they may be in other forms as well Presidents are useful to decide questions but in such Cases as these which depend upon Fundamental Principles from which Demonstrations may be drawn millions of Presidents are to no purpose Besides it is known that Officers grant such Process to one Sheriff or County as they use to another nor is it in them to distinguish between the power of the Court over a Sheriff in Wales from a Sheriff in England especially when they find some Writs of Execution going which are warranted by Acts of Parliament which they know not though they do know Process of Execution in fact runs thither as Capias utlagatum Extents upon Statute which are by Acts of Parliament And that other Mandatory Writs issue thither as well at Common Law as by a particular Clause concerning the Chancellor in the Act of 34 H. 8. c. 26. By the Register upon a Judgment had in the Common Pleas against a Clerk Regist f. 43. B Brevium Judicialium who was after made Archbishop of Dublin in Ireland upon a Fieri Facias issued to execute the Judgment to the Sheriff of Middlesex and his Retorn that he had no Lands or Goods in his Bayliwick but was Archbishop in Ireland upon a Testatum of it in the Common Pleas that he had Lands and Goods in Ireland a Fieri Facias issued in the King's name Justiciario suo Hiberniae to make Execution but it appears not whether this Writ issued from the Common Pleas or especially by the King's Direction out of the Chancery which possibly may be as a special Mandatory Writ of the Kings locum tenens there which varies in stile at the Kings pleasure anciently Justiciario suo Hiberniae at other times Locum tenenti nostro at other times Deputat or Capitaneo generali nostro which stiles are not regularly known to the Officers of the Courts at Westminster And perhaps by special Writs to the chief Officer and the King Execution may be made of Judgments given at Westminster in any of his Dominions which would be enquired of FINIS An Exact and Perfect TABLE TO THE REPORTS and ARGUMENTS OF Sir JOHN VAVGHAN Lord Chief Justice of the Court of Common Pleas. Abatement of Writs See Writs 1. WHere a Writ is brought against an Executor in Debt upon a simple Contract he may abate it 94 2. Judges ought not Ex officio to abate Writs but it must come before them by Demurrer 95 Act of the Party 1. Every act a man is naturally enabled to do is in it self equally good as any other act he is so enabled to do 333 Actions and Actions upon the Case 1. Actions upon the Case are more inferior and ignobler than Actions of Debt 101 2. Actions of the Case are all Actiones Injuriarum contra Pacem and it is not a Debt certain but damages for the breach of the promise that must be recovered in it 101 3. Wheresoever the Debt grew due yet the Debtor is indebted to the Creditor in any place where he is as long as the Debt is unpaid 92 4. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 5. If you will recover any thing against any man it is not enough for you to destroy his Title but you must prove your own better than his 60 6. In life liberty and estate every man who hath not forfeited them hath a property and a right which the Law allows him to defend and if it be violated it gives an Action to redress the wrong and punish the wrong-doer 337 7. There are several penal Laws by transgressing of which the Subject can have no particular damage and therefore no particular Action 341 8. All Actions brought against Officers within the Statute of the One and twentieth of K. James must be laid in the proper County 115 116 117 9. Case and not Debt lies for a Solicitor for Soliciting Fees 99 Ad quod dampnum 1. When the King can license without a Writ of Ad quod dampnum he may license if he will whatever the Return of the Writ be 341 345 2. Where the Writ of Ad quod dampnum informs the King better then a Non obstante 356 3. Though there be a Return upon an Ad quod dampnum that it is not ad dampnum yet there must be the Kings license afterwards 341 Administration and Administrator 1. How they are to administer the Intestates Estate 96 2 An Administrator hath a private office of trust he cannot assign nor leave it to his Executor 182 3. An Administrator must take an Oath to make a true accompt 96 4. An Action will not lye against them upon a Tally because it is no good Specialty 100 5. In an Action of Debt upon Bond or Contract brought against him he may confess Judgment if there is no fraud although he hath notice of a former Suit depending 95 100 6. If an Administrator durante minore Aetate brings an Action he must averr the Administrator or Executor to be under the Age of Seventeen years 93 7. The manner of pleading Plene administravit praeter ultra 154 Advowson See Quare Impedit 1. The rights of an Advowson 7 2. Where the Plaintiff and Defendant must alledge Seisin in an Advowson by a former Presentation 8 Agent and Patient 1. In a Quare Impedit both Plaintiff and Defendant are Actors and may have a Writ to the Bishop 6 7 58 Age See Infant Alien 1. The time of the birth is of the Essence of a Subject born for he cannot be a Subject unless at the time of his birth he was under the Kings Liegeance 286 287 2. Regularly who once was an Alien to England cannot be inheritable there but by Act of Parliament 274 282 3. He that is priviledged by the Law of England to inherit must be a Subject of the Kings 268 in loco 278 286 4. He must be more
the Kings license must be without any limitation to him that hath it to exercise his Trade as before it was prohibited otherwise it is no license 346 17. Where the King may dispense generally he is not bound to it but may limit his Dispensation 346 18. Where the King can dispense with particular persons he is not confined to number or place but may license as many and in such places as he thinks fit 347 19. A Corporation is capable of a Dispensation 347 348 20. A Dispensation to a person to keep an Office which person is not capable of such Office is void 355 21. Where a license Ex speciali gratia is good to dispense with a penal Law without a Non obstante 356 Distress 1. A privity is necessary by the common Law between the Distrainer and Distrained 39 2. Attornment and power to Distrain follows the possession and not the Use 43 3. Where a Rent is well vested and there is an Attornment when ever the Rent is arrear a Distress is lawful unless the power is lost 39 4. Where Rent is arrear and afterwards the Rent is granted over in Fee and an Attornment thereunto here the Grantor hath lost his arrears and cannot Distrain 40 5. If a Fine is levied of the Reversion of Land or of Rent to Uses the Cestuy que use may Distrain without attornment 50 51 Dominion 1. Dominions belonging to the Crown of England cannot be separated from it but by Act of Parliament made in England 300 2. What are Dominions belonging to the Realm of England though not in the Territorial Dominions of England ibid. 3. By what Title the Crown of England held Gascoign Guyen and Calais 401 Dower 1. The wife of a Conizee of a Fine shall not be thereof endowed because it is but a fictitious Seisin 41 2. The wife is dowable of a Rent in Fee 40 Droit d'Advowson 1. Where the Writ lies and for whom 11 16 2. In a Droit d'Advowson the King may alledge Seisin without alledging any time 56 Ecclesiastical Court See Archbishop Prohibition THe Secular Judges are most conuzant of Acts of Parliament 213 2. The Temporal Judges have conuzance of what marriages are within the Levitical Degrees and what not and what are incestuous 207 3. The Clergy of this Kingdom shall not enact or execute any Canon Constitution or Ordinance Provincial unless they have the Kings license 329 Elegit 1. It lies upon a Recognizance taken in any of the Courts at Westminster or before any Judge out of Term 102 Error See Presidents Iudgment 1. An erroneous Judgment is a good Judgment to all intents whatsoever until reversed 94 2. If an inferiour or superiour Court gives an erroneous Judgment it is reversible by Writ of Error 139 3. Where the matter concerns the Jurisdiction of the Court a Writ of Error lies no where but in Parliament 396 4. A Writ of Error lies to reverse a Judgment in any Dominion belonging to England 290 402 5. A Writ of Error lay to reverse a Judgment in Calais 402 6. It lies to reverse a Judgment in Ireland 290 291 298 402 Escheat 1. Where the Heir at Law dies without heir the Land escheats and the Lord's Title will precede any future Devise 270 Esplees 1. The profits of a Mine is no Esplees for the Land but only the Esplees for the Mine it self 255 2. So likewise for a Wood the profits of it is no Esplees but only for the Land only upon which the Wood grows ibid. Estates See Grant 1. The Law doth not in Conveyances of Estates admit Estates to pass by Implication as being a way of passing Estates not agreeable to the plainness required by Law in the transferring of Estates 261 262 c. 2. But in Devises they are admitted with due restrictions 261 262 263 c. 3. What Executory Devises and contingent Remainders are good and what not 272 273 4. When a new Estate is granted the privity to the old Estate is destroyed 43 5. The Estate may be changed and yet the possession not changed but remain as formerly 42 6. An Estate in a Rent-charge may may be enlarged diminished or altered and no new Attornment or privity requisite 44 45 46 7. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 8. His wife shall not be endowed neither shall his heir inherit 41 Estoppel or Conclusion 1. A Demise by Indenture of a Term habendum from the expiration of another term therein recited when really there is no such term in esse is no Estoppel to the Lessor or Lessee but the Lessee may presently enter and the Lessor grant the Reversion 82 Evidence 1. No evidence can be given to a Jury of what is Law 143 2. A witness may be admitted to prove the Contents of a Deed or Will 77 3. The Jury may go upon evidence from their own personal knowledge 147 Execution See Elegit 1. Lands Persons or Goods ought not to be lyable to Judgments in other manner than they were at the time of the Judgment given which was where the Court had Jurisdiction which gave the Judgment 398 2. What Execution shall be sued out upon a Recognizance acknowledged in any of the Courts at Westminster or before a Judge 103 3. What Execution shall be sued out upon a Statute 102 4. Upon a Recovery in England an Execution doth not lye into Wales 397 398 5. Perhaps by special Writs to the chief Officer of the King Execution may be made of Judgments given at Westminster in any of his Dominions 420 Executor See Title Statute 10 20. 1. How they are to administer the Testators estate 96 2. An Executor may refuse but cannot assign over his Executorship 182 3. It is no Devastavit in an Executor to satisfie a Judgment obtained upon a simple Covenant before a debt due by Obligation 94 95 97 4. Where an Action of Debt upon Bond or Judgment is brought against him he may confess the Action if there be no fraud in the Case although he hath notice of a former Suit 95 100 5. The Executor may plead an erroneous Judgment in Barr 94 97 6. A Recognizance in Chancery must be paid before Debts upon simple Contracts and Debts by Bond 103 7. It is a Devastavit in an Executor to pay voluntarily a Debt by simple Contract before a Debt by Bond whereof he had notice and not otherwise 94 95 8. It is a Devastavit to satisfie a later Judgment if there are not Assets left to satisfie a former Judgment 95 9. An Action will not lye against Executors upon a Tally because it is no good Specialty 100 10. The pleading of Plene administravit praeter plene administravit ultra and in what Cases it may be pleaded and how 104 Exposition of Words Quam diu 32 Dum ibid. Dummodo ibid. Usually letten 33 34 At any time 34 Or more 35 More or less ibid. Gurges
108 Stagnum ibid. Appertaining 108 109 Reputation 109 Without any lett 121 Quiete pacifice ibid. Lawfully enjoy 124 Dedi Concessi 126 Wreck 168 Derelict ibid. Imported or brought 171 172 Per Nomen 174 175 Claim 188 193 Una cum 197 Nature what it is 221 224 Unnatural 221 222 224 Uncle 241 Communia 255 Remainder 269 in loco 279 Naturalization 280 Antenati Postnati 273 Neer of kin 306 307 308 309 310 Malum prohibitum malum in se 332 333 334 c. 358 359 Dispensation 333 336 349 Exemption 349 Commot 405 Exposition of Sentences 1. Words which are insensible ought to be rejected so also words of known signification so placed in the Deed that they make it repugnant and sensless are to be rejected equally with words of no signification 176 2. In things necessary there are no degrees of more or less necessary 344 3. What appears not to be must be taken in Law to be as if it were not 169 4. Lands usually letten shall be intended Lands twice letten 33 5. Lands which have at any time before been usually letten how expounded 34 6. How long time will gain a Reputation to pass a thing as appertaining 109 Extinguishment 1. Extinguishment of a Rent is when it is absolutely conveyed to him who hath the Land out of which it issues or the Land is conveyed to him to whom the Rent is granted 199 2. A perpetual union of the Tenancy to the Rent or Rent to the Tenancy is an extinguishment of the Rent 39 3. Where Rent is arrear and afterwards it is granted over in Fee and an Attornment thereunto here the Grantor hath absolutely lost his arrears and cannot after distrain 40 Extent 1. An Extent is sueable into Wales but a Ca. Sa. or Fi. Fa. is not 397 Fee-simple 1. A Fee-simple determinable upon a Contingent is a Fee to all intents but not so durable as an absolute Fee-simple 273 2. A. had issue W. T. and R. and devised to T. and his heirs for ever and if T. died without issue living W. then W. should have the Land this is a good Fee in T. And W. hath a Fee in possibility by Executory Devise if T. dyed without issue before him 272 Fieri Facias See Execution  Fine Fines 1. A Fine levied without consideration or use expressed is to the use of the Conizor 43 2. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 42 3. The wife in that case shall not be endowed neither shall it descend to his Heir 41 Formedon 1. The Statute de Donis formed a Writ of Formedon in the Descender for the new Estate Tayl created by that Statute but makes no mention of a Formedon in the Reverter as already known in the Chancery 367 Franchise 1. Franchises Inferiour and Counties Palatine are derived out of the Counties by the Kings Grants where the Kings Writ did run 418 Fraud 1. Wheresoever an Action of Debt upon Bond or Contract is brought against an Executor he may confess the Action if there be no fraud in the case although he have notice of a former Suit depending 95 Gardian in Soccage See Title Statutes 26. 1. WHO is Gardian in Soccage at the Common Law 178 244 2. What a Gardian may do in his own name 182 3. Who were Legitimi tutores or Gardians by the Civil Law 244 4. The Exposition of the Statute made 12 Car. 2. 183 184 5. The Gardian by the Statute of 12 Car. 2. doth not derive his authority from the Father but from the Law 186 6. The Lands follow the Gardianship and not the Gardianship the Lands 178 7. The Gardianship now by the Statute may be till One and twenty years 179 8. Such a special Gardian cannot transfer the custody of the Ward by Deed or Will to any other 179 181 9. The trust is only personal and not assignable neither shall it go to the Executors or Administrators 180 181 10. If the father appoint the custody until One and twenty and the Gardian dies it determines with the death of the Gardian and is a Condition in Law if he live so long 185 Grants Grantor Grantee 1. The Law doth not in the Conveyances of Estates admit Estates regularly to pass by implication But in Devises they are allowed with due restrictions 261 262 c. 2. A thing so granted as none can take by the Grant is a void Grant 199 3. In Grants words which are insensible ought to be rejected so likewise words of known signification when they are so placed in the Deed that they are Repugnant are to be rejected equally with words of no known signification 176 4. The meaning of the word appertaining in a Grant and how far it will extend and what it will pass 108 109 5. Land in possession cannot pass by the Grant of a Reversion but by the grant of Land a Reversion will pass 83 6. By the Grant of Stagnum Gurgitem aquarum the Soyl of the Pond passes 107 108 109 7. Where by the Deuise of the Farm of H. the Mannor of H. will well pass 71 8. To a Grant of a Rent by the Common Law an Attornment is requisite 39 9. A Lease is made habendum for 40 years after the expiration of a Lease made to another person whereas in truth there is no such Lease this Lease for 40 years shall commence presently 73 74 80 81 83 84 10. To give or grant that to a man which he had before is no gift at all 42 Grants by the King See Non Obstante Pardon Prerogative 1. Where the Kings Grant is void although there be a saving in an Act of Parliament of all the Right of such Grantee yet that shall not aid it 332 2. If a Patent is not void in its creation it remains good after the death of the King that granted it 332 Habendum 1. A Lease is made habendum for Forty years after the expiration of a Lease made to another person whereas in truth there is no such Lease this Lease for Forty years shall commence presently 73 74 80 81 2. A Rent is granted habendum for Seven years after the death of the Grantor Remainder in Fee 46 Habeas Corpus 1. The Writ of Habeas Corpus is now the most usual Remedy by which a man is restored again to his liberty if against Law he hath been deprived of it 136 2. The Cause of the imprisonment ought as specifically and certainly appear to the Judges upon the Return as it did appear to the Court or person authorized to commit 137 138 139 140 3. A prisoner committed per mandatum of the Lord Chancellor by vertue of a Contempt in Chancery was presently bailed because the Return was generally for Contempts to the Court but no particular Contempt exprest 139 140 4. The Court of Common Pleas or Exchequer upon Habeas Corpus may discharge Prisoners imprisoned by other
the King in Capite 411 31 E. 3. cap. 11. Concerning Executors 1. Though Executors and Administrators are not compelled by the Common Law to answer Actions of Debt for simple Contracts yet the Law of the Land obligeth payment of them 96 2. Upon committing Administration Oath is taken to administer truly which cannot be without paying the Debts 96 3. Oath is likewise taken to make a true account to the Ordinary of what Remains after all Debts Funerals and just Expences deducted 96 1. 34 E. 3. c. 7. of Attaints This Statute granted Attaints in personal Actions 146 1. 2 H. 6. cap. 4. Those born in Ireland are subject to and bound by the Laws of England as those of Calais Gascoign and Guien were 293 1. 7. H. 8. c. 4. of Recoveries If a Common Recovery had been to Uses of Lordships and Mannors before the Statute of the 27 H. 8. the Recoverors had no remedy to make the Tenants Attorn for a quid Juris clamat would not lye upon a Recovery before the Statute of 27 H. 8. which did give remedy 48 1. If a man have a Benefice with Cure 21 H. 8. c. Dispensations whatever the value be and is admitted and instituted into another Benefice with Cure Postea 15. of what value soever having no Qualification or Dispensation the first is ipso facto void and the Patron may present another 131 2. But if the Patron will not present then if under value no Lapse shall incurr until Deprivation of the first Benefice and notice Postea 22. but if of the value of Eight pounds the Patron at his peril must present within the six Months 131 25 H. 8. cap. 21. of Dispensations 1. The Pope could formerly and the Arch-bishop now can sufficiently dispense for a plurality by this Statute Ante. 14. 20 2. A Rector of a Church dispensed with according to this Statute before he is consecrated Bishop remains Rector as before after Consecration 24 25 H. 8. c. 22. 28 H. 8. c. 7. 28 H. 8. c. 16. 32 H. 8. c. 38. of Marriages 1. Neither by this Act or 28 H. 8. cap. 7. no Marriage prohibited before either by Gods Law or the Canon Law differenced from it is made lawful 216 325 2. That the Marriages particularly declared to be against Gods Law cannot be dispensed with but other Marriages not particularly declared to be against Gods Law are left Statu quo prius as to the Dispensations 216 325 3. That neither of these Acts gave Jurisdiction to the Temporal Courts concerning Marriages more than they had before but were Acts directory only to the Ecclesiastical proceedings in matters of Marriage 216 4. Neither of these Acts declare That the Degrees rehearsed in the said Acts thereby declared to be prohibited by Gods Law are all the Degrees of Marriage prohibited by Gods Law ibid. 5. The Levitical Degrees quatenus such are set forth by no Act of Parliament but Marriages which fall within some of those Degrees are said to be Marriages within the Degrees prohibited by Gods Law by 28 H. 8. c. 7. and 28 H. 8. c. 16. 319 6. The 32 H. 8. c. 38. prohibits the impeaching of Marriages only which are absolutely within the Levitical Degrees leaving all other to Spiritual Jurisdiction as before that Act 320 7. A Marriage with the Grandfathers brothers wife by the mothers side is a lawful Marriage by the 32 H. 8. c. 38. 206 207 8. The marriage of the Husband with the Wives sister or the Wives sisters daughter is prohibited within the Levitical Degrees 322 323 9. The 28 H. 8. cap. 16. makes invalid all Licenses Dispensations Bulls and other Instruments purchased from Rome 217 10. This Statute of 25 H. 8. is Repealed by the 28 H. 8 but not for the matter of Marriages there prohibited 215 11. The Statute of 1 2 Phil. Mar. doth not Repeal the 28 H. 8. cap. 7. entirely but only one Clause of it 324 327 12. Some parts of 32 H. 8. c. 38. are Repealed 218 1. 26 H. 8. Concerning Wales By this Statute power was given to the Kings President and Council in the Marchers of Wales Ante 7 9. Postea 18. in several Causes as to Indict Outlaw Proceed against Traytors Clippers of Mony Murtherers and other Felons within the Lordships Marchers of Wales to be indicted in the adjoyning County But this did not extend to the Principality of Wales 413 27 H. 8. concerning Wales 1. The alteration which was made by this Statute as to Wales 414 415 2. To what Counties the Lordships Marchers of Wales are now annext by this Statute Ante 7 9 18. 415 27 H. 8. of Uses 1. A Use cannot arise where there is not a sufficient Estate in possession 49 2. This Statute is properly to give the possession to him who had not the possession but the use only viz. the possession which he wanted before to the use which he had before in such manner as he hath the use 42 3. It was never the intent of the Statute to give the possession to fictitious Conuzees in order to a form of Conveyance but the Statute brings the new uses raised out of a feigned possession in the Conuzee to the real possession which operates according to their intent to change their Estate 42 4. If an Estate for life had been granted to the use of a man and his Heirs an Estate in Fee could not rise out of it by this Statute 49 5. The principal use of this Statute especially upon Fines levied is not to bring together a possession and a use but to introduce a general form of Conveyance by which the Conuzors in the Fine may execute their purposes at pleasure by transferring to Strangers enlarging or diminishing their Estates without observing the strictness of Law for the possession of the Conuzee 50 6. The Conuzee of a Rent granted by Fine to uses cannot have any actual seisin or be in possession of such Rent since this Statute 49 7. A. makes a Feoffment with Warranty to the use of himself for life Remainder to his wife for life Remainder to the use of his right Heirs when by this Statute the possession is brought to these uses the Warranty made by A. to the Feoffees and their Heirs is wholly destroyed 389 1. 32 H. 8. c. 32. concerning Executors This Statute gives Remedy for recovery of such Debts by Executors as were due to the Testator and for which there was no remedy before viz. the Tenants did retain in their hands arrearages of Rents whereby the Executors could not pay the Testators Debts 48 7 E. 6. cap. 5. selling of Wines 1. This Statute never intended that no Wine should be sold nor that it should be with great restraint sold but every man might not sell it And since it restrains not the Kings power to license the selling of Wine it is clear the King may license as if the Act had absolutely prohibited the selling of Wine and left it
to the King to license as he thought fit 355 2. The intent of the Act being That every man should not sell Wine that would his Majesty could not better answer the ends of the Act than to restrain the sellers to Freemen of London to the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it ibid. 13 El. c. 12 Not reading the Articles 1. Immediately upon not reading the Articles the Incumbent is by this Statute deprived ipso facto 132 2. Upon such Deprivation the Patron may present Ante 14. and his Clerk ought to be admitted and instituted but if he do not no Lapse incurrs until after Six months after notice of such Deprivation given to the Patron 132 3. Where the Incumbent subscribes the Articles upon his Admission and Institution that makes him perfect Incumbent pro tempore 133 4. But if he hath a Benefice and afterwards accepts another and doth not subscribe nor read the Articles then he never was Incumbent of the second and consequently never accepted a second Benefice to disable him from holding the first 132 133 134 1. That all Leases by Spiritual persons of Tythe c. 13 Eliz. cap. 10. Concerning Leases to be made by Ecclesiastical persons parcel of their Spiritual Promotions other than for One and twenty years or three Lives reserving the accustomed yearly Rent shall be void 2. This Statute intended that Leases in some sense might be made of Tithes for One and twenty years or three Lives and an ancient Rent Reserved but of a bare Tythe only a Rent could not be reserved for neither Distress nor Assise can be of such a Rent 203 204 3. Therefore a Lease of Tythe and Land out of which a Rent may issue and the accustomed Rent may be reserved must be good within the intent of the Statute 204 7 Jac. cap. 5.21 Jac. cap. 12. For Officers to be sued in the proper County 1. The question upon these Acts was Whether an Officer or any in their assistance that shall do any thing by colour of but not concerning their Office and be therefore impleaded shall have the benefit of these Acts. 2. Or if they are impleaded for any thing done by pretence of their Offices and which is not strictly done by reason of their Office but is a mis-seazante Whether they may have the like benefit 3. Without this Act the Action ought to be laid where the Fact was done and the Act is but to compel the doing of that where an Officer is concerned that otherwise Fieri debuit 114 4. The Statute intends like benefit to all the Defendants where the Fact is not proved to be done where the Action is laid as if the Plaintiff became Non-suit or suffered a Discontinuance viz. that they should have double costs 117 12 Car. 2. cap. 4. For granting Tonnage and Poundage to the King 1. Those Wines which are to pay this Duty according to the Act must be Wines brought into Port as Merchandise by his Majesties Subjects or Strangers 165 2. But Wines which are by their kind to pay Duty if they shall be brought into Ports or Places of this Kingdom neither by his Majesties Subjects nor Aliens they are not chargeable with this Duty ibid. 3. If they are not brought into the Ports and Places as Merchandize viz. for Sale they are not chargeable with the Duty 165 170 4. Wines coming into this Kingdom as Wreck are neither brought into this Kingdom by his Majesties Subjects nor Strangers but by the Wind and Sea 166 5. Wreck'd Goods are not brought into this Kingdom for Merchandise viz. for Sale but are as all other the Native Goods of the Kingdom for sale or other use at the pleasure of the owner ibid. 6. All Goods chargeable with the Duties of this Act must be proprieted by a natural born Merchant or Merchant Alien and accordingly the greater and lesser Duty is to be paid 166 168 7. All Goods subject to this Duty may be forfeited by the disobedience and mis-behaviour of the Merchant-proprietor or those entrusted by him 167 1. The intent of this Statute is to priviledge the Father against common Right 12 Car. 2 cap. 24. To enable the Father to devise the Guardianship of his Son to appoint the Guardian of his Heir and the time of his Wardship under One and twenty 179 2. Such a special Guardian cannot transfer the custody by Deed or Will to any other 179 3. He hath no different Estate from a Guardian in Soccage but for the time the of Wardship 179 4. The Father cannot by this Act give the custody to a Papist 180 5. If the Father doth not appoint for how long time under One and twenty years his Son shall be in Ward it is void for Uncertainty 185 6. The substance of the Statute and sense thereof is That whereas all Tenures are now Soccage and the Law appoints a Gardian till Fourteen yet the Father may nominate the Gardian to his Heir and for any time until his Age of One and twenty and such Gardian shall have like remedy for the Ward as Gardian in Soccage at the Common Law 183 Supersedeas 1. If a priviledged person as an Attorney c. or his Menial Servant is sued in any Jurisdiction forreign to his priviledge he may have a Supersedeas 155 Surplusage 1. Surplusage in a special Verdict 78 Suspension 1. A Suspension of Rent is when either the Rent or Land are so conveyed not absolutely and finally but for a certain time after which the Rent will be again revived 199 2. A Rent may be suspended by Unity for a time and afterwards restored 39 Tayl See Title Warranty 1. SEE an Exposition upon the the Statute de Donis 370 371 372 c. 2. What shall be a good Estate Tayl by Implication in a Devise 262 3. A. having Issue Thomas and Mary deviseth to Thomas and his Heirs for ever and for want of Heirs of Thomas to Mary and her Heirs This is an Estate Tayl in Thomas 269 270 4. A Copyholder in Fee surrenders to the use of F. his Son and J. the Son of F. and of the longest liver of them and for want of Issue of J. lawfully begotten the Remainder to M. here it being by Deed J. had only an Estate for Life but had it been by Will it had been an Estate Tayl by Implication 261 5. The Warranty of the Tenant in Tayl descending upon the Donor or his Heirs is no barr in a Formedon in the Reverter brought by them although it be a Collateral Warranty 364 365 6. The lineal Warranty of Tenant in Tayl shall not bind the Right of the Estate Tayl by the Statute de Donis neither with or without Assets descending 365 Tenures See Title Estates  Testament See Devise 1. A Custody as a Gardianship in Soccage is not in its nature Testamentary it cannot pay Debts nor Legacies nor be distributed as Alms 182 Title 1. When you would
recover any thing from me it is not sufficient for you to destroy my Title but you must prove your own to be better than mine 58 60 2. In a Quare Impedit if the Defendant will leave the general Issue and controvert the Plaintiffs Title he must do it by his own Title 58 3. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 4. Priority of possession is a good Title against him who hath no Title at all 299 5. No man can Traverse an Office except he can make himself a good Title 64 Trade 1. The Law permits not persons who have served Seven years to have a way of livelyhood to be hindred in the Exercise of their Trades in any Town or part of the Kingdom 356 Traverse 1. No person shall Traverse an Office unless he can make himself a good Title 64 2. When in a Quare Impedit the Defendant Traverseth any part of the Plaintiffs Count it ought to be such part as is inconsistent with his Title and being found against the Plaintiff destroys his Title 8 9 10 3. Where the presentation and not the seisin of the Advowson is to be traversed 9 10 11 12 4. Where the Presentation and not the Appendancy is traversable 10 11 15 5. Where the Seisin in Gross or Appendancy is Traversable 12 13 6. The Appendancy is well Traversed when it is all the Plaintiffs Title to present and inconsistent with the Defendants 13 15 7. Where either the Appendancy or Presentation may be Traversed 15 8. Where neither the Seisin in Gross nor Appendancy shall be Traversed but only the Vacancy 16 9. Where the King may take a Traverse upon a Traverse which regularly a common person cannot do but where the first Traverse tendred by the Defendant is not material to the Action brought 62 10. Where the King may refuse to maintain his own Title which is Traversed by the Defendant and take a Traverse to the Title made by the Defendant 62 64 Trespass 1. By the ancient Law it was adjudged in Parliament no man ought to be condemned in a Trespass de praecepto or auxilio if no man were convicted of the Fact done 115 116 2. Action of Trespass against Officers within the Statute as Constables c. and their Assistants must be laid in the proper County 111 112 113 114 115 116 117 Tryal 1. Actions upon Bond or Deed made in Wales Ireland Normandy c. where to be brought 413 2. How Dominions Leagues and Truces are to be tryed 288 3. An Issue arising out of the Jurisdiction of the Courts of England although it arise within the Dominions of England out of the Realm shall not be tryed in England 404 4. If a Signiory in Wales that is not part of the Principality be to be tryed it must be tryed by the Common Law but if Land within the Signiory is to be tryed it must be tryed within the Mannor there 407 5. A person naturalized in Ireland commits Treason beyond the Seas where no local Allegiance is due to the King how and where he shall be tryed 291 292 Tythes 1. Though Tythes pass by Deed only yet where a Rectory and the Tythes de D. are granted if there is not Livery neither the Rectory nor Tythes will pass because they were intended to be granted together 197 2. There can be no primary and immediate Occupancy of Tythes 191 194 3. A Rent cannot be reserved out of a bare Tythe only to make the Lease good within the 13 Eliz. cap. 10. because neither a Distress nor Assise can be brought thereof 204 Verdict See Evidence Issue 1. THE Jury may find a Deed or a Will the Contents thereof being proved by witnesses 77 2. But if they will collect the Contents of the Deed and by the same Verdict find the Deed in haec Verba the Court is not to adjudge upon their Collection but the Deed it self ibid. 3. A Deed or Will must not be found in part because the Court cannot but adjudge upon the whole matter and not upon part only 84 4. The legal Verdict of the Jury is finding for the Plaintiff or the Defendant and what they answer if asked concerning some particular Fact is no part of their Verdict 150 5. In a general Verdict finding the point in Issue by way of Argument although never so concluding is not good 75 187 6. In a Special Verdict the Case in Fact must be found clear to a common intent without Equivocation 75 78 87 7. The Issue was Whether a Copyhold was grantable to three for the lives of two The Jury find that it is grantable for Three Lives this was argumentative only and therefore a void Verdict 87 8. Where a man by Lease reciting a former Lease to have been made doth Demise for Forty years after the Expiration of that Lease paying the same Rent as is mentioned in the recited Lease and only the Lease for Forty years and not the recited Lease is found in the Verdict This Verdict is a void Verdict and findeth neither the one or other Lease 74 75 76 81 82 Vintners See Title Statute 21. 1. The King could not better answer the end of the Act of 7 E. 6. than to restrain the Sellers of Wine to Freemen of London 2. To the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it 355 3. And that such should be licensed without restraint is most agreeable to the Law of the Kingdom which permits not persons who have served Seven years to have a way of livelyhood to be hindred in the Exercise of their Trades 356 Voucher Vouchee 1. No man shall Vouch who is not privy to the Estate that is who hath not the same Estate as well as the Land to which the warranty was annexed 384 2. When a man will be warranted by Voucher he must make it appear how the warranty extends to him 385 Vse See Title Statutes 19. 1. The Statute brings the new Uses raised out of a feigned possession and for no time in the Conizee to the real possession and for all times in the Conizors which operates according to their Intents to change their Estates but not possessions 42 2. By the Statue of 27 H. 8. the Use and Possession come instantly together 50 3. The principal use of the Statute of Uses is to introduce a general form of Conveyance by which the Conizors of the Fine may execute their purposes at pleasure 50 4. An old Use may be revoked and a new Use raised at the same time 42 5. Uses declared by Indenture made a year after the Recovery 51 6. If a Fine be levied of the Reversion of Land or of a Rent to Uses the Cestuy que use may Distrain without Attornment 50 51 7. A Rent may arise out of the Estate of Cestuy que use upon a Recovery which was to arise out of the Recoverers Estate 52 Vsurpation 1. A void
Robert the son had Issue Margaret Isabel Jane Antenatas living the First of Octob. 14 Car. 1. and now have Issue at Kingston John naturalized 9. Maii 1 Jac. John the third son by the name of Sir John Ramsey was naturalized by Act of Parliament holden at Westminster May the Ninth 1. Jac. and after made Earl of Holdernes George Ramsey the fourth Son George naturalized 7 Jac. was naturalized in the fourth Session of Parliament held at Westminster begun by Prorogation 19 Febr. 17 Jac. and after had Issue John primogenitum filium Quodque idem Johannes had Issue John the now Defendant primogenitum suum filium but finds not where either of these were born nor the death of George Nicholas the second Son had Issue Patrick his only Son Nicholas had Issue Patrick a Native 15 Jac. born at Kingston after the Union 1 Maii 1618. about 15 Jac. John the third Son Earl of Holdernes seiz'd of the Mannors Rectory and Premisses in the Declaration mentioned with other the Mannors of Zouch and Taylboys John covenanted to levy a Fine de Premissis 1 Jul. 22 Jac. and divers other Lands in the County of Lincoln in Fee by Indenture Tripartite between him on the first part Sir William Cockayne and Martha his Daughter of the second part c. Dated the First of July 22 Jac. Covenanted to levy a Fine before the Feast of St. Andrews next ensuing to Sir William of all his said Lands To the use of himself for life then to the use of Martha his intended Wife for life with Remainder to the Heirs Males of his body begotten on her Remainder to such his Heirs Females Remainder to his right Heirs The Marriage was solemnized the Seven and twentieth of Sept. 22 Jac. John married 29 Sept. 22 Jac. He levied the Fine Octab. Michael 22 Jac. John died 1 Car. 1. Jan. 24. The Fine accordingly levied in the Common Pleas Octabis Michaelis 22 Jac. of all the Lands and Premisses among other in the Declaration mentioned The Earl so seiz'd as aforesaid with the Remainder over at Kingston aforesaid died the Four and twentieth of January 1 Car. 1. His Countess entred into the Premisses in the Declaration mentioned and receiv'd the Profits during her life After the Earls death a Commission issued Inquisition after his death capt 29 Febr. 7 Car. 1. and an Inquisition taken at Southwark in Surrey the Nine and twentieth of February 7 Car. 1. By this Inquisition it is found the Earl died seiz'd of the Mannor of Zouch and Taylboys and divers Land thereto belonging in Com. Lincoln and of the Mannor of Westdeerham and other Lands in Com. Norfolk and of the Rectory of Kingston and of the Advowson of the Vicaridge of Kingston in Com. Surrey but no other the Lands in the Declaration are found in that Office And then the Tenures of those Mannors are found and that the Earl died without Heir But it finds that the Earl so seiz'd levied a Fine of the Premisses to Sir William Cockayne per nomina Maneriorum de Zouches Taylboys Rectoriae de Kingston cum omnibus Decimis dictae Rectoriae pertinentibus and finds the uses ut supra and so finds his dying without Heir c. It finds the Fine levied in terminis Michaelis 22 Jac. but not in Octabis Michaelis as the Special Verdict finds but between the same persons The Irish Act to naturalize all Scots 4 Jul. 10 Car. 1. The general Act of Naturalizing the Scottish Antenati in the Kingdome of Ireland was made in the Parliament there begun at the Castle of Dublin the Fourth of July 10 Car. 1. Nicholas died 1 Sept. 10 Car. 1. Nicholas died the First of September 10 Car. 1. Leaving Issue Patrick Murrey's Pat. 25 Octob. 10 Car. 1. King Charles the First by his Letters Patents dated the Five and twentieth of October the Tenth of his Reign under the Great Seal granted to William Murrey his Heirs and Assigns in Fee-farm All the said Mannors Lands and Rectory mentioned in the Declaration with the Reversion depending upon any life lives or years Patrick conveys to the Earl of Elkin 16 Febr. 1651. Patrick and Elizabeth his wife by Indenture dated the Sixteenth of February 1651. Covenant with the Earl of Elkin and Sir Edward Sydenham in consideration of Eleven hundred pounds and bargained and sold the Premisses in the Declaration to them and their Heirs and covenanted at the Earls charge to levy a Fine with proclamation Patrick Uxor levy a Fine à die Paschae in fifteen days to the use of the Earl and his Heirs of the Premisses before the end of Easter Term next and accordingly did levy it with warranty against them and the Heirs of Patrick by force whereof and of the Statute of Uses the said Earl and Sydenham were seiz'd c. The Earl and Sydenham convey to the Countess Dowager 10 Mar. 1652. The Earl of Elkin and Sydenham by Indenture of Lease dated the Tenth of March 1652. and by Deed of Release and Confirmation conveys the Premisses to Amabel Dowager of Kent and the Lady Jane Hart viz. the Eleventh of March 1652. by way of Bargain and Sale to them and their Heirs who entred by the Lease and were in quiet possession at the time of the Release The Dowager conveys to Pullayne and Neale The Dowager and Lady Hart by like Conveyance of Lease and Release bargained and sold to Pullayne and Simon Neale dated the First and Second of November 1655. who entred and were in possession as aforesaid John Ramsey the now Defendant entred in 15 Car. 2. and kept possession Dat. 25 Sept. 1656. Pullayne and Neale convey to Talmuch and Weld by Bargain and Sale 20 Jan. 16 Car. 2. John Pullayne and Symon Neale by Deed of Bargain and Sale duly inrolled convey'd the Premisses to Lionel Talmuch and Humphrey _____ their Heirs and Assigns Lionel and Humphrey demis'd to Philip _____ the Plaintiff having entred and being in possession by Indenture dated the Twentieth of January 16 Car. 2. John then in possession and John re-entred upon the Plaintiff and Ejected him The Questions upon this Record will be three 1. Whether a Naturalization in Ireland will naturalize the person in England If it will not all other Questions are out of the Case 2. If it will then whether by that Act for naturalizing the Antenati of Scotland any his brothers had title to inherit the Earl of Holdernes in the lands in question By reason of the Clause in the Act of Naturalization That nothing therein contained should extend to avoid any Estate or Interest in any Lands or Hereditaments which have already been found and accrewed to his Majesty or to King James for want of naturalization of any such person and which shall and doth appear by Office already found and return'd and remaining of Record or by any other matter of Record An Office was found as appears
license Ex speciali gratia is good to dispense with a penal Law without a Non obstante 356 Nusance 1. Publique Nusances are not Mala in se but Mala politica introducta 358 2. The King may pardon a transient Nusance 333 3. An Action will not lye for a Nusance for which no man hath a particular damage 335 341 4. If a man have a particular damage by a foundrous way he is generally without remedy because it ought to be repaired by some Township or Vill against whom an Action will not lye but an Indictment only 340 Oath 1. Upon granting of Administration the Administrator is to take an Oath duly to administer the Estate of the deceased 96 Occupant and Occupancy 1. What Natural Occupancy is 188 2. What Civil Occupancy is 189 3. An Occupant shall enjoy whatsoever is belonging to that which he occupies 196 4. No Occupancy begins with the Freehold but begins by possessing the Land and the Law casts the Freehold upon him 195 5. A Claim without actual possession cannot make a man a Natural Occupant 188 6. There can be no Occupancy of any thing wherein another hath a Right 188 189 7. Two cannot have severally possession of the same thing at one time 189 192 8. Of what things there may be an Occupancy and of what not 190 194 198 9. A man cannot be an Occupant but of a void possession or of a possession which he himself hath 192 10. What it is that makes an Occupant 191 11. Tenant for years or at will may be an Occupant 192 12. An Occupant becomes an Assignee in Law to the first Lessee 204 13. The Occupant is lyable to pay the Rent 202 203 14. He hath power to pass over his interest 205 15. If a man die seised pur auter vie of a Rent Tythe c. or other thing whereof there can be no Occupancy either directly or by consequence as adjuncts of something else by the death of the Grantee In all these cases the Grant is determined as if there never had been any 201 202 16. But when those things are granted in the same Deed together with other things of which there may be an Occupancy then they shall be subject to the Occupancy 202 Office before Escheators See Inquisition 1. Principally an Office for the King is as necessary as an Entry for a common person 153 2. It neither determines any mans Right neither doth any party put any Tryal upon them 153 3. An Inquest of Office is not subject to an Attaint they are only to find naked matter of Fact 153 4. Where an Office is found if the Defendant hath no Title then the King hath one by his Office 62 5. No person shall Traverse the Office unless he makes to himself a good Title 64 Office and Officer See Title Statutes 24. 1. All Offices of Trust must be personally occupied unless granted to be occupied by a Deputy 181 2. Offices of personal Trust cannot be assigned for the Trust is not personal which any man may have 180 3. An Office of Trust and Confidence cannot be granted for years 181 4. All Actions brought against the Officers mentioned in 21 Jacobi must be laid in the proper County and if the Plaintiff is Non-suited or Discontinue or a Verdict against him they shall have their double costs 111 112 113 114 115 116 117 Ordinary See Administration Arch-bishop Lapse 1. The Ordinary may enforce the Executors to pay Debts upon Contracts as well as Legacies or Marriage mony 97 2. Where the Ordinary is to supply the Cure until the Patron present 132 3. Where the Ordinary disclaims in a Quare Impedit there is a Judgment with a Cessat Executio quousque c. 6 Pardon See Dispensation King 1. A Pardon frees a man from the punishment due for a thing unlawfully done 333 2. What Offences committed against Statutes the King may pardon and what he cannot 333 334 335 c. 3. The King may pardon a transient Nusance but a continued Nusance cannot be pardoned so as to acquit the Nusance-maker for committing them but the fine or punishment imposed for the doing thereof may be pardoned 333 4. Forestalling the Market Ingrossing or the like which continue not but are over as soon as done until done de novo again may be pardoned like other Offences so as the persons shall not be impleaded otherwise than by the persons who have received particular damage which the King cannot remit ibid. Parliament See Statute  Parson and Patron 1. A Parson is chosen Bishop his Benefices are all void and thereupon the King shall present 19 20 21 2. Where a Benefice becomes void by accepting another without a Dispensation the Patron is bound to present without Notice and where not 131 3. Where the Parson doth not read the Articles according to the Statute he stands deprived ipso facto ibid. 4. Where the Parson doth not subscribe the Articles there he is not Incumbent although he keeps in possession 133 5. A Church-man cannot make a Lease of the possessions of his Church without Deed 197 Perpetuity 1. Every Fee-simple is a perpetuity but in the accident of Alienation and alienation is an incident to a Fee determinable upon a Contingent 273 2. There is no Law simply against perpetuities but against an Entail of perpetuities ibid. Pleading See Traverse 1. If the Falshood in the Defendants plea is neither hurtful to the Plaintiff nor beneficial to the Defendant there it shall not hurt the Defendant 104 2. Where the Defendant pleads a false plea which falshood is detrimental to the Plaintiff and beneficial to the Defendant as by pleading several Judgments and concluding that he hath not Assets ultra there the Plaintiff may Reply That one of the Judgments are satisfied which Replication shall be fatal to the Defendant 103 3. But to plead That he hath not bona catalla praeterquam bona quae non sufficient to satisfie the Judgments is void for the Uncertainty for no Sum being mentioned no good Issue can be taken upon it 104 4. So likewise to say That he hath not Assets ultra what will satisfie c. is void for Uncertainty ibid. 5. But it is good pleading to say That he hath not Assets praeterquam bona catalla ad Valentiam separal denar per ipsum in satisfactione separal indic solut And also besides Assets to the value of Ten shillings which are liable to satisfie the Statutes ibid. 6. It is a good plea for an Executor to plead several Judgment c. and conclude quod non habet nec ad aliquod tempus habuit any Assets of the Testators praeterquam bona catalla sufficient to satisfie those Judgments c. 103 7. To this the Plaintiff must Reply Assets ultra or that any one of the Judgments are satisfied ibid. 8. The pleading of a special plene Administravit 91 9. In pleading of a Judgment it is not necessary to set forth the