from her And yet the constant practise is otherwise in England and other instances of that kind might be made so that the words onely must receive a benigne exposition before the first question can receive a generall answer in the affirmative Secondly many causes of great weight and consequence in this kingdome are to bee decreed and ordered by equitie in the proper Courts of equitie and in course of State at the Councell-board and by particular customes and contrary to law for which the Common-law and statutes of force in this kingdome give no remedie Thirdly there are severall other lawes of force in England and Ireland so farre as they have been received which though some would have to be part of the Common-law of England yet we find them particularly distinguished from it in our Printed Bookes in Parliament Rolles in England as Lex est consuetudo Parliamenti jura belli Ecclesiasticall or Canon law in certaine cases Civill law in some cases not onely in Ecclesiasticall Courts but in the Courts of Constable and Marshall and of the Admiralty and upon particular occasions in the other Courts lex Mercatoria c. 2. To the second They say that the Iudges of this kingdome doe take the Oath of Iudges which Oath is specified amongst the statutes in 18. Edw. 3. and is after explaned by the statute of 20. Edw. 3. and that they may not stay hinder or delay the suite of any subject or his judgement or execution thereupon otherwise then according to the law and course of the Court where they sit under pretence of any act of state proclamation writ letter or direction under the great or privy Seale or privie Signet or Letter or other Commandement from the Lord Lieutenant Lord Deputy Iustice Iustices or other chiefe Governor of this kingdome most of which doth appeare by their Oath expressed in the said statutes and the said statute of 2â— Edw. 3. cap. 8. and the statute of 28. Edw. 3. cap. 2. as to Barons of the Exchequer And that as they know no punishment due to Iudges for their deviations transgressions without other aggravation So they know no punishment layd downe by any law against them for their deviations and transgressions in hindering staying or delaying of Iustice contrary to their said Oath other then what is declared in their said Oath and the statute of 20. Edw. 3. 3. To the third they say that it is part of their said Oath as Iudges that they shall not counsell or assent to any thing that may turne to the damage or disherison of our Soveraigne Lord the Kings most Excellent Majestie by any manner of way or colour And that they shall give no advice or counsell to any man great or small in no cases wherein the King is a party And they shall doe and procure the profit of the King and his Crowne in all things where they may reasonably doe the same And that in the explanation of their said Oathes by the statute of 20. Edw. 3 cap. 1. It is declared that they shall give no counsell to great men nor small in case where the King is party or which doth or may touch the King in any point And as your Lordships have beene honorably pleased by an order of this honorable house bearing date the first of March Anno Dom. 1641. Annoque Regni Caroli decimo sexto to give way that they should not be compelled to answer any part of those questions which did concerne his Majesties prerogatives or were against their oathes so they humbly represent unto your Lordships that they conceive that the answering of the particulars of this question doth concerne both for that the Kings privie Counsell as the question tearmes it or the Councell-board is a Court of his Majesties high prerogative where all proceedings are before him and his Counsell or before his Governor who doth immediately to many purposes represent his Majesties person and the Counsell And where the great affaires of state concerning his Majesties honor government profit and of great persons and causes concerning the Common-wealth which may not conveniently be remedied by the ordinary rules of Common-law and many other causes have beene treated of and managed And as his Majesty is the fountayne of all Iustice with in his kingdomes and may grant Cognizance of pleas unto his subjects and Corporations and may by his Commission authorize whom he shall thinke fit to execute many branches of his authoritie so they humbly conceive it doth not stand with their Oathes or duties of their places who are but Iudges of the ordinary Courts of Iustice before his Majesties pleasure signified in that behalfe to search into the Commissions or instructions of the chiefe Governor and Counsell or to give any opinion concerning the limits jurisdiction orders decrees proceedings or members of that high Court and that the King hath a prerogative for the hearing some of the matters in this question specified before his chiefe Governor We beseech your Lordships to cast your eyes on the statute of 28. H. 6. cap. 2. in this kingdome where after mâ—â—ters are directed to be sent to the ordinary Courts yet the Kings prerogative is expressely saved notwithstanding all which his gracious Majesty for whom it is most proper hath of late beene pleased to limit the proceedings of that Board by his instructions in print 4. To the fourth they answer as to the Third 5. To the fift they say that generally all grants of Monopolies whereby trading manufacture or commerce is restrayned the profit which should goe to many hindred brought into a few hands are against law the liberty of the subject and the good of the Common-wealth though they carrie never so faire a pretence of reforming abuses and that the pretended transgressors against such grants are not at all punishable by any rule of law that they know of And yet they say that they conceive that his Majestie that is the head and father of the Common-wealth may restrayne the use and importation and exportation of certaine commodities or confine the same into a few hands for a time where there may be likelyhood of his Majesties profit which is the profit of the Common-wealth and no apparent prejudice to the Common-wealth doth appeare and that when time shall discover such prejudice then such restraints ought to cease So if a man by his owne invention at home or travell observation or charge abroade doth introduce a new profitable and usefull trade or profession into the Common-wealth in such cases his Majesty may lawfully grant licence the only making of such commoditie or teaching or using of such trade for a certayne time and the transgressors against such warrantable grants may be punished by payment of damages unto the Patentee in an ordinary course of Iustice or otherwise as the nature of the offence and matter doth deserve and as the consequence and importance of the matter may be to the King State or
to receive no reward Sixtly to take no Fee of any other then the King Seventhly to commit such as breake the peace in the face of Iustice Eightly not to mantayne any suite Ninthly not to deny Iustice notwithstanding the Kings Letters or Commandements and in that Case to certifie the King of the truth Tenthly by reasonable wages to procure the profits of the Crowne Eleventhly if he be found in default in any the matters aforesaid to bee in the Kings mercie body Lands and goods The second reason principally moveth from the following particulars In the Kings Bench the Major-part of the Iudges denyed his Majesties writ of prohibition to the late Court called the high Commission in a cause meerely temporall The foure Courts of Iustice durst not proceede in any cause depending before the chiefe Governor or at the Counsell-board upon paper petitions or rather voyde petitions these paper-petitions being the oblique lines aforesaid grave Iudges of the law were commonly assistants and more commonly referrees in the proceedings upon these paper-petitions in what causes in all causes proper for the Cognizance of the Common-law and determinable by writs of right and petitions of right and so to the most inferior action the like of the Courts of equitie whether this be lawfully to serve the King and his people or whether the King was at losse by the non-prosecuting of the causes aforesaid in their proper orbes by originall writs which might afford the King a lawfull revenue and likewise by the losse of fines and amerciaments naturall to actions at the Common-law or whether the losse aforesaid was made knowne to his Majestie or who consented to the Kings damage therein or whether this be a denyall of justice to deferre it upon paper Orders or Commaunds be conformable to that Oath I will pretermit yet your Lordships may even in this mist discerne a cleere ground for the second question The motive which in part stirred the third and fourth questions was the infinity of Civill causes of all natures without exception of persons without limitation of time proceeded in ordered decreed and determined upon paper-petitions at Counsell-board by the chiefe Governor alone The Commons of this kingdome observing the Iudges of the law who were Counsellors of estate to have agreed and signed unto such Orders the Iudges of the foure Courts and Iustices of Assize in all the partes of the kingdome to bee referrees upon such proceedings wherby these new devises were become so notorious that as all men heavily groaned under them so no man could bee ignorant of them By the colour of Proclamations more more frequent and of the Orders and Acts of state at Counsell-board which were in a manner infinite and other proceedings mentioned in these questions these effects were produced First imprisonment close imprisonment of such numbers that a great defeate in a battle could hardly fill more gaoles and prisons then by these meanes were surcharged in Ireland Secondly by seizures made by crewes of Catchpoles and Caterpillers his Majesties Leige people lost their goods as if lost in a battaile nay worse without hope of ransome Thirdly possessions were altered and that so often and so many that more possessions were lost by these courses in a few yeares then in all the Courts of Iustice in Ireland in an age or two The fourth effect was this after liberty was taken away propertie altered and possession lost by the wayes aforesaid that was not sufficient the subject must be pillored papered stigmatized and the image of God so defaced with indignities that his life became a continuing death the worse of punishments in these feates were advising and concurring some grave and learned Iudges of the Land who were Counsellors of estate as by their signatures may appeare The house of Commons finding as yet no warrant of president nor countenance of example in the law of England to beare up the courses aforesaid have drawne the said Questions from the effects aforesaid My Lords the liberty estate in lands or goods the person of the subject nay his honor and spirit being invaded altered and debased in manner aforesaid there remayned yet one thing his Life See how this is brought into play nothing must escape were not the Gates of Ianus shut up was not the Kings peace universall in his three kingdomes when a Peere of this Realme a Counsellor of the Kings a great Officer of state was sentenced to be shot to death in a Court Marshall what the cause was what defence was permitted what time given and what losse sustayned I submit to your Lordships as therein most neerely concerned were not others actually executed by Marshall law at such time as the Kings Iustice in his Courts of law was not to be avoyded by any person whatsoever This was in part the ground of the eight question This question is plaine a late introduced practise here contrary to former use and no appearing president to warrant such prosecution for a voluntary Oath and the great benefit and quiet accrewed to his Majesties people by arbiterments conceived by consent of parties hath in part occasioned this question Heretofore this Confession was not required for the Iustnesse of the Iudgements was then able enough to beare them up and if the judgement in some Case had beene otherwise what force can the confession of a delinquent add to a Iudiciall act this is part of the reason for this question A complaint exhibited in the house of Commons touching the denyall of the Copy of a Record which the complaynant undertooke to Iustifie in part raised this question In King Iames his time by an order conceived in the Court of Exchequer upon great debate and warranted by ancient presidents the respite of homage was reduced to a certaintie viz. two shillings sixe pence sterling For a Mannor yearly and so for Townes and other portions of Land this course was alwayes held untill now of late the respite is arbitrarily raysed as appeares by the second remembrances certificate viz. I finde that anciently before the beginning of King Iames his raigne every Mannor payed three shillings foure pence Irish per annum every Towne-land twentie pence Irish per à nnum as a fine for respite of homage but cannot finde any order or warrant for it untill the fifth yeare of the said Kings raigne and there in Easter Terme 1607. I finde an order entred directing what homage every man should pay a Copy whereof you have already from mee the preamble of which orders sheweth that that matter had beene long depending in the Court undecided which induceth me to beleeve that there was no former president or order in it About three yeares after the freeholders of the Countie of Antrim as it should seeme finding this rate to be too heavy for them they petitioned to the Lord Chichester then Lord Deputy for reliefe therein I finde his Lordships opinion to the
sine licentia Domini Regis Fitz. Natur. br fol. 85 the words of this writ cleares the Common-law in the point it begins with a datum est nobis intelligi c. The King being informed that such person or persons in particular doe intend to goe whether ad partes exteras viz. foraigne Countries to what purpose to prosecute matters to the prejudice of the King his Crowne the King in such a case by his writ warrant or Command under the great Seale privie Seale privy Signet or by proclamation may command any subject not to depart the kingdome without the Kings licence this writ is worthy to be observed for the causes aforesaid therein expressed the writ extendeth only to particular person or persons not to all the subjects of the kingdome no man can affirme that England is pars extera as to us Ireland is annexed to the Crowne of England and governed by the lawes of England our question set forth the cause viz. to appeale to the King for Iustice or to goe to England for other lawfull causes whereas the said writ intends practises with foraigne Princes to the prejudice of the King and his Crowne At the Common-law if a subject in contempt of this Command went ad partes exteras his Lands and goods ought to be seized 2. 3. Philip Mary Dy. 128. b. and yet if the subject went to the parts beyond the Seas before any such speciall inhibition this was not punishable before the statute of 5. Rich. 2. cap. 2. as appeares 12. 13. Elizab. Dy. 296. a. So that before the inhibition the law was indifferent now the question is at Common-law whether the subject of Ireland having no Office can be hindered to appeale or goe to the King for Iustice The King is the fountaine of Iustice and as his power is great to command so the Scepter of his Iustice is as great nay the Scepter hath the priority if any be for at his Coronation his Scepter is on his right side his Sword on his left side to his Iustice he is sworne therefore if any writ Commandement or proclamation bee obtayned from him or published contrary to his Iustice it is not the act of the King but the act of him that misinformed him then will I adde the other words of the question viz. or other his lawfull occasions as I said before in the case of a writ of error in the Kings Bench of England or in the Parliament of England which are remedies given by the law therefore the Common-law doth not hinder any man to prosecute those remedies which are given to everie subject by the same A scire facias may be brought by the King in England to repeale a patent under the great Seale of Ireland of lands in Ireland 20. Henr. 6. fol. a. An exchange of lands in England for lands in Ireland is a good exchange in law 8. ass placit. 27. 10. Edw. 3. fol. 42. tempor Edw. 1. Fitz voucher 239. What law therefore can prohibit any subject for to attend this scire facias in England or to make use of his freehold got by exchange The law being thus then it was considered what alteration was wrought by one branch of the statute of 5 Rich. 2. cap. 2. by which the passage is stopped out of the kingdome Lords notable Marchants and the Kings souldiers excepted I conceive this statute doth not include Ireland I never heard any Irishman questioned upon this statute for going into England nor any Englishman for comming into Ireland untill the late proclamation by the statute 34. Edw. 3. c. 18. in England all persons which have their heritage or possessions in Ireland may come with their beasts corne c. to and fro paying the Kings dues The statute of 5. Rich. 2. did never intend by implication to avoyde the said expresse statute of Edw. 3. betweene the Kings two kingdomes being governed by one law in effect the same people the words of the statute of 5. Rich. 2. are observable the principall scope of it is against the exportation of Bullion in the later part there is a clause for licences to be had in particular Portes by which I conceive that the Customers of those Portes may grant a let passe in such Cases It is therefore to be considered whether that branch of the said statute of 5. Rich. 2. was received in Ireland I thinke it is cleare it was not for by the statute 10. Henr. 7. cap. 22. in Ireland all the generall statutes of England were received in Ireland with this qualification viz. such as were for the Common and publicke weale c. And surely it cannot be for the weale of this kingdome that the subjects here be stayed from obtayning of Iustice or following other lawfull causes in England The statute of 25. Henr. 6. cap. 2. in Ireland excuseth absentes by the Kings command and imposeth no other penaltie so that upon the whole matter this question is not answered For so much as they doe answer of this question the answer is good for there is no doubt to be made but Deaneries are some donative some elective and some may be presentative according to the respective foundations I will only speake of a Deane de facto if a Deane bee made a Bishop and hath a dispensation Decanatus dignitatem in commenda in the retinere the confirmation of such a Deane is good in law This was the case of Evans and Acough in the Kings Bench in England Ter. 3. Caroli where Doctor Thornbow Deane of Yorke was made Bishop of Limmericke with a dispensation to hold in the retinere after his patent and before consecration it was adjudged his confirmation was good and yet if a Deane be made a Bishop in any part of the world this is a Cession Co. 5. 102. a. VVindsors case Davis Rep. 42. 43. c. The Deane of Fernes his case 18. Elizab. Dy. 346. the confirmation of a meere Laicus being Deane is good though he be after deprived 10. Eliz. Dy. 273. 12. 13. Elizab. Dy. 293. although the Deane be after deprived by sentence declaratorie yet his precedent confirmations are good So I conceive that a Deane who hath stallum in Choro vocem in Capitulo during all the time of his life and never questioned and usually confirmed all Leases without interruption is good And to question all such acts 40. 50. 100. yeares after is without president especially in Ireland untill of late yeares and in this kingdome few or no foundations of Bishopricks or Deaneries can bee found upon any Record therefore I conceive the Iudges ought to answer this part of the question My Lords I know you cannot forget the grounds I layd before for this question nor the time nor the occasion of the issuing of Quo warrantoes nor what was done thereupon in the Court of Exchequer Now remayneth to consider of the answer
to this positive question the answer is too generall viz the Parliament is concerned therein and so are two other Courts of Iustice and likewise the Kings prerogative is interested therein wherefore they cannot answer till the matter come in debate and be argued before them The consideration of the Court of Parliament will much conduce to the clearing of this question Co. preface to the fourth Reporte the exposition of Lawes ordinarily belongeth to the Iudges but in maximis difficillimisque causis ad supremum Parliament ' Iudicium Cooke preface to the ninth Report describes that supreame Court in this manner si vetustatem spectes est antiquissima si dignitatem est honoratissima si jurisdictionem est capacissima of this enough the learning is too manifest that it is the Supreame Court nay the primitive of all other Courts to that Court belongs the making altering or regulating of lawes and the correction of all Courts and ministers Looke upon the members of it first the King is the head who is never so great nor so strong as in Parliament where he sits insconced with the hearts of his people the second are all the Lords Spirituall Temporall the third the knights Citizens Burgesses these three doe represent the whole Common-wealth Looke upon the causes for which they are called Circa ardua urgentia negotia Regni looke upon the priviledges of it if any member or members servant thereof bee questioned or any thing ordered against him in any other Court sitting the Parliament or within forty dayes before or after all the proceedings are voyde by the lawes and statutes of this Realme The not clearing of this question is against the Kings prerogative which is never in greater splendor or Majestie then in Parliament and against the whole Common-wealth therein concerned as aforesaid the King hath foure Councels the first is commune concilium which is this Councell secondly Magnum Concilium which is the Councell of his Lords thirdly the privie Councell for matters of estate fourthly the Iudges of his law Co. institut 110. a. Then by what law or use can the inferiour of these foure Councels question the first Supreame and mother Councell I know not the state of the question considered which is of Burroughs who anciently and recently sent to the Parliament by the same law that one member may bee questioned forty eight members may bee questioned as was done in our case in one day six such dayes may take away the whole house of Commons and consequently Parliaments especially as this case was for upon the returne of the first summons foure and twenty Corporations were seized the learning therefore is new that it should rest in the discretion of the Sheriffes who might make unfaithfull returnes and of three Barons in the Exchequer who have no infallibilitie to overthrow Parliaments the best Constitutions in the world Search hath beene made in the two bookes of Entries in old Natura brevium and in all the yeare bookes that are printed there is not one president that in any time ever so badde such à Quo-warranto was brought in Co. entries 527. a à Quo-warranto was brought against Christopher Helden and others to shew cause why they claymed such a Borrough c. which is nothing to our purpose the quo-warrantoes in the question and those which were in the Exchequer did admit them Borroughs and yet required them to shew cause why they sent Burgesses to the Parliament this is oppositum in objecto to admit them Burgesses and to question their power to send Burgesses which were formerly both anciently and recently so admitted in Parliament Master Littleton the first booke we reade cleares this question sectione 164. There are ancient Townes called Borroughs the most ancient Townes of England all Cities were Borroughs in the beginning and from them come Burgesses to the Parliament so that in effect if an ancient Borrough ergo they sent Burgesses to the Parliament all these ancient Townes in England did remayne of Record in the Exchequer 40. ass plac 27. In Ireland they doe remayne of Record in the Parliament Rolles the tryall of them is by the Record it selfe and not otherwise If a Towne send Burgesses once or twice it is Title enough to send ever after 11. Henr. 4. 2. So if a Peere called once by writ and once sitting as a Peere Co. institut fol. 9. b. hee is a Baron ever after In the foure ordinary Courts they have priviledge for the meanest of their members or servants why not the Parliament It was the custome of the ancient grave Iudges to consult with parliaments in causes of difficultie weight a parliament was then to be at hand they did not stay to advise with them in a point which concerned the parliament so neerely and which was of the greatest weight of any cause that ever was agitated in the kingdome In our books all the entries it is true and cleare that Quo-warrantoes are brought and ought to bee brought against such as clayme priviledges Franchises Royalties or the like flowers of the Crowne but to question Burgesses in this nature is to question the Kings prerogative in an high degree priviledges take from the King parliaments adde and give unto him greatnesse and profit in parliaments he sits essentially in other Courts not altogether so but by representation what greater disservice could bee done the King then to overthrow parliaments how shall Subsidies bee granted or the kingdome defended how shall ardua Regni be considered Oh the Barons of the Exchequer I wot will salve all these doubts I may not forget My Lords how the law of the land the whole Common-wealth is herein concerned and upon that I will offer a Case or two If a statute be made wherein the private interest of a subject or the generall interest of the Common-wealth be enacted the King by his Letters-patents cannot dispence with this statute Co. 8. 29. a. Princes case though they be with à non obstaute nor make any grant Non obstante of the Common-law therefore I conclude this question First that it is against the Kings prerogative to issue such à Quo-warranto as is here stated Secondly it is against the Common-wealth as destructive of parliaments and consequently of government Thirdly this is no priviledge but a service done to the King whole Common-wealth which cannot receive so much as a debate but in parliament Fourthly all the proceedings in the Excheqver touching this parliament were Coram non judice as was already voted in both houses as for the punishment we come not to urge your Lordships to punish other then with reference to that which I said before viz. the Oath These two questions have so neere a relation the one to the other meeting in the Center of the Castle-chamber that I will speake to them at once or as to one question My Lords if that golden
takes away the Kings prerogative for cutting woodes where he pleased many other cases there are upon this learning By this great Iustice and bounty of the Kings of England the Kings grew still greater and more permanent The people became free and wealthy no King so great as a King of rich free people If the Councell-table may retaine cognizance of causes coÌ„trary to the Law to so many Acts of Parliament why may they not avoyde all Acts of Parliament aswell This no man will affirme nor they intend My Lords two objections seeme to stand in my way First the multitude of presidents countenancing the cognizance of the Councell-board in the matter aforesaid some in ancient times and of late in great clusters throngs Secondly that in book Cases it appeares the Iudges of Law did take advice in their Iudgements with the Kings Counsell as 40 Ed. 3. fol. 34. 39. Ass placito primo 35. Edw. 3. fol. 35. 19. Edw. 3. fitz Iudgement 174. In answer to the first as for the multitude of presidents hinc illae lachrymae there is our griefe I find in our Bookes that presidents against Law doe never bind there is no downe right mischiefe But a president may be called upon to beare it up Iudicandum est legibus non exemplis Cooke 4. fol. 33. Mitâ—ons case Cooke 11. fol. 75. Magdalen Colledges case Cooke 4. fol. 94. Slades case multitudo errantium non parit errori patrocinium I answer to the second that in those yeare books of Edw. 3. It is true that the Iudges appealed to the Kings Councell for advice in law but who gave the Iudgment the Iudges and what Iudgement a legall Iudgement and no paper or arbitrary Iudgment If this objection were materiall I might answer further that the Councell here may bee understood the great Councell viz. the Parliament propter excellentiam vide Cooke 6. 19. 20. Gregories case By the stat of 4. Edw. cap. 3. 14. and 36. Edw. 3. c. 10. Rastall fol. 316. Parliaments were then to be held once a yeare the booke of 39. Edw. 3. fol. 35. in the case of a formedon may well warrant this explanation of those books the Bishops Abbots Earles and Barons mentioned in the said books may be well taken to be the Lords house which might sit by adjournements in those times of frequent Parliaments My Lords I kept you too long upon this Question I will be as short in the next And so I conclude the answer as to this point is no answer and whether the matters therein comprized be of dangerous consequence I submit to your Lordships If the Chiefe Governor and Councell of this kingdome cannot heare or determine the causes aforesaid surely the Chiefe Governor alone cannot doe it all I have said to the third I doe apply to this Question together with one president worthy your observation in 25. Edw. 1. Claus. m. 20. where I have an authenticke coppie viz. Claus. vicessimo quinto Eaw primi m. 20. Rex dilecto fideli suo Iohanni VVogan Iusticiario suo Hiberniae salutem cum intellexerimus quod vos comunia placita quae totis temporibus retroactis per brevia originalia de Cancellaria nostra Hiberniae placitari deberent consueverunt per billas petitiones vacuas jam de novo coram vobis deduci facitis etiam terminari per quod feodum sigilli nostri quo utimur in Hibernia fines pro breuibus dandis ad alia commoda quae nobis inde solent accrescere di versimode subtrabuntur in nostri incolarum partium illarum damnum non modicum gravamen nolentes igitur hujusmodi novitates fieri per quas nobis damna gravia poterunt evenire vobis mandamus quod si ita est tunc aliqua placita comunia quae per brevia originalia de Cancellaria nostra praedictâ— de jure consuetudine hucusque visitata habent terminari per petitiones billas coram vobis deduci placitari aut terminari de caetero nullatenus praesumatis per quod vobis imputari debeat aut possit novum incommodum in hac parte Teste Rege apud Shestoniam xxiij die Martij Convenit cum Recorda VVilliam Collet Your Lordships may see that in Edward the firsts time the King took notice First that the said petitions were void Secondly that his revenues were thereby impaired Thirdly that it was against the Custome of the land of Ireland Fourthly that it was to the grievance of the people of Ireland Fifthly he comanded Iohn VVogan then Chiefe Governor not to presume to deale in the like proceedings thereafter I marvaile not a little wherefore the Iudges in our time after so many acts of Parliament since 25. Edw. 1. should make any doubt or question to answer this cleerly My Lords I humbly desire not to be misconstrued in the debate of this Question my meaning is not to pry into his Majesties just prerogatives Qui enim majestatem scrutatur Principis corruet spelndore ejus the old saying in English is as good he that hewes a block above his head the chipps will fall into his eyes The Question warrants no such scrutinie I may not officiously search into it The Question is onely whether grants made of monopolies to a subject be good in law And whether by pretext of such grants the Kings free people may loose their goods by seisures or may be fined imprisoned pillored papered c. Those things have been done and acted in many cases where the Monopolites were Iudges and parties in which case if an act of Parliament did erect such a Iudicatorie it were void as against naturall Iustice Cooke 8. 118. a Doctor Bonhams case I speake to that thing that odious thing Monopolie which in law is detestable Cooke 11. 53. b. the Taylors of Ipswich case by which any subject is hindered to exercise his lawfull trade or lawfully to acquire his living and the Condition of a bond being to restraine any man from his trade the bond is void in law 2 Hen. 5. 5. b. In this case the Iudge Hull swoare par Dieu if hee who tooke this bond were present he would fine him to the King and commit him to prison by which case I observe that the consent of the partie cannot make it good That a Patent of any such Monopolies is a grievance against the Common wealth and consequently voyd in law the case was of Cards which is observable Cook 11. 85. 86. 87 c. Darcy Allens Case There is a Condition tacite or expresse in every grant of the Kings Ita quod patriamagis solito non gravetur vel oneretur vid. Fitz. N. br fol. 222. Cod. ad quod damnum This learning is so cleare as to Monopolies thus stated that I will dwell no longer upon them as I hope they may no longer reside among us The
fall out that may alter the reason of the Lawes in such a case which could not be included or foreseene in a generall question or answer thereunto And therefore they desire your Lordships to consider of what use such answers may be to the present and future times 5. Fifthly many of the said questions as they are propounded as the said Iudges humbly conceive doe concerne his Majesty in a high degree in his Regall and prerogative power in his Government in his Revenue in the Iurisdiction of his Courts in his Martiall affaires and in his Ministers of State so that the said Iudges considering their Oathes the duty which by their places they owe unto his Majesty humbly conceive they may not with safety give answer thereunto without speciall licence from his Majesty and therefore they still humbly pray your Lordships as formerly they did not to presse any answers from them untill his Majesties princely pleasure therein be signified 6. Sixtly if the matters of these questions which ayme at some abuses of former times were reduced into Bils they conceive it were the speedy way to have such a reformation which might bind the present times and posteritie and in such proceeding they ought and would most cheerefully contribute their opinions best endevors but in such a course as they apprehend it which points at punishment they have reason to bee sparing in giving any opinion further then the duty of their places doth command from them 7. Seventhly although it may be conceived that the answering of such and so many generall questions by the now Iudges may contribute some helpe to the reformation now so much desired yet no man knoweth but this new president in propounding of such questions to Iudges in succeeding times as the Iudges frame constitution of the Common-wealth may be may fall out to bee most prejudiciall to the State and Common-wealth 8. Eightly most of the matters in severall of the said questions are already by your Lordships and the said house of Commons voted and represented to his Majesty for grievances and therefore no opinions of the Iudges under favour are needfull or to bee required thereunto unlesse the same shall come in further agitation and discussion in this honorable House 9. The Iudges opinions are not usually called upon in Parliament but when upon debate great and difficulte points in Law doe arise where this most honorable house doth thinke fit to command their opinions but no resolutions doe belong unto the said Iudges in Parliament but unto your Lordships Yet in the front and preamble of the said questions the resolution of the said questions by the Iudges is forthwith desired to be required by your Lordships in writing although the first question viz. Whether the subjects of this kingdome be a free people c. be positively resolved by the preamble to the said questions in which it is likewise declared that the said Iudges answers thereunto are not desired for any doubt or ambiguitie which may be conceived or thought of for or concerning the premisses nor of the said questions but for manifestation and declaration of a cleere truth and of the Lawes and Statutes already planted and setled in this kingdome And they say that it is impossible to make any manifestation or declaration of Law or statutes which may hold or be usefull upon such generall questions as most of these are namely By what Law in what cases of what and which of them of what power of what force how where by whom why wherefore what punishment by what rule of policy in what condition of persons in regard that the next succeeding Iudges may be of another opinion and that a circumstance may alter the reason of this Law in many particular cases which the wit of man is not able to forsee or give a generall rule in And they say that to give answers unto such questions as might give any satisfaction to your Lordships or to the honorable house of Commons would make up a great volume and require more time than your Lordships have afforded unto the said Iudges considering their great toyle in their Circuites the last short vacation their other imployments in the Common-wealth and their daily attendance on your Lordships in Parliament and the ordinary Courts of Iustice And yet least they might seeme to come any way short in performance of that duty which they confesse to be due unto your Lordships or be wanting in promoting or advancing the Common-wealth which they beleeve to be aymed at by the said questions though it may seeme to drawe damage or prejudice upon their particulars they doe in all humblenesse present unto your Lordships the ensuing answers unto the said questions which is as much as by their Oathes or in the duty they owe unto his Sacred Majesty before his princely pleasure bee therein signified they can answer thereunto 1. To the first they answer that the subjects of this kingdome are a free people and are for the generall to bee governed onely by the Common-lawes of England and statutes of force in this kingdome yet they say that as in England many statutes are growen obsolete and out of use and some particular ancient Lawes aswell in criminall as in Civill causes have beene changed by interpretation of the Iudges there as they found it most agreeable to the generall good of the Common-wealth and as the times did require it So our predecessors the Iudges of this kingdome as the necessitie of the times did move them did declare the law in some particular cases otherwise than the same is practised in England which the now Iudges cannot alter without apparent diminution of a great part of his Majesties standing revenue and opening a gap for the shaking and questioning of the estates of many of his Majesties subjects and the overthrowing of severall Iudgements Orders Decrees which depend thereupon For example If it be found by office of Record sufficient for forme that a man was killed in actuall rebellion and at the time of his death was seized of lands hereditaments goods or chattels by the constant declaration of Law and practise of former times here the Crown was intituled to such lands goods and chattels and many mens estates depend thereupon and yet the law is not so taken in England So if one or more commit Felony and then stand out upon his or their keeping and hee or they will not submit themselves to be tryed by the law but being in that state doe robbe or spoyle and terrifie his Majesties people wherby the countrie is disquieted this by the constant opinion of our predecessors in this kingdome hath beene adjudged a leavying of warre within the Statute 25. Edw. 3. and so consequently treason Also by the common received opinion practise in this kingdome the VVife is to have a third of all the goods chatels and credits of her husband the debts being payed although he dispose of all by his will
proofe or apparant circumstances may be pressed upon any tryall and for discovering of their fellowes abetors or relievers as the circumstances may offer themselves in their examinations especially if before they confesse themselves guiltie of the offence in imitation of the approver at the Common-law whereof no certaine rule may be given And it neede not be made a question here whether the Iurors or Iudges ought to be Iudges of the matter of fact it being positively layd downe in the sixteenth question that they are And though their false verdict doth convince or not convince the prisoner yet they may be questioned and punished for a false verdict as in their answer to the sixteenth is already declared 21. To the twentie one they say that that question is now judicially depending and hath beene already solemnely argued in his Majesties Court of VVardes in which Court their assistance for declaration of the law therein is already required And therefore they humbly desire they may not be compelled to give any opinion touching that point untill it be resolved there 22. To the twentie two they say that they doe conceive that there is no matter of Law contayned in the said question yet for the further satisfaction of your Lordships they say that upon view of an Act of state bearing Date at his Majesties Castle of Dublin the twenty fourth of December 1636. grounded upon his Majesties Letters of the fift of Iuly then last past it appeared unto them that foure shillings in the pound as of his Majesties free gift and reward out of the first payment of the increase of rent reserved to his Majestie was allowed to the Iudges that were Commissioners and attended that service And we humbly conceive that the receiving of that foure shillings in the pound of his Majesties bountie stands well with the integrity of a Iudge and those Iudges did informe them that they did not avoyde any Letters-Patents upon the Commission of Defective Titles but received such to compound as submitted for the strengthning of their defective Patents and Titles and such as would stand upon the validity of their grants were left to the tryall at law And that the Compositions made after the said grants of the foure shillings in the pound were made according to rules and rates agreed upon by all the Commissioners before his Majesties said Letters or the said Act of State and not otherwise George Shurley Hu. Cressy VVilliam Hilton Edw. Bolton Iames Barry Sa. Mayars Iam. Donellan Copia vera Extract per Phil Percivall Mr DARCIES REPLY TO THE ANSWER OF THE IVDGES MY LORDS His Majesties most humble and faithfull subjects the Knights Citizens and Burgesses in Parliament assembled representing the whole Commons of this Realme calling to mind the late invasion made upon the Lawes and just rights have heretofore presented unto the Lords House certaine questions of great weight and moment to the end their Lordships might thereunto require the answer of the Iudges in writing which being long sithence accordingly commaunded by their Lordships the Iudges have of late delivered in a writing to the Lords House by them styled an Answer unto the said Questions which being sent to the Commons house to be taken into consideration and the same all the partes thereof being weighed in the ballance of the grave judgement and knowledge of the said house of Commons the said answer was upon question voted to be minus pondus habens and not to merit the name of an answer This my Lords being the occasion of this conference the house of Commons appointed me a feeble Organ to utter part of their sense of the style and manner of this writing and to declare part of those reasons which satisfied their judgements that the said writing was short and insufficient o utinam that were all My Lords the Iudges had divers Moneths time to answer plaine questions plaine I speake of those who would be plaine the house of Commons a few dayes onely to consider of that intricate writing My powers are weake and the infirmities of my body are visible both in part occasioned by an high hand I should therefore faint under the weight of this burden but that the taske is not great I doe represent to your Lordships by way of rehearseall onely some partes of those reasons and authorities which were gathered and ripened to my hands by the house of Commons My Lords in matters of importance the course hath beene ancient and not yet deserted to begin with Prologues or Exordiums the worke is not mine I will onely In nomine sanctissimae Trinitatis make my entrance upon the matter of this Conference which is a generall concernment a great concernment of the whole kingdome And to that purpose I will declare the causes and reasons which moved or rather inforced the house of Commons for to disgest and propound the said Questions and to make it appeare that none of them is Idea Platonica none of them circumventing and all depending now or of late To mantayne the preamble to Questions viz. That this Nation ought to bee governed by the Common-lawes of England that the great Charter and many other beneficiall statutes of England are here of force by reasoning or argumentation were to alter a foundation layd 460. yeares past and to shake a stately building thereon erected by the providence and industrie of all the ensuing times and ages This is so unanswerable a truth and a principle so cleere that it proveth all it needeth not to be proved or reasoned Reasons why the Questions were propounded The reason for the first was the late introduction of an arbitrary government in many cases by some Ministers of estate contrary to the lawes and statutes aforesaid a government contrary to the just freedome property of his Majesties people in their lives estates and liberties whereas the subjects governed by the lawes of England are and ought to be free subjects the late disuse therefore of those lawes in execution and the measure of justice being squared by the Lesbian line of uncertaintie as contrary to the lawes aforesaid as any oppositum is in objecto produced the first question and I hope not improperly The reason for the second in part ariseth out of the Oath of a Iudge 18. Edw. 3. to be found among the Printed statutes Polton fol. 144. and out of the statutes of 20. Edw. 3. cap. 1. 2. 3. Polton fol. 145. This Oath is comprehensive and extends to the Iudges the Barons of the Exchequer and Iustices of Gaole-delivery and their associats This great and sacred Oath contaynes severall branches First well lawfully to serve the King his people in the Office of a Iustice Secondly not to Counsell or consent unto any thing tending to the Kings damage or disinherison Thirdly to warne the King of his damage when hee knowes it Fourthly to doe equall Iustice to rich and poore c. without respect of persons Fiftly
Court thus Recorded I know much of the petitioners Lands is waste and no part of it improved by any manner of husbandrie other then in grazing of Cattle and in sowing of little Oates And the proprietors of the Land to be for the most part very poore and needie and the two Children of Neale mac Hugh to be yet under age Wherefore I thinke it fit that the Court of Exchequer should consider thereof and rate the respite of homage accordingly for a time untill the Countie be better inhabited and these men made to understand that it is not an imposition but a lawfull duty and payment due to his Majestie This is my advise and opinion for the present xxx die April 1610. Arthur Chichester Vpon this the said Freeholders were admitted to pay but foure pence Irish every Twogh of Land it consisting of sixteene Towne-lands and according to this rate they still payed untill the yeare 1630. and then the Court taking notice of the unequalitie of it made this order 5. Febr. 1630. After this I finde that all his Majesties Tenants did conforme themselves to the said order of 1607. untill Easter Terme 1637. in which Terme this ensuing order was made which is the last that I can finde Recorded in my Office Henry VVarren I finde by the payments made in the late Queen Elizabeths time that the rates of homage payed was according to the said order of 1607. Henr. VVarren Divers were actually imprisoned and long kept in close restraint for none other cause then in dutifull manner be seeming termes to have made knowne their particular complaints to his sacred Majesty imprisonment of this kind was frequent therefore it is not improper to demaund by what law it was done Many have lost great estates and possessions by Orders of the Counsel-bord although the Deanes elected or actuall Deanes confirmed their estates if no donation from the Crown were found upon Record to the confirming Deane and this after that by verdict at the Common-law the Deanrie was found to be Elective this Question therefore is not improper After such time as this Parliament was agreed upon at Counsell-board to bee summoned some persons having prepared bloudy and destroying Bils to be past as lawes and intending to defeate by act of Parliament very many of his Majesties faithfull subjects of this kingdome of their estates and liberties and having obtayned some undue elections by threates or intreaties mistrusting that all should run cleere before them have caused twenty foure Corporations to bee seized upon the returne of the first summons in severall Quowarrantees procured by Sir Richard Osbalston late Atturney generall to shew cause why they sent Burgesses to the Parliament the said Corporations having formerly sent Burgesses to the Parliament even to the last Parliament by meanes whereof the said Corporations sent no Burgesses in the beginning of this Parliament from this act being done in a legall Court against the high Court of Parliament sprung this question which My Lords is of consequence if Parliaments be so as without question they are The faith which the Common-law giveth to verdicts the Iurors being Iudges of the fact the late usage of that great Court growing to the punishment of Iurors and others in greater numbers by heavier fines and more shamefull punishments without respect to estate age sex or qualitie then was or can be observed in all precedent times and the just sense thereof moved the house of Commons to propound these questions My Lords a poore fellow stole or was accused to have stolne a Sheepe feare or guilt or both brought him to the mountaynes another relieved him the reliever was executed as a Traytor and after the principall submits to tryall and judgment and was acquited this example My Lords I hope may warrant the question The testimony of such infamous persons have brought men of qualitie to their tryall for their lives and being acquited the Iurors being of very good ranke were heavily censured in the Castle-chamber aswell by fines surmounting their abilities as by most reprochfull punishments upon these acts the question is grounded There being no warrant in the Printed law or otherwise for ought yet appearing for to make this a Tenure in Capite the constant course of the Court of wards taking it to be no Tenure in capite since the erection of that Court untill Trinitie terme 1639. it was then and not before certified a tenure in capite by the then Atturney of that Court who said that the Iudges concurred with him in that opinion by which meanes Counsell did not then argue and the next terme after were denyed to be heard ne aliquid contra responsum prudentum this being done in the Court of wards the question did spring from thence The two and twentieth question was not yet agitated in the house of Commons nor brought thither therefore My Lords that may be deferred to a further conference By this which I have opened being the smaller part of those weighty reasons delivered unto mee by the house of Commons yet the best I can for the present remember I hope your Lordships are satisfied that those questions were not intrapping fayned or circumventing or phantazies as formerly I touched In the next place I will labour to give your Lordships a more cleere satisfaction that those questions grounded upon sufficient and apparant reasons and causes doe deserve cleare and satisfactorie answers and to remove all doubts The questions I will no more call Questions I will humbly style them Causes of weight and Consequence wherein the Lords and Commons of this Realme on the behalfe of themselves and their posteritie in after times are Plaintifes and only delinquents of an high nature are defendants in this high Court of Parliament It is not unworthy your Lordships consideration to whom the questions were put I answer unto the Iudges of the Land who are and sure I am ought to be first etate graves secondly eruditione praestantes thirdly usu rerum prudentes fourthly publica authoritate constituti The persons unto whom being thus qualified the place where is most considerable it is the high Court of Parliament the Iudges are called thither Circa ardua urgentia negotia regni of the whole kingdome what to doe Quod personaliter intersint cum Rege ac cum caeteris de consilio suo super dictis negotijs tractaturi consiliumque impensuri Therefore they are not called thither to bee ciphers in augurisme or tell clockes no those great causes are mentioned in their writ and upon that great Oath they are to give faithfull counsell and make direct answers to your Lordships in all things wherein ardua urgentia regni are concerned and whether that concernment doe comprehend the matters aforesaid I doe humbly offer to your Lordships great consideration most of the matters included in those questions are solemnely voted in both houses
The answer of the Iudges to the first part is that they confesse they take the Oath of Iudges which is specified amongst the statutes in 1â— Edw. 3. and 20. Edward 3 as I said before and that they may not stay hinder or delay the suite of any subject or his judgement or execution there upon otherwise then according to the law and course of the Court where they sit under pretence of any act of state proclamation writ letter or direction under the great Seale or privie Seale or privie Signet or Letter or other Commandement from the Lord Lieutenant Lord Deputy Iustice Iustices or other chiefe Governor of this kingdome most of which doth appeare by their Oath expressed expressed in the said statutes and the statute of 2. Edw. 3. c. 8. and the statute of 20. Edw. 3. as to the Barons of the Exchequer and as they know no punishments due to the Iudges for their deviations and transgressions without other aggravation so they know no punishment layd downe by any law against them for their deviations and transgressions in hindering staying or delaying of Iustice contrary to their said Oath other then what is declared in their said Oath and the statute of 20. Edw. 3. I conceive the answer is not a full and perfect answer to the Question For where the Question is whether the Iudges under pretext of any act of state proclamation writ Letter or direction under the great or privie Seale or privie Signet or Letter or other Commandement from the Lord Lieutenant Lord Deputie Iustice or Iustices or other chiefe Governor or Governors of this kingdome they may hinder stay or delay the suite of any subject or his judgement or execution thereupon if so in what cases and whether if they doe hinder stay or delay such suite judgement or execution thereupon what punishment doe they incurre for their deviations and transgressions therein To this they answer that they may not stay hinder or delay the suite of any subject or his judgement or execution therupon otherwise then according to the law course of the Court where they sit under pretence of any act of state proclamation writ letter or direction under the great or privie Seale or privie signet or letter or other commandement from the Lord Lieutenant Lord Deputy Iustice or Iustices or other chiefe Governor or Governors of this kingdome whereas they ought to have expressed the particular of this exception for by that clause it is supposed or may be strongly implyed that in some cases they may hinder stay or delay the suite of any subject or his judgement or execution therupon under pretext of any act of state proclamation letter or direction under the great or privie Seale or privie signet or other Commandement from the Lord Lieutenant Lord Deputy Iustice Iustices or other chiefe governor or governors of this kingdome which they ought to have expressely layd downe the question being if they may stay hinder or delay the suite of any subject upon any such pretext then to set forth in what Cases which ought to be particularly answered unto In the next place the Question is if they doe stay hinder or delay such suite judgement or execution therupon then to set forth what punishment they doe incurre for their deviation or transgression therein Vnto this they answer they know no punishment due to the Iudges for their deviation and transgressions without other aggravation This I conceive is an implication that there is a punishment where there is matter of aggravation and therefore it ought to be expressed what matter of aggravation they intend the same to be They further say they know no punishment layd downe by any law against them for their deviations or transgressions in hindering staying or delaying of Iustice contrary to their Oath other then what is declared in their said Oath and the statute of â—0 Edw. 3. This I conceive not to bee a full answer in respect the punishment layd downe in that Oath is in a generality viz. that the Iudges so offending contrary to their Oath are to be at the Kings will of body lands and goods which they should declare and expresse how farre that punishment extendeth in their bodies lands and goods Whether imprisonment of their bodies or in their lives and whether in forfeiture of their lands goods or how else The breach of an Oath is a very high offence and the higher it is that the matter it doth concerne is the greater and therefore it is much secundum subjectam materiam It is to be considered to whom the oath of a Iudge is made and what matter it doth concerne To the first the Oath is made to GOD the King and to the Common-wealth For the matter it is concerning the true and equall administration and distribution of Iustice to the people If the Iudge doe offend contrary to his Oath he commits breach of the trust reposed in him by the King besides the violation of his Oath Looke upon trust betweene Common persons A man makes a Lease for yeares the Lessee makes a scoffment this is a forfeyture of his estate by the Common-law by reason of the breach of trust Lessee for life in an action brought against him prayes in ayde of a stranger this is a forfeyture of his estate A quid Iuris clamat brought against Lessee for life he claymes a fee which is found against him this is a forfeyture of his estate So much for breach of trust To come unto a false verdict given by a Iurie which is a breach of their Oath they being sworne ad veritatem dicendam For this false verdict an attaynt lyeth at Common law against the petit Iury The judgement at the Common-law in an attaynt importeth eight grievous punishments 1. Quod amittat liberam legem in perpetuum 2. quod forisfaciat omnia bona Catalla sua 3. quod terrae tenementa in manus Domini Regis capiantur 4. quod uxores liberi extradomus suas eijoiantur 5. quod domus suae prostrentur 6. quod arbores suae extirpentur 7. quod prata sua arentur 8 quod corpora sua Carceri mancipentur So odious is perjurie in the eye of the Common-law It followeth therefore that the breach of the Oath of a Iudge materia considerata in regard it tends to the subversion of Iustice is an offence of an higher nature deserving a farre greater punishment in his body lands and goods as I conceive This question is very short and as plaine it is no more then whether the Councell-table be a Iudicatorie in Civill causes betweene subject and subject for lands goods or Chattels and by what law The answer is wholly ad aliud But it is answered fully by the great Charter capit 11. 9. Henr. 3. Communia placita non sequantur Curiam nostram Common-pleas which are the pleas in question shall not follow the Kings Court againe cap. 29.
of what Civill causes they have jurisdiction and by what law and of what force is their order or decree in such cause or any of them That the Councell-table of this Realme eyther with the chiefe Governor or Governors is no Iudicatorie wherein any action reall personall popular or mixt or any suite in the nature of the said actions or any of them can or ought to bee commenced heard or determined and all proceedings at the Councell-table in any suite in the nature of any of the said actions are voyde especially causes particularly provided for by expresse acts of Parliament of force in this kingdome onely exempted The like of the chiefe Governor above The proceedings before the chiefe Governor or Governors alone in any action reall personall popular or mixt or in any suite in the nature of any of the said actions are Coram non Iudice and voyde VVhether grants of Monopolies be warranted by the law and of what and in what cases and how and where and by whome are the pretended transgressors against such grants punishable and whether by fine mutillation of members imprisonment losse and forfeyture of goods or otherwise and which of them All grants of Monopolies are contrary to the lawes of this Realme and therefore voyde and no subject of the said Realme ought to bee fined imprisoned or otherwise punished for exercising or using their lawfull liberty of a subject contrary to such grants In what cases the Lord Lieutenant Lord Deputie or other chiefe governor or governors of this kingdome and Councell may punish by fine imprisonment mutillation of members pillory or otherwise and whether they may sentence any to such the same or the like punishment for infringing the commaunds of or concerning any proclamation of and concerning Monopolies and what punishment doe they incurre that vote for the same The Lord Lieutenant Lord Deputy or other chiefe governor or governors and Councell of this Realme or any of them ought not to imprison any of his Majesties subjects but onely in Cases where the Common-lawes or statutes of the Realme doe enable and warrant them so to doe they ought not to fine or to censure any subjects in mutillation of members standing on the pillory or other shamefull punishment in any case at the Councell-table and no subject ought to be imprisoned fined or otherwise punished for infringing any commaunds or proclamation for the support or countenance of Monopolies And if in any case any person or persons shall bee committed by the commaund or warrant of the chiefe governor or governors and privie Councell of this Realme or any of them that in every such case every such person or persons so committed restrayned of his or their libertie or suffering imprisonment upon demaund or motion made by his or their Councell or other imployed by him or them for that purpose unto the Iudges of the Court of Kings-bench or Common-pleas in open Court shall without delay upon any pretence whatsoever for the ordinarie fees usually payed for the same have forthwith granted unto them or him a writ or writts of Habeas Corpus to be directed generally to all and every Sheriffe Gaoler-minister officer or other person in whose custody the party or parties so committed or restrayned shall be shall at the returne of the said writ or writs and according to the commaund thereof upon due and convenient notice thereof given unto him at the charge of the party or parties who requireth or procureth such writ or writs and upon securitie by his or their owne Bond or Bonds given to pay the charge of carrying backe the prisoner or prisoners if hee or they shall bee remanded by the Court to which he or they shal be brought as in like causes hath beene used such charges of bringing up and carrying backe the prisoner or prisoners to be alwayes ordered by the Court if any difference shall arise there about to bring or cause to be brought the body or bodies of the said partie or parties so committed or restrayned unto before the Iudges Iustices of the said Court from whence the same writ or writs shall issue in open Court shall then likewise certifie the true cause of such his or their detayner or imprisonment and thereupon the Court after such returne made and delivered in open Court shall proceed to examine and determine whether the cause of such commitment appearing upon the said returne be just and legall or not and shall thereupon doe what to justice shall appertayne eyther by delivering bayling or remanding the prisoner or prisoners Of what force is an act of state or proclamation in this kingdome to bind the libertie goods possessions or inheritance of the Natives thereof whether they or any of them can alter the Common law or the infringers of them loose their goods chattels or leases or forfeyte the same by infringing any such act of state proclamation or both and what punishment doe the sworne Iudges of the law that are privy Councellors incurre that vote for such acts and execution thereof An act of state or proclamation in this kingdom cannot bind the libertie inheritance possession or goods of the subjects of the said kingdome nor alter the Common-law and the infringers of any such act of state or proclamation ought not to forfeyte lands leases goods or chatels for the infringing of any such act of state or proclamation And the Iudges of the law who doe vote for such acts of state or proclamation are punishable as breakers and violaters of their Oathes of Iudges Are the subjects of this kingdome subject to the marshall law whether any man in time of peace no enemie being in the field with banner displaid can be sentenced to death if so by whom and in what causes if not what punishment doe they incurre that in time of peace execute marshall law No subject of this kingdome ought to bee sentenced to death or executed by Marshall-law in time of peace and if any subject be so sentenced or executed by marshall-law in time of peace the authors actors of any such sentence or execution are punishable by the law of the land for their so doing as doers of their owne wrong and contrarie to the said law of the land VVhether voluntary Oathes taken freely before arbitrators for affirmance or disaffirmance of any thing or for the true performance of any thing be punishable in the Castle-chamber or any other Court why or wherfore No man ought to bee punished in the Castle-chamber or in any other Court for taking a voluntary Oath before arbitrators for affirmance or disaffirmance of any thing or the true performance of any thing in civill causes nor are the arbitrators before whom such voluntary oathes shall be taken punishable VVhy and by what law or by what rule of policie is it that none is admitted to reducement of fines