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
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
But if he after the structure acquire or purchase a Water-course to it and grant it with the Appurtenances the Water-course passes because the Mill cannot be used without it So it is for the Mill-damm or Bank or the like So if he acquire an inlargement or bettering of his Water-course that additional water shall pass as pertaining how lately soever acquired So if a man grants his Saddle with all things thereto belonging Stirrops Girths and the like pass So if a man will grant his Viol the Strings and Bow will pass And the Pool was belonging and appertaining to the Water-work in this last sense as pertaining to the nature of the thing granted without which it could not be us'd for the Iury find Quod Stagnum praedictum fuit necessarium pro structura Anglicè Water-work praedict quodque eadem structura sine eodem Stagno operare non potuit And where a thing is so pertaining to the nature of the thing granted it is belonging and pertaining immediately as soon as the thing is erected and it is annexed to it And note the Iury do not find that aqua Stagni praedict but the Stagnum it self was necessary for the Water-work Nor do they find that the Water-work could not operare sine aqua Stagni but sine Stagno praedict And thereby they find that the Water and Soyl which Stagnum signifies was necessary for the work and it could not work without it Pasch 19 Car. II. Henry Stiles Plaintiff Richard Coxe Baronet Richard Coxe Esquire John Cromwell Thomas Merrett and Charles Davies Defendants In an Action of Trespass of Assault Battery and False Imprisonment 1. THE Plaintiff declares That the Defendants the last day of December in the Seventeenth year of the King in the Parish of St. Mary Bow in the Ward of Cheap in London assaulted wounded and kept him in Prison by the space of two days next following to his Damage of One hundred pounds 2. The Defendants plead They are not Culpable of the Trespass Assault Battery c. aforesaid 3. The Iury find Richard Coxe Esquire and Charles Davies not Culpable accordingly 4. And as to the rest of the Defendants they find specially That before the suppos'd Trespass that is the Eight and twentieth day of September in the Seventeenth year of the King one Richard Baughes Esquire one of the Iustices of the Peace of the County of Gloucester issued his Warrant under his Hand and Seal to the Constable and Tithingmen of Dumbleton in the said County to apprehend and bring before him the Plaintiff Henry Stiles and others to answer to such matters of Misdemeanour as on his Majesties behalf should be objected against them by Sir Richard Coxe Baronet then high Sheriff of the said County They find the Warrant in haec verba 5. That the said Warrant was afterwards and before the Trespass delivered to one Samuel Williams Constable of Dumbleton to be executed and that upon the said last day of December mentioned in the Declaration being Sunday immediately before Divine Service the Plaintiff sitting in a Seat of the said Church of Dumbleton by order of Richard Dasney Esquire his Master who claimed right to the said Seat the said Plaintiff being no Parishioner there nor dwelling in the said Parish the said Samuel being then Constable arrested the said Plaintiff 6. That the said Plaintiff at first resisted and refused to obey the said Warrant and after obey'd it That the said Samuel the Constable required the said Defendant Thomas Merret to assist him to convey him before a Iustice of the Peace But the said Samuel Thomas Merret and John Cromwell convey'd him to the House of the said Samuel in Dumbleton 7. Et tunc the aforesaid Richard Coxe Miles sent for the said Samuel at the House of the said Samuel in Dumbleton aforesaid Et praecepit eidem Samueli to lay the Plaintiff in the Stocks and thereupon the said Samuel John and Thomas convey'd the Plaintiff fromwards the way to the said Richard Baughes Iustice of the Peace and about Eleven of the Clock of the same day in the morning put the Plaintiff in the Stocks 8. They find the Act of 21 Jac. particularly cap. 12. And the Recital therein of the Act of 7 Jac. cap. 5. being an Act intitled An Act for easie pleading against troublesome and contentious Suits against Justices of the Peace Mayors Constables c. 9. And find particularly That it was Enacted by the said Parliament Quod si aliqua Actio Billa c. 10. But whether upon the whole matter by them found the said Sir Richard Coxe Baronet John and Thomas are Culpable they know not Et petunt advisamentum Curiae in Praemissis 11. And if upon the whole matter so found the Court shall think quod actio praedicta possit commensari in London Then they find the said Richard Coxe Baronet John and Thomas Culpable of the Trespass and assess damages to One hundred Marks and Costs to Three and fifty shillings and four pence 12. But if the said Court be of Opinion That the aforesaid Action could only be laid in the County of Gloucester then they find the said Richard Coxe Baronet John and Thomas not Culpable The words of the Act of 21 Jac. cap. 12. and which are particularly found by the Iury are 1. That if any Action Bill Plaint or Suit upon the Case Trespass Beating or False Imprisonment shall be brought against any Justice of the Peace Mayor or Bayliff of City or Town Corporate Headborough Portreeve Constable Tithingman c. or any of them or any other which in their Aid or Assistance or by their Commandment shall do any thing touching or concerning his or their Office or Offices for or concerning any matter cause or thing by them or any of them done by virtue or reason of their or any of their Office or Offices That the said Action Bill Plaint or Suit shall be laid within the County where the Trespass or Fact shall be done and committed and not elsewhere 2. And that it shall be lawful to every person and persons aforesaid to plead the general Issue and to give the special matter in evidence As by the Act of 7 Jac. cap. 5. 3. That if upon the Tryal of any such Action Bill Plaint or Suit the Plaintiff therein shall not prove to the Jury Trespass Beating Imprisonment or other Fact or cause of Action Bill Plaint c. was or were had made or committed within the County wherein such Action Bill Plaint or Suit shall be laid That then the Jury shall find the Defendant or Defendants in every such Action Bill Plaint or Suit Not guilty without having any regard or respect to any Evidence given by the Plaintiff touching the Trespass or other cause of the Action Bill Plaint or Suit c. 4. If Verdict shall pass with the Defendant or Defendants or if the Plaintiff therein become Non-suit or suffer any discontinuance thereof the Defendant or Defendants shall have such
double Costs and other Advantages as by the Act of 7 Jac. cap. 5. is provided The first Question upon this Special Verdict is Whether if any Officer in the Act mentioned or any in his assistance shall do things by colour of their Office not touching or concerning their said Office and shall be therefore impleaded Or if they or any of them shall be impleaded for or concerning any matter cause or thing by them or any of them done by pretence of their Offices and which is not strictly done by virtue or reason of their Office but is a misfeasance in Law shall have the benefit of this Act of having the matter tryed in the County where the Fact was done and not elsewhere If so 1. They shall not have the Tryal for any matter touching their Offices in the County where the Fact was done unless the Plaintiff please to lay it there and if he so pleas'd it might have been laid there before the Act of 21. which was purposely made to compel the laying of the Action where the Fact was done 2. By such Exposition of the Act the Action shall never be laid where the Fact was done for if it may be laid elsewhere at all if it be found upon the Tryal That the Officers question'd did not according to their Office there will be no cause to lay the Action in the proper County for the Iury where the Action is laid will find for the Plaintiff for the Misfeazance and if it be found the Defendants have pursued their Office wherever the Action is laid the Iury will find for the Defendants and then no cause to lay an Action in the County where the Fact was done So Quacunque via data the Act will be useless 3. If it can be laid in another County without hearing Evidence it cannot be known whether the Officer hath misdone or not How then can the Iury as the Act directs find the Defendants Not guilty without regard or respect to the Plaintiffs Evidence for then the Iury must regard the Evidence to find whether the Officer hath mis-done and not regard the Evidence at all to find the Officers Not guilty as the Act doth order Nor is there any inconvenience because by the Intention of Law whether the Officers have done justifiably or not without this Act of 21. 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 though factum valet not being done The second Question is Whether upon the special points referred to the Court by the Iury they have found all the Defendants or any of them and whom Not guilty It hath been admitted at the Barr That the Defendants excepting Sir Richard Coxe cannot be found culpable by this Act of 21. and it being a Trespass that some may be guilty and not others which is true But the Question is not Whether some of the Defendants might have been found guilty and others not but whether as this Verdict is all or none must be Culpable 1. The Iury referr to the Court Si actio praedicta potuit commensari in London then they find all the Defendants culpable And if actio praedicta potuit commensari tantummodo in the County of Gloucester then they find all the Defendants by name Not Culpable So as the matter is Whether this individual Action brought joyntly against all the Defendants might be laid in London For that is the Actio praedicta not whether an Action might be laid in London for the Trespass against any of these Defendants and in that first sense Actio praedicta could not be in London for it could not be there laid as to some of the Defendants 2. Secondly they referr to the Court Whether Actio praedicta which is this Action jointly brought against all the Defendants could only be laid in the County of Gloucester and if so they find for the Defendants to which the Court must answer That this Action so jointly brought could only be laid according to Law ad omnem Juris effectum in the County of Gloucester 3. Thirdly if the Court should be of Opinion That the Action was well laid as to Sir Richard Coxe but not the rest the Iury find not him Guilty and not the rest for they find all equally Guilty or equally not Guilty 4. Fourthly That which differs his Case from the rest is That he was not assistant or aiding to the Constable for he bad that is praecepit or commanded the Constable to put the Plaintiff in Cippis But as to that the ancient Law was both adjudg'd in Parliament and allowed That it was contra consuetudinem Regni that a man should be condemn'd in a Trespass De praecepto or auxilio if no man were convicted of the Fact done It was the Case in Parliament of Bogo de Clare 18 E. 1. John Wallis Clerk entred his House and brought Letters of Citation from the Arch-bishop of Canterbury Some of the Family of Bogo made Wallis eat the said Process and Wax thereto affixed Et imprisonaverunt male tractaverunt For which and the Contempt to the King he brought his Action against Bogo who pleaded That he named no persons in certain nor alledg'd that the Fact was done by his command and demanded Iudgment thereupon and was discharged Notwithstanding by the Kings pleasure for so enormous a Trespass done in Contempt of the Church for the Contempt done within the Verge and in time of Parliament and for the bad Example Bogo was commanded to answer the King of the Trespass done in his House Et per Manupastos Familiares suos and a day given him to produce before the King and his Council those of his Family which was accordingly done but they who were said to have done the Fact were fled Et super hoc idem Bogo perit Judicium si de Praecepto missione vel assensu si sibi imponeretur ad sectam Domini Regis respondere debeat antequam factores principales aliquo modo de facto illo convincantur Whereupon Iudgment was given Et quia per consuetudinem legem Angliae Nullus de praecepto vi auxilio aut missione respondere debeat antequam factores aliquo modo convincantur Consideratum est quod praedictus Bogo ad praesens eat inde sinedie praedictus Jo. le Wallis sequatur versus factores principales prout sibi viderit expediri si voluerit six persons manuceperunt praedictum Bogonem ad habendum ipsum coram Domino Rege ad respondendum ipsi Domino Regi ad voluntatem suam cum praedicti factores de facto illo fuerint convicti si Dominus Rex versus eum inde loqui voluerit A Iudgment in Parliament at the Kings Suit That it was against the Custome and Law of the Kingdom to convict a man de praecepto auxilio aut missione in a Trespass before some who
in Levitico vero prohibitae fuerunt fere duodecim personae c. in the Exposition of the Arbor Consanguinitatis Affinitatis Reformatio Legum Ecclesiasticarum ex Authoritate primum Regis Henrici 8. inchoata deinde per Regem Edwardum 6. provecta de gradibus in Matrimonio prohibitis Deus in his gradibus certum jus posuit Levitici 18. 20 Capite quo Jure nos omnem posteritatem nostram teneri necesse est Nec enim illorum capitum praecepta veteris Israelitarum Reipub. propria fuerunt ut quidem somniant sed idem authoritatis pondus habent quod Religio nostra Decalogo tribuit ut nulla possit humana potestas quicquam in illis ullo modo constituere Hoc tamen in illis Levitici capitibus diligenter animadvertendum est minime ibi omnes non legitimas personas nominatim explicari nam Spiritus Sanctus illas ibi personas evidenter expresse posuit ex quibus similia spatia reliquorum graduum differentiae inter se facile posuit conjectari inveniri Exempli causa cum filio non datur uxor mater Consequens est ut ne filia quidem patri conjux dari potest si patrui non licet uxorem in matrimonio habere nec cum Avunculi conjuge nobis nuptiae concedi possunt Admitting this marriage out of the Levitical Degrees whether it be so pleaded as that we ought to deny a Consultation Faults in the Pleading The Plaintiff sets forth the Act of 32. and particularly That all Marriages are thereby lawful contracted between lawful persons and that all persons are lawful not prohibited by Gods Law to marry Then he sets forth another Clause That no marriage shall be impeach't Gods Law excepted made out of the Levitical Degrees Then sets forth his marriage with his Wife being formerly married to Bartholomew Abbot his Grand-fathers brother and consequently his great Vncle there being no pre-contract of either side which was lawful Secundum Jura Divina Humana And that he was libell'd for his marriage in the Spiritual Court as incestuous and unlawful and sets forth the Articles of the Libel in particular and the prosecution for a Divorce But doth not averr That the marriage is without the Levitical Degrees as he should have done Vpon which Declaration the Defendant demurrs and prays a Consultation Whereas In such case the Defendant must have shew'd how it was against Gods Law according to Speccotts C. 5. Rep. if the Plaintiff had aver'd the marriage to be without the Levitical Degrees the Defendant must either have demurr'd upon that single point or have been forc'd to have confess'd that it was out of the Levitical Degrees but was notwithstanding against Gods Law upon the words of the Act No marriage shall be impeach'd Gods Law excepted that is without the Levitical Degrees So as by his manner of Pleading the Court is now to Iudge not whether the marriage be without the Levitical Degrees but whether it be against Gods Law in general The Defendant hath not articled That Abbot knew the wife carnally and then it is not a marriage against Gods Law by 28 H. 8. cap. 7. nor that it is within the Levitical Degrees And upon this manner of Pleading after a Prohibition granted a Consultation was awarded in Mann's Case Mann had married his first wives sisters daughter Cr. 33 El. 228. Manns Case and was sued before the High Commissioners for although this was not prohibited within the Levitical Degrees yet because degrees more remote are forbidden they gave sentence of Divorce And he grounded his Prohibition upon the Statute of 32 H. 8. c. 38. And a Consultation was prayed and granted because the Prohibition is not to be if it be not without the Levitical Degrees and here it was general and therefore not good Mann's Case Moore f. 907. a. The same Case is in Moore who Reports the Grant of a Prohibition in the Case but mentions not the Consultation which was moved for long after the Prohibition and therefore alters nothing of Crook's Report But the Record of this Case cannot be found Cok. Litt. f. 235. a. There is another Case of one Richard Pearson not Parsons wherein a Prohibition was granted out of this Court in the like case as Manns for marrying his wives sisters daughter in Trinity Term 2 Jac. Rot. 1032. Sir Edward Coke saith he was drawn into question in the Ecclesiastical Court for the Marriage alledging the same to be against the Canons And that it was resolved by the Court of Common Pleas upon Consideration of the Statute of 32 H. 8. cap. 38. that the Marriage was not to be impeach'd because declared by the said Act to be good in as much as it was not prohibited by the Levitical Degrees This Case is again remembred by Sir Edward Coke in his Comment upon this Statute of 32 H. 8. in the latter Editions of his Littleton it is not printed but it seems omitted not by his consent because he remembers it in his Magna Charta upon that Statute long after printed But I find there was a Consultation granted in Hillary Term after the Prohibition granted but find no appearance or Plea of the Defendant But by the Record of that Case the Plaintiff declares Qui quidem Richardus Anna fuerunt sunt legales personae insimul maritari per legem Dei minime prohibitae ac extra leges Leviticales Quidam tamen machinans matrimonium praedictum secundum legem Dei Hominum legitime celebratum dissolvere Praetendens matrimonium illud fore incestuosum eosdem Henricum Annam c. in placitum trahi procuravit Then sets forth the Articles of the Libel whereof 1. is Item quod praemissorum ratione praefat Anna fuit ac est Affinis tui praefati Richardi in gradu de Jure prohibito pro aliquo matrimonio inter te eandem contrahendo aut habendo notorie constituta videlicet filia naturalis legitima de Johanne Gardiner alias Lucas sorore dictae Janae Gardiner alias Pearson uxore tua praedictâ Nor is it material that he saith after Ac licet praedict Richardus Anna Matrimonium praedictum fore legitimum per leges Leviticales minime prohibitum per Stat. praedict fore bonum coram praefato Judice placitaverunt allegaverunt illa inevitabili veritate probari praedictus tamen Judex placitum illud allegationem admittere penitus recusavit For that is not an Averment That the Marriage was out of the Levitical Degrees to the Temporal Judges for they can take no Issue nor try what Plea was before the Spiritual Judge Then upon this pleading it no way appears that the Libel was for marrying against the Law of God and if it were not then the Spiritual Gourt had no Conizance though it were against the Canons which the Act of 32. had excluded Therefore the Prohibition might well be awarded especially
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
and Merioneth The residue of the said Lordships Marchers were thereby framed and divided into five particular Counties erected and created by the Act namely the County of 1 Monmouth 2 of Breenock 3 of Montgomery 4 of Radnor 5 of Denbigh The respective Lordships Marchers annexed to the respective English Counties of Salop Hereford and Glocester are now to all intents under the Jurisdiction of the Courts at Westminster in like manner as the Counties to which they were annexed formerly were and yet are So is one of the new erected Counties framed out of the said Lordships Marchers namely the County of Monmouth which by the said Act is to all purposes under the Jurisdiction of the Kings Courts at Westminster as any English Country is All the Lordships Marchers annexed to the ancient Shires of Wales are now since the Statute under the same Jurisdiction for Administration of Justice as those ancient Shires were before the Statute of the 27. and yet are so as the Lordships Marchers annexed to those ancient Shires of Wales are now such parts of them as the Lordships Marchers annexed to the English Shires are parts of them And the four new Shires in Wales excluding Monmouth shire are by the said Act under the same Administration of Justice by the King's Justices to that purpose there Commissioned as the other ancient Shires of Wales formerly were and are and consequently wholly out of the Jurisdiction of the King's Courts at Westminster And the reason appears in the Statute forasmuch as the Counties or Shires of Brecnock Radnor Montgomery and Denbigh be far distant from the City of London and the Inhabitants of the said Shires not of substance to travel out of their Counties to have the Administration of Justice It is therefore enacted that there shall be respective Chanceries and Exchequers in these Counties and that the Sheriffs of those Counties shall make their Accompts before the Chamberlain and Barons there appointed And that Justice shall be used and ministred in the said new Shires according to the Laws and Statutes of England by such Justiciar or Justicers as shall be thereto appointed by the King and after such form and fashion as Justice is used and ministred to the King's Subjects within the three Shires of North-wales which is according to the ancient Administration of Justice by the Statute of Wales 12 E. 1. So as since this Statute the Courts of Westminster have less Jurisdiction in Wales than before for before they had some in all their Lordships Marchers which were in no County as by this Act and since they being all reduced into Counties either of England or Wales their Jurisdiction is absolute over such of them as are annexed to English Counties but none over the rest And accordingly it hath been still practised since the Statute for before Lordships Marchers and Quare Impedits of Churches within them were impleadable in the Kings Courts by Originals out of the Chancery directed to the adjoyning Sheriffs and the Issue tryed in the Counties adjoyning But since no such Original hath issued for real Actions nor any such Tryal been And what hath been in personal Actions of that kind began upon mistake because they found some Originals issued into some part of Wales and knew not the true reason of it that it was by Act of Parliament they then concluded Originals might issue for any cause arising into any part of Wales and the Tryals to be in the adjacent Counties of England generally And though that practise hath been deserted since the Statute of 27 H. 8. as to real Actions because the subject matter of the Lordships Marchers was taken away which in some sense was lawful as is opened before the Statute yet they have retained it still in personal Actions which was never lawful nor found in any Case anciently practised as real Actions were as appears in the Case of Stradling and Morgan in the Commentaries yet that was upon a quo minus out of the Exchequer which I do not see how it can change the Law If Judgments be obtained in the King's Courts against persons Obj. 1 inhabiting in Wales and that Process of Execution cannot be awarded thither the Judgments will be ineffectual The same may be said of Judgments obtained against a Frenchman Answ 1 Scotch man or Dutch-man whose usual Residence Lands and Goods are in those Territories he that sues ought to foresee what benefit he shall have by it and must not expect it but where the Courts have Jurisdiction The same may be said of Judgments obtained here against Irish-men Garnsey or Jersey Inhabitants or formerly against those of Calais Gascoign Guyen which were equally and some are still of the Dominions of England as Wales is subject to the Parliament of England but not under the Jurisdiction of the Courts at Westminster though subject to Mandatory Writs of the King Obj. 2 That of Judgments obtained in the King's Courts Execution is had in Franchises and also in Counties Palatine where the King 's Writ runneth not and by the same reason ought to be had in Wales though the King's Writ runneth not there Answ 1 Franchises inferiour are deriv'd out of Counties by the King's Grant where the King's Writ did run and so were Counties Palatine part of the Realm anciently where the Subjects of the Realm had right to have Execution of the Lands and Goods of those against whom they recovered in the King's Courts whereof they are no more to be deprived than of their Actions by the King's Grant for he may make what Counties he pleases Counties Palatine but in Dominions out of the Realm the Subject had no such Right in the other they have it because they had it at Common Law but in others not because they had it not at Common Law When the Question is of the Jurisdiction in a Dominion or Territory belonging to England the way to determine it is by examining the Law in Dominions the same in Specie with that concerning which the Question is and not to examine the Law in Franchises or Dominions of another kind Therefore to determine what Jurisdiction the King's Courts have in Wales ought to be by examining their Jurisdiction in Ireland the Islands of Garnsey Jersey Calais Gascoign Guyen in former times some part of Scotland and the Western Islands and many others might be named which are Dominions in Specie the same with Wales and belonging to England where the King 's Writ runneth not and not this power in Franchises within the Realm part of English Counties before they were Franchises and continuing so after or in entire Counties Palatine which sometimes were under the Jurisdiction of the King's Courts and in which the Subjects had a right of their Tryals upon Pleas pleaded and of Execution and which cannot be taken from them where the King 's Writ runneth not The Cases are full in this point in 19 H. 6. f. 12. 32 H. 6. f. 25. and many
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
because the Libel was That the marriage was Incestuous Next a Consultation might be granted unless cause were shew'd for it was no otherwise Because the Suggestion was not That the marriage was out of the Levitical Degrees but that the persons married were extra leges Leviticales which was as if they had said They were not under the Jewish Common-wealth And then a Consultation might be granted upon this Prohibition as upon that of Mann's Case because the Plaintiff did not averr the marriage to be extra gradus Leviticus and ground his Prohibition thereupon As those two Prohibitions were for marrying the Wives Sisters daughter that is the Wives Neece by the Sister So there is a Case in the Lord Hobbard Hobbard f. 181. a. Keppington where one Keppington married his Wives Sisters daughter was questioned for Incest by the High Commissioners and sentenced and entred into Bond to abstain from her Company but was not divorced and therefore the Wife recover'd a Wives Widows Estate in a Copy-hold notwithstanding the Sentence but no Prohibition was in the Case The same Case is in the Reports which pass for Mr. Noye's f. 29. but mistaken for there in place of his Wives sister it is Fathers sister Hill 21. Car. II. This Case was by the King's Command adjourn'd for the Opinion of all the Judges of England Trin. 22. Car. II. The Chief Justice delivered their Opinions and accordingly Judgment was given That a Prohibition ought to go to the Spiritual Court for the Plaintiff Mich. 20 Car. II. C. B. Sir Henry North Plaintiff William Coe Defendant SIR Henry North hath brought an Action of Trespass Quare clausum fregit against William Coe in a Close upon the new Assignment called Westrow-hills containing Fifty Acres a Close called the Heyland containing One hundred Acres and another called the Delf and Brink containing One hundred and fifty Acres in Milden-hall The Defendant pleads That the said places are part of the Mannor of Milden-hall whereof the Plaintiff was seis'd tempore transgressionis suppositae and that he was then and yet is seis'd of an ancient Messuage with the Appurtenances in Milden-hall being one of the free Tenements of the said Mannor and held of the said Mannor by Rents and other Services in his demesne as of Fee That there are divers freehold Tenements time out of mind in the said Mannor held by several Rents and Services parcel of the said Mannor and that there were and are infra candem Villam divers customary Tenements parcel of the said Mannor grantable Ad voluntatem Domini by Copy That all the Tenants of the free Tenements time out of mind habuerunt usi fuerunt and all the Tenants of the Customary Tenements Per consuetudinem ejusdem Manerii in eodem Manerio à toto tempore supradict usitat approbat habuerunt habere consueverunt solam separalem Pasturam praedict Clausi vocat Westrow-hills cum pertinen for all their Cattel Hogs Sheep and Northern Steers except levant and couchant upon their respective Messuages and Tenements every year for all times of the year except from the Feast of St. Edmond to the Five and twentieth of March next following as belonging and pertaining to their several Tenements And likewise had and used to have solam separalem Pasturam praedict Clausi vocat Westrow-hills from the Feast of St. Edmund every year to the Five and twentieth of March for feeding of all their Cattel Hogs Sheep and Northern Steers except levant and couchant c. Excepted that the Tenants of the Demesne of the Mannor every year from the said Feast to the Five and twentieth of March by custome of the said Mannor depastured their Sheep there That at the time of the Trespass the Defendant put in his own Cattel levant and couchant upon his said Messuage Prout ei bene licuit and averreth not that none of his said Cattel were Porci Oves or Juvenci called Northern Steers but Petit Judicium The like Plea he makes for the Closes called the Haylands Delf and Brink but that the free Tenants as before and customary Tenants had solam separalem Pasturam pro omnibus averiis Porcis Ovibus Juvencis called Northern Steers excepted for all times of the year And that he put in Averia sua levantia cubantia super tenementum praedictum prout ei bene licuit Petit Judicium Cum hoc quod verificare vult quod nullus bovium praedict ipsius Willielmi suerunt Juvenci vocat Northern Steers Whereas no mention is of putting in Oxen but Averia sua in general and no averment that no Sheep were put in The Plaintiff demurs upon this Plea Exceptions to the Pleading The Defendant saith he was seis'd de uno antiquo Messuagio being one of the freehold Tenements of the said Mannor and that there are divers freehold Tenements within the said Mannor and that omnes Tenentes of the said Tenements have had solam separalem pasturam for all their Cattel levant and couchant except Porcis Ovibus and Juvencis called Northern Steers in the place called Westrow-hills and that he put his Cattel levant and couchant prout ei bene licuit 1. That he was seis'd de uno antiquo Messuagio and of no Land is not proper for Cattel cannot be levant in common intention upon a Messuage only 2. He saith he put in his Cattel levant and couchant but avers not as he ought That none of them were Porci Oves or Northern Steers for Porci there is a Rule of Court 3. He pleads in like manner as to the Hayland Delf and Brink That he put in his Cattel and avers that non Bovium praedict were Northern Steers when as there is no mention of putting in Oxen but Averia generally and no averment that there were no Sheep 4. The Plea doth not set forth the Custome of the Mannor but implicity that the Free-hold and customary Tenants have had and enjoy'd per consuetudinem Manerii solam separalem pasturam for all their Cattel which is a double Plea both of the custome of the Mannor and of the claim by reason of the custome which ought to be several and the Court should judge and not the Jury whether the claim be according to the custome alledg'd The custome may be different from the claim per consuetudinem Manerii if particularly alledg'd Lastly the matter in difference is not before the Court formally by this way of pleading for the matter in question must be Whether the Lord of the Mannor be excluded from pasturing with the Tenants in the place in question or from approving the Common If the Defendant had distrained Damage feasant and the Plaintiff brought his Action and the Defendant avow'd propter solam separalem pasturam the Lords right to depasture had come properly in question and by natural pleading Or if the Lord upon the Tenants plea had taken no notice of sola separalis pastura but had