Selected quad for the lemma: england_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
england_n	earl_n	lord_n	marshal_n	3,722	5	11.2036	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A80192	The Second part of Modern reports, being a collection of several special cases most of them adjudged in the Court of Common Pleas, in the 26, 27, 28, 29, & 30th years of the reign of King Charles II. when Sir. Fra. North was Chief Justice of the said court. : To which are added, several select cases in the Courts of Chancery, King's-Bench, and Exchequer in the said years. / Carefully collected by a learned hand.	Colquitt, Anthony.; Washington, Joseph, d. 1694.; Great Britain. Court of Exchequer.; England and Wales. Court of Common Pleas.; England and Wales. Court of Chancery.; England and Wales. Court of King's Bench.	1698 (1698)	Wing C5416; ESTC R171454	291,993	354

the understanding of the Statute of 2 R. 2. cap. 5. upon which this Action of Scandalum Magnatum was grounded to consider the occasion of the making of it In those days the English were quite of another Nature and Genius from what they are at this time the Constitution of this Kingdom was then Martial and given to Arms the very Tenures were Military and so were the Services as Knights Service Castleguard and Escuage There were many Castles of defence in those days in the hands of private Men their Sports and Pastimes were such as Tilts and Turnaments and all their Imployments were tending to bréed them up in Chivalry Those who had any dependency upon Noble Men were enured to Bows and Arrows and to signalize themselves in Valour it was the only way to Riches and Honour Arts and Sciences had not got such ground in the Kingdom as now but the Commons had almost their dependance upon the Lords whose Power then was exceéding great and their Practices were conformable to their Power and this is the true Reason why so few Actions were formerly brought for Scandals because when a Man was injured by Words he carved out his own Remedy by his Sword There are many Statutes made against riding privately armed which Men used in those days to repair themselves of any Injury done unto them for they had immediately recourse to their Arms for that purpose and seldom or never used to bring any Actions for damages This was their Revenge and having thus made themselves Iudges in their own Cases it was reasonable that they should do themselves Iustice with their own Weapons but this Revenge did not usually end in private Quarrels they took Parties ingaged their Friends their Tenants and Servants on their sides and by such means made great Factions in the Commonwealth by reason whereof the whole Kingdom was often in a flame and the Government as often in danger of being subverted so that Laws were then made against wearing Liverys or Badges and against riding armed This was the mischief of those times to prevent which this Statute of R. 2. was made and therefore all provoking and vilifying Words which were used before to exasperate the Peers and to make them betake themselves to Arms by the intent of this Act are clearly forbidden which was made chiefly to prevent such consequences for it was to no purpose to make a Law and thereby to give a Péer an Action for such Words as a common person might have before the making of the Statute and for which the Peer himself had a Remedy also at the Common Law and therefore needed not the help of this Act. If then the design of this Statute was to hinder such practices as aforesaid the next thing to be considered is what was usual in those days to raise the Passions of Peers to that degreé and that will appear to be not only such things as imported a great Scandal in themselves or such for which an Action lay at the Common Law but even such things as savoured of any Contempt of their persons and such as brought them into disgrace with the Commons for hereby they took occasion of Provocation and Revenge 'T is true that very few Actions were brought upon this Statute in some considerable time after it was made for though such practices were thereby prohibited the Lords did not presently apply themselves to the Remedy therein given but continued the Military way of Revenge to which they had béen accustomed As to the first Objection that hath been made he gave no answer to it because it was not much insisted upon on the other side whether an Action would lye upon this Statute for the very words of it are sufficient ground for an Action and 't is very well known that whereever an Act prohibits an evil thing Maxim the person against whom such thing is done may maintain an Action This Statute consists of two parts the first is prohibitory Vide Ante. Viz. That no Man shall do so c. Then comes the additional Clause and saith That if he do he shall incur such Penalty 'T is on the first part that this Action is grounded and so it was in the Earl of Northampton's Case in that Report which goes under the name of the Lord Coke's 12th Report where by the Resolution of all the Iudges in England except Flemming who was absent it was adjudged that it was not necessary that any particular Crime should be fixed on the Plaintiff or any Offence for which he might be indicted So are the Authorities in all the Cases relating to this Action In the Lord * 4 Co. 13. b. 2 Cro. 196. Cromwel's Case for these Words You like those who maintain Sedition In the Lord of Lincoln's Case My Lord is a base Earl and a paultry Lord and keepeth none but Rogues and Rascals like himself In the Duke of Buckingham's Case He has no more Conscience than a Dog In the Lord * Hill 16 Car. 2 Rot. 1269. Affirmed in a Writ of Error in B R. Marquess of Dorchester's Case He is no more to be valued than the Black Dog which lies there All which Words were held actionable and yet they touch not the persons in any thing concerning the Government or charge them with any Crime but in point of Dignity or Honour And they were all villifying Words and might give occasion of Revenge And so are the Words for which this Action is brought they are rude uncivil and ill natured Unworthy is as much as to say base and ignoble a contemptible Person and a Man of neither Honour or Merit And thus to speak of a Nobleman is a Reflection upon the King who is the Fountain of Honour that gives it to such persons who are in his Iudgment deserving by which they are made capable of advising him in Parliament and it would be very dishonourable to call unworthy Men thither 'T is likewise a dishonour to the Nobility to have such a person to fit among them as a Companion and to the Commons to have their proceedings in Parliament transmitted to such Peérs so that it tends to the dishonour of all Dignities both of King Lords and Commons and thereby discords may arise between the two Houses which is the Mischief intended to be remedied by this Act. Then the following Words are as scandalous for to say A Man acts against Law and Reason imports several such acts done a Man is not denominated to be unworthy by doing of one single Act for in these Words more is implied than to say he hath done an unworthy thing for the Words seem to relate to the Office which the Plaintiff had in the Country as Lord Lieutenant which is an Office of great Honour and can any thing tend to cause more discord and disturbance in the Kingdom than to say of a great Officer That he acts according to the dictates of his Will and Pleasure the consequence

Governour of Barbadoes and the Council there have power of probate of Wills and granting of Administration that the Secretary belongs and is an Officer to the said Governour and Council as Register and is concerned about the registring the said Wills and so his Office concerns the Administration of Iustice and then sets forth that this Covenant upon which the Plaintiff brought his Action was entred into upon a corrupt Agréement and for that reason void The Plaintiff replies protestando that this Office concerned not the Administration of Iustice and protestando that here was no corrupt Agréement pro placito he saith that Barbadoes is extra quatuor Maria and was always out of the Allegeance and power of the Kings of England till King Charles the First reduced that Island to his Obedience which is now governed by Laws made by him and not by the Laws of England The Defendant rejoyns protestando that this Island was governed by the Laws of England long before the Reign of King Charles the First and confesses it to be extra quatuor Maria but pleads that before King Charles had that Island King James was seised thereof and died such a day so seised after whose death it descended to King Charles the First as his Son and Heir and that he being so seised 2 Julii in the third year of his Reign granted it under the great Seal of England to the Earl of Carlisle and his Heirs at such a Rent absque hoc that King Charles the First acquired this Island by Conquest Baldwyn Serjeant demurred for that the Traverse is ill Ex parte Quer. for the most material thing in the Pleadings was whether Barbadoes was governed by the Laws of England or by particular Laws of their own And if not governed by the Laws of England then the Statute made 5 E. 6. cap. 16. concerning the Sale of Offices doth not extend to this place He said that it was but lately acquired and was not governed by the Laws of England that it was first found out in King James his Reign which was long after the making of that Statute and therefore could not extend to it The Statute of 1 E. 6. cap. 7. Enacts That no Writ shall abate if the Defendant pending the Action be created a Duke or Earl c. And it has béen doubted whether this Act extended to a Baronet being a Dignity created after the making thereof Sir Simon Bennets Case Syd 40. Cro Car. 104. Statutes of England extend no more to Barbadoes than to Scotland or Virginia New England Isles of Jersey and Gernsey 't is true an Appeal lies from those Islands to the King in Council here but that is by Constitutions of their own No Statute did extend to Ireland till Poyning's Law nor now unless named In Barbadoes they have Laws different from ours as That a Deed shall bind a Feme Covert and many others Ex parte Def. Seys Serjeant contra He agreed that the Traverse was ill and therefore did not indeavour to maintain it but said there was a departure betwéen the Declaration and the Replication for in the Declaration the Plaintiff sets forth that Nokes was admitted Secretary apud Insulam de Barbadoes viz. in Parochia Sancti Martini in Campis and in the Replication he sets forth that this Isle was not in England which is in the nature of a departure as Debt sur obligat ' 1 Maii the Defendant pleads a Release 3 Maii the Plaintiff replies primo deliberat ' 4 Maii 't is a departure for he should have set forth that the Bond was 4 Maii primo deliberat ' Quaere Bro. Departure 14. So in a Quare Impedit the Bishop pleaded that he claimed nothing but as Ordinary The Plaintiff replies Quod tali die anno he presented his Clerk and the Bishop refused him the Bishop rejoyns that at the same day another presented his Clerk so that the Church became litigious and the Plaintiff surrejoyns that after that time the Church was litigious he again presented and his Clerk was refused this was a Departure Bro. Departure So likewise as to the place the Tenant pleads a Release at C. The Demandant saith that he was in Prison at D. and so would avoid the Release as given by Duress and the Tenant saith that he gave it at L. after he was discharged and at large 40 E. 3. Bro. 32. 1 H. 6.3 The Plaintiff might have said that Nokes was admitted here in England without shewing it was at Barbadoes for the Grant of the Office of Secretary might be made to him here under the Great Seal of England as well as a Grant of Administration may be made by the Ordinary out of his Diocess 2. Except Viz. By the Demurrer to the Rejoynder the Plaintiff hath confessed his Replication to be false in another respect for by that he hath owned it The Defendant hath pleaded that King James was seised of this Island and that it descended to King Charles c. and so is a Province of England whereas before he had only alledged that it was reduced in the time of King Charles his Son and so he hath falsified his own Replication And besides this is within the Statute of 5 Ed. 6. for the Defendant saith that the Plaintiff hath admitted Barbadoes to be a Province of England and it doth not appear that ever there was a Prince there or any other person who had Dominion except the King and his Predecessors and then the Case will be no more than if the King of England take possession of an Island where before there was vacua possessio by what Laws shall it be governed certainly by the Laws of England This Island was granted to the Earl of Carlisle and his Heirs under a Rent payable at the Exchequer for which Process might issue and it descends to the Heirs of the Earl at the Common Law And if it be objected that they have a Book of Constitutions in Barbadoes that is easily answered for 't is no Record neither can the Iudges take any notice of it 'T is reasonable that so good a Law as was instituted by this Statute of Edw. 6. should have an extensive construction and that it should be interpreted to extend as well to those Plantations as to England for if another Island should be now discovered it must be subject to the Laws of England Curia advisare vult Lever versus Hosier THIS was a special Verdict in Ejectment Recovery suffered of Lands in a Liberty passeth Lands in a Vill distinct within that Liberty Mod. Rep. 206. Postea The Case upon the Pleading was viz. Sir Samuel Jones being Tenant in Tail of Lands in Shrewsbury and Cotton being within the Liberties of Shrewsbury suffers a Common Recovery of all his Lands lying within the Liberties of Shrewsbury and whether the Lands in Cotton which is a distinct Vill though within the Liberties shall pass was the Question And it was argued

unruly and endeavour to escape but 't is expresly against the Law to do it where there is no such reason because a Prison is for the safe Custody of Men and not to punish them 1 Inst 260. a. So that it appears by this that a stricter remedy was provided for Executions in Accompt than for those in Debt 3. There are certain persons also who are made chargeable by this Statute when the Execution is in Accompt who cannot be charged in Debt for the Statute Enacts That if the Party escape the Officer in whose Custody he is shall answer sive infra Libertatem sive extra so that the Gaoler shall be charged whether he be of a Franchise or of the County at large but if a Man is in Execution for Debt and then escapes the Gaoler is not lyable but the Sheriff though the * 3 Co. 71. Westby's Case Gaoler hath the Custody of the Body of one whom the late Sheriff did not deliver over to the present Sheriff So that in this also there is a difference upon this Statute between Actions of Accompt and Actions of Debt and therefore the Clause therein of Respondeat Superior being made upon a particular occasion only in the Case of Accompt shall not be extended to other Matters and can in no wise influence this Case which for other Reasons cannot be governed by that Rule if extended to all who have power to depute an Officer and thereby give him an Interest or to appoint one for a time 2. Point 1. Because he in Reversion is not in propriety of Speech a Superior for 't is not said that a Reversioner after an Estate for Life is Superior and of more accompt in the Law than he who hath the particular Estate but on the contrary he who hath the Fréehold is of greater accompt and regard in the Law than the Reversioner after him and if as it hath been objected both make but one Estate then there can be no Superiority and it would be very hard and difficult for any Man to prove that any Attendancy is made by the Tenant for Life upon him who hath the Reversion 2. Here is room enough within the Statute to satisfie that word Superior by a plain and clear construction without bringing in the Reversioner for if the Sheriff makes a Deputy or a Lord makes Bayliff of a Liberty the Sheriff and the Lord are properly the Superiors 3. This word Superior is used in the Statute made the same year with this cap. 2. in signification agreeable with the Case in question for it recites that where Lords of Fees distrain their Tenants for Rents and Services and they having replevied their Cattle do alien or sell them so that a Return cannot be made then it provides that the Sheriff or Bailiff shall take Pledges to prosecute the Suit before they make deliverance of the Distress and if the Bayliff be not able to restore that is if he take insufficient Pledges the Superior shall answer by which the Parliament could mean no other than the Lord of that Liberty for if it should be otherwise there would be no end of Superiors as if there is a Bailiwick in Fee of a Liberty and the Bayliff thereof grants it for Life in this Case there are two Superiors for the Lord of the Bayliff is one and the Bayliff himself is another which cannot be 2 Inst 382. There is a Congruity in Law in saying the Sheriff and Lord are Superiors but there can be none in making the Reversioner a Superior The Lord may lose the Liberty if his Bayliff for Life or in Fee commit a Forfeiture as by not attending the Iustices in Eyre but a Reversion cannot be lost by the Forfeiture of the Tenant for Life if the Bayliff make an ill Execution of a Writ or suffer the Party to escape the Lord shall answer so if the Marshal of England appoint a Marshal there may be a Forfeiture of his Office because 't is but still the same Office and therefore the Case in Cro. Eliz. 386. where 't is said If an Office be granted for Life the Forfeiture of Tenant for Life shall be the Forfeiture of the whole Office is mistaken for in Moor pl. 987. 't is held otherwise and upon the true difference between a Deputy and a Granteé for Life for in the first Case there may be a Forfeiture of the Superior because 't is still but the same Office but in the other Case the Superior shall not forfeit for any Misdemeanour of the Grantée for Life because he hath the Freehold of the whole Office and the other nothing but the Reversion and therefore if the Defendant be liable in this Case 't is in respect 1. That he hath granted the Estate 2. That he hath the Reversion or Residue after the Life of the Grantee He cannot be charged in respect that he hath granted the Estate because the Freehold is gone and in another neither can he be charged in respect of the Reversion because then not only his Heir but the Assigneé of the Reversion will be chargeable also which cannot be As to the second Point of this Argument if the Defendant is not chargeable by this Statute he is not to be charged at the Common Law Sid. 306 397. 2. Because the Common Law doth not give an Action of Debt for an Escape but an Action on the Case only neither doth it give any Remedy but against the Party offending As to the Case that hath beén objected upon the Statute de Scaccario where the several Officers in the Exchequer shall answer in their degrées of Superiority that cannot be applicable to this Case because there can be no proportion betweén things which concern the Kings Revenue and Prerogative and those of a common person The Cases of the Coroner and the Sheriff and of the recommending of a Receiver to the King are not like this Case because the King cannot inform himself of the sufficiency of the Party recommended and therefore 't is but reasonable that he who recommends should be liable and can it be said that when the Defendant was about to sell this Office to one Norwood which he hath since done that if a Stranger had recommended Norwood and he had proved insufficient that the Stranger would have béen liable As for the Civil Law and the Authorities therein cited to govern this Case he did not answer them because they judge after their Law and the Common Lawyers after another way This Office hath béen granted time out of mind for Life and no doubt but many Escapes have been made but never was any Action brought against him in the Reversion before now The Court of Common Pleas always examine the sufficiency of the Grantee for Life which shews that in all succession of Ages the Opinions of Learned Men were that no Escape could be brought against the Reversioner for if so what need is there of such Examination This was urged