89. But in a Writ of false Judgement the Plaintiff shall have direct averment against what the Judges in the inferior Court have done as Judges Quia Recordum non habent 21 H. 6. 34. Neither shall a Judge in the Cases aforesaid be charged before any other Judge at the Suit of the King 27 Ass pl. 18. 23. 2. R. 3. 9. 28 Ass pl. 21. 9 H. 6. 60. Catlyn and Dyer chief Justices Resolved That what a Judge doth as a Judge of Record ought not to be drawn in Question in this Court Nota bene that the said matters at the Bar were not examinable in the Star-Chamber and therefore it was Decreed by all the Court That the said Bill without any Answer to it by Barker shall be taken off the File and utterly cancelled And it was agreed That the Judges of the Realm ought not to be drawn into question for any supposed Corruption which extends to the annihilating of a Record or tending to the slander of the Justice of the King except it be before the King himself for they are only to make an account to God and the King otherwise this would tend to the subversion of all Justice for which reason the Orator said well Invigilandum est semper multae invidiae sunt bonis And the reason hereof is the King himself being de jure to deliver Justice to all his Subjects and because himself cannot do it to all Persons he delegates his Power to his Judges who have the Custody and Guard of the Kings Oath Thorpe being drawn into question for Corruption before Commissioners was held against Law and he pardoned Vide the conclusion of the Oath of a Judge Stowes châ—oi 18 Ed. 3. 312. Weyland chieâ— Justice of the Common Bench and Hengham Justice of the Kings Bench and other Justices were accused of Bribery and their Causes were determined in Parliament Vide 2 Ed. 3. fol. 27. The Justices of Trayl-Baston their Authority was grounded upon the Statute of Ragman which you may see in old Magna Charta Vide the form of the Commission of Trayle-Baston Hollingshead Chron. fol. 312. whereby it appears That the Corruption of his Judges the King himself examined in Parliamentâ— and not by Commission Absurdum est affirmare recredendum esse non judici Pasch 4 Jacob. Regis Case concerning the Oath ex officio The Lords of the Council at Whitehall sedente Parliamento demanded of Popham chief Justice and my self upon motion of the Commons in Parliament In what cases the Ordinary may examine any person ex Officio upon Oath and upon Consideration and View of our Books we answered the said Lords at another day in the Council Chamber 1. That the Ordinary cannot constrain any man to swear generally to Answer to such Interrogatories as shall be administred unto them but ought to deliver them a Copy of the Articles in writings that they may know whether they ought to answer them by Law or no according to the Course of the Chancery and Star-Chamber 2. No man shall be examined upon the secret thoughts of his Heart or of his secret Opinion but of what he hath spoken or done No Lay-man may be examined ex officio nisi in causis matrimonialibus et Testamentariis as appears by an Ordinance of Ed. 1. Title Prohibition Rastal See also the Register fol. 366. the force of a Prohibition and an Attachment upon it by which it appears That such Examination was not only against the said Ordinance but also against the Custome of the Realm which hath been time of which c. but also in prejudice of the Crown and Dignity of the King and with this agrees F. N. B. fol. 41. And so the Case reported by my Lord Dyer not printed Trin. 10 Eliz. One Leigh an Attorney of the Common Pleas was committed to the Fleet because he had been at Mass and refused to swear to certain Articles and in regard they ought in such case to examine upon his Oath and hereupon he was delivered by all the Court of Common-Pleas The like in Mich. 18 Eliz. Dyer fol. 175. in Hinds Case Also vide de Statute 25 H. 8. cap. 14. which is declaratory as to this point It stands not with the right order of Justice that any person should be convict and put to the losse of his Life good Name and Goods unless by due Accusation and Witnesses or by Presentment Verdict precess of Outlawry c. And this was the Judgment of all the said Parliament See F. N. B. Justice of Peace 72 Lam. 6. in his Justice of Peace 338. Crompton in his Justice of Peace 36. 6. In all which it appears That if any be compelled to Answer upon his Oath where he ought not by Law this is oppression and punishable before a Justice of Peace c. But if a Person Ecclesiastical be charged with any thing punishable by our Law as for Usury there he shall not be examined upon Oath because his Oath is Evidence against him at the Common Law but Witnesses may be cited Register title Consult F. N. B. 53. d. 2 H. 4. cap. 15. In H. 8. nor Ed. 6. time no Lay-man was examined upon his Oath except in the said two Cases But in Queen Maries Reign 2 H. 4. was revived but afterwards repealed 10 Eliz. Note King John in the time of his Troubles granted by his Charter 13 Maii Anno Regni 140. submitted himself to the Obedience of the Pope And after in the same year by another Charter he resigned his Crown and Realm to Pope Innocent and his Successors by the hands of Pandulph his Legate and took it of him again to hold of the Pope which was utterly voyd because the Dignity is an inherent inseparable to the Royal Blood of the King and descendable and cannot be transferred Also the Pope was an Alien born and therefore not capable of Inheritance in England By colour of which Resignation the Pope and his Successors exacted great Sums of the Clergy and Layety of England pro commutandis paenitentiis And to fill his Coffers Pope Gregory the 9th sent Otho Cardinalis de Carcere Tulliano into this Realm to Collect Money who did Collect infinite Sums so that it was said of him Quod Legatus saginatur bonis Angliae which Legate held a Councel at London Anno Dom. 1237. 22 H. 3. and for finding out Offences which should be redeemed with Money with the assent of the English Bishops he made certain Canons among which one was Jusjurandi Calumniae in causis Ecclesiasticis cujus libet de veritate dicendi in spiritualibus quoque ut veritas facilius aperiatur c. Statuimus de Caetero praestari in regâ—o Angliae secundum Canonicas legitimas Sanctiones obtenta in contrarium consuetudine non obstante c. By which Cannon it appears That the Law and Custom of England was against such Examinations so that this was a new Law and took its effect de
THE RESOLUTIONS Of the JVDGES upon the several STATUTES Of Bankrupts As also The like Resolutions Upon 13 Eliz. and 27 Eliz Touching Fraudulent CONVEYANCES By T. B. Esq LONDON Printed for T. Twyford and are to be sold by Hen. Twyford and other Booksellers 1670. Pasch 4. Jacobi Regis Ford and Sheldon's Case upon Information in the Exchequer for the King THomas Ford a known Recusant bâ—fore the 23 of Eliz. for money lent to Sheldon some before and some after the said 23 Eliz. took Recognizance in the Names of others and also a Rent-charge to them in Fee with a Clause of Redemption by Deed the Condition of the Recognizance being for performance of the Covenanss in the Deeds and afterward was made the Statute of the 28 Eliz. which was That as often as any Failer was made in the payment of 20 l. a Month that so often the Queen by Process out of the Exchequer might take and enjoy all the Goods and two Parts c. And after the said Act Ford lent the several Sums of Money and took the Securities as aforesaid amounting in all to 21000 l. which being to Ford's use were all forfeited Afterwards 41 Eliz. was Convict of Recusancy and did not pay the 20 l. a Month If the King should have the Bâ—nefit of these Recognizances and Securities was the Qâ—estion 1. Upon Debate it was objected by Ford's Councel That the Recognizances had not been Forfeited though they had been made in Ford's Name the Statute speaking onely of Goods which doth not include Debts As if the King grant all the Goods of J. S. coming to him by Attainder the Patentee shall not have Debts And a Penal Law shall not be extended by Equity Obj. 2. That three Recognizances are not within the Intention of the Act being Savers of the Realty and acknowledged to perform Covenants as to the Rent-charge Ob. 3. No Fraud was in the Case And then no Statute being in this Case the Common-Law gives no benefit to the King As if Cestuy que use had been Attaint of Treason the Use being but a Trust could not be forfeited to the King And it not a Use A multo fortiori a meer Trust Ob. 4. What Forfeiture accrues to the King in this Case must be by force of the words Goods in the Statute which cannot be Ford having no Goods but a meer Trust Also one Recognizance was taken in the Names of others before the Stature and therefore cannot be thought to defeat the King of a Forfeiture which was not then in use Resolved 1. By all the Barons and Popham Chief Justice of England and divers other Justices that Personal Actions are as well included within this Word Goods in an Act of Parliament as Goods in Possession But because by Law things in Action cannot be granted over therefore by General Grant without special words can never pass And where the Statute saith Shall take seize and enjoy all the Goods and two parts c. the King may well enjoy a Debt due to a Recusant and by Process out of the Exchequer Levy it and so take and seize refers to Goods and two Parts of Lands in Possession Resolved 2. That it was Originally for the Loan of Money and both the Recognizance and Annuity were to secure the said Money And Recognizances fotfeited are but Chattels Personal Resolved 3. There was Covin apparent for he being a Recusant always as aforesaid and so chargeable to the King his taking the Recognizances in the Name of others shall be Construed with an Intent to prevent the King of his Forfeiture And so shall all Recognizances taken in others Names after the said Act be presumed to be taken As to Ceâ—â—uy que use who neither hath Jus in Re nor Jus ad Rem true it is he cannot Forfeit but an Act done to defraud the King of his lawful Duty the King shall not be barred thereof per obliquum if the Act was made de directo And for this If a man outlawed buy Goods in the Names of others the King shall have them notwithstanding So if an Accountant to the King purchase Lands in others Names yet the King shall sâ—ze those Lands for Money due to him And this appears by Walter Cherton's Case Trin. 24. Ed. 3. Rot. 4. in Scaccario for Reâ— fallere non vult falli autem non potest See another President Trin. 24. Ed. 3. Pot. 11. Resolved 4. Noâ—resert Whether the Duty do accâ—ue to the King by the Common-Law or by the Statute And though one of the Recognizances was taken before the Statute of the 28 of Eliz. yet that was to his use And though Ford was not Convict till the 41 of Eliz. that is not material for he was subject to a Forfeiture before Pasch 4 Jac. In Chancery 27 Junii 29 Eliz. The Case between the Lord St. John of Bletso and the Dean of Gloucester The Lord St. John brought a Quare Impedit in the Common-Pleas against the Defendant for the Church of Penmark in the County of Glamorgan which Suit was staid by Aid prayer and the Record removed into the Chancery The Plaintiff moved for a Procedendo and upon Oyer of Cause before Sir Thomas Bromley Lord Chancellor in the presence of Sir Gilbert Gerrard Master of he Rolls and Shute and Windham Justices and Popham Attorney and Egerton Sollicitor of the Queen the Plaintifâ— shewed a Gift in Tail of the said Advowson made to his Anc stor in 18 R. 2. and a Verdict for the same in 12 H. 8. and a presentation by his Grandfather to the said Church of a Clerk that was admitted instituted inducted and had possession divers years with other matters to prove the Plaintiffs Tâ—tle yet for that the Defendant and those from whom he claimes had time out of mind possessed the said Parsonage as Impropriate And for that it will be a dangerous President to all Owners of Impropriations It was Resolved by the Court of Chancery by the advice of the Justices and Councel Learned by the Queen aforesaid That no Procedendo in loquela be granted Vide Ridley fol. 153 154. the beginning of Appropriations and Annuities to be discharged of Tythes Vide ibid. 155. That the Saxon Kings appropriated eight Churches to the Monastery of Croyland Trin. 37 Eliz. In the Exchequer Chamber Crimes and Smith The Abbot of Sulby held the Parsonage of Iubbenhâ—m in Leicestershire to his proper use which as impropriate came to H. 8. by the dissolution of Monasteries 31 H. 8. who in the 37th year of his Reign granted it in Fee-Farm under which Grant the Plaintiff claimed The Defendant obtained a Presentation of the Queen and to destroy the said Impropriation shewed the Original Instrument of it 22 Ed. 4. with Condition in it That a Vicaridge should be competently endowed which was alledged never to be done But for that the Rectory was reputed and taken to be appropriate and a Vicar presented admitted instituted and inducted as a Vicar
lawfully endowed and paid his first Fruits and Tenths Resolved by all the Court that it shall be presumed that the Vicaridge was lawfully endowed And that it is a dangerous President to examine Originalls of Impropriations and Endowments of Vicaridges for that they may perish And so it was decreed for the Plaintiff Hill 4. Jac. Regis Bedle and Beard Anno 31. Ed. 1. The King being seized of the Mannor of Kâ—mbolton to which the Advowson of the said Church was appendant by Letters Patents granted the said Mannor wish the Appâ—â—tenances to Humphry de Bohun Earl of Hereford in tayl generall Humphry de Bohun the Issue in tayl by his Deed. 4 Ed. 3. granted the said Advowson then full of an Incumbent to the Prior of Stonely and his Successors And at next avoydance they held In proprios usus Upon this Appropriation Concurrentibus his quae in jure requiruntur the Prior and his Successors held the same till the dissolution of the Monastery 27. H. 8. The said Mannor descended to Edward Duke of Buckingham as Issue to the Estate Tayl. And the Reversion descended to H. 8. The Duke 13 H. 8. was attaint of High Treason 14 H. 8. The King granted the said Mannor c. with all Advousons appendant c. to Richard Wingfield and his Heirs Males 16 H. 8. It was Enacted that the said Duke forfeit all Mannors c. Advousons c. which he had c. in 4 H. 8. The King 37 H. 8. granted and sold the said Rectory of Kimbolton as impropriate in Fee which by mean conveyance came to the Plaintiff for 1200 li. 37 Eliz. Beard the Defendant got a Presentation of the Queen by Lapse pretending the said Church was not lawfully impropriate to the Prior. 1. For that Humphry who granted to the Prior had nothing in it nothing passing to his Ancestor by these words Manâ—rium cum pertinentiis 2. Or for that having no more but an Estate Tayl by his death his Grant was void But Resolved by the Lord Chancellor Ellesmere with the principal Judges and upon consideration of Presidents that the Plaintiff shall enjoy the Rectory for though by any thing which can now be shewn the Impropriation is defective yet it shall be now intended in regard of the antient and continual possession that there was a lawfull grant of the King to the said Humphry who granted in Fee so that he might lawfully grant it to the said Priory Omnia pâ—â—sumitur Solâ—mniter esse acta And all shall be presumed to be done which might make the antient Impropriation good And antient Grants and Acts shall not be drawn in question though they cannot be shewn for Tempus edâ—x rerum Letters Patents and Writings may consume be lost or imbezilled And therefore the Church was allowed to be rightfully impropriate and the rather in regard of the antient and long possession of the Owners of the said Rectory Mich. 4. Jac. Regis Case of Forfeiture by Treason Hill 43 Eliz. A Case was moved to all the Justices Tenant in Tayl before the Statute of 27 H. 8. made a Feoffment in Fee to the use of himself and his Wife in Tayl. And after the said Statute the Husband was attaint of High Treason 31 H. 8. and dyed The Wife continued in possession and dyed their Issue enter and die and this descends to his Issue and all this found by Office The Question was if the Issue in Tayl or the King shall have the Land 1. And it was objected that the antient Estate Tayl cannot be forfeited because it was discontinued and such right of Action cannot be forfeited As was agreed in the Marquess of Winchesters Case 2. The Feoffor himself in this Case had not any right to the antient Estate Tayl it being extinguished by his Feoffment and therefore by his Attaint could not forfeit what he had not 3. The Issue in Tayl in remitted to that antient right which cannot be forfeited And the new Estate Tayl derived under the discontinuance which may be forfeited by the Statute 26 H. 8. cap. 13. is continued and by Act in Law viz. the discent and remitter avoided And the Kings Estate may be divested out of the King by remitter As if Tenant in Tail grant Land to the King c. and the King grant the Land to the Tenant in Tail for life the remainder to his Son and Heirs for life Tenant for life dies the Issue by and in Law is remitted and the Kings Estate is divested out of him This accords with Plow Com. 489. Nicols Case 1. Resolved that in this Case the Issue in Tail is barred for though right of Action cannot be given to the King by the 26 H. 8. yet when Tenant in Tail discontinues his Estate to the use of himself in Tail and after is attaint of Treason now by that Statute he doth not onely forfeit the new Estate in Tail but by this the right of the antient Estate is barred for ever And so note out of the said Statute a diversity between a naked right of Action not forfeitable and an Estate of Inheritance forfeiâ—able coupled with an antient right for which the Forfeiture of the possession is barred by the said Act And iâ— is not like the Case in Plow Com. of Remitter for this is no barre of an antient right Pasch 4 Jac. Regis Case at a Committee aoncerning Bishops At this Parliament held Pasch 4 Jac. Regis It was strongly urged at a Grand Committee of Lords and Commons in the Painted-Chamber that such Bishops as were made after the first day of the Session were not lawful Bishops 1. Admitting them Bishops yet the manner and form of their Seals Stiles Process and Proceeding in their Ecclesiastical Courts were not consonant to Law Because by the Statute 1 Ed. 6. cap. 2. it is provided That thenceforth Bishops should not be Elective but Donative by Letters-Patents of the King And for that at this day all Bishops were made by Election not Donation of the King therefore the saâ—d Bishops are not lawful 2. By the same Act it is provided That all Summons c. and Process in Ecclesiastical Courts shall be made in the King's Name and Stile and their Seals Engraven with the Kings Arms and Certificates made in the Kings Name It was therefore concluded Thâ—t the said Statute being still in force by Consequence all Bishops made after the Act 1 Jac. were not lawful Bishops And the Proceedings being in the Name of the Bishop makes them unlawful Quia non obserâ—ata forma infertur adâ—ullatio actus Upon Consideration had of these Objections by the Kings Commandment it was Resolved by Popham Chief Justice of England â—nd Coke Attorney of the King and after affirmed bâ— the Chief Baron and the other Justices Attendant to â—he Parliament that the said Act of the 1 Ed. 6. cap. 2. is not now in force being repealed annulled and annihlated by three several Acts of Parliament Any whereof being
in force it makes that Act of 1 Ed. 6. that it cannot stand Quia Leges Posteriores Priores contrarias abrogant And by the Act of the 25 H. 8. cap. 20. Is set forth the manner of Election and Consecration of Archbishops and Bishops And also for the making and execution of all things which belongs to their Authority within which words the Stile and Seal of their Courts and the manner of their Proceedings are included Which Act of 25 H. 8. is revived by 1 El. cap. 1. and consequently that of 1 Ed. 6. cap. 2. is repealed It appears by our Books if a Deacon or Priest take a Wife their Marriage is voidable not void for they had not vowed Chastity Otherwise of a Monk or a Nun. And this appears 5 Ed 3. Title Nonability 26. 19 H. â— Title Bastardy 33. 21 H. 7. 39. 6. Mich. 4. Jac. Regis Case of the Stannaries It was Resolved this Term in the Star-Chamber That the King had not the Emption of Tin in Cornwal by his Prerogative for Stanni nec plumbi fodina c. or other sase Mineb belong not to the King by his Prerogative but to the Subject Owner of the Land But the Emption of Tin in Cornwal belongs to the King as an antient Right and Inheritance for though now a Reason cannot easily be rendred of things done time out of mind yet it may well be that all the Land in that County was the King Demesne and upon Grant of the Land the King reserved the Mines to himself These Tin Mines being of great Antiquity as appears Ex Diodoro Siculo Et certo certius est That all the Land in England is derived mediately or immediately from the Crown and therefore such a Profit may have a reasonable Commencement Usage also allowing it to the King for all Cornwal was within the King's Forest which by King John was disafforested as by Cambden appears And it is evident that before 33 Ed. 1. all the Tin in Cornwal and Devon also was the Kings whoever owned the Land And this is proved by divers Records and by an antient Charter of King John among the Bishop of Exeters Records In haec verba Johannes Dei Gratia Rex Angliae c. Omnibus Bâ—llivis salutem Sciatis quod intuitu Dei pro salute animae nostrae c. dedimus c. Deo Ecclesiae Beati Petri Exon venerabili Patri Simoni Exon. Episcopo successoribus c. decimam de antiqua firma Stanni in Com. Devon Cornub. Habendum sibi successoribus c. cum omnibus libertatibus liberis consuetudinibus ad eam pertinentibus per manus illius vel illorum qui stannaria habuerint in custod c. Rex Roberto de Courtney salutem Mandâ—mus vobis quod sine dilatione difficultate aliqua habere facietis Dominae Johannae Reginae matri nostrae stannaria Com. Devon c. Paten 1 H. 3. H. 4. Rex concessit Johanni filio Richardi stannaria in Cornubia reddendo 1000 marks 4 H. 3. Fines 5 H. 3. Rex c. Sciatis quod concessimus Richardo dilecto fratri nâ—stro stannariam nostram Cornubiae cum pertinen Prohibiting Tin to be transported without the said Richards Licence 10 H. 3 M. 9. See also 10 Ed. 2. Inqui. 2. Nu. 29. There are two several Charters both dated 10 April 33 Ed. 1. One ad emendationem stannariarum nostrarum in Cornub. The other Ad emendationem stannariarum nostrarum in Devon That of Cornwall hath these word Concessimus eisdem stannatoribus quod fodere possint stannum et turbus ad stannum fundendum ubisque in terris nostris et vastis nostris et aliorum quorumcunque in Com. praedict et Aquas et aquarum cursus divertere ubi et quoties opus fuerit c. ad sundaturam stanni sicut Antiquitus coâ—suâ—vit sine impedimento nostro seu aliorum quorumcunque Ac quod omnes stannatores nostri praed totum stannum suum ponderatum c. licitè vendere possint cuicunque voluerint faciendo nobis et haeredibus nostris Cunageum et alias Consuetudines debitas nisi nos vel haerede nostri stannum illum emere volumus This was confirmed 4 Ed. 2. And also 1 17 Ed. 3. De Advisamento consilii nostri ordinavimus quod stannum in Com. Cornub. et Devon ad opus nostrum capiatur pro defensione regni nostri c. Et ad partes marinas celeriter mittatur c. Ita quod hominibus quibus stannum illum capi contigerit de pretio ejusdem stami ad certos terminos solvend sufficiens securitas per nos fiat Assignavimus vos c. ad capiend ad opus nostrum totum stannum in Com. praed Cunitum et etiam Cuniend cum cunitum fuerit with Authority to take Carriages and Commandment to the Sheriff to pay for the same Rot. Amlâ—yne An. 12. R. 2. part 1. Edward the black Prince grant and the King 21 E. 3. confirmed to Tydman of Lymberge Cunageum Stannariae c. nec non emptionem totius Stanni c. infra c. pro fine mille marcarum et reddendo 3500 marcas The like done to one Brockhouse 7 Ed. 6. The Charter of 33 Ed. 1. was confirmed 8 R. 2. 1 Ed. 4. 3 H. 7. The 11 H. 7. a certain weight and measure was ordained to be used through England yet the weights belonging to the Carriage of Tin were excepted in that Statute The Stile of the Court of Stannaries is Magna Curia Domini Regis Ducatus sui Cornub. apud Cockerenton in Com. Devon Johanne Comite Bedford Custode stannar dicti Domini Regis aut Reginae in dicto Com. Devon By which it appears that all the Tin belonged to the King For the Antiquity of Tin Mines in Cornwall see Camdâ—n in Cornwell 121. And Diodorus Siculus L. 5. c. 8. fo 142. 6. Upon which it was resâ—lved 1. That the King hath all the Tin as well in the Subjects Lands as his own 2. It is absurd for the King to reserve Emption of his own Tin 3. The King grants Stannatoribus divers liberties which are enjoyed by the Tinners as well in the Subjects Lands as the Kings own In the Session of Parliament hâ—ld in Decemb An. 4. Jac. Regis Case of the Kings Prerogative in Saltpeter All the Justices viz. Popham Chief Justice of England Coke Chief Justice of the Common Pleas. Fleming Chief Baron Fenner Searle Yelverton Williams and Tanfield Justices met at Sergeants Inne to consult what Prerogative the King had in digging and taking of Saltpeter to make Gunpowder by the Law And upon conference between them these points were resolved by them all 〈◊〉 voce 1. That in as much as Gunpowder concerns the defence of the Realm and insomuch as Saltpeter whereof Gunpowder is made is within the Realm the King shall not be driven to buy it but may take it according to the Limitations following 2. That
though the King cannot take the Trees of his Subject growing upon his Freehold nor Gravel in the Inheritance of his Subject for reparation of his houses as 11 H. 4. 28. Yet 't is resolved that he may dig for Saltpeter because the Kings Ministers who dig for the same are bound to leave the Inheritance of the Subject in as good plight as they found it which they could not do if they should cut the Timber growing which would be to the Subjects disinherison The Case of Gravel for reparation of the Kings Houses may not be compared to this for Saltpeter extends to the defence of the whole Realm not so the reparation on of the Kings Houses 13 H. 4. The King may charge for Murage of a Town And so for Portage but not for making a Wall about his own House When Enemies invade the Realm it is lawful to come upon any Land adjoyning to the invaded Coast to make Trenches or Bulworks 8 Ed. 4. 23. And in such Cases they may dig for Gravel 3 H. 8. fo 15. And in this Case the Rule is true Princeps et republica ex justa causa possunt rem mean auferre 3. Resolved That the taking of Saltpeter is a purveyance of it for the making of Gunpowder for the necessary defence of the Realm And therefore is an incident inseparable from the Crown and ought to be taken onely by the Kings Ministers and not converted to any other use then the defence of the Realm And 't is not like Silver or Gold Mines for there the King hath Interest in the Mettall and may dig Quia quando lex alicui concedit aliquid Concedere videtur id sine quo res ipsa esse non potest Vide Plow Com. in le Case de Mynes so the King may dig for Treasure Trove eadem ratione 4. The Ministers of the King cannot undermine weaken or impair any the Walls of Foundations of any Houses or Buildings whatsoever Nor dig in the Flore of a Mansion-house which serves for the Habitation of a man because it is his place of refuge and defence There are two notable Presidents that the King by his Prerogative had power to prohibit Depopulation and provide for Habitation The one in the 43 Ed. 3. Rot. claus in turri num 23. provillade Southampton The other An. 21. R. 2. in dorso claus par 1. N. 15. Neither may the Kings Ministers dig in any Barn-floore used for Corn Hay c. but they may dig in the floores of Stables and Oxehouses so that they leave room for the Horses and other Cattel of the Owner and put it in convenient time into as good plight as they found it Also they may dig in Cellars and Vaults and and Mud-walls being not Walls of a Mansion-house and in the ruines and decayes of any Houses or Buildings 5. They ought to make the places where they dig as commodious to the Owner as before 6. They may work in the possession of the Subject but betwixt Sun-rising and Sun setting 7. They may not place any Furnace or other Vessels in any Subjects House without consent nor so near it as to prejudice the same 8. They are not to stay over long in a place nor to return thither again in a long time 9. Resolved That the owner of the Land cannot be restrained from digging and making Saltpeter for the King hath no Interest in it the property is in the owner of the Land Before the 31 Eliz. no King or Queen of this Realm granted any Licence for taking Saltpeter but in that 31 year there were two the one to George Constable Esque and the other generall to George Evelin Richard Hills and John Evelin And after Scilicet 18 Octob. 2. Jacob. Commission was granted to Evelin and others to take Saltpeter c. So that there were but three Licences ever made Case of Treason In this very Term one George Leake a Chancery Clark had upon an ordinary piece of Parchment by great deceit fixed with a kind of Glew another Parchment so thin that it appear but one piece And upon the thin piece he writ by good Warrant a Li ense which brought to the Chancellor was sealed with the Great Seal After the George took the thin piece upon which the writing was from the other to which the Seal was fixed and then all was blank with the Great Seal annext upon which blank the said George writ a Grant of the King of certain Lands and what Offence this was was the Question And after a long debate upon the 25 Ed. 3. 2 H. 4. 25. Stamford l. 1. fol. 3. 40 Ass pla 33. 37 H. 8. Title Treason 2 H. 4. Claus 42 Ed. 3. memb 8. in dorso where the Case was That King Richard the First by his Charter granted divers Lands and Liberties Abbati de Bruera in which the Abbot rased out this word Fittetrida and instead of it writ est leigh and upon shewing it obtained a confirmation of it from King Ed. 3. And an allowance of it in Banco R. And for this Offence the Abbot was called before the King and Council in the Star-Chamber where the Abbot being Convict it was part of the Sentence That the Charter confirmation and allowance of it should be brought in to be cancelled where note 1. The Antiquity of the Star-Chamber being then a Court. 2. That the rasure was not any Counterfeit of the Great Seal for if the Offence had been High Treason it should not have been determined before the King and Council 3. That Spiritual Persons were then punishable before Temporal Judges 4. That if there be a rasure of a Deed between Subject and Subject in a place material all the Deed becomes naught so if a Patentee rase his Heirs Patents in a place material Thence concluded That if the rasing of a word in the Kings Patent be not Treason then the rasing of two or three or all the words of the Patent and writing a new Grant is not Treason By the Statute of the 25 Ed. 3. it is provided That because many other Cases of like Treason might happen in time to come which men cannot think or declare at present That if another Case suffered Treason and not specified in the Act shall come before any of the Justices they shall stay without going to Judgment of Treason untill the Case be shewen before the King in Parliament 1. That though a Case happen like to the Cases of Treason mentioned in the said Act yet that the Judges ought not to judge it Treason but it ought to be declared in Parliament 2. That when a particular Case was adjudged High Treason as the Case of murdring an Embassador of a King Et Legatos violare contra jus Gentium est Afterwards George Leake upon Examination before the chief Justice of England made a clear Confession of of all the manner and circumstances of the Fact as aforesaid whereupon Two Questions were moved 1. Whether this Offence
Kings Bench because no Writ of Error lyes but in Plaint Robert Bankes Case Mich. 6 Jac. Regis Mich. 6 Jac. Rot. 639. Robert Bankes Gent. brought an Action upon the Statute of Winton 13 Ed. 1. against the Inhabitants of the Hundred of Burnham in the County of Bucks and counted that certain misdoers to the Plaintiff unknown at Hitcham the 22d of Nov. 5 Jac. assaulted the Plaintiff and robbed him of 25 l. 3 5. 2 d. ob and that he immediately after the robbery the same 22d of Nov. at Joplow and Maalow the next Towns to Hitcham in the said County made Hâ—e-and Cry c. and after the said Robbery and within 20 dayes before the purchase of the Writ viz. the 19 of Fâ—br Aâ— 5. at Dorney in Com. praed the Plaintiff before Sir William Gâ—rrard Knight then Justice of Peace in the said County and living next the said Hundred being examined upon Oath according to the Statute 27 Elâ—z the Plaintiff upon his Oath said He knew not the Parties who robbed him and since the said Robbery 40 dayes are past and the said Inhabitants of Burnham have not made him any amends nor the Bodies of the Felons or any of them have taken but suffered them to escape to which the Defendants plead Not Guiley and Vâ— fa. was awarded de vicineto c. And the Jury gave a special Verdict and found that the Plaintiff was robbed and made Hue-and-Cry as aforesaid and found over That the Plaintiff was sworn before Sir William Gerrard as aforesaid and said upon his Oath in these English words viz. That he on Thursday the 22 d. of Nov. 1604. riding under Hitcham wood c. was then and there set upoâ— by Horsemen which he knew not and robbed of 25 l. 3 s. 2 d. ob but whether the said Oath so taken be true according to the said Statute 27 Eliz. the Jurors pray the direction of the Court. Mouses Case Mich. 6 Jac. Regis In an Action of Trespass brought by Mouse for a Casket and 113 l. taken and carryed away the Case was the Ferryman of Gravesend took 47 Passengers into his Barge to pass to London and Mouse was one of them the Barge being upon the Water a great Tempest happened so that the Barge and all the Passengers were in danger to be drowned if a Hogshead of Wine and other pouderous things were not cast out And it was Resolved per totam Curiam That in a case of necessity for saving the Lives of the Passengers it was lawful to the Defendant being a Passenger to cast the Plaintiff's Casket out of the Barge with what was in it for quod quis ob tutelam corporis sui fecerit jure id fecissâ— videtur Upon the special matter pleaded and Reply De injuria sua propria absque tali causa the first day of this Term the Issue being tryed and it was proved directly That the Men had been drowned if the things had not been cast out The Plaintiff was Non-sult Resolved also That though when the Ferry-man surcharge the Barge yet to save the Passengers Lives in such a Necessity it is lawful for the Passengers to cast the things out of the Barge yet the Owners shall have their Remedy upon the surchage against the Ferry-man but if there was no surcharge but the danger came by the Act of God then every one must bear his own losse for Interest Râ—ipub quod homines conserventur â— Ed. 4. 23. Bull. c. 12 H. 8. 15. 28 H. 8. Dyer 36. Mich. 5. Jac. Regis Prohibitions del Roy. Noâ—e On Sunday the 10. of Nov. in this Term the King upon Complaint made by Bancroft Arch-Bishop of Canterbury concerning Prohibitions the King was informed That when Question was made of what matters the Ecclesiastical Judges have Cognâ—zance c. in any Case in which there is not express Authority in Law the King himself may decide in his Royal Person the Judges being but his Delegates c. And the Arch-Bishop said this was clear in Divinity To which it was answered by Mee in the presence and with the clear Consent of all the Justices of England and Barons of the Exchequer that the King in his own person cannot adjudge any Case either Criminal as Treason c. or betwixt party and party concerning Inheritance Goods c. But it ought to be determined in some Court of Justice according to the Law and Custome of England and all Judgments are given Ideo consideratum est per Curium And the King hath his Court in the Upper House of Parliament in which he with his Lords is the Supream Judge over all Judges And in this respect the King is called Chief Justice 20 H. 7. 7. a. by â—rudnel and it appears in our Bookes 2 R. 3. 9. 21 H. 7. 8. that that the King may sit in the Star-Chamber but this was onely to consult not in judicio So in the Kings-Bench but the Court gives Judgment And 't is commonly said in our Books the King is alwayes present in Court and therefore he cannot be Non-suit And it appears by the Acts of Parliament 2 Ed. 3. c. 9. 2 Ed. 3. c. 1. That neither by the Great Seal nor by the little Seal Justice shall be delayed ergo The King cannot take any Cause out of any of his Courts and give Judgment upon it but in his own Cause he may stay it as appears 11 H. 4. 8. And the Judges informed the King that no King after the Conquest ever assumed to himself to give Judgment in any Cause whatsoever which concerned the Administration of Justice within the Realm 17 H. 6. 14. 39 Ed. 3. 14. the King cannot Arrest any man 1 H. 7. 4. Hussey chief Justice Reports being Attorney to Ed. 4. That Sir John Markham chief Justice said to Ed. 4. That the King cannot Arrest a man for suspition of Treason or Felony as his other Leiges may And it was greatly marvailed That the Archbishop durst inform the King that such absolute Power as aforesaid belonged to him by the Word of God Vide 4 H. 4. cap. 22. Westm 2. cap. 5. vide le stat de Marlbridge cap. 1. stat de Magn. Chart. cap. 29. 25 Ed. 3. c. 5. 43 Ed. 3. c. 3. 28 Ed. 3. c. 3. 37 Ed. 3. c. 18. vide 17 R. 2. ex Rotulis Parliamenti in Turri act 10. A controversy of Land between Parties was heard by the King and Sentence given which was repealed because it did belong to the Common Law Then the King said That the Law was grounded upon Reason and that He and Others had reason as well as the Judges To which it was answered by Me That true it was God had endued his Majesty with excellent Science but his Majesty was not learned in the Laws of England and Causes which concern the Life or Inheritance or Goods of his Subjects which are not to be decided by natural Reason but artificial Reason and Judgment of Law which
one Bellingham 2 Jac. in Westminster-Hall Sedentibus Curiis with his Elbow and Shoulder out of malice justled Anthony Dyer of the Temple that he overthrew him and spurned him with his Feet upon the Legs but smote him not in any other manner And yet it was held That his right hand should be cut off c. upon which Bellingham was indicted in Banke le Roy and after got his Pardon A Case was put to all the Justices of England viz. The Bishopricks of Waterford and Lismore originally two Bishopricks by lawful Authority in the time of H. 3. were united but the Chapters yet remain several After which Union the Bishop aliened Lands of the Sea of Waterford and also of the Sea of Lismore with confirmation of the Chapter of Lismore 1. The Question was Whether such Alienations are not voydable by the Successor being with the Confirmations of both the Deans and Chapters 2. The second Question was Whether the Queen might avoid such alienations by seizure or otherwise The Justices demanded a View of the Union to which it was answered That it was not extant then was it Resolved by the Justices That inasmuch as the Usage hath been after the Union that the several Deans and Chapters have severally made Confirmations ut supra it shall be intended that the Union notwithstanding yet for avoiding Confusion and in respect of the remoteness of the Deans and Chapters that Estates made shall be severally confirmed as before the Union and then such Confirmations shall be good for in such Case Modus conventiovincunt Legem 50 Ed. 3. Title Assize Statham Ri. 2. Title Grant 27 H. 8. Dyer 58. 11 Eliz. Dyer 33 H. 8. 2. It was Resolved That upon a lawful Alienation made with Confirmation of the Dean and Chapter no contraformam collationis lyes upon the Statute of Westm â— See my 7th Reports Trin. 8 Jacobi Regis Convocation Case It was Resolved by the two Chief Justices and divers other Justices at a Committee before the Lords of Parliament concerning the Authority of a Convocation 1. That a Convocation cannot assemble without the assent of the King 2. That after their Assembly they cannot confer to Constitute any Cannons without Licence d l Roy. 3. When upon Conference they conclude any Cannons yet they cannot exâ—cute any of them without Royal assent 4. They cannot execute any after Royal assent but with these Limitations 1. That they be not against the Kings Prorogative 2. Nor against the Common Law 3. Nor against Statute Law 4. Nor against any Custom of the Realm And all this appears by 25 H. 8. cap. 19. 19 Ed. 3. Title Quare non admisit 7. 10 H. 7. 17. Merton cap. 9. 2 H. 6. 13. A Convocation may make Constitutions to bind the Spiritualty because they all in person or by representation are present but not the Temporality 21 Ed. 4. 47. The Convocation is Spiritual and so are all their Constitutions Vide the Records in Turri 18 H. 8. 8 Ed. 1. 25 Ed. 1. 11 Ed. 2. 15 Ed. 2. Prohibitio Regis ne Clerus in Congregatione sua c. attemptet contra jus seu Coronam c. by which it appears they can do nothing against the Law of the Land or the Kings Prerogative Case of Piracy Trin. 8 Jacobi Regis In this Term the King referred the Consideration of Letters Patents of the Lord Admiral of England to the two Chief Justices and the Chief Baron whether by the said Letters Patents the Goods which Pirates should take from Others by Robbery and Piracy did pass to the Lord Admiral or no. And upon Consideration thereof it appeared to us That he had Bona et Catalla Piratorum and also Bono et Catalla depraedata Goods robbâ—d from others which did not pass for two Causes 1. If the King Grant Bona et Catalla Felonum the Patentee shall have the Goods and Chattels of the Felon himself but not the Goods and Chattels which the Felon stealeth from others 2. The Goods taken from Others the King cannot Grant for it appears by the Statute 27 Ed. 3. cap. 8. St. 2. That the Merchant c. so robbed shall be received to prove that the Goods and Chattels belong to him by his Cockâ—â— or other lawful Proof c. the said Goods shall be delivered without any Suit at Common Law But it was Resolved That till such proof be made the King may seize the Goods for Goods of which the property is unknown the King may seize And if they are bona peritura the King may sell them and upon proof c. restore the value And the Owner is not limited to any time by the Statute 31 H. 6. cap. 4. 2 R. 2. cap. 2. 13 Ed. 4. 9 10. a good resolution of the Justices and the Register 179. F. N. B. 114. when a Subject of the King spoiled beyond Sea shall have a Writ c. for to take Goods within England c. Case of Simony Trin. 8 Jacob. Regis It was agreed ad mensam by all the Justices and Barons in Fleet-street That if the Patron for any Money present any Parson to a Benefice with Cure c. then every such Presentation c. thereupon are void though the Presence be not party not privy to it for the Statute intends to punish such wicked avarice and gives the Presentation to the Queen And this per verba Statuti penned strongly enough against corrupt Patrons Proclamations Mich. 8 Jacobi Regis On Thursday the 20th of Sept. 8 Regis Jacobi I was sent for to attend the Lord Chancellor the Lord Treasurer Lord Privy-Seal and Chancellor of the Dutchy the Attorney Sollicitor and Recorder being present And two Questions were moved to me by the Lord Treasurer 1. If the King by his Proclamation may prohibite new Buildings in and about London 2. If the King may prohibite the making of Starch of Wheat The Treasurer said These were preferred to the King as Grievances and against the Law and Justice To which the King Answered That he will conferr with his Privy-Council and Judges and then he will do them right To which I answered That these Questions being of great Importance I did desire that I might have Conference with my Brethren the Judges To which the Chancellor said Every President had first a Commencement and that he would advise the Judges to maintain the Kings Prerogative and where there was no President to leave it to the King and all concluded it should be necessary to confirm the Kings Prerogative with our Opinions To which I answered True it is every President hath a Commencement but when Authority and President is wanting there needs great Considerations before any Novelty be established For I said The King cannot change any part of the Common-Law nor create any offence by his Proclamation But I desired to Confer with my Brethren for Deliberandum est diu quod Statuendum est semel To which Mr. Sollicitor said Dâ—vers Sentences were given
in the Star-Chamber upon the Proclamation against Building and that I had given Sentence against the said Proclamation To which I answered That Presidents were to be seen and Considerations to be had upon Conference with my Brethren for Melius est recurrere quam male currere and Indictments conclude contra leges statuta never contra regiam Proclamationem At last my motion was allowed and the Lords appointed the two Chief Justices Chief Baron and Baron Altham to consider of it Note the King by his Proclamation or otherwise cannot change any part of the Common-Law Statute-Law or Customs of the Realm 11 H. 4. 37. Fortescue in laudibus legum Ang. cap. 9. 18 Ed. 4. 35 36 c. 31 H. 8. cap. 8. ubi non est lex ubi non est transgressio ergo That which cannot be punished without Proclamation cannot be punished with it Vide le Stat. 31 H. 8. cap. 8. But if a man be indicted upon a Contempt against a Proclamation he shall be Fined anâ— imprisoned Vide Fortescue cap. 9. 18 34 36 37 c. In all Cases the King out of his Providence and to prevent dangers may prohibite them before which will aggravate the Offence if it be afterwards committed And as it is a Grand Prerogative of the King to make Proclamations 22 H. 8. Procl B. yet we find Presidents of Proclamations utterly against Law and Reason and therefore void For Quae contra rationem Juris introducta sunt non debent trahi in sequentiam An Act made to License Forreiners to Merchandize in London H. 4. by Proclamation prohibited the Execution of it usque ad prox Parliament which was against Law Vide doâ—s claus 8 H. 4. Proc. in London but 9 H. 4. An Act was made That all Irish should depart the Realm before the Feast of the Nativity this only was in terrorem being utterly against Law Hollingshead 772. Anno Dom. 1546. 37 H. 8. The Whorâ—-houses vulgo Stews were suppressed by Proclamation and found of Trumpet In the same Term Râ—solved by the two Chief Justices Chief Baron and Baron Altham upon Conference between the Lords of the Privy-Council and them That the King by his Proclamation cannot create any Offence which was not an Offence before for then he may alter the Law And the Law of England is divided into three parts 1. Common-Law 2. Statute-Law 3. Custom But the Kings Proclamation is none of them Resolved also That he hath no Prerogative but what the Law of the Land allows him but he mry by Proclamation admonish his Subjects that they keep the Laws upon pain to be inflicted by Law c. Lastly If the Offence be not punishable in the Star-Chamber Prohibition by Proclamation cannot make it punishable there And after this Resolution no Proclamation imposing Fine and Imprisonment was made c. Mich. 8 Jac. Regis Prohibitions It was Resolved in this Term That if a man be excommunicated by the Ordinary where he ought not as after a general Pardon c. and the Defendant being Negligent doth not sue a Prohibition but remains excommunicate by 40 dayes and upon Certificate in Canc is taken by the Kings Writ de excommunicato capiendo no Prohibition lies in this Case because he is taken by the Kings Writ Then it was moved what remedy the Party hath who is wrongfully excommunicate to which it was answered he hath three Remedies 1. He may have a Writ out of Chancery to absolve him 14 H. 4. fol. 14. and with this agrees 7 Ed. 4. 14. 2. When he is excommunicate against the Law of this Realm so that he cannot have a Writ de Cauâ—fone admittenda then he ought Parere mandatis Ecclesiae in sorma Juris i. e. Ecclesiastici where in truth it 's Excommunicatio contra jus forman Juris i. e. Communis Juris But if he shew his Cause to the Bishop and Request him to assoyl him either because he was excommunicate after the Offence pardoned or that the Cause did not appear in Ecclesiastical Cognizance and he refuse he may have an Action Sur le Case against the Ordinary and with this agrees Dr. St. lib. 2. cap. 32. fol. 119. 3. If the Party be excommunicate for nonâ—e of the Causes mentioned in the Act 5 Eliz. cap. 23. then he may plead this in the Kings Bench and so avoid the Penalties in the Act. Note It was Resolved by the Court c. That where one is cited before the Dean of the Articles in cause of defamation for calling the Plaintiff Where out of the Diocess of London against the Statute of 23 H. 8. And the Plaintiff hath Sentence and the Defendant is excommunicated and so continues 80 dayes And upon Certificate into the Chancery a Writ of Excommunicato capiendo is granted and the Defendant taken and imprisoned thereby that he shall not have a Prohibition upon the Statute 23 H. 8. for no Writ in the Register extends to it but there is a Writ there called de cautione admittenda when the Defendant is taken by the Kings Writ de excommunicato capiendo de parendo mandatis Ecclesiae and to assoyl and deliver the Defendant But in the Case at Bar it does not appear to us judicially without Information that the Citation is against the forme of the Statute And the Information comes too late in this Case after the Defendant hath persisted so long in his Contumacy and is taken by the Kings Writ and imprisoned Admiralty It was Resolved per totam Curiam That if One be sued in the Admiralty-Court for a thing alledged to be done upon the High-Sea within the Admirals Jurisdiction and the Defendant plead and confess the thing done and after Sentence the Court will be advised to Grant a Prohibition upon surmise That it was done infra corpus comitatus against their own confession unless it can be made appear to the Court by matter in Writing or other good matter that this was done upon the Land for otherwise every one will stay till after Sentence and then for vexation only sue out a Prohibition And admonition was given to them that sue out Prohibitions That they should not keep them long in their Hands or untill they perceive they cannot prevail in the Ecclesiastical Court then to cast in their Prohibition for if they abuse that liberty to the vexation of the Party we will take such order as in case of a Writ of Priviledge if the Defendant keep it till the Jurors are ready c. it shall not be allowed Hill 8 Jacob. Regis In this Term in Doctor Trevor's Case who was Chancellor of a Bishop in Wales It was Resolved That the Office of a Chancellor and Register c. in Ecclesiastical Courts are within the Statute 5 Ed. 6. cap. 16. which Act being made for avoiding corruption of Officers c. and advancement of worthy Persons shall be expounded most beneficially to suppress Corruption And because the Law allows Ecclesiastical Courts to
holden That if one were to sit in the Chancel and hath there a place his Carpet Livery and Cushion the Parson cannot claim them as Oblations for that they were hanged there in honour of the Deceased the same Reason of a Coat-Armour c. And the Chief Justice said the Lady might have a good Action during her Life in the Case aforesaid because she caused the things to he set up there and after her death the Heir shall have his Action they being in the nature of Hire-looms which belong to the Heir And with this agrees the Laws of other Nations Bartho Cassanâ—us sol 13. Coâ—cl 29. Actioâ— dat si aliquis arma in aliquo loco posita deleat aut abrasit c. and in 21 Ed. 3. 48. in the Bishop of Carlisle's Case Note That in Easter Term 10 Jacob. it was Resolved in the Star-Chamber in the Case between Hussâ—y and Katharine Leyton that if a man have a house in any Parish and that he and all those whose Estate he hath have used to have a certain Pew in the Church that if the Ordinary will displace him he shall have a Prohibition but where there is no such Prescription the Ordinary shall dispose of common and vulgar Seats Earl of Shrewes buryes Case Sir Humphry Winch Sir James Ley Sir Anthony St. Leger and Sir James Hullesâ—on certified the Lords of the Councel by Command from them by Letters dated 28. Martii 1612. of the Claim of Gilbert Earl of Shrewesbury to the Earldome of Waterford and Barony of Dungarvan in Ireland as followeth King Henry the Sixth by Letters-Patents in the 20th year of his Reign did Grant to his Cosin John Earl of Shrewsbury in consideration of his Loyal Services in the City and County of Waterford pro se c. ipsum in Comitem Waterford una cum stilo et titulo ac nomine ac honore eisdem debitis ordinamus creamus habendum to the said Earl and his Heirs-males of his Body and further did Grant the Castles Lordships c. of Dungarvan to the said Earl and the Heirs-males of his Body To hold c. of the King and his Heirs by Homage and Fealty and by the Service of being his Majesties Seneschal in Ireland After in the Parliament called Des Absentees holden at Dublin in Ireland 10. Maii 28 H. 8. It was enacted by reason of the long absence of George Earl of Shrewesbury out of the said Realm That the King his Heirs c. shall enjoy in right of his Crown of England all Honors Mannors Castles c. and all and singular possessions c. as well Spiritual as Temporal which the said George Earl of Shrewesbury and VVaterford or any other Persons had to his Use c. King Henry the 8th by his Letters Patents dated 29th of his Reign reciting the said Statute Nos praemissa Considerantes c. did Grant to the said Earl and his Heirs the Abbey of Rufford with the Lands thereunto c. in the County of Nottingham and the Lordship of Rotheram in the County of York the Abbeys of Chestersteld Shirbrook and Glossaâ—dale in Derbyshire with divers other Lands c. to be holden in Capite And the Questions were as followeth 1. Whether by the long absence of the Earl of Shrewsbury out of Ireland the Title of the Honor be lost and forfeited he being a Peer of both Realms and refiding here in England 2. Whether by the Act Des absentâ—es 28 H. 8. the Title of Dignity of Earl of VVaterford be taken from the said Earl as well as the Land c. Afterwards by other Letters Patents dated 27th of Sept. 1612. the two Chief Justices and Chief Baron were required to consider of the Case and to certifie their Opinions which Case being argued by Councel learned in the Law in behalf the said Earl and they having taken great advisement It was unanimously Resolved by them all as followeth 1. As to the fiâ—st Resolved That since it does not appear what defence was requisite and that the Consideration Executory was not found by Office to be broken in that Point the said Earl of Shrewsbury notwithstanding does remain Earl of Waterford 2. As to the second It was Resolved That the said Act 28 H. 8. Des Absenteâ—s does not onely take away the Possessions given him at his Creation but also the Dignity it self for though one may have a Dignity without Possession yet is it very inconvenient that Dignity should be cloathed with Poverty and so it was resolved in the Lord Ogles Case in Edw. 6. Reign as the Baron of Burleigh 35 Elâ—z did report The cause of Degradation of George Nevil Duke of Bedford is worth observation which was done by Act of Parliament 16 June 17 Ed. 4. which Act reciting the making the said George Duke sets forth the cause of his Degradation in these words And for so much as it is openly known that the said George hath not or by Inheritance may have any livelyhood to support the said Name Estate and Dignity c. Therefore the King by Advice of his Lords Spiritual and Temporal and Commons c. Enacteth c. That from henceforth the same Creation of the said Duke and all Names of Dignity given to the said George or to John Nevil his Father be void and of none effect Wherein are to be observed 1. That though the Duke had not Possessions to maintain his Dignity yet it could not be taken from him but by Act of Parliament 2. Great Inconveniencies follow where there is great State and Dignity and no means to maintain it 3. It is good reason to take away such Dignity by Act of Parliament and then the Act shall be expounded to take away such Inconvenience And though the Earl of Shrewsbury be of great Honour Vertue and Possessions in England yet it was not the Intention of the Act to continue him Earl in Ireland when his Possessions there were taken away And where it was objected that the general words Honours and Hereditaments are explained and qualified by the said Relative subsequent which the said George or any to his use hath Now in regard no man can be seized of the said Digniâ—y therefore the Act doth not extend to it 'T is answered that is to be understood Reddendo singula singulis and these words which the said G. E. hath are sufficient to pass the Dignity and with this agrees all the Judges Opinions in England in Nevils Case upon the like in the Statute 28 H. 8. in 7th Part of my Reports sol 33 and 34. Hill 2 Jacob. Regis Jurisdiction of the Court of Common-Pleas In the last Term by the King's Commands the Justices of the Kings Bench and Barons of the Exchequer were assembled before the Lord Chancellor Ellesmere at York-house to deliver their Opinion Whether there was any Authority in our Books that the Justices of the Common-Bench may grant Prohibitions or whether every Plea ought to be pending
the Law behead his Wives for Treason for judicandum est legibus non exemplis Tâ—iâ— 9 Jacob. Regis In this Term I moved the Justices in Sergeants Inne in Fleetstreet upon the Stat. 27 Jac. cap. 6. If the Justices of Peace may make a special Warrant to Constables c. to have the bodies of parties who are to take the Oath according to the Statute before them And it was Resolved by all unâ voce that they may and that for two Reasons 1. When the Statute gave power to Justices of the Peace to require any persons c. to take the Oath the Law implicite gave power to make a Warrant to have the body for Quando lex aliquid alicui concedit conceditur et id sine quo res ipsa esse non potest 2. It is against the Offices of the Justices and the Authority given them by that Statute that they shall go and seek the parties Then I moved if in such case the Constables may break the Houses of the Parties named in their Warrants and it seemed to Us all that they cannot because they are not Offenders till they refuse to take the Oath before them or commit some Contempt to the King Note If the person be fugitive in another County he evades the Statute for the present but he may be indicted for Recusancy and the Indictment be removed into the Kings-Bench and they may make Process against them into any County of England Also if they are in their Houses the Door being shut c. they may be indicted before the Justices of Assize or Quarter-Sâ—ssions and then after a Venire Facias c. by force of a Capias their Houses may be broken by the Sheriff 10 Eliz. cap. 2. to which the 23 Eliz. refers Memorandum Hill 9 Jac. All the Justices of England by the Kings Command were assembled to consider of these two Statutes And in the beginning of this Term they were recited and debated and after good consideration and Conference together It was Resolved by all That if one be indicted for Recusancy the Court may proceed by Process upon the Stat. 23 Eliz. or by Proclamation according to 28 Eliz. And that the Process upon the Indictment and Venire Facias and Capias c. and upon the Capias the Sheriff upon Request made to open the Door as in Seymans Case and when by the Sheriff brought into Court he may upon refusal of taking his Oath be generally indicted c. But the Justices upon the second day of Conference did not speak to the other Point And this Resolution being reported to the Lords of the Councel aâ— Whitehall all the Judges being present 7 Feb. Hill 9 Jacob. Regis We were desired to put our Resolution into Writing I answered The Judges never used so to do But if the Attorney or Sollicitor came to us we will deliver our Opinions to them ore tenus but not in Writing At thâ— third day upon the Conference in this Term it seemed upon the Statute 3 Jac. If Justices of Peace upon Refusal before them commit any person to Gaol with Bayâ— and mention in their Warrant the Tender and Refusal then the Oath ought to be tendred again But if the Mittimus do not comprehend the Tender and Refusal then they may be generally indicted as upon Refusal in â—pon Court And it was Resolved That the major number of Justices of Peace who commit the Parties have Election to commit to the next Assizes or the next Sâ—ssions And observe that two Justices whereof one of the Quorum by the Stat. 7 Jac. may commit any person above the Age of 18. and under the Degree of Nobility altâ—ough he be not indicted or convict And it was Resolved by all That if the Indictment be commenced upon the Stat. 3 Jac. upon Refusal in open Court then the Indictment may be short and general c. Not so if the Indictment be upon the Commitment made by two Justices of the Peace This is good of any person whatsoever Mich. 10 Jac. Regis The Earl of Northampton's Case 1. The Attorney-General informed against Thomas Goodrick Gent. Sir Richard Cox Kt. Henry Vernon Gent. Henry Minors Thomas Lake Gent. and James Ingrum Merchant ore tâ—nus in the Star-Chamber and charged Goodrick that he had spoken and published of the E. of Northampton a Peer of the Realm c. divers false and horrible Scandals scil That more Jesuits Papists c. have come into England since the Earl of Northampton was Guardian of the Cinque-Ports then before 2. That the said Earl had writ a Book openly against Garnet c. but secretly had writ a Letter to Bellarmine intimating that he writ the said Book ad placandum regem sive ad faciendum populum and requested that his Book â—ight not be answered and that the Archbishop of Canterbury had told it the King and that the said Goodrick told it to one Deusbery who acquainted the Earl with it Goodrick being examined vouches Sir Richard Cox for Author Sir Richard Cox vouched the said Vernon Vernon cited Lake Lake that he heard it from Sergeant Nichols Nichols said one Speaket related it to him and that he heard it from James Ingrum and James Ingrum said that in October he heard the said words of two English Fugitives at Ligorn but never published them till the Earl of Salisbury's death in May last And all the Defendants confâ—ssed at Bar all that they were charged with and at the Hearing of this Case were 11 Judges Fleming being absenâ— propter aegritudinem And so it was Resolved That the publishing of false Rumours concerning the King or the Peers was in some Cases punishable by the Common-Law But of this were divers Opinions 1. And first as to Rumors themselves 1. They ought to be fase and horrible 2. Such of which Discord may arise betwixt the King and his People c. West 2. c. 24. 2 R. 2. cap. 53. 3. The Subversion and Destruction of the Realm ibidem 2. As to Persons they declared to be Prelates Dukes Earls Barons c. Justice of the one Bench or other or any great Officers c. 2 R. 2. c. 5. And the King is contained within West 1. c. 34. as appears in Dyer 5 Mary 155. 3. As to the third Point it was Resolved That if one hear such false and horrible Rumors it is not lawful to relate them to others And this appears by the Stat. viz. That the Party shall be imprisoned until he find out the party who spoke them Which proves it was an Offence else he should not be punish'd by Fine and Imprisonment It was also Resolved That the Offenders at the Bar if against them the Proceedings had been by Indictment upon these Statutes no Judgment could be had against them that they should be imprisoned till they found their Author for Goodrick did not relate to Deusbery that he heard from Sir Richard Cox but he related the same as of himself
all his Right Estate c. The Plaintiff surjoyneth and saith that the said sum of 5 l. 6 s. 8 d. c. was not rationabilis finis as the said Thomas Bradley above hath alleadged c. Upon which the Defendant doth demur in Law c. And in this Case these Points were Resolved by Coke Chief Justice Walmesly Warberton Daniel and Foster Justices 1. If the Fine had been reasonable yet the Lords ought to have set a certain time and place when the same should be paid because it stands â—â—on the point of Forfeiture As if a man assures Lands to one and his Heirs upon condition to pay to the Bargainee and his Heirs 10 l. at such a place or that he and his heirs shall re-enter there because no time is limited the Bargainor ought to give notice to the Bargainee c. when he will tender the money and he cannot tender it when he pleaseth and with this agrees 19 Eliz. Dyer 244. So in the Case at the Bar the Copyholder is not bound to carry his Fine alwayes with him c. And though that the Rejoynder is that the Plaintift refused to pay the Fine so he might well do when the Request is not lawful or reasonable And he that is to pay a great Fine as 100 l. or more it is not reasonable that he carry it always with him And the Copyholder was not bound to do it because the Fine was incertain and arbitrable as was Resolved in Hulbarts Case in the 4th Part of my Reports among the Copy-hold Cases 2. It was Resolved That though the Fine be uncertain and arbitrable yet it ought to be secundum arbitrium boni viri and it ought to be reasonable because Excessus in re qualibet jure reprobatur communi for the Common-Law forbids any excessive Distress as appears 41 Ed. 3. 26. And this doth appear to be the Common-Law for the Statute of Articuli super Chartas extends onely for a grievous Distress taken for the Kings Debt See F. N. B. 147. a. and 27 Ass 51. 28 Ass 50. 11 H. 4. 2. and 8 H. 4. 16. c. And so if an excessive Amerciament be imposed in any Couâ—t-Baron or other Court not of Record the Party shall have Moderata mis ericordia And Magna Charta is but an Affirmance of the Common-Law in this Point See F. N. B. 75. And the Common-Law gives an Assize of Sovient Distress and multiplication of Distress found which is Excess And with this agrees 27 Ass 50 51. F. N. B. 178 b. And if Tenant in Dower hath Tenants at Will that are rich and makes them poor by excessive Tallages and Fines this is wast F. N. B. 61. b. 16 H. 3. Wast 135. and 16 H. 7. Vide also the Register Judicial fol. 25. B. Waste lyeth in Exulando Henricum Hermanum c. Villeynes Quorum quilibet tenet unum messuagium unam Virgat terrae in Villenagio in Villa praed c. By all which it appears the Common-Law forbids excessive oppressing of Villains c. So in the Case at Bar though the Fine is uncertain yet it ought to be reasonable and so it appears by the Custome alleadged by the Defendant See Hubbard's Case before in the 4th Part of my Reports And when reasonableness concerning a Fine is in question the same shall be determined by the Court in which the Action depend 21 H. 6. 30. 22 Ed. 4 27. and 50 29 H. 8. 32. c. 3. It was Resolved That the Fine in the Case at the Bar was unreasonable being for the admittance of a Copy-holder in Fee-simple upon a Surrender made for this is not like a voluntary Grant c. for there Arbitrio Domini res estimari debet But when the Lord is compellable to admit him to whose use the Surrender is And when Câ—stuy que use is admitted he shall be in by him who made the Surrender and the Lord is but an Instrument to present the same 4. It was Resolved That the Surjoinder is no more than what the Law saith And for the Causes aforesaid Judgment was given for the Plaintiff And Coke Chief Justice said in this Case That if the Court of Admiralty amerce the Defendant excessively at discretion as seems by 19 H. 6. 7. the same shall not bind the Party and be it excessive or not it shall be determined in the Court where the Action shall be brought And a Writ of Account against a Bayliff or Guardian Quod reddat â—i rationabilem compâ—tum c. for the Law requires Reason and no excuse or extremity in any thing Mich. 6 Jac. Regis in the Common-Pleas Porter and Rochester's Case This Term Lewis and Rochester who dwelt in Essex in the Diocess of London were sued for subtraction of Tythes growing in B. in the said County of Essex by Porter in the Court of the Arches of the B. of Canterbury in London And the Case was The Archbishop of Canterbury â—ath a peculiar Jurisdiction of 14 Parishes called a Deanry exempt from the Authority of the Bishop of London whereof the Parish of St. Mary de Arcubus is the chief And the Court is called the Arches because it is holden there And a great Question was moved If in the said Court of Arches holden in London he might cite any dwelling in Essex for substraction of Tythes growing in Essex or if he be prohibited by the Statute 23 H. 8. cap. 9. which after Debate at Bar by Councel and also by Dr. Ferrard Dr. James and others in open Court and lastly by all the Justices of the Common-Pleas A Prohibition was granted to the Court of Arches And in this Case divers Points were Resolved by the Court. 1. That â—â—l Acts of Parliament made by the King Lords and Commons in Parliament are parcel of the Laws of England and therefore shall be expounded by the Judges of the Laws of England and not by the Civillians Cannonist although the Acts concern Ecclesiastical Jurisdiction And in 10 H. 7. the Bishop of London caused onâ— to be imprisoned because the Plaintiff said he ought not to pay his Tythes to his Curate And the imprisoned Party brought his Action of false Imprisonment against those that arrested him by the Bishops Command and there the Matter is well argued what words are within the Statute and what words are not So upon the same Statute was Resolved in 5 Ed. 4. in Keysar's Case in the Kings Bench which see in my Book of Presidents And so the Statutes of Articuli Cleri de Prohibitione regiâ De Circuâ— spâ—cte agitis of 2 Ed. 6. cap. 13. c. have alwayes been expounded by the Judges of the Common-Law as was adjudged in Wood's Case Pasch 29 Eliz. So 21 H. 8. cap. 13. See 7 Eliz. Dyâ—r 233. 15 Eliz. Dyer 251. 14 Eliz. Dyer 312. 15 Eliz. Dyâ—r 327. 18 Eliz. Dyer 352 347. 22 Eliz. Dyer 377. 2. Resolved by Coke Chief Justice Warbâ—â—ton Daniel and
c. Mills c. and to correct repair or pull down c. as cause requireth according to their discretions c. after the effect of the Statute made before the 1. of March 23 H. 8. By which appears that the Commissioners discretion was limited viz. to proceed according to the Statutes and Ordinances before made c. And the said Act provides That all and every Statute Act and Ordinance heretofore made concerning the Premises not contrary to this Act nor repealed shall stand good and be effectual for ever But the said Acts 25 Ed. 3. and 1 H. 4. are not contrary to the said Act nor repealed and always such construction ought to be made that one part of the Act may agree with another And according to this Resolution We certified the Lords of the Councel that the said Star 25 E. 3. 1 H. 4. remained yet in force and that the Authority given by the Commission of Sewers did not extend to Mills Mill-stanks Cawseys c. erected before Ed. 1. unless they have been inhanced and then they are not to be subverted but reformed by abating the Inhancement onely Trin. 7 Jacobi Regis The Case de modo Deciâ— andi and of Prohibitions Richard Archbishop of Canterbury with the Bishops of London Bath and Wells and Rochester divers Doctors of the Civil and Canon-Law as Dr. Dun Judge of the Arches Dr. Rennet Judge of the Prerogative Dr. James Dr. Martin and others came and attended the King at White-Hall the Thursday Friday and Saturday after Easter Term in the Councel-Chamber where the Chief Justice and I my self Daniel Judge of the Common-Pleas and Williams Judge of the Kings-Bench by the King's Command attended also where the King assisted with his Privy-Councel all sitting at the Councel-Table spake as a most Gracious Soveraign to this effect As He would not suffer any Novelties or Innovations in his Courts of Justice Ecclesiastical and Temporal so he would not have any the Laws which had Judicial Allowances in the Times of his Predecessors Kings of England to be forgotten And forasmuch as Contentions between the Temporal and Ecclesiastical Courts cannot but breed great Inconvenience to the Subjects especially when the Controversie ariseth upon the Jurisdiction of his Ordinary Courts of Justice And because he was the Head of Justice immediately under God and knowing what hurt may grow to his Subjects when the Jurisdiction of his Courts are drawn in question He thought it concerned him as a King to hear the Controversies between the Bishops and Clergy and the Judges of his Laws of England and to take Order that the one do not encroach upon the other And He said The onely Question then to be disputed was If a Parson or Vicar of a Parish sues one of his Parish in the Spiritual Court for Tythes in Kind or Layfee and the Defendant alleadgeth a Custom or Prescription de modo Decimandi if that Custom or Prescription shall be tryed and determined before the the Judge Ecclesiastical where the Suit is begun or a Prohibition lyeth to try the same by the Common-Law And the King directed that We who were Judges should declare the Reasons of our Proceedings and what Authorities in the Law we had to warrant our Proceedings in granting Prohibitions in Cases de modo Decimandi But the Archbishop of Canterbury kneeled before the King and desired he would hear him and others provided to speak in the Case for the good of the Church of England And the Archbishop inveighed chiefly against two things 1. That a Modus Decimandi should be tryed by a Jury because they themselves claim more or less modum Decimandi so as in effect they were Tryers in their own Cause or in the like Cases 2. He inveighed much the precipitate and hasty Tryals by Juries and after him Dr. Bennet made a large Invection against Prohibitions in causis Ecclesiasticis and he made five Reasons why they should try modum Decimandi 1. The first and principal was out of the Register fol. 58. quia non est consonans rationi quod cognitio accessarii in Curiae Christianitatis impâ—diatur ubi cognitio causae principalis ad forem Ecclesiasticum noscitur peâ—tinere And the principal cause is Right of Tythes and the Plea of Modus Decimandi sounds in satisfaction of Tythes and therefore the Conuzance of the Original Cause viz. the Right of Tythes belonging to them the Conuzance of the Bar of Tythes belonged to them And whereas it is said in the second Part of my Reports in the Bishop of Winchesters Case and 8 Ed. 4. 14. that they would not accept of any Plea in discharge of Tythes in the Spirituall Court he said they would allow such Pleas and had allowed them being duly proved before them 2. There was great inconveniency that Lay-men should be Tryers of their own Customs for they shall be Jurors in their own Cause 3. That the Custom of Modo Decimandi is of Ecclesiastical Jurisdiction for it is a manner of Tything and all manner of Tything belongs to Ecclesiastical Jurisdiction and therefore he said if the Right of Tythes be of Ecclesiastical Conuzance and the Satisfaction also for them of the same Jurisdiction the same shall be tryed in the Ecclesiastical Court 4. In the Prohibitions of Modus Decimandi Averment is taken that though the Plaintiff in the Prohibition offer to prove Modum Decimandi the Ecclesiastical Court doth refuse to allow it but he said they would allow such Plea and therefore Cessante causa cessabit et effectus and no Prohibition shall lye 5. He said he can shew many Consultations granted in the Cause de modo Decimandi and a Consultation is of greater force then a Prohibition And Bacon Sollicitor General being as is said assigned with the Clergy by the King said less then Dr. Bennâ—t but he vouched 1 R. 3. 4. the Opinion of Hussey when the Originall ought to begin in the Spiritual Court and afterwards a thing cometh in Issue and is Tryable by our Law yet it shall be tryed by their Law See the Register 57 58. 38 Ed. 3 5. and 38 Ed. 3. 6. And the Judges made humble Suit to the King That in regard they perceived his Majesty in his Princely Wisdom derested Novelties and Innovations that He vouchsafe to suffer them to inform him of one Innovation which they did conceive would tend to hinder the Administration of Justice within his Realm Your Majesty for the due Administration of Justice hath made 14 Judges to whom you have committed not onely the Administration of ordinary Justice but crimina Laesae Majestatis Also in Parliament we are called by Writ to give our Advice and Councel to your Majesty and the Lords when we are required We two Chief Justices sit in the Star-Chamber Chancery Court of Wards and other High-Courts of Justice We in our Circuits do visit twice in the Year your Realm and execute Justice according to your Laws and if We
their Consciences and Oaths they can 2. That all the said Cases are clear in the Judgment of those who are Learned in the Laws that Consultation ought by the Law to be granted 1. For as to the first President the Case upon their own shewing is Three Persons joyned in one Prohibition for three several parcels of Land each having a several sort of Tything and their Interests being several they could not joyn and therefore a Consultation was granted 2. To the second the manner of Tything was alleadged to be paid to the Parson or Vicar which is uncertain 3. To the third The Modus never came in Debate but whether the Tythes did belong to the Parson or Vicar which being between two Spiritual Persons the Ecclesiastical Court shall have Jurisdiction and therewith agrees 38 E. 3. 6. 4. To the last The same was upon the matter of a Custom of a Modus Decimandi for Wooll for to pay the Tythe of Corn or Hay in Kind in satisfaction of Corn Hay and Wooll cannot be a satisfaction for the Wooll for the other two were due of common right The Bishop of London answer'd That the words of the Consultation were Quod suggestio praedicta mattriaque in eadem cohtenta minus sufficiens in lege existit c. So as materia cannot be referâ—ed to Form and therefore it ought to extend to the Moâ—us Decimandi To which I answer'd That when the Matter is insufficiently or uncertainly alleadged the Matter it self faileth and though the Matter be in truth sufficient yet if it were insufficiently alleadged the Plea wanteth matter Then the Lord Treasurer saâ—d he wondered they would produce things that made more against them then any thing had been said And when the King relyed upon the Prohibition in the Register when Land is given in discharge of Tythes the Lord Chancellor said That was not like this Case For there by the Gift of the Land the Tythes were discharged but in the Case de modo Decimandi an Annual Sum is paid yet the Land remains charged and is to be discharged by Plea de modo Decimâ—ndi All which I utterly denied For the Land was as absolutely discharged of the Tythes in casu de modo Decimandi as where Lands are given All which the King heard with patience and the Chancellor answer'd no more After the King with all his Councel had for 3 dayes together heard the Allegations on both sides he said He would maintain the Laws of England and that his Judges should have as great respect from all his Subjects as their Predecessors And for the Matter he said for any thing had been said on the Clergies part he was not satisfied and advised Us the Judges to confer among our selves and that nothing be encroached in the Ecclesiastical Jurisdâ—ction and they to keep within their Jurisdiction And this was the end of these three dayes Consultation Note Dr. Bennet in his Discourse inveighed much against the Opinion 8 E. 4. 14. and in my Reports in Wrights Case That the Ecclesiastical Judge would not allow a Modus Decimandi and said that was the Mistery of Iniquiâ—y and they would allow it The King asked for what cause it was so said in the said Books To which I answer'd That it appears in Linwood who was Dean of the Arches and a Profound Canonist who wrote in Henry the Sixth's time in his Title De decimis cap Quoniam propter c. fol. 139. b. Quod decimae soluantur absque ulla diminutione And in the Gloss it is said Quod consuetudo de non Decimando aut de non bene decimando non valet And that being written by so great a Canonist was the cause of the said Saying in 8 E. 4. that they would not allow the said Plea de modo decimandi And it seemed to the King that that Book was a good cause for them in Edward the Fourth's time to say as they had said But I said I did not rely thereon but on the Grounds aforesaid Lastly The King said that the High Commission ought not to meddle with any thing but that which is enormous and which the Law cannot punish as Heresie Schism Incest and the like great Offences And the King thought that two High-Commissions for either Province one should be sufficient for all England and no more Mich. 39 40 Eliz. In the Kings-Bench Bedel and Sherman's Case Mich. 39 40 Eliz. Which is entred Mich. 40 Elizâ— in the Common-Pleas Rot. 699. Cantabr the Case was this Robert Bedel Gent. and Sarah his Wife Farmers of the Rectory of Litlington in the County of Cambridge brought an Action of Debt against John Sherman in custodia mariscalli c. and demanded 550 l. and declared that the Master and Fellows of Clare-Hall in Cambridge were ieized of the said Rectory in Fee in right of the said Colledge and the 10 Jun. 29 Eliz. by Indenture dâ—nised to Christopher Phesâ—nt the said Rectory for 21 years rendring 17 l. 15 s. 5 d. and reserving Rent-corn according to the Statute c. which Rent was the antient Rent who entred and was possessed and assigned all his Interest to one Matthew Bats who made his last Wâ—ll and made Sarah his Wife Executrix and dyed Sarah proved the Will and entred and was thereof possessed as Executrix and took to Husband the said Robert Beâ—el by force whereof hey in right of the said Sarah entred and were possessed and the Defendant was thâ—n Tenant and seized for his life of 300 Acres of Arable Lands in Litlington aforesaid which ought to pay Tythes to the Rector of Litlington and in 38 Eliz. the Defendant Sâ—minavit grano 200 Acres paâ—c â— c. the Tythes whereof amounted to 150 l. And the Defendant did not set forth the same from the Nine Parts but carryed them away contrary to the Statute 2 E 6 c. The Defendant pleaded Nihil debet And the Jury â—ound that the Defendant did owe 55 l. and to thâ— rest they found Nihil debet And in Arrest of Judgment divers Matters were moved 1. That Grano Seminata is too general and it ought to be expressed with what kind of Grain the same was sowed 2. It was moved If the Parson ought to have the treble value the Forfeiture being â—xoresly limited to none by the Act. or that the same beâ—ong to the Queen 3. If the same belong to the Parson if he ought to sue for it in the Ecclesiastical Court or in the King 's Temporal Court 4. If the Husband and Wife should joyn in the Action or the Husband alone and upon solemn Argument at the Barre and Bench Judgment was affirmed Trin. 7 Jac. Regis In the Court of Wards John Bayley's Case It was found by Writ of Dien clausit extremum that the said John Bayley was seized of a Messuage and of and in the 4th part of one Acre of Land late parcel of the Demesne Lands of the Mâ—nnor of Newton in the
assigned in the Ve Fa which was certified by Writ of Certiorari and upon this Writ no Return was made upon the Back of the Writ which is called Returnum Album And for that Cause this Easter Term the Judgment was reversed Trin. 7 Jac. Regis In Cur. Wardorum It was found by Writ of Diem clausit extremum after Roger Westcots death that the said Roger the day that he dyed was seized of and in the moiety of the Mannor of Trewalliard in his Demesne as of Fee and so dyed seized and that the moiety of the said Mannor 19 E. 3. was holden of the then Prince as of his Castle of Trematon parcel of his Dutchy of Cornwall by Knight-Service as appears by a certain Exemplification of Trematon for the said Prince made 9 Martii 19 E. 3. And the Words of the Extent were Willielmus de Torr tenet duo feoda et dimid Milit. apud Picke Stricklestombe Trewalliard per servitium militare reddit inde per annum 8 d. And it was Resolved by the two Chief Justices and Chief Baron That the Office concerning the Tenure was insufficient and void for the Verdict of a Jury ought to be full and direct and not with a prout patet for now the force of the Verdict lyes upon the Extentâ— which if it be false he who is grieved shall have no remedy by any Traverse for they have not found the Tenure indefinite which may be Traversed but with a prout patet which makes the Office in that Point insufficient And upon that a melius inquirendum shall issue And herewith agrees F. N. B. 255. FINIS THE TABLE A. AUrum Reginae what and what right the Queen hath to it 19 Alienations by Bishops when voidable by their Successors and when the King or Queen may void them 75 76 Admiralty Jurisdiction thereof is no Court of Record 82 83 84 85. 88 89. 109. 199. 200 201 Absence takes not away a Title of Honour and why 111 112 113 Affidavits false when how and from whom punishable 134 135 Arches Court its Jurisdiction 147 Arch-Bishop of Canterbury his power to act and in what cases 148 149 150 151 Apprentice none may keep a shop c. or set up a Trade c. unless he have served seven years 154 155 Apples whether within the Act for ingrossing and what within that Act 160 B. Bishops when lawfull and their Authority what and whence derived 8 9 Buggery what and how punishable 36 37 Baron who shall be said to be a Baron of Parliament and in what cases 73 74 Benevolence the nature thereof and how may be imposed 124 125 Burgage Tenure what and if tenant in Burgage shall pay aid to the King to make his Eldest Son Knight 169 170 171 172 Bridges who ought to repair them 176 177 C. Custome whence to be paid and of what 16 17. 33 Commissioners High Commissioners their power 17 18. 47 48 49 50 51 52. 72 73. 87 88 89 90 Conspiracy where such action lies for what and against whom 22 23 24. 95 96 97 Commissions what of them are against Law e contra 29 30 31 32. 93 94 Consultation where grantable 43. 46. 67 68 69 70 71 Court Christian their Power 44 Court of Common-Pleas their Power and Antiquity 60 61. 113 114 Convocation authority thereof 76 Contempt what shall be said a high contempt of the King and how punishable 100 101 Chester Chamberlain there his power 118 119 Court what judgement shall be given when the Court is divided in opinion 123 124 Contract what shall be said an intire Contract 205 206 Common when suspended or discharged e contra 214 215 Custome where and how available 216 217 218 219 D. Dignity the King may erect any name of Dignity that was not before or transfer it 85 86. 116 117 Deed obtained by Covin shall not bind 95 Duresse per Gaoler 133 Dower what a barre thereto e contra 161 162 163 164 165 F. Forrests what so properly and what may be done therein 20 21 First-Fruits and Tenths given to the Crown 46 47 Ferry-man when he may throw goods over boord 65 Felony while an Attainder in force no Felony before to be answered for 105 Forgery where punishable and how 108 177 178 Felon when his goods are forfeit 127 Fine levied how avoidable and for what 127 128 129 130 131 132 133. 202 Fine to the Lord of a Manor in Copy-hold ought to be reasonable 143 144 145 146 G. Grants antient not to be drawn in question 6 Grants of the Kings when void e contra 91 92 What shall be a good Grant to elect Burgesses to Parliament 126 H. Heresie what how and by whom punishable 58 59 60 Hand when the right hand shall be cut off and for what 74 75 Habeas Corpus 89 90 Haeretico comburendo the Writ therein lyeth 98 I. Impropriations not examinable and why 4 5 Confirmed by time though defective 5 6 Impositions when they may be laid by the King 32 33 34 Justices of Peace when they may award Processe of Outlawry 107 108 Their Power as to making Warrants 136 137 138 L. Libells what shall be judged a Libell and how and where to be punished 35 35 Law of England to be expounded by the Judges of it and none other 147 Lease for Lives when determinable 216 M. Marriages Priests Marriages not void 9 Marches Courts there when erected and why as also the power of Lords President there 51 53 54 55 56 57 58 Man-slaughter what so adjudged 92 93 Modus Decimandi what where suable 155 156 157 158 159 160. 181 182 183 184 185 186 ad 193 Meane profits when to be answered to the King 196 N. Nobility Priviledge thereof what 100 101 102 O. Oath Ex Officio in what cases the Ordinary may examine Ex Officio upon Oath 25 26 27 28 Office where traversable 106 107 Offices new where and upon what cause they may be erected 121 122 123 Office found where void and why 195 196 197. 222 Where an Estoppell 210 211 P. Procedendo in Loquela not allowable 4 Pardons what offences the King may pardon 28 29 Premunire where it lies and where not and against whom 37 38 39 40 41 42. 98 99 Prohibitions in what cases grantable and against whom and by what Courts 43 44 45 46. 52. 60 61 62 63. 66 67. 80 81. 89. 90. 150 151 152 153 Piracy who shall have Pyrates goods 77 Proclamations what may be prohibited thereby and the validity thereof 78 79 80 Priests may not be arrested in Holy Church c. 104 105 Perjury where punishable 106 Poynings Law how it shall be expounded 114 115 116 117 Portion what shall be said a sufficient Childs Portion 117 Palatine County its Jurisdiction 119 Parliament Forms and Orders of Parliament 119 120 Prohibition where it lies and for what and in what not 155 156 157 158 159 160. 172 173 174 175 176. 181 ad 193 Primer seisin where the King shall have it 198 199 Priviledge of Parliament to be determined by the Court of Parliament 212 213 Processe not to be made out of the Star-Chamben neither for damages nor costs 213 Parish Clerke who shall chuse 219 220 R. Recognizances when forfeited and for what 1 2 3 Rent when determinable by the Lessors death e contra 35 36 Robbery where the Hundred may be sued 64 65 Return when insufficient e contra 135 136 Returnum Album 222 S. Stannaries the Kings Prerogative therein 9 10 11 Salt-petre the Kings Prerogative therein in several points 12 13 14 Simony what it is and the penalty thereof 78 Statute what Officers shall be within the Stat. 5 E. 6. 16. for avoiding corruption 82 83 What is an offence within 11 H. 4. 9. 102 103 Slander fined in the Star-Chamber and why 108 Seat in the Church right thereto 109 110 Scandalum Magnatum what and how punishable 138 139 Sewers the Commissiones therein their power and how antient 179 180 T. Tayle Tenant in Tail may forfeit his Estate and when and for what 6 7 Treason what shall so be accounted e contra 14 15 16 Accessary in Treason who 86 Tenure what shall be said a Tenure in Capite c. 140 141 142 Tithes substracted where to be sued for 165 166 167 Tithes to be paid and for what and the neglect thereof how punishable 193 194 Timber-trees Oakes and Ash who may cut e contra 208 209. 216 217 V. Vowes of what validity in Common Law 99 W. Women Maids c. to take and marry against their Wills is Felony 18 19. 104 Wales Justices there not to be constituted by Commission 50 51 Witnesses Testis singularis not allowable 68 Parties to be no witnesses 72 Widow when and how her election shall determine 117 Winding-sheets felony to steal them 118 Wills and Testaments fees for writing thereof and extortion therein how punishable 177 202 Ward who shall be a ward to the King 203 204 205 Words action for words where it lies 207 208. 221 The End