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
shall be extinct for Fealâ—y is by necessity of Law incident to the Reversion but the Rent shall be divided pro rata portionis and so it was adjudged And it was also adjudged That though Collins come to the Reversion by several Conveyances and at severall times yet he might bâ—ing an Action of Debt for the whole Rent Hill 43 Eliz. Rot. 243. West and Lassels Case So Hill 42 Eliz. Rot. 108. in the Common Pleas Ewer and Moylâ—s Case Note It was adjudged 19 Eliz. in the Kings-Bench that where one obtained a Prohibition upon Prescription de modo Decimandi by payment of a sum of money at a certain day upon which Issue was takeâ— and the Jury found the modus Decimandi by payment of the said sum but at another day the Case being well debated at last it was Resolved That no Consultation should be granted for though the day of payment may bâ— mistaken yet a Consultation shall not be granted where the Soitâ—tual Court hath not Jurisdiction of the Cause Taafi ld Chief Baron hath the Report of this Cause Mich. 7 Jac. Regis In an Ejectione Firmae he Writ and Declaration were of two parts of certain Lands in Hetherset and Windham in the County of Norfolk and saith not in two parts in three parts to be divided and yet it was good as well in the Declaration as the Writ for without question the Writ is good de duabus partibus generally and so is the Register See the 4 E. 3. 162. 2 E. 3. 31. 2 Ass 1. 10 Ass 12. 10 E. 3. 511. 11 Ass 21. 11 E. 3. Bre. 478. 9 H. 6. 36. 17 E. 4. 46. 19 E. 3. Bre. 244. And upon all the said Books it appears that by the Intendment and Construction of the Law when any parts are demanded without shewing in how many parts the whole is divided that there remains but one part undivided But when any Demand is of other parts in other form there he ought to shew the same specially And according to this difference it was resolved in Jordan's Case in the Kings-Bench and accordingly Judgment was given this Term in the Caseat Bar. Mich. 7 Jac. Regis In the Common-Pleas Muttoa's Case An Action upon the Case was brought against Mutton for calling the Plaintiff Sorce and Inchanter who pleaded Not Guilty and it was found against to the Damage of six pence And it was holden by the whole Court in the Common-Pleas that no Action lyes for the laid words for Sortilegus est qui per sortes futura praenunciat Inchantry is vordis aut rebus adjunctis aliquid praeter naturam moliri See 45 Ed. 3. 17. One was taken in Southwark with the Head and Visage of a dead man and with a Book of Sorcery in his Mayl and he was brought into the Kings-Bench before Knevet Justice but no Indictment was framed against him for which the Clerks made him swear never after to commit Sorcery and he was sent to Prison and the Head and Book were burn'd at Tuthil at the Prisoners charges The antient Law was as by Britton appears that who were attainted of Sorcery were burned but the Law at this day is they shall onely be fined and imprisoned So if one call another Witch an Action will not lye But if one say She is a Witch and hath bewitched such a one to death an Action upon the Case lyes if in truth the party be dead Conjuration in the Stat. 5 Eliz. cap. 16. is taken for Invocation of any evil and wicked Spirits and the same by that Act is made Felony But Witchcraft Inchantment Charms or Sorcery is not Felony if not by them any person be killed or dyeth The first Statute made against Conjuration Witchcraft c. was the Act 33 H. 8. c. 8. and by it they were Felony in certain Cases special but that was repealed by the 1 Ed. 6. c. 12. Mich. 7 Jae Regis In the Court of Wards Sir Allen Percy 's Case Sir John Fitz and Bridget his Wife being Tenants for life of a Tenement called Ramshams the remainder to Sir John Fitz in Tail the remainder to Bridget in Tail the reversion to Sir John and his Heirs Sir John and Bridget his Wife by Indenture demised the said Tenement to William Sprey for divers years yet to come except all Trees of Timber Oakes and Ashes and liberty to carry them away rendring Rent And afterwards Sir John dyed having Issue Mary his Daughter now Wife of Sir Allen Percy Knight and afterwards the said William Sprey demised the same Tenement to Sir Allen for 7 years The Question was Whether Sir Allen having the immediate Inheritance in right of his Wife expectant upon the Estate for the life of Bridget and also having the Possession of the said Demise might cut down the Timber Trees Oakes and Ashes And it was objected he might well do it for it was Resolved in Sanders Case in the 5th Part of my Reports That if Lessee for years or life assigns over his term or Estate to another excepting the Mines or the Trees c. that the Exception is void But it was answered and Resolved by the two Chief Justices and the Chief Baron that in the Case at Bar the Exception was good without question because he who hath the Inheritance joyns in the Lease with the Lessee for life And it was further Resolved That if Tenant for life Leaseth for years excepting the Timber Trees the same is lawfully and wisely done for otherwise if the Lessee or Assignee cut down the Trees the Tenant for Life should be punished in Wast and should not have any remedy against the Lessee for years But when Tenant for life upon his Lease excepteth the Trees if they be cut down by the Lessor the Lessee or Assignee shall have an Action of Trespass Quare vi armis and shall recover Damages according to his loss And this Case is not like the Case of Sanders for there the Lessee assigned over his whole Interest and therefore could not except the Mines Trees c. But when Tenant for life leases for years except the Timber Trees the same remaineth yet annexed to his Free-hold and he may command the Lessee to take them for necessary Reparations of his Houses And in the said Case of Sanders a Judgment is cited between Foster and Miles Plaintiffs and Spencer and Bourd Defendants That where Lessee for years assigns over his Term except the Trees that Wast in such Case shall be brought against the Assignee But in this Case without question Wast lyeth against Tenant for life and so there is a difference Mich. 7 Jac. Regis In the Court of Wards Hulme's Case The King in Right of his Dutchy of Lancaster Lord Richard Hulms seized of the Mannor of Male in the County of Lancaster holden of the King as of his Dutchy by Knights Service Mesne and Robert Male seized of Lands in Male holden of the Mesne as of his said Mannor by Knights
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
proceed in Blasphemy Heresy Schisme c. loyalty of Matrimonies probate of Wills c. and that from these proceedings depends not only the Salvation of Souls but the legitimation of Issues c. and other thingâ— of great Consequence It is most reason that such Officers shall be within the Statute then Officers which concern Temporal maâ—ters the Temporal Judge committing the Convict only to the Gaoler but the Spiritual Judge by excommunication to the Devil And there is a Proviso in â—he Statute for them It was Resolved That such Offices were within the Purview of the said Statute Hill 8 Jac. Regis Admiralty It is to be understood That the Jurisdiction of the Admiralty is more antient than Mr. Lambert in his Jurisdiction of Courts doth affirm which was the time of Edward the Third But without question the Jurisdiction of the Admiralty is more antient for I find a notable Book in the time of Ed. 1. Title Avowry 192. which proves it more antient than Mr. Lambert speaks The Case was One brought a Replevin of his Ship taken on the Coast of Scarbrough upon the Sea and carryed into Norfolk and there detained the plaint of taking in the Coast of S. which is no Town nor Place certain by which the Paiis mâ—y be taken for the Coast contains four Leagues And also a thing done at Sea this Court cannot have Cognizance for this Judgment is given to Mariners Beresford who gave the Rule in this Case The King Wâ—lls That the Peace be kept as well upon the Sea as the Land-And we find that you come by due Process and we see nothing why you ought not to answer upon which Book I observe five things 1. That of things done upon the Sea Judgment is given to Mariners id est to Admirals as shall appear and belongeth not to the King's Court because no Paiis may be taken there for where the Paiis or Jury may come the Admiral hath no Jurisdiction 2. This proves directly That there the Admiral hath Jurisdiction to adjudge things done upon the Sea from whence no Paiis may come And this did nor begin then for questionless ever since there was Trade or Traffick which is the Life of every Island there was Marine Jurisdiction to redresse Depraedations Piracies Murthers and other Offences upon the Sea 3. The third thing is That if part of the matter be done on the Sea and part in the Country that the Common-Law shall have all the Jurisdiction 4. The Sea within the Jurisdiction of the Admiral is described to be out of every County 5. If a thing be done upon the Sea hors del County the Party may plead it to the Jurisdiction of the Court. And it is to wit that in antient time the Jurisdiction of Admiral was called Maritina Angliae and sometimes Marina Angliae which signifies the Admiralship or Marinship of England for Marinus is the same with 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is of the Sea and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is the Admiral or General of the Fleet and Almarath is corruptly Admirall And antiently sometimes one was Admiral of all England and sometime the Office was divided And for this see ex Rot. Patentium de An. 6 H. 3. de Maritina Custodiend 29 Aug. ex Rot. Pat. An. 9 H. 3. 3. Octob. Charta 15 H. 3. 28 Junii 25 Ed. in 14. Claus in Dorso in 18. William teyborne Capitaneus Marinariorum At this time there were two Admirals the one had the Government of all the Fleet from the Thames mouth versus Boream the other from the Thames mouth versus occidentem 1 Pars. Patent 25 Ed. 1. 25 Martii in 9. 1 Pars. Patent 10 Ed. 2. 8. Decem. And so in the time of R. 2. H. 4. H. 5. H. 6. during whose Reigns there was like unus qui fuit Admirallus Angliae 3 Ed. 2. Coron 399. where a man may see what is done of one part and the other of the Water c. in that place the County may have Cognizance and it may be tryed by a Jury And Stamfords Pleas of the Crown lib. 1. fol. 51. citing this Book saies thus So this proves That by the Common-Law before the Statute c. the Admiral shall not have Jurisdiction unless upon the High-Sea which proves his Jurisdiction by the Common-Law upon the High-Sea Ex quo sequitur that his Jurisdiction was by the Common-Law and then 't is so antient that the Commencement cannot be known Whence I conclude that this Authority did not begin of King Edw. 3. as Monsieur Lambert upon uncertain Conjectures supposeth Pasch 9 Jac. Regis It was Resolved by the two Chief Justices Chief Baron the Attorney and Sollicitor That the King may erect any Name of Dignity which was not before and for that Reason the King may Create a Baronet to him and his Heirs-males of his Body issuing It was Resolved That if he Create him not of some Place he shall not have an Estate Tail but Fee-simple conditional forfeitable for Felony but if he Create him Baronet of a Place then he shall have an Estate-Tail within the Statute West 2. And the King may Grant to such Precedency before Knights Bannerets Knights of the Bath and Kinghts-Batchelors And also he may Grant Precedency to their Wives Sons and Daughters c. The King cannot Create any Dignity above the Dignity of a Baronet and under the Dignity of a Baron And the creation of this Dignity of a Baronet shall not discharge the Heir to be in Guard Pasch 9 Jacobi Regis Accessary in Treason c. Note That in Trespass and Treason there are no Accessaries but all are Principles But in Felony above the sum of 12 d. there and in case of death c. there may be Accessary as well before as after In Petit larceny there can be no Accessaries for the smallness of the Felony Then the Case is A. Counterfeits the Great Seal of England and B. knowing that he did Counterfeit it receives abets and comforts him If B. in this Case be Guilty of Treason is the Question And it seems he is not for though A. by the Counterfeiting be a Traytor yet the abetting c. cannot make B. an Accessary because at the time of Counterfeiting it he did not know it but if one before the Act be done procure another to Conterfeit the Great-Seal there it is High-Treason and in the Indictment he may be charged with the Fact And this appears to me very evident in Reason and agrees with our Books as 19 H. 6. 47. 6. he who is consenting to the making of false Money commits High-Treason for he is Particeps Criminis before the Fact But it is held in Conyers Case Mich. 13 14 Eliz. Dyer 296. that in the same Case if one after the Fact done know thereof and receive the Party this is but Misprision of Treason and with this accords 3 H. 7. 10. which diversity Stam. Pleas of the Crown fol. 3.
capiantur in Patria A Prohibition lyes to the Justices of Nisi Prius So upon Articuli super chartas cap. 7. to the Constable af Dover Regist 185. So upon the same Stat. cap. 3. to the Steward and Marshal of the Houshold 185. and yet no Prohibition is given by express words in any of these Statutes So upon the Statutes 13 R. 2. c. 3. 15 R. 2. c. 2. 2 H. 4. c. 11. a Prohibition lyes to the Admiralty Court So upon West 2. c. 43. against Hospitals and Templers Regist 39. a. So upon the Stat. de Prohibitione regia a Prohibition lyes So upon the Stat. 2. H. 5. c. 3. and upon that Stat. 4 E. 4. 37. the Case was Peirce Peckham took Letters of Administration of the Goods of Rose Brown of the Bishop of London afterwards T. T. sued to Thomas Archbishop of Canterbury to have Administration committed to him because Rose Brown had Goods in his Diocess and they were granted to him Afterward T. T. Libelled in the Court of the Arches against Peirce Peckham to repeal his Administration and Peirce Peckham according to the Stat. prayed a Copy to the Libel and could not have it and thereupon he sued a Prohibition and upon that an Attachment And there Catesby Sergeant moved that a Prohibition did not lye for two Causes 1. The Statute says that the Libel shall be deliver'd but not that the Plea shall surcease 2. The Statute is not intended of Matter meerly Spiritual And there Danby Chief Justice If you will not deliver the Lâ—bel according to the Statute you do wrong which wrong is a Temporal matter and punishable at the Common-Law and therefore the party shall have a special Prohibition And always after the said Act in every Term throughout the Reigns of Ed. 6. Q. Mary and Q. Eliz. to this day Prohibitions have been granted in Modo Decimando and Judgments given upon many of them without any contradiction and accordingly all the Judges Resolved 7 Ed. 6. Dyer 79. Et contemporanea expositio est optima et fortissima in lege et minime mutanda sunt quae certam habuerunt interpretationem 1. As to the first Objectio That the Plea of Modus Decimandi is but accessary to the Right of Tythes It was Resolved That the same was of no force for three Causes 1. In this Case admitting there is a Modus Decimaâ—di then by the Custom and by the Act 2. E. 6. and the other Acts the Tythes in Kind are extinct and discharged for one and the same Land cannot be subject to two manner of Tythes but the Modus Decimandi is all the Tythe with which the Land is chargeable and it shall be intended that the Modus Decimandi began at first by reall Composition So as in this Case there is neither Principal nor Accessary but an Identity of the same things 2. The Stat. 2 Ed. 6. being a Prohibition in it self and that in the Negative If the Ecclesiastical Judge doth against it a Prohibition lyes as appeareth clearly before 3. Though the Rule be general yet it appears by the Register it self that a Modus Decimandi is out of it for there is a Prohibition in causa modi Decimandi when Lands are given in satisfaction of the Tythes 2. As to the second Objection It was Answered and Resolved That that was from or out of the Question for status Quaestionis non est deliberativussed judicialis for convenient or inconvenient is not the Question but what the Law is 3. As to the third Objection it was answered and resolved First That satisfactio pecuniaria of it self is Temporal But because the Parson hath not remedy pro modo Decimandi at Common by force of the Acts cited before he might sue pro modo Decimandi in the Ecclesiastical Court But that proves not That if he sue for Tythes in Kind which are utterly extinct c. that upon the Plea de modo Decimandi that a Prohibition should not lye for the contrary appears without all question by what hath been said before See also 12 H. 7. 24. b. 39 Ed. 3. 22 E. 4. Consultation As to the Objection That Averment is taken of the Refusal of the Plea of Modus Decimandi It was answered and Resolved That the same is of no force for divers Causes 1. It is onely to inforce the Contempt 2. If the Spiritual Court ought to have the Tryal de modo Decimandi then the refusing to accept such a Plea should give cause of Appeal not of Prohibition 3. From the beginning of the Law no Issue was ever taken upon the Refusal of the Plea in causa modi Decimandi nor any Consultation granted to them because they did not refuse but allow the Plea 4. The Refusal is no part of the matter issuable or material in the Plea and therefore the Modus Decimandi is proved by two Witnesses according to the Stat. 2 E. 6. cap. 13. and not the Refusal which proves the Modus Decimandi is onely the Matter of Suggestion not the Refusal 5. All the said five Matters of discharge of Tythes mentioned in the said Act of 2 Ed. 6. ought to be proved by two Witnesses and so have been always since the making of the said Act. And therefore it clearly intended that Prohibitions should be granted in such Cases 6. Though they would allow bona fide de modo Decimandi without Refusal yet if the Parson sue there for Tythes in Kind when the Modus is proved the same being expresly forbidden by that Act 2 Ed. 6. 13. a Prohibition lyes though the Modus be Spiritual as appears by the Book 4 E. 4. 37. Afterwards the third day of the Debate of this Case before the King Dr. Bennet and Dr. Martin had reserved divers Consultations granted in causa modi Decimandi thinking they might work upon the King's Opinion and thereupon they said That Consultations were the Judgments of Courts had upon Deliberations whereas Prohibitions were onely granted upon Surmises And they shewed 4 Presidents 1. One where three joyntly sued a Prohibition in the Case of modo Decimandi and the Consultation saith Pro co quod suggestio materiaque in eodem content a minus sufficiens in lege existit c. 2. Another in causa modi Decimandi to be paid to the Parson or Vicar 3. Where the Parson sued for Tythes in Kind and the Defendant alleadged modus Decimandi to be paid to the Vicar 4. Where the Parson Libelled for Tythe-Wooll and the Defendant alleadged a Custom to reap Corn and make it into Sheaves and set forth the Tenth Sheave at his Charges and so of Hay to sever it from the Nine Cocks at his Charge in full satisfaction of the Tythes of the Corn Hay and Wooll To which I answer'd and humbly defir'd the King to observe these were reserved for the last and center-point of their Proof And herein these things may be observed 1. That the Kings Courts do them Justice when with
Law The Case was often argued at Bar and now this Term it was argued at the Bench by the Justices and therein these Points were resolved 1. That the first part of the Custom was absurd and repugnant but it extends not to the Case for the last part of the Custom which concerns the cutting down of the Trees concerns the Point in question and so the first part of the Custom is not material And when it was objected that the pleading that the Messuage of the Plaintiff was in decay was too general as appears by the Book 10 Ed. 4. 3. To that it was answered by Cook Chief â—ustice That the said Book proved the pleading in the Case at Bar was certain enough and therewith agrees 7 H. 6. 38. 34 H. 6. 17. 2. It was Resolved That in this Case without question there needs not to alleadge more certainty for the Copyholder doth not here take it according to the Custom but the Lord of the Mannor cuts it down and preventeth the Copyholder of his benefit and therefore he needeth not to shew any decay at all but onely for increasing of Damages for the Lord does the wrong when he cuts down the Tree which should serve for Reparations 3. It was Resolved That of Common-Right as a thing incident to the Grant the Copyholder may take House-bote Hedge-bote and Plough-bote upon his Copy-hold Quia concesso uno conceduntur omnia sine quibus id consistere non potest And with this agrees 9 H. 4. Wast 59. But the same may be restrained by Custome 4. It was Resolved That the Lord cannot take all the Timber-Trees but he ought to have sufficient for Reparation of the Customary Houses and for Plough-bote c. for otherwise great Depopulation will follow And it is to be understood that Bote being on old Saxon Word hath two significations First compensatio criminis as Frithbote signifies to be discharged for giving amends for breach â—f the Peace Manhote to be discharged of amends for the death of a man And secondly for Reparation as Bridgebote Burghbote Castlebote Parkbote c. And it is to be known that Bote and Estovers are all one And Estover is derived of the French Word Estover i. e. fovere i. e. to keep warm cherish c. And there are four kinds of Estovers viz. First Arandi Secondly Ardendi Thirdly Construendi And fourthly Claudendi viz. Ploughbote Firebote Housebote and Hedgebote 5. It was Resolved That the Copyholder shall have a general Action of Trespass against his Lord Quare clausum fregit arborem suam succidit For Custome hath fixed it to his Estate against his Lord. And the Copy-holder in this Case hath as great an Interest in the Timber Trees as he hath in his Messuage which he holds by Copy And if the Lord break or destroy the House without question the Copyholder shall have an Action of Trespass against his Lord Quare domum fregit and by the same Reason for the Timber-Trees which are annexed to the Land and which he may for Reparation of his Messuage or else it cannot stand See Trin. 40 Eliz. Rot. 37. in B. R. between Stebbing and Grosenor See Taylor 's Case in the Fourth Part of my Reports and see 5 H. 4. 2. 2 H. 4. 12. 2 E. 4. 15. 1 H. 6. 4. 7 H. 4. 15. 19 H. 6. 34. 11 H. 4. 28. 11 H. 4. 23. 21 H. 7. 14. b. acc 35 H. 6. 24. 30 H. 6. Tresp 10. c. 21 H. 7. 15. 11 H. 4. 23. See Fitz. Trespass ultimo in the Abridgement And afterwards the same Term Judgment was given on the principal Case for the Plaintiff Pasch 8 Jacobi In Communi Ranco The Parishioners of St. Alphage in Canterbury by Custome ought to choose the Parish-Clerk whom they chose accordingly The Parson by colour of a new Canon made at the Convocation in the Year of the King that now is which is not of force to take away any Custome drew the Clark before Dr. Newman Officiall of the Arch-Bishop of Canterbury to deprive him upon the Point of right Election and for other Causes And upon that it was moved at the Bar to have a Prohibition And upon hearing of Dr. Newman and himself and his Councel a Prohibition was granted by the whole Court because the Party chosen is a meer Temporal Man And the means of choosing him viz. the Custome is also meerly Temporal So as the Official cannot deprive him but upon occasion the Parishioners may displace him And this Office is like that of a Church-Warden who though they be chosen for two years yet for cause they may displace them as is held in 26 H. 8. 5. And though the Execution of the Office concerneth Divine Service yet the Office it self is meer Temporal See 3 E. 3. Annuity 30. 18 E. 3. 27. And it is to be known that the deprivation of a man of a Temporal Office or Place is a Temporal Thing Upon which no Appeal lyes by the 25 H. 8. but an Assize as in 4 Eliz. Dyer 209. And therewith agrees the Book 8 Ass Sirases Case But if a Dean of a Cathedral Church be deprived before the Commissioners of the King he may appeal to the Delegates within the said Act 25 H. 8. For a Deanery is a Spiritual Promotion and not Temporal And before that Act in such Case the Appeal was to Rome immediately Mich. 5 Jacobi Regis In Banco Regis Prichard and Hawkin's Case John Prichard brought an Action upon the Case against Robert Hawkins for Slanderous Words publish'd the last Day of August 3. Jacob. Viz. That Prichard which serves Mistriss Shelley did murder John Adam's Child Quandam Isabellam Adams modo defunct filia cujusdam Johannis Adams de c. innuendo Upon which a Writ of Errour was brought in the Exchequer-Chamber upon a Judgment given for Prichard in the Kings-Bench and the Judgment was reversed in Easter Term 7 Jac. because it doth not appear that Isabel was dead at the time of speaking the words for tunc defunct ought to have bin in stead of modo defunct Pasch 8 Jac. In Banco Regis Dison and Bestney's Case Humphry Dyson said of Nicholas Bestney a Councellor at Law of Grays-Inne Thou a Barrester Thou art no Barrester Thou art a Barretor Thou wert put from the Bar and darest not shew thy self there Thou study the Law thou hast as much Wit as a Daw. Upon Not Guilty pleaded the Jury found for the Plaintiff and gave 23 l. Damages upon which Judgment was given and upon Writ of Errour in the Exchequer-Chamber the Judgment was affirmed Pasch 8 Jac. Regis In Banco Regis Smith and Hill's Case Noah Smith brought an Action of Assault and Battery against Walter Hill in the Kings-Bench which began Pasch 7 Jac. Rot. 175. Upon Not Guilty pleaded a Verdict and Judgment for the Plaintiff and 107 l. given for Damages and Costs In a Writ of Errour in the Exchequer Chamber the Errour was
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
Justices of Nisi Prius power in all Cases of Felony and Treason to give Judgment 28 Ed. 1. De appellatis gives Justices of Assize power to try Appeals of Approvers They may also by the 34 and 35 H. 8. cap. 14. write to the Clerk of the Crown de Banco R. to certifie the first Conviction in their own Name otherwise the best Form is in the King 's Nanâ—e 2 and 3 Ed. 6. cap. 24. By Articuli super chartas cap. 10. 4 Ed. 3. cap. 11. 7 R. 2. they may hear and determine Conspiracies false Informations c. By the Statute of Northampton 2 Ed. 3. cap. 3. they may hear and determine the Statute of Armor and punish Justices of Peace and others c. They ought twice a year to proclaim the Statute 32 H. 8. and other Statutes against Champerâ—y Imbracery and unlawful Retainers By 3 H. 7. cap. 1. they may take Bail of one acquitted of Murther within the year to answer the Appeal of the Party By 33 H. 8. they must proclaim in their Circuit the Statute against unlawful Games They make Execution of the Statute 13 H. 4. cap. 7. of Ryoâ—s c. And by 2 H. 5. cap. 8. Commission shall be awarded to enquire of the Defaults of Justices of Assize and of the Peace By Westminster 2 cap. 37. and 2 Ed. 3. c. 5. they ought also to enquire of the 23 H. 6. cap. 10. concerning Sheriffs c. Bayliffs c. and Guardians of Prisons for their Extortion and delivering who are not Bailable and detaining who are 2 Mariae Dyer 99. they held Plea in Assize of Murther by W. 2 and 3 H. 7. and of Robbery by Commission of Gaol Delivery By 23 Ed. 3. they may inquire of Default c. punishment of Victuallers c. Note Justices of Oyer and Terminer can only enquire of such who are endicted before themselves But Justices of Goal-delivery may arraign a Prisoner indicted before others the words of their Commission are Ad Gaolas Gaolam de B. de peâ—sonaribus in ea existeâ—t hac vice deliberand secund leges c. Brook tiâ— Commission 3. Maii 24. 4 Ed. 3. cap. 2. Justices of Gaol-delivery deliver Prisoners indiâ—ted before Guardians of the Peace And by 1 Ed. 6. cap. 7. new Commissioners of Gaol-delivery This extends not to Indictments c. before Commissioners of Oyer and Termiâ—er because the proceedings before Justices of Oâ—er and Terminer after the Oyer determined ought to remain in the Kings Bench But the Records before Justices of Gaol-delivery remain with the Custos Rotulorum vide Brook tit Commission 12. 38 H. 8. Title Oyer and Terminer 44 Ed. 2. 31. Case of Customes Subsidies and Impositions Upon Conference between Popham chief Justice and my self upon a judgment lately given in the Exchequer and upon Consideration of our Books and Statutes It appeared That the Rule of the Common-Law is the the Register Title ad quod dampnum F. N. B. 222. a. quod patria magis solito non oâ—eretur nec gravetur Also another Rule That the King may Charge his People to a thing which may be to their Profit without assent of the Commons but not to their Charge As is held in 13 H. 4. 16. Statutum de Tallagio non concedendo Mag. Chart. cap. 30. which hath been confirmed above 30 times Vide le Stat. 25 Ed. 1. 3 Ed. 1. in turri 9 Ed. 3. cap. 1. 2. 14 Ed. 3. 2. 25 Ed. 3. cap. 2. Queen May put an Imposition upon Cloaths which 1 â—liz Dyer 165. was moved but not Resolved Vide 31 H. 8. Dyer fol. 43. 1 Eliz. Dyer 165. Magna Custuma Parva Custuma Vide 9 H. 12. 35. Upon all which and divers Records by us seen it appeared to us That the King cannot at his Pleasure put any Imposition upon any Merchandize to be Imported or Exported unless for advancement of Trade the life of the Island Pro bono publico As if in Forâ—aign Parts any Imposition is put upon the Merchandize of our Merchants non pro bono publico to make equality and advance Trade the King may put an Imposition upon their Merchandizâ—s for this is not against any of the said Statutes which was the Case of Currants lately adjudge in the Exchequer And also of Customer Smith in Queen Elizabeth's time And it was clearly Resolved That such Imposition so put cannot be demised or granted to any Subject because it is to augment and decrease or be quite taken away upon occasion And though the King may prohibite any person in some Cases with some Commodities to pass out of the Realm yet this cannot be where the end is Private but where it is publick because Quam plurima nobis et Coronae prejudicialia in partibus exteris prosequi intendit and to restrain in time of Dearth or War for Necessitas est lex temporis It appeared to us also That at Common Law no Custom was paid but only for Woolls Woollfells and Leather which is called in Magna Charta Recta consuetudo all others are called Mala Tolneta which in the Statute de Tallagio non concedendo is called Male. And it hath of long time been used by Parliament to Grant to the Kings at the beginnings of their Reigns certain Subsidies of Tunnage and Poundage for term of Life which began 2 3 H. 5. 31 H. 6. cap. 8. and 12 Ed. 4. cap. 3. which proves the King by his own Power cannot impose it and this may be granted by the King but the other noâ— Vide 31 H. 8. Dyer 43. 1 Ma. D. 92. 1. Eliz. D. 165. 2 and 3 P. and M. D. 128. 12 Eliz. D 296. 23 Eliz. D. 375. 45 Ed. 3. cap. 4. 27 Ass pl. 44. Register 192 c. Vide magna Charta cap. 10. They are called Consuetudines Et per vocabulum artis they are called Cuâ—uma Vide Lestat 51 H. 3. Titl Exchequer in Rastall and 9 Ed. 3. cap. 2. Vide Fortescue de laud. leg Ang. cap. 36. fol. 48. fol. 13. cap. 9. And note for the benefit of the Subject the King may lay Imposition within the Realm â—o repair High-wayes Bridges and Walls for defence But the sum must be proportioned to the benefit And this appears 13 H. 4. 16. See also Charta mercatoria ex Rot. mercator 31 Ed. 1. n. 42. Patents 3 Ed. 1. n. 1. 9. de sacco lanae dim marcae lasta Coriorum 1 Marke c. Fines 3 Ed. 1. n. 24. intus et non in dorso Vide Rot. Parl. an 13 Ed. 3. And 22 Ed. â— n. 8. And 8 H. 6. n. 29. 28 H. 6. n. 35. 9 R. 2. n. 30. 29 Ed. 3. 11. n. ex Rot. Parliam 5 Ed. 3. n. 17 18 19. 22 Ed. 3. n. 31. 5 Ed. 3. n. 163. 5 Ed. 3 n. 191. 38 Ed. 3. n. 26 Rot. Parl. 7 R. 2. n. 35. 36. 9 R. 2. n. 30. 2 R. 2. Parl. apud Glocestriam Act. 25. 1 R.
understood of Treasons Misprision of Treason Petit Treason and Felony and their Accessaries c. But Premunire is but a contempt and Pardon of all Contempts pardons it Whereupon the Lord Vaux confessed the Indictment Vide Lamb Justice dâ—l Peace 520 Dallisons Report accordingly Vide Stamford c. Trin. 10 Jacob. Regis Countess of Shrewsbury's Case In this Term before a select Councel at York-house the Countess of Shrewsbury Wife of Gilbert Earl of Shrewsbury then Prisoner in the Tower was brought and by the Kings Attorney and Sollicitor was charged with a high Contempt of dangerous consequence declaring That the Lady Arbella being of the Blood-Royal had marryed Seymor the Earl of Hertford's second Son without the King's Consent for which he was committed to the Tower and had escaped and fled beyond the Seas And the Lady Arbella being under restraint escaped also and embarked her self on the Sea but was taken ere she got over of which flight of the Lady Arbella the said Countess well knew as is directly proved by Crompton and not denied by the Lady Arbella And admitting the Lady Arbella had no evil intent against the King yet when she fled and should be inviron'd with Evil Spirits cum perversis perverti possit Now the Charge was in two Parts 1. That the Countess of Shrewsbury being by the King's Command called to the Councel-Table and being required by the Lords to declare her knowledge touching the said Points she answered she would not answer particularly and being again by the King's Commands asked by the Councel at Lambeth she refused for two Causes 1. Because she had made a Vow that she would not declare any thing in particular touching the said Points and she said it was better to obey God than Man 2. She stood upon her Priviledge of Nobility viz. to answer when Judicially called before her Peers such Priviledge having been allowed to William Earl of Pembroke and the Lord Lumly 2. The second Point of the Charge was That when the Answer she had made was put in Writing and read to her yet she refused to subscribe the same Which Denial was urged by the King's Councel as a high contempt c. And the Countess hearing the Charge yet persisted in her obstinate Refusal for the same Reasons the insisted on as before And the Lord Chancellor began and the Archbishop and the other Lords adjudged it a great and high Contempt And that no such allowance was to the Earl of Pembroke or Lord Lumly as was supposed And the Archbishop and Earl of Northampton proved by Scripture that the said Case now was against the Law of God All that the Justices said was That they might well be silent but that silentium in Senatu est vitium and therefore they briefly speak of three things 1. Whâ—ther the Refusals aforesaid were Offences in Law against the King his Crown and Dignity 2. What Proceeding this is and if justifiable by President or Reason 3. What the Offences are and how punishable 1. As to the first It was resolved by the Justices and Master of the Rolls that the denying to be examined was a high Contempt against the King his Crown and Dignity and upon hope of Impunity it will be an encouragement to Offenders as Fleming Chief Justice said to enterprize dangerous Attempts The Master of the Rolls said the Nobility in this Case had no more priviledge to deny to be examined than any other Subject Also if one Noble be sued and a Peer be sued in Star-Chamber or Chancery they must answer upon their Oaths And if produced as a Witness they ought to be sworn And therefore for maintaining of Order the Chief Justice said he would recite some of those Honourable Priviledges which the Law of England attributes to Nobility 1. If a Baron Viscount Earl c. be Plaintiff in any Action and the Defendant will plead that the Plaintiff is not a Baron c. this shall be tryed onely by the Record in Chancery which imports by its self solid truth 2. Their Persons have many Priviledges in Law 1. At a Subjects Suit they shall not be arrested 2. Their Bodies are not subject to Torture in causa criminis â—aesae Majestatis 3. They are not to be sworn in Assizâ—s Juries or Inquests 4. It is Felony in any Servant of the King named in the Checquer Roll to compass or intend to kill any Lord of Parliament or of the King's Councel 5. In the Common-Pleas a Lord shall have Knights returned of his Jury 6. He shall have Day of Grace 7. Shall not be Tryed in case of Treason Felony or Miâ—prison of them but by those that are Nobles and Peers 8. In Tryal of a Peer the Lords of Parliament shall not swear but give their Judgment Super Fidem Ligeantiam Domino Regi debitam And the King honours with Nobility for two Causes 1. Ad consulendum and therefore he gives them a Robe 2. Ad Defendendum Regem Regnum and therefore he gives them a Sword And therefore as they derive their Dignities with those Honourable Priviledges from the King to deny to answer being required by the King is a high Contempt accompanied with great Ingratitude This Denial is contra Ligeantiam suam as appears by the Antient Oath of Allegeance And the Law hath greater account to a Noble-mans Allegeance then one of the Commons because the breach of their Allegeance is more dangerous for Corruptio optimorum est pessima 2. As to the second Point viz. concerning the manner of Proceedings 1. Privative It is not to fine imprison or inflict corporal punishment for that ought to be assessed in some Court Judicially 2. Positive The Fine is ad monendum or at most ad minandum it is ad instruendum non ad destruendum This selected Councel is to express what punishment this Offence justly deserved if judicially proceeded against in the Star-Chamber Therefore this Proceeding is out of the King's Mercy to this Lady that seeing her Offence she might submit to the King without any Judicial Proceedings against her And though the Law puts Limits to the King's Justice it doth not so to his Mercy Et ideo processus iste est regalis plane rege dignus And this manner of Proceeding is fortified by the President of the Earl of Essex against whom such Proceedings were in this very place 42 43 Eliz. As to the last Point It was resolved by all quasi una voce that if a Sentence should be given in the Star Chamber she should be fined 20000 l. and imprisoned during the Kings pleasure Trin. 10 Jacobi Regis Robert Scarlet 's Case Note That at the Sessions of Peace lately holden at Woodbridge in Suffolk the Sheriff returned a Grand Inquest of which one Robert Scarlet desired to be one But the Sheriff knowing the malice of the man refused to return him Yet by Confederacy with the Clark who read the Pannel he was sworn of the Grand Inquest
Law of what nature soever Therefore when one Captain Lee made suit to the King to have an Office to inventory the Goods of those that dyed Testate or Intestate It was Resolved by my Lord Chancellor and my Self That such Grant shall be utterly void being both against the Common-Law and the Statute 21 H. 8. In like manner when another sued to have the Registring of Birth-dayes and the time of death c. So Mich. 19 Jac. To make a New Office in the Kings-Bench onely for making Lattitats was resolved void So Littletons Suit to name an Officer to be a Gen. Reg. c. But the Suit was rejected notwithstanding the fair Pretences of it by the two Chief Justices and others See Hill 12 Jac. Regis 2. Secondly It was Resolved That it was inconvenient for divers Causes 1. For a private man to have private ends 2. The numbring of Strangers by a private man would inâ—er a Terrour and other Kings and Princes will take offence at it 3. It is to be considered what breach it will be to former Treaties 3. As to the third It may be performed without any Inconvenience and so it was divided by the Lord Burleigh and other Lords of the Councel 37 Eliz. To write Letters to the Mayors Bayliffs c. of every City Borough c. where any strangers are resident to certifie how many and of what quality c. which they are to know in respect of their Inhabitants c. and this may be done without any Writing which being shewn to the Lords was by them well approved and the Suits utterly disallowed Decemb. 3. Anno 3 H. 8. Commission was granted to divers to certifie the number of Strangers Artificers c. within London and Suburbs according to the Statutes See Candish Case 29 Eliz. 13 Eliz. A Grant of an Office to Thomas Knivâ—t to examine his Majesties Auditors and Clerks of the Pipe c. Resolved by the Court to be against Law for it belongs to the Barons who are Judges 25 Eliz. A Grant of an Office to Thomas Lichfield to examine all Deceits c. of the Queens Officers for 8 years Resolved to be void Sub-poena's in Chancery belonged antiently to the Six Clerks Queen Elizabeth granted the same to a particular man Affidavits Filing and keeping belonged to the Register King James granted them to a particular man So the erecting and putting down Innes did belong to the Justice of Peace the same King granted it to a particular man So likewise the taking of Depositions c. The Office of Alneger granted by the King to Simon Darlington and the Fees limited The Drawing Ingrossing and Writing all Licences and Pardons granted to Edward Bacon with former Fees and a Restraint to all others The Spa Office granted to Thomas George and others during life with the Fee of 2 s. and a restraint to others The Office of making and Registring all manner of Assurances and Policies c. granted to Richard Gandler Gent. with such Fees as the Lord Mayor and others should rate and a Restraint to others c. The Office of writing Tallies and Counter-Tallies granted to Sir Vincent Skinner The Office of ingrossing Patents to the Great Seal with encrease of Fees granted to Sir Richard Young and Mr. Pye Sed de hoc quaere Sir Stephen Proctor's Case In an Information in the Star-Chamber against Stephen Proctor Berkenhead and others for Scandall and Conspiracy against the Earl of Northampton and the Lord Wooton At the Hearing of the Case were present eight Lords viz. the Chief Baron the two Chief Justices two Bishops one Baron Chancellor of the Exchequer and the Lord Chancellor And the three Chief Justices and the Temporal Baron condemned Sir Stephen Proctor and fined and imprisoned him But the Lord Chancellor the two Bishops and the Chancellor of the Exchequer acquiâ—ted him And the Question was if Sir Stephen Proctor shall be condemned or acquitted And the matter was referred to the two Chief Justices calling to their assistance the Kings Learned Councel And first they Resolved That this Question must be determined by the Presidents of the Court of Star-Chamber that Court being against the Rule and Order of all Courts For in all other Courts if the Justices are equally divided no Judgment can be given So also is it in the Parliament and therefore this course must be warranted by the Custom of the Court. And as to that two Presidents onely were produced viz. One in Hillary Term 39 Eliz. Gibson Plaintiff and Griffith and others Defendants for a Ryot where at Hearing 8 being present 4 gave Judgment that the Defendants were guilty and 4 â— contra and no Sentence of Condemnation was ever entred because the Lord Chancellor was one of the 4 that acquitted them The other was in Hillary 45 Eliz. in an Information against Katherine and others for Forging a Will c. where 4 finding the Defendants guilty of Forgery and 4 onely of Misdemeanour whereof the Lord Chancellor was one Sentence was entred according to the Chancellors Voyce and no other President could be found in this Case as I reported this Term. Concerning Benevolence Note The Exaction under the good Name of Benevolence began thus When King Edw. the 4th had a Subsidy granted him by Parl. in the 12th year of his Reign because he could have no more by Parl and with a Parl. he could not have a Subsidy he invented this Devise wherein observe 3 Things 1. The Cause 2. The Invention 3. The Success 1. The Duke of Burgundy who marryed Edw. the 4th Sister sollicited the King to joyn in War with him against the French King whereto he easily consented to be revenged of him for aiding the Earl of Warwick c. And this was the cause 2. The Invention was The King called before him several times many of his wealthiest Subjects to declare to them his Necessity and Purpose to levy War and demanded of each of them a Sum of Money which by the King 's extraordinary courtesie to them they very freely yielded to Amongst the rest there was a Rich Widow of whom the King merily asked what she would give him for maintenance of his Wars By my Faith quoth she for your lovely Countenance sake you shall have 20 l. which being more than the King expected he thanked her and vouchsafed to kiss her Upon which she presently swore he should have 20 l. more 3. The Success was That where the King called this a Benevolence yet many of the People did much grudge at it and called it a Malevolince Primo Ed. 5. The Duke of Buckingham in Guild-Hall London among other Things inveighed in his Speech against this Taxation and 1 R. 3. c. 2 a Statute is made against it 6 H. 7. The King declaring in Parl that he had just cause of War against the French King desired a Benevolence according to the Example of Edw. 4. and publish'd That he would by their open Hands measure their
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
found by Office as appears by the Books 11 H. 4. 52. Ass 31. 30. Ass 28. 46 Ed. 3. bre 618. 9 H. 7. 24. c. 1 As to the first it was Resolved That the Wife should be endowed and that the Fine with Proclamations was not a Bar to her and yet it was Resolved That the Act 4 H. 7. c. 24. shall barre a Woman of her Dower by such a Fine if the Woman bring not her Writ of Dower within five years after the Husbands death as was adjudged Hill 4 H. 8. Rot. 344. in the Common-Pleas and 5 Eliz Dyer 224. For by the Act the Title of Feâ—e-Covert iâ— saved by taking Action in 5 years after she is uncovert c. But it was Râ—solved That the Wife was not to be aâ—dâ—d by that saving for in respect of her Husbands Attainder she had not any Right of Dower at his death nor could sue for the same after his death But it was Resolved That the Wife was to be aided by another former saving in the same Act viz. And saving to all other persons viz. who were not Parties to the Fine such Action Right c. as shall first grow or come c. to them after the Fine ingrossed and Proclamations made by force of any Gift in Tail or other Cause or Matter before the Fine levyed so that they take their Action and pursue their Title within 5 years after such Right come to them c. And in this Case the Action and Right of Dower accrewed to the Wife after the Reversal of the Attainder by reason of a Title of Record before the Fine by reason of the Seizin in Fee had and Marriage made before the Fine levyed according to the meaning of the said Act. And as to the Point of Relation it was Resolved That sometimes by construction of Law a thing shall relate ab initio to some intent and to some not for relatio est fictio Juris to do a thing which was and had essence to be adnulled ab initio betwixt the same Parties to advance a Right but not to advance a Wrong which the Law hates or to defeat Collateral Acts which are lawful and chiefly if they concern Strangers for true it is as hath been said that as to the mean profits the same shall have relation by construction of Law till the time of the first Judgment given and that is to favour Justice and advance his Right that hath Wrong by the Erroneous Judgment But if a Stranger hath done a Trespass upon the Land in the mean time he who recovereth after the Reversal shall have an Action of Trespass against the Trespassors and if the Defendant pleads there is to such Record the Plaintiff shall shew the Special Matter and maintain his Action And for the better apprehending the Law on this Point it is to know That when any man recovers any Possession or Seizin of Land in any Action by Erroneous Judgment and afterwards the Judgment is reversed as is said before and thereupon the Plaintiff in the Writ of Errour shall have a Writ of Restitution and that Writ reciâ—es the first recovery and the Reversal of it in the Writ of Errour is That the Plaintiff in the Writ of Errour shall be restored to his Possession and Seizin Una cum exitibus thereof from the time of the Judgment c. Tibi praecipimus quod cadem A. ad plenariam seizinam tenementor praed c. restitui facias per Sacramentum proborum c. diligâ—nter inquiras ad quantum exitus proficua tenementor illor c. a tempore falsi Judicii c. usque ad Oct. Sanct. Mich. anno c. quo die Judicium illu c. revocat fuit c. et quâ—liter hoc praecept c. in Octâ—b c. By which it appears that the Plaintiff in the Writ of Errour shall have Restitution against him who recovereth of all the mean Profits without any regard by them taken for the Plaintiff in the Writ of Erâ—our cannot have Remedy against a Stranger and therefore the words of the said Writ command the Sheriff to inquire of the Issues and Profits generally c. And therefore the Plaintiff in the Writ of Errour after the Reversal shall have any Action of Trespass for a Trespass mean and therewith agreeth Brian Chief Justice 4 H 7. 12. a. See Butler and Baker's Case in the third Part of my Reports good matter concerning Relations So as it was Resolved in the Case at Bar though to some intent the Reversal hath relation yet to bar the Wife of her Dower by fiction of Law by the Fâ—ne with Proclamations and five years past after the Husbands death when in truth she had not cause of Action nor any Title so long as the Attainder stood in force should be to do a Wrong by a fiction in Law and to bar the Wife who was a meer stranger and could have no Relief till the Attainder was reversed As to the other Objection That the Demandant on the Petition ought to have an Office found for hâ—r It was Resolved That it needed not in this Case because the Title of Dower stood with the Queens Title and affirmed it Also in this Case the Queen was not intitled by any Office that the Wife should be driven to traverse it for then she ought to have had an Office But in case of Dower though that Office had been found for the Queen which doth not disaffirm the Title of Dower in such Case the Wife shall have her Petition without Office See Sâ—dlers Case in the Fourth Part of my Reports And the Case put on the other side was utterly denied by the Court for it was Resolved That if a man seized of Lands in Fâ—e take a Wife of eight years of Age and alien his Lands and after the Wife attains to the Age of nine years and afterwards the Husband dyeth that she shall be endowed because the Title of Dower being not consummate till the death of the Husband and there being Marriage Seizin in Fee age of 9 years and the Husbands death for that cause she shall be endowed it being sufficient that the Marriage Seizin and Age happen during the Coverture So if a man seized of Lands in Fee take a Wife and after she elopes from her Husband now she is barrable of her Dower if during the elopement the Husband alien and after the Wife is reconciled she is Dowable So if a man hath Issue by his Wife and the Issue dyeth and afterwards Land discends to the Wife or she purchase Lands in Fee and dyes without other Issue the Husband for the Issue which he had before the Discent or Purchase shall be Tenant by the Courtesie But if a man taketh an Alien to Wife and afterwards he aliens his Lands and after that she is made a Denizen she shall not be endowed for she was not by her Birth capable of Dower but by her Denization it began But
all the purview of the Statute which is penned so precisely concerning persons should be all in vain by that evasion of Transcribing it as well against the express Letter of the Act as the intention of it And the Act ought to be expounded to suppress Extortion which is a great affliction and impoverishing of the Subjects 4. As this Case is he annexes the Probate and Seal to the Transcript ingrossed which the Plaintiff brought him so as the Case at Bar was with question And afterwards the Jury found for the Plaintiff And of such Opinion was Walmesly Warberton Daniel and Foster Justices the next Term in all things But upon Exception in Arrest of Judgment for not pursuing of the Act in the Information Judgment is not yet given c. Hill 6 Jac. Regis In the Common-Pleas In this Term a Question was moved to the Court which was this If Tenant in Burgage should pay aid to the King to make his eldest Son Knight And the Point rests upon this If Tenure in Burgage be a Tenure in Socage for by the antient Common-Law every Tenant in Knights Service and in Socage was to give to his Lord a reasonable Ayd to make his eldest Son a Knight and to marry his eldest Daughter and that was uncertain at Common-Law and also incertain when the same should be paid And this appears by Glanvil lib. 9. cap. 8. fol. 70. who wrote in the time of Henry the second Nihil autem certum statutum de hujus modi auxilâ—is dandis vel exigendis c. And in the beginning of the Chapter it is called rationabile auxilium because then it was not certain but to be moderated by Reason in respect of Circumstances The like appears by the Preamble of the Statute West 1. 3 Ed. 1. cap. 35. The said Act put those incertainties to a certainty 1. That for a whole Knights Fee there be taken but 20 s. and of 20 l. Lands holden in Socage 20 s. and of more more and of less less whereby the Ayd it self became certain 2. That none might levy such Ayd to make his Son a Knight untill his Age of 15 years nor to marry his Daughter till her Age of 7 years And Fleta who wrote after that Act calls them rationabilia auxilia c. And by the Stat. 25 Ed. 1. where it is provided That Taxes shall be taken but by common consent of the Realm there is an Exception of the Antient Ayds which is to be intended of these Ayds But notwithstanding the said Act of West 1. it was doubted if the King were bound by it being not expresly named And therefore Ed. 3. in the 20 year of his Reign took â—n Ayd of 40 s. of every Knights Fee to make the Black Prince Knight and then nothing of Lands holden in Socage and to take away all question concerning the same it was confirmed by Parliament and after 25 Ed. 3 cap. 11. It is Enacted That reasonable Ayd to make the Kings eldest Son Knight and to marry his eldest Daughter shall be levyed after the form of the Stat. made thereof and not in other manner Now Littleton lib. 2. cap. 10. fol. 36. b. Burgage Tenure is where an antient Borough is whereof the King is Lord and those who have Tenements within the Borough hold of the King That every Tenant for his Tenement ought to pay to the King a certain Rent And such Tenure is but Tenure in Socage and all Socage Land is contributary to Ayd and therefore a Tenant in Burgage shall be contributary to Ayd It appeareth in the Register fol. 1 2. in a Writ of Right Lands held in Knights Service are said Quas clamat tenere perservitium unius Feâ—di militis And Socage Lands Quas clamat per liberum servitium unius cumini c. So F. N. B. 82. Rationabile auxilium de militibus et liberis tenentibus where Militibus distinguisheth Knights Service from Socage which is called libtris tenentibus But it appears by the Books of Avowry 26. and 10 H. 6. So Antient Demesne 11. It was Resolved by all the Justices in the Exchequor Chamber That no Tenure shall pay for a reasonable Ayd but Tenure by Knights Service and by Socage but not by Grand Sergeanty nor no other And 13 H. 4. 34. agrees to the Case o Grand Sâ—rgeanty And I conceive that Petit Sergeanty shall also pay Ayd for Littleton lib. 2. cap. 8. fol. 36. sayes That such a Tenure is but Socage in effect though Fitzh N. B. 83. a. avouch the contrary 13 H. 4. 34. And I conceive That he who holds a Rent of the King by Knights Service or in Socage shall pay Ayd according to the words in West 1. cap. 35. And though it was said that a Tenure in Socage in servitium Socae as Littleton saith and the same cannot be applyed to Houses To that it was answered That the Land upon which the Houses are buâ—l or if the House fall down may be made arable and plowed See Huntington Polydor Virgil and Hollinsheads Chron. fol. 35. 15 H. 4. Ayd was levyed by H. 1. 7. to marry Mawd his eldest Daughter to the Emperour viz. 3 l. of every Hide of Land c. See also The Grand Customary of Normandy cap. 35. there is a Chapter of Aydeâ— See also the Stat. made 19 H. 7. which beginneth thus Item Praefati Communes in Parliamento praed existent ex assensu c. concesserunt praefat Regi quand pecuâ—iae summam in loco duorum rationabilium auxilior suae Majestat de jure debit c. See Rot. 30 H. 3. Ex parte Reman Dom. Thâ—saur in scemino in auxilio nobis concess ad primogenitam filiam noâ—â—ram maritand And H. 3. had an Ayd granted by Parliament Ad Is abellam sororem suam Imperatori But that was of Benevolence Rot. 42 H. 3. ibid. 6. Monstrat R. Johanne le Francois Baro de Scaccario quod cum Dom. Rex non caperet nisi 20 s. de integro Feodo Mil. de auxilio c. Ibid. in Regno 2 Ed. 1 Rot. 3. de auxilio ad Militiam Which is meant of Knight of the Kings Son Note If one withâ—n Age be in Ward of the King he shall not be contributary to Ayd but his Tenants that hold of him shall as appears by that Record Ibid. 30 Ed. 1. Ibid. T. R. 34 E. 1. Ibid. Hill 4 H. 4. Rot. 19. de rationabili auxilio de Will. Dom. Roos The like M. Rot. 5 H. 4. Rot. 33. Lincoln Roâ— 34. Lincoln Rot. 35 Lincoln Tr. R. 5 H. 4. Rot. 2. Kanc. Rot. 3. Kanc. Rot. 5. Kanc. See ibid. R. 21 Ed. 3. Rot. Cantab. â—e auxilio adfilium Regis primogenitâ—m faciend per Episcopum EEliens See also ibid. 20 Ed. 3. Rot. 13 14. de auxiliendo ad primogenitum filium Râ—gis Militem faciend By all which before cited it appeareth that Tenure in Burgage is subject to the payment of
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