the Dean 〈◊〉 the Chappel Royal and Dean of thâ— Chappel of St. George at Windsor Moâ—â—over some Deans there are without aâ—â— Chapter yet enjoying certain Juriâ—dictions as the Dean of Croyden thâ— Dean of Battel and the Dean of Boâ—â—ing c. The Consistory Courts of Archbishops and Bishops THe Consistory Courts of every Archbishop and Bishop of every Dioceâ—â— in Ecclesiastical Causes is holden befoâ—â— his Chancellor in his Catheral Church or before his Commissary in places 〈◊〉 the Diocess too far remote for the Chancellor to call them to the Consistory From these the Appeals are to the Archbishop of either Province respectively By many Records in Hen. 3. and Edw. 1. It appears no Bishop could make a Will of his Goods or Chartels coming of his Bishoprick c. without the King's License wherefore the Bishops consented to give the King Six things That they might freely make their Wills First Their best Horse or Palfrey with Bridle and Saddle Secondly A Cloak with a Cape Thirdly A Cup with a Cover Fourthly A Bason and Ewer Fifthly One Ring of Gold Sixthly His Kennel of Hounds for which a Writ issueth out of the Exchequer after the Decease of every Bishop The King by the Verdict of Twelve recovered 10000 Marks against the Bishop of Norwich for that he prosecuted against the Abbot of St. Edmundsbury to appear before him against the King's Prohibition For which it was adjudged That his Temporalities should be seised and his Body taken If an Alien or Stranger be presented to a Benefice the Bishop ought not to admit him The Court of Archdeacon or his Commissary THis Court is to be holden wheâ—â— and in what place the Archdeacoâ— either by Prescription or Compositioâ— hath Jurisdiction in Spiritual Cases with in his Archdeaconry and from hiâ— the Appeal is to the Diocesan and 〈◊〉 is called Oculus Episcopi And every Archdeacon hath 〈◊〉 Court and Jurisdiction where smallâ—â— differences arising within his Limits aâ—â— pleaded Also the Dean and Chapter hath 〈◊〉 Court and take Cognizance of Causâ— hapning in places belonging to thâ— Cathedral Lastly There are some peculiâ—â— Jurisdictions the Inhabitants whereâ—â— are exempt sometimes from the Arcâ—deacon's Jurisdiction and sometimâ— from the Bishops Jurisdiction The Court of Delegates THis Court is so called because Delegated by the King's Commissioâ— under the Great Seal to sit upon an Aâ—peal to the King in the Court of Chaâ—cery in three Causes First When 〈◊〉 Sentence is given in an Ecclesiastical Court by the Archbishop or his Official Secondly When a Sentence is given in any Ecclesiastical Cause in places exempt Thirdly When any Sentence is given in the Admirals Court by the order of the Civil Law And having spoken of Appeals in Ecclesiastical Causes that you may know the Resolution of the Judges and Learned in the Ecclesiastical Law in what Causes from what Courts and in what time Appeals are to be made Vide Lord Dyer Coke's 4 Inst Ecclesiastical Courts The Laws and Constitutions Ecclesiasticali THe Laws and Constitutions of the Ecclesiastical Government in England are First General Canons made by General Councils Arbitria Sanctorum Patrum The Opinions of Fathers the Grave Decrees of several Holy Bishops of Rome Next our own Constitutions made anciently in several Provincial Synods either by the Legates Otho and Othobone sent from Rome or by several Archbishops of Canterbury All which are by the Statute of 25 Hen. 8. in force in England so far as they are not Repugnant to the King's Prerogative or the Customs Laws or Statutes of the Realm Then the Canons made in Convocations of latter times as 1 Jac. and confirmed by his Royal Authority Also Statutes Enacted by Parliament touching Ecclesiastical Affairs And Lastly Divers Customs not written and where these fail the Civil Law takes place Tryals Ecclesiastical in Civil Causes THe manner of these Tryals are first a Citation goes out Then they proceed to Bill and Answer then by Proofs Witnesses and Presumptions the matter is argued Pro and Con and the Canon and Civil Laws Quoted And then without Jury the Definitive Sentence of the Judge passeth and after that Execution Tryals Ecclesiastical in Criminal Causes THe manner of Trying Criminal Causes is by way of Accusation Denunciation or Inquisition The first When some one takes upon him to prove the Crime The second When the Church-Wardens present and are not bound to prove because it is presumed they do it without Malice and â—hat the Crime is Notorious Lastly By Inquisition when by reason of common fame inquiry is made by the Bishop Ex officio suo by calling some of â—he Neighbourhood to their Oath or â—he party accused to his Oath Ex officio But by the prevailing part in the Long-Parliament this power was taken from the Church the want whereof is one main cause of the Libertinism and Debauchery of the Nation Punishments by Ecclesiastical Courts PUnishments inflicted by these Spiritual or Ecclesiastical Courts according to these Spiritual or Ecclesiastical Laws are first the party delinquent is admonished Next goes forth Minor Excommunicatio whereby he is Excommunicated or Excluded from the Church or at least from the Communion of the Lord's Supper disabled to be Plaintiff in any Suit c. and this commonly for Non-appearance upon Summons or not obeying the Orders of the Court This power of lesser Excommunication the Bishop may Delegate to any Grave Priest with the Chancellor Then Excommunicatio Major is not only an Exclusion from the Company of Christians in Spiritual Duties but also iâ— Temporal Affairs And this commonly for Heresie Schism Perjury Incest c. and for the more Terrour 〈◊〉 is done by the Bishop himself in propeâ— person and being so Excommunicate a Man cannot be in any Civil or Ecclesiastical Court either Plaintiff or Witness and in case any continâ—â— Forty days Excommunicate the King'â— Writ de Excommunicato capiendo is granted out of the Chancery against him whereupon he is cast into Prison without Bail till he hath satisfied for thâ— Offence And then there is Anathematismus inflicted upon an obstinate Heretick whereby he is declared a publick Enemy to God Rejecteâ— and Accursed and delivered over tâ— Eternal Damnation And this is to bâ— done by the Bishop also in his owâ— person assisted by the Dean and Chapter or Twelve other grave Priests Anâ— Lastly There is Interdictum whereby is prohibited 〈◊〉 Divine Offices as Christian Burial 〈◊〉 Administration of Sacraments c. iâ— such a place or to such a people If this be against a people it followeth theâ— wheresoever they go but if against the place only then the people may gâ— to Divine Office elsewhere and besides these general Censures of the Church which respect Church-Communion there is another touching the Body of the Delinquent called Publick Penance when the Delinquent is to stand in the Church Porch on a Sunday Bare-head and Feet in a White Sheet bewailing himself and begging every one that passeth by to
Communibus tenendis The Proceedings of this Court remain in Filacijs in the Office of the Petty Bagg Divers Acts of Parliament give Authority to the Lord Chancellor to determine divers Offences and Causes in the Court of Chancery which is ever intended in this Court proceeding in Latin secundum Legem Consuâ—tudinem Angliae and the Defendant shall not be Sworn to his Answer nor Examined upon Interrogatories but upon Issue joyned it shall be tried in the Kings Bench ut in similibus Casibus solet And thus having spoken somewhat of the Ordinary Jurisdiction of this Court we now come to treat of The Court of Extraordinary Jurisdiction PRoceeding according to the Rule of Equity Secundum Aequum Bonum But before we set forth the Jurisdiction and manner of proceeding therein it may not be thought improper to set forth and describe what this Equity is and that it may the better be understood let us consider what leadeth thereunto which is first Synderesis That is a Natural power of the Soul fixed in the higher part thereof moving to good and abhorring evil and the Divine Wisdom joyneth the beginning of Secondary things to the latter end of the first things as an Angel is Intellectual by Nature and not made rational by Discourse and to this nature Man by Synderesis approacheth and is joyned Secondly Reason For when Man was Created he received from God a double Eye the exteriour of the Flesh whereby he might see the visible things and the Interiour of Reason whereby he might know the invisible to the end that by that of the Flesh he might behold know and avoid his visible Enemies and by that of Reason be enabled to overcome his Spiritual Enemies who war against his Soul And moreover Reason according to the Learned is that power of the Rational Soul which discerneth between good and evil the better by compaâ—â—ng the one with the other which also chooseth virtue and loveth God And Reason is divided into two parts the Superiour and the Inferiour for the superiour part of Reason tendeth only to Divine Eternal things and endeavoureth and reasoneth that this is to be done or not to be done because God hath commanded or prohibited it The inferiour part of Reason is declined or bent to the Government of temporal things and endeavoureth or reasoneth to prove by Humane Laws that this is to be done oâ— not to be done or that it is honest oâ— dishonest or that it is expedient oâ— not expedient for the Common-wealth And in the next place we come to consider and speak of Conscience Which is a word compounded of Cum Scientia and is as much as to say Knowledge of one thing with another and is thus said to consiâ—â— in two things Knowledg by himself and Knowledge with another In the first Conscience importeth a certain natural Act not of knowing only but moving also and also inclineth the Soul to prosecute good and to avoid evil and in this manner it is accompted the same as above in Reason and is also conjoyned to the superiour light of Reason which is called Synderesis Therefore St. Jerom and others call Conscience it self Synderesis and then Conscience it self is always right In the second place Conscience importeth more properly Knowledg with another thing still with some particular Act and thus Conscience properly speaking is no other thing than the applying of a certain Knowledg to some particular Act from whence it may be deduced that from the most perfect knowledg of some Law or Science and the right application of that knowledg to some particular Act followeth the most pure perfect and best Conscience and if there be a defect in knowledg of the truth of that Law or in the application of the same to some Act there followeth thereof an Error or defect of Conscience And as Synderesis delivereth a universal Maxim or Principle in which it cannot Err scilicet That an unlawful thing is not to be done now it may be assumed that an Oath is unlawful it being said Math. 5. Ego autem diâ—â—vobis non jurare omnino But if any wiâ—â— hold from these words that an Oath is lawful in no case he erreth in Conscience because he hath not full knowledg of the truth of the said Gospel nor doth confer that place of Scripture with others in which an Oath is allowed to be lawful And the reason why Conscience may Err in the aforesaid Assumption and the like is because Conscience is formed from the Assumption of some particular Proposition or Question under universaâ— Rules of things to be done and as the light of a Candle is put in a House that they may see what things are iâ— the House so God hath placed Conscience in the middle of the Rational Soul as a Light whereby it may discern what is to be done or not to be done and now let us proceed to describe Equity Which is Justice weighing all circumstances tempered with the sweetness of Mercy which ought to be kept in every Law and this he well understood who said Ipsae eteniâ— Leges cupiunt ut Jure regantur and the Wiseman saith Noli esse justus multuâ—â— otherwise Summa justitia summa injâ—stitia fit But that we may more clearly declare what Equity is It is to be known that because it is impossible to institute any General Rule of Law which will in no case be defective therefore Legislators attend to that which happeneth in many things and not to particular cases nor indeed can they since to observe the Sentence of Law in some Cases is both against the Equality of Justice and Common Good so that in some Cases it is good yea absolutely necessary praetermitting the words of the Law to follow that which reason of Justice requireth And to this end Equity is ordained which is also called Epicaya scilicet to moderate the Rigour of the Law and it taketh not away the very Right but that which seemeth to be Right by general determination of Law And cases may happen in which the Law of God and the Law of Reason would be violated by the observance of them as in the Law of England there is a general Prohibition that it shall not be lawful for any Man to enter into the Ground of another without Authority of the Owner or of the Law yet it is excepted That if Beasts by the High-way escape into another Man's Corn he that driveth them may justifie the Entry to fetch them out and many other such like And thus it appears That Equity rather attends the intention than the words of Law And thus having briefly set forth what Equity is we are next to know that this Court of Extraordinary Jurisdiction grounded thereupon relieveth none but such who are without remedy in other Courts For nunquam decurriter ad extraordinarium sed ubi defecit Ordinarium This Court is Superiour to the other Tribunals that so the rigour of the Law in them
dicti Domini Regis in dicto Com' Devon ' The Lord Warden hath Jurisdiction of all the Tynn in Cornwal and Devon and is guided therein by Special Laws by Customs and by Prescriptions Time out of mind And the Officers be the Steward Under-Warden c. By Exposition of the Charters of 33 E. 1. Made and Declared in Parliament Anno 50 E. 3. it appears that all Tynners and Workers in the Tynn-Works should be Free so that they should not Answer for any Matter or Thing arising within the Stannaries before any other Judge or Officer but only before the Warden of the Stannaries Except for Pleas of Land Life or Member and should not depart from their Work for the Summons of any the King's Officers except of his said Warden of the Stannaries and shall be quit of all Tallages Tolls Stallagiis aliis Custumis in Towns Ports Fairs and Markets within the said County De bonis suis propriis Upon any cause of Complaint ministred the same is to be redressed by Appellation First to the Steward of the Stannary-Court where the matter lyeth Then to the Under-Warden of the Stannaries and from him to the Lord Warden and for want of Justice at his hands to the Princes Privy Council For the Laws Jurisdictions c. of this Court see more in Co. 4 Inst c. 45. and Records c. there cited It was Resolved 4 Jac. 1. in Camera Stellata That Stannum Tynne otherwise White Lead nor Black Lead nor any other base Metal did belong to the King by his Prerogative as Gold and Silver do albeit there may be tryed out of the base Metal Gold and Silver but that is as the seed or strength of the base Metal which being Extracted becomes Defective There be Five kinds of Base Metals viz. Aes sive Cuprum because it was found out as some hold in Cypro Copper Stannum Tynn Ferrum Iron Plumbum Lead and Orychalcum Latyn Polybius 209 years before Christ wrote That this Island was abundantly stored with Tynn Britanni qui juxta Belerium promontorium incolunt Mercatorum usu qui eo Stanni gratia navigant humaniores reliquis hospites habentur hij ex terra Saxosa cujus venas sectati effodiunt Stannum igne eductum in quandam Insulam ferunt Britannicam juxta quam Vectam vocant Ex hiis Insulis Mercatores emptum Stannum in Galliam Portant inde diebus fere triginta cum equis ad fontem Eridani fluminis perducunt Coke 's 4 Inst cap. 45. The Court of the Major of the Staple THis Court is guided by the Law Merchant which is the Law of the Staple and is holden at the Wool-Staple in Westminster and there also are Two Constables and a certain number of Correctors to do that which pertaineth to their Office as in other Staples is accustomed And though it be more ancient is warranted by Parliament 27 Ed. 3. Whereby it is Ordained That The Staple of Wools Leather Woolfells and Lead shall be holden at Newcastle upon Tine York Lincoln Norwich Westminster Canterbury Cicester Winchester Exeter and Bristol For Wales at Caermardyn and for Ireland at Deuelin Waterford Cork and Droghoada And that such as shall be carryed out of the Land shall be brought to some of the said Staple-Towns to be weighed by the Standard and the Customs paid But from such of the said Staple-Towns which are not Port Towns the said Staple Commodities shall be sent to the next respective Port Towns as from Westminster to London c. there to be weighed again by the Customers Item That in every Town where the Staple is Ordained shall be a Mayor chosen yearly by the Comminalty who hath knowledge in the Law Merchant and Two convenable Constables who have power to keep the Peace arrest the Offenders in Staples for Debts Trespass and other Contracts and them to Imprison and punish after the Law of the Staple and a Prison appointed for that purpose The Mayors Sheriffs and Bayliffs of the Towns where the Staple is or joyning to the Staple shall be attending to the Mayors and Ministers of the Staple for Executing their Commandments upon grievous Forfeiture and one Lord or other of the most Sufficient where the Staple is shall be assigned to be Aidant to the Mayor and Ministers of the Staple to justifie the Rebels that cannot be justified by the Mayors and Ministers of the Staple and to redress all Complaints c. The Bounds of the Staple at Westminster shall begin at Temple-Bar and extend to Tuthill In other Cities and Towns within the Walls and where there are no Walls through all the City or Town By the Statute of 27 Ed. 3. the Major of the Staple may take Recognizances of Debts under the Seal of the Office but not with the Seal of the Party By the Statute of 23 H. 8. the Major of the Staple at Westminster and Recorder of the City of London in the absence of the Two Chief Justices out of Term have power to take Recognizances of Debts according to that Statute and this is in the Nature of a Statute Staple but it hath besides the Seal of those that take it the Seal of the Party By the Statute of 36 Ed. 3. Merchant Strangers may sue before the Major of the Staple according to Law Merchant or at the Common Law By the Statute of 8 H. 6. cap. 17. there are in England Five Staple Merchandizes viz. Wool Woolfells Leather Lead and Tyn. The Mayor and Constables are sworn in Chancery to do lawfully that which pertaineth unto them That Staple cometh from the French Estape signifying a Mart or Market and for other Matters concerning the Staple see Coke's 4 Inst cap 46. and the Statutes and Records there mentioned The Principality of Wales WALLIA Wales by the Saxons called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Wales unde Wallenses Walli i. e. Exteri seu Perâ—grini The Britons calling Englishmen Saisons They are of the Posterity of the ancient Britons Inhabiting on the West part of Great Brittany This was sometime a Realm or Kingdom Governed per Regulos suos But Jure Feodali the Kingdom of Wales was holden of the Crown of England and thereby as Bracton saith was Sub potestate Regis and so continued until the 11th Year of King Edward the First when he subdued the Prince of Wales and Executed him for Treason Whereof Fleta who lived in those days speaketh thus Et unico Malefactori plura poterunt infligi tormenta sicut contigit de Davide Principe Walliae cum per Edwardum Quinque Judiciis mortalibus torquebatur suis namque Meritis exigentibus Detractus Suspensus Dismembratus fuit combustus cujus caput principali Civitati quatuorque Quarteria ad quatuor partes Regni in Odium tradit deferebuntur suspendendum And in the 12th of E. 1. by Parliament it is declared speaking in the Person of the King as ancient Statutes were wont to do Divina Providentia quae in sua dispositione non
make a Record of it Coke's 8 Rep. 120. Dr. Bonham's Case Justices of Peace may commit Vagrants to Prison if they will not serve and they may command the Goalers to set 'em at liberty without any other Writ F. N. B. 374. Justices of Peace shall be made of the most sufficient by the Advice of the Chancellor and King's Council without taking others dwelling in Foreign Counties except Lords Justices of Assize and the King 's Chief Steward of Dutchy Lands in North and South St. 2 H. 5. Cap. 2. 18 H. 6. None except Men Learned in the Law or inhabiting Corporations shall be Justices of peace unless their Lands be worth 20 l. per Annum Justices in Middlesex not compellable to keep their Sessions more than twice in the Year but may keep them oftner Stat. 14 H. 6. Vid. the Statutes concerning Justices of Peace Sat. 5 6 W. M. Certiorari to remove Indictments shall not be out of the King's Bench before Trial and from before Justices of General or Quarter Sessions of Peace unless upon Motion of Council and Rule in open Court and the Party indicted find two Manucaptors before one or two of the Justices in the County in 20 l. to plead to the said Indictment in the King's Bench and at their own Charges to procure the Issue joyned upon such Indictment to be tried at next Assizes after the Certiorari returnable Or if in London Westminster or Middlesex then next Term or Sitting after Term unless the Justices appoint some other time of which Notice must be given Costs against the Prosecutor of the Certiorari if he be Convicted In Vacation time Writs of Certiorari shall be granted by any Justice of King's Bench the Justice and Parties Name being indorsed and finding Sureties If upon any Indictment for not repairing High-ways the Title may come in Question upon Affidavit thereof a Certiorari may be granted to remove it into King's Bench upon Sureties found Vid. Washington's Abridgment of Statutes 152. Justices of Peace shall deliver their Indictments to the Justices of Goal-Delivery And Justices of Goal-Delivery may take a Pannel of a Jury returned by the Sheriff without making any Precept which Justices of Oyer and Terminer ought to make Coke's 4 Inst 168. For the Institution of Justices of the Peace and their Duty and Authority and of what they may inquire See the Stat. 4 H. 7. and Coke's 4 Inst 170 to 183. Justices of Peace Sheriffs in their Tourns and Lords in their Leets may enquire of false Weights and Measures c. Coke's 4 Inst 273. If the Commission of Sewers determine the Justices of Peace have Power to execute for one year Coke's 4. Inst 276. By Stat. 2 3 P. M. 18. a new Commission of the Peace or Goal-Delivery for the whole County shall not be a Supersedeas to a former like Commission granted to a City or Town-Corporate being no County Those who desire to see more of their Institution Jurisdiction and Authority may read thereof more at large in Dalt Just Coke's 4 Inst and other Authors who treat thereof and in the Statutes at large See before in Court of the Sessions of the Peace Page 210. To the Court of the Tourne THIS Court of the Tourne is the King 's Leet through all the County and the Sheriff is Judge And whosoever hath a Leet hath the same Authority within the Precinct as the Sheriff hath within the Tourne From this Court are exempted only Archbishops Bishops Abbots Priors Earls Barons all Religious Men and Women and all such as have Hundreds of their own to be kept who are not bound to appear except for some other Cause but only in the Bailywicks where they dwell Stat. Marleb 10.25 H. 3. By Stat. 31 Ed. 3. Sess 1.15 Every Sheriff shall hold his Tourne yearly one time within the Month after Easter and another time within the Month after Michaelmas on Pain to lose his Tourne for the Time This Court is appertaining and incident to the Office of the Sheriff and ought not to be reserved therefrom and the Sheriff is to appoint Clerks under him in his Court such as he will at his Peril answer for but he cannot prescribe to take any thing for the keeping of his Tourne because he is an Officer removeable And by Magna Charta Chap. 35. he is to keep his Tourne in the Hundred at the usual Place It was Enacted by Stat. 1 Ed. 4. That all Indictments and Presentments taken before the Sheriff in his Tourne or County shall be delivered to the Justices of the Peace at the next Sessions in Pain of 40 l. who shall Arraign Deliver make Process and proceed thereupon as if they were taken before themselves and shall deliver indented Estreats of the Fines to the Sheriff to be levied to his own use And here if the Sheriff levy any Fine or commit any to Prison by colour of any such Indictment or Presentment or otherwise than by Warrant from the Justices aforesaid he shall forfeit 100 l. Howbeit Sheriffs of London shall not be restrained by this Act nor such as have had Fines formerly granted unto them Coke's 5 Rep. 112. Mallorie's Case But this extendeth only to Proceedings upon lawful and sufficient Indictments and doth not make any insufficient Indictment good Coke's 9 Rep. 26. Case of the Abbot of Strata Marcella See more in Court-Leet County-Court and Hundred-Court See before in The Court of the Tourne Page 223. To the Court-Leet or View of Frankpledge BY Stat. de Visu Franc. 18 Ed. 2. before mentioned and divers other Statutes the Court of the Leet may enquire of several Offences and amongst the things whereof the Steward of the Leet hath Cognizance and wherewith the Jury is to be charged some are such as may be there enquired of as High-Treason Petit Treason Felonies Burglaries Wilful Burners of Houses or Barns adjoyning thereunto by Night or Stacks of Corn Robbers of Churches and Chappels Takers of Doves out of Dovehouses or young Pigeons or Hawks out of their Nest in the Night or Fishes out of Ponds Stews or Trunks in the Night Stealers of Tame Deer marked Swans or Peacocks Breaking of Prison by Felons Rescuers of Felons and the like and their Accessaries before and after the Felony done Of all which the Jury must make Presentment and this Presentment is to be transmitted to Superior Courts as to the Justices of Goal-Delivery or Justices of Peace in their Sessions And other things whereof this Court hath perfect Cognizance and that may be enquired of and punished here in this Court are 1. By Common Law as the Defaults of Officers and Suitors in doing their Suit to this Court as if any living within the Precinct of the Law-day be not returned of the Decenary or being returned does not appear Or if any above Twelve years of Age have lived within the Leet and had not taken the Oath of Allegiance he was to have been presented here And