of Magna Charta c. 11. might enter into anothers Woods and cut the Trees for reparations of Castles but by that Statute he did restrain himself so to do Ployd 3. 22. b. vide ibidem plura A Mil-stone that is lifted up to be picked and beaten cannot be distrained for it remaineth parcel of the Mill which is a thing for the Common-weale weale 14 H. 1 25. Things brought into an Inn Faire or Market shall not be distrained 22 E. 4. 49. No more shall Cloath lying in a Taylors Shop or an Horse that is a shooing shall not be distrained for the rent issuing out of the Shop Coke Com. f. 47. a. When a man and a woman are riding on a horse or Axe in a mans hand cutting of wood and the like they are for that time priviledged and cannot be distrained Valuable things shall not be distrained for rent for benefit and maintenance of Trade which by consequence are for the Common-weale and are there by authority of Law as an horse in the Hostrey nor the materials in a Weavers Shop for making of cloath nor sacks of Corn or meal in a Mill nor in a Market nor any thing distrained for damage feasant for it is in custody of the Law and the like So Beasts belonging to a Plow averia carucae shall not be distrained and no man shall be distrained for the Instruments of his Trade or profession as the Axe of a Carpenter or the Books of a Scholar whilest Goods or other Beasts may be distrained ibidem Coke l. 10. f. 139. b. An action of the case was brought against D. and counts that D. was seised of certain lands in Kent by reason of which his ancestors and all the Ter tenants from the time whence c. have made and repaired when it shall be materiall so many perches of the walls of the Sea in K. c. and for default of repairing c. the water entred and over-flowed the lands ef the Plaintiff the Defendant traversed the Prescription and it was found for the Plaintiff and that there was a default in the Wall for not repairing by which the Plaintiff recovered Damage and a Writ awarded to the Sheriff to distrain B. to repair the wall there where it was materiall Note this judgment in an action of the case and the reason is pro bono publico for Salus populi est suprema lex and therefore is that part of the judgment in this action of the case that the Defendant shall be distrained to repair the wall ibidem Publica utilitas privatorum commodis est praeferenda Reg. I. C Publicum bonum privato est praeferendum the publick utility and good is to be pâ—eferred before private gaine and profit and therefore shall be more favourably expounded by the Law then when it is onely for private Coke comm f. 181. b. As the Tenant holdeth of the Lord by fealty and one grain of wheat c. and the Lord purchaseth part the whole shall be extinct because it is entire but if an entire service be pro bono publico as Knights-service Castle-guard Cornage c. for defence of the Realm or to repair a Bridge or a way or to keep a Beacon or to keep the Kings Records or for advancement of Justice and Fence as to aid the Sheriff or to be Constable of England though the Lord purchaseth part the service remaineth and so it is pro opere devotionis pietatis for works of devotion and piety Coke comm f. 149. a. Coke l. f. 63. a. In the Chamberlain of Londons case the Inhabitants of a Village may make Ordinances or by-Lawes for the reparation of a Church or of an high-way or any such thing as is for the publick good generally and in such case the greater part shall bind all without any custome So Corporations cannot make Ordinanccs or constitution or By-lawes without custome or charter unlesse it be for things which concern the publick good as reparations of Churches common-waies or the like So in Corporations such Ordinances or Bylawes are allowed by Law which are made for the due execution of the Lawes and Statutes of this Realm and for the good or due government of the body Corporate And the Ordinance of the Mayor Aldermen and Comminalty of London that all Citizens Free-men and strangers shall not put any broad cloath to sale within the City before it be carried to Blackwell Hall to be viewed and searched so that it may appear to be vendible and that hallage be paid for it to wit 1 d. was good and allowable by Law because it was for the better execution of the Statutes made in that behalf without deceit and also that the assesment of the said peny for hallage was good and reasonable because it was pro bono publico vide ibidem plura Coke comm f. 181 b. If a Charter of Feoffment be made and a Letter of Attorney to four or three joyntly and severally to deliver Seisin two of them cannot make Livery because it is neither by the four or three joyntly nor any of them severally but if the Sheriff upon a Capias directed to him make a Warrant to foure or three joyntly and severally to arrest the Defendants two of them may arrest him because it is for the execution of Justice which is pro bono publico jura publica privato promiscue decidi non debunt and publick Lawes ought not promiscuously to be decided by the private ibidem Coke com f. 165. a. If a Castle that is used for the necessary defence of the Realm descend to two ot more Coparceners this Castle might be divided by Chambers and Rooms as other houses be but yet that it is pro bono publico defensione regni for the publick good and defence of the Realm it shall not be divided for the right of the Sword as Britton saith which suffereth not division that the force of the Realm do not fail so much but Castles of habitation for private use and that are not for the necessary defence of the Realm ought to be parted between Coparceners as other houses ib. And for the same reason a woman shal not be endowed of a Castle that is maintained for the necessary defence of the Realm because it ought not to be divided and the publick shall be preferred before the private but of a Castle that is for private use and habitation she shall be endowed Co. com f 31 b. vide ibidem plura So a protection cum clausula volumus is of two sorts the one concerneth services of War as a Kings Souldier c. the other wisdome and counsell as the Kings Ambassador and Messenger pro negotiis regni both these being for the publick good of the Realm private mens actions and suits must be suspended for a convenient time for the publick is to be put before the private but the cause of granting the protection must be expressed in the protection to the end
specie virtatis umbra Vice fairely enbellished with virtues shape And shadow doth often men delude H. 7. f. 2. As Richard the third did many whose virtues as Sir Francis Bacon histerizeth it were feined and affected things to seek his ambition and not true qualities engendred in his judgement and nature But though as Matchevill saith such vertuous shews and shadowes are sufficient to please and delude the people yet the Law Divine and the Law Humane which dimaneth from the Divine is able and doth distinguish between good and evill and as the great Legist of Rome imperat honesta prohibet contraria commandeth that which is good and honest and inhibiteth that which is evill and impious and so doe the Justices and Judges of the Law for as Bodin saith Eodin M. hist f. 50. Qui in litibus versantur Judiciorum communione omnia mala norunt nec mala duntaxat siditiam bona sinc quibus illa constare percipi nullo modo possunt bonorum autem malornm finibus omnis humana prudentia continetur Those who are versed in suits of Law by the participation of Judgements know all evill things and not onely evill but also good things without which they can no way consist or be perceived but in the limits and bounds of good and evill all humane prudence doth consist and therefore by the Law as the same Legist saith are proposed and appointed praemia virtutibus supplicia vitiis rewards to virtues and punishments to vices and is so severe in the censure of vice and evill that it will not permit any one to doe evill that good may come thereof As the Law will not permit a Creditor who is not Executor to take and retaine the goods of the Testator to pay and satisfy himselfe though the payment of his debt be a good and honest thing for by that meanes if the goods of the Testator be not sufficient to satisfy all the Creditors the rest shall be barred and if the Law should give him that power it should be the cause and occasion of wrong and the Law of God saith you shall not do evill that good may come thereof Coke l. 5. f. 30 b. And therefore doth our Law terme such an one an Executor of his own wrong and so in 17. E. 3. 59. The Friers Carmelites who had then no habitation obtained of one I. M. who was seised of ten Acres of Land of the Bishop of Winchester to have those acres of Land for their habitation and because the said I. M. could not grant to them those ten acres by reason of the Statute of Mortmaine the said I. M. and the Carmelites by covin between them to make an evasion out of the Statute of Mortmaine granted the said ten Acres to the King his Heirs and Successoers by which the Signiory of the Bishop should be extinct to the intent that the King shal grant it over to the Friers Carmlites which was done accordingly and for that it was by covin contrived before to take the Bishop from his Signiory which was an evill act it was adjudged that the Charter shall be repealed and the Friers Carmelites should be constrained to render their Charter to be cancelled for though the Friers Carmelites were of the profession of religion and had no habitation before so as it seemed a work of piety and charity to provide an habitation for them yet you shall not doe evill that good may come thereof Coke l. 11. f. 74. a. Contra jus na urale est malum pro bono reddere Ployd f. 405. b. It is against the Law of nature to render evill for good As it was a Law in a City that strangers who did goe or clime up to the Walls of the City should be punished with death but it happened that strangers innocently passing by the City heard a noise that the Enemy would suddenly assault and sack the City whereupon the strangers more reddily then the Citizens got upon the Walls and defending the City now the debate whether they should dye as the Law commanded and it was answered not because it is against the Law of nature to render evill for good vide ibidem plura Beneficium nulâ—i obtrudiâ—ur Pap. f. 212. The Law doth not obtrude or doe good turnes to one whether he will or no and therefore an alien borne shal not have medietatem linguae unlesse he request it So Damages ex incremento are allwayes to be assessed ex petitio ne quaerentis and so are costs ex incremento and upon a Writ of Error because in the beginning of the judgement it was said ideo ad petitionem quaerentis consideratum est and not ideo consideratum est ad petitionem quaerentis and the words were displaced the Judgement was reversed for the words misplaced will not supply this defect for if the usuall forme should not be observed all would fall into a confusion and in as much as the words are misplaced it is as if they had not been put in at all and therefore void like unto the case put in Walsinghams case in Ploydon where an averrment misplaced is as if it were none vide ibidem plura in Goods case Malum quo communius eo pejus an evill thing the more common it is the worser it is Coke l. 4. 109. b. For as the more common a good thing is the better it is so the more common an evill thing is the worser it is for contrariorum contraâ—ia est ratio for as the true service of God which is in publick Churches is better then that which is in private Churches for the generall good that by it may accrew so all superstitious uses which are in publick Churches are worse then those which are in secret Chambers for the generall prejudice which may accrew by them vâ—de ibidem plura Theft in the beginning in most Nations was not punished with death but with satisfaction or some lessor punishment the Pretors of Rome did punish a theef paena quadâ—upli with a foure fold satisfaction and the Jewes with seven fold or if his goods would not amount to so much with all the goods in his house Pro 6. 31. The Misians did punish petit Larceners with whips but if a thing of good value be taken away they must render the nine fold or else be put to death Fulb. Pard f. 80. But when the malice of men did increase an iniquity did abound that as the Poet in facinus jurasse putes and that many turned the crime of stealing into a trade of living and did not gaine their lively-hood with their hands by working but with their fists by fighting and stealing as the Comedian facitely ventri pugnae dant ventri suo the detriment to the republick and community of the offence made it capitall so as though the offence and the punishment being compared that Law may seeme unjust yet as Metsner faith Cum nullam aliud supersurit remedium
protection for the Law saith he is to defend his Tenant so is there an higher and greater connexion between the Soveraign and the Subject for the Subject oweth to the King his true and faithfull obedience and the Soveraign is to protect and govern his Subjects For as Fortescue Rex ad tutelam legis corporum bonorum erectus est Del. l. A. C 13. the King is raised to defend the Lawes the Bodies and Goods of his Subjects and frustra feruntur leges nisi obedientibus in vain were it to prescribe Lawes to any but to such as are obedient Coke ibidem f. 7. And as Coke l. 11. f. 100. obedientia est legis essentia obedience is the essence of the Law and therefore ought all Citizens and Burgesses to give obedience and reverence to the chief Magistrates in their Cities and Burghes because they derive their authority from the King whom by leigiance we are bound to obey Iudex bonus nihil ex arbitrio suo faciat nec proposito domesticae voluntatiis sed juxta leges jura pronunciet A good Judge may do nothing of his own phantacy nor according to the power of his own domestical wil and affection but is to pronounce sentence according to the Lawes and right Co. l. 7. f. 27. Calv. case For Judges have not power to Judge according that which they think to be fit but that which out of the Lawes they know to be right and consonant to the Lawes for Judex est lex loquens a Judge ought to be a speaking Law f. 4. and as Coke saith l. 4. f. 33. b. Judicandum est legibus non exemplis we ought to Judge by Lawes and not by examples and therefore by Glanvill is a Judge called Justitia in abstracto because he should be as it were Justice it selfe to put him in minde of their duty and office and now in the legall Latine are the Judges called Judiciarij in Concreto and not Judices because they should be just Coke com f. 71. b. Judicis est judicare secundum allegata probatâ— A Judge ought to Judge according to what is alledged and proved Dyer f. 12. P. 50. As in a Formedon if the Demandant count of a Feoffment in fee and not in tail if the tenant demur upon it cleerly the Court cannot maintaine the Declaration to be good because the Judge is to Judge according to what is alledged and approved Ployd f. 83. b. The Judges have a private knowledge and a judiciall knowledge and Judges cannot judge of their private knowledge but may use their discretion as appeareth in 7. H. 4. f. 31. Where the Ring demanded of Justice Gascoine this question that if he did see one kill I. S. and another that was guilty was endited for it before him and found guilty of the same death what then would he doe in this case who answered that he ought to respit judgment before him because he knew the contrary and to make relation thereof to the King to shew him grace and mercy and the King was well pleased that the Law was such and further added that he could not acquit him and give judgement of his own private knowledge for as the Civilians Judex non debet exequi sententiam nisi de veritate constat a Judge ought not to execute judgement unlesse it appeare before him to be true but where we have judiciall knowledge there we may and ought to judge according to it as if one be arraigned upon an enditement for any offence which is pardoned by Parliament there we ought not to proceed in it nor give judgement if he be found guilty because it appeareth to us by judiciall Science that we ought not to arraigne him for the Judges ought to take cognizance of the Statutes which shall appeare to them judicialiter although they be not pleaded Ibidem Officia magistratus non debent esse vaenalia Coke com f. 234. a. Offices of magistracy and judicature ought not to be sold and therefore by the Statute of 12. R. 2. c. 21. It is provided that no Officer or Minister of the King shall be ordained or made for any guift favor brocage or affection nor that any which pursueth by him or any other privately or openly to be in any manner of office shall be put into the same office or in any other but that all such Officers shall be made of the best and most lawfull men and sufficient a Law worthy to be written in Letters of Gold saith Sir Edward Co. but more worthy to be put in execution for certainely Justice shall never be duly administred but when the Officers and Ministers of justice be of such quality and come to their places in such manner as by this Law is required Mich. 13. Jacobi Sir Robert Vernon coferor of the Kings house who had a great pension out of the Kings revenew for monies did bargaine and sell the same to Sir Aug and agreed to surrender the said Office to the King to the intent that a grant might be made to the said Aug. and thereupon the said office by the Kings appointment was admitted and sworne Coferer and it was resolved by Sir Thomas Edgerton Lord Chancelor the cheife Justice and others to whom the King referred the same by the Statute of 5. E. 6. c. 16. whereby it is provided that if any officers touching the Administration of Iustice or Clerkeship in any Court of Record or concerning the Kings Treasure Revenue Custome Alnage Auditorship Kings Surveyor or keeping of any of his Majesties Castles Forts c. shall bargaine or sell any of the said Offices or any deputation of the same or take any mony or profit or any promise covenant bond or assurance shall not onely forfeit his estate but also every person so buying giving or assuring be adjudged a disabled person to have or to hold the same Office or Offices deputation c. and that all such bargaines sales promises covenants and assurances as be before specified shall be void except as in the said act is excepted quod vide and that A. was disabled to have or to take the said office and that no non obstante could dispense with this Act to enable the said A. for the reason before mentioned and hereupon the said Sir A. was removed and Sir Marmeduke Darnell sworne by the Kings appointment in his place and note that all promises bonds and assurances as well on the part of the Bargainor as the Bargainee are void by the said Act Ibidem And so by the Statute of 13. Eliz. all presentations admissions and inductions upon any guift of the person presented or any guift or consideration without the consent or motion of the party shall be void whereas before they were void onely by deprivation and the said Statute doth not onely extend to benefices with cure but to dignities prebendes and all ecclesiasticall livings Securius expediantur negotia commissia pluribus Co. l. 11. f. 4. a.