the Parish of Grace-Church street London for which house a rent of five pound yearly hath been reserved time out of mind in the third year of the King that now is by Indenture doth make a Lease for five years unto one Withers of part of the House and of the Shop rendring the Rent of five pound by the year at the four usual Feasts that is to say at the Feast of the Annuciation c. by even and equal portions And in the same Indenture it is further covenanted and agreed that Withers the Leassee shall pay unto Burrel the Leassor a hundred fifty pound in name of a Fine and Income the which said hundred and fifty pound is to be paid in manner and form following that is to say thirty pound yearly and every year during the said term at the four usual Feasts by even and equal portions the term of five years expired the said Burrel in the tenth year of the said King by Indenture maketh a new Lease for the term of seven years of the said part of the house and the Ware-house unto one Goff rendring the rent of five pound by the year at the Feast of S. Michael the Archangel and the Annunciation of the Blessed Virgin Mary by even and equal portions And in the same Indenture it is further covenanted and agreed that Goff shall pay unto the said Burrell 175. l. in the name of a Fine and Income in manner and form following that is to say twenty five pound yearly during the said teâ—m at the said two usual Feasts by even and equal portions Dunn Parson of Grace-Church exhibiteth his Petition unto the then Lord Mayor of London against the said Burrel and Goff wherein he supposeth that Tythes are paid unto him only according to the rate of five pound by the year where in truth he ought to have an allowance according unto the rate of thirty pound by the year The Lord Mayor by the advice of his Councel doth call the said Burrell and Goff before him and upon full hearing of the said cause doth order the pâ—yment unto Dunn according unto the rates of five pound by the year and not according to the rate of thirty pound by the year whereupon the said Dunn doth exhibit his Bill of Appeal unto the Lord Chancellour of England in the Chancery wherein he doth make a recital of the Decree made and established by Act of Parliament in 37. H. cap. 12. and also of the case special as it standeth charging the said Goff and Burrell with a practice of fraud and covin in the reservation of this twenty five pound by year by way of Fine and Income and defrauding him of that which belonged unto him The said Goff and Burrell do make their answer and shew that the rent of five pound by the year is the ancient rent reserved and that they are ready and have often tendred the payment of their Tythes according to that proportion but it hath been denied to be accepted and they do take a traverse unto the fraud and covin wherewith they stand charged And upon this answer Dunn the Parson demurreth in Law And this case was first argued in the Chancery by Sir Francis Moor Serjeant and Thomas Crew on the behalf of Dunn and by Sir Anthony Benn late Recorder of London and Iohn Walter on the part of the Defendants The Lord Chancellour having called Sir Henry Mountague Cheif Justice of the Kings Bench Sir Henry Hobart Chief Justice of the Common Pleas Sir Iohn Doddridg one of the Justices of the Kings Bench and Sir Richard Hutton one of the Justices of the Common Pleas to be his Assistants and after two Arguments heard on each side in the Chancery upon Suit made to the King by Sir Francis Bacon then Lord Chancellour of England a special Commission was granted unto Thomas Lord Archbishop of Canterbury Sir Francis Bacon Lord Chancellour of England Thomas Earl of Suffolk late Lord Preasurer of England Edward Earl of Warwick Keeper of the Privy Seal William Earl of Pembrook Lord Chamberlain of the Kings houshold Iohn Bishop of London Bishop of Eli Sir Henry Mountague Sir Iulius Caesar Master of the Rolls Sir Iohn Doddridg and Sir Richard Hutton wherein there was a special recital of the question and cause depending between Dunn on the one part and Burrell and Goff on the other part and power given unto them for the hearing and determining of this cause and likewise for the mediating between the Citizens of London and the Parsons of the several Parishes and Churches in London and making an arbitrary end betwixt them whereby a competent provision may be made for the Ministers of the Churches of London and too heavy a burthen may not beimposed upon the Citizens of London with a command further that they shall certifie the King what was done in the premises And this Commission was sat upon at York-house where the case was argued at several times by Sir Randal Crew and Sir Henry Finch Serjeants of the King on the part and behalf of the Ministers of London and by Sir Henry Yelverton Attorney of the King and Sir Thomas Coventry Solicitor of the King on the behalf of the Citizens of London and because the main Question remained as yet undetermined and no resolution is given either in point of Law nor Arbitrary end by way of mediation I shall only open the parts of the case and make a summary report of them without further debate of them The Case divideth it self into six parts that is to say First whether any thing can be demanded by the person for houses in London according to the course of the Common Law Secondly whether custome can establish a right of payment of any thing unto the Parson for houses and of what nature the payment established shall be Thirdly what was anciently payable by the Citizens of London for their houses unto the Ministers of London and how grew the payment Fourthly whether this twenty five pounds reserved upon a covenant by way of fine and income be a rent within the words of the Decree made 37. H. 8. cap. 12 Fifthly whether this reservation of twenty five pounds by the year by way of fine and income shall be adjudged to be a rent within the intent and meaning of the Statute an Decree or no Sixthly who shalâ— be Judge of the Tithes for houses in London and the remedy for the Parson in case that payment be not made unto him according to the Decree As to the first part which is whether by the Common Law any thing can be demanded for the houses in London It is to be agreed and clear that nothing can be demanded For that which the Parson ought to demand of houses is Tythes and it is improper and cannot be that Tythes can be paid of houses First in regard that houses do not increase and renew but rather decrease for want of reparations and
were laden with Wines and returning to the coasts of England the hand of Heaven had not as yet disfranchised him from being a Citizen and member of the City of London And as to two of the Ships the said George Hanger had his abode here until such time as they were in the Port at London safe from being swallowed by the surging waves of the Sea secure from the surprizing of the desparate Pyrates the which being so that three of the four times as to all the four Ships were past during the time that he was a member of the City and also part of the fourth time as to two of the Ships it is reasonable to think that these Ships shall participate of Immunity and Priviledge it be discharged of the payment of prisage which is granted by the Charter made bâ— King Edward the third notwithstanding that the last time was not comâ— before his death and the more especially also because the law hath such regard unto the commencement and beginning of a thing and will have respect unto it notwithstanding that there belong distance of time between the in choation and consummation of it Anâ— therefore where a servant having an intention to kill his Master doth depart ouâ— of his service and long time after his departure out of his Masters service doth kill him that is petty treason in the servant in regard of the retrospect which the Law hath to the first intention of the servant when he was in his Masters service and yet if you respect the time of the murder committed without regard had unto the first time it cannot be petty treason because the servant was out of his service at that time Seventhly it is to be observed that this Charter to be discharged of the payment of prisage granted by King Edward the third was granted unto the Mayor and Commonalty of London which is a body that alwayes continueth and never dieth and so howsoever that George Hanger unto whom as unto a member of that body the priviledge of that Charter is distributed be dead and cut off from that body yet in so much that the body politique of the Mayor and Commonalty unto whom the Charter was made liveth the Priviledge and Immunity of George Hanger to have his Wines discharged of the payment of prisage will live and continue in that body notwithstanding that George Hanger be dead Eightly this Charter being a Charter made for the advancement and good of Merchandize and trading which are as it were the Blood which giveth nourishment unto the politique body of the Kingdome is to have a favourable and benigne construction whereby trading may be the better supported and maintained and the life of the State longer continued and therefore where King Edward the third in the third year of his Reign granted unto the Merchants of Almagne France and Spain that they should come safely and securely with their Merchandize into England and should be free from Pontage Muragâ— and such other Tolles this Grant was allowed to be good and received an exposition according unto the Law oâ— Merchants which is the Law of Nations and howsoever it would not bâ— good by the strict rules of the Common Law because the Merchant-strangeâ— were not a Corporation able to take yet it was admitted sufficient by that Aâ—gem marcatoriam according to whicâ— in some cases of Merchants the Judgâ— of the Common Law ought to give the Judgement wherefore in the case at the Bar this Charter concerning the City of London which is the University of Merchants and this case concerning George Hanger which was a Scholar trained â—â— this in School and had been matriculated in this place the Judge are to fram and give their Judgement so as the Unversity and Scholars of it may receive the better encouragement to proceed and may not be disheartened to diveâ— their courses intended from Merchandiâ—ing and Trading by reason of the striâ— construction of Charters which givâ— unto them Immunities and Privledges Ninthly and lastly this very case received formerly the resolution of three Barons in the Exchequer upon an Information exhibited there by Sir Thomas Waller that Frances Hanger should be discharged of Prisage for the Wines in all the four Ships whereupon Sir Thomas discontinued his Information and exhibited it denove in the Kings Bench whereby he would take the opinion of this Court likewise and there having been former opinion conceived for the discharge of them it is more agreeable with reason to have this opinion confirmed than opposed But Sir Thomas Fleming Sir Iohn Crook and Sir Robert Haughton seemed upon the reasons hereafter ensuing that Judgement ought to be given for Sir Thomas Waller and that prisage ought to be paid by Frances Hanger both for the Wines wich were in the Ships that were arrived before the death of George Hanger as likewise for the Wines which were in the two Ships which were upon the Sea at the time of the death of George Hanger howsoever by way of advice they wished that for the Wines in the Ships which were come home during his life the payment of prisage ought not to be pressed by Sir Thomas Waller First in regard the Charter extendeth only to discharge the Wines of such a person as is a Citizen of London of the payment of prisage and George Hanger being dead and so a Citizen of the heavedly Ierusalem may not be longer said to be a Citizen of London and so not within the compass of the Immunity granred by the Charter Secondly this priviledge to be discharged of the payment of prisage is in respect of the person who is the owner of the Wines and not in respect of the Wines themselves and then there being a remotion of the person unto whom the exemption is tyed there is a remotion of the exemption it self and therefore notwithstanding a Tenant in ancient Demesne be by the Common Lawes of this Realm to be discharged of the payment of Toll in all Faires and Markets yet if the Tenant in ancient Demesne make his Executors and die the Executors for the Goods of the Testator are to pay a Toll in so much that it was only a personal priviledge which dieth together with the person Thirdly this Charter bereaving the King of the payment of prisage which is a Flower of his Crown ought to have a strict construction so as none may take benefit of it but only such as are within the precise words of the Charter wherefore George Hanger being dead and so no more a Citizen of London howsoever the Wines in the Ship may be said to be the Wines of George Hanger to a special intent that is to say for the payment of his Debts and the performance of his Legacies according to his true intendment expressed in his Will yet may they not be said to be the Goods of George Hanger to every intent in so much that Frances Hanger the Executrix hath
Commonalty for payment of the said sum at a certain day and thereupon is enlarged The four hundred Marks are not paid at the day whereupon the Mayor and Commonalty affirm a Plaint against him in London for the said Debt The Defendant obtaineth a Habeas Corpus to remove the body and the cause into the Kings Bench upon a supposition that he was to have the Priviledge by reason of a Priority of Suit in the Kings Bench and upon returne of the Habeas Corpus all this matter appeared unto the Court and it was moved by Sir Henry Mountague now Lord Chief Justice of the Kings Bench then one of the Serjeants of the King and Recorder of London that a Procedendo might be granted whereby the Major and Commonalty might proceed against him in the Court at London It being a customary Suit meerly grounded upon the custome of London But that was denied by Sir Edward Cook Chief Justice and the whole Court because by the Law Chamberlain having cause of Priviledge by reason of the Priority of Suit against him in the Kings Bench might not be re-manded but he was to answer in that Court Whereupon the Major and Commonalty did declare against him upon the said Obligation in the Kings Bench. Secondly it was moved that the action upon this obligation might be laid in some indifferent County and not in London forasmuch as the Trial there must be had by those that were Parties unto the Action it being brought by the Mayor and Commonalty But Sir Edward Cook and the Court would not upon this surmise take away the benefit which the Law giveth to every Plaintiff upon a transitory action wich is to lay it in whatsoever County he will And if there be any such cause as is surmised then after Plea pleaded he may make an allegation That the City of London is a County in it self and that all the Citizens there are Parties to the Action which is brought whereby there may not be an indifferent Trial. And upon this surmise the Court shall order the Trial to be in a Forreign County The which was done accordingly and so the matter proceeded The Case of the Merchant-Adventurers KIng Edward the third in the year of his reign by Letters Patents doth incorporate certain persons by the name of the Merchants-Adventurers of England and doth give power unto them to transport white Clothes into divers parts beyond the Seas restrayning them from carrying over Woolls The Merchants-Adventurers do trade beyond the Seas and continue the transposing of Clothes white until the 29. of August in the tenth year of his Majesties Reign that now is At which time the King by his Letters Pattents doth encorporate the Earl of Sussex late Lord Treasurer of England Sir Thomas Vavasour Sir Stephen Soam William Cockayn and others by the name of The Merchants Adventerers of the new trade of London with full power authority to transport dyed and dressed Cloths into divers parts beyond the Seas with a restraint prohibiting all the Old Merchants-Adventurers which did not joyn themselves unto this new Company to tranport any under the forfeiture of them and also inhibiting the New Merchants from transporting any Clothes but such as are died and dressed And after three years passed they having power during that time to transport 36000 white Clothes And there being a refusal of the Old Merchants Adventurers to surrender up their Patent The King bringeth a Quo Warranto against divers of the Merchants of the old Company by particular names to know by what Warrant they do without Licence of the King transport Clothes white undied and undressed beyond the Seas The Merchants upon the return of the Quo Warranto do make their appearance And an Information being exhibited gainst them by Sir Fr. Bacon Knight now Lord Chancellour of England and then Attorney General unto his Majesty cometh into the Kings Bench and moveth the Court that the old Merchants Adventurers might have a short day the next ensuing Term to answer unto the Information exhibited against them Insomuch that the new Company of Merchants Adventurers standing at a gaze as being uncertain of what validity the old Patent would be did slack to transplant the Diers and other Tradesmen out of the Low-Countries into England being necessary Instruments for the puting in Execution of this design because there were not here in England those that were able to Die and Dress in that manner that the Low-Country men did And so there was in the interim a stop of the current of Merchandizing with our Cloth the which being the principal Commodity that we had here in England the Fleece that causeth it may well and aptly have the term of The Golden Fleece and there being a stop made of the traffiquing and trading with these clothes it is as dangerous unto the Politique Body of the Commonwealth as the stop of a Vein could be to the natural Body for as by the stop of a Vein the Blood is debarred of his free passage and so of necessity there must be a Consumption by the continuance of it follow unto the body natural So traffique being the Blood which runneth in the Veins of the Commonwealth it cannot be but that the hinderance of it by any long continuance must breed a Consumption unto the State of the Commonwealth Wherefore to open this Vein which was as yet somewhat stopped and to give a more free passage unto the Blood he was a Suitor unto the Court on the behalf of the Company of the New Merchant-Adventurers that the Court would give expedition in this Case for they conceived that if this new design might take its full effect as it was intended it could not be but of necessity there must a great benefit redound to the Commonwealth For first Whereas our State groweth sick by reason of the many idle Persons which have not means to be set on work this Dying and Dressing of Cloths within our Kingdome would give sufficient imployment unto them all whereby there should be a cure to the lazy Leprosie which now overspreadeth our Commonwealth Secondly Whereas now we send out clothes White and the Low-Country-men receive them of us and Dye them and Dress them and afterwards transport them unto forreign parts making a wonderful benefit to themselves both in point of profit and likewise in respect of maintaining their Navy whereas if the Clothes were Died and Dressed by our selves we might reap that matter of gain and also be Masters of the Sea by strengthening our selves in our Shipping Thirdly Whereas there happeneth often a confiscation of all our Clothes and much disgrace and discredit lighteth upon our Nation and our Clothes by the abuse of the Low-Country-men in stretching them a greater length than they will well bear when they Dye and Dress them now it should be prevented when they should never have the fingering of them to put that abuse in practice Wherefore this Patent made by
Secondly in regard that Frances Hanger being the Executrix of George Hanger is the representative person of George Hanger as to these Wines so that such Priviledges and Immunities as George Hanger was to enjoy if he had been living the same shall Frances Hanger have benefit of after his death And therefore notwithstanding Frances Hanger had been a Nun and so a dead person in Law to all intents and purposes yet she being made an Executrix and so the representative person of the said George Hanger shall be enabled to sue and be sued as concerning the personal Estate of the Testator so far as George Hanger himself might sue or be sued And if Frances Hanger being a Neif had been made Executrix now she being the representative person of George Hanger may well enough sue her Lord unto whom she is a Neif Reguardant or any other person whatsoever and the being of a Neif shall not be any disability unto her as to her office of Executrix-ship The same Law would have been if Frances Hanger had been wained and afterwards had been made Executrix for she putting on the person of George Hanger and representing him shall be clothed with the same Priviledges and Abilities as he was and so Frances Hanger being enabled by the common Laws of this Realm to sue and to be sued although she had been a Nun a Neif or a wained person because she represented the person of George Hanger whose Executrix she was shall be likewise capable of this priviledge of the payment of Prisage for the Wines of George Hanger as George Hanger was Thirdly this Charter made by King Edward the third being a Charter only to discharge the Citizens of London of the payment of Prisage and not a Charter whereby the Prisage of the Citizens of London is granted unto others shall have a liberal construction and not be streined unto a special intent as a Patent of charge shall be for it is evident by divers cases in our Books that Frances Hanger being an Executrix shall be taken to be within the remedy of an Act of Parliament to discharge her self of a burden imposed upon her in respect of George Hanger her Testator notwithstanding there was never so much as any mention made of her as Executrix in the Act of Parliament And therefore Frances Hanger being an Executrix shall have an attaint upon the Statute of 23. H. 8. chap. 3. to discharge her self of a false Verdict given against George Hanger whereby his Goods are to be charged and yet she is not named in the Act of Parliament So Frances Hanger being an Executrix shall have a Writ of Errour upon the Statute of 27. El. chap. 8. in the Exchequer Chamber to discharge her self of an Erroneous Judgement given into the Kings Bench against George Hanger whereby his Goods are subject to an Execution Likewise if George Hanger be Out-lawed upon a Writ of Cap. ad satisfaciend awarded upon a Judgement given in Debt or other personal Action against him Frances Hanger as Executrix of George Hanger shall take advantage of a general pardon made by Act of Parliament in the life of George Hanger and shall be suffered to plead it and to give satisfaction of the judgement given against George Hanger whereby she may be enabled to take benefit of the pardon the which being so that Frances Hanger is a person capable to discharge her self of a false Verdict of an Erroneous Judgement of an Out-lawry pronounced against George Hanger her husband where the Statute by precise words doth not relieve her à fortiori shall Frances Hanger in the case at the Bar be enabled to discharge her self of the prisage of these Wines within the Charter of Edward the third Fourthly by the same reason that the Butlarage shall be paid by the Executors or Administrators of an Alien for the Wines brought into England in case where the Alien owner of the Wines do die before such time as the Ships are unladen and way shall not be given to make an evasion to the payment of Butlarge upon an averment that the owner of the Wines is dead before the unbulcking of the Ships so by the same reason prisage shall not be paid for the Wines of George Hanger who dyed before such time as the Ships came in for those Wines shall continue the Wines of the Alien to make his Executors subject unto the payment of Butlarage so these Wines shall remain the Wines of George Hanger to free Frances Hanger his Executrix from the payment of prisage Fifthly there being nothing done in the case at the Bar to prevent George Hanger whereby his Wines should be made uncapable of the discharge of the payment of Prisage within the Charter granted by King Edward the third but only the death of George Hanger before the disburdening and unlading of his Ships and this being only the Act of God which by no power of man can be resisted nor wit prevented shall never turn him to that prejudice that a charge now shall be imposed upon his Wines the which ought not to have been if George Hanger had over-lived the time of breaking the bulk for it is a Maxim held and a principle of the common Lawes of the Realm that the Act of God shall never prejudice in case where there is not any Latches in the party and upon this reason is it that if one that is impleaded hath cause of priviledge because he is the menial Servant of the Lord Chancellour he shall not be prevented of priviledge by the death of the Lord Chancellour but he shall enjoy it that death notwithstanding likewise it would be a great discouragement to the Merchants to hazard their own lives in fighting against the Pyrates and in being upon the Seas when their deaths shall subject them to the payment of Prisage Sixthly in the case at the Bar there are four times to be observed the first of which is the time of the fraughting of the Ships and the sending them out of England beyond the Seas the second is the time of the arrival of the Ships and the unlading and disburdening of them beyond the Seas the third is the time of the lading of the Ships with Wines and the returning of them for England the fourth is the time of the arrival at the Port in England and the unlading of them here and three of these times were passed in the life of George Hadger when he was a member of the City and a Citizen as others are for all the four Ships and part of the fourth time also for two of the Ships for at the time that the Ships were Fraughted and sent out of England to the intent to bring in these commodities George Hanger was a Citizen so when the Ships arrived in the Port beyond the Seas and unladed themselves to receive â—n the Wines for which they went he continued a Citizen Likewise when the Ships