custome is here over all the kingdome And yet if any man aske the question by what law wee are governed there is no proper answer other then by the law of England And for the statutes of England generall statutes were received in this kingdome some at one time some at another and all generall statutes by Poynings Act anno 10. Henr. 7. but no other statute or new introducting law untill the same be first received and enacted in Parliament in this kingdome and this may appeare by two declarative statutes the one 10. Henr. 4. the other 29. of Henr. 6. The law of England as it is the best humane law so it is a noble and sociable law and for the more cleere discerning of the truth and equall administration of Iustice it referres many causes to their genuyn and naturall proceedings as Maritime causes to the Court of Admiralty Co. Institutes 260. 361. Stamford 57. b. Co. 5. 106. 107 Constables Case and there the proceeding is by the Civill law Co 8 47. b. Matters beyond the Seas are determined in the Court of constable and Marshall Cookes institutes 391. b. matters of Latin the law referres to Grammarians Com. fol. 122. matters meerely Ecclesiasticall to bee tryed and determined in the proper Courts Coke 7. 43 b 8. Co. 68. 5. Co. 57. 1. R. 3. 4. matters of merchandize to Marchants 34. Henr. 8. Dy 52 54. Many other cases upon this learning are to be found Co. 9. fol. 30. 31. 32. Strat. Marclads case Yet in all these and the like Cases the tryall and determination thereof are bounded and controuled by the rules of the Common-law they are as Rivers which are necessary to run through the land to helpe the inhabitants thereof but if they overflow the bankes the bankes are made higher and stronger to suppresse their violent current so in all the cases aforesaid and the like The Common-law hath limitted the proceedings if they exceede their bounds witnesse the prohibitions in all our Bookes and the statutes of Provision and praemunire and cases there upon in many ages by which it is manifest that the Supreame and governing law are the Common-law Common-customes and statutes of the Realme and the rest but ministers and servants unto it brevia remediana are onely by the Common-law mandatoria may bee in the said other cases 7. Co. Calvins case Dy. 176. So that the answer as to the words in the generall is short and ought to be positive As to the Courtes of equitie they have beene ancient in England and the Courts of eqnity here ought to bee guided by the constant proceedings in England in ages past I meane not by this or that Chancellor but by that naturall and just equity in the Courts here observed This equitie is of absolute necessitie in many cases ipsae etenim leges capiunt ut jure regantur and therefore is included within the law of the Land and not to bee devided from it as out of this writing it may bee inferred As to the case of killing in rebellion to operate an Attaynder if this bee no law in England it cannot bee law here vide Dame-hales case com 263. a. 8. Edw. 3. 20. fitz Dower 106. Cromptons Iurisdiction fol. 84. a. by which it may be urged that it is an Attaynder for that hee prevented the judgement of law by fighting against the Crowne and by his killing therein which ensued his unlawfull and trayterous act but I observe to the contrary the books of 7. Henr. 4. 32 b. Cook 4. 57. Sadlers case I doe confesse that in England statutes may be obsolete as the statute of VVilliam Butler by which the heire may have an action of wast Rastall 5. 21. all the books are contrary and so is the statute of Merton of disparagment as to an action to bee brought for the same so are some antiquated lawes 40. Edw. 3. 42. 42. ass 8. 25. one present aiding to murder was accessary but now is principall 4. Hen. 7. 18. Com. 99. 100. a Vicar could not anciently have an action against a Parson 40. Edw. 3. 28. Finchden the law is now otherwise and so of an entry upon a feoffee with warranty sit fol. 23. 24. in the case of disparagement give the reason because that those statutes and lawes were never used therfore obsolete our case is nothing like for life liberty and propertie being in debate but an obsolete law is no law in force Therefore the answer as to that is defective As to the case of a fellon upon his keeping and terrifying of the people I conceive the answer is uncertaine and dangerous if such a fellon raise an armed power against the Crowne and terrifie that way no doubt this is treason within the statute of 25. Edw. 3. or the equity of it and by the statute of 10. Hen. 7. cap. 13. in Ireland statuto Hiberniae fol. 62. but if such terrifying be without raising armes or by committing the same or the like fellonies it is no more then the case of purse-takers by force in the high wayes of England many a man was terrified thereby in Salisbury-plaine and yet no treason and if there be no statute here which is not in England to make it treason certainly it cannot be treason since the Conquest writ of error have been brought for to reverse Iudgments given in the Kings Bench here in the Court of Kings Bench in England no course here which is contrary to law can alter the law of England therefore to what purpose is a declaration of Iudges here contrary to the law there This writ of error is a writ framed in the Register and appeares by common experience I will offer a notable case which I saw adjudged in the Kings Bench in England Pasc 18. Iacobi for Stafford against Stafford in a writ of error for to reverse a Iudgment given in the Kings Bench in Ireland when Sir VVilliam Iones was Chiefe Iustice here in an ejectione firme for that in the declaration there was contained among other things ducentas acras Montani Sir VVilliam Iones being in England affirmed the course here to have been so and vouched many notable Presidents thereupon an order was conceived that Sir Iames Ley Sir Humphry VVinch and Sir Iohn Denham knights who were formerly Chiefe Iustices here should certifie the course who made report that the course in Ireland was and ought to be in writts originall and Iudiciall to be directed by the Register in pleading to be guided by the books of entries and thereupon the Iudgement was reversed And the Chiefe Iustice Mountague said that if they did not proceed in Ireland according to law they should learne it And so I conclude that the answer to the first Question is insufficient As touching the second Question which is concerning the Oath which this Iudges doe take the question is whether the Iudges of the land doe take the Oath of Iudges And if so c.
processe of distringas out of the second remembrance Office to distrayne the tenants ad faciendum homagium or pro homagio suo respectuaÌ„do upon which processe the Shiriffes returneth issues And if the Tenant doe not therupon appeare and compound with the King to give a fine for respite of homage then the issues are forfeyted to the King for his contempt but if he appeare then the Court of Exchequer doth agree with him to respite his homage for a small fine wherein they regulate themselves under the rate expressed and set downe in England by vertue of a privie Scale in the 15. yeare of Queene Elizabeth whereby the rates are particularly set downe according to the yearely value of the Lands which rates are confirmed by act of Parliament in 1. Iacob Regis cap. 26. in England before which time there was not any such certayntie but the same rested in the discretion of the Court by the rule of Common-law and so it doth at this day in Ireland howbeit we conceive that the Court of Exchequer here doe well to regulate their discretions by those rates in England and rather to be under then to exceede the same which the Barons there doe as they doe informe us that are Iudges of the other Courts 13. To the 13. they say that they know no rule of Law or statute by which it should be ceÌ„surable in the subjects of this kingdome to repayre into England to appeale unto his Majesty for redresse of injuries or for other their lawfull occasions unles they be prohibited by his Majesties writ or proclamation or other his Command But they find that by the statute of 5. Rich. 2. the passage of the subject out of the Realme is prohibited without speciall licence excepting Noblemen others in the said statute specially excepted some inference to that purpose may be made upon the statute of 25. Hen 6 cap. 2. in this kingdome 14. To the 14. they say that some Deanries dignities not Deanes or dignitaries as the question propounds it are properly de mero jure donative by the King some Elective some Collative according to the first foundation usuage of such Churches they humbly desire that they may not be required to give any further answer to this question for that it may concerne many mens estates which may come judcially in question before them 15. To the 15. they say that they conceive that where priviledges are claymed by any body politicke or other the Kings Counsell may exhibite à quo-warranto to cause the parties clayming such priviledges to shew by what warrant they clayme the same that the Court cannot hinder the issuing of processe at the instance of the Kings Atturney or hinder the Kings Atturney to exhibite such informations But when the case shall upon the proceedings be brought to judgment then not before the Court is to take notice and give judgâ—ment upon the merite circuÌ„stances of the cause as upon due consideration shal be conceived to be according to law in which case the Iudges or the Kings Atturney as they conceive ought not to be punished by any ordinary rule of law or statute that they know But for the particular case of Quo-warranto for that it hath beene a great question in this present Parliament so concernes the highest Court of justice in this kingdome also concernes two other of his Majesties Courts of justice therin his Majesties prerogative in those Courts they say that they cannot safely deliver any opinion therein before it comes judicially before them and that they heare it argued and debated by learned Counsell on both sides 16. To the sixteenth they say that although the Iurors be sole Iudges of the matter of fact yet the Iudges of the Court are Iudges of the validitie of the evidence and of the matters of law arising out of the same wherein the Iury ought to be guided by them And if the Iury in any criminall cause betweene the King and party give their verdict contrary to cleere and apparent evidence delivered in Court they have beene constantly and still ought to be censured in the Star-chamber in England and Castle-chamber here for this misdemeanor in perverting the right course of justice in such fines and other punishment as the merites circumstances of the cause doth deserve according to the course of the said Courts for that their consciences ought to be directed by the evidence and not to bee misguided by their wills or affections And if the Iury know any matter of fact which may eyther better or blemish their evidence they may take advantage thereof but they ought to discover the same to the Iudges And they say that this proceeding in the Court of Castle-chamber is out of the same grounds that writs of attaint are against a Iury that gives a false verdict in a Court of Record at the Common-law betwixt partie and partie which false verdict being found by a Iury of twenty foure notwithstanding that the first Iurie were Iudges of the fact yet that infamous judgement was pronounced against the first Iury which is next or rather worse then judgment to death and did lay a perpetuall brand of perjury upon them for which reason it was anciently called the villanous judgement and they say that the law to direct the punishment for such offences is the course of the said Court which is a law as to that purpose the statute of 3. Henr. 7. cap. 1. and other statutes in force in this kingdome 17. To the seventeenth they say they can answer no otherwise then they have in their answer to the next precedent question 18. To the eighteenth they say that in a Legall construction the statute of Magna Charta in which the words Salvo contenemento are mentioned is only to be understood of amerciaments not of fines yet where great fines are imposed in terrorem upon the reducement of them regard is to be had to the abilitie of the persons 19. To the nineteenth they say that if one doth steale a sheepe or commit any other felony and after flyeth the course of justice or lyeth in woods or mountaynes upon his keeping yet doth he not thereby become a Traytor neyther doth a Proclamation make him so the chiefe use whereof in such a Case is to invite the partie so standing out to submit himselfe to justice or to forewarne others of the danger they may runne into by keeping him company or giving him mayntenance and reliefe whereby he may the rather submit to Iustice 20. To the twentieth they say that the testimony of Rebels or Traytors under protection of Theeves or other infamous persons is not to bee used or pressed as convincing evidence upon the tryall of any man for his life and so is his Majesties printed instructions as to persons condemned or under protectioÌ„ yet the testimony of such persons not condemned being fortified with other concurring
Let us therefore examine the course alleadged here in both those points and if it be found to faile in eyther of them it is to be rejected As to the first I cannot find or read any president of it untill of late and the usage of it for a few yeares cannot make it to be cursus Curiae which ought to bee a custome used time beyond the memory of man As to the second it is confessed by the Iudges that they know no law to warrant this course let us see then whether it be against law or standeth with the law and I conceive it is against law for divers reasons First by the Common-law if a judgement be given against a man after a verdict of twelve men which is the chiefe and cleare proofe which the law looketh upon or upon a demurrer after solemne argument he shall in the one case have an attainte against the Iury in the other a writ of error to reverse the judgement but in this case by the confession of the justnesse of the sentence all the meanes to reverse the sentence is taken away and therefore contrary to law and reason Whereas by the Common-law fines ought to bee moderate secundum quantitatem delicti in reformationem non in destructionem of late times the fines have beene so high in destruction of the party in the Castle-chamber as his whole family and himselfe if hee did pay the fine should bee driven to begge and without performance of the sentence hee could not be admitted to reverse the sentence in respect of all which howbeit in his conscience he is not guiltie yet to gaine his libertie and save part of his estate hee is necessitated to acknowledge the justnesse of the sentence so that the confession is extorted from him and consequently is against law Third reason if the fine were secundum quantitatem delicti as it ought to be without danger of destruction the reducement of the fine had not been so necessarie and therefore no just ground for this confession Lastly the confession of the party after sentence doth rather blemish the sentence then any way cleare it for the confession comming after the sentence which ought to be just in it selfe can adde nothing to it but draw suspition upon it and in that respect a confession is strayned the racke used by the course of the Civill law in criminall causes to cleare the conscience of the Iudge to proceede to sentence is intollerable in our Common-law And therefore this course being an innovation against law without any reasonable ground the said Iudges ought in their said answer to declare so much to the end a course might bee taken for abolishing the same This answer I will not now draw into question I could wish the rest were answered no worse What power have the Barons of the Court of Exchequer to rayse the respite of homage arbitrarily c. Vnto this they answer that untill the Kings Tenant by knights service in capite hath done his homage the ancient course of the Exchequer hath beene and still is to issue processe to distrayne the tenants ad faciendum homagium or ad faciendum finem pro homagio suo respectuando upon which processe the Sheriffe returnes issues and if the tenant doe not appeare and compound with the King to give a fine for respite of homage then the issues are forfeyted to the King But if the Kings tenant will appeare the Court of the Exchequer doth agree with him to respite his homage for a small fine They say further that it resteth in the discretion of the Court by the rule of the Common-law to lay downe a fine for respite of homage according to the yearely value of the said lands which I conceive to be very unreasonable and inconvenient that it should lye in the power of any to assesse a fine for respite of homage such as to him shall be thought meete in discretion for if so hee may raise the fine to such a summe as may exceed the very value of the lands Neyther hath the same beene the ancient course for it appeares by severall ancient Records and by an Order of the Court of Exchequer made Termino pascae 1607. that there should be payed for respiting of homage for every Towneship xx d. Irish and for every Mannor xxxx d. Irish and that such as hold severall houses acres or parcels of land which are not Mannors nor Towneship shall pay for everie hundred and twentie Acres of Land Meadow and pasture or of any of them xx d. Irish and no more and according to that rate and proportion if a greater or lesser number of Acres and for every house without ground iiij d. Irish and of Cottages or Farme houses which bee upon the Lands no fine to bee payed for them solely alone And I conceive where a man holdeth severall parcels of land of the King by severall homages that in such case he is to pay but for one respite of homage onely and no more for that a man is to doe homage but once and consequently to pay for one respite of homage onely The late course in the Exchequer here hath been contrary whereas in their answer they goe in the Exchequer according to the statute of primo Iacobi cap. 26. in England under their favour they goe cleare contrary for that statute was made in confirmation and pursuance of former Orders in the Exchequer Whereas the Barons here goe directly contrary to the ancient course and Order of the Exchequer in this kingdome more of this in my reason or ground for this question So I conclude their answer to this is short My Lords the question contaynes two points First whether the subject of this kingdome is censurable for to repayre into England to appeale to his Majesty for redresse of injuries or for his lawfull occasions Secondly why what condition of persons and by what law The first part of the Iudges their answer is positive and full viz. They know no law or statute for such censure nor I neyther and could wish they had stayed there In the second part of their answer they come with an if viz. unlesse they be prohibited by his Majesties writ proclamation or command and make mention of the statute of 5. Rich. 2. cap. 2. in England and 25. Henr. 6. cap. 2. in Ireland I will onely speake to the second part of this answer My Lords the house of Commons in the discussion of this point tooke two things into consideration First what the Common-law was in such cases Secondly what alteration was made of the Common-law by the statute of 5. Rich. 2. cap. 2. in England and 25. Henr. 6. cap. 2. in Ireland as to the subjects of Ireland As for the first the Register hath a writ framed in the point viz. the writ De securitate in venienda quod se non divertat ad partes extras
meane and mediocritie which regulated the power of that great Court in former times had not beene of late converted and strayned unto that excesse wee saw these questions had never beene stirred but many things being extended to their uttermost Spheare or I feare beyond the same enforce mee although unwillingly and slowly to looke upon our lawes and just rights The answer to the sixteenth viz. whether Iurors giving their verdicts according to their conscience may be punished in the Castle-chamber by fines excessive mutillation of members c. I finde in my Lord Barcklayes case placit. Com. 231. from the beginning the usuall tryall at Common-law was devided betweene the Iudges and the Iurors matters of fact were and are tryable by the Iurors and matters in law by the Iudges the antiquitie of this tryall appeares Glan fol. 100. b. in Henr. the seconds time Bracton 174. Briton fol. 130. a. Fortescue de laudibus legum Angliae fol 54. 55. So much being cleared they being Iurati ad dicendum veritatem are Iudges of the fact Co. 9. 13. a. Dowmans case 25. c. Strata Marcellas case and infinite other authorities they are so farre Iudges of the fact that although the partes bee estopped to averre the truth yet these Iudges of the fact shall not be so estopped because they are upon their Oath Co. 2. 4. b. Goddards case Co. 4. 53. a. Raw-hins case 1. Henr. 4. 6. a. c. They are so far Iudges of the fact that they are not to leave any part of the truth of the evidence to the Court Co. 1. 56. b. Chauncellor of Oxfords case nay they may finde releases and other things of their knowledge not given in evidence 8. ass plac 3. Co. 10. 95. b. Doctor Leyfields case what is done by Iudges shall not bee tryed by Iurors Co 9. Strata Marcellas case 30. Ergo è converso but if any doubt in law ariseth upon the evidence there is a proper remedie by bill of exception by the statute of VV. 2. cap. 30. which Co. 9 Dowmans case fol. 13. a. saith to be in affirmance of the ancient Common-law as to this point of law the Iudges of the law are Iudges of the validitie of the evidence but under favour not of the truth of the fact as it is set forth in the answer if the Iudges of the law doe erre in matter of law the party grieved hath his remedie by writ of error but hee is not punishable if practise or misdemeanor doe not appeare 2. Rich. 3. fol 9. 10. Fitz Natur. br 243. E. 27. ass 18. 4. Henr. 6. and other bookes by the same reason the Iudges of the fact if they goe according to their conscience as our question is stated if the Iury in this case goe contrary to their evidence the Common-law gives a full remedy by attainte wherein the judgement is â—ost heavie if the Iurors have done amisse as I said before to another question yet in this action the law gives credit to the verdict before it be falsified for if a judgement be given upon this verdict and after an attainte is brought no super sedeas can bee in this writ to hinder the partie who recovered from his execution 5. Henr. 7. 22. b. 33. Henr. 6. 21. otherwise in a writ of error Your Lordships therefore may see what faith is given to verdicts at Common-law I observe the notable case of 7. Henr. 4 41 b. where Gascoigne answereth the King that would give judgement contrary to his private knowledge As for the next part of these two questions it was the late height of punishments and the drawing of more causes to that Court then in former times moved this debate out of the statute of 3 Henr. 7. cap. 1. concerning this Court I make these observations first that the Iudges of that Court according their discretion may examen great offences secondly that they may punish according to the demerits of delinquents after the forme of the statute thereof made thirdly in like manner forme as they should or ought to be punished if they were convict by the due order of the Common-law For the first what discretion this is we finde in our books Co. 5. fol. 100. Rookes case discretion is to proceede within the bounds of law and reason at Common-law a Man in a Leete is fined but in ten groats for a light bloudshed in the Castle-chamber a Noble-man for an offer of a switch to a person inferior to him upon provocation perhaps given was fined in foure thousand pound committed to long imprisonment and low acknowledgements were imposed on him For the second and third observations if men of quality and ranke were pillored papered stigmatized and fined to their destruction in cases where if they had beene convicted by due order of law they could not be so punished by any law or statute I humbly offer to your Lordships sad and grave consideration And whether these courses be warranted by the said statute of 3. Henr. 7. cap. 1. or by any other law or statute of force in this Realme and if all Iurors bee brought to the Castle-chamber what shall become of that great and noble tryall by which all the matters of our law regularly are tryable And so I conclude that the answers to these two questions are not satisfactorie Whether in the Censures in the Castle-chamber regard be to be had to the words of the great Charter viz. salvo contenemento c. I conceive that in the Censures in the Castle-chamber regard is to bee had to the words of the great Charter viz. Salvo contenemento c although in the great Charter and in the statute of VVestminst 1. cap. 6. amerciamentum and misericordia are expressed and not fines or redemptio because a fine and an amerciament are in the old yeare bookes used promiscuously as Synonima for one and the same thing and therefore in 10. Edw. 3. fol. 9. 10. The Iurors of the Abbot of Ramseis Leete being sworne and refusing to present the articles of the Leete were amerced and there it is resolved because all did refuse to present all shall be amerced but when the same shal be imposed or affeared shall bee imposed severally upon each of them secundum quantitatem delicti salvo contenemento suo yet the summe there imposed was revera à fine and not an amerciament as an amerciament is now taken and here with agrees 4. Eliz. Dy. 211. b. in these words if the Iurors of a Leete refuse to present the articles of the Leete according to their Oath the Steward shall assesse a fine upon every of them and Godfries case 11. Rept ' fol. 42. b. 43. a. Secondly if by intendment of law as the law was conceived at the time of the making of the statutes of Magna Charta and VVestm. 1. fines and amerciaments had not beene or taken to be Synonyma the feazors of those acts would
with other proofes is not materiall for other proofe will doe the deede without this bad concurrence and so will a violent presumption as if two goe safe into a Roome one of them is found stabbed to death the other may suffer this presumption is inevitable the law of God the lawes and statutes of the Realme protect and preserve the life of man it were therefore hard to take away by circumstance such a reall and noble essence This concurrence marrs the evidence it helps it not If one gives false testimonie once by the ancient law his testimonie shall never be received againe Leges Canuti Regis Lamb Saxons lawss fol. 113. p. 34. much lesse where they are notorious ill doers this and the reason and ground of this question already opened will I hope give your Lordships satisfaction For this question I will state it without any tenure reserved by expresse words as the question is put whether the reservation of rent or Annuall summe will rayse this to bee a tenure in capite I conceive it will not for sundrie reasons First from the beginning there have beene Fayres and Markets and no president booke-case or Record to warrant the new opinion in this Case before Trinitie terme 1639. in the Court of wards Secondly the practise of that Court was alwayes before to the contrary in the same and the like Cases Thirdly it is a thing as the question is of new creation and never in esse before for this see the Bookes of 3. Henr. 7. 4. 12. Henr. 7. 19. 15. E. 4. 14. 46. E. 3. 12. 21. Henr. 6. 11. Stamford prerogative 8. Therefore there is no necessitie of a tenure thereof upon the Conquest it was necessarie that all lands should be held by some tenure for the defence of the kingdome 1. The statute of Quia emptores terrarum c. praerogativa Regis speake of Feoffator Feoffatores c. therefore a tenure I meane this tacite or implyed tenure was originally onely intended of Land 2. The King may reserve a tenure in all things not mainerable by expresse reservation or Covenant 44. Edw. 3. 45. Fitz. natur brevium 263. c. but that is not our Case 3. Heere it is left to construction of Law which is aequissimus Iudex and lookes upon the nature of things and therefore in Cases that include Land or where land may come in liew therof a tenure may be by implication as a mesnalty a reversion expectant upon an intayle the like 10. Edw. 44. a. 42. Edw 3. 7. Fitz. Grants 102. and divers other bookes 4. No tenure can be implyed by reason of a rent if the rent be not distreynable by some possibility of its owne nature upon the thing granted as appeares by 5. Henr. 7. 36. 33. Henr. 6. 35. 40. Ed. 3. 44. 1. Henr. 4. 1. 2. 3. Fitz-cessabit 17. 5. The distresse upon other land is the Kings meere prerogative like the case of Buts Co. 6. 25. a distresse may be for rent in other land by Covenant 6. This is no rent because it issueth not out of land 7. If the Patentee here had no land there can be no distresse in this case 8. This is a meere priviledge it issueth out of no lands and participates nothing of the nature of land all the cases of tenures in our bookes are eyther of land or things arising out of land or some way or other of the nature of land or that may result into land or that land by some possibilitie may result into it Therefore I humbly conceive that new opinion is not warranted by law or president These My Lords are in part the things which satisfied the house of Commons in all the matters aforesaid they are now left to the judgement and Iustice of your Lordships QVESTIONS PROPOVNDED IN PARLIAMENT AND Declarations of the Law thereupon in Parliament WHither the Subjects of this kingdome bee a free people and to be governed onely by the Common-lawes of England and statutes of force in this kingdome The subjects of this his Majesties kingdome of Ireland are a free people and to be governed onely according to the Common-law of England and Statutes made established by Parliament in this kingdome of Ireland and according to the lawfull customes used in the same VVhither the Iudges of this land doe take the Oath of Iudges and if so whether under pretext of any Act of State Proclamation writ letter or direction under the great or privie Seale or privie Signet or Letter or other Commandment from the Lord Lieutnant Lord Deputy Iustice or other chiefe Governor or Governors of this kingdome they may hinder stay or delay the suite of any subject or his Iudgement or execution thereupon if so in what cases and whether if they doe hinder stay or delay such suite judgement or execution thereupon what punishment doe they incurre for their deviation and transgression therein That Iudges in Ireland ought to take the Oath of the Iustices or Iudges declared and established in severall Parliaments of force in this kingdome and the said Iudges or any of them by colour or under pretext of any act of state or proclamation or under colour or pretext of any writ Letter or direction under the great Seale privie Seale or privie Signet from the Kings most Excellent Majestie or by colour or pretext of any Letter or Commandement from the chiefe Governor or Governors of this kingdome ought not to hinder or delay the suite of any subject or his judgement or execution thereupon and if any letters writs or commaunds come from his Majestie or any other or for any other cause to the Iustices or to other deputed to doe the law and right according to the usage of the Realme in disturbance of the law or of the execution of the same or of right to the parties the Iustices and other aforesaid ought to proceed and hold their Courts and processes where the pleas and matters bee depending before them as if no such letters writs or commaundments were come to them and in case any Iudge or Iudges Iustice or Iustices bee found in default therein he or they so found in default ought to incurre and undergoe due punishment according the law and the former declarations and provisions in Parliament in the case made and of force in this kingdome or as shall be ordered adjudged or declared in Parliament And the Barons of the Exchequer Iustices of assize and Goale-delivery if they be found in default as aforesaid it is hereby declared that they ought to undergoe the punishment aforesaid VVhether the Kings Majesties privie Councell eyther with the chiefe Governor or Governors of the kingdome or without him or them be a place of Iudicature by the Common-lawes and wherein causes betweene party and party for debts trespasses accompts possession or title of Lands or any of them and which of them may bee heard and determined and
AN ARGVMENT DELIVERED BY PATRICKE DARCY ESQVIRE By the expresse order of the House of Commons in the Parliament of IRELAND 9. Iunii 1641. Printed at Waterford by Thomas Bourke Printer to the Confederate Catholicks of Ireland 1643. 5. Iunii 1641. By the Commons House of IRELAND in Parliament assembled FOrasmuch as M. PATRICKE DARCY by a former order of this House was appointed Prolocutor at the Conference with the Lords touching the Questions propounded to the Iudges and their pretended answers to the same It is hereby ordered and the said M. DARCY is required to declare and set forth at the said Conference the manifold grievances and other causes and grounds that moved this House to present the said Questions to the Lords House to be propounded as aforesaid and to give particular reasons for every of the said Questions Copia vera Extract per Phil. Fern Cleric Parl. Com. AN ARGVMENT DELIVERED BY PATRICKE DARCY ESQVIRE By the expresse orders of the Commons-House of the Parliament of Ireland at a conference with a Comittee of the Lords House in the dyning roome of the Castle of Dublin 9. Die Iunij 1641. upon certaine Questions propounded to the Iudges of Ireland in full Parliament and upon the answers of the said Iudges to the said Questions And in the conclusion a declaration of the Commons House upon the said Questions THE QVESTIONS Questions VVherein the House of Commons humbly desired that the House of the Lords would be pleased to require the Iudges to deliuer their resolutions IN asmuch as the Subjects of this kingdome are free loyall and dutifull Subjects to his most Excellent Majesty their naturall Liege Lord King And to be governed only by the Common Lawes of England Statutes of force in this kingdome in the same manner forme as his Majesties Subjects of the Kingdome of England are and ought to be governed by the said Common Lawes and Statutes of force in that kingdome which of right the Subjects of this kingdome doe challenge and make their protestation to be their birth-right and best inheritance yet in asmuch as the unlawfull actions and proceedings of some of his Majesties Subjects Ministers of Iustice of late yeares introduced and practised in this kingdome did tend to the infringing and violation of the lawes liberties and freedome of the said Subjects of this kingdome contrary to his Majesties Royall and pious intentions Therfore the Knights Citizens and Burgesses in Parliament assembled not for any doubt or ambiguity which may be conceived or thought of for or concerning the premisses nor of the ensueing questions but for manifestation and declaration of a cleere truth and of the said Lawes and Statutes already planted and for many ages past setled in this kingdome The said Knights Citizens and Burgesses doe therefore pray the House of the Lords may bee pleased to command the Iudges of this kingdom forthwith to declare in writing their resolutions of and unto the ensuing Questions and subscribe to the same 1. Whether the Subjects of this kingdome be a free people and to be governed only by the Common Lawes of England and Statutes of force in this kingdome 2. Whether the Iudges of this Land doe take the oath of Iudges and if so whether under pretext of any Act of State Proclamation Writ Letter or Direction under the great or privie Seale or privie Signet or Letter or other Commandment from the Lord Lieutenant Lord Deputy Iustice Iustices or other Chiefe Governor or Governors of this kingdome they may hinder stay or delay the suite of any Subject or his Iudgment or execution thereupon if so in what Case and whether if they doe hinder stay or delay such Suite Iudgement or Execution thereupon what punishment doe they incurre for their deviation and transgression therein 3. Whether the Kings Majesties privie Councell either with the Chiefe Governor or Governors of this kingdome or without him or them be a place of Iudicature by the Common Lawes and wherein Causes betweene partie and partie for debts trespasses accompts possession or title of land or any of them may be heard and determined and of what Civill Causes they have Iurisdiction and by what law and of what force is their order or decree in such Cases or any of them 4. The like of the chiefe Governors alone 5. Whether grants of Monopolies be warranted by the Law and of what and in what cases and how and where and by whom are the pretended transgressors against such grants punishable and whether by fine mutillation of members imprisonment losse and forfeiture of goods or otherwise and which of them 6. In what Cases the Lord Lieutenant Lord Deputy or other Chiefe Governor or Governors of this kingdome and Councell may punish by fine imprisonment mutillation of members pillorie or otherwise and whether they may sentence any to such the same or the like punishment for infringing the Comands of or concerning any Proclamations or Monopolies and what punishment doe they incurre that vote for the same 7. Of what force is an Act of State or proclamation in this kingdome to bind the libertie goods possession or inheritance of the Natives thereof whether they or any of them can alter the Cōmon Law or the infringers of them loose their goods chattells or leases or forfeite the same by infringing any such Act of State Proclamation or both and what punishment doe the sworne Iudges of the Law that are Privy Councellors incurre that vote for such Acts and execution thereof 8. Are the Subjects of this kingdome subject to the Marshall law and whether any man in time of peace no enemy being in the field with Banners displaied can be sentenced to death if so by whom and in what Cases if not what punishment doe they incurre that in time of peace execute Marshall law 9. Whether voluntary oathes taken freely before Arbitrators for affirmance or disaffirmance of any thing or the true performance of any thing be punishable in the Castle Chamber or in any other Court and why and wherefore 10. Why and by what law or by what rule of policie is it that none is admitted to reducement of fines and other penaltie in the Castle Chamber or Councell-Table untill he confesse the offence for which he is censured when as Revera he might be innocent thereof though suborned prooffes or circumstance might induce a censure 11. Whether the Iudges of the Kings Bench or any other Iudges of Gaole delivery or of any other Court and by what law doe or can deny the copies of Indictments of Felony or Treason to the parties accused contrary to the lawes 12. What power hath the Barons of the Court of Exchequer to raise the respite of homage arbitrarily to what rate they please to what value they may raise it by what law they may distinguish betweene the respite of homage upon the diversitie of the true value of the fees when as Escuadge is the same for great and small fees
fall out that may alter the reason of the Lawes in such a case which could not be included or foreseene in a generall question or answer thereunto And therefore they desire your Lordships to consider of what use such answers may be to the present and future times 5. Fifthly many of the said questions as they are propounded as the said Iudges humbly conceive doe concerne his Majesty in a high degree in his Regall and prerogative power in his Government in his Revenue in the Iurisdiction of his Courts in his Martiall affaires and in his Ministers of State so that the said Iudges considering their Oathes the duty which by their places they owe unto his Majesty humbly conceive they may not with safety give answer thereunto without speciall licence from his Majesty and therefore they still humbly pray your Lordships as formerly they did not to presse any answers from them untill his Majesties princely pleasure therein be signified 6. Sixtly if the matters of these questions which ayme at some abuses of former times were reduced into Bils they conceive it were the speedy way to have such a reformation which might bind the present times and posteritie and in such proceeding they ought and would most cheerefully contribute their opinions best endevors but in such a course as they apprehend it which points at punishment they have reason to bee sparing in giving any opinion further then the duty of their places doth command from them 7. Seventhly although it may be conceived that the answering of such and so many generall questions by the now Iudges may contribute some helpe to the reformation now so much desired yet no man knoweth but this new president in propounding of such questions to Iudges in succeeding times as the Iudges frame constitution of the Common-wealth may be may fall out to bee most prejudiciall to the State and Common-wealth 8. Eightly most of the matters in severall of the said questions are already by your Lordships and the said house of Commons voted and represented to his Majesty for grievances and therefore no opinions of the Iudges under favour are needfull or to bee required thereunto unlesse the same shall come in further agitation and discussion in this honorable House 9. The Iudges opinions are not usually called upon in Parliament but when upon debate great and difficulte points in Law doe arise where this most honorable house doth thinke fit to command their opinions but no resolutions doe belong unto the said Iudges in Parliament but unto your Lordships Yet in the front and preamble of the said questions the resolution of the said questions by the Iudges is forthwith desired to be required by your Lordships in writing although the first question viz. Whether the subjects of this kingdome be a free people c. be positively resolved by the preamble to the said questions in which it is likewise declared that the said Iudges answers thereunto are not desired for any doubt or ambiguitie which may be conceived or thought of for or concerning the premisses nor of the said questions but for manifestation and declaration of a cleere truth and of the Lawes and Statutes already planted and setled in this kingdome And they say that it is impossible to make any manifestation or declaration of Law or statutes which may hold or be usefull upon such generall questions as most of these are namely By what Law in what cases of what and which of them of what power of what force how where by whom why wherefore what punishment by what rule of policy in what condition of persons in regard that the next succeeding Iudges may be of another opinion and that a circumstance may alter the reason of this Law in many particular cases which the wit of man is not able to forsee or give a generall rule in And they say that to give answers unto such questions as might give any satisfaction to your Lordships or to the honorable house of Commons would make up a great volume and require more time than your Lordships have afforded unto the said Iudges considering their great toyle in their Circuites the last short vacation their other imployments in the Common-wealth and their daily attendance on your Lordships in Parliament and the ordinary Courts of Iustice And yet least they might seeme to come any way short in performance of that duty which they confesse to be due unto your Lordships or be wanting in promoting or advancing the Common-wealth which they beleeve to be aymed at by the said questions though it may seeme to drawe damage or prejudice upon their particulars they doe in all humblenesse present unto your Lordships the ensuing answers unto the said questions which is as much as by their Oathes or in the duty they owe unto his Sacred Majesty before his princely pleasure bee therein signified they can answer thereunto 1. To the first they answer that the subjects of this kingdome are a free people and are for the generall to bee governed onely by the Common-lawes of England and statutes of force in this kingdome yet they say that as in England many statutes are growen obsolete and out of use and some particular ancient Lawes aswell in criminall as in Civill causes have beene changed by interpretation of the Iudges there as they found it most agreeable to the generall good of the Common-wealth and as the times did require it So our predecessors the Iudges of this kingdome as the necessitie of the times did move them did declare the law in some particular cases otherwise than the same is practised in England which the now Iudges cannot alter without apparent diminution of a great part of his Majesties standing revenue and opening a gap for the shaking and questioning of the estates of many of his Majesties subjects and the overthrowing of severall Iudgements Orders Decrees which depend thereupon For example If it be found by office of Record sufficient for forme that a man was killed in actuall rebellion and at the time of his death was seized of lands hereditaments goods or chattels by the constant declaration of Law and practise of former times here the Crown was intituled to such lands goods and chattels and many mens estates depend thereupon and yet the law is not so taken in England So if one or more commit Felony and then stand out upon his or their keeping and hee or they will not submit themselves to be tryed by the law but being in that state doe robbe or spoyle and terrifie his Majesties people wherby the countrie is disquieted this by the constant opinion of our predecessors in this kingdome hath beene adjudged a leavying of warre within the Statute 25. Edw. 3. and so consequently treason Also by the common received opinion practise in this kingdome the VVife is to have a third of all the goods chatels and credits of her husband the debts being payed although he dispose of all by his will
Common-wealth And they say that the matter manner restrictions limitations reservations and other clauses contayned in such grants or licences and the Commissions or Proclamations thereupon and undue execution thereof and severall circumstances may make the same lawfull or unlawfull whereof they are not able to give any certayne resolution before some particular commes in judgement before them neyther are they otherwise able to answer the generall in the particulars of the said question of what in what cases how where and by whom or which of them wherein whosoever desireth further satisfaction he may please to have recourse unto the knowne cases of Monoplies Printed authorities and written Reports and unto the statute of 21. Ia. in England concerning Monopolies and the severall exceptions and limitations therein 6. To the sixt they say they can no otherwise answer then they have already in their answer to the third question for the reasons therein setforth 7. To the seventh they say that a Proclamation or act of State cannot alter the common-law and yet Proclamations are acts of his Majesties prerogative and are and alwayes have beene of great use and that the contemners of such of them as are not against the law are and by the constant practise of the Star-chamber in England have beene punished according the nature of the contempt and course of the said Court and although acts of State are not of force to bind the goods possessions or inheritance of the subject yet they have beene of great use for the setling of the estates of very many subjects in this kingdome as may appeare in the Report of the case of Irish gavelkind in Print And further to that question they cannot answer for the reasons in their answer unto the third question set forth 8. To the eight they say that they know no ordinary rule of law by which the subjects of this kingdome are made subject to Marshall-law in time of peace and that they find the use thereof in time of peace in England complayned off in the petition of right exhibited to his Majestie in the third yeare of his raigne And that they conceive the granting of authority and Commission for execution thereof is derived out of his Majesties Regall and prerogative power for suppressing of suddaine and great insolencies and insurrections among armies or multitudes of armed men lawfully or unlawfully convented together the right use wherof in all times hath beene found most necessary in this kingdome And further to that question they cannot answer for that as they conceive it doth concerne his Majesties Regall power and that the answering of the other part of the question doth properly belong to another profession whereof they have no Cognizance 9. To the ninth they say that as the taking of any Oath before any but such Iudges or persons as have power to give or demaund an Oath for decision of controversies is by most Divinâ— in most cases counted to be a rash Oath and so an offence against God within the third Commandement so the prescribing and demaunding of a set Oath by any that cannot derive power so to doe from the Crowne where the fountaine of Iustice under God doth reside is an offence against the law of the Land and as for voluntary and extra judiciall Oathes although freely taken before arbitrators or others they say as this kingdome is composed in many particulars as the nature consequence of the cause or the quality of the person who taketh or before whom the same is taken may concerne the Common-wealth or the members therof such taking of such Oathes or proceeding or grounding on such Oath in deciding of controversies according to the severall circumstances that may occurre therein or the prejudice it may introduce to the Common-wealth may be punishable by the Common-law or if it grow unto an height or generall inconvenience to the common-wealth or members thereof in the Castle-chamber For though such an Oath be voluntary yet in most cases it is received by him that doth intend to ground his Iudgment thereon and after the Oath is taken the arbitrator or he that intends to yeeld faith to the party that tooke the Oath doth examine him upon one or more questions upon the said Oath unto the answer whereof hee doth give faith and assent trusting on the said Oath And whereas Oathes by Gods institution were chiefly allowed to bee taken before lawfull Magistrates for ending of controversies yet common experience doth teach in this kingdome that oftentimes orders and acts grounded on such voluntary Oathes beget strife and suits and commonly such orders when they come to bee measured by rules of law or equitie in the Kings Courts become voyde after much expence of time and charge that we say nothing of that that thereby many causes proper to the Kings Courts are drawn ad aliud examen and thereby the Kings justice and Courts often defrauded and declined 10. To the tenth they say that they are not Iudges of rules of policie but of law and that they know no certayne rule of law concerning reducement of fines The same being matters of his Majesties own meere Grace after a man is censured for any offence And that they know no law that none shall be admitted to reducement of his fines or other penalties in the Courts in the question specified untill he confesse the fact for which he was censured But forasmuch as the admittance to a reducement after conviction for an offence is matter of Grace and not Iustice It hath beene the constant course of these Courts both here and in England for cleering of his Majesties justice where the partie will not goe about to cleere himselfe by reversall of the censure or decree not to admit him to that grace untill he hath confessed the justnesse of the sentence pronounced by the Court against him And that the rather for that commonly the ability and disabilitie of the partie doth not appeare in judgement before them but the nature and circumstances of the offence according to which they give sentence against him or them in terrorem after which when the partie shall make the weaknesse of his estate appeare or that the Court is otherwise ascerteyned that they doe of course proportion the censure or penaltie having regard to his estate 11. To the eleventh they say That neither the Iudges of the Kings Bench as they informe us that are of that Court or Iustices of Gaole delivery or of any other Court doe or can by any law they know deny the copies of Indictments of Felony or Treason to the partie only accused as by the said question is demanded 12. To the twelfth they say that where lands are holden of the King by the Knights service in Capite the tenant by the strict course of Law ought in person to doe his homage to the King and untill he hath done his homage the ancient course of the Exchequer hath beene yet is to issue
The answer of the Iudges to the first part is that they confesse they take the Oath of Iudges which is specified amongst the statutes in 1â— Edw. 3. and 20. Edward 3 as I said before and that they may not stay hinder or delay the suite of any subject or his judgement or execution there upon otherwise then according to the law and course of the Court where they sit under pretence of any act of state proclamation writ letter or direction under the great Seale or privie Seale or privie Signet or Letter or other Commandement from the Lord Lieutenant Lord Deputy Iustice Iustices or other chiefe Governor of this kingdome most of which doth appeare by their Oath expressed expressed in the said statutes and the statute of 2. Edw. 3. c. 8. and the statute of 20. Edw. 3. as to the Barons of the Exchequer and as they know no punishments due to the Iudges for their deviations and transgressions without other aggravation so they know no punishment layd downe by any law against them for their deviations and transgressions in hindering staying or delaying of Iustice contrary to their said Oath other then what is declared in their said Oath and the statute of 20. Edw. 3. I conceive the answer is not a full and perfect answer to the Question For where the Question is whether the Iudges under pretext of any act of state proclamation writ Letter or direction under the great or privie Seale or privie Signet or Letter or other Commandement from the Lord Lieutenant Lord Deputie Iustice or Iustices or other chiefe Governor or Governors of this kingdome they may hinder stay or delay the suite of any subject or his judgement or execution thereupon if so in what cases and whether if they doe hinder stay or delay such suite judgement or execution thereupon what punishment doe they incurre for their deviations and transgressions therein To this they answer that they may not stay hinder or delay the suite of any subject or his judgement or execution therupon otherwise then according to the law course of the Court where they sit under pretence of any act of state proclamation writ letter or direction under the great or privie Seale or privie signet or letter or other commandement from the Lord Lieutenant Lord Deputy Iustice or Iustices or other chiefe Governor or Governors of this kingdome whereas they ought to have expressed the particular of this exception for by that clause it is supposed or may be strongly implyed that in some cases they may hinder stay or delay the suite of any subject or his judgement or execution therupon under pretext of any act of state proclamation letter or direction under the great or privie Seale or privie signet or other Commandement from the Lord Lieutenant Lord Deputy Iustice Iustices or other chiefe governor or governors of this kingdome which they ought to have expressely layd downe the question being if they may stay hinder or delay the suite of any subject upon any such pretext then to set forth in what Cases which ought to be particularly answered unto In the next place the Question is if they doe stay hinder or delay such suite judgement or execution therupon then to set forth what punishment they doe incurre for their deviation or transgression therein Vnto this they answer they know no punishment due to the Iudges for their deviation and transgressions without other aggravation This I conceive is an implication that there is a punishment where there is matter of aggravation and therefore it ought to be expressed what matter of aggravation they intend the same to be They further say they know no punishment layd downe by any law against them for their deviations or transgressions in hindering staying or delaying of Iustice contrary to their Oath other then what is declared in their said Oath and the statute of â—0 Edw. 3. This I conceive not to bee a full answer in respect the punishment layd downe in that Oath is in a generality viz. that the Iudges so offending contrary to their Oath are to be at the Kings will of body lands and goods which they should declare and expresse how farre that punishment extendeth in their bodies lands and goods Whether imprisonment of their bodies or in their lives and whether in forfeiture of their lands goods or how else The breach of an Oath is a very high offence and the higher it is that the matter it doth concerne is the greater and therefore it is much secundum subjectam materiam It is to be considered to whom the oath of a Iudge is made and what matter it doth concerne To the first the Oath is made to GOD the King and to the Common-wealth For the matter it is concerning the true and equall administration and distribution of Iustice to the people If the Iudge doe offend contrary to his Oath he commits breach of the trust reposed in him by the King besides the violation of his Oath Looke upon trust betweene Common persons A man makes a Lease for yeares the Lessee makes a scoffment this is a forfeyture of his estate by the Common-law by reason of the breach of trust Lessee for life in an action brought against him prayes in ayde of a stranger this is a forfeyture of his estate A quid Iuris clamat brought against Lessee for life he claymes a fee which is found against him this is a forfeyture of his estate So much for breach of trust To come unto a false verdict given by a Iurie which is a breach of their Oath they being sworne ad veritatem dicendam For this false verdict an attaynt lyeth at Common law against the petit Iury The judgement at the Common-law in an attaynt importeth eight grievous punishments 1. Quod amittat liberam legem in perpetuum 2. quod forisfaciat omnia bona Catalla sua 3. quod terrae tenementa in manus Domini Regis capiantur 4. quod uxores liberi extradomus suas eijoiantur 5. quod domus suae prostrentur 6. quod arbores suae extirpentur 7. quod prata sua arentur 8 quod corpora sua Carceri mancipentur So odious is perjurie in the eye of the Common-law It followeth therefore that the breach of the Oath of a Iudge materia considerata in regard it tends to the subversion of Iustice is an offence of an higher nature deserving a farre greater punishment in his body lands and goods as I conceive This question is very short and as plaine it is no more then whether the Councell-table be a Iudicatorie in Civill causes betweene subject and subject for lands goods or Chattels and by what law The answer is wholly ad aliud But it is answered fully by the great Charter capit 11. 9. Henr. 3. Communia placita non sequantur Curiam nostram Common-pleas which are the pleas in question shall not follow the Kings Court againe cap. 29.
No Freeman shall be taken imprisoned put off his freehold liberties free customes c. other then by the lawfull judgement of his Peeres as by the law of the land This great assurance in the 38. Chap. of the same statute was granted for the King and his successors to all his people and was confirmed in thirty Parliaments as I said before Cooke 8. the Princes Case by the statute of 5. Edw. 3. cap. 9. 25. Edw. 3. Cap. 4. 28. Edw. â— cap. â— 42. Edw. 3. cap. 1 â— The great Charter is againe confirmed and not onely so but proceedings contrary to the same before the King or his Counsell are declared voyde The King is to observe and mantayne the law the Iudge by his Oath 18. Edward â— is bound to doe right betweene the King and his people and that right strengthens the Kings prerogative presidents or practise contrary to so many statutes are of no use in many ages past encroachments were made upon these just liberties which were alwayes removed by Parliaments Yet I must confesse that of all antiquity some pleas have beene held in the Kings Royall house as in the Court held by the Marshall of the Kings houshold for things arising within the Verge Fleta lib. 2. cap. 2. but when that Court exceeds its due bounds declaratory statutes were alwayes made to meete them as mischiefes in the common-wealth when they medled with land or the like as appeares by the statute of Articule super Chartam 28. Edw. 1. 15. R. 2. cap. 12. all these statutes My Lords and many more to this purpose are undenyably of force in this kingdome and none of them can be with impunitie said to be obsolete or antiquated My Lords they raise another doubt viz that as the King may grant cognizance of pleas to Corporations or the like and therefore to the Councell-table if this neede an answer I will answer it thus that a grant of cognizance never was neyther can it be otherwise then to proceede per legem terrae or per judicium parium in the same manner as Courts doe proceede at Common-law and not upon paper petitions or summary hearings such cognizance was never granted the King is at losse by such proceedings he looseth fines upon originals he looseth amerciaments and fines incident to every judgement at Common-law as I said before I he subject undergoeth an inconvenience First the law will decline writs originall will by disuse be forgotten Clerks who should draw them discouraged to learne legall proceedings out of doores being the foundation of the law and in stead of regular and orderly proceeding rudenesse and barbarisme introduced the subject will loose the benefit of his attaynte and writ of error by which the law might relieve him against false verdicts or erroneous judgments he will loose the benefit of his warranty which might repaire a purchaser in case his acquired purchase were not good Whereas if a Iudge or Iuror doe wrong the remedy is at hand but against the Lord Deputy and Councell who will seeke for it therefore the countenance of this Iudicature in Common-pleas is against the Kings prerogative and the peoples just rights both which the Iudges ought to maintaine and likewise against the intent of your Lordships order My Lords as in England the said severall statutes were made to prevent the inconveniences aforesaid one good statute was made in Ireland 28. Henr. 6. cap. 2. Irish statut fol. 15. which directs matters of Interest to be determined in the Common-pleas matters of the Crowne in the Kings-bench matters of equity in the Chancery This law if there were no more regulates the proceedings in this kingdome The Iudges insist upon the words in the end of that statute viz. Saving the Kings prerogative My Lords this was stood upon at the late great tryall in England and easily answered for by the Common-law the King may by his prerogative sue in any of the foure Courts for his particular interest although it be contrary to the nature of that Court for he may sue à Quare impedit in the Kings Bench the like yet so as the said suite be bounded by the rules of law I will demaund a question whether the King may bring à Quare impedit in paper at the Councell-board the Kings now Atturney I am confident will answer me he cannot The word salvo or saving is in construction of law of a thing in esse or existente and no creative word 26. Ass pla 66. and cannot in the Kings Case be construed to overthrow the law nor many expresse and positive acts of Parliament My Lords in all humblenesse and dutie I will and must acknowledge his Majesties Sacred and lawfull prerogative whereof the King himselfe is the best expositor in his answer to the Petition of right Poltons stat fol. 1433. he declares that his prerogative is to defend the peoples libertie and the peoples libertie strenghtens the Kings prerogative the answer was a Kingly answer and More â—ajorum this is conformable to the great Charter and to all the statutes before recited The government of England being the best in the world was not onely Royall but also politicke some other princes like Cain Nemrod Esau and the like hunters of men subverted lawes The Kings of England maintayned them and did never assume the power to change or alter the lawes as appeares by Fortescue that grave and learned Lord Chancellor in King Henry the sixts time de laudibus legum Angliae cap. 9. fol. 25. and in the same Booke cap. 36. fol. 84. nor to take his peoples goods nor to lay taxe nor tallage upon them other then by their free consent in Parliament this appeares by the Booke Cases in 1â— Henr. 4. fol. 14. 15. 16. the great case of the Awlnage of London and in the Case of toll-travers and toll-through 14. Henr. 4. 9 37. Henr. 6. 27. 8. Henr. 6. 19 all agreeing nor to alter the nature of land as by converting land at Common-law to Gavelkind or Borrough English or e conuerso as to the estate otherwise as to the person of the King Ple. Com. the Lord Barclyes Case fol. 246. 247. Yet it is most true that the law of the land gives the King many naturall and great prerogatives farre beyond all other men as may appeare in the said Case fol. 243. but not to doe wrong to any subject Com. 246. The person of the King is too sacred to doe a wrong in the intention of Law if any wrongs bee done his ministerâ— are Authors and not the King And the Kings just prerogatives by the Kings Royall assent in Parliament were bounded limited and qualified by severall Acts of Parliament as if Tenant in cap. did alien at Common-law without licence this was a forfeyture of his estate Plo Com. case of mines fol. 332. the statutes of 2. Edw. 3. cap 14. makes this only finable the statute of Magna Charta cap. 21.
takes away the Kings prerogative for cutting woodes where he pleased many other cases there are upon this learning By this great Iustice and bounty of the Kings of England the Kings grew still greater and more permanent The people became free and wealthy no King so great as a King of rich free people If the Councell-table may retaine cognizance of causes coÌ„trary to the Law to so many Acts of Parliament why may they not avoyde all Acts of Parliament aswell This no man will affirme nor they intend My Lords two objections seeme to stand in my way First the multitude of presidents countenancing the cognizance of the Councell-board in the matter aforesaid some in ancient times and of late in great clusters throngs Secondly that in book Cases it appeares the Iudges of Law did take advice in their Iudgements with the Kings Counsell as 40 Ed. 3. fol. 34. 39. Ass placito primo 35. Edw. 3. fol. 35. 19. Edw. 3. fitz Iudgement 174. In answer to the first as for the multitude of presidents hinc illae lachrymae there is our griefe I find in our Bookes that presidents against Law doe never bind there is no downe right mischiefe But a president may be called upon to beare it up Iudicandum est legibus non exemplis Cooke 4. fol. 33. Mitâ—ons case Cooke 11. fol. 75. Magdalen Colledges case Cooke 4. fol. 94. Slades case multitudo errantium non parit errori patrocinium I answer to the second that in those yeare books of Edw. 3. It is true that the Iudges appealed to the Kings Councell for advice in law but who gave the Iudgment the Iudges and what Iudgement a legall Iudgement and no paper or arbitrary Iudgment If this objection were materiall I might answer further that the Councell here may bee understood the great Councell viz. the Parliament propter excellentiam vide Cooke 6. 19. 20. Gregories case By the stat of 4. Edw. cap. 3. 14. and 36. Edw. 3. c. 10. Rastall fol. 316. Parliaments were then to be held once a yeare the booke of 39. Edw. 3. fol. 35. in the case of a formedon may well warrant this explanation of those books the Bishops Abbots Earles and Barons mentioned in the said books may be well taken to be the Lords house which might sit by adjournements in those times of frequent Parliaments My Lords I kept you too long upon this Question I will be as short in the next And so I conclude the answer as to this point is no answer and whether the matters therein comprized be of dangerous consequence I submit to your Lordships If the Chiefe Governor and Councell of this kingdome cannot heare or determine the causes aforesaid surely the Chiefe Governor alone cannot doe it all I have said to the third I doe apply to this Question together with one president worthy your observation in 25. Edw. 1. Claus. m. 20. where I have an authenticke coppie viz. Claus. vicessimo quinto Eaw primi m. 20. Rex dilecto fideli suo Iohanni VVogan Iusticiario suo Hiberniae salutem cum intellexerimus quod vos comunia placita quae totis temporibus retroactis per brevia originalia de Cancellaria nostra Hiberniae placitari deberent consueverunt per billas petitiones vacuas jam de novo coram vobis deduci facitis etiam terminari per quod feodum sigilli nostri quo utimur in Hibernia fines pro breuibus dandis ad alia commoda quae nobis inde solent accrescere di versimode subtrabuntur in nostri incolarum partium illarum damnum non modicum gravamen nolentes igitur hujusmodi novitates fieri per quas nobis damna gravia poterunt evenire vobis mandamus quod si ita est tunc aliqua placita comunia quae per brevia originalia de Cancellaria nostra praedictâ— de jure consuetudine hucusque visitata habent terminari per petitiones billas coram vobis deduci placitari aut terminari de caetero nullatenus praesumatis per quod vobis imputari debeat aut possit novum incommodum in hac parte Teste Rege apud Shestoniam xxiij die Martij Convenit cum Recorda VVilliam Collet Your Lordships may see that in Edward the firsts time the King took notice First that the said petitions were void Secondly that his revenues were thereby impaired Thirdly that it was against the Custome of the land of Ireland Fourthly that it was to the grievance of the people of Ireland Fifthly he comanded Iohn VVogan then Chiefe Governor not to presume to deale in the like proceedings thereafter I marvaile not a little wherefore the Iudges in our time after so many acts of Parliament since 25. Edw. 1. should make any doubt or question to answer this cleerly My Lords I humbly desire not to be misconstrued in the debate of this Question my meaning is not to pry into his Majesties just prerogatives Qui enim majestatem scrutatur Principis corruet spelndore ejus the old saying in English is as good he that hewes a block above his head the chipps will fall into his eyes The Question warrants no such scrutinie I may not officiously search into it The Question is onely whether grants made of monopolies to a subject be good in law And whether by pretext of such grants the Kings free people may loose their goods by seisures or may be fined imprisoned pillored papered c. Those things have been done and acted in many cases where the Monopolites were Iudges and parties in which case if an act of Parliament did erect such a Iudicatorie it were void as against naturall Iustice Cooke 8. 118. a Doctor Bonhams case I speake to that thing that odious thing Monopolie which in law is detestable Cooke 11. 53. b. the Taylors of Ipswich case by which any subject is hindered to exercise his lawfull trade or lawfully to acquire his living and the Condition of a bond being to restraine any man from his trade the bond is void in law 2 Hen. 5. 5. b. In this case the Iudge Hull swoare par Dieu if hee who tooke this bond were present he would fine him to the King and commit him to prison by which case I observe that the consent of the partie cannot make it good That a Patent of any such Monopolies is a grievance against the Common wealth and consequently voyd in law the case was of Cards which is observable Cook 11. 85. 86. 87 c. Darcy Allens Case There is a Condition tacite or expresse in every grant of the Kings Ita quod patriamagis solito non gravetur vel oneretur vid. Fitz. N. br fol. 222. Cod. ad quod damnum This learning is so cleare as to Monopolies thus stated that I will dwell no longer upon them as I hope they may no longer reside among us The