in the Star-Chamber upon the Proclamation against Building and that I had given Sentence against the said Proclamation To which I answered That Presidents were to be seen and Considerations to be had upon Conference with my Brethren for Melius est recurrere quam male currere and Indictments conclude contra leges statuta never contra regiam Proclamationem At last my motion was allowed and the Lords appointed the two Chief Justices Chief Baron and Baron Altham to consider of it Note the King by his Proclamation or otherwise cannot change any part of the Common-Law Statute-Law or Customs of the Realm 11 H. 4. 37. Fortescue in laudibus legum Ang. cap. 9. 18 Ed. 4. 35 36 c. 31 H. 8. cap. 8. ubi non est lex ubi non est transgressio ergo That which cannot be punished without Proclamation cannot be punished with it Vide le Stat. 31 H. 8. cap. 8. But if a man be indicted upon a Contempt against a Proclamation he shall be Fined anâ— imprisoned Vide Fortescue cap. 9. 18 34 36 37 c. In all Cases the King out of his Providence and to prevent dangers may prohibite them before which will aggravate the Offence if it be afterwards committed And as it is a Grand Prerogative of the King to make Proclamations 22 H. 8. Procl B. yet we find Presidents of Proclamations utterly against Law and Reason and therefore void For Quae contra rationem Juris introducta sunt non debent trahi in sequentiam An Act made to License Forreiners to Merchandize in London H. 4. by Proclamation prohibited the Execution of it usque ad prox Parliament which was against Law Vide doâ—s claus 8 H. 4. Proc. in London but 9 H. 4. An Act was made That all Irish should depart the Realm before the Feast of the Nativity this only was in terrorem being utterly against Law Hollingshead 772. Anno Dom. 1546. 37 H. 8. The Whorâ—-houses vulgo Stews were suppressed by Proclamation and found of Trumpet In the same Term Râ—solved by the two Chief Justices Chief Baron and Baron Altham upon Conference between the Lords of the Privy-Council and them That the King by his Proclamation cannot create any Offence which was not an Offence before for then he may alter the Law And the Law of England is divided into three parts 1. Common-Law 2. Statute-Law 3. Custom But the Kings Proclamation is none of them Resolved also That he hath no Prerogative but what the Law of the Land allows him but he mry by Proclamation admonish his Subjects that they keep the Laws upon pain to be inflicted by Law c. Lastly If the Offence be not punishable in the Star-Chamber Prohibition by Proclamation cannot make it punishable there And after this Resolution no Proclamation imposing Fine and Imprisonment was made c. Mich. 8 Jac. Regis Prohibitions It was Resolved in this Term That if a man be excommunicated by the Ordinary where he ought not as after a general Pardon c. and the Defendant being Negligent doth not sue a Prohibition but remains excommunicate by 40 dayes and upon Certificate in Canc is taken by the Kings Writ de excommunicato capiendo no Prohibition lies in this Case because he is taken by the Kings Writ Then it was moved what remedy the Party hath who is wrongfully excommunicate to which it was answered he hath three Remedies 1. He may have a Writ out of Chancery to absolve him 14 H. 4. fol. 14. and with this agrees 7 Ed. 4. 14. 2. When he is excommunicate against the Law of this Realm so that he cannot have a Writ de Cauâ—fone admittenda then he ought Parere mandatis Ecclesiae in sorma Juris i. e. Ecclesiastici where in truth it 's Excommunicatio contra jus forman Juris i. e. Communis Juris But if he shew his Cause to the Bishop and Request him to assoyl him either because he was excommunicate after the Offence pardoned or that the Cause did not appear in Ecclesiastical Cognizance and he refuse he may have an Action Sur le Case against the Ordinary and with this agrees Dr. St. lib. 2. cap. 32. fol. 119. 3. If the Party be excommunicate for nonâ—e of the Causes mentioned in the Act 5 Eliz. cap. 23. then he may plead this in the Kings Bench and so avoid the Penalties in the Act. Note It was Resolved by the Court c. That where one is cited before the Dean of the Articles in cause of defamation for calling the Plaintiff Where out of the Diocess of London against the Statute of 23 H. 8. And the Plaintiff hath Sentence and the Defendant is excommunicated and so continues 80 dayes And upon Certificate into the Chancery a Writ of Excommunicato capiendo is granted and the Defendant taken and imprisoned thereby that he shall not have a Prohibition upon the Statute 23 H. 8. for no Writ in the Register extends to it but there is a Writ there called de cautione admittenda when the Defendant is taken by the Kings Writ de excommunicato capiendo de parendo mandatis Ecclesiae and to assoyl and deliver the Defendant But in the Case at Bar it does not appear to us judicially without Information that the Citation is against the forme of the Statute And the Information comes too late in this Case after the Defendant hath persisted so long in his Contumacy and is taken by the Kings Writ and imprisoned Admiralty It was Resolved per totam Curiam That if One be sued in the Admiralty-Court for a thing alledged to be done upon the High-Sea within the Admirals Jurisdiction and the Defendant plead and confess the thing done and after Sentence the Court will be advised to Grant a Prohibition upon surmise That it was done infra corpus comitatus against their own confession unless it can be made appear to the Court by matter in Writing or other good matter that this was done upon the Land for otherwise every one will stay till after Sentence and then for vexation only sue out a Prohibition And admonition was given to them that sue out Prohibitions That they should not keep them long in their Hands or untill they perceive they cannot prevail in the Ecclesiastical Court then to cast in their Prohibition for if they abuse that liberty to the vexation of the Party we will take such order as in case of a Writ of Priviledge if the Defendant keep it till the Jurors are ready c. it shall not be allowed Hill 8 Jacob. Regis In this Term in Doctor Trevor's Case who was Chancellor of a Bishop in Wales It was Resolved That the Office of a Chancellor and Register c. in Ecclesiastical Courts are within the Statute 5 Ed. 6. cap. 16. which Act being made for avoiding corruption of Officers c. and advancement of worthy Persons shall be expounded most beneficially to suppress Corruption And because the Law allows Ecclesiastical Courts to
of the Perjury by all the Lords in the Star-Chamber and it was Resolved by all That it was by the Common-Law punishable before any Statute Hayes Case in Cur-Wardorum By Inquisition in the County of Middlesex Anno 6 Jac. by vertue of a diem clausit extremum after the death of Humphry Willward it was found that the said Humphry died seized of a Messuage and 26 Acres of Land in Stepney and that John Willward was his Heir being 14 years and 9 days old and that the Land was held of the King in capite by Knights Service John Willward died within age and by Inquisition in Middlesex 8 Jun. Anno Jac. by vertue of a Writ of Deveneront after the said John's death it was found that John dyed seized in Ward to the King and that the said Messuage and Lands at the time of the said John's death were holden of the Dean of Pauls as of his Mannor of Shadwel All the mean Rates incurred in John's life-time are paid to the King 1. The Questions are 1. Whether by John's death and finding of the mean Tenure in the Deveneront the fiâ—st Office granted to Points be determined 2. Whether the Tenure found by the first Office may be traversed And as to these Questions it was Resolved by the two Chief Justices and chief Baron That where the said John dyed the Office found by force of the Diem clausit extremum after Humphries death whereby the King was entituled to the Guardianship of John hath taken its effect and is executed and does remain as Evidence for the King after Johns death but yet is not traversable for it is traversable during the time it remains in force onely and the Jurors upon the Deveneront after the death of the said John are at liberty to find the certainty of the Tenure and they are not concluded by the first Inquisition and with this agrees 1 H. 4. 68. And this appears by the diversity between the Writ of Diem clausit extremum and the Deveneront which is but in one Point to wit the Diem clausit extremum is general And the Deveneront is not general but does restrain onely the Lands and Tenements quod deveneront c. And thus it was Resolved nono Jacobi in the Court of Wards in the Case of Dune Lewis Award of Capias Uâ—lagatum by Justices of the Peace In this same Term the Opinion of all the Court of Common-Pleus was That if one be out-lawed before Justices of Assize or Justices of Peace upon an Indictment of Felony that they may award a Capias Utlagatum and so was the Opinion of Pâ—riam Chief Baron and all the Court of Exchequer as to Justices of Peace for they that have power to award process of Outlawry have also power to award a Capias utlagatum See 34 H. 8. c. 14. See Lamb. Justice of Peace fol. 503. contra But see 1 Ed. 6. cap. 1. Justices of Peace in case of Profanation of the Sacrament shall award a Capias Utlagatum throughout all England Hersey's Case Star-Chamber John Hersey Gent exhibited his Bill in the Star-chamber against Anthony Barker Knight Thomas Barker Councellor at Law Robert Wright Doctor of Divinity Ravenscroft Clerk and John Hai is and thereby charged the Defendants with forging the Will of one Margery Pain and the Cause came to Hearing ad requisitionem defendentium and upon hearing the Plaintiffs Councel there appeared no Presumption against any of the Defendants but that the Testament was duly proved in the Ecclesiastical Court and upon an Appeal was also affirmed before Commissioners Delegates and Decreed also in Chancery So that it appeared to the Court that the said Bill was preferred of meer malice to slander the Defendants Now because the Defendants had no Remedy at Law for the said Slander and if it should pass unpunished it may encourage men It was Resolved by the Court That by the course of the Court and according to former Presidents the Court may give Damages to the Defendants and so it was done viz. 200 l. to the Doctor of Divinity 200 Marks to the Knight 40 l. to the Clerk 120 l. to the Woman And it was said that Creare ex ihilo quando bonum est est divinum sed creare aliquid ex nihilo quando est malum est diabolicum et plus Maledicite nocâ—nt quam Benedicite docent Hill 2 Jac. Regis Theodore Tomlinson brought an Action of account for Goods against one Philips in the Common Pleas and thereupon Philips sued Tomlinson in the Admiralty supposing the Goods to have been received in Forraign Parts beyond Sea and Tomlinson being committed for refusing to answer upon his Oath to some Interrogatories brought his Habeas Corpus Upon which it was resolved by the Court of Common plea in thrâ—e Points viz. 1. That the Court of Admiralty hath no Cognizance of things done beyond Sea and this appears plainly by the Statute 13 R. 2. cap. 5. and the 19 H 6. fol. 7. 2. That the Proceedings in the Court of Admiralty are according to the Civil Law and therefore the Court is not of Record and so cannot assess a Fine as the Judges of a Court of Record may 3. It doth appear that the Interrogatories were of such things as were within their Jurisdiction and the Parry ought by Law to answer This Case was intended by my Lord Coke to be inserted into his 7th Report but that the King commanded it should not be Printed but the Judges resolved ut supra Corven's Case Right to Sâ—ats in the Church Corven did Libel against Pym for a Seat in a Church in Dâ—vonshire And Pym by Sergeant Hutton moved for a Prohibition upon this Reason that himself is seized of a House in the said Parish and that he and all whose Estates he hath in the House have had a Seat in an Isle of the Church And it was Resolved by the Court that if a Lord of a Mannor or other Person who hath his House and Land in the Parish time out of mind and had a Seat in an Isle of the same Church so that the Isle is proper to his Family and have maintained it at their Charges that if the Bishop would dispossess him he shall have a Prohibition But for a Seat in the Body of the Church iâ— a Question ariseth it is to be decided by the Ordinary because the Freehold is to the Parson and is common to all the Inhabitants And it is to be presumed that the Ordinary who hath Cure of Soules will take Order in such Cases according to right and conveniency and with this agrees 8 H. 7. 12. And the Chief Justice Dame Wick her Case 9 H. 4. 14. which was The Lady brought a Bill in the Kings-Bench against a Parson Quare Tunicam unam vocatam A Coat Armor and Pennons with her Husband Sir Hugh Wick his Arms and a Sword in a Chappel where he was buried and the Parson claimed them as Oblations And it is there
all his Right Estate c. The Plaintiff surjoyneth and saith that the said sum of 5 l. 6 s. 8 d. c. was not rationabilis finis as the said Thomas Bradley above hath alleadged c. Upon which the Defendant doth demur in Law c. And in this Case these Points were Resolved by Coke Chief Justice Walmesly Warberton Daniel and Foster Justices 1. If the Fine had been reasonable yet the Lords ought to have set a certain time and place when the same should be paid because it stands â—â—on the point of Forfeiture As if a man assures Lands to one and his Heirs upon condition to pay to the Bargainee and his Heirs 10 l. at such a place or that he and his heirs shall re-enter there because no time is limited the Bargainor ought to give notice to the Bargainee c. when he will tender the money and he cannot tender it when he pleaseth and with this agrees 19 Eliz. Dyer 244. So in the Case at the Bar the Copyholder is not bound to carry his Fine alwayes with him c. And though that the Rejoynder is that the Plaintift refused to pay the Fine so he might well do when the Request is not lawful or reasonable And he that is to pay a great Fine as 100 l. or more it is not reasonable that he carry it always with him And the Copyholder was not bound to do it because the Fine was incertain and arbitrable as was Resolved in Hulbarts Case in the 4th Part of my Reports among the Copy-hold Cases 2. It was Resolved That though the Fine be uncertain and arbitrable yet it ought to be secundum arbitrium boni viri and it ought to be reasonable because Excessus in re qualibet jure reprobatur communi for the Common-Law forbids any excessive Distress as appears 41 Ed. 3. 26. And this doth appear to be the Common-Law for the Statute of Articuli super Chartas extends onely for a grievous Distress taken for the Kings Debt See F. N. B. 147. a. and 27 Ass 51. 28 Ass 50. 11 H. 4. 2. and 8 H. 4. 16. c. And so if an excessive Amerciament be imposed in any Couâ—t-Baron or other Court not of Record the Party shall have Moderata mis ericordia And Magna Charta is but an Affirmance of the Common-Law in this Point See F. N. B. 75. And the Common-Law gives an Assize of Sovient Distress and multiplication of Distress found which is Excess And with this agrees 27 Ass 50 51. F. N. B. 178 b. And if Tenant in Dower hath Tenants at Will that are rich and makes them poor by excessive Tallages and Fines this is wast F. N. B. 61. b. 16 H. 3. Wast 135. and 16 H. 7. Vide also the Register Judicial fol. 25. B. Waste lyeth in Exulando Henricum Hermanum c. Villeynes Quorum quilibet tenet unum messuagium unam Virgat terrae in Villenagio in Villa praed c. By all which it appears the Common-Law forbids excessive oppressing of Villains c. So in the Case at Bar though the Fine is uncertain yet it ought to be reasonable and so it appears by the Custome alleadged by the Defendant See Hubbard's Case before in the 4th Part of my Reports And when reasonableness concerning a Fine is in question the same shall be determined by the Court in which the Action depend 21 H. 6. 30. 22 Ed. 4 27. and 50 29 H. 8. 32. c. 3. It was Resolved That the Fine in the Case at the Bar was unreasonable being for the admittance of a Copy-holder in Fee-simple upon a Surrender made for this is not like a voluntary Grant c. for there Arbitrio Domini res estimari debet But when the Lord is compellable to admit him to whose use the Surrender is And when Câ—stuy que use is admitted he shall be in by him who made the Surrender and the Lord is but an Instrument to present the same 4. It was Resolved That the Surjoinder is no more than what the Law saith And for the Causes aforesaid Judgment was given for the Plaintiff And Coke Chief Justice said in this Case That if the Court of Admiralty amerce the Defendant excessively at discretion as seems by 19 H. 6. 7. the same shall not bind the Party and be it excessive or not it shall be determined in the Court where the Action shall be brought And a Writ of Account against a Bayliff or Guardian Quod reddat â—i rationabilem compâ—tum c. for the Law requires Reason and no excuse or extremity in any thing Mich. 6 Jac. Regis in the Common-Pleas Porter and Rochester's Case This Term Lewis and Rochester who dwelt in Essex in the Diocess of London were sued for subtraction of Tythes growing in B. in the said County of Essex by Porter in the Court of the Arches of the B. of Canterbury in London And the Case was The Archbishop of Canterbury â—ath a peculiar Jurisdiction of 14 Parishes called a Deanry exempt from the Authority of the Bishop of London whereof the Parish of St. Mary de Arcubus is the chief And the Court is called the Arches because it is holden there And a great Question was moved If in the said Court of Arches holden in London he might cite any dwelling in Essex for substraction of Tythes growing in Essex or if he be prohibited by the Statute 23 H. 8. cap. 9. which after Debate at Bar by Councel and also by Dr. Ferrard Dr. James and others in open Court and lastly by all the Justices of the Common-Pleas A Prohibition was granted to the Court of Arches And in this Case divers Points were Resolved by the Court. 1. That â—â—l Acts of Parliament made by the King Lords and Commons in Parliament are parcel of the Laws of England and therefore shall be expounded by the Judges of the Laws of England and not by the Civillians Cannonist although the Acts concern Ecclesiastical Jurisdiction And in 10 H. 7. the Bishop of London caused onâ— to be imprisoned because the Plaintiff said he ought not to pay his Tythes to his Curate And the imprisoned Party brought his Action of false Imprisonment against those that arrested him by the Bishops Command and there the Matter is well argued what words are within the Statute and what words are not So upon the same Statute was Resolved in 5 Ed. 4. in Keysar's Case in the Kings Bench which see in my Book of Presidents And so the Statutes of Articuli Cleri de Prohibitione regiâ De Circuâ— spâ—cte agitis of 2 Ed. 6. cap. 13. c. have alwayes been expounded by the Judges of the Common-Law as was adjudged in Wood's Case Pasch 29 Eliz. So 21 H. 8. cap. 13. See 7 Eliz. Dyâ—r 233. 15 Eliz. Dyer 251. 14 Eliz. Dyer 312. 15 Eliz. Dyâ—r 327. 18 Eliz. Dyer 352 347. 22 Eliz. Dyer 377. 2. Resolved by Coke Chief Justice Warbâ—â—ton Daniel and
Common-Law none can be burnt for Heresy but by Conviction at a Convocation Note The High Commission may punish Heresies and upon their Conviction a Writ de Haeretico cumburendo See 6 R. 2. by which the Commons disavowed their assent to the Act of the 5 R. 2. which was contrived by the Prelates in the Name of the Commons whereas they never assented Mich. 6 Jac. Regis Langdale's Case In Langdales Case this Term in a Prohibition to the High Commissioners two Points were moved 1. If a Feme Covert may sue for Alimony before the High-Commissioners 2. If the Court of Common Pleas may grant a Prohibition when there is no Plea pendant there This concerning the Jurisdiction of the Court was first debated and divers Objections were made against it 1. That this Court hath not Jurisdiction to hold Plea without an Original unless by Priviledge of an Attorney Officer or Clerk of the Court and unless it be in a special Case viz. when there is an Action there depending for the same Cause then it was agreed that a Prohibition ought to recite Quod cum tale Placitum pendet c. And it was said That F. N. B. 43. g. agrees with this But a man ought to have his Prohibition out of Chancery or the Kings Bench upon surmise that he is sued in Court Christian for a Temporal Cause and the 2 Ed. 4. 11. 6. was cited To this it was answered and Resolved by Coke chief Justice Warberton Daniell and Foster Justices That the Common Pleas may award a Prohibition though no Suit be there pendent for it is the principal Court of Common Law for Common Pleas Quia Communia Placita non sequantur Curiam nostram as it is Enacted by Magna Charta thirty times confirmed by Parliamâ—â—â— then if the Ecclesiastical Judges incroach upon the Jurisdiction of the Common Pleas there the Court shall Grant a Prohibition and that without Original Writ for divers Causes 1. Because no Original Writ issuing out of Chancery is retornable into the King Bench or Common Pleas but is directed to a Judge or Party or both and is not retornable And upon contempt of the Prohibition the Chancellor may award an Attachment retornable either in the Kings Bench or Common Pleas which in such case is but a Judicial Writ And if such Attachment be retornable in the Common Pleas c. the Plaintiff in the Declaration shall make mention of an Original in Chancery and of the contempt c. as appears in a notable President 2. There was great reason that no Original Writ of Prohibition shall be retornable for the Common-Law was a Prohibition in it self and incroachment upon it incurred a contempt and with this agrees our Books 9 H. 6. 56. And there 't is held That the Statute of the 45 Ed. 3. and the Common Law also was a Prohibition in it self and thus the Rule of the Book 19 H. 6. 54. so is it held in 8 R. 2. Title Attachment Sur Prohibition 15. Note By Clopton a Sergeant at the Common Pleas That if a Plea be held in Court-Christian which belongs to the Court of the King without a Prohibition in facto the Plaintiff shall have an Attachment upon a Prohibition Quod fuit concessum c. Register 77. Estrepement Praecipimus quod inhibeas c. F. N. B. 259. Register 112. A Consultation is as much an Original as a Prohibition And the Court hath granted a Consultation ergo Prohibitions Qui habet jurisdictionem absolvendi habet juris dictionem Ligandi There are several sorts of Prohibitions one sort with this word Probibemus vobis and Letters in nature thereof as Supersedeas And Injunction is a Prohibition and Prohibition of Wast out of Chancery c. Express Prohibition are in two manners the one founded upon a Suggestion the other upon Record Upon Suggestion where Plea is pendent and yet the Suggestion is the Foundation but it is founded upon Record where no Plea is pendent for Prohibitions founded upon Record Ne admittas ought to recite the Plea pendent So a Writ to the Bishop to admit a Clerk is a Judicial Latitat as Dyer defends it As to the pendency of a Plea or not pendency it is not material for divers causes 1. The pendency of the Plea may give a priviledge to the party but no Jurisdiction to the Court in a Collateral Suit between which there is great diversity 2. The Prohibition where Plea is pendent is no process Judicial upon Record for it is a Collateral Suit 3. If the Common-Pleas cannot grant a Prohibition without a Plea pendent then the Kings which onely holds Plea of Common-Pleas by second means cannot But inasmuch as the Common-Law is instead of an Original as hath been said both Courts may grant it 4. Infinite Presidents may be shewn of Prohibition out of the Common Pleas without recital of any Plea pendent And true it is That it ought to be if the Court hath not Jurisdiction to grant any without Plea-pendant every petty-Clerk of the Common-Pleas shall have by his Priviledge a Prohibition without Plea-pendent A fortiori the Common Law it self may prohibite any one 4 Ed. 4. 37. 37 H. 8. 4. 5. A President is in the 22 Ed. 4. where a Prohibition was granted for that the Plaintiff might have a Writ of false Judgment at the Common Law The Record and Report agree the words of the Record are 6. That Officers and Clerks as well in the Common-Pleas as in the Exchequer c. may have by Privileng of Court a Prohibition without Original a fortiori the Law it self shall have greater Priviledge than an Officer or Clerk and to enforce the party to bring an Action will be a means to multiply Suits to no end 4 Ed. 4. fol. 37. every Prohibition is as well at the Kings Suit as at the Parties 28 Ed. 3. 97. false Latin shall not abate nor excommunication in the Plaint is no Plea 15 Ed. 3. Title Corrody 4. Note Though the Original cause was in the Kings Bench for Corrody Excommunication is no Plea in disability of the Plaintiff Vide 21 H. 7. 71 Kelway 6. quare non admissit 4 Ed. 4. 37. for not delivery of a Libel in the Common Pleas he shall have a Prohibition by all the Justices So upon 2 Ed. 6. cap. 13. See 38 H. 6. 14. 22. Ed. 6. 20. 13 Ed. 3. Title Prohibition 11. 32 H. 6. 34. An Attorney in the Palace assaulted and menaced the Court shall take a Bill and inquire of it 4 Ed. 4. 36 37. Statham Prohibition 3. Prohibition super articulos title Prohibition pl. 5. gives a Prohibition before Scil. coram Justiciaâ—iis nostris apud Westm Vide F. N. P. fol. 69. b. in a Writ of Pone Register indic coram Justicia iis nost is apud Westm is the Common Pleas F. N. B. 64. d. 38 Ed. 3. 14. Statute 2 Ed. 6. cap. 13. Hales Case in my Reports Many Prohibitions were granted in the
THE RESOLUTIONS Of the JVDGES upon the several STATUTES Of Bankrupts As also The like Resolutions Upon 13 Eliz. and 27 Eliz Touching Fraudulent CONVEYANCES By T. B. Esq LONDON Printed for T. Twyford and are to be sold by Hen. Twyford and other Booksellers 1670. Pasch 4. Jacobi Regis Ford and Sheldon's Case upon Information in the Exchequer for the King THomas Ford a known Recusant bâ—fore the 23 of Eliz. for money lent to Sheldon some before and some after the said 23 Eliz. took Recognizance in the Names of others and also a Rent-charge to them in Fee with a Clause of Redemption by Deed the Condition of the Recognizance being for performance of the Covenanss in the Deeds and afterward was made the Statute of the 28 Eliz. which was That as often as any Failer was made in the payment of 20 l. a Month that so often the Queen by Process out of the Exchequer might take and enjoy all the Goods and two Parts c. And after the said Act Ford lent the several Sums of Money and took the Securities as aforesaid amounting in all to 21000 l. which being to Ford's use were all forfeited Afterwards 41 Eliz. was Convict of Recusancy and did not pay the 20 l. a Month If the King should have the Bâ—nefit of these Recognizances and Securities was the Qâ—estion 1. Upon Debate it was objected by Ford's Councel That the Recognizances had not been Forfeited though they had been made in Ford's Name the Statute speaking onely of Goods which doth not include Debts As if the King grant all the Goods of J. S. coming to him by Attainder the Patentee shall not have Debts And a Penal Law shall not be extended by Equity Obj. 2. That three Recognizances are not within the Intention of the Act being Savers of the Realty and acknowledged to perform Covenants as to the Rent-charge Ob. 3. No Fraud was in the Case And then no Statute being in this Case the Common-Law gives no benefit to the King As if Cestuy que use had been Attaint of Treason the Use being but a Trust could not be forfeited to the King And it not a Use A multo fortiori a meer Trust Ob. 4. What Forfeiture accrues to the King in this Case must be by force of the words Goods in the Statute which cannot be Ford having no Goods but a meer Trust Also one Recognizance was taken in the Names of others before the Stature and therefore cannot be thought to defeat the King of a Forfeiture which was not then in use Resolved 1. By all the Barons and Popham Chief Justice of England and divers other Justices that Personal Actions are as well included within this Word Goods in an Act of Parliament as Goods in Possession But because by Law things in Action cannot be granted over therefore by General Grant without special words can never pass And where the Statute saith Shall take seize and enjoy all the Goods and two parts c. the King may well enjoy a Debt due to a Recusant and by Process out of the Exchequer Levy it and so take and seize refers to Goods and two Parts of Lands in Possession Resolved 2. That it was Originally for the Loan of Money and both the Recognizance and Annuity were to secure the said Money And Recognizances fotfeited are but Chattels Personal Resolved 3. There was Covin apparent for he being a Recusant always as aforesaid and so chargeable to the King his taking the Recognizances in the Name of others shall be Construed with an Intent to prevent the King of his Forfeiture And so shall all Recognizances taken in others Names after the said Act be presumed to be taken As to Ceâ—â—uy que use who neither hath Jus in Re nor Jus ad Rem true it is he cannot Forfeit but an Act done to defraud the King of his lawful Duty the King shall not be barred thereof per obliquum if the Act was made de directo And for this If a man outlawed buy Goods in the Names of others the King shall have them notwithstanding So if an Accountant to the King purchase Lands in others Names yet the King shall sâ—ze those Lands for Money due to him And this appears by Walter Cherton's Case Trin. 24. Ed. 3. Rot. 4. in Scaccario for Reâ— fallere non vult falli autem non potest See another President Trin. 24. Ed. 3. Pot. 11. Resolved 4. Noâ—resert Whether the Duty do accâ—ue to the King by the Common-Law or by the Statute And though one of the Recognizances was taken before the Statute of the 28 of Eliz. yet that was to his use And though Ford was not Convict till the 41 of Eliz. that is not material for he was subject to a Forfeiture before Pasch 4 Jac. In Chancery 27 Junii 29 Eliz. The Case between the Lord St. John of Bletso and the Dean of Gloucester The Lord St. John brought a Quare Impedit in the Common-Pleas against the Defendant for the Church of Penmark in the County of Glamorgan which Suit was staid by Aid prayer and the Record removed into the Chancery The Plaintiff moved for a Procedendo and upon Oyer of Cause before Sir Thomas Bromley Lord Chancellor in the presence of Sir Gilbert Gerrard Master of he Rolls and Shute and Windham Justices and Popham Attorney and Egerton Sollicitor of the Queen the Plaintifâ— shewed a Gift in Tail of the said Advowson made to his Anc stor in 18 R. 2. and a Verdict for the same in 12 H. 8. and a presentation by his Grandfather to the said Church of a Clerk that was admitted instituted inducted and had possession divers years with other matters to prove the Plaintiffs Tâ—tle yet for that the Defendant and those from whom he claimes had time out of mind possessed the said Parsonage as Impropriate And for that it will be a dangerous President to all Owners of Impropriations It was Resolved by the Court of Chancery by the advice of the Justices and Councel Learned by the Queen aforesaid That no Procedendo in loquela be granted Vide Ridley fol. 153 154. the beginning of Appropriations and Annuities to be discharged of Tythes Vide ibid. 155. That the Saxon Kings appropriated eight Churches to the Monastery of Croyland Trin. 37 Eliz. In the Exchequer Chamber Crimes and Smith The Abbot of Sulby held the Parsonage of Iubbenhâ—m in Leicestershire to his proper use which as impropriate came to H. 8. by the dissolution of Monasteries 31 H. 8. who in the 37th year of his Reign granted it in Fee-Farm under which Grant the Plaintiff claimed The Defendant obtained a Presentation of the Queen and to destroy the said Impropriation shewed the Original Instrument of it 22 Ed. 4. with Condition in it That a Vicaridge should be competently endowed which was alledged never to be done But for that the Rectory was reputed and taken to be appropriate and a Vicar presented admitted instituted and inducted as a Vicar
Ecclesiastical Judge that were in danger of Premunire before 1 Eliz. are now in case of Premunire after the said Act the said Acts of Premunire not being repealed by 1 Eliz. 1. 2. And as to first and second Objections it was answered That true it is The Crown of England hath as well Ecclesiastical as Temporal Jurisdiction annex'd to it as appears by the Resolution in Cawdryes Case from Age to Age. And though this was de jure yet where the Pope became so Potent he usurped upon the Kings Ecclesiastical Power in this Realm but this was meer Usurpation And therefore all the Kings of this Realm Totis viribus proinde for establishing of their Temporal Law by which they inherit their Crown and by which c. were alwayes jealous in any part or point it should be incroached upon And if the Ecclesiastical Law did usurp upon the Temporal it was severely punished and the Offender judged an Enemy to the King by the ancient Statutes and every one might have killed him before the Statute of 5 Eliz. And this is the Reason the Crown it self is directed descendable by the Common Law and Treason against the Crown is punished by this Law And therefore usurpation by an Ecclesiasticall Judge upon it is said to be contra Coronam et dignitatem Regis And all Prohibitions since 1 Eliz. do conclude contra Coronam et dignitatem Regiam for as 't was resolved by all the Justices Pasch 4 Jac. Regis est contra Coronam c. when any Ecclesiastical Judge doth usurpe upon the Temporal Law for the cause of the Subject is drawn ad aliud examen when his Cause is not ended by the Common Law whereto by Birth-right he is inheritable 3. As to the Third though the Court by force of High-Commission is the Court of the King yet their proceedings are Ecclesiastical And therefore if they usurpe upon the Temporal Law this is the same offence which was before the Act 10 Eliz. 4. As to the Fourth though it be a new Court yet the antient Statutes extend to it in this word Alibi and in H. 8. times several new Bishopricks were erected yet never any question but the old Acts of Premuri did extend to them But to answer all Objections at once whereas the Act 1 Eliz. repealed the Statute 1 2 P. M. cap. 8. yet there is an express Proviso in the said Act 1 Eliz. That it shall not extend to Repeal any Clause or Matter contained in the 1 et 2 P. M. which in any sort concerneth any matter or cause of Premunire but that all of that stand in force See the said two Acts and also 16 R. 2. Also the Act of 1 Eliz. revives the Act 25 H. 8. cap. 10. which makes a Premunire in a Dean and Chapter c. for not electing certifying or admitting a Bishop elected by all which it appears the said Act of 1 Eliz. never intended to take away the offence of Premunire But note in what Cases a Premunire lyes and in what not 1. In all Causes when the Cause originally belongs to the Cognizance of the Ecclesiastical Court and Suit is prosecuted there as belonging to their Cognizance though in truth if rightly examined it ought to be determined â—t Common Law yet no Premunire lyes there but a Prohibition As if Tythes are severed from the nine parts and are carried away if the Parson sue for the Substraction of these Tythes in the Spiritual Court this is not in the case of Premunire Vide 10 H. 4. 2. agreeing with this Opinion So if a Parson sue for Tythes of surmising that they were Sylvae Caduae under the age of 20 years where in truth they were above yet a Prohibition lyeth and no Premunire 2. But though the Cause originally may appertain to the Cognizance of the Ecclesiastical Judge yet if he sue for it in the nature of a Suit which doth not belong to the Ecclesiastical Court but to the Common Law there a Premunire lyeth As in the former Case If the Parson after severing of Tythes will in any Ecclesiastical Court sue for carrying away his Tythes from the 9 parts which Action pertains to the Common Law In such case both the Actor and Judge incurr the danger of Premunire And so it was adjudged 17 H. 8. as Spillmâ—n Reports it One Turbâ—rvile sued a Premunire against a Parson that convened him into the Ecclesiastical Court and there libell'd against him for taking of Ty hes which were sever from the nine parts and the Parson was condemned to be out of the protection of the King to forfeit all his Lands Goods and Chattels and his Body to perpetual Imprisonment and damages to the Party So of a Mortuary delivered and re-taken if the Parson sue for this as for a Mortuary to him delivered he is in case of Premunire 10 H. 4. 2. So in the case put for tythe of Wood if it appear by the Libell that the Cognizance of the Case doth not belong to Court Christian the Premunire lyes as you may see in the Book of Entries tit Dismes fol. 221. But the tit Prohibition fol. 449. Divisione Dismes Ps 2 3 4 5 6. If the suit be pro Sylva caedua c. and the Suit be framed so as the Cognizance belongs to Court Christian though the truth be otherwise no Premunire but a Prohibition lyes 3. When the cause originally belongs to the Cognizance of the Common Law and not to the Ecclesiastical Court there though they Libel for it according to the course of the Ecclesiastical Law yet the Premunire lyeth because that this draws the cause which is determinable at Common Law ad aliud examen viz. to be decided by the Civil Law and so deprives the Subject of the Common Law his Birth-right and wiâ—h this agrees the Book of Entries tit Premunire fol. 229. b. 430. a. So that if the Original cause be Temporal though that they proceed by Citation Libel c. in Ecclesiastical manner yet this is in danger of Premunire And the reason of this is because he endeavours to draw Cognitionem quae ad Curiam domini Regis pertinet ad aliud examen that is that the Debt the Cognizance whereof belongs to the Court of the King he intends by the Original Suit to draw it to be determined by the Ecclesiastical Court And note In the Indictment of Premunire against Cardinal Woolsâ—y Mich. 21 H. 8. 14. it is said Quod Praedictus Cardinalis intend finaliter antiquissimas leges Angliae penitus subvertere et enervare univer sumque hoc Regnum Angliae et ejusdem Angliae populum legibus imperialibus vuilgo dict legibus Civilibus et â—orum legum Canonibus isperpetuum subjurare c. And this included within these words Ad aliud examen trahere viz. to decide that by the Civil Law which is determinable by the Common Law And upon this was a notable Case in Hill an 25 H. 8. of
Nicholas Bishop of Norwich against whom he then being in the Custody of the Marshall the Kings Attorney did prefer a Bill of Premunire the matter whereof was this In Thetford in Com. Norfolke hath been de tempore cujus c. such Custom that all Ecclesiastical Causes rising in that Town should be determined before the Dean of that Town who hath particular Jurisdiction there and that none in that Town shall be drawn in Plea in any other Court-Christian unless before the same Dean And if it ought to be done against the same Custom this to be presented before the Mayor of the same Town and the Party to forfeit 6 s. 8 d. That One such sued in the Consistory of the Bishop for a thing arising within the said Town which was presented before the Mayor for which he forfeited 6 s. 8 d. The Bishop cited the Mayor to appear before him at his House at Hoxin in Suffolk generally pro salute animae but upon appearance◠〈◊〉 upon all the Matter and enjoyn'd him on pain of Excommunication to annul the said Presentment The Bishop had Council assigned him who objected That as well the Presentment as Custom was void and therefore not contra Coronam c. nor drawn by the Bishop ad aliud examen 2. They objected That the Bishop's Court was not intended within the Act of 16 R. 2. but in Cur. Romana aut alibi and this alibi ought not to be out of the Realm but it was Resolved by Fitz James chief Justice Et. per totam Curiam that be the Custom or Presentment good or bad this is a Temporal thing determinable at Common Law and not in Spiritual Court and therefore the Bishop hath incurred the Premunire 3. That alibi extends as well to the Bishop's Courts c. as well within the Realm as else-where and so the Court said it had been often adjudged whereupon the Bishop confessed the Indictment And Judgment was given That he shall be out of the King's Protection and that his Lands Goods and Chattels should be forfeited and his Body to be imprisoned ad voluntatem Regis c. Nicholas Fuller's Case In the great Case of Nicholas Fuller of Grays-Inn these Points were Resolved by all the Justices and Barons of the Exchequer 1. Resolved That no Consultation can be granted out of Term because it is a final award of the Court and can neither be granted in Term nor out of Term by all the Judges except in Court the name of the Writ signifying the same 2. Resolved That the Construction of the Statute 1 Eliz. cap. 1. and of the Letters Patents of High-Commission in Ecclesiastical Causes founded upon the said Act belongs to the Judges of the Common Law And therefore the Consultation which was granted with this restraint Quatenus non agat de authoritate et validitate Literarum Patentium pro causis Ecclesiasticis vobis vel aliquibus vestrum direct aut de expesitione et interpretatione Statuti de anno primo nuper Reginae c. As if the King hath a Benefice donative by Letters Patents this shall not be visitable nor deprivable by any Ecclesiastical Authority but by the Chancellor of the King or Commissioners under the Great Seal 3. Resolved When there is any Question concerning what Power or Jurisdiction belongs to Ecclesiastical Judges in any such Case the determination of this belongs to the Judges of the Common Law in what cases they have Cognizance and in what not And according to this Resolution Bracton lib. 5. tract de except cap. 15. fol. 412. Vide also Entries fol. 445. There was a Question whether Court-Christian should have Cognizance of a Lamp and a Prohibition was granted Quod non procedant in Curia Christianitatis quousque in Curiae â—ostra discussum fuerit utram cognitio placiti illius ad Curiam nostram vel ad forum Ecclesiasticum pertineat And all this appears in our Books that the Judges of the Common Law shall determâ—ne in what Cases the Ecclesiastical Judges have Power to punish any pro Laesioae fidei 2 H. 4. fol. 10. 11 H. 4. 88. 22 Ed. 4. 20. or of the bounds of Parishes 5 Ed. 3 8 8 Ed. 3. 69. 70. 18 Ed. 3. 58. 12 Ed. 4. 9 H. 7. 1. 10 H. 7. 9. And therefore in this Case of Fuller one other Restraint was added in the Consultation Et quatenus non agat de aliquibus scandalis contemptibus sâ—u aliis rebus quae ad communen legem aut Statuta Regni nostri Angliae suat puâ—ienda et determinanda 4. Resolved That if a Councellor at Law in his Argument shall scandal the King or his Government Temporal or Ecclesiastical this is a misdemeanor and and contempt to the Court for which he shall be indicted fined and imprisoned but not in Court Christian but if he publish any Heresy Schisme or erroneous Opinion in Religion he may for this be punished by the Ecclesiastical Judges for the Rule is Quod non est juri consonum quod quis pro aliis quae in Curiis nostris act a sunt quorum cognitio ad nos pertinet trahatur in placitum in Curia Christianitatis See the Book of Entries fol. 448. And for this cause a Consultation was granted Quoad Schismata Hereses c. Vide Mâ—ch 18 H. 8. Rot. 78. in Banco Regis The Case was a Leet was â—eld Jovis post Festum Sancti Mich. Arch. 17 H. 8. of the Prior of the House of St. John de Bethelehem de Shrine of this Mannor of Levisham in Com. Surrey before John Beare Steward there a Grand Jury was charged to inquire for the King of all Offences inquirable within the said Leet where one Phillip Aldwin who was a resident within the said Leet appeared Idemque Phillippus sciens quandam Margaretam uxorem Johannis Aldwin apud East-Greenwich infra jurisdictionem Letae proed pluries per antea corpus suum in adulterio viciose exercuissse c. eisdem sic juratis de dicta c. informationem veraciter dedit Upon which the said Margaret drew the said Phillip into the Archbishop of Canterbury his Court and there libelled against him for defamation of Adultery and that the Phillip said in hisce Angl. verbis Margaret Allen is a Whore and a Bawde and it is not yet three weeks agone since a man might take a Priest betwixt her Legs which words were parcel of the words by which he informed the Jury at the Leet And upon this he had a Prohibition and by this Record it appears and by the Statute 10 Ed. 3. c. 11. that Indictors of Lay-People or Clerks in Turneys and after delivering them before Justices shall not be sued for Defamation in Court-Christian but that the Plaintiff grieved shall have a Prohibition Vide Pasch 6 Eliz. In the Lord Dyers Reports which Case is not Printed John Halles in the Case of Marriage between the Earl of Hereford and the Lady Katharine Gray declared his Opinion against the
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
October 28. H. 8. there was an Insurrection of the Lord Hussey and 20000 Men in Lincolnshire about Religion which was appeased by the Duke of Suffolk This was no sooner over but 40000 Men under Sir Robert Aske made a Commotion in Yorkshire Soon after was a great Rebellion in Lancashire Westmerland Cumberland and Northumberland which the Earl of Derby quieted Then Musgrave Tilby and others assaulted Carlisle Castle and were overthrown by the Duke of Norfolk Soon after Sir Francis Pigot Rebelled at Setrington in Yorkshire Soon after the Lord Darcy c. began a Commotion about Hull appeased by the Duke of Norfolk And all these Rebellions were between the 28. of and 30. of H. 8. in which time many of the Rebels were Executed And the King having effected in the 31 year of his Reign the Suppression of the greater Houses of Religion he establisht a Councel there for the quiet of the Counties of Yorkshire Northumberland Westmerland Cumberland Durham the Counties of the City of York Kingston upon Hull and Newcastle upon Tyâ—e for preventions of Ryots c. And in this time of Necessity the King Armed the President and Councel with two Authorities in one Commission The one A Commission of Oyer and Terminer de quibuscunque Congregationibus conventiculis illicitis coadjutoribus Lolardiis c. per quae pax tranquilitas subditorum nostrorum Comitatibus c. praedict gravat c. secundum legem coâ—suetudinem regni nostri Angliae c. The other Authority was Nec non quascunque actionesreales seu de libero tenemento personales causasque de bitorum demandorum quorumcunque in Com. c. praed quando ambae partes vel altera pars sic gravata paupertate fuerit quod commode Jus suum secundum legem Regni nostri aliter prosequi non possit c. And this was the Authority that the President and Councel had at first without any private Instructions as appears by the Commission under the Great Seal 31 H. 8. 6 pars Roberto Landavensi Episcopo Presidenti Consilii aliis out of which these things were observed 1. That the intention of the Commission was Quod pax subditorum tranquilitas preserventur 2. That they hear and determine Riots Routs c. according to Law or their Discretions which without question was no otherwise intended but that they should proceed according to Law for that is summa discretio and not according to private Conceits for talis discretio discretionem confundit so the other Clause concerning reall and personal Actions in all the Counties and Places aforesaid was onely ad faciendum populum for it was utterly void in Law 1. Because no such general Authority granted may be made by the Commission of the King to hear and determine all reall Actions within such a County according to Law as he may be Charter in a particular County or place As it was Resolved in Scrogges Case An. 2 Eliz. so 175. in Dyer Vid. Dyer 236. But the King by Letters-Patents may grant to a Corporation in such a Town Tenere placita realia personalia mixta And none can by this be prejudiced for the proceeding ought to be according to Law and if they erre a Writ of Errour lies See Magna Charta cap. 12. and Westm 2. cap. 30. which Acts give Authority to Justices of Assize in their proper Counties whereby it appears that without an Act of Parliament the King by Letters Patents cannot authorize Justices De Assize capiend to take them in another County As a Justice of one Bench or other ought to be made by Commission not by Writ yet he may be discharged by Writ 5 Ed. 4. 32. But Justices in Eyre are by Writ Bracton lib. 3. cap. 11. Britton fo 1. Also Westm 2. cap. 30. and of York cap. 4. sic de ceteris Also it was observed that at first the Commission extended onely when one or both Parties were so poor as they were not able to prosecute at Law Also they had no power to grant Injunctions and lastly their Commission was a Patent under the Great Seal and enrolled in Chancery And thus much was said concerning the first Institution of the Court 2. That our Proceedings in granting Prohibitions is for matter justifiable by Law As to this whereas at first their Authority was Patent it is now private for the Letters-Patent refer to private Instructions which are no where of Record Et de non apparentibus non existentibus eadam est ratio besides the danger to the Subject is great for if they lose their Instructions which hath and may happen all is Coram non Judice The second Reason is drawn from the contumacy of the Party supposed to be grieved by the Prohibition and against whom it is granted for if the Authority of the Councel be never so good yet being a late Jurisdiction the Party must of necessity plead it so as it may appear judicially for as we are Judges of Record so must we be informed of Record And no party prohibited ever yet moved in Court to have a consultation by which might be set forth the Jurisdiction of that Court and Councel so as the granting of Prohibitions hath been just The third Reason is drawn from the great Injury offered to the Defendants for it is a true Rule Misera servitus ubi jus est vagum aut incertum The Defendants by Law may in all Courts plead to the Jurisdiction of the Court but how can they do so when no man can possibly know what Jurisdiction they have And the keeping of them in such Secrecy bewrayeth that the Councel are afraid that they would not be justified if they were known 3. That the manner of our Proceedings was respectful for a Jury of Officers and Attorneys of our Court being according to an antient Custome time out of mind used sworn to present among other things all Defaults of Officers and Ministers in not executing the Process of this Couâ—t and all Impediments of the due Proceedings thereof And finding upon their Oaths divers unjust Impediments of the said Proceedings by the said Councel in particular thereupon a motion being made in open Court in Michaelmas Term last by the King 's Serjeant Philips of many Grievances done thereby prayed the Court according to Law and Justice to grant several Prohibitions in all those several Causes which we could not deny Yet first we conferred with Sir Cuthbert Pepper Attorney of the Wards and one of that Councel to let him understand the partâ—cular Gâ—ievances who upon Motion came to us to Seâ—geants Inne with whom we conferred who would not take upon him to justifie the same in no sort but said he would acquaint the President and Councel therewith and return their Answer Which for that it was neglected upon further Motion in Court we granted Prohibition as in Justice we ought 4. Now to answer all Objections And first where it was objected
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
Kings Bench because no Writ of Error lyes but in Plaint Robert Bankes Case Mich. 6 Jac. Regis Mich. 6 Jac. Rot. 639. Robert Bankes Gent. brought an Action upon the Statute of Winton 13 Ed. 1. against the Inhabitants of the Hundred of Burnham in the County of Bucks and counted that certain misdoers to the Plaintiff unknown at Hitcham the 22d of Nov. 5 Jac. assaulted the Plaintiff and robbed him of 25 l. 3 5. 2 d. ob and that he immediately after the robbery the same 22d of Nov. at Joplow and Maalow the next Towns to Hitcham in the said County made Hâ—e-and Cry c. and after the said Robbery and within 20 dayes before the purchase of the Writ viz. the 19 of Fâ—br Aâ— 5. at Dorney in Com. praed the Plaintiff before Sir William Gâ—rrard Knight then Justice of Peace in the said County and living next the said Hundred being examined upon Oath according to the Statute 27 Elâ—z the Plaintiff upon his Oath said He knew not the Parties who robbed him and since the said Robbery 40 dayes are past and the said Inhabitants of Burnham have not made him any amends nor the Bodies of the Felons or any of them have taken but suffered them to escape to which the Defendants plead Not Guiley and Vâ— fa. was awarded de vicineto c. And the Jury gave a special Verdict and found that the Plaintiff was robbed and made Hue-and-Cry as aforesaid and found over That the Plaintiff was sworn before Sir William Gerrard as aforesaid and said upon his Oath in these English words viz. That he on Thursday the 22 d. of Nov. 1604. riding under Hitcham wood c. was then and there set upoâ— by Horsemen which he knew not and robbed of 25 l. 3 s. 2 d. ob but whether the said Oath so taken be true according to the said Statute 27 Eliz. the Jurors pray the direction of the Court. Mouses Case Mich. 6 Jac. Regis In an Action of Trespass brought by Mouse for a Casket and 113 l. taken and carryed away the Case was the Ferryman of Gravesend took 47 Passengers into his Barge to pass to London and Mouse was one of them the Barge being upon the Water a great Tempest happened so that the Barge and all the Passengers were in danger to be drowned if a Hogshead of Wine and other pouderous things were not cast out And it was Resolved per totam Curiam That in a case of necessity for saving the Lives of the Passengers it was lawful to the Defendant being a Passenger to cast the Plaintiff's Casket out of the Barge with what was in it for quod quis ob tutelam corporis sui fecerit jure id fecissâ— videtur Upon the special matter pleaded and Reply De injuria sua propria absque tali causa the first day of this Term the Issue being tryed and it was proved directly That the Men had been drowned if the things had not been cast out The Plaintiff was Non-sult Resolved also That though when the Ferry-man surcharge the Barge yet to save the Passengers Lives in such a Necessity it is lawful for the Passengers to cast the things out of the Barge yet the Owners shall have their Remedy upon the surchage against the Ferry-man but if there was no surcharge but the danger came by the Act of God then every one must bear his own losse for Interest Râ—ipub quod homines conserventur â— Ed. 4. 23. Bull. c. 12 H. 8. 15. 28 H. 8. Dyer 36. Mich. 5. Jac. Regis Prohibitions del Roy. Noâ—e On Sunday the 10. of Nov. in this Term the King upon Complaint made by Bancroft Arch-Bishop of Canterbury concerning Prohibitions the King was informed That when Question was made of what matters the Ecclesiastical Judges have Cognâ—zance c. in any Case in which there is not express Authority in Law the King himself may decide in his Royal Person the Judges being but his Delegates c. And the Arch-Bishop said this was clear in Divinity To which it was answered by Mee in the presence and with the clear Consent of all the Justices of England and Barons of the Exchequer that the King in his own person cannot adjudge any Case either Criminal as Treason c. or betwixt party and party concerning Inheritance Goods c. But it ought to be determined in some Court of Justice according to the Law and Custome of England and all Judgments are given Ideo consideratum est per Curium And the King hath his Court in the Upper House of Parliament in which he with his Lords is the Supream Judge over all Judges And in this respect the King is called Chief Justice 20 H. 7. 7. a. by â—rudnel and it appears in our Bookes 2 R. 3. 9. 21 H. 7. 8. that that the King may sit in the Star-Chamber but this was onely to consult not in judicio So in the Kings-Bench but the Court gives Judgment And 't is commonly said in our Books the King is alwayes present in Court and therefore he cannot be Non-suit And it appears by the Acts of Parliament 2 Ed. 3. c. 9. 2 Ed. 3. c. 1. That neither by the Great Seal nor by the little Seal Justice shall be delayed ergo The King cannot take any Cause out of any of his Courts and give Judgment upon it but in his own Cause he may stay it as appears 11 H. 4. 8. And the Judges informed the King that no King after the Conquest ever assumed to himself to give Judgment in any Cause whatsoever which concerned the Administration of Justice within the Realm 17 H. 6. 14. 39 Ed. 3. 14. the King cannot Arrest any man 1 H. 7. 4. Hussey chief Justice Reports being Attorney to Ed. 4. That Sir John Markham chief Justice said to Ed. 4. That the King cannot Arrest a man for suspition of Treason or Felony as his other Leiges may And it was greatly marvailed That the Archbishop durst inform the King that such absolute Power as aforesaid belonged to him by the Word of God Vide 4 H. 4. cap. 22. Westm 2. cap. 5. vide le stat de Marlbridge cap. 1. stat de Magn. Chart. cap. 29. 25 Ed. 3. c. 5. 43 Ed. 3. c. 3. 28 Ed. 3. c. 3. 37 Ed. 3. c. 18. vide 17 R. 2. ex Rotulis Parliamenti in Turri act 10. A controversy of Land between Parties was heard by the King and Sentence given which was repealed because it did belong to the Common Law Then the King said That the Law was grounded upon Reason and that He and Others had reason as well as the Judges To which it was answered by Me That true it was God had endued his Majesty with excellent Science but his Majesty was not learned in the Laws of England and Causes which concern the Life or Inheritance or Goods of his Subjects which are not to be decided by natural Reason but artificial Reason and Judgment of Law which
Judgment requires long Study and Experience With which his Majesty was greatly Offended and said Then he should be under the Law which was Treason to be said To which I said that Bracton saith Quod Rex non debet esse sub homine sed sub Deo et Iege Mich. 8 Jacob. Regis Robert's Case In this Term in the Case of one Roberts a Prohibition had been granted in a Case upon Substraction of Tythes upon surmise that the Plaintiff being Defendant in the Spiritual Court had but one Witness there to prove his Demise to which the Court said That singugaris Testis is not allowable And upon sight of a Prohibition in the same Case in Hill 3 Eliz. in Banâ—o Regis It was Resolved by Coke chief Justice Et totam Curiam in Communi Banco that Consultation should be granted for divers Reasons 1. It appears by the Register fol. 5. that it is put for a Rule Quod non est consonum rationi quod cognitio accessorii in Curia Christianitatis impediatur ubi cognitio causae principalis ad forum Ecclesiasticum â—â—scitur pertinere and with this agrâ—es 1 R. 3. 4. 2. If such a surmise shall be allowed then in every Case for meer delay such a surmise may be made And when the spiritual Court hath Jurisdiction of the principal Cause they determine the accessory But it was objected That if A. claiming a Lease by B. of a Rectory Libels for substraction of Tythes and the Defendant pleads a former Lease made by B. and C. and the Defendant hath but one Witness in the Case to prove the former Lease if no Prohibition shall be granted the Defendant shall be charged And if C. sue him upon the Statute 2 Ed. 6. the testimony of one only shall be then sufficient and so he shall he twice charged To which it was answered That first the fault was the Defendants that he would not set forth his Tythes and then he shall be charged whosoever takes them But in such the Ecclesiastical Court will upon one good Witness and any concurrent vâ—hement presumption allow of such a proof But if a question arise upon construction of a Statute and the Ecclesiastical Court will Judge of it against the Rule of Law there upon special surmise of it a Prohibition lies And Coke chief Justice cited a notable Judgment Pasch 35 Eliz. in Banke le Roy. Fuller brought a Prohibition against Clements and Wiskard and Fuller counted that himself was Owner of the Rectory of Longham in the County of Norfolk and libelled against Clements before the Bishop of Norwiches Official for substraction of Tythes scil Wheat pendent which Suit Wiskard intervening pro intercesse suo made there allegations against Fuller 1. That the said Rectory was impropriate to the Monastery of Windling and by dissolution thereof came to H. 8. and conveyed it by mean Discent to Queen Elizab. who by Letters Patents granted it to Min and Hall who enfeofâ—ed Bozome who let it to Wiskard for four years and upon proof of his allegations in fine Sentence was given against Fullâ—r and several Costs given to Clements and Wiskard Fuller appeals to the Court of the Arches and there Claims the said Rectory from Halls being seized of it who by his Deed granted the same to Sir Edward Clere before Bozomes Feoffment and that Sir Edward did enfeoff Fuller and offered to prove the Deed made to Sir Edward by one sole Witness which the Ecclesiastical Court would not allow of And Fuller further said That though he had alledged these matters were determinable at Common Law yet they gave Sentence The Defendants to have a Consultation pleaded That Fuller proved the delivery of the Deed by Clere and Mouse but could not prove Livery and Seisin according to the Deed and that therefore Sentence was given without that that the Judges would not admit the proof without other Witnesses upon this Fuller demurred and his Council objected 1. That Wiskard pleads matter determinable meerly at Common Law viz Letters Patents c. and on the other part Fuller Claims an Estate in the Rectory by conveyance at Common Law And the Question in the Court Ecclesiastical being Who hath the best Estate in the Rectory this ought to be tryed by the Common Law for this is the Birth-right of the Subject 2. It was Objected That all matters in Law ought to be determined by the Judges of the Law And in this Case matters of Law arising as if a Rectory be granted by Deed with all Tythes c. and no Livery is made If the Tythes may pass with any Livery this is a question to be decided by the Judges of the Common Law Quod quisque novit in hoc se exerceat 3. It was objected That Wiskard was a meer stranger to the Suit and all his Allegation is Temporal and for that it is a stronger Case to maintain a Prohibition 4. It was Objected That Fuller had but one Witness to prove the delivery of the Deed and in the Ecclesiasticall Law Unus Testis et nullus Testis for which causes it was prayed the Prohibition might stand To which it was answered by Sir Christopher Wray chief Justice Et per totam Curiam to the first Objection That 1. Where the original belongs to the Ecclesiastical Court the determination of all that depends on it belongs to the same Court though the matter be tryable at Law but where the Original matter belongs to the Common Law and there commenced and issue taken upon matter tryable by the Ecclesiastical Law there the Judges of our Law shall write to the Judges of the Ecclesiastical Court to try it and to certify As in action Ancestral if Bastardy be pleaded in the Demandant and upon this Issue is joyned this shall be tryed by the Bishop and his Certificate shall bind So in a Quare Impedit But though such issues are in their nature Tryable by the Law Ecclesiastical yet if the Case was such that the Ecclesiastical Court could not try it then that Justice be not wantâ—ng such Ecclesiastical matter shall be tryed by the Common Law as 4 Ed. 3. 26. But against this was objected the Statute de Articulis Cleri cap. 13. Quod de Idoneitate personâ— persoâ—atae ad beneficium Ecclesiasticum pertineat examinatio ad Judicom Ecclesiasticum upon which it was concluded That the Tryall de idomeitate personae in all Cases belong to Court-Christian To which it was answered and resolved That the Tryal of ability belongs to them but this Tryal must be by examination of the Party 〈◊〉 39 Ed 3. 2. That Earl of Arundâ—ll'â— Case and 4 Ed. 3. 25. 16 Eliz. Dyer 327. So if Bastardy be alledgâ—d in one who is dead Vide 17 Ed. 3. 5. where Bastardy is alledged in the Tenant and one who is a stranger to the Writ who are Sâ—sters Vide 32 Ed. 3. Trial 59. where the Tenant doth alledge Bastardy in himself and the Demandant doth aver him
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
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
Helenam ideo ipsi c. Out of which Record these things are to be observed 1. Though it is Enacted by the Stat. West 2. cap. 21. That in this Case Justiciarii c. puniant appellatorem per prisonam unius Anni c. so that they were not Bailable yet quia eadem Helena praegnans fuit in periculo mortis she was let to Bayl to have her Body 15 Mich. ad satisfaciendum praedicto Laurentio et aliis c. And the Reason of this is because the Common-Law requires in every Case conveniency and it is inconvenient a Woman with Child should remain in Common-Gaol And the Judges of the Common-Law ought to know what the Moral Poet spoke Redâ—ere personae sit convenientia cuique and agrees with Advice of Bracton lib. 2. cap. 2. 2. That the Defendants recover their Damages either wholly against the Principle or wholly against the Abettors and with this agrees Ed. 4. 3. 3. Though the Statute saith Restituant Appellatores damna c. yet the Damages shall be singulatim assessed for as the Defamation of one may be greater than another so the Damages of one may be greater than another 4. Though the Appellor be not sufficient to pay yet his body shall be taken ad satisfaciendum Quia qui non habet in aere luat in corpore 5. Though the Jurors in the Appeal have found the Defendants Abettors yet insomuch as they are strangers to the Original they shal not be concluded Quia res inter alios actae alteri nocere non debent Vide the Book of Entries Title Appeal Divisione Damages 1 2. Vide Placita coram rege apud Ebor. in Crast Sancti Trin. 7 Ed. 3. 44. Divisione Indictments are very well worth observing Duresse per Gaoler See there divers sorts of Presentments as of Wollingover John Alnner Thomas Ballivus de Flaxwel Laughton Thomas de Mandon Ballivus de Boby of Grafton Thomas Carleton Under-Sheriff of the County of Lincoln and Hugo de Baxter c. False Affidavits In an Action suâ—le case it was Resolved per totam Curiam That iâ— a Sumner return one certified upon his Oath in Court-Christian where in truth he was not and thereon he is pronounced contumax and so becometh excommunicate he shall have his Action sur le case for here is damaum et injuria And it was Resolved That Perjury by which Damages do accrew may be punished as a Misuemeanour at the Suit of the King and also the Party may have his Action upon the Case for Perjury may not be committed with Impunity And for that Reason If Jurors themselves use Perjury an Attaint â—yes by the Common-Law as appears by Glanvil lib. 2. cap. 29. 15 H. 8. Title Attaint 75. 6 H. 3. ibid. 73 75. and in the time of Ed. 1. â—ttaint 70. West 1 cap. 38. Vide F. N. B. 109 Vid. 27 H. 6. 25. In like manner it was agreed That if one make a false Affidavit by which the Party is Arrested with Process of Contempt he may have an Actioâ— sur le case and recover Damage And though the Court-Christian may punish pro salute animae yet they cannot award Damages to he party And though the matter be meerly Ecclesiastical yet if the Party grieved hath Damages either by wrongful Proceedings of the Judge or Mâ—sfeasans or Nonfeasans or falsity of any Minister c. the Party grieved may have an Action sur le câ—se and recover Damages Doctor and Stud. 118 119. Action sur le Case lyes against the Ordinary for a wrongful Excommunication touching any thing out of his Jurisdiction c. So in Fitz. 47 H. 6. 8. If an Arch-Deacon refuse to induct the Clerk c. he shall have Action sur le case Which was affirmed for good Law by all the Court with which agrees 26 H. 8. 3. a. If a man proceed against a Prohibition the Party may have an Action upon the Case against him for prosecuting in Court-Christian Vid. Trin. 20 Ed. 3. Rot. 46. in the Treasury Richard Tresil's Case So the like Pasch 13 Ed. 3. Rot. 78. Philip de Harâ—eshals Case Hill 32 Ed. 3. Rot. 78. and Trin. 37 Ed. 1. and Mich. 29 Ed. 3. Rot. 19. similiter and divers other Records you may have See in my Book of Presidents Pasch 14 Jac. Regis An Habeas Corpus to the Marshal of the Admiralty granted in Hillary Term last past for Haukridge Prisoner in the custody of the said Marshal who did return Quaedâ—m causa spolii c. contra Haukridge pendet indecisa pro judicio sententia paratus c. Qui quidem Will Haukridge remanet donec antedict causa per praefat Daniel Dun suerit hoc est causa And also upon another Habeas Corpus he made such a Return and otherwise Parata sit c. Which the Court took to be very insufficient and gave divers days to amend the Return and to shew the cause of Delay and why Sentence was not given and the Marshal would not amend his Return Upon which the Party being in Prison 16 or 18 Weekes always the Return was est parata c. And after in another Writ returnable Crast Ascentionis was another Return of Parata c. without shewing cause of Delay The Return also was insufficient because Quaedam causa spolii civilis maritima quae coram c. which is too general for two Causes 1. Because spolii is uncertain and ought to be specified in some more certainty besides it shews not the value of the Goods 2. That Maritima est super littus or in portu maris and yet the Admiral hath not Jurisdiction Super littus maris or in portu because they are infra corpus comitat And so it was adjudged in Lacies Case Dyer 15 Eliz. the Abbot of Ransey's Case 15 Eliz. Dyer fol. 236. Pasch 17 Eliz. in Scaccar ac contra Digges for which cause he ought to have said Super altum mare intra Jurisdictionem Admiralli See the Stat. 13 R. 2. c. 5. 2 H. 4. c. 11 19 H. 6. 7. For the first all the Court Resolved that it was insufficient also there was shewn no time of the spoyl And for this in the same Term the said Haukridge was bailed in open Court till the next Term according to the Books 6 H. 6. 44. 28 H. 8. c. 15. Note It was said by some That when Judgment is given that one shall be hanged till he be dead the King cannot alter the Judgment and command that he shall be beheaded for the Execution ought to be conform to the Judgment and with this accords 35 H. 6. fol 58. and Stamf. lib. 1. fol. 13. Vide 27 Ass pl. 41. F. N. B. 144. 22 Ass pl. 49. Duke of Somersets Case and the Lord Sturtons Case in Queen Mary's time and the Lord Datres his Case in H. 8. both which were hanged for Felony It was Resolved also That King H. 8. could not by
Fostér Justices That the Archbishop of Canterbury is restrained by the 23 H. 8. cap. 9. to câ—â—e any one out of his own Diocess for Diocâ—ses dicitur distinctio c. quae divisa vel diversa est ab Ecclesia alterius Episcopatus commissa gubernatio in unius and is derived a Di that signifies duo two et Electio quia separat duas Jurisdictiones And because the Archbishop of Canterbury hath a peculiar Jurisdiction in London for this cause it is fitly said in the Title Preamble and Body of the Act that when the Archbishop sitting in his exempt Peculiar in London cites one dwelling in Essex he cites him out of the Bishop of Londons Diocess ergo out of the Diocess And in the Clause of the Penalty of 10 l. it is said Out of the Diocess c. where the Party dwelleth which agrees with the signification of Diocess befóre And the words far off were put in the Preamble to shew the great mischief that was before the Act as the 32 H. 8 cap. 33. in the Preamble it is disseizins with strength And the Body of the Act saith such Disseizor the same extending to all Disseizors but Disseizin with force is the greatest mischief 4 and 5 Eliz. Dyer 219. So West 2. cap. 5. adjudged 44 Ed 3. 18. So 21 H. 8. cap. 15. In all which the Case is stronger than the Case at Barre there the word such in the Body of the Act referring to the Preamble which is not in our Case 2. The Body of the Act is No Person shall be henceforth cited before any Ordinary c. out of the Diocess or peculiar Jurisdiction where the Person shall be dwelling and if so then a fortiori the Court of Arches which sits in a Peculiar shall not cite oâ—hers out of another Diocess And the words out of the Diocess are meant of the Diocess or Jurisdiction of the Ordinary where he dwelleth 3. Observe the Preamble of the Act recites expresly That the Subjects were called by compulsory Process to appear in the Arches Audience and other Courts of the Archbishoprick of this Realm So that the Intention of the Act was to reduce the Archbishop to his proper Diocess unless in five Cases 1. For any Spiritual Offence or Cause committed or omitted contrary to Right and Duty by the Bishop c. which word omitted proves there ought to be a Default in the Ordinary 2. Except it be in Case of Appeal and other lawfull Cause where the Party shall find himself grieved by the Ordinary after the matter there first begun ergo it ought to be first begun before the Ordinary 3. In case the Bishop or Ordinary c. dare not or will not convent the Party to be sued before him 4. In case the Bishop or Judge of the place within whose Jurisdiction or before whom the Suit by this Act should be begun and prosecuted be party directly or indirectly to the Matter or Cause of the same Suit 5. In case any Bishop or other inferiour Judge under him c. make Request to the Archbishop Bishop or other inferiour Ordinary or Judge and that to be done in Cases onely where the Law Civil or Common doth affirm c. 1. Also there are two Provisoes which explain it also viz. That it shall be lawful for every Archbishop to cite any person inhabiting in any Bishop Diocess in his Province for matter of Heresie by which it appears that for all Causes not excepted he is prohibited by the Act. 2. There is a saving for the Archbishop calling any Person out of the Diocess where he shall be dwelling to the Probate of any Testament which Provisoe should be vain if notwithstanding that Act should have concurrent Authority with every Ordinary throughout his whole Province Wherefore it was concluded That the Arch-Bishop out of his Diocess unless in the Cases excepted is prohibited by the 23 H. 8. to cite any man out of any other Diocesse which Act is but a Law declaratory of the antient Canons and a true Exposition of them And that appears by the Canon Cap. Romana in sexto de Appellationibus Cap. de competenti in sexto And the said Act is so expounded by all the Clergy of England at a Convocation at London Anno 1 Jac. Regis 1603. Canon 94. And whereas it is said in the Preamble of the Act in the Arches Audience and other High-Courts of this Realm It is to be known that the Archbishop of this Realm before that Act had power Legantine from the Pope By which they had Authority not onely over all but concurrent Authority with every Ordinary c. not as Archbishop of Canterbury c. but by his Power and Authority Legantine Et tria sunt genera Legatorum 1. Quidam de latere Dom. Papae mittuntur c. 2. Dativi qui simpliciter in Legatione mittuntur c. 3. Nati seu nativi qui suarum Ecclesiarum praetextu legatione fingantur et sunt 4. Archiepiscopus Cant. Eboracensis Remanensis et Pisanis Which Authority Legantine is now taken away and abolished utterly 3. It was Resolved That when any Judges are by Act of Parliament if they proceed against the Act there a Prohibition lyes As against the Steward and Marshal of the Houshold Quod non teneant placita de libero tenemento de debito de Conventione c. So Articuli super Chartas cap. 3. Register fol. 185. So against the Constable of Dover So to Justices of Assize Quod inquisitiones quae sunt magni exactionis non capiantur in Patria So to the Treasurer and Barons of the Exchequerâ— upon Art super Chart. c. 4. Stat Rutland cap. ult See F. N. B. 45. 46 c. 17 H. 6. 54. vide 13 Ed. 3. Title Prohibition So against all Ecclesiastical Judges upon 2 H. 5. 3. and therewith agrees 4 Ed. 4. 37. and F. N. B. 43. c. So the Case upon the Stat. 2 H. 5. c. 15. as appears by the President 5 Ed. 4. Keysons Case 10 H. 7. 17. See Paston's Opinion 9 H. 6. 3. See the 35 H. 6. 6. when any things is prohibited by a Statute if the Party be convicted he shall be fined for the Contempt to the Law And if every person should be put to his Action upon the Statute it would encrease Suits and a Prohibition is the shorter and easier way And the Rule of the Court was Fiat prohibitio Curiae Cantuar. de Arcubus Inter partes praedict per Curiam And Sherly and Harris jun. Sergeants at Law were at Councel of the Case Mich. 6 Jac. Reges Edward's Case The High-Commissioners in Causes Ecclesiastical objected divers English Articles against Thomas Edwards of Exeter As 1. That Mr. John Walton being trained up in Oxferd University was there worthily admitted to several Degrees of Schools and deservedly took upon him the Degree of Dr. of Physick 2. That he was a Reverend and well-practised man in the Art of Physick 3. That
c. Mills c. and to correct repair or pull down c. as cause requireth according to their discretions c. after the effect of the Statute made before the 1. of March 23 H. 8. By which appears that the Commissioners discretion was limited viz. to proceed according to the Statutes and Ordinances before made c. And the said Act provides That all and every Statute Act and Ordinance heretofore made concerning the Premises not contrary to this Act nor repealed shall stand good and be effectual for ever But the said Acts 25 Ed. 3. and 1 H. 4. are not contrary to the said Act nor repealed and always such construction ought to be made that one part of the Act may agree with another And according to this Resolution We certified the Lords of the Councel that the said Star 25 E. 3. 1 H. 4. remained yet in force and that the Authority given by the Commission of Sewers did not extend to Mills Mill-stanks Cawseys c. erected before Ed. 1. unless they have been inhanced and then they are not to be subverted but reformed by abating the Inhancement onely Trin. 7 Jacobi Regis The Case de modo Deciâ— andi and of Prohibitions Richard Archbishop of Canterbury with the Bishops of London Bath and Wells and Rochester divers Doctors of the Civil and Canon-Law as Dr. Dun Judge of the Arches Dr. Rennet Judge of the Prerogative Dr. James Dr. Martin and others came and attended the King at White-Hall the Thursday Friday and Saturday after Easter Term in the Councel-Chamber where the Chief Justice and I my self Daniel Judge of the Common-Pleas and Williams Judge of the Kings-Bench by the King's Command attended also where the King assisted with his Privy-Councel all sitting at the Councel-Table spake as a most Gracious Soveraign to this effect As He would not suffer any Novelties or Innovations in his Courts of Justice Ecclesiastical and Temporal so he would not have any the Laws which had Judicial Allowances in the Times of his Predecessors Kings of England to be forgotten And forasmuch as Contentions between the Temporal and Ecclesiastical Courts cannot but breed great Inconvenience to the Subjects especially when the Controversie ariseth upon the Jurisdiction of his Ordinary Courts of Justice And because he was the Head of Justice immediately under God and knowing what hurt may grow to his Subjects when the Jurisdiction of his Courts are drawn in question He thought it concerned him as a King to hear the Controversies between the Bishops and Clergy and the Judges of his Laws of England and to take Order that the one do not encroach upon the other And He said The onely Question then to be disputed was If a Parson or Vicar of a Parish sues one of his Parish in the Spiritual Court for Tythes in Kind or Layfee and the Defendant alleadgeth a Custom or Prescription de modo Decimandi if that Custom or Prescription shall be tryed and determined before the the Judge Ecclesiastical where the Suit is begun or a Prohibition lyeth to try the same by the Common-Law And the King directed that We who were Judges should declare the Reasons of our Proceedings and what Authorities in the Law we had to warrant our Proceedings in granting Prohibitions in Cases de modo Decimandi But the Archbishop of Canterbury kneeled before the King and desired he would hear him and others provided to speak in the Case for the good of the Church of England And the Archbishop inveighed chiefly against two things 1. That a Modus Decimandi should be tryed by a Jury because they themselves claim more or less modum Decimandi so as in effect they were Tryers in their own Cause or in the like Cases 2. He inveighed much the precipitate and hasty Tryals by Juries and after him Dr. Bennet made a large Invection against Prohibitions in causis Ecclesiasticis and he made five Reasons why they should try modum Decimandi 1. The first and principal was out of the Register fol. 58. quia non est consonans rationi quod cognitio accessarii in Curiae Christianitatis impâ—diatur ubi cognitio causae principalis ad forem Ecclesiasticum noscitur peâ—tinere And the principal cause is Right of Tythes and the Plea of Modus Decimandi sounds in satisfaction of Tythes and therefore the Conuzance of the Original Cause viz. the Right of Tythes belonging to them the Conuzance of the Bar of Tythes belonged to them And whereas it is said in the second Part of my Reports in the Bishop of Winchesters Case and 8 Ed. 4. 14. that they would not accept of any Plea in discharge of Tythes in the Spirituall Court he said they would allow such Pleas and had allowed them being duly proved before them 2. There was great inconveniency that Lay-men should be Tryers of their own Customs for they shall be Jurors in their own Cause 3. That the Custom of Modo Decimandi is of Ecclesiastical Jurisdiction for it is a manner of Tything and all manner of Tything belongs to Ecclesiastical Jurisdiction and therefore he said if the Right of Tythes be of Ecclesiastical Conuzance and the Satisfaction also for them of the same Jurisdiction the same shall be tryed in the Ecclesiastical Court 4. In the Prohibitions of Modus Decimandi Averment is taken that though the Plaintiff in the Prohibition offer to prove Modum Decimandi the Ecclesiastical Court doth refuse to allow it but he said they would allow such Plea and therefore Cessante causa cessabit et effectus and no Prohibition shall lye 5. He said he can shew many Consultations granted in the Cause de modo Decimandi and a Consultation is of greater force then a Prohibition And Bacon Sollicitor General being as is said assigned with the Clergy by the King said less then Dr. Bennâ—t but he vouched 1 R. 3. 4. the Opinion of Hussey when the Originall ought to begin in the Spiritual Court and afterwards a thing cometh in Issue and is Tryable by our Law yet it shall be tryed by their Law See the Register 57 58. 38 Ed. 3 5. and 38 Ed. 3. 6. And the Judges made humble Suit to the King That in regard they perceived his Majesty in his Princely Wisdom derested Novelties and Innovations that He vouchsafe to suffer them to inform him of one Innovation which they did conceive would tend to hinder the Administration of Justice within his Realm Your Majesty for the due Administration of Justice hath made 14 Judges to whom you have committed not onely the Administration of ordinary Justice but crimina Laesae Majestatis Also in Parliament we are called by Writ to give our Advice and Councel to your Majesty and the Lords when we are required We two Chief Justices sit in the Star-Chamber Chancery Court of Wards and other High-Courts of Justice We in our Circuits do visit twice in the Year your Realm and execute Justice according to your Laws and if We
capiantur in Patria A Prohibition lyes to the Justices of Nisi Prius So upon Articuli super chartas cap. 7. to the Constable af Dover Regist 185. So upon the same Stat. cap. 3. to the Steward and Marshal of the Houshold 185. and yet no Prohibition is given by express words in any of these Statutes So upon the Statutes 13 R. 2. c. 3. 15 R. 2. c. 2. 2 H. 4. c. 11. a Prohibition lyes to the Admiralty Court So upon West 2. c. 43. against Hospitals and Templers Regist 39. a. So upon the Stat. de Prohibitione regia a Prohibition lyes So upon the Stat. 2. H. 5. c. 3. and upon that Stat. 4 E. 4. 37. the Case was Peirce Peckham took Letters of Administration of the Goods of Rose Brown of the Bishop of London afterwards T. T. sued to Thomas Archbishop of Canterbury to have Administration committed to him because Rose Brown had Goods in his Diocess and they were granted to him Afterward T. T. Libelled in the Court of the Arches against Peirce Peckham to repeal his Administration and Peirce Peckham according to the Stat. prayed a Copy to the Libel and could not have it and thereupon he sued a Prohibition and upon that an Attachment And there Catesby Sergeant moved that a Prohibition did not lye for two Causes 1. The Statute says that the Libel shall be deliver'd but not that the Plea shall surcease 2. The Statute is not intended of Matter meerly Spiritual And there Danby Chief Justice If you will not deliver the Lâ—bel according to the Statute you do wrong which wrong is a Temporal matter and punishable at the Common-Law and therefore the party shall have a special Prohibition And always after the said Act in every Term throughout the Reigns of Ed. 6. Q. Mary and Q. Eliz. to this day Prohibitions have been granted in Modo Decimando and Judgments given upon many of them without any contradiction and accordingly all the Judges Resolved 7 Ed. 6. Dyer 79. Et contemporanea expositio est optima et fortissima in lege et minime mutanda sunt quae certam habuerunt interpretationem 1. As to the first Objectio That the Plea of Modus Decimandi is but accessary to the Right of Tythes It was Resolved That the same was of no force for three Causes 1. In this Case admitting there is a Modus Decimaâ—di then by the Custom and by the Act 2. E. 6. and the other Acts the Tythes in Kind are extinct and discharged for one and the same Land cannot be subject to two manner of Tythes but the Modus Decimandi is all the Tythe with which the Land is chargeable and it shall be intended that the Modus Decimandi began at first by reall Composition So as in this Case there is neither Principal nor Accessary but an Identity of the same things 2. The Stat. 2 Ed. 6. being a Prohibition in it self and that in the Negative If the Ecclesiastical Judge doth against it a Prohibition lyes as appeareth clearly before 3. Though the Rule be general yet it appears by the Register it self that a Modus Decimandi is out of it for there is a Prohibition in causa modi Decimandi when Lands are given in satisfaction of the Tythes 2. As to the second Objection It was Answered and Resolved That that was from or out of the Question for status Quaestionis non est deliberativussed judicialis for convenient or inconvenient is not the Question but what the Law is 3. As to the third Objection it was answered and resolved First That satisfactio pecuniaria of it self is Temporal But because the Parson hath not remedy pro modo Decimandi at Common by force of the Acts cited before he might sue pro modo Decimandi in the Ecclesiastical Court But that proves not That if he sue for Tythes in Kind which are utterly extinct c. that upon the Plea de modo Decimandi that a Prohibition should not lye for the contrary appears without all question by what hath been said before See also 12 H. 7. 24. b. 39 Ed. 3. 22 E. 4. Consultation As to the Objection That Averment is taken of the Refusal of the Plea of Modus Decimandi It was answered and Resolved That the same is of no force for divers Causes 1. It is onely to inforce the Contempt 2. If the Spiritual Court ought to have the Tryal de modo Decimandi then the refusing to accept such a Plea should give cause of Appeal not of Prohibition 3. From the beginning of the Law no Issue was ever taken upon the Refusal of the Plea in causa modi Decimandi nor any Consultation granted to them because they did not refuse but allow the Plea 4. The Refusal is no part of the matter issuable or material in the Plea and therefore the Modus Decimandi is proved by two Witnesses according to the Stat. 2 E. 6. cap. 13. and not the Refusal which proves the Modus Decimandi is onely the Matter of Suggestion not the Refusal 5. All the said five Matters of discharge of Tythes mentioned in the said Act of 2 Ed. 6. ought to be proved by two Witnesses and so have been always since the making of the said Act. And therefore it clearly intended that Prohibitions should be granted in such Cases 6. Though they would allow bona fide de modo Decimandi without Refusal yet if the Parson sue there for Tythes in Kind when the Modus is proved the same being expresly forbidden by that Act 2 Ed. 6. 13. a Prohibition lyes though the Modus be Spiritual as appears by the Book 4 E. 4. 37. Afterwards the third day of the Debate of this Case before the King Dr. Bennet and Dr. Martin had reserved divers Consultations granted in causa modi Decimandi thinking they might work upon the King's Opinion and thereupon they said That Consultations were the Judgments of Courts had upon Deliberations whereas Prohibitions were onely granted upon Surmises And they shewed 4 Presidents 1. One where three joyntly sued a Prohibition in the Case of modo Decimandi and the Consultation saith Pro co quod suggestio materiaque in eodem content a minus sufficiens in lege existit c. 2. Another in causa modi Decimandi to be paid to the Parson or Vicar 3. Where the Parson sued for Tythes in Kind and the Defendant alleadged modus Decimandi to be paid to the Vicar 4. Where the Parson Libelled for Tythe-Wooll and the Defendant alleadged a Custom to reap Corn and make it into Sheaves and set forth the Tenth Sheave at his Charges and so of Hay to sever it from the Nine Cocks at his Charge in full satisfaction of the Tythes of the Corn Hay and Wooll To which I answer'd and humbly defir'd the King to observe these were reserved for the last and center-point of their Proof And herein these things may be observed 1. That the Kings Courts do them Justice when with
shall be extinct for Fealâ—y is by necessity of Law incident to the Reversion but the Rent shall be divided pro rata portionis and so it was adjudged And it was also adjudged That though Collins come to the Reversion by several Conveyances and at severall times yet he might bâ—ing an Action of Debt for the whole Rent Hill 43 Eliz. Rot. 243. West and Lassels Case So Hill 42 Eliz. Rot. 108. in the Common Pleas Ewer and Moylâ—s Case Note It was adjudged 19 Eliz. in the Kings-Bench that where one obtained a Prohibition upon Prescription de modo Decimandi by payment of a sum of money at a certain day upon which Issue was takeâ— and the Jury found the modus Decimandi by payment of the said sum but at another day the Case being well debated at last it was Resolved That no Consultation should be granted for though the day of payment may bâ— mistaken yet a Consultation shall not be granted where the Soitâ—tual Court hath not Jurisdiction of the Cause Taafi ld Chief Baron hath the Report of this Cause Mich. 7 Jac. Regis In an Ejectione Firmae he Writ and Declaration were of two parts of certain Lands in Hetherset and Windham in the County of Norfolk and saith not in two parts in three parts to be divided and yet it was good as well in the Declaration as the Writ for without question the Writ is good de duabus partibus generally and so is the Register See the 4 E. 3. 162. 2 E. 3. 31. 2 Ass 1. 10 Ass 12. 10 E. 3. 511. 11 Ass 21. 11 E. 3. Bre. 478. 9 H. 6. 36. 17 E. 4. 46. 19 E. 3. Bre. 244. And upon all the said Books it appears that by the Intendment and Construction of the Law when any parts are demanded without shewing in how many parts the whole is divided that there remains but one part undivided But when any Demand is of other parts in other form there he ought to shew the same specially And according to this difference it was resolved in Jordan's Case in the Kings-Bench and accordingly Judgment was given this Term in the Caseat Bar. Mich. 7 Jac. Regis In the Common-Pleas Muttoa's Case An Action upon the Case was brought against Mutton for calling the Plaintiff Sorce and Inchanter who pleaded Not Guilty and it was found against to the Damage of six pence And it was holden by the whole Court in the Common-Pleas that no Action lyes for the laid words for Sortilegus est qui per sortes futura praenunciat Inchantry is vordis aut rebus adjunctis aliquid praeter naturam moliri See 45 Ed. 3. 17. One was taken in Southwark with the Head and Visage of a dead man and with a Book of Sorcery in his Mayl and he was brought into the Kings-Bench before Knevet Justice but no Indictment was framed against him for which the Clerks made him swear never after to commit Sorcery and he was sent to Prison and the Head and Book were burn'd at Tuthil at the Prisoners charges The antient Law was as by Britton appears that who were attainted of Sorcery were burned but the Law at this day is they shall onely be fined and imprisoned So if one call another Witch an Action will not lye But if one say She is a Witch and hath bewitched such a one to death an Action upon the Case lyes if in truth the party be dead Conjuration in the Stat. 5 Eliz. cap. 16. is taken for Invocation of any evil and wicked Spirits and the same by that Act is made Felony But Witchcraft Inchantment Charms or Sorcery is not Felony if not by them any person be killed or dyeth The first Statute made against Conjuration Witchcraft c. was the Act 33 H. 8. c. 8. and by it they were Felony in certain Cases special but that was repealed by the 1 Ed. 6. c. 12. Mich. 7 Jae Regis In the Court of Wards Sir Allen Percy 's Case Sir John Fitz and Bridget his Wife being Tenants for life of a Tenement called Ramshams the remainder to Sir John Fitz in Tail the remainder to Bridget in Tail the reversion to Sir John and his Heirs Sir John and Bridget his Wife by Indenture demised the said Tenement to William Sprey for divers years yet to come except all Trees of Timber Oakes and Ashes and liberty to carry them away rendring Rent And afterwards Sir John dyed having Issue Mary his Daughter now Wife of Sir Allen Percy Knight and afterwards the said William Sprey demised the same Tenement to Sir Allen for 7 years The Question was Whether Sir Allen having the immediate Inheritance in right of his Wife expectant upon the Estate for the life of Bridget and also having the Possession of the said Demise might cut down the Timber Trees Oakes and Ashes And it was objected he might well do it for it was Resolved in Sanders Case in the 5th Part of my Reports That if Lessee for years or life assigns over his term or Estate to another excepting the Mines or the Trees c. that the Exception is void But it was answered and Resolved by the two Chief Justices and the Chief Baron that in the Case at Bar the Exception was good without question because he who hath the Inheritance joyns in the Lease with the Lessee for life And it was further Resolved That if Tenant for life Leaseth for years excepting the Timber Trees the same is lawfully and wisely done for otherwise if the Lessee or Assignee cut down the Trees the Tenant for Life should be punished in Wast and should not have any remedy against the Lessee for years But when Tenant for life upon his Lease excepteth the Trees if they be cut down by the Lessor the Lessee or Assignee shall have an Action of Trespass Quare vi armis and shall recover Damages according to his loss And this Case is not like the Case of Sanders for there the Lessee assigned over his whole Interest and therefore could not except the Mines Trees c. But when Tenant for life leases for years except the Timber Trees the same remaineth yet annexed to his Free-hold and he may command the Lessee to take them for necessary Reparations of his Houses And in the said Case of Sanders a Judgment is cited between Foster and Miles Plaintiffs and Spencer and Bourd Defendants That where Lessee for years assigns over his Term except the Trees that Wast in such Case shall be brought against the Assignee But in this Case without question Wast lyeth against Tenant for life and so there is a difference Mich. 7 Jac. Regis In the Court of Wards Hulme's Case The King in Right of his Dutchy of Lancaster Lord Richard Hulms seized of the Mannor of Male in the County of Lancaster holden of the King as of his Dutchy by Knights Service Mesne and Robert Male seized of Lands in Male holden of the Mesne as of his said Mannor by Knights