to receive no reward Sixtly to take no Fee of any other then the King Seventhly to commit such as breake the peace in the face of Iustice Eightly not to mantayne any suite Ninthly not to deny Iustice notwithstanding the Kings Letters or Commandements and in that Case to certifie the King of the truth Tenthly by reasonable wages to procure the profits of the Crowne Eleventhly if he be found in default in any the matters aforesaid to bee in the Kings mercie body Lands and goods The second reason principally moveth from the following particulars In the Kings Bench the Major-part of the Iudges denyed his Majesties writ of prohibition to the late Court called the high Commission in a cause meerely temporall The foure Courts of Iustice durst not proceede in any cause depending before the chiefe Governor or at the Counsell-board upon paper petitions or rather voyde petitions these paper-petitions being the oblique lines aforesaid grave Iudges of the law were commonly assistants and more commonly referrees in the proceedings upon these paper-petitions in what causes in all causes proper for the Cognizance of the Common-law and determinable by writs of right and petitions of right and so to the most inferior action the like of the Courts of equitie whether this be lawfully to serve the King and his people or whether the King was at losse by the non-prosecuting of the causes aforesaid in their proper orbes by originall writs which might afford the King a lawfull revenue and likewise by the losse of fines and amerciaments naturall to actions at the Common-law or whether the losse aforesaid was made knowne to his Majestie or who consented to the Kings damage therein or whether this be a denyall of justice to deferre it upon paper Orders or Commaunds be conformable to that Oath I will pretermit yet your Lordships may even in this mist discerne a cleere ground for the second question The motive which in part stirred the third and fourth questions was the infinity of Civill causes of all natures without exception of persons without limitation of time proceeded in ordered decreed and determined upon paper-petitions at Counsell-board by the chiefe Governor alone The Commons of this kingdome observing the Iudges of the law who were Counsellors of estate to have agreed and signed unto such Orders the Iudges of the foure Courts and Iustices of Assize in all the partes of the kingdome to bee referrees upon such proceedings wherby these new devises were become so notorious that as all men heavily groaned under them so no man could bee ignorant of them By the colour of Proclamations more more frequent and of the Orders and Acts of state at Counsell-board which were in a manner infinite and other proceedings mentioned in these questions these effects were produced First imprisonment close imprisonment of such numbers that a great defeate in a battle could hardly fill more gaoles and prisons then by these meanes were surcharged in Ireland Secondly by seizures made by crewes of Catchpoles and Caterpillers his Majesties Leige people lost their goods as if lost in a battaile nay worse without hope of ransome Thirdly possessions were altered and that so often and so many that more possessions were lost by these courses in a few yeares then in all the Courts of Iustice in Ireland in an age or two The fourth effect was this after liberty was taken away propertie altered and possession lost by the wayes aforesaid that was not sufficient the subject must be pillored papered stigmatized and the image of God so defaced with indignities that his life became a continuing death the worse of punishments in these feates were advising and concurring some grave and learned Iudges of the Land who were Counsellors of estate as by their signatures may appeare The house of Commons finding as yet no warrant of president nor countenance of example in the law of England to beare up the courses aforesaid have drawne the said Questions from the effects aforesaid My Lords the liberty estate in lands or goods the person of the subject nay his honor and spirit being invaded altered and debased in manner aforesaid there remayned yet one thing his Life See how this is brought into play nothing must escape were not the Gates of Ianus shut up was not the Kings peace universall in his three kingdomes when a Peere of this Realme a Counsellor of the Kings a great Officer of state was sentenced to be shot to death in a Court Marshall what the cause was what defence was permitted what time given and what losse sustayned I submit to your Lordships as therein most neerely concerned were not others actually executed by Marshall law at such time as the Kings Iustice in his Courts of law was not to be avoyded by any person whatsoever This was in part the ground of the eight question This question is plaine a late introduced practise here contrary to former use and no appearing president to warrant such prosecution for a voluntary Oath and the great benefit and quiet accrewed to his Majesties people by arbiterments conceived by consent of parties hath in part occasioned this question Heretofore this Confession was not required for the Iustnesse of the Iudgements was then able enough to beare them up and if the judgement in some Case had beene otherwise what force can the confession of a delinquent add to a Iudiciall act this is part of the reason for this question A complaint exhibited in the house of Commons touching the denyall of the Copy of a Record which the complaynant undertooke to Iustifie in part raised this question In King Iames his time by an order conceived in the Court of Exchequer upon great debate and warranted by ancient presidents the respite of homage was reduced to a certaintie viz. two shillings sixe pence sterling For a Mannor yearly and so for Townes and other portions of Land this course was alwayes held untill now of late the respite is arbitrarily raysed as appeares by the second remembrances certificate viz. I finde that anciently before the beginning of King Iames his raigne every Mannor payed three shillings foure pence Irish per annum every Towne-land twentie pence Irish per à nnum as a fine for respite of homage but cannot finde any order or warrant for it untill the fifth yeare of the said Kings raigne and there in Easter Terme 1607. I finde an order entred directing what homage every man should pay a Copy whereof you have already from mee the preamble of which orders sheweth that that matter had beene long depending in the Court undecided which induceth me to beleeve that there was no former president or order in it About three yeares after the freeholders of the Countie of Antrim as it should seeme finding this rate to be too heavy for them they petitioned to the Lord Chichester then Lord Deputy for reliefe therein I finde his Lordships opinion to the
Common-wealth And they say that the matter manner restrictions limitations reservations and other clauses contayned in such grants or licences and the Commissions or Proclamations thereupon and undue execution thereof and severall circumstances may make the same lawfull or unlawfull whereof they are not able to give any certayne resolution before some particular commes in judgement before them neyther are they otherwise able to answer the generall in the particulars of the said question of what in what cases how where and by whom or which of them wherein whosoever desireth further satisfaction he may please to have recourse unto the knowne cases of Monoplies Printed authorities and written Reports and unto the statute of 21. Ia. in England concerning Monopolies and the severall exceptions and limitations therein 6. To the sixt they say they can no otherwise answer then they have already in their answer to the third question for the reasons therein setforth 7. To the seventh they say that a Proclamation or act of State cannot alter the common-law and yet Proclamations are acts of his Majesties prerogative and are and alwayes have beene of great use and that the contemners of such of them as are not against the law are and by the constant practise of the Star-chamber in England have beene punished according the nature of the contempt and course of the said Court and although acts of State are not of force to bind the goods possessions or inheritance of the subject yet they have beene of great use for the setling of the estates of very many subjects in this kingdome as may appeare in the Report of the case of Irish gavelkind in Print And further to that question they cannot answer for the reasons in their answer unto the third question set forth 8. To the eight they say that they know no ordinary rule of law by which the subjects of this kingdome are made subject to Marshall-law in time of peace and that they find the use thereof in time of peace in England complayned off in the petition of right exhibited to his Majestie in the third yeare of his raigne And that they conceive the granting of authority and Commission for execution thereof is derived out of his Majesties Regall and prerogative power for suppressing of suddaine and great insolencies and insurrections among armies or multitudes of armed men lawfully or unlawfully convented together the right use wherof in all times hath beene found most necessary in this kingdome And further to that question they cannot answer for that as they conceive it doth concerne his Majesties Regall power and that the answering of the other part of the question doth properly belong to another profession whereof they have no Cognizance 9. To the ninth they say that as the taking of any Oath before any but such Iudges or persons as have power to give or demaund an Oath for decision of controversies is by most Divinâ— in most cases counted to be a rash Oath and so an offence against God within the third Commandement so the prescribing and demaunding of a set Oath by any that cannot derive power so to doe from the Crowne where the fountaine of Iustice under God doth reside is an offence against the law of the Land and as for voluntary and extra judiciall Oathes although freely taken before arbitrators or others they say as this kingdome is composed in many particulars as the nature consequence of the cause or the quality of the person who taketh or before whom the same is taken may concerne the Common-wealth or the members therof such taking of such Oathes or proceeding or grounding on such Oath in deciding of controversies according to the severall circumstances that may occurre therein or the prejudice it may introduce to the Common-wealth may be punishable by the Common-law or if it grow unto an height or generall inconvenience to the common-wealth or members thereof in the Castle-chamber For though such an Oath be voluntary yet in most cases it is received by him that doth intend to ground his Iudgment thereon and after the Oath is taken the arbitrator or he that intends to yeeld faith to the party that tooke the Oath doth examine him upon one or more questions upon the said Oath unto the answer whereof hee doth give faith and assent trusting on the said Oath And whereas Oathes by Gods institution were chiefly allowed to bee taken before lawfull Magistrates for ending of controversies yet common experience doth teach in this kingdome that oftentimes orders and acts grounded on such voluntary Oathes beget strife and suits and commonly such orders when they come to bee measured by rules of law or equitie in the Kings Courts become voyde after much expence of time and charge that we say nothing of that that thereby many causes proper to the Kings Courts are drawn ad aliud examen and thereby the Kings justice and Courts often defrauded and declined 10. To the tenth they say that they are not Iudges of rules of policie but of law and that they know no certayne rule of law concerning reducement of fines The same being matters of his Majesties own meere Grace after a man is censured for any offence And that they know no law that none shall be admitted to reducement of his fines or other penalties in the Courts in the question specified untill he confesse the fact for which he was censured But forasmuch as the admittance to a reducement after conviction for an offence is matter of Grace and not Iustice It hath beene the constant course of these Courts both here and in England for cleering of his Majesties justice where the partie will not goe about to cleere himselfe by reversall of the censure or decree not to admit him to that grace untill he hath confessed the justnesse of the sentence pronounced by the Court against him And that the rather for that commonly the ability and disabilitie of the partie doth not appeare in judgement before them but the nature and circumstances of the offence according to which they give sentence against him or them in terrorem after which when the partie shall make the weaknesse of his estate appeare or that the Court is otherwise ascerteyned that they doe of course proportion the censure or penaltie having regard to his estate 11. To the eleventh they say That neither the Iudges of the Kings Bench as they informe us that are of that Court or Iustices of Gaole delivery or of any other Court doe or can by any law they know deny the copies of Indictments of Felony or Treason to the partie only accused as by the said question is demanded 12. To the twelfth they say that where lands are holden of the King by the Knights service in Capite the tenant by the strict course of Law ought in person to doe his homage to the King and untill he hath done his homage the ancient course of the Exchequer hath beene yet is to issue
processe of distringas out of the second remembrance Office to distrayne the tenants ad faciendum homagium or pro homagio suo respectuaÌ„do upon which processe the Shiriffes returneth issues And if the Tenant doe not therupon appeare and compound with the King to give a fine for respite of homage then the issues are forfeyted to the King for his contempt but if he appeare then the Court of Exchequer doth agree with him to respite his homage for a small fine wherein they regulate themselves under the rate expressed and set downe in England by vertue of a privie Scale in the 15. yeare of Queene Elizabeth whereby the rates are particularly set downe according to the yearely value of the Lands which rates are confirmed by act of Parliament in 1. Iacob Regis cap. 26. in England before which time there was not any such certayntie but the same rested in the discretion of the Court by the rule of Common-law and so it doth at this day in Ireland howbeit we conceive that the Court of Exchequer here doe well to regulate their discretions by those rates in England and rather to be under then to exceede the same which the Barons there doe as they doe informe us that are Iudges of the other Courts 13. To the 13. they say that they know no rule of Law or statute by which it should be ceÌ„surable in the subjects of this kingdome to repayre into England to appeale unto his Majesty for redresse of injuries or for other their lawfull occasions unles they be prohibited by his Majesties writ or proclamation or other his Command But they find that by the statute of 5. Rich. 2. the passage of the subject out of the Realme is prohibited without speciall licence excepting Noblemen others in the said statute specially excepted some inference to that purpose may be made upon the statute of 25. Hen 6 cap. 2. in this kingdome 14. To the 14. they say that some Deanries dignities not Deanes or dignitaries as the question propounds it are properly de mero jure donative by the King some Elective some Collative according to the first foundation usuage of such Churches they humbly desire that they may not be required to give any further answer to this question for that it may concerne many mens estates which may come judcially in question before them 15. To the 15. they say that they conceive that where priviledges are claymed by any body politicke or other the Kings Counsell may exhibite à quo-warranto to cause the parties clayming such priviledges to shew by what warrant they clayme the same that the Court cannot hinder the issuing of processe at the instance of the Kings Atturney or hinder the Kings Atturney to exhibite such informations But when the case shall upon the proceedings be brought to judgment then not before the Court is to take notice and give judgâ—ment upon the merite circuÌ„stances of the cause as upon due consideration shal be conceived to be according to law in which case the Iudges or the Kings Atturney as they conceive ought not to be punished by any ordinary rule of law or statute that they know But for the particular case of Quo-warranto for that it hath beene a great question in this present Parliament so concernes the highest Court of justice in this kingdome also concernes two other of his Majesties Courts of justice therin his Majesties prerogative in those Courts they say that they cannot safely deliver any opinion therein before it comes judicially before them and that they heare it argued and debated by learned Counsell on both sides 16. To the sixteenth they say that although the Iurors be sole Iudges of the matter of fact yet the Iudges of the Court are Iudges of the validitie of the evidence and of the matters of law arising out of the same wherein the Iury ought to be guided by them And if the Iury in any criminall cause betweene the King and party give their verdict contrary to cleere and apparent evidence delivered in Court they have beene constantly and still ought to be censured in the Star-chamber in England and Castle-chamber here for this misdemeanor in perverting the right course of justice in such fines and other punishment as the merites circumstances of the cause doth deserve according to the course of the said Courts for that their consciences ought to be directed by the evidence and not to bee misguided by their wills or affections And if the Iury know any matter of fact which may eyther better or blemish their evidence they may take advantage thereof but they ought to discover the same to the Iudges And they say that this proceeding in the Court of Castle-chamber is out of the same grounds that writs of attaint are against a Iury that gives a false verdict in a Court of Record at the Common-law betwixt partie and partie which false verdict being found by a Iury of twenty foure notwithstanding that the first Iurie were Iudges of the fact yet that infamous judgement was pronounced against the first Iury which is next or rather worse then judgment to death and did lay a perpetuall brand of perjury upon them for which reason it was anciently called the villanous judgement and they say that the law to direct the punishment for such offences is the course of the said Court which is a law as to that purpose the statute of 3. Henr. 7. cap. 1. and other statutes in force in this kingdome 17. To the seventeenth they say they can answer no otherwise then they have in their answer to the next precedent question 18. To the eighteenth they say that in a Legall construction the statute of Magna Charta in which the words Salvo contenemento are mentioned is only to be understood of amerciaments not of fines yet where great fines are imposed in terrorem upon the reducement of them regard is to be had to the abilitie of the persons 19. To the nineteenth they say that if one doth steale a sheepe or commit any other felony and after flyeth the course of justice or lyeth in woods or mountaynes upon his keeping yet doth he not thereby become a Traytor neyther doth a Proclamation make him so the chiefe use whereof in such a Case is to invite the partie so standing out to submit himselfe to justice or to forewarne others of the danger they may runne into by keeping him company or giving him mayntenance and reliefe whereby he may the rather submit to Iustice 20. To the twentieth they say that the testimony of Rebels or Traytors under protection of Theeves or other infamous persons is not to bee used or pressed as convincing evidence upon the tryall of any man for his life and so is his Majesties printed instructions as to persons condemned or under protectioÌ„ yet the testimony of such persons not condemned being fortified with other concurring
or penaltie upon the libertie goods or lands of him that would bring an assize of Daren presentment for a prebendary I doe finde that a provision was made in haec verba Promissum est à Consilio Regis quod nullus de potestate Regis Franciae respondeat in Anglia antequam Anglici de jure suo in terra Regis Franciae c. Yet by that provision no forfeyture upon the lands or goods of him who sued a Frenchman in England at that time It is true that a Custome may bee contrary to the law and yet allowable because that it may have a lawfull commencement and continuall usage hath given it the force of a law Consuetudo ex certa rationabili causa vsitata privat communem legem but no proclamation or act of state may alter law For example sake at Common-law a Proclamation cannot make lands devisable which are not devisable by the law nor alter the course of descent The King by his Letters-patents cannot doe the same nor grant lands to bee ancient demesne at this day nor make lands to be descendible according the course of Gavelkind or Borrough English unlesse that the custome of the place doth warrant the same nor Gavelkind land to be descendible according the course of law à fortiori an act of state or proclamation which I hold to bee of lesse force then the Kings patent under the great Seale cannot doe it And in the case of Irish Gavelkind it is not the proclamation or act of state that did abolish or alter it but the very custome was held to be unreasonable and repugnant to law If an act of state bee made that none within the kingdome shall make Cards but Iohn at Stile this act is voyde for the King himselfe cannot grant a Patent under his great Seale to any one man for the sole feazance of Cards So it is of all proclamations or acts of state that are to the prejudice of Trafficke trade or Merchant affaires or for raysing of Monopolies or against the freedome and libertie of the subjects or the publicke good as I said before Also if proclamations or acts of state may alter the law or bind the libertie goods or lands of the subjects then will acts of Parliaments bee to no purpose which doe represent the whole body of the kingdome and are commonly for creating of good and wholesome lawes Therefore I conceive that all proclamations made against law are absolutely voyde and that the infringers thereof ought not to loose or forfeyte their liberty goods or lands And for the punishment of such Iudges that vote herein I referre to the sixt they deny to answer to this question This answer is generall and dangerous withall it is generall viz. they know no ordinary rule of law for it they ought to declare the law against it the right use of it here they commend and yet they doe not describe that right use therefore they commend two things the one the life of a subject to be left to Marshall law in time of peace the other they leave it likewise discretionary when they describe not the right use their last resort is to the Kings prerogative I have said before that Lawyers write the King can doe no wrong and sure I am our King meanes no wrong the Kings of England did never make use of their prerogative to the destruction of the subject nor to take away his life nor libertie but by lawfull meanes I conceive this advise should become the Iudges other advise they find not in their law Bookes The statute of Magna Charta cap. 29. and 5. Edw. 3. cap. 9. the petition of right the third of King Charles in full Parliament declared Tell them nay doe convince them that no man in time of peace can bee executed by Marshall law My Lords I could wish the Iudges had timely stood in the right opposition to the drawing of causes proper for the Kings Courts to an aliud examen the improper and unlawfull examen thereof on paper petitions whereby the Kings Iustice and Courts were most defrauded whereas an arbitrement being a principall meane to compose differences arising betweene neighbours and to settle amitie betweene them without expence of time or money was a course approved by law all our Bookes are full of this It is by consent of parties by arbitrators indifferently chosen bonds for performance thereof are not voyde in law and Iudgements given upon arbitrements and such bonds in our Bookes without question or contradiction to the lawfullnesse of an arbitrement or bond in proper Cases the principall good wrought by them was the hindering of suites debates at law therfore that exception fals of it selfe then I am to consider how far an Oath in the particular is punishable I will not speake of an Oath exacted or tendered that is not the question the question is of a voluntary Oath which the arbitrator cannot hinder I speake not to the commendation of any such Oath nor doe I approve of any Oath other then that which is taken before a Magistrate who derives his authoritie from the King the fountaine of Iustice but onely how farre this Oath is punishable by the late statute 10. Caroli fol. 109. a prophane Oath is punished by the payment of twelve pence no more vide stat of Marl. cap 23. 52. Hen. 3. viz. Nullus de caetero possit distringere liber ' tenentes suos c. nec jurare faciat libere tenentes suos contra voluntatem suam quia nullus facere potest sine praecepto Domini Regis which statute teacheth us that an exacted or compulsive Oath is by the Kings authority a voluntarie Oath is not reprehended 19. Edw. 4. 1. a. It was not reprehended in the case of an arbitrement this voluntarie Oath is punishable in the Star-chamber as the Iudges would affirme which I conceive to bee against the law First for that wee cannot learne any president in England for it It was but lately introduced here therefore the house of Commons is unsatisfied with the answer to this question in Boyton and Leonards case in the Star-chamber in Ireland Boyton was dismissed in a Case to this purpose about the yeare 1630. or 1631. It hath beene the late introduced course of the Castle-chamber and Councell-table not to admit the party censured to the reducement of his fine before hee acknowledged the justnesse of the sentence pronounced against him and that for divers reasons First the course of a Court being as ancient as the Court and standing with law is Curiae lex as appeareth by our bookes 2. Co. 16. b. Lanes case 17. Long 5. Edw. 4. 1. but if it be a course introduced de novo in mans memorie or a course that is against law it cannot be said to be lex Curiae for consuetudo licet sit magnae authoritatis nunquam tamen praejudicat manifestae veritati
and other penalty in the Castle-chamber or Councell-table untill he confesse the offence for which he is censured when as revera hee might bee innocent thereof though suborned proofes or circumstance might induce a Censure By the lawes and statutes of the Realme no man is bound or ought to be compelled to acknowledg the offence layd to his charge or the justnesse of any censure past against him in the Castle-chamber or at the Councell-table nor ought to bee detayned in prison or abridged of his liberty or the reducement of his fine stayed or delayed untill he doe acknowledge such offence or the iustnesse of such censure And it is further declared that no such inforced or wrested cōfession or acknowledgment can or ought to debarre or hinder any subject from his Bill of reversall or review of any sentence or decree past or conceived against him in the Castle-chamber or in any other Court VVhether the Iudges of the Kings-bench or any other Iudge of Gaole-delivery or of any other Court and by what law doe or can deny the Copies of indictments of felony or treason to the parties accused contrary to the law The Iudges of the Kings-bench or Iustices of Gaole-delivery or the Iudges of any other Court ought not to deny Copies of indictments of felonies or treason to the parties indicted VVhat power hath the Barons of the Court of Exchequer to rayse the respite of homage arbitrarily to what rate they please to what value they may rayse it by what law they may distinguish betweene the respite of homage upon the diversitie of the true value of the Fees when as Escuage is the same for great and small Fees and are proportionable by Parliament The Barons of the Exchequer ought not to rayse the respite of homage above the usuall rates appearing in and by the course and presidents of that Court continued untill the yeare of our Lord God 1637. and the raysing thereof since that time was arbitrary and against the law and the Barons of the Exchequer ought not to distinguish between the respite of homage upon any diversity of the true values of the knights Fees VVhether it be censurable in the subjects of this kingdome to repaire into England to appeale to his Majesty for redresse of injuries or for other lawfull occasions if so why what condition of persons and by what law The subjects of this kingdome may lawfully repayre into England to appeale to his Majesty for redresse of injuries or for other their lawful occasions for their so doing ought not to be punished or questioned upon the statute of 5. of K. Rich. the 2. nor by any other law or statute of force in this kingdome eminent officers ministers of state Commanders souldiers of his Majesties Army The Iudges and ministers of his Majesties Courts of Iustice and of his highnesse Revenue and customes whose attendance is necessary requisite by the lawes statutes of the realme only excepted VVhether Deanes or other dignitaries of Cathedrall Churches be properly and de mero jure donatiue by the King and not Elective or collative if so why and by what law and whether the Confirmation of a Deane de facto of the Bishops grant be good and vallid in law or no if not by what law Deaneries or other Ecclesiasticall dignities of this Realme are not de mero jure donative but some are donative and some elective and some are collative according to their respective foundations and the confirmation of the Bishops grant by a Deane de facto having actually stallum in Choro vocem in Capitulo together with the Chapter is good in law VVhether the issuing of Quo-warrantoes out of the kings-Kings-bench or Exchequer against Borroughs that anciently and recently sent Burgesses to the Parliament to shew cause why they sent Burgesses to the Parliament be legall if not what punishment ought to be inflicted on those that are or hath beene the occasioners procurers and Iudges of and in such Quo-warrantoes The issuing of Quo-warrantoes out of the Court of kings-Kings-bench Court of Exchequer or any other Court against Boroughs that anciently or recently sent Burgesses to the Parliament to shew cause why they sent Burgesses to the Parliament and all the proceedings therein are coram non Iudice illegal and voyde and the right of sending Burgesses to the Parliament is questionable in Parliament onely and the occasioners procurers and Iudges in such Quo-warrantoes and proceedings are punishable as in Parliament shall be thought consonant to law and Iustice By what law are Iurors that give verdict according their conscience and are the sole Iudges of the fact censured in the Castle-chamber in great fines and sometimes pillored with losse of eares boared through the tongue and marked sometimes in the forehead with a hot Iron and other like infamous punishment Iurors are the sole Iudges of the matter in fact and they ought not for giving their verdict to bee bound over to the Court of Castle-chamber by the Iudge or Iudges before whom the verdict was or shall be given By what law are men censurable in the Castle-chamber with the mutillation of members or any other brand of infamy and in what cases and what punishment in each case there is due without respect of the qualitie of the person or persons No man ought to bee censured in the Castle-chamber in the mutillation of members or any other brand of infamy otherwise or in other cases then is expressely limitted by the statutes of this Realme in such cases provided VVhether in the censures in the Castle-chamber regard be to be had to the words of the great Charter viz. Salvo Contenemento c. In the censures of the Castle-chamber especially regard ought to bee had to the words of the great Charter viz. Salvo Contenemento c. VVhether if one that steales a Sheepe or commits any other felony and after slieth the course of Iustice or lieth in woods or mountaines upon his keeping be a Traytor if not whether a proclamation can make him so A Felon who flies the course of Iustice lieth in woods mountaines or elsewhere upon his keeping is no Traytor and a proclamation cannot make him a Traytor VVhether the testimonie or evidence of Rebels Traytors protected Theeves or other infamous persons bee good evidence in law to be pressed upon the tryals of men for their lifes or whether the Iudges or Iurors ought to be Iudge of the matter in fact The testimony of convicted or protected Rebels Traytors or Fellons is no sufficient evidence in law upon the tryall of any person for his life and the credit of the testimony of persons accused or impeached and not convicted of felony or treason ought to be left to the Iury who are sole Iudges of the truth and validity of the said testimony By what law are
and are proportionable by Parliament 13. Whether it be censurable in the Subjects of this kingdome to repaire unto England to appeale to his Majestie for redresse of injuries or for other lawfull occasions if so why and in what condition of persons and by what law 14. Whether Deanes or other dignitaries of Cathedrall Churches be properly and de mero jure Donative by the King and not Elective or Collative if so why by what law whether the confirmation of a Deane de facto of the Bishops grant be good valid in law or no if not by what law 15. Whether the issuing of Quo-warrantoes out of the Kings Bench or Exchequer against Burroughes that anciently and recently sent Burgesses to the Parliament to shew cause why they sent Burgesses to the Parliament be legall or if not what punishment ought to be inflicted upon those that are or hath been the occasioners procurers and Iudges of and in such Quo-warrantoes 16. By what law are Iurors that give verdict according to their conscience and are the sole Iudges of the fact censured in the Castle-Chamber in great fines and sometimes pillored with losse of eares boared through the tongue and marked sometimes in the forehead with a hot iron and other like infamous punishment 17. By what law are men censurable in the Castle-Chamber with the mutillation of members or any other brand of infamy and in what causes and what punishment in each case there is due without respect of the qualitie of the person or persons 18. Whether in the Censures in the Castle-Chamber regard be to be had to the words of the great Charter viz salvo contenemento c 19. Whether if one that steales a sheepe or commit any other felony after flyeth the course of Iustice or lyeth in woods or mountaines upon his keeping be a traytor if not whether a Proclamation can make him so 20. VVhether the testimony or evidence of Rebels Traytors protected theeves or other infamous persons be good evidence in law to bee pressed upon the tryalls of men for their lives or whether the Iudge or Iurors ought to be Iudge of the matter in fact 21. By what law are Fayres and Markets to be held in Capite when no other expresse tenure be mentioned in his Majesties Letter-Pattents or grants of the same Fayres and Markets although the rent or yearely summe be reserved thereout Copia vera Extract per Phil. Fern Cleric Parl. Com. THE ANSWER AND DECLARATION OF THE IVDGES Vnto the questions transmitted from the Honorable House of Commons unto the Lords Spirituall and Temporall in Parliament assembled whereunto they desired their Lordships to require the said Iudges answers in writing forthwith May 25. 1641. IN all humblenesse the said Iudges doe desire to represent unto your Lordships the great sence of griefe that they apprehend out of their feare that they are falne from that good opinion which they desire to retayne with your Lordships and the said house of Commons in that notwithstanding their humble petition and reasons to the contrary exhibited in writing and declared in this most honorable house your Lordships have over-ruled them and often commanded their answers unto the said Questions although they have informed your Lordships and still with assurance doe averre that no president in any age can be shewen that any Iudges before them were required or commanded to give answer in writing or otherwise unto such generall or so many questions in such a manner in Parliament or elsewhere unlesse it were in that time of King Richard the 2d which they humbly conceive is not to be drawne into example And therefore they yet humbly supplicate your Lordships so farre to tender their profession and places and their relation to his Majesties service as to take into your serious considerations the reasons that they have annexed to this their answer before their answer be entred or admitted among the Acts of this high Court and that if your Lordships in your wisdomes shall after thinke fit to give any Copies of their Answers that for their Iustification to the present and succeeding times your Lordships will be pleased to require the Clerke of this most honorable House that no Copies may be given of the said answers without the said reasons 2. Secondly the said Iudges humbly desire your Lordships to be pleased to be informed that the words in his Majesties writs by which they are commanded to attend in Parliament are that the said Iudges shal be present with the Lords-Iustices or other chiefe Governor and your Lordships at the said Parliament called Pro arduis urgentibus regni negotijs super dictis negotijs tractaturi consilium suum impensuri And they desire your Lordships to take into your consideration whether any advice may be required by your Lorpships from them but concerning such particular matters as are in treaty and agitation and judicially depending before your Lordships upon which your Lordships may give a judgement order or sentence to be recorded among the Records and Acts of this honorable House and whether they may be commanded by your Lordships to subscribe their hands unto any opinion or advice they shall give upon any matters in debate before your Lordships there and whether your Lordships can conceive any finall resolution upon the matters contayned in the said Questions 3. Thirdly although the said questions are but twenty two in number yet they say that they contayne at least fifty generall questions many of them of severall matters and of severall natures within the resolution of which most of the great affaires of this kingdome both for Church and Common-wealth for late yeares may be included and therefore the said Iudges do openly aforehand professe that if any particular that may have Relation to any of those questions shall hereafter come judicially before them and that eyther upon argument or debate which is the sive or fann of truth or discovery of any generall inconvenience to the King or Common-wealth in time which is the mother of truth or by further search or information in any particular they shall see cause or receive satisfaction for it they will not be concluded by any answer they now give to any of these generall questions but they will upon better ground and reason with their predecessors the Iudges in all ages with holy Fathers Councels and Parliaments retract and alter their opinion according to their conscience and knowledge and the matter and circumstances of the cause as it shall appeare in judgement before them it being most certayne that no generall case may be so put but a circumstance in the matter or manner may alter a resolution concerning the same 4. Fourthly the succeeding Iudges and age notwithstanding any answer given by the now Iudges may be of another opinion then the now Iudges are without disparagment to themselves or the now Iudges in regard that many particular circumstances in many particular cases may
sine licentia Domini Regis Fitz. Natur. br fol. 85 the words of this writ cleares the Common-law in the point it begins with a datum est nobis intelligi c. The King being informed that such person or persons in particular doe intend to goe whether ad partes exteras viz. foraigne Countries to what purpose to prosecute matters to the prejudice of the King his Crowne the King in such a case by his writ warrant or Command under the great Seale privie Seale privy Signet or by proclamation may command any subject not to depart the kingdome without the Kings licence this writ is worthy to be observed for the causes aforesaid therein expressed the writ extendeth only to particular person or persons not to all the subjects of the kingdome no man can affirme that England is pars extera as to us Ireland is annexed to the Crowne of England and governed by the lawes of England our question set forth the cause viz. to appeale to the King for Iustice or to goe to England for other lawfull causes whereas the said writ intends practises with foraigne Princes to the prejudice of the King and his Crowne At the Common-law if a subject in contempt of this Command went ad partes exteras his Lands and goods ought to be seized 2. 3. Philip Mary Dy. 128. b. and yet if the subject went to the parts beyond the Seas before any such speciall inhibition this was not punishable before the statute of 5. Rich. 2. cap. 2. as appeares 12. 13. Elizab. Dy. 296. a. So that before the inhibition the law was indifferent now the question is at Common-law whether the subject of Ireland having no Office can be hindered to appeale or goe to the King for Iustice The King is the fountaine of Iustice and as his power is great to command so the Scepter of his Iustice is as great nay the Scepter hath the priority if any be for at his Coronation his Scepter is on his right side his Sword on his left side to his Iustice he is sworne therefore if any writ Commandement or proclamation bee obtayned from him or published contrary to his Iustice it is not the act of the King but the act of him that misinformed him then will I adde the other words of the question viz. or other his lawfull occasions as I said before in the case of a writ of error in the Kings Bench of England or in the Parliament of England which are remedies given by the law therefore the Common-law doth not hinder any man to prosecute those remedies which are given to everie subject by the same A scire facias may be brought by the King in England to repeale a patent under the great Seale of Ireland of lands in Ireland 20. Henr. 6. fol. a. An exchange of lands in England for lands in Ireland is a good exchange in law 8. ass placit. 27. 10. Edw. 3. fol. 42. tempor Edw. 1. Fitz voucher 239. What law therefore can prohibit any subject for to attend this scire facias in England or to make use of his freehold got by exchange The law being thus then it was considered what alteration was wrought by one branch of the statute of 5 Rich. 2. cap. 2. by which the passage is stopped out of the kingdome Lords notable Marchants and the Kings souldiers excepted I conceive this statute doth not include Ireland I never heard any Irishman questioned upon this statute for going into England nor any Englishman for comming into Ireland untill the late proclamation by the statute 34. Edw. 3. c. 18. in England all persons which have their heritage or possessions in Ireland may come with their beasts corne c. to and fro paying the Kings dues The statute of 5. Rich. 2. did never intend by implication to avoyde the said expresse statute of Edw. 3. betweene the Kings two kingdomes being governed by one law in effect the same people the words of the statute of 5. Rich. 2. are observable the principall scope of it is against the exportation of Bullion in the later part there is a clause for licences to be had in particular Portes by which I conceive that the Customers of those Portes may grant a let passe in such Cases It is therefore to be considered whether that branch of the said statute of 5. Rich. 2. was received in Ireland I thinke it is cleare it was not for by the statute 10. Henr. 7. cap. 22. in Ireland all the generall statutes of England were received in Ireland with this qualification viz. such as were for the Common and publicke weale c. And surely it cannot be for the weale of this kingdome that the subjects here be stayed from obtayning of Iustice or following other lawfull causes in England The statute of 25. Henr. 6. cap. 2. in Ireland excuseth absentes by the Kings command and imposeth no other penaltie so that upon the whole matter this question is not answered For so much as they doe answer of this question the answer is good for there is no doubt to be made but Deaneries are some donative some elective and some may be presentative according to the respective foundations I will only speake of a Deane de facto if a Deane bee made a Bishop and hath a dispensation Decanatus dignitatem in commenda in the retinere the confirmation of such a Deane is good in law This was the case of Evans and Acough in the Kings Bench in England Ter. 3. Caroli where Doctor Thornbow Deane of Yorke was made Bishop of Limmericke with a dispensation to hold in the retinere after his patent and before consecration it was adjudged his confirmation was good and yet if a Deane be made a Bishop in any part of the world this is a Cession Co. 5. 102. a. VVindsors case Davis Rep. 42. 43. c. The Deane of Fernes his case 18. Elizab. Dy. 346. the confirmation of a meere Laicus being Deane is good though he be after deprived 10. Eliz. Dy. 273. 12. 13. Elizab. Dy. 293. although the Deane be after deprived by sentence declaratorie yet his precedent confirmations are good So I conceive that a Deane who hath stallum in Choro vocem in Capitulo during all the time of his life and never questioned and usually confirmed all Leases without interruption is good And to question all such acts 40. 50. 100. yeares after is without president especially in Ireland untill of late yeares and in this kingdome few or no foundations of Bishopricks or Deaneries can bee found upon any Record therefore I conceive the Iudges ought to answer this part of the question My Lords I know you cannot forget the grounds I layd before for this question nor the time nor the occasion of the issuing of Quo warrantoes nor what was done thereupon in the Court of Exchequer Now remayneth to consider of the answer