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
their Consciences and Oaths they can 2. That all the said Cases are clear in the Judgment of those who are Learned in the Laws that Consultation ought by the Law to be granted 1. For as to the first President the Case upon their own shewing is Three Persons joyned in one Prohibition for three several parcels of Land each having a several sort of Tything and their Interests being several they could not joyn and therefore a Consultation was granted 2. To the second the manner of Tything was alleadged to be paid to the Parson or Vicar which is uncertain 3. To the third The Modus never came in Debate but whether the Tythes did belong to the Parson or Vicar which being between two Spiritual Persons the Ecclesiastical Court shall have Jurisdiction and therewith agrees 38 E. 3. 6. 4. To the last The same was upon the matter of a Custom of a Modus Decimandi for Wooll for to pay the Tythe of Corn or Hay in Kind in satisfaction of Corn Hay and Wooll cannot be a satisfaction for the Wooll for the other two were due of common right The Bishop of London answer'd That the words of the Consultation were Quod suggestio praedicta mattriaque in eadem cohtenta minus sufficiens in lege existit c. So as materia cannot be referâ—ed to Form and therefore it ought to extend to the Moâ—us Decimandi To which I answer'd That when the Matter is insufficiently or uncertainly alleadged the Matter it self faileth and though the Matter be in truth sufficient yet if it were insufficiently alleadged the Plea wanteth matter Then the Lord Treasurer saâ—d he wondered they would produce things that made more against them then any thing had been said And when the King relyed upon the Prohibition in the Register when Land is given in discharge of Tythes the Lord Chancellor said That was not like this Case For there by the Gift of the Land the Tythes were discharged but in the Case de modo Decimandi an Annual Sum is paid yet the Land remains charged and is to be discharged by Plea de modo Decimâ—ndi All which I utterly denied For the Land was as absolutely discharged of the Tythes in casu de modo Decimandi as where Lands are given All which the King heard with patience and the Chancellor answer'd no more After the King with all his Councel had for 3 dayes together heard the Allegations on both sides he said He would maintain the Laws of England and that his Judges should have as great respect from all his Subjects as their Predecessors And for the Matter he said for any thing had been said on the Clergies part he was not satisfied and advised Us the Judges to confer among our selves and that nothing be encroached in the Ecclesiastical Jurisdâ—ction and they to keep within their Jurisdiction And this was the end of these three dayes Consultation Note Dr. Bennet in his Discourse inveighed much against the Opinion 8 E. 4. 14. and in my Reports in Wrights Case That the Ecclesiastical Judge would not allow a Modus Decimandi and said that was the Mistery of Iniquiâ—y and they would allow it The King asked for what cause it was so said in the said Books To which I answer'd That it appears in Linwood who was Dean of the Arches and a Profound Canonist who wrote in Henry the Sixth's time in his Title De decimis cap Quoniam propter c. fol. 139. b. Quod decimae soluantur absque ulla diminutione And in the Gloss it is said Quod consuetudo de non Decimando aut de non bene decimando non valet And that being written by so great a Canonist was the cause of the said Saying in 8 E. 4. that they would not allow the said Plea de modo decimandi And it seemed to the King that that Book was a good cause for them in Edward the Fourth's time to say as they had said But I said I did not rely thereon but on the Grounds aforesaid Lastly The King said that the High Commission ought not to meddle with any thing but that which is enormous and which the Law cannot punish as Heresie Schism Incest and the like great Offences And the King thought that two High-Commissions for either Province one should be sufficient for all England and no more Mich. 39 40 Eliz. In the Kings-Bench Bedel and Sherman's Case Mich. 39 40 Eliz. Which is entred Mich. 40 Elizâ— in the Common-Pleas Rot. 699. Cantabr the Case was this Robert Bedel Gent. and Sarah his Wife Farmers of the Rectory of Litlington in the County of Cambridge brought an Action of Debt against John Sherman in custodia mariscalli c. and demanded 550 l. and declared that the Master and Fellows of Clare-Hall in Cambridge were ieized of the said Rectory in Fee in right of the said Colledge and the 10 Jun. 29 Eliz. by Indenture dâ—nised to Christopher Phesâ—nt the said Rectory for 21 years rendring 17 l. 15 s. 5 d. and reserving Rent-corn according to the Statute c. which Rent was the antient Rent who entred and was possessed and assigned all his Interest to one Matthew Bats who made his last Wâ—ll and made Sarah his Wife Executrix and dyed Sarah proved the Will and entred and was thereof possessed as Executrix and took to Husband the said Robert Beâ—el by force whereof hey in right of the said Sarah entred and were possessed and the Defendant was thâ—n Tenant and seized for his life of 300 Acres of Arable Lands in Litlington aforesaid which ought to pay Tythes to the Rector of Litlington and in 38 Eliz. the Defendant Sâ—minavit grano 200 Acres paâ—c â— c. the Tythes whereof amounted to 150 l. And the Defendant did not set forth the same from the Nine Parts but carryed them away contrary to the Statute 2 E 6 c. The Defendant pleaded Nihil debet And the Jury â—ound that the Defendant did owe 55 l. and to thâ— rest they found Nihil debet And in Arrest of Judgment divers Matters were moved 1. That Grano Seminata is too general and it ought to be expressed with what kind of Grain the same was sowed 2. It was moved If the Parson ought to have the treble value the Forfeiture being â—xoresly limited to none by the Act. or that the same beâ—ong to the Queen 3. If the same belong to the Parson if he ought to sue for it in the Ecclesiastical Court or in the King 's Temporal Court 4. If the Husband and Wife should joyn in the Action or the Husband alone and upon solemn Argument at the Barre and Bench Judgment was affirmed Trin. 7 Jac. Regis In the Court of Wards John Bayley's Case It was found by Writ of Dien clausit extremum that the said John Bayley was seized of a Messuage and of and in the 4th part of one Acre of Land late parcel of the Demesne Lands of the Mâ—nnor of Newton in the
die causa c. Et iidem Justiciarii hic visa causa illa ulterius fieri fecerint quod c. Et modo hic ad hunc diem viz. diem Sab. prox Oct. Sanct. Mich. isto eoâ—um termino venit praed Anthonius in propria persona suaâ— sub custod praed Guard ad Barr. hic praed idem Guardianus tunc hic mand Quod ante advent brevis praed vâ—z 9. die Oct. ult praeter praed Anthonii Roper mil. reducit se prison praed perantea Commissus virtute cujusdam â—arranti dat 30 die Junii ult praeter quod sequitur in haec verba viz. These are in his Majâ—sties Name to require and charge you by Vertute of his High-Commission for causes Ecclesiastical under the Great Seal of England to us and others directed that herewith you receive and take into your Custody the Body of Sir Anthony Roper Knight and him safely detain c. signifying unto you That the cause of his Commitment for that there being a certain cause c. betwixt him the said Sir Anthony Roper and John Bullbrooke Vicar of Bently for that he detained wrongfully from him the said Vicar a certain yearly Pension c. Given at Lambeth this thirtieth of June 1607. Et quod haec suit causa captionis et detentionis praed Anthonii in prison praed corpus tamen praed Anthonii modo hic paratus hâ—bet prout â— super quo visis praemissis per Justiciurios hic plenius examinatis videtur iisdem Justiciariis hic quod praed causa Commissionis praed Anthonii prison de Fleet praeâ— in retorn spâ—cificat minus sufficiens in lege existit c. Idco prad Anthonius a prisona prad per-Cur hic dimittitur ac idem Guardianus de hujusmodi Custodia per eand Cur. hic plene exoneretur And this was resolved una voce by Coke chief Justice Walmesly Warberton Daniel and Foster Justices And in the same Term in I am's Case A Parson in Noâ—folk that sued one of his Parishioners before the High-Commissioners for Scandal in saying only in the Church on a Sabbath day That he was a wicked man and an arrant Knave Prohibition lyes for this That it was not so enormous as the Staâ—â—te intended Hill 5 Jac. Regis Note It was moved to the Justices this Term upon consideration of the Acts of 34 H. 8. and 18 Eliz. If the Justices in Wales may be Constituted by Commission and it was conceived they could not but that it ought to be by Patent as hath been ever used since 34 H. 8. Then it was moved If the King by force of a Clause there in might do it which Clause is That the King 's most Royal Majesty shall and may at all times hereafter change adde alter minish and reform all manner c. And it seemed to divers of the Justices that this Power given to the King determin'd by his Death for divers Causes 1. Because it wants these Words His Successors and to draw it in Succession by Construction would be against the Intention of the Maker of the Act For they gave this high Power of Alteration c. of Laws to the King as to his most Excellent Wisdom shall be thought most meet which words want His Successors For they well knew his Wisdom did not go in Succession so the Power went not in Succession And for this that Eorum progressus ostendent multa quae ab initio provideri non possunt And what ensues upon this concerning this uniting of Wales and England none could divine But it was never the Intention of the said Act to give Power to the King and his Successors for ever to alter c. 2. Power of Alteration of Laws c. is a Point of Confidence concerning the Administration of Justice which the Act by omitting of his Successors intended to unite this Confidence to the Person of H. 8. and not to extend it without Limitation of time to his Successors 1 Ed. 5. 1. 1 H. 7. 1. 14 Ed. 4. 44. All Commissions concerning Administration of Justice determine by the King's Death Not so if he make a Lease durante bene placito or present one to a Church these are not void by his Death untill revoked by his Successor And upon Certificate of the Justices Opinion That the Justices of Wales cannot be Constituted by Commission Baron Snig had a Patent for the Circuit of Wales as others before him had Trin. 6 Jac. Regis This Term it was Resolved per totam Curiam in Communi Banco viz. Coke Chief Justice Walmesly Warberton Daniel and Foster in the Case of Allan Ball That the High-Commissions cannot be force of the Act 1 Eliz. cap. 1. send a Pursivant to Arrest any Person subjâ—ct to their Jurisdiction to answer to any matter before them But they ought to proceed according to Ecclesiasticall Law by Citation And in the Circuit of Northampton when the Lord Anderson and Glanvile were Justices of Assize a Pursivant was sent by the Commissioners to Arrest the Body of a Man to appear before them and in resistance of the Arrest and striving among them the Pursivant was killed And if this was Murther or not was doubted and it was Resolved that the Arrest was tortious and by consequence that this was not Murther though the killing of an Officer of Justice whose Authority is lawful in Execution of his Office is Murther But they may send Citation by a Puisivant and upon default proceed to Excommunication and then to have a Capias Excommunicatum which Writ de excommunicato capiendo is preserved and returnable by the Statute 5 Eliz. See Magna Charta and all the antient Statutes Vid. Rast Title Accusation Marmaduke Langdale's Case In the Case of Marmaduke Langdale of Leventhorp in the County of York by Joan his Wife being sued for maintenance before the Bishop of Canterbury and others High-Commissioners It was Resolved per totam Curiam praeter Walmesly that a Prohibition before granted was well maintainable because it was not any Enormity nor Offence within the Statute but a neglect of his duty and a Breach of his Vow of maintenance And the Rule of the Court was That the Plaintiff shall count against the High-Commissioners and upon Demurrer joyned the Case to be argued and adjudged and the Party grieved to have a Writ of Errour si sibi viderit expedire c. Upon Complaint made to the King and Councel by the Lord President of Wales and the Lord President of York against the Judges of the Realm and the King's Pleasure signified to them Upon Consideration had of the parts of the Complaint they Resolved upon these Answers And because of the Lord President of York first opened the Cause of his Grief more amply they first answered those Objections made on the behalf of that Councel And first as to the Institution of that Court. 1. After the Suppression of all Religious Houses Anno 27. H. 8. in
Mulier Vide 29 Ass pl. 14. b. Eliz. Dyer 226. 228. If the issue be Quod vacavit pâ—r resignationem part of which is Spiritual part Temporal this shall be tryed per paiis vide 9 H. 7. But admission and in iâ—ution though it be alledged in a stranger to the Writ yet this shall be tryed by the Ordinary as appears 7 Ed. 6. 78. 6. in Dyer similia 2. To the second answered and resolved That if upon Consultation with men learned in the Law they give Sentence according to Law this is well done and no Prohibition ought to granted but if they draw the interest of any man ad alîud examen there Prohibition lyes And in the Case at the Barr they well resolved the Law for by the said Livery of the Charter the Tythes do not pass as in gross because the intention of Parties was to pass the entire Rectory by the Feoffment and to pass the Tythes and so dismember the Rectory 3. As to the third Resolved That by the Ecclesiastical Law a stranger may come in pro interesse suo and when they have Jurisdiction of the Original cause of a Suite we ought not to question their proceeding unless they proceed inverso ordine and this ought to be redressed by appeal 4. As to the fourth Resolved That such a surmise That he hath but one Witness is not sufficient to have a Prohibition because the Court Ecclesiastical hath jurisdiction of the Principle And if such surmise shall be sufficient all Suits in the Ecclesiastical Court shall be delayed or quite taken away for such surmise may be made in every Case It was Resolved upon Evidence by Coke chief Justice de Banco inter J. S. who informed upon the Statute of Usury and Smith that the Parties to the supposed Usurious Contract shall not be admitted Witnesses because upon the matter they were Testes in propria causa High-Commissioners Trin. 8 Jacobi Regis Upon a Ha. Cor. by Eliz. Lady Throgmorton Prisoner in the Fleet the Return was The Lady Throgmorton was committed by George Bishop of London and other Ecclesiastical Commissioners till further Order should be taken for her enlargement And the Cause of Commitment was That she had done many evil Offices between Sir James Scudamore and her Daughter the Lady Scudamore Sir James his Wife to make separation between them and detained her from her Husband and upon her Departure after Sentence for Contemptuous words against the Court saying She had neither Law nor Justice And it was Resolved 1. That for detaining the Wife and endeavouring to make separation no Suit can be before the High-Commissioners 2. For detaining the Wife there is remedy by the Common Law 3. That for such an Offence they cannot imprison the Wife 4. It doth not appear that the words were spoken in Court Secondly It is no Court of Record because they proceed according to the Civil Law so the Admiralty Courte and none can be committed for misdemeanor in Court unless the Court be of Record 5. It doth not appear by the Return what that Court was which is uncertain and upon this upon good Consideration she was Bayled But Randall and Hickins were this Term committed by the High-Commissioners because they were vehemently suspected for Brownists And they obtained a Hâ—beas Corpus and were remanded for this that the High-Commissioners have Power to commit for Heresy See my Treatise of the High-Commissioners Power The Lord Aburgavennye's Case In the Parliament a Question was moved by the Lord of Northampton Lord Privy-Seal in the Upper-House That one Edward Nevill Father of Edward Nevill Lord of Aburgavenny which now is in the 2 and 3 of Queen Mary was called by Writ to Parliament and died before the Parliament If he was a Baron or no and so ought to be named was the Question And it was Resolved by the Lord Chancellor the two chief Justices chief Baron and divers other Justices there present That the direction and delivery of the Writ did not make a Baron or Noble untill he did come to the Parliament and then sit according to the Commandment of the Writ for untill that the Writ did not take its effect And in the 35 H. 6. and other Books he is called a Peer of Parliament which he cannot be untill he sit in Parliament which cannot be before the Parliament begin And the Command of the King by such his Writ may by his Supersedeas be countermanded or else the said Edward might have excused himself or waved it or submitted to his Fines And when one is called by Writ to Parliament the Order is That he be apparelled in his Parliament Robes and his Writ is openly read in the Upper-House and he brought into his place by Two Lords of Parliament and then he is adjudged in Law Inter pares Regni ut cum olim Senatores censâ— eligebantur sic Barones apud nos habiti fuerint qui per integram Baroniam terras suas tenebant sive 13. feoda militum et tertiâ—m partem unius Feodi militis quolibet Feodo computo ad 20 l. c. So that by this appears That every one who hath an entire Barony may have of right a Writ to be summoned to Parliament and with this agree our Books una voce That none can siâ— in Parliament as Peer of the Realm without matter of Record 35 H. 6. 46. 48 Ed. 3. 30. b. 48 Ass pl. 6. 22 Ass pl 2 4. Register 287. but now none can be summoned to Parliament by Writ without the Kings Warrant under the Privy-Seal at least But if the King create any Baron by Letters Patents under the Great-Seal to him and his Heirs or to him and to his Heirs of his Body or for life c. there he is a Nobleman presently and he ought to have a Writ of Summons to Parliament of Course and shall be tryed by his Peers if c. Richard the Second created John Beauchampe of Holt Baron of Kidderminster by Letters Patents dated 10. Octob. eleventh year of his Reign where all others before him were created by Writ Trin. 8 Jac. Regis Oldfield and Gerlins Case In this Term Thomas Oldfield came out of the Dutchy Court and before he came into Westminster-Hall with a Knife stabbed one Ferraâ— a Justice of Peace of which he dyed And if Oldfield should have his right hand cut off was the question before the two Chief Justices chief Baron Walmesly Warberton Foster and divers other Justices And it was Resolved No for it ought to be in Westminster-Hall Sedentibus Curiis as appears 3 Eliz. Dyer 188. 41 Ed. 3. Title Coron 280. And a President was shewn An. 9 Eliz. in Banke le Roy where one Robert Gerlin smote one in White-hall sitting in the Court of Requests and was Fined and Ransomed But if one smite another before the Justices of Assize there his right hand shall be cut off as appears 22 Ed. 3. fol. 13. 19 Ed. 3. Title Judgment And
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
had Issue John his eldest Son and others viz. Christopher Richard c. and being seized of Land in Fee oâ— 100 Marks per annum value his eldest Son being dead and his Grandchild John withâ—n age he gave direction for a Lease to be made of a Faâ—m called Roushal to Christopher during the minority of his Grand-child rendring the antient Rent with power of Revocation and of Lands in Yatesbury to Richard in the same manner and the same time Chrâ—stopher and Richard by the Covin of one Woodruff a Serivener 25 Eliz. drew two Leases to Christopher and Richard for 51 years rendring 4 d. per annum and without any power of Revocation John Shulter the Grandfather being blind with age and Woodruff telling him they were according to his direction And thereupon John Shulter thâ— Grandfather sealed and delivered them And it was resolved by the Lord Ellesmere Chancellor and two Chief Justies That the said Indentures could not bind the said John Shulter because he was blind and the effect was declared to him other than in truth it was Iâ— fully agreed with Mansers Case in the second part of my Reports fol. 4. Mich. 9 Jacobi Regis Sir Anthony Ashley's Case The Case was this Sir James Creyton had bought a pretended Right of and in the Mannor of â—yddy and Millisent and divers oâ—her Lands of which Sir Anthony had long possession Upon which divers Motions were made concerning Fines acknowledged to be staid c. in the Common-Bench and Sir James not prevailing in it entred into a wicked Conspiracy with several other Defendants in the Cause to accuse the said Sir Anthony of some Capital Crimes whereby he should forfeit all his Lands Goods and Chattels which they should share amongst them and in the end Henry Smith formerly a Servant to Sir Anthony was suborned to accuse the said Sir Anthony of the Muâ—ther of William Rice late Husband of Mary Rice one of the Defendants which William was dead 18 years before and Smith was to have 500 l. for his pains to have a place procured him in the Kings Guard in Ordinary a Proteâ—tion also from the King against his Creditors and a General Pardon Of all which Smith would have assurance before he would make any Accusation of the said Sir Anthony Whereupon Articles in Writing were drawn ingrossed and sealed between Sir James Creyton of the one part and John Cantrel Servant to Hunnings by Smith's Consent and to his use on the other part By which Sir Jaâ—es Covenanted that the said Cantrel and his Heirs after the Conviction and Attainder of Sir Anthony shall have a sixth part of his Mannors c. In consideration whereof Cantrel Covenanted that he should procure Witnesses to Convict the Plaintiff of Murther or other Capital Crimes c. Which Articles were sealed 16 of Feb. 7 Jac. And for the performance of the said Articles Sir James gave Bond of 8000 l. to Cantrel Within two dayes after Smith counterfeits himself sick and then pretending to disburthen his Conscience reveales the said Murther and accused himself for poysoning the said William Rice by the said Sir Anthonies Command so that he himself was Principal Upon this Sir James procures Mary Rice the Widow of the said William Rice to prefer a Petition to the King importing the Accusation aforesaid Which Petition the King referred to the Chief Justice of the Kings-Bench who after full Examination certified the King that he found a false Conspiracy to indict Sir Anthony without any just ground and certified also the effect of the Articles Upon which the King by Advice of the Privy-Councel thought the matter fit to be sentenced in the Star-Chamber Which in the same Term upon ordinary proceeding was heard by six dayes And it was objected by the Defendants Councel That the Bill upon the said Conspiracy did not lye and that it would be dangerous to maintain it for it will deter men to prosecute against great Offenders whereby they will pass unpunished And by the Law Conspiracy lyes where a man is indicted and legitimo modo acquietus but here he was never indicted c. But to this it was Answered and Resolved by the Lord Chancellor the two Chief Justices and all the Court That in this Case the Bill was maintainable though the Party accused was not indicted and acquitted before as it was Resolved in this Court Hill 8. Jac. in Poulter's Case Besides be Sir Anthony guilty or no the Defendants are punishable for promising Bribes and Rewards to Smith to accuse the Plaintiff and the Articles to share Sir Aâ—thonies Estate after Attainder And there is a great Indignity offered to the King in assuming to Covenant that the King shall protect or pardon or that any man's Estate may be shared before Attainder And it appeared by many Witnesses that William Rice dyed not of any poysoning but of a horrible Disease got by his dissolute life which with Reverence cannot be spoken And in this Case it was Resolved That if Felony be done and one hath suspition upon probable matter that another is guilty of it he may arrest the party so suspected to bring him to Justice But in this Case three things are to be observed 1. That a Felony be done 2. That he that doth arrest hath suspition upon probable cause 3. That he himself who hath the suspition arrest the party Resolved also That if Felony be done and common fame and noise is that one hath committed it this is good cause for him that knowes of it to arrest the party and with this agrees the Book 2 H. 5. 15 16. 15 H. 7. 5. 20 H. 7. 12. 21 H. 7. 28. 7 Ed. 4. 20. 8 Ed. 4. 27. 11 Ed. 4. 4. 6. 17 Ed. 4. 5. 6. 20 Ed. 4 6. B. 7 H. 4. 25. 27 H. 8. 23. 26 H. 8 9. 7 Eliz. Dy. 226. Hill 9 Jac. Regis In this Term the Attorney and Sollicitor consulted with me if at this day upon Conviction of an Heretick before the Ordinary the Writ de Haeretico combunendo lyeth and it seems to be clear that it doth not for the Reasons and Authorities that I have reported Trin. 9 Jacob before But after they consulting with Fleming Chief Justice Tanfield Chief Baron and Williams and Crook And they upon the Report of Dr. Cosins mentioned in my said Report and some Prâ—sidents in Queen Elizabeth's time they certified the King that the said Writ lyeth but that the most sure way was to convict the Heretick before the High Commissioners Pasch 10 Jac. Regis The Lord Vaux his Case In this Term the Lord Vaux was indicted of a Premunire in the Kings-Bench upon the New Statute for refusing the Oath of Allegeance upon his Arraignment he prayed he might be tryed per Pares But iâ— was Resolved That he shall not for that Magna Charta cap. 29. Nec super cum ibimus nec super eum mittemus nisi per legale judicium parium suorum is onely to be
holden That if one were to sit in the Chancel and hath there a place his Carpet Livery and Cushion the Parson cannot claim them as Oblations for that they were hanged there in honour of the Deceased the same Reason of a Coat-Armour c. And the Chief Justice said the Lady might have a good Action during her Life in the Case aforesaid because she caused the things to he set up there and after her death the Heir shall have his Action they being in the nature of Hire-looms which belong to the Heir And with this agrees the Laws of other Nations Bartho Cassanâ—us sol 13. Coâ—cl 29. Actioâ— dat si aliquis arma in aliquo loco posita deleat aut abrasit c. and in 21 Ed. 3. 48. in the Bishop of Carlisle's Case Note That in Easter Term 10 Jacob. it was Resolved in the Star-Chamber in the Case between Hussâ—y and Katharine Leyton that if a man have a house in any Parish and that he and all those whose Estate he hath have used to have a certain Pew in the Church that if the Ordinary will displace him he shall have a Prohibition but where there is no such Prescription the Ordinary shall dispose of common and vulgar Seats Earl of Shrewes buryes Case Sir Humphry Winch Sir James Ley Sir Anthony St. Leger and Sir James Hullesâ—on certified the Lords of the Councel by Command from them by Letters dated 28. Martii 1612. of the Claim of Gilbert Earl of Shrewesbury to the Earldome of Waterford and Barony of Dungarvan in Ireland as followeth King Henry the Sixth by Letters-Patents in the 20th year of his Reign did Grant to his Cosin John Earl of Shrewsbury in consideration of his Loyal Services in the City and County of Waterford pro se c. ipsum in Comitem Waterford una cum stilo et titulo ac nomine ac honore eisdem debitis ordinamus creamus habendum to the said Earl and his Heirs-males of his Body and further did Grant the Castles Lordships c. of Dungarvan to the said Earl and the Heirs-males of his Body To hold c. of the King and his Heirs by Homage and Fealty and by the Service of being his Majesties Seneschal in Ireland After in the Parliament called Des Absentees holden at Dublin in Ireland 10. Maii 28 H. 8. It was enacted by reason of the long absence of George Earl of Shrewesbury out of the said Realm That the King his Heirs c. shall enjoy in right of his Crown of England all Honors Mannors Castles c. and all and singular possessions c. as well Spiritual as Temporal which the said George Earl of Shrewesbury and VVaterford or any other Persons had to his Use c. King Henry the 8th by his Letters Patents dated 29th of his Reign reciting the said Statute Nos praemissa Considerantes c. did Grant to the said Earl and his Heirs the Abbey of Rufford with the Lands thereunto c. in the County of Nottingham and the Lordship of Rotheram in the County of York the Abbeys of Chestersteld Shirbrook and Glossaâ—dale in Derbyshire with divers other Lands c. to be holden in Capite And the Questions were as followeth 1. Whether by the long absence of the Earl of Shrewsbury out of Ireland the Title of the Honor be lost and forfeited he being a Peer of both Realms and refiding here in England 2. Whether by the Act Des absentâ—es 28 H. 8. the Title of Dignity of Earl of VVaterford be taken from the said Earl as well as the Land c. Afterwards by other Letters Patents dated 27th of Sept. 1612. the two Chief Justices and Chief Baron were required to consider of the Case and to certifie their Opinions which Case being argued by Councel learned in the Law in behalf the said Earl and they having taken great advisement It was unanimously Resolved by them all as followeth 1. As to the fiâ—st Resolved That since it does not appear what defence was requisite and that the Consideration Executory was not found by Office to be broken in that Point the said Earl of Shrewsbury notwithstanding does remain Earl of Waterford 2. As to the second It was Resolved That the said Act 28 H. 8. Des Absenteâ—s does not onely take away the Possessions given him at his Creation but also the Dignity it self for though one may have a Dignity without Possession yet is it very inconvenient that Dignity should be cloathed with Poverty and so it was resolved in the Lord Ogles Case in Edw. 6. Reign as the Baron of Burleigh 35 Elâ—z did report The cause of Degradation of George Nevil Duke of Bedford is worth observation which was done by Act of Parliament 16 June 17 Ed. 4. which Act reciting the making the said George Duke sets forth the cause of his Degradation in these words And for so much as it is openly known that the said George hath not or by Inheritance may have any livelyhood to support the said Name Estate and Dignity c. Therefore the King by Advice of his Lords Spiritual and Temporal and Commons c. Enacteth c. That from henceforth the same Creation of the said Duke and all Names of Dignity given to the said George or to John Nevil his Father be void and of none effect Wherein are to be observed 1. That though the Duke had not Possessions to maintain his Dignity yet it could not be taken from him but by Act of Parliament 2. Great Inconveniencies follow where there is great State and Dignity and no means to maintain it 3. It is good reason to take away such Dignity by Act of Parliament and then the Act shall be expounded to take away such Inconvenience And though the Earl of Shrewsbury be of great Honour Vertue and Possessions in England yet it was not the Intention of the Act to continue him Earl in Ireland when his Possessions there were taken away And where it was objected that the general words Honours and Hereditaments are explained and qualified by the said Relative subsequent which the said George or any to his use hath Now in regard no man can be seized of the said Digniâ—y therefore the Act doth not extend to it 'T is answered that is to be understood Reddendo singula singulis and these words which the said G. E. hath are sufficient to pass the Dignity and with this agrees all the Judges Opinions in England in Nevils Case upon the like in the Statute 28 H. 8. in 7th Part of my Reports sol 33 and 34. Hill 2 Jacob. Regis Jurisdiction of the Court of Common-Pleas In the last Term by the King's Commands the Justices of the Kings Bench and Barons of the Exchequer were assembled before the Lord Chancellor Ellesmere at York-house to deliver their Opinion Whether there was any Authority in our Books that the Justices of the Common-Bench may grant Prohibitions or whether every Plea ought to be pending
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
in the other Case there was onely a Temporary Bar untill such Age or Reconcilement which being accomplisht the Temporary Bar ceaseth Trin. 44 Eliz. In the Kings-Bench Sprat and Heale's Case John Sprat Libelled in the Spiritual Court against Walter Heal for Substraction of Tythes the Defendant in the Spiritual Court that he had divided the Tythes from the Nine Parts And then the Plaintiff made Addition to the Libel in nature of a Replication viz. That the Defendant divided the Tythes from the Nine Parts quod praed the Plaintiff non fatetur sed prorsus diffitetur yet presently after this pretended division in fraudem legis he took and carryed away the same Tythes and converted them to his own use and thereupon the Plaintiff obtained Sentence in the Spiritual Court and to recover thetreble value according to the Statute 2 Ed. 6. cap. 13. And thereupon Heale made a Surmise that he had divided his Tythes and that the Plaintiff ought to sue in the Spiritual Court for the double value and at the Common-Law for the treble value But it was Resolved by the whole Court That the said Division mentioned in the Libel was nnt any Division within the said Stat. 2 Ed. 6. cap. 13. for that Act provides That all the King's Subjects henceforth shall truly and justly without Fraud divide set out yield and pay all manner of other Predial Tythes in their proper Land So as when he divides them to carry them away he divides them not justly withont Fraud and therefore the same is out of the Statute And where the words of the Statute are divide set out c. their Predial Tythes c. And if any person carry away his Corn and Hay and other Predial Tythes c. And to make an evasion out of these words this Invention was devised The Owner of the Corn by Covin sold his Corn before severance to another who as Servant to the Vendee reaped it and carryed it away without any Severance pretending that neither the Vendo because he did not carry them away nor the Vendee because he had no property in them should be within that Statute But it was Resolved That the Vendor should be charged in that Case with the Penalty of the Statute for he carryeth them away and hiâ— Fraud and Covin shall not help him See 8 Ed. 3. 290. 9 H. 6. 41. 33 H. 6. 5. But it was Resolved That the Plaintiff could not sue in the Spiritual Court for the treble value but for the double value he might Hill 6 Jac. Regis In the Common-Pleas Neal and Rowses Case At a Nisi Prius in London before my Self this Term the Case was this Edward Neal informed upon the Stat. 21 H 8. c 5. Which Plea began Mich. 6 Jac. Rot. 1031. against James Rowse Commissary and Official within the Archdeaconry of Huntington in the Diocess of Lincoln and having Probate of Wills c. in the same Archdeaconry And that Nicholas Nâ—al in the 3d year of the Reign of the said King James made his Testament in Writâ—ng and made the Plaintiff his Executo and dyed possessed of Goods and Chattels to the value of 150 l. The Dâ—fâ—ndant then Commissary and Official c. the 23 Feb. 1605. at the Parish of St. Mary Bow Testament praed proba it c. ac per manuscujusdam Thomae Nâ—cke tunc Ministâ—i ipsius Jacobi Rowse c. 14 s. 10 d. pro probâ—tione c. Testament pâ—aed de eodem Edwardo c. qui tam c. Colore Officii sui praed ad tunc â—t ibid. extortive recepit et habuit contra formam Statuti With this that the said Edward qui tam c. will adde That the Writing of the said Testament according to the Rate of a peny for every ten Lines every Line containing in length ten Inches non attingebat to the Sum of 12 s. 4 d. according to the form of the Statute aforesaid c. The Defendant pleaded nihil debet and at the Nisi Prius the Evidence of two Witnesses was That the Plaintiff caused the said Testament which was in Paper to be engrossed in Parchment and the Plaintiff offered both to the said Rowse to be proved who answer'd it should if his Fees shall be paid him And the Plaintiff asking him What were his Fees and be wrote them in a Paper which amounted to 14 s. and 10 d. Whereupon the Plaintiff laid upon the Table 20 s. and desired him to take what was due to him all this being in the Officials house but he would take nothing there but appointed the Plaintiff to come into Court where he would receive his Fees And accordingly the Plaintiff coming into Court and praying to have the said Will proved the Defendant required the said Nicke to take of him for the Probation Insinuation Registring and Sealing 14 s. 10 d. and thereupon put the Seal of the Office to the same Parchment that the Plaintiff brought him c. And it was objected That this Case was out of the Statute for thereby as to this purpose it is provided viz. And where the Goods of the Testator c. amount above the value of 40 l. that then the Bishop nor Ordinary nor any of his or their Registers Scribes Praysors c. or any other their Ministers for the Probation Insinuation and Approbation of any Testament c. for the Registring Sealing Writing c. any Inventories Acquittances Fines or any thing concerning the same Probate of Testaments c. shall take c. but onely four shillings and not above Whâ—râ—of c. And the Defendants Councel objected That the Defendant did not take the 14 s. 10 d. c. For no Probate was written upon the Testament it self nor any Seal put to it but the Testament was ingressâ—d in Parchmeat and the Probate and Seal put to the Transcript and not the Testament and so out of the Statute The Statute extends onely when the Probate and Seal is put to the Testament it self c. But I conceived that the said taking the 14 s. 10 d. in the Case at Bar was clearly against the Statute for the Act is in the Negative And if the Executor requires the Testament to be ingrossed in Parchment he ought to agree with him that he requires to do it as he may But the Ordinary Official c. ought not to exact any Fee for the same as due to him for divers causes 1. Because the words of the Act are expressed for the Probation c. and for the Registring Scaling Writing c. Which word Writing extends expresly to this Case 2. The words are or any thing concerning the same Probate and when the Seal and Probate is put to the Transcript the same without question concerns the Probate 3. Such a Construction would make the Act idle and vain for if the Ordinary Official c. might take as much as he pleaseth for the Ingrossing done by his Ministers as a due to him
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