hath well observed Vide Dyer 298. vide le Stat. 27 Eliz. Pasch 9 Jacobi Regis Sir William Chancâ—ys Case In this Term Sir William Chancy having the priviledg of this Court and being a Prisoner in the Fleet was brought to â—he Bar by Habeas Corpus by the Guardian of the Fleet who returned That the said Sir William was committed to the Fleet by Warrant from the High-Commissioners in Ecclesiastical Causes which Warrant follows in these words viz. These are to Will and Require you in his Majesties Name by Vertue of his Hâ—gh-Commission c. to Us and others directed c. That herewithal you take and receive into your Custody the Body of Sir William Chancy Knight whom we will that you keep c. untill further Order c. letting you know the cause of his Committment to be for that being at the Suit of his Lady convented bâ—fore c. for Adultery and expelling her from his Company and Co-habiting with another Woman without allowing her any competent Maintenance and by his own Confession convict thereof he was thereupon enjoyned to allow his Wife a competent Maintenance c. and to perform such Submission and other order for his Adultery as by Law should be enjoyned him which he expresly refused to do in contempt c. Given at London 19 Martii 1611. subscribed Henry Mountague George Overall Thomas Morton Zach. Paâ—field And it was moved by Nicholas Serjeant a Councel with Sir William that this return was insufficient 1. Because Adultery ought to be punished by the Ordinary and not by the High-Commâ—ssioners on which the Offender is remediless and can have no appeal Quod fuit concessum per Coke Warberton and Foster but Walmesly doubted of Adultery 2. That by force of the Act of the 1. of Eliz. the High-Commissioners cannot imprison Sir William for Adultery nor for denying Alimony to his Wife And Doderidge the Kings Sâ—rjeant of Council on the other side did not defend the Imprisonment to be lawful And it was clearly agreed by Coke Walmesly Warberton and Foster That the Commissioners had not power to imprison in this Case And Walmâ—sly said That though they have used this Power for twenty years without any exception yet when it comes before them judicially they ought to Judge according to Law and upon this Sir William Chancy was Bailed And it was resolved per totam Curiam That when it appears upon the Return that the Imprisonment is not lawful the Court may discharge him of Imprisonment Also it was Resolved That the Return was insufficient in form 1. It is not shewn when the Adultery was committed 2. He was enjoyned to allow his Wife a competent Maintenance without any certainty and to perform such submission c. as by Law shall be enjoyned which is all infuturo and uncertain Vide in my Treatise at large the Reasons and Causes why the High-Commissioners may sue and imprison Vide Pasch 42 Eliz. Rot. 1209. Pasch 9 Jacobi Regis Empringham's Case In this Term a Case was moved in Star-Chamber upon a Bill exhibited by the Attorney-General against Robert Empringham Vice-Admiral in the County of York Marmaduke Ketthewell one of the Marshals of the Admiralty and Thomas Haâ—rison an Informer in the same Court for Oppression and Extortion in Fining and Imprisoning divers of the Kings Subjects in the said County which no Judge of the Admiralty can justifie because it is not a Court of Record but they proceed according to the Civil Law and upon their Sentence no Writ of Error lyeth but an Appeal Also the said Empringham hath caused divers to be cited to appear before him for things done in the Body of the County which were determinable by the Common Law and not before the Admiralty whose authority is limited to the High Sea And for these and other Oppressions they were fined and imprisoned and sentenced beside to make Restitution c. Trin. 9 Jacobi Regis Memorandum That upon the Thursday before this Term all the Justices of England by the Kings Command were assembled in the Council-Chamber at Whitehall where was Abbot Archbishop of Canterbury and with him two Bishops and divers Civillians the Archbishop complained of Prohibitions out of the Common-Pleas and delivery of Persons by Haheas Corpus but chiefly of Sir William Chancy I defended our proceedings according to my Treatise thereof which I delivered before the High-Commissioners And after great dispute between the Archbishop and Me at last he said He had a Point not yet touched upon in my Treatise which would give satisfaction to the Lords and Us also and upon which he would rely And that the Clause of Restitution and Annexation viz. And that all such Jurisdictions c. Spiritual and Ecclesiastical as by any power Spiritual hath heretofore or hereafter lawfully may be used c. for visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and of all Errors Heresies Schismes c. shâ—ll for ever by authority of this present Parliament be united and annexed to the Imperial Crown of this Realm And it was said That H. 8. and Ed. 6. did give Power by their Commissions to divers to impose Mulcts c. in Ecclesiasticall Causes c. and upon this he concludes That this having been used before 1 Eliz. this is given to Queen Eliz. and her Successors Also inasmuch as by 2 H. 4. and 2 H. 7. the Jurisdiction Ecclesiastical may Fine and Imprison in particular Causes therefore Power to Fine and Imprison in all Ecclesiastical Causes is given to the King And this he said he uttered that it might be answered 1. To which I for a time gave this Answer That it was good for the Weal-publick that the Judges at the Common-Law should interpret the Statutes within this Realm 2. It was said by me That before the Statute of 1 Eliz. no Ecclesiastical Judge may impose a Fine or Imprison for any Ecclesiastical or Spiritual Offence unless there be Authority by Act of Parliament And this was so affirmed by all the Justices Vide my Book of Presidents the Commission at large to Cromwel to be Vicegerent Afterwards in this very Term the Privy-Council sent for the Justices of the Common-Pleas only and there the Reasons of the said Resolution were largely debated and strong Opposition made hy Egerton Lord Chancellor but the Justices of the Common-Pleas remained constant in their Resolution Afterward the Council sent for the chief Justice of the Kings Bench Justice Williams Justice Crook Chief Baron Taâ—field Snig Althan and Bromly who were not acquainted with the Reasons of the said Rule of the Common-Pleas nor knew why they came before the Council And hearing the Lord Chancellor affirm That the High-Commissioners have alwayes by the Act 1 Eliz. imposed Fines and Imprisonments for exorbitant Crimes without any Conference with us or among then selves or hearing the matter debated were of Opinion with us And after at another day this
were High Treason or no And in this the Justices were divided my self and divers others holding That this Act was not Treason but the chief Justice and divers others were against us 2. If it be High Treason then whether he may be indicted generally for the Counterfeiting of the Great Seal or else the special Fact must be expressed By reason of diversity of Opinions Râ—spectuatur vid. Fleta lib. 1. cap. 22. Item crimen falsi dicitur cum quis illicitus cui non fuerit ad haec data authoritas de sigillo Regis rapto vel invento et brevia Carteria vide le Attainder de Elizabeth Barton Edw. Bocking by Parliament c. 25. H. 8. c. 12. Hill 24 Eliz. In the Exchequer A Merchant brought eighty weigh of Bay-Salt by Sea to a Haven in England and out of the Ship sold 20 weighs and discharged them to another Ship wherein they were transported being never actually put on shore and for the residue viz. 60 weigh he agreed for the Custome and put them upon Land and now the dâ—nbt was 1 Eliz. cap. 12. for the words of the Statute concerning Exportation sent from the Wharfe Key or other place on the Land and concerning Importation taken up discharge and lay on Land If in this Case the said 20 weighs which alwayes were waterborn and never touched the Land ought to pay Custome as well inwards as outwards And it was Resolved That in both the Cases Custome ought to be paid and forasmuch as no Custome was paid It was Resolved That the Goods were forfeited Note No Act of Parliament can bind the King from any Prerogative which is sole and inseperable to his person but that he may dispence with it by a non obstante as his Soveraign Power of Commandines his Subjects to serve him for the publick Weal See 23 H. 6. cap. 8. 2 H. 7. 66. 13 R. 2. Parl. 2. cap. 1. See also 4 H. 4. cap. 31. Coke l. 2. fol. 69. But in things which are not incident solely and inseparably to the person of the King but belongs to every Subject and may be severed there an Act of Parliament may absolutely bind the King As if an Act of Parliament do disable any Subjects of the King to take any Land of his Grant or any of his Subjects as Bishops as it is done by the Statute 1 Jac. cap. 3. to Grant to the King this is good for to grant or take Lands or Tenements is common to every Subject Hill 4. Jac. Regis Care of High Commissioners If they have Power to Imprison Mich. 4 Jac. post prand There was moved a Question amongst the Judges and Sergeants at Sergeants Inn If the High Commissioners in Ecclesiastical Causes may by force of their Commission imprison any man or not First Resolved by all That before the Statute of the first of Eliz. the King might have granted a Commission to hear and determine Ecclesiastical Causes yet the Commissioners ought to proceed according to the Ecclesiastical Law allowed within the Realm Vide Caudrye's Case 5 Report Then all the Question rests upon the Act 1 Eliz. which hath three Branches 1. Such Commissioners have power to exercise Jurisdiction Spiritual and Ecclesiastical 2. By force of Letters-Patents they have power to visit reform c. all Heresies c. which by any manner of Spiritual or Ecclesiastical Power c. can or lawfully may be Reformed c. So that these Branches limit the Jurisdiction 3. That after such Commission delivered to them shall have power by vertue of this Act and the said Letters-Patents to exercise c. all the Premisses c. according to the Tenor c. This Branch gives them Power to execute their Commission But it was Objected That this Branch gave no power to the Queen to alter the Proceedings of the Ecclesiastical Law or to prescribe what manner of proceedings or punishment concerning the Lands Goods or Bodies of the Subject And this appears by the Title of the Act Restoring the intent being to make Restitution not any Innovation Vide a notable Case adjudged in this Point Hill 42. El. â—o 389. as to Imprisonment Smith's Case for at the last Consultation was granted And at last by the better Opinion as to things committed to them by Commission they may put Fine and Imprisonment By the 3 H. 7. cap. 14. 't is Ordained where Women as well Maids as Widows and Wives having substance c. for the lucre of such substance be taken by Misdoers contrary to their Wills and after marryed c. or defiled That what person henceforth so taketh c. against her will c. such taking c. to be Felony And the Misdâ—ers c. to be reputed as Felons Upon this great question was moved 4 5 Phil. Mar. in the Star-Chamber If the Eloym ent against her without Mariage or Carnal Copulation be Felony or no And the Opinion of Brook and some other of the Justices was that It was Felony But Sanders Lord Chief Justice was against it and afterwards as Peryam chief Baron did Report It was Resolved by all the Justices That such Eloynment onely is not Felony by the intent of the Statute without Marriage or Carnal Copulation Note By the express purview of the Act the Accessary both before and after is made Principal Pasch 4 Jac. Regis By the Commandement of the King it was referred to Popham Chief Baron and my self what Right the Queen which now is hath and in what Cases to a Right claim'd by her called Aurum Reginae that is to say Pro centum marcis argenti una marca Auri solvendum per illum qui se sponte obligat And upon consideration had thereof and view of Records and Presidents viz. Librum Rubrum in Scaccario fol. 56. de Auro Reginae where it is said that this is to be taken De iis qui sponte se obligant Regi c. which is the Foundation of this Claim And of a Record in the Tower 52 H. 3. And a Record in the Exchequer 4 Ed. 1. And a Record in the Exchequer Hill 12 Ed. 3. And in the Tower in the same year in Rot. Claus And of Acts of Parliament 15 Ed. 3. cap. 6. and 31 Ed. 3. cap. 13. and 13 R. 2. in Turri And divers other Presidents and Process out of the Exchequer in the time of R. 2. H. 4. and other Kings till H. 7. It was Resolved that the Queen hath Right to it but with these Limitations 1. It ought to be sponte by the Subject sine coactione And for this all Fines upon Judgments or by Offer or Fine for Alienation or any other Case where the Subject doth it not sponte sine aliqui coactione That the King of Right ought to have it there the Queen shall have nothing 2. It ought to be sponte sine consideration alicujus reventionis seu interesse That the King hath in esse in jure Coronae As upon Sale
Sentence given by Commissioners of the Queen in a Cause Ecclesiasticall under the Great Seal That the said Sentence was unjust and wicked and that he thought the Delegates had done against their Conscience and what offence this was was referred to divers Judges to consider by whom it was Resolved That this Offence was a contempâ— as well against the Queen as to the Judges and punishable by the Common-Law by Fine and Imprisonment 5. Resolved When any Libell in Ecclesiastical Court contains many Articles if any of them do not belong to Court-Christian a Prohibition may be generally granted and upon motion Consultation may be made as to things which belong to Spiritual Jurisdiction And for these Reasons it was Resolved by all That the Prohibition in the case at Bar was well granted which in truth was granted by Fenner and Crooke Justices in the Vacation Note these general Rules concerning Prohibitions Quaesparsim inveniantur in libris nostris Non debet dici tendere in praejudicinm Ecclesiasticae libertatis quod rege et repub necessarium videtur Artic. Cleri c. 8. 2. Non est juri consonum quod quis super iis quorum cognitio ad nos pertinet in Curia Christianitatis trahetur in placitum Entries 444. 447. 3. Episcopus teneat placitum in Curia Christianitatis de iis quae mere sunt Spiritualia Circumspâ—cte agatis c. 4. Prohibeatur de caetero Hospitalariis et Templariis ne de caetero trahunt aliquem in placâ—tum coram conservatoribus privilegiorum de aliquare cujus cognitio ad Forum spectat Regium West 2. cap. 43. 5. Non concedantur citationes priusquam exprimatur super quare fieri debet citatio Ibidem 6. Resolved That this special Consultation being only of Heresy Schisme and erroneous Opinions c. that if they convict Fuller and if he recant the same c. that he shall never be punished by Ecclesiastical Law After the Consultation granted the Commissioners proceeded and convicted Fuller of Schisme and erroneous Opinions and imprisoned and fined him 200 l. And after in the same Term Fuller moved the Court of Kings Bench to have a Habeas Corpus et ei conceditur upon which Writ the Goaler did return the cause of his detention Mich. 5 Jac. Regis The Case of First-Fruits and Tenths Note Annates Primitiae and First-Fruits are all one It was the value of every Spiritual Livâ—ng by the year which the Pope claiming the disposition of all Ecclesiastical Livings reserved And those and Impropriations began about the time that Polidore Virgil lib. 8. cap 2. saith Vide Concilium Viennense quod Clemens quintus indixit pro annatibus These First-Fruits were given to the Crown 26 H. 8. cap. 3. Note Hill 34 Ed. 1. An. 1307. At a Parliament held at Carlisle great Complaint was made of Oppressions of Churches c. by William Testa called Mala Testa and Legate of the Pope in which Parliament the King with his Barons assent denied payment of First-Fruits And to this effect he writ to the Pope whereupon the Pope relinquished his Demand and the First-Fruits for Two years were by that Parliament given to the King Decimae id est Tenths of Spiritualties were perpetual and paid to the Pope till Pope Urban gave them to R. 2. to aid him against Charles King of France and others who supported Clement the 7th against him 5 H. 3. By the Popes Bulls all Tenths were paid to H. 3. for years These were given to the King 26 H. 8. cap. 6. Vide Dambert de prist Anglor c. fol. 128. cap. 10. et ibidem inter leges Juae fol. 78. cap. 4. Sir Anthony Roper's Case In the Case of Sir Anthony Roper drawn before the High Commissioners at the Suit of one Bullbrook Vicar of Bently for a Pension out of a Rectory Impropriate whereof Sir Anthony was seized in Fee And the High-Commissioners sentenced the said Sir Anthony to pay it which he refused whereupon they committed him to Prison who appeared in Court this Term by Habeas Corpus upon the return of which Writ the matter did appear And it was well debated by the Justices and Resolved 1. That the said Commissioners had not Authority in the said Case for when the Acts of the 27 H. 8. and 31 H. 8. of Monasteries had made Parsonages Impropriate c. although that Pensions were saved yet by the Preamble of the Act 34 H. 8. cap. 16. those to whom the Pensions appertain had not remedy for the said Pensions c. And if the King covenanted to discharge the Patentee c. of Pensions the Suit shall be made for the same in the Court of Augmentations and not else-where And if High-Commissioners will determine of Pensions they must do it by that Act 34 H. 8. which expresly gives it to Ordinaries and their Officials the High-Commissioners Power being granted long after by the Act 1 Eliz. But it was Objectâ—d That that Act of 1 Eliz. gave the Queen and her Successors Power to assign Commissioners c. And it was said That such Spiritual Jurisdiction which the Bishop should have is transferred to the High Commissioners But it was unanimously resolved by Coke Walmesly Warberton Daniel and Foster Justices That the Act 1 Eliz. extends not to this Case for divers Causes 1. Because the Act of the 1 Eliz. doth not take away nor alter any Act of Parliament but those onely which are expresly named therein And it was Râ—solved That the High-Commissioners cannot hold Plea for the double value of Tythes carried away before severance 2. Because the words in the 1 Eliz. are which by any manner of Spiritual Jurisdiction can or lawfully may be reformed And it appears That these words extend to Crime only and not to Cases of Interest betwixt Party and Party 3. Because this Jurisdiction was given to the Bishops by Act of Parliament viz. 34 H. 8. which is more Temporal than Spiritual as all of Parliament are 4. It was not the intent of the Act 1 Eliz. which revived the Statute 23 H. 8. cap. 9. That the High-Commissioners for private Causes shall send for Subjects out of any part of the Realm and so in effect confound the jurisdiction of the Ordinary an Officer so necessary that the Kings Courts cannot be without him in divers Cases 5. If that Act 1 Eliz. had extended to give High-Commissioners power to determine meum et tuum as Pensions Tythes c. the Party thereby also should have benefit to appeal otherwise this should be dissolve the Court of the Ordinary which is so antient and necessary in many Cases that without it Justice cannot be administred 6. The High-Commissioners cannot extend themselves but only to Crime Mich. 5 Jac. Regis Rot. 2254. Praecept fuit Guardiano prison Domini Regis de Flecte quod haberet qpud â—estm immediate c. Coâ—pus Anthonii Roper Mil. inprison praed sub custodia sua detent quocunque nominâ— cens reretur una cum
die causa c. Et iidem Justiciarii hic visa causa illa ulterius fieri fecerint quod c. Et modo hic ad hunc diem viz. diem Sab. prox Oct. Sanct. Mich. isto eoâ—um termino venit praed Anthonius in propria persona suaâ— sub custod praed Guard ad Barr. hic praed idem Guardianus tunc hic mand Quod ante advent brevis praed vâ—z 9. die Oct. ult praeter praed Anthonii Roper mil. reducit se prison praed perantea Commissus virtute cujusdam â—arranti dat 30 die Junii ult praeter quod sequitur in haec verba viz. These are in his Majâ—sties Name to require and charge you by Vertute of his High-Commission for causes Ecclesiastical under the Great Seal of England to us and others directed that herewith you receive and take into your Custody the Body of Sir Anthony Roper Knight and him safely detain c. signifying unto you That the cause of his Commitment for that there being a certain cause c. betwixt him the said Sir Anthony Roper and John Bullbrooke Vicar of Bently for that he detained wrongfully from him the said Vicar a certain yearly Pension c. Given at Lambeth this thirtieth of June 1607. Et quod haec suit causa captionis et detentionis praed Anthonii in prison praed corpus tamen praed Anthonii modo hic paratus hâ—bet prout â— super quo visis praemissis per Justiciurios hic plenius examinatis videtur iisdem Justiciariis hic quod praed causa Commissionis praed Anthonii prison de Fleet praeâ— in retorn spâ—cificat minus sufficiens in lege existit c. Idco prad Anthonius a prisona prad per-Cur hic dimittitur ac idem Guardianus de hujusmodi Custodia per eand Cur. hic plene exoneretur And this was resolved una voce by Coke chief Justice Walmesly Warberton Daniel and Foster Justices And in the same Term in I am's Case A Parson in Noâ—folk that sued one of his Parishioners before the High-Commissioners for Scandal in saying only in the Church on a Sabbath day That he was a wicked man and an arrant Knave Prohibition lyes for this That it was not so enormous as the Staâ—â—te intended Hill 5 Jac. Regis Note It was moved to the Justices this Term upon consideration of the Acts of 34 H. 8. and 18 Eliz. If the Justices in Wales may be Constituted by Commission and it was conceived they could not but that it ought to be by Patent as hath been ever used since 34 H. 8. Then it was moved If the King by force of a Clause there in might do it which Clause is That the King 's most Royal Majesty shall and may at all times hereafter change adde alter minish and reform all manner c. And it seemed to divers of the Justices that this Power given to the King determin'd by his Death for divers Causes 1. Because it wants these Words His Successors and to draw it in Succession by Construction would be against the Intention of the Maker of the Act For they gave this high Power of Alteration c. of Laws to the King as to his most Excellent Wisdom shall be thought most meet which words want His Successors For they well knew his Wisdom did not go in Succession so the Power went not in Succession And for this that Eorum progressus ostendent multa quae ab initio provideri non possunt And what ensues upon this concerning this uniting of Wales and England none could divine But it was never the Intention of the said Act to give Power to the King and his Successors for ever to alter c. 2. Power of Alteration of Laws c. is a Point of Confidence concerning the Administration of Justice which the Act by omitting of his Successors intended to unite this Confidence to the Person of H. 8. and not to extend it without Limitation of time to his Successors 1 Ed. 5. 1. 1 H. 7. 1. 14 Ed. 4. 44. All Commissions concerning Administration of Justice determine by the King's Death Not so if he make a Lease durante bene placito or present one to a Church these are not void by his Death untill revoked by his Successor And upon Certificate of the Justices Opinion That the Justices of Wales cannot be Constituted by Commission Baron Snig had a Patent for the Circuit of Wales as others before him had Trin. 6 Jac. Regis This Term it was Resolved per totam Curiam in Communi Banco viz. Coke Chief Justice Walmesly Warberton Daniel and Foster in the Case of Allan Ball That the High-Commissions cannot be force of the Act 1 Eliz. cap. 1. send a Pursivant to Arrest any Person subjâ—ct to their Jurisdiction to answer to any matter before them But they ought to proceed according to Ecclesiasticall Law by Citation And in the Circuit of Northampton when the Lord Anderson and Glanvile were Justices of Assize a Pursivant was sent by the Commissioners to Arrest the Body of a Man to appear before them and in resistance of the Arrest and striving among them the Pursivant was killed And if this was Murther or not was doubted and it was Resolved that the Arrest was tortious and by consequence that this was not Murther though the killing of an Officer of Justice whose Authority is lawful in Execution of his Office is Murther But they may send Citation by a Puisivant and upon default proceed to Excommunication and then to have a Capias Excommunicatum which Writ de excommunicato capiendo is preserved and returnable by the Statute 5 Eliz. See Magna Charta and all the antient Statutes Vid. Rast Title Accusation Marmaduke Langdale's Case In the Case of Marmaduke Langdale of Leventhorp in the County of York by Joan his Wife being sued for maintenance before the Bishop of Canterbury and others High-Commissioners It was Resolved per totam Curiam praeter Walmesly that a Prohibition before granted was well maintainable because it was not any Enormity nor Offence within the Statute but a neglect of his duty and a Breach of his Vow of maintenance And the Rule of the Court was That the Plaintiff shall count against the High-Commissioners and upon Demurrer joyned the Case to be argued and adjudged and the Party grieved to have a Writ of Errour si sibi viderit expedire c. Upon Complaint made to the King and Councel by the Lord President of Wales and the Lord President of York against the Judges of the Realm and the King's Pleasure signified to them Upon Consideration had of the parts of the Complaint they Resolved upon these Answers And because of the Lord President of York first opened the Cause of his Grief more amply they first answered those Objections made on the behalf of that Councel And first as to the Institution of that Court. 1. After the Suppression of all Religious Houses Anno 27. H. 8. in
more Prohibitions had been granted of late than in many years before To this a Sixfold Answer was made 1. That they had exceedingly multiplyed the number of Causes they in five Counties and three Towns having at one sitting 450 Causes at Hearing whereas the Chancery that extends into all England and Wales had in Easter Term but 95. and in Trinity Term but 72. to be heard So that it is no wonder it in such a Multiplication of Causes the number of Prohibitions be increased 2. Besides the Multiplication they have innovated and taken upon them to deal in Causes which we know never any President could and we think never any President and Councel did usurp As first Suits upon Penal Laws As between Hâ—rison and Thurston upon the 39 of Eliz. of Tillage 2. In Hâ—rtley's Case after Indictment of Forcible Entry and Restitution according to the Statute upon English Bill dispossessed by the President 3. After a Recovery in Ejectione Firmae and Habere facias possessionem out of our Court they upon English Bill dispossessed the Plaintiff this was Hart's Case So in other Cases as between Jacksoâ— and Philips Stanton and Child and Binns and Collâ—t 4. They admit English Bills in nature of Writs of Errour Formedons and other reall Actions 5. They wiâ—l â—dmit no Plea of Outlary in disability of the Plaintiff 6. They usually granted Injunctions to stay the Common-Law which is utterly against Law and som times to stay Suits in Chancery and in the Exchâ—quer Chambâ—r for which in respect as well of the Multiplications of Suits as Innovations of others it may very well be that more Prohibitions and Habeas Corpus have been granted of late than in time past And yet there hath been more granted and more antient than is supposed For which see Mich. 7 Eliz. Rot. 31. and Mich. 7. and 8 Eliz. in libro de Habeas Corpus Also Trin. 20 Eliz. ibid. 3. The Judges never grant either Prohibition or Habeas Corpus but upon Motion or Complaint by the Party grieved and therefore as the Subject hath more cause to complain there must needs be more Prohibitions and Habeas Corpus than heretofore 4. The Proceedings there are by absolute Power and their Decrees uncontrollable and finall more than in a Judgment in a Writ of Right which makes them presume too much upon their Authority 5. These Suits grow more prejudicial to the King than ever because thereby the King loseth his Fines c. 6. Remedy for the time past if the Common-Bench erre Writ of Errour lies in Banco Regis if the Kings-Bench erre a Writ of Errour lyes in the Upper-House of Parliament 7. For the time to come 1. That the Instructions be inrolled in Chancery that the Subject may see and know their Jurisdiction 2. That the Presidents and Councels have some Councel Learned in the Court to inform us judicially of their true Jurisdiction and we will give them a day to shew cause that Justice may be done on both sides and if we erre the Law hath provided a Remedy by Writ of Errour And we are sworn to do Justice to all according to the Laws Upon this Answer of the Judges the Lords of the Councel upon Conference among themselves gave by the Earl of Salisbury then Lord Treasurer this Resolution 1. That the Instructions should be Recorded as far as they concerned Criminal Causes or Causes between Party and Party But as to State-Matters not to be published 2. That both Councels should be within the Survey of Westminster Hall viz. the Courts of Westminster 3. The Motion was well allowed that the Presidents and Councels should have Councel learned in every Court that day might be given c. And concerning the remotenesse of the place the Counties of Cornwall and Devon are more remote then York And this was the end of that Dayes Work Case of Heresy Note 2 Ma. title Heresy Brook per omnes Justiciarios et Baker et Hare The Archbishop in his Province in the Convocation may and doth use to convict Heresy by the Common-Law and then to put them convicted into Lay-hands and then by the Writ de Heretico comburendo they were burnt but because it was troublesome to call a Convocation It was ordained by the Statute 2 H. 4. cap. 15. That every Bishop in his Diocesse might convict Hereticks And if the Sheriff was present he might deliver such to be burnt without the Writ aforesaid but if the Sheriff were absent or he were â—o be burnt in another County then the said Writ ought to be had And that the Common-Law was such Vide lib. intra title Indictment pl. 11. Who are Hereticks See 11 H. 7. Book of Entries fol. 319. See Doct. Stud. lib. 2. cap. 29. Cosin 48. 2. 1 2 P. M. cap. 6. Also 3 F. N. B. fol. 269. And the Writ in the Register proves this directly 4 Bracton l. 3. cap. 9. fol. 123 124. And true it is That every Ordinary may convent any Heretick or Schismatick before him pro salute animae and may degrade him and enjoyn him penance according to Ecclesiastical Law but upon such Conviction the Party shall not be burnt Nota The makers of the Act of 1 Eliz. were in doubt what shall be deemed Heresy or Schisme c. and therefore the Statute of 10 Eliz. provides That nothing shall be deemed Heresy but what had been so determined by one of the four general Councels the Word of God or Parliament See Fox in Ed. 6. and Britton 5 Ed. 1. lib. 1. cap. 17. and with this agrees the Statute 2 H. 5. cap. 7. 23 H. 7. 9. 25 H. 8. cap. 14. or that the proceedings in the Commencement and end was altered by the Statute 25 H. 8. then came the Satute 1 Ed. 6. cap. 12. and that repealed 5 R. 2. 2 H. 5. 26 H. 8. and the 2 H. 4. and by general words all Statutes concerning matter of Religion then the 1 2 P. M. c. 6. revived the 2 H. 4. by which the 25 H. 8. lost its force but by the Act 1 2 P. M. cap. 8. expresly repealing 21 H. 8. 23 H. 8. 24 H. 8. 27 H. 8. but the 25 H. 8. cap. 14. was not repâ—aled being repealed before by 〈◊〉 1 Ed. 6. yet in the end of that long Act there is a general Clause sufficient of it self to repeal the Act 25 H. 8. cap. 14. without more then the 1 Eliz. cap. 1. repeals the 1 and 2 P. and M. is repealed except some Branches and in the same Act it is enacted That all other Statutes repealed by the said Act of Repeal 1 and 2 P. and M. and not in this Act specially revived shall remain repealed But the 25 H. 8. cap. 14. was not particularly revived and therefore remains repealed And after the said Statute 1 Eliz. repeals the Act 1 and 2 P. and M. of reviving of three Acts for punishment of Heresyes so that now at
Ayd Hill 6 Jacob. Regis Prohibitions Upon Ashwednesday in Feb. 1606. A great Complaint was made by the President of York to the King That the Judges of the Common-Law had in Contempt of the Kings Command last Term granted 50 or 60 Prohibitions out of the Common-Plâ—as to the President and Councel of York after the 6th of February and named 3 in particular 1. Between Bell and Thawptes 2. Another between Snell and Huâ—t 3. And another in an Information of a Riotous Rescue by English Bill by the Attorney-General against Christopher Dickenson one of the Sheriffs of York and others in rescuing one William Watson out of the Custody of the Deputy of one of the Purseyvants of the said Councel who had Arrested the said Watson by force of a Commission of Rebellion by the said President and Councel awarded Which Prohibition upon the Information was as was said denyed upon a Motion in the Kings-Bench the last Term but granted by Us. And the King sent for me to answer the Complaint and I onely all the rest of the Justices being absent waited upon the King who in the presence of Egerton Lord Chancellor and others of the Privy-Councel rehearsed to me the Complaint aforesaid And I perceived well that the King had thereupon conceived great displeasure against the Judges of the Common-Pleas but chiefly against Me To which I having the Copy of the Complaint sent me by the Lord Treasurer answered in this manner That I had made search in the Office of Prothonotaries of the Common-Pleas and as to the Cases between Bell and Thawpts and Snell and Huet no such could be found but I would not take advantage of a Misprisal And the truth was the 6th of February the Court of Common-Pleas had granted a Prohibition to the President and Councel of York between Lock Plaintiff and Bell and others Defendants and that was a Replevin in English was granted by the said President and Councel which I affirmed was utterly against Law for at Common-Law no Replevin ought to be made but by Original Writ directed to the Sheriff and the Statute of Marlbridge cap. 21. and West 1. cap. 17. authorize the Sheriff to make a Replevin So 29 Ed. 3. 21. 8 Eliz. Dyer 245. And the King by his Instructions neither had made the President and Councel Sheriffs nor could grant them Power to make a Replevin against Law which the Lord Chancellor affirmed for very good Law and it may well be we have granted others in the like Case Another Prohibition I confess we have granted between Sir Bethel Knight now Sheriff of the County of York as Executor to one Stephenson who made him and another his Executors and preferred an English Bill against Chambers and others in nature of an Action of the Case upon a Trover and Conversion of Goods and Chattels in the Testators Life to the value of 1000 l. And because the other Executor would not joyn with him he had no remedy at Common-Law but was forced to pray remedy there in Equity And I say the President and Councel have not any Authority to proceed in that Case for divers causes 1. Because there is an express Limitation in their Commission that they shall not hold Plea between Party and Party c. unless both or one of the Parties tanta paupertate sunt gravati that they cannot sue at Common-Law and in that Case the Plaintiff was a Knight Sheriff and man of great quality 2. Because by that Suit the King was deceived of his Fine which was 200 l. because the Damages amounted to 4000 l. And that was one of the Causes that the Sheriff began his Suit there and not at Common-Law Another Cause was that their Decrees which they take upon them are final and uncontroulable either by Errour or any other Remedy which is not so in the Kings Courts where there are five Judges for they can deny Justice to none who hath Right nor give any Judgment but what is controulable by Errouâ— c. And if we shall not grant Prohibitions in Cases where they hold Plea without Authority then the Subjects shall be wrongfully oppressed without Law and we denyed to do them Justice And their Ignorance in the Law appeared by allowing that Suit viz. That the one Executor had no Remedy at Common Law because the other would not joyn in Suit with him whereas every one Learnâ—d in the Law knows that Summons and Severance lyeth in any Suit brought as Executors And this was also affirmed by the Lord Chancellor Another Prohibition I confess we granted between the L. Wharton who by English Bill before the Councel sued Bank S. Buttermere and others for fishing in his several Fishings in Darwent in the County of C. in nature of an Action of Trespass at Common-Law to his Damages of 200 l. and for the Causes before recited and because the same was meerly determinable at Common-Law we granted a Prohibition And that also was allowed by the Lord Chancellor Then the King asked me the Case of Information upon the Riotous Rescous To which I answered That one exhibited a Bill there in the nature of an Action of Debt upon a Mutuatus against Watson who upon his Oath affirmed that he had satisfied the Plaintiff and owed him nothing yet because he did not deny the Debt the Councel Decreed the same against him And upon that Decree the Pursuyvant was sent to Arrest the said Watson who Arrested him upon which the Rescous was made And because the Action was in the nature of an Action of Dâ—bâ— upon a Mutuatus where the Defendant at Common Law might have waged his Law the Prohibition was granted and that was also affirmed by the Lord Chancellor Also I affirmed it was Rescous because the principal cause belonged not to them but it might be a Riot yet not punishable by them but by course of Law by a Commission of Oyer and Terminer Also I confess that we have granted divers Prohibitions to stay Suits there by English Bill upon penal Statutes for the manner of prosecution as well for the Action Process c. as for the Count is to be pursued and cannot be altered and therefore without question the Councel in such Cases cannot hold Plea which was affirmed also by the Lord Chancellor And I said no Court of Equity can be Erected at this day without Act of Parl as was Resolved in Q. Eliz. time in Parots Case and lately in the Case of the President and Councel of Wales And the King was well satisfied with these Reasons who gave me his Royal Hand and I departed from thence in his favour Pasch 7 Jac. Regis This Term a Question was moved at Sergeants Inne who by the Common-Law ought to repair the Bridges common Rivers and Sewers and the High-ways and by what means they shall be compelled to it and first of Bridges And as to them it is to be known that of common right all the Country shall be
holden That if one were to sit in the Chancel and hath there a place his Carpet Livery and Cushion the Parson cannot claim them as Oblations for that they were hanged there in honour of the Deceased the same Reason of a Coat-Armour c. And the Chief Justice said the Lady might have a good Action during her Life in the Case aforesaid because she caused the things to he set up there and after her death the Heir shall have his Action they being in the nature of Hire-looms which belong to the Heir And with this agrees the Laws of other Nations Bartho Cassanâ—us sol 13. Coâ—cl 29. Actioâ— dat si aliquis arma in aliquo loco posita deleat aut abrasit c. and in 21 Ed. 3. 48. in the Bishop of Carlisle's Case Note That in Easter Term 10 Jacob. it was Resolved in the Star-Chamber in the Case between Hussâ—y and Katharine Leyton that if a man have a house in any Parish and that he and all those whose Estate he hath have used to have a certain Pew in the Church that if the Ordinary will displace him he shall have a Prohibition but where there is no such Prescription the Ordinary shall dispose of common and vulgar Seats Earl of Shrewes buryes Case Sir Humphry Winch Sir James Ley Sir Anthony St. Leger and Sir James Hullesâ—on certified the Lords of the Councel by Command from them by Letters dated 28. Martii 1612. of the Claim of Gilbert Earl of Shrewesbury to the Earldome of Waterford and Barony of Dungarvan in Ireland as followeth King Henry the Sixth by Letters-Patents in the 20th year of his Reign did Grant to his Cosin John Earl of Shrewsbury in consideration of his Loyal Services in the City and County of Waterford pro se c. ipsum in Comitem Waterford una cum stilo et titulo ac nomine ac honore eisdem debitis ordinamus creamus habendum to the said Earl and his Heirs-males of his Body and further did Grant the Castles Lordships c. of Dungarvan to the said Earl and the Heirs-males of his Body To hold c. of the King and his Heirs by Homage and Fealty and by the Service of being his Majesties Seneschal in Ireland After in the Parliament called Des Absentees holden at Dublin in Ireland 10. Maii 28 H. 8. It was enacted by reason of the long absence of George Earl of Shrewesbury out of the said Realm That the King his Heirs c. shall enjoy in right of his Crown of England all Honors Mannors Castles c. and all and singular possessions c. as well Spiritual as Temporal which the said George Earl of Shrewesbury and VVaterford or any other Persons had to his Use c. King Henry the 8th by his Letters Patents dated 29th of his Reign reciting the said Statute Nos praemissa Considerantes c. did Grant to the said Earl and his Heirs the Abbey of Rufford with the Lands thereunto c. in the County of Nottingham and the Lordship of Rotheram in the County of York the Abbeys of Chestersteld Shirbrook and Glossaâ—dale in Derbyshire with divers other Lands c. to be holden in Capite And the Questions were as followeth 1. Whether by the long absence of the Earl of Shrewsbury out of Ireland the Title of the Honor be lost and forfeited he being a Peer of both Realms and refiding here in England 2. Whether by the Act Des absentâ—es 28 H. 8. the Title of Dignity of Earl of VVaterford be taken from the said Earl as well as the Land c. Afterwards by other Letters Patents dated 27th of Sept. 1612. the two Chief Justices and Chief Baron were required to consider of the Case and to certifie their Opinions which Case being argued by Councel learned in the Law in behalf the said Earl and they having taken great advisement It was unanimously Resolved by them all as followeth 1. As to the fiâ—st Resolved That since it does not appear what defence was requisite and that the Consideration Executory was not found by Office to be broken in that Point the said Earl of Shrewsbury notwithstanding does remain Earl of Waterford 2. As to the second It was Resolved That the said Act 28 H. 8. Des Absenteâ—s does not onely take away the Possessions given him at his Creation but also the Dignity it self for though one may have a Dignity without Possession yet is it very inconvenient that Dignity should be cloathed with Poverty and so it was resolved in the Lord Ogles Case in Edw. 6. Reign as the Baron of Burleigh 35 Elâ—z did report The cause of Degradation of George Nevil Duke of Bedford is worth observation which was done by Act of Parliament 16 June 17 Ed. 4. which Act reciting the making the said George Duke sets forth the cause of his Degradation in these words And for so much as it is openly known that the said George hath not or by Inheritance may have any livelyhood to support the said Name Estate and Dignity c. Therefore the King by Advice of his Lords Spiritual and Temporal and Commons c. Enacteth c. That from henceforth the same Creation of the said Duke and all Names of Dignity given to the said George or to John Nevil his Father be void and of none effect Wherein are to be observed 1. That though the Duke had not Possessions to maintain his Dignity yet it could not be taken from him but by Act of Parliament 2. Great Inconveniencies follow where there is great State and Dignity and no means to maintain it 3. It is good reason to take away such Dignity by Act of Parliament and then the Act shall be expounded to take away such Inconvenience And though the Earl of Shrewsbury be of great Honour Vertue and Possessions in England yet it was not the Intention of the Act to continue him Earl in Ireland when his Possessions there were taken away And where it was objected that the general words Honours and Hereditaments are explained and qualified by the said Relative subsequent which the said George or any to his use hath Now in regard no man can be seized of the said Digniâ—y therefore the Act doth not extend to it 'T is answered that is to be understood Reddendo singula singulis and these words which the said G. E. hath are sufficient to pass the Dignity and with this agrees all the Judges Opinions in England in Nevils Case upon the like in the Statute 28 H. 8. in 7th Part of my Reports sol 33 and 34. Hill 2 Jacob. Regis Jurisdiction of the Court of Common-Pleas In the last Term by the King's Commands the Justices of the Kings Bench and Barons of the Exchequer were assembled before the Lord Chancellor Ellesmere at York-house to deliver their Opinion Whether there was any Authority in our Books that the Justices of the Common-Bench may grant Prohibitions or whether every Plea ought to be pending
in the Court for such cause And the King would know their Opinions The Judges took time till this Term and then Fleming Chief Justice Tanfield Chief Baron Saig Altham Crook Bromley and Dodderidge Yelverton and Williams Justices being dead since last Term did deliver their Opinions to the Lord Chancellor That the Presidents of each Court are sufficient Warrant for their Proceedings in the same Court and for a long time and in many Successions of Reverend Judges Prohibitions upon Information without any other Plea pending have been granted Issues tryed Verdicts and Judgments given upon Demurrer All which being in force they unanimously agreed to give no Opinion against the Jurisdiction of the Common-Bench in this Case See my Treatise of the Jurisdiction of the Common-Bench in this Point Hill 10 Jac. Regis Parliament in Ireland The Lords of the Councel did write to the two Chief Justices and Chief Baron to look into Poynings Act made 10 H. 7. in Ireland and to consider thereof and certifie what shall be fit to be held concerning the same their Letter bore date Ultimo Janii 1612. Upon which in this Term the said Chief Justices Chief Baron Attorney and Sollicitor General were assembled two days at Sergeants Inne And they considered not onely of the said Act 10 H. 7. c. 4. called Poynings Act but also of an Act made in Ireland 3 4 P. M. c. 4. Entituled An Act declaring how Poynings Act shall be expounded and taken for by the said Act 10 H. 7. it is provided That no Parliament be hereafter holden in Ireland but when the Kings Lieutenant and Councell there first certifie the King under the Great Seal of that Land the causes c. and such causes c. affirmed by the King and his Councel to be good and expedient for the Land and his Licence thereupon c. A Parliament to be holden after the former before c. And any Parliament holden contrary c. to be void in Law Upon which Act divers Doubts were conceived 1. And first Whether the said Act 10 H. 7. does extend to the Successors of H. 7. the Act speaking onely of the King generally and not his Successors 2. If the Queen Mary were within the word King and both were held affirmatively for the word King being spoke indefinitely does extend in Law to all his Successors And this is so expounded by the Act 3 and 4 P. and M. viz. That the said Act 10 H. 7. shall extend to the King and Queens Majesty her Heirs and Successors Secondly where Povnings Act sayes the Kings Lieutenant and Councel the said Act 3 and 4 P. and M. explains it to extend to all other Officers the King shall Depute by what Name soever 3. The greatest Doubt was upon these words of Poynings Act And such Causes Considerations and Acts affirmed by the King and his Councel to be good and expedient for the Land c. Whether the King may make any change or alteration of the Causes c. which shall be transmitted hither from the Lieutenant and Councel of Ireland for that it is not affirmative but correction and alteration of them and therefore it was necessary to explain that the Act 3 and 4 P. and M. was in these words Either for the passing of the said Acts and in such form and tenor as they should be sent into England or else for the change or alteration of them or any part of them 4. Another Doubt arose from these words That dâ—ne a Parliament to be had If at the same Parl. other Acts which have been affirmed or altered here may be Enacted there which is explained by the said last Act in these words viz. For passing and agreeing upon such Acts and no others as shall be returned c. 5. A fifth Doubt arose from the same words Whether the Lieutenant and Councel of Ireland after the Parliament begun and pendente Parliamento may upon debate there transmit any other Considerations c. the which said Act 3 and 4 P. and M. is by express words explained they may And it was unanimously Resolved That the Causes Considerations and Acts transmitted hither under the Great Seal of Ireland ought to be kept in the Chancery in England and not be remanded 2. Iâ— they be affirmed they must be transcribed under the Great Seâ—l and so returned into Ireland 3. If the Acts transmitted hither be in any part altered or changed here the Act so altered must forthwith be returned under the Great Seal of England for the Transcript under the Irish Great Seal to remain in Chancery here shall not be amended but the Amendment shall be under the English Great Seal See 10 H. 6. 8. which begins Mich. 18 H. 6. Rot. 46. coram Rege how a Parliament was holden there before Poynings Act. See also another Act made in Ireland the same 10 H. 7. c. 22. vide R. 3. 12. Hibernia habet Parliamenta faciunt leges nostra statuta non ligant â—os quia non mittunt milites ad Parliamentum sed personae coâ—um sunt subjecti Regis sicut inhabitantâ—s Calinae Gascogniae Guienae But question is made of this in some of our Books vid. 20 H. 6. 8. 32 H 6 25. 1 H. 7. 3. 8 H. 7. 10. 8 R. 2. Precess 204. 13 Ed. 2. Tit. Bastard 11 H. 47. 7 Ed. 4. 27. Plow Comment 368. 13 Eliz. Dyer 35. 2 Eliz. Dyer 366. Calvins Case 7th of my Reports 226. 14 Ed. 3. 184. A Prâ—bend in England made Bishop of Dublin in Ireland his Prebendary is voâ—d See the Sâ—atute of Ireland c. That the Acts of Parliament made in England since the 10 H. 7. do not hind them in Ireland but all made in England before the 10 H. 7. by the Act made in Ireland 10 H. 7. c. 22. do bind them in Ireland Note Cambden King at Arms told me that some held if a Baron dyes having Issue divers Daughters the King confer the Dignity to him who marryes any of them as hath been done in divers Cases viz. In the case of the Lord Cromwel who had Issue divers Daughters And the King did confer the Dignity upon Burchier who marryed the youngest Daughter and he was called Cromwel and so in other Cases Note by Linwood it appears by the Canons Ecclesiastick none may exercise Ecclesiastick Jurisdiction unless he be within the Orders of the Church because none may pronounce Excommunication but a Spiritual Person But now by the 37 H. 8. c. 17. a Doctor of Law or Register though a Lay-man may execute Ecclesiastical Jurisdiction No Ecclesiastical may cite a Church-Warden to the Court but so as he may return home the same day Also the Canons limit how many Courts Ex Officio they may have in a year Mich. 11 Jac. Regis Note If a man give to one of his Children a certain sum in his life and after dyes though this is not given as a Child 's full Portion yet it