Ayd Hill 6 Jacob. Regis Prohibitions Upon Ashwednesday in Feb. 1606. A great Complaint was made by the President of York to the King That the Judges of the Common-Law had in Contempt of the Kings Command last Term granted 50 or 60 Prohibitions out of the Common-Plâ—as to the President and Councel of York after the 6th of February and named 3 in particular 1. Between Bell and Thawptes 2. Another between Snell and Huâ—t 3. And another in an Information of a Riotous Rescue by English Bill by the Attorney-General against Christopher Dickenson one of the Sheriffs of York and others in rescuing one William Watson out of the Custody of the Deputy of one of the Purseyvants of the said Councel who had Arrested the said Watson by force of a Commission of Rebellion by the said President and Councel awarded Which Prohibition upon the Information was as was said denyed upon a Motion in the Kings-Bench the last Term but granted by Us. And the King sent for me to answer the Complaint and I onely all the rest of the Justices being absent waited upon the King who in the presence of Egerton Lord Chancellor and others of the Privy-Councel rehearsed to me the Complaint aforesaid And I perceived well that the King had thereupon conceived great displeasure against the Judges of the Common-Pleas but chiefly against Me To which I having the Copy of the Complaint sent me by the Lord Treasurer answered in this manner That I had made search in the Office of Prothonotaries of the Common-Pleas and as to the Cases between Bell and Thawpts and Snell and Huet no such could be found but I would not take advantage of a Misprisal And the truth was the 6th of February the Court of Common-Pleas had granted a Prohibition to the President and Councel of York between Lock Plaintiff and Bell and others Defendants and that was a Replevin in English was granted by the said President and Councel which I affirmed was utterly against Law for at Common-Law no Replevin ought to be made but by Original Writ directed to the Sheriff and the Statute of Marlbridge cap. 21. and West 1. cap. 17. authorize the Sheriff to make a Replevin So 29 Ed. 3. 21. 8 Eliz. Dyer 245. And the King by his Instructions neither had made the President and Councel Sheriffs nor could grant them Power to make a Replevin against Law which the Lord Chancellor affirmed for very good Law and it may well be we have granted others in the like Case Another Prohibition I confess we have granted between Sir Bethel Knight now Sheriff of the County of York as Executor to one Stephenson who made him and another his Executors and preferred an English Bill against Chambers and others in nature of an Action of the Case upon a Trover and Conversion of Goods and Chattels in the Testators Life to the value of 1000 l. And because the other Executor would not joyn with him he had no remedy at Common-Law but was forced to pray remedy there in Equity And I say the President and Councel have not any Authority to proceed in that Case for divers causes 1. Because there is an express Limitation in their Commission that they shall not hold Plea between Party and Party c. unless both or one of the Parties tanta paupertate sunt gravati that they cannot sue at Common-Law and in that Case the Plaintiff was a Knight Sheriff and man of great quality 2. Because by that Suit the King was deceived of his Fine which was 200 l. because the Damages amounted to 4000 l. And that was one of the Causes that the Sheriff began his Suit there and not at Common-Law Another Cause was that their Decrees which they take upon them are final and uncontroulable either by Errour or any other Remedy which is not so in the Kings Courts where there are five Judges for they can deny Justice to none who hath Right nor give any Judgment but what is controulable by Errouâ— c. And if we shall not grant Prohibitions in Cases where they hold Plea without Authority then the Subjects shall be wrongfully oppressed without Law and we denyed to do them Justice And their Ignorance in the Law appeared by allowing that Suit viz. That the one Executor had no Remedy at Common Law because the other would not joyn in Suit with him whereas every one Learnâ—d in the Law knows that Summons and Severance lyeth in any Suit brought as Executors And this was also affirmed by the Lord Chancellor Another Prohibition I confess we granted between the L. Wharton who by English Bill before the Councel sued Bank S. Buttermere and others for fishing in his several Fishings in Darwent in the County of C. in nature of an Action of Trespass at Common-Law to his Damages of 200 l. and for the Causes before recited and because the same was meerly determinable at Common-Law we granted a Prohibition And that also was allowed by the Lord Chancellor Then the King asked me the Case of Information upon the Riotous Rescous To which I answered That one exhibited a Bill there in the nature of an Action of Debt upon a Mutuatus against Watson who upon his Oath affirmed that he had satisfied the Plaintiff and owed him nothing yet because he did not deny the Debt the Councel Decreed the same against him And upon that Decree the Pursuyvant was sent to Arrest the said Watson who Arrested him upon which the Rescous was made And because the Action was in the nature of an Action of Dâ—bâ— upon a Mutuatus where the Defendant at Common Law might have waged his Law the Prohibition was granted and that was also affirmed by the Lord Chancellor Also I affirmed it was Rescous because the principal cause belonged not to them but it might be a Riot yet not punishable by them but by course of Law by a Commission of Oyer and Terminer Also I confess that we have granted divers Prohibitions to stay Suits there by English Bill upon penal Statutes for the manner of prosecution as well for the Action Process c. as for the Count is to be pursued and cannot be altered and therefore without question the Councel in such Cases cannot hold Plea which was affirmed also by the Lord Chancellor And I said no Court of Equity can be Erected at this day without Act of Parl as was Resolved in Q. Eliz. time in Parots Case and lately in the Case of the President and Councel of Wales And the King was well satisfied with these Reasons who gave me his Royal Hand and I departed from thence in his favour Pasch 7 Jac. Regis This Term a Question was moved at Sergeants Inne who by the Common-Law ought to repair the Bridges common Rivers and Sewers and the High-ways and by what means they shall be compelled to it and first of Bridges And as to them it is to be known that of common right all the Country shall be
Nicholas Bishop of Norwich against whom he then being in the Custody of the Marshall the Kings Attorney did prefer a Bill of Premunire the matter whereof was this In Thetford in Com. Norfolke hath been de tempore cujus c. such Custom that all Ecclesiastical Causes rising in that Town should be determined before the Dean of that Town who hath particular Jurisdiction there and that none in that Town shall be drawn in Plea in any other Court-Christian unless before the same Dean And if it ought to be done against the same Custom this to be presented before the Mayor of the same Town and the Party to forfeit 6 s. 8 d. That One such sued in the Consistory of the Bishop for a thing arising within the said Town which was presented before the Mayor for which he forfeited 6 s. 8 d. The Bishop cited the Mayor to appear before him at his House at Hoxin in Suffolk generally pro salute animae but upon appearance◠〈◊〉 upon all the Matter and enjoyn'd him on pain of Excommunication to annul the said Presentment The Bishop had Council assigned him who objected That as well the Presentment as Custom was void and therefore not contra Coronam c. nor drawn by the Bishop ad aliud examen 2. They objected That the Bishop's Court was not intended within the Act of 16 R. 2. but in Cur. Romana aut alibi and this alibi ought not to be out of the Realm but it was Resolved by Fitz James chief Justice Et. per totam Curiam that be the Custom or Presentment good or bad this is a Temporal thing determinable at Common Law and not in Spiritual Court and therefore the Bishop hath incurred the Premunire 3. That alibi extends as well to the Bishop's Courts c. as well within the Realm as else-where and so the Court said it had been often adjudged whereupon the Bishop confessed the Indictment And Judgment was given That he shall be out of the King's Protection and that his Lands Goods and Chattels should be forfeited and his Body to be imprisoned ad voluntatem Regis c. Nicholas Fuller's Case In the great Case of Nicholas Fuller of Grays-Inn these Points were Resolved by all the Justices and Barons of the Exchequer 1. Resolved That no Consultation can be granted out of Term because it is a final award of the Court and can neither be granted in Term nor out of Term by all the Judges except in Court the name of the Writ signifying the same 2. Resolved That the Construction of the Statute 1 Eliz. cap. 1. and of the Letters Patents of High-Commission in Ecclesiastical Causes founded upon the said Act belongs to the Judges of the Common Law And therefore the Consultation which was granted with this restraint Quatenus non agat de authoritate et validitate Literarum Patentium pro causis Ecclesiasticis vobis vel aliquibus vestrum direct aut de expesitione et interpretatione Statuti de anno primo nuper Reginae c. As if the King hath a Benefice donative by Letters Patents this shall not be visitable nor deprivable by any Ecclesiastical Authority but by the Chancellor of the King or Commissioners under the Great Seal 3. Resolved When there is any Question concerning what Power or Jurisdiction belongs to Ecclesiastical Judges in any such Case the determination of this belongs to the Judges of the Common Law in what cases they have Cognizance and in what not And according to this Resolution Bracton lib. 5. tract de except cap. 15. fol. 412. Vide also Entries fol. 445. There was a Question whether Court-Christian should have Cognizance of a Lamp and a Prohibition was granted Quod non procedant in Curia Christianitatis quousque in Curiae â—ostra discussum fuerit utram cognitio placiti illius ad Curiam nostram vel ad forum Ecclesiasticum pertineat And all this appears in our Books that the Judges of the Common Law shall determâ—ne in what Cases the Ecclesiastical Judges have Power to punish any pro Laesioae fidei 2 H. 4. fol. 10. 11 H. 4. 88. 22 Ed. 4. 20. or of the bounds of Parishes 5 Ed. 3 8 8 Ed. 3. 69. 70. 18 Ed. 3. 58. 12 Ed. 4. 9 H. 7. 1. 10 H. 7. 9. And therefore in this Case of Fuller one other Restraint was added in the Consultation Et quatenus non agat de aliquibus scandalis contemptibus sâ—u aliis rebus quae ad communen legem aut Statuta Regni nostri Angliae suat puâ—ienda et determinanda 4. Resolved That if a Councellor at Law in his Argument shall scandal the King or his Government Temporal or Ecclesiastical this is a misdemeanor and and contempt to the Court for which he shall be indicted fined and imprisoned but not in Court Christian but if he publish any Heresy Schisme or erroneous Opinion in Religion he may for this be punished by the Ecclesiastical Judges for the Rule is Quod non est juri consonum quod quis pro aliis quae in Curiis nostris act a sunt quorum cognitio ad nos pertinet trahatur in placitum in Curia Christianitatis See the Book of Entries fol. 448. And for this cause a Consultation was granted Quoad Schismata Hereses c. Vide Mâ—ch 18 H. 8. Rot. 78. in Banco Regis The Case was a Leet was â—eld Jovis post Festum Sancti Mich. Arch. 17 H. 8. of the Prior of the House of St. John de Bethelehem de Shrine of this Mannor of Levisham in Com. Surrey before John Beare Steward there a Grand Jury was charged to inquire for the King of all Offences inquirable within the said Leet where one Phillip Aldwin who was a resident within the said Leet appeared Idemque Phillippus sciens quandam Margaretam uxorem Johannis Aldwin apud East-Greenwich infra jurisdictionem Letae proed pluries per antea corpus suum in adulterio viciose exercuissse c. eisdem sic juratis de dicta c. informationem veraciter dedit Upon which the said Margaret drew the said Phillip into the Archbishop of Canterbury his Court and there libelled against him for defamation of Adultery and that the Phillip said in hisce Angl. verbis Margaret Allen is a Whore and a Bawde and it is not yet three weeks agone since a man might take a Priest betwixt her Legs which words were parcel of the words by which he informed the Jury at the Leet And upon this he had a Prohibition and by this Record it appears and by the Statute 10 Ed. 3. c. 11. that Indictors of Lay-People or Clerks in Turneys and after delivering them before Justices shall not be sued for Defamation in Court-Christian but that the Plaintiff grieved shall have a Prohibition Vide Pasch 6 Eliz. In the Lord Dyers Reports which Case is not Printed John Halles in the Case of Marriage between the Earl of Hereford and the Lady Katharine Gray declared his Opinion against the
Common-Law none can be burnt for Heresy but by Conviction at a Convocation Note The High Commission may punish Heresies and upon their Conviction a Writ de Haeretico cumburendo See 6 R. 2. by which the Commons disavowed their assent to the Act of the 5 R. 2. which was contrived by the Prelates in the Name of the Commons whereas they never assented Mich. 6 Jac. Regis Langdale's Case In Langdales Case this Term in a Prohibition to the High Commissioners two Points were moved 1. If a Feme Covert may sue for Alimony before the High-Commissioners 2. If the Court of Common Pleas may grant a Prohibition when there is no Plea pendant there This concerning the Jurisdiction of the Court was first debated and divers Objections were made against it 1. That this Court hath not Jurisdiction to hold Plea without an Original unless by Priviledge of an Attorney Officer or Clerk of the Court and unless it be in a special Case viz. when there is an Action there depending for the same Cause then it was agreed that a Prohibition ought to recite Quod cum tale Placitum pendet c. And it was said That F. N. B. 43. g. agrees with this But a man ought to have his Prohibition out of Chancery or the Kings Bench upon surmise that he is sued in Court Christian for a Temporal Cause and the 2 Ed. 4. 11. 6. was cited To this it was answered and Resolved by Coke chief Justice Warberton Daniell and Foster Justices That the Common Pleas may award a Prohibition though no Suit be there pendent for it is the principal Court of Common Law for Common Pleas Quia Communia Placita non sequantur Curiam nostram as it is Enacted by Magna Charta thirty times confirmed by Parliamâ—â—â— then if the Ecclesiastical Judges incroach upon the Jurisdiction of the Common Pleas there the Court shall Grant a Prohibition and that without Original Writ for divers Causes 1. Because no Original Writ issuing out of Chancery is retornable into the King Bench or Common Pleas but is directed to a Judge or Party or both and is not retornable And upon contempt of the Prohibition the Chancellor may award an Attachment retornable either in the Kings Bench or Common Pleas which in such case is but a Judicial Writ And if such Attachment be retornable in the Common Pleas c. the Plaintiff in the Declaration shall make mention of an Original in Chancery and of the contempt c. as appears in a notable President 2. There was great reason that no Original Writ of Prohibition shall be retornable for the Common-Law was a Prohibition in it self and incroachment upon it incurred a contempt and with this agrees our Books 9 H. 6. 56. And there 't is held That the Statute of the 45 Ed. 3. and the Common Law also was a Prohibition in it self and thus the Rule of the Book 19 H. 6. 54. so is it held in 8 R. 2. Title Attachment Sur Prohibition 15. Note By Clopton a Sergeant at the Common Pleas That if a Plea be held in Court-Christian which belongs to the Court of the King without a Prohibition in facto the Plaintiff shall have an Attachment upon a Prohibition Quod fuit concessum c. Register 77. Estrepement Praecipimus quod inhibeas c. F. N. B. 259. Register 112. A Consultation is as much an Original as a Prohibition And the Court hath granted a Consultation ergo Prohibitions Qui habet jurisdictionem absolvendi habet juris dictionem Ligandi There are several sorts of Prohibitions one sort with this word Probibemus vobis and Letters in nature thereof as Supersedeas And Injunction is a Prohibition and Prohibition of Wast out of Chancery c. Express Prohibition are in two manners the one founded upon a Suggestion the other upon Record Upon Suggestion where Plea is pendent and yet the Suggestion is the Foundation but it is founded upon Record where no Plea is pendent for Prohibitions founded upon Record Ne admittas ought to recite the Plea pendent So a Writ to the Bishop to admit a Clerk is a Judicial Latitat as Dyer defends it As to the pendency of a Plea or not pendency it is not material for divers causes 1. The pendency of the Plea may give a priviledge to the party but no Jurisdiction to the Court in a Collateral Suit between which there is great diversity 2. The Prohibition where Plea is pendent is no process Judicial upon Record for it is a Collateral Suit 3. If the Common-Pleas cannot grant a Prohibition without a Plea pendent then the Kings which onely holds Plea of Common-Pleas by second means cannot But inasmuch as the Common-Law is instead of an Original as hath been said both Courts may grant it 4. Infinite Presidents may be shewn of Prohibition out of the Common Pleas without recital of any Plea pendent And true it is That it ought to be if the Court hath not Jurisdiction to grant any without Plea-pendant every petty-Clerk of the Common-Pleas shall have by his Priviledge a Prohibition without Plea-pendent A fortiori the Common Law it self may prohibite any one 4 Ed. 4. 37. 37 H. 8. 4. 5. A President is in the 22 Ed. 4. where a Prohibition was granted for that the Plaintiff might have a Writ of false Judgment at the Common Law The Record and Report agree the words of the Record are 6. That Officers and Clerks as well in the common-Common-Pleas as in the Exchequer c. may have by Privileng of Court a Prohibition without Original a fortiori the Law it self shall have greater Priviledge than an Officer or Clerk and to enforce the party to bring an Action will be a means to multiply Suits to no end 4 Ed. 4. fol. 37. every Prohibition is as well at the Kings Suit as at the Parties 28 Ed. 3. 97. false Latin shall not abate nor excommunication in the Plaint is no Plea 15 Ed. 3. Title Corrody 4. Note Though the Original cause was in the Kings Bench for Corrody Excommunication is no Plea in disability of the Plaintiff Vide 21 H. 7. 71 Kelway 6. quare non admissit 4 Ed. 4. 37. for not delivery of a Libel in the Common Pleas he shall have a Prohibition by all the Justices So upon 2 Ed. 6. cap. 13. See 38 H. 6. 14. 22. Ed. 6. 20. 13 Ed. 3. Title Prohibition 11. 32 H. 6. 34. An Attorney in the Palace assaulted and menaced the Court shall take a Bill and inquire of it 4 Ed. 4. 36 37. Statham Prohibition 3. Prohibition super articulos title Prohibition pl. 5. gives a Prohibition before Scil. coram Justiciaâ—iis nostris apud Westm Vide F. N. P. fol. 69. b. in a Writ of Pone Register indic coram Justicia iis nost is apud Westm is the Common Pleas F. N. B. 64. d. 38 Ed. 3. 14. Statute 2 Ed. 6. cap. 13. Hales Case in my Reports Many Prohibitions were granted in the
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
Judgment requires long Study and Experience With which his Majesty was greatly Offended and said Then he should be under the Law which was Treason to be said To which I said that Bracton saith Quod Rex non debet esse sub homine sed sub Deo et Iege Mich. 8 Jacob. Regis Robert's Case In this Term in the Case of one Roberts a Prohibition had been granted in a Case upon Substraction of Tythes upon surmise that the Plaintiff being Defendant in the Spiritual Court had but one Witness there to prove his Demise to which the Court said That singugaris Testis is not allowable And upon sight of a Prohibition in the same Case in Hill 3 Eliz. in Banâ—o Regis It was Resolved by Coke chief Justice Et totam Curiam in Communi Banco that Consultation should be granted for divers Reasons 1. It appears by the Register fol. 5. that it is put for a Rule Quod non est consonum rationi quod cognitio accessorii in Curia Christianitatis impediatur ubi cognitio causae principalis ad forum Ecclesiasticum â—â—scitur pertinere and with this agrâ—es 1 R. 3. 4. 2. If such a surmise shall be allowed then in every Case for meer delay such a surmise may be made And when the spiritual Court hath Jurisdiction of the principal Cause they determine the accessory But it was objected That if A. claiming a Lease by B. of a Rectory Libels for substraction of Tythes and the Defendant pleads a former Lease made by B. and C. and the Defendant hath but one Witness in the Case to prove the former Lease if no Prohibition shall be granted the Defendant shall be charged And if C. sue him upon the Statute 2 Ed. 6. the testimony of one only shall be then sufficient and so he shall he twice charged To which it was answered That first the fault was the Defendants that he would not set forth his Tythes and then he shall be charged whosoever takes them But in such the Ecclesiastical Court will upon one good Witness and any concurrent vâ—hement presumption allow of such a proof But if a question arise upon construction of a Statute and the Ecclesiastical Court will Judge of it against the Rule of Law there upon special surmise of it a Prohibition lies And Coke chief Justice cited a notable Judgment Pasch 35 Eliz. in Banke le Roy. Fuller brought a Prohibition against Clements and Wiskard and Fuller counted that himself was Owner of the Rectory of Longham in the County of Norfolk and libelled against Clements before the Bishop of Norwiches Official for substraction of Tythes scil Wheat pendent which Suit Wiskard intervening pro intercesse suo made there allegations against Fuller 1. That the said Rectory was impropriate to the Monastery of Windling and by dissolution thereof came to H. 8. and conveyed it by mean Discent to Queen Elizab. who by Letters Patents granted it to Min and Hall who enfeofâ—ed Bozome who let it to Wiskard for four years and upon proof of his allegations in fine Sentence was given against Fullâ—r and several Costs given to Clements and Wiskard Fuller appeals to the Court of the Arches and there Claims the said Rectory from Halls being seized of it who by his Deed granted the same to Sir Edward Clere before Bozomes Feoffment and that Sir Edward did enfeoff Fuller and offered to prove the Deed made to Sir Edward by one sole Witness which the Ecclesiastical Court would not allow of And Fuller further said That though he had alledged these matters were determinable at Common Law yet they gave Sentence The Defendants to have a Consultation pleaded That Fuller proved the delivery of the Deed by Clere and Mouse but could not prove Livery and Seisin according to the Deed and that therefore Sentence was given without that that the Judges would not admit the proof without other Witnesses upon this Fuller demurred and his Council objected 1. That Wiskard pleads matter determinable meerly at Common Law viz Letters Patents c. and on the other part Fuller Claims an Estate in the Rectory by conveyance at Common Law And the Question in the Court Ecclesiastical being Who hath the best Estate in the Rectory this ought to be tryed by the Common Law for this is the Birth-right of the Subject 2. It was Objected That all matters in Law ought to be determined by the Judges of the Law And in this Case matters of Law arising as if a Rectory be granted by Deed with all Tythes c. and no Livery is made If the Tythes may pass with any Livery this is a question to be decided by the Judges of the Common Law Quod quisque novit in hoc se exerceat 3. It was objected That Wiskard was a meer stranger to the Suit and all his Allegation is Temporal and for that it is a stronger Case to maintain a Prohibition 4. It was Objected That Fuller had but one Witness to prove the delivery of the Deed and in the Ecclesiasticall Law Unus Testis et nullus Testis for which causes it was prayed the Prohibition might stand To which it was answered by Sir Christopher Wray chief Justice Et per totam Curiam to the first Objection That 1. Where the original belongs to the Ecclesiastical Court the determination of all that depends on it belongs to the same Court though the matter be tryable at Law but where the Original matter belongs to the Common Law and there commenced and issue taken upon matter tryable by the Ecclesiastical Law there the Judges of our Law shall write to the Judges of the Ecclesiastical Court to try it and to certify As in action Ancestral if Bastardy be pleaded in the Demandant and upon this Issue is joyned this shall be tryed by the Bishop and his Certificate shall bind So in a Quare Impedit But though such issues are in their nature Tryable by the Law Ecclesiastical yet if the Case was such that the Ecclesiastical Court could not try it then that Justice be not wantâ—ng such Ecclesiastical matter shall be tryed by the Common Law as 4 Ed. 3. 26. But against this was objected the Statute de Articulis Cleri cap. 13. Quod de Idoneitate personâ— persoâ—atae ad beneficium Ecclesiasticum pertineat examinatio ad Judicom Ecclesiasticum upon which it was concluded That the Tryall de idomeitate personae in all Cases belong to Court-Christian To which it was answered and resolved That the Tryal of ability belongs to them but this Tryal must be by examination of the Party 〈◊〉 39 Ed 3. 2. That Earl of Arundâ—ll'â— Case and 4 Ed. 3. 25. 16 Eliz. Dyer 327. So if Bastardy be alledgâ—d in one who is dead Vide 17 Ed. 3. 5. where Bastardy is alledged in the Tenant and one who is a stranger to the Writ who are Sâ—sters Vide 32 Ed. 3. Trial 59. where the Tenant doth alledge Bastardy in himself and the Demandant doth aver him
Mulier Vide 29 Ass pl. 14. b. Eliz. Dyer 226. 228. If the issue be Quod vacavit pâ—r resignationem part of which is Spiritual part Temporal this shall be tryed per paiis vide 9 H. 7. But admission and in iâ—ution though it be alledged in a stranger to the Writ yet this shall be tryed by the Ordinary as appears 7 Ed. 6. 78. 6. in Dyer similia 2. To the second answered and resolved That if upon Consultation with men learned in the Law they give Sentence according to Law this is well done and no Prohibition ought to granted but if they draw the interest of any man ad alîud examen there Prohibition lyes And in the Case at the Barr they well resolved the Law for by the said Livery of the Charter the Tythes do not pass as in gross because the intention of Parties was to pass the entire Rectory by the Feoffment and to pass the Tythes and so dismember the Rectory 3. As to the third Resolved That by the Ecclesiastical Law a stranger may come in pro interesse suo and when they have Jurisdiction of the Original cause of a Suite we ought not to question their proceeding unless they proceed inverso ordine and this ought to be redressed by appeal 4. As to the fourth Resolved That such a surmise That he hath but one Witness is not sufficient to have a Prohibition because the Court Ecclesiastical hath jurisdiction of the Principle And if such surmise shall be sufficient all Suits in the Ecclesiastical Court shall be delayed or quite taken away for such surmise may be made in every Case It was Resolved upon Evidence by Coke chief Justice de Banco inter J. S. who informed upon the Statute of Usury and Smith that the Parties to the supposed Usurious Contract shall not be admitted Witnesses because upon the matter they were Testes in propria causa High-Commissioners Trin. 8 Jacobi Regis Upon a Ha. Cor. by Eliz. Lady Throgmorton Prisoner in the Fleet the Return was The Lady Throgmorton was committed by George Bishop of London and other Ecclesiastical Commissioners till further Order should be taken for her enlargement And the Cause of Commitment was That she had done many evil Offices between Sir James Scudamore and her Daughter the Lady Scudamore Sir James his Wife to make separation between them and detained her from her Husband and upon her Departure after Sentence for Contemptuous words against the Court saying She had neither Law nor Justice And it was Resolved 1. That for detaining the Wife and endeavouring to make separation no Suit can be before the High-Commissioners 2. For detaining the Wife there is remedy by the Common Law 3. That for such an Offence they cannot imprison the Wife 4. It doth not appear that the words were spoken in Court Secondly It is no Court of Record because they proceed according to the Civil Law so the Admiralty Courte and none can be committed for misdemeanor in Court unless the Court be of Record 5. It doth not appear by the Return what that Court was which is uncertain and upon this upon good Consideration she was Bayled But Randall and Hickins were this Term committed by the High-Commissioners because they were vehemently suspected for Brownists And they obtained a Hâ—beas Corpus and were remanded for this that the High-Commissioners have Power to commit for Heresy See my Treatise of the High-Commissioners Power The Lord Aburgavennye's Case In the Parliament a Question was moved by the Lord of Northampton Lord Privy-Seal in the Upper-House That one Edward Nevill Father of Edward Nevill Lord of Aburgavenny which now is in the 2 and 3 of Queen Mary was called by Writ to Parliament and died before the Parliament If he was a Baron or no and so ought to be named was the Question And it was Resolved by the Lord Chancellor the two chief Justices chief Baron and divers other Justices there present That the direction and delivery of the Writ did not make a Baron or Noble untill he did come to the Parliament and then sit according to the Commandment of the Writ for untill that the Writ did not take its effect And in the 35 H. 6. and other Books he is called a Peer of Parliament which he cannot be untill he sit in Parliament which cannot be before the Parliament begin And the Command of the King by such his Writ may by his Supersedeas be countermanded or else the said Edward might have excused himself or waved it or submitted to his Fines And when one is called by Writ to Parliament the Order is That he be apparelled in his Parliament Robes and his Writ is openly read in the Upper-House and he brought into his place by Two Lords of Parliament and then he is adjudged in Law Inter pares Regni ut cum olim Senatores censâ— eligebantur sic Barones apud nos habiti fuerint qui per integram Baroniam terras suas tenebant sive 13. feoda militum et tertiâ—m partem unius Feodi militis quolibet Feodo computo ad 20 l. c. So that by this appears That every one who hath an entire Barony may have of right a Writ to be summoned to Parliament and with this agree our Books una voce That none can siâ— in Parliament as Peer of the Realm without matter of Record 35 H. 6. 46. 48 Ed. 3. 30. b. 48 Ass pl. 6. 22 Ass pl 2 4. Register 287. but now none can be summoned to Parliament by Writ without the Kings Warrant under the Privy-Seal at least But if the King create any Baron by Letters Patents under the Great-Seal to him and his Heirs or to him and to his Heirs of his Body or for life c. there he is a Nobleman presently and he ought to have a Writ of Summons to Parliament of Course and shall be tryed by his Peers if c. Richard the Second created John Beauchampe of Holt Baron of Kidderminster by Letters Patents dated 10. Octob. eleventh year of his Reign where all others before him were created by Writ Trin. 8 Jac. Regis Oldfield and Gerlins Case In this Term Thomas Oldfield came out of the Dutchy Court and before he came into Westminster-Hall with a Knife stabbed one Ferraâ— a Justice of Peace of which he dyed And if Oldfield should have his right hand cut off was the question before the two Chief Justices chief Baron Walmesly Warberton Foster and divers other Justices And it was Resolved No for it ought to be in Westminster-Hall Sedentibus Curiis as appears 3 Eliz. Dyer 188. 41 Ed. 3. Title Coron 280. And a President was shewn An. 9 Eliz. in Banke le Roy where one Robert Gerlin smote one in White-hall sitting in the Court of Requests and was Fined and Ransomed But if one smite another before the Justices of Assize there his right hand shall be cut off as appears 22 Ed. 3. fol. 13. 19 Ed. 3. Title Judgment And
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.
and being amongst them of the Grand Inquest though not returned as one of them of his malice and upon his own knowledge as he pretended indicted 17 honest men upon divers penal Laws Some of the Justices looking over the Bills and seeing so many honest men indicted as they supposed malitiously demanded what Evidence they had to find the said Bills and they answered By the Testimony and Cognizance of one of themselves viz. Robert Scarlet And upon Examination it appeared that the said Robert Scarlet was not returned but had procured himself to be sworn by Confederacy as aforesaid For which Offence he was indicted at the Summer Assizes following 10 J c. held at Buâ—y upon the Statute 11 H. 4. c. 9. And he pleaded not guilty All the especiall Matter aforesaid being proved he was found guilty by a substantial Jury And in this Case divers Points were considered 1. Whether Justices of Assize have power to punish this offence or no And it was held affirmatively scil by force of their Commission of Oyer and Terminer And if the Act be indefinite or general and doth not give Jurisdiction to any Courts in special the general words of Commission of Oyer and Terminer extends to it Vide 7 Eliz. Dyer Commissioners of Oyer and Terminer may inquire of Offences against Penal Statutes unless the Statute appoint them to be determined in any Court of Record And the Opinion there that in any Courts of Record are restrained to the four ordinary Courts at Westminster is not held for Law as the Statute 5 Ed. 6. 14. against Forestallers c. gives the Penalty to be recovered in any Court of Record And Justices of Assize in regard of their Commission of Oyer and Terminer have always enquired thereof So the 33 H. 8. 9. of unlawful Games And of Woods 35 H. 8. c. 17. and many others 2. The second consideration was upon the Statute 11 H. 4. cap. 9. and it was held that Robert Scarlet was an Offender within that Statute because knowing he was not returned of the Grand Inquest procured himself by false Conspiracy to be sworn as aforesaid 3. The third Consideration was had of 3 H. 8. 10. which alters the Act of the 11 H. 4. in part as to denomination But in regard that still by that Act none can be of any Grand Inquest but by Return of the Sheriff And for this the Act 3 H. 8. 10. hath not altered the Law as to the Offence of Robert Scarlet 4. The said Act 11 H. 4. hath made a new Law viz. That any Indictment found against the said Act shall be void So that this may draw in Question all the Indictments found at the same Sâ—ssions And for this Judgment was given that he should be fined and imprisoned Trin. 10 Jac. Regis Baker and Hall's Case Note Upon Consideration of the Statute 3 H. 7. c. 14. It was Resolved by Coke Chief Justice of the common-Common-Pleas Yelverton Williams Snig and others That whereas it is provided that what person soever takes a Woman so against her Will c. in respect of this Word So which hath relation to the Preamble It was agreed by all that if the Wife hath nothing nor is Heir apparent it is out of the Statute for iâ— would not have been so curious in describing the Person and all in vain And Clergy is taken away by the 38 Eliz. cap. 9. for Principals or Procurers before Vide Stamf. so 37. b. and so was the Law taken 3 4 P. M. Vide Lamb 252. Note Receivers of the Woman are Principals but not the Receivers of them who took the Woman Vide Lamb. bid Note I saw a Report in Queen Mary's time upon the 50 Ed. 3. cap. 5. and 1 R. 2. cap. 15. concerning arresting Priests in Holy Church that the said Statutes are but in affirmance of the Common-Law and 't is there held that eundo redeundo morando for to celebrate Divine Service the Priest ought not to be arrested nor any who aid him in it and that the Party grieved may have an Action upon the Statute 50 Ed. 3. For though an Act doth not give an Action yet Action lyeth upon it 7 H. 6. 30. c. 2 H. 5. and 4 Ed. 4. 37. Vide Register in breve super Stat. Note If a man be convicted or hath Judgment of Death for Felony he shall never answer by the Common Law to any Felony done before the Attainder so long as the Attainder remains in force Vide 8 Eliz. c. 4. 18 Eliz 7. And at this day if a man be adjudg'd to be hang'd and hath his Pardon he shall never answer to any Felony before for he cannot have two Judgments to be hang'd Aliter If the first Attainder by Errour be reversed Vide 10 H. 4. Coroâ— 227. Case del Appeal c. A man seized of a Mannor to which he hath stray appendant by Prescription c. by his Bayley he seizeth an Ox as a Stray in the Mannor and makes Proclamation according to Law and within the Year and Day le ts the Mannor with all Royalties c. And Dyâ—r Sergeant moved the Court who should have the Stray And Brown Justice was of Opinion that the Lâ—ssor should have it But all the Justices were against him that the Lessee shall have it because the property of the Stray is not altered before the Year and Day and till then the Lord or the Mannor hath but the custody of it In Dr. Hutchinson's Case Parson of Kenn in Devonshire It was Resolved per totam Curiam That if any shall receive or take Money Fee Reward or other Profit for any Presentation to a Benefice with Cure although in truth he which is presented be not knowing of it yet the Presentation Admission and Induction are void per expressa verba Statuti 31 H. 8. cap. 6. and the King shall have the Presentation hac vice But if the Presence be not cognizant of the Corruption then he shall not be within the Clause of Disability in the same Statute and so it was Resolved by all the Justices in Fleetstreet Mich. 8. Jac. so 7. vide verba statuti Hugh Manneyes Case In an Information in the Exchequer against Hugh Manney Esque the Father and Hugh Manney the Son for Intrusion and cutting a great number of Trees in Merionâ—th shire the Defendants plead not guilty and one Rowland ap Eliza produced as a Witness for the King deposed upon his Oath that Hugh the Father and Son joyned in sale of the said Trees and commanded the Vendees to cut them down The Jury found upon this great Damages for the King and Judgment was given and Execution had of a great part Hugh Manney the Father exhibited a Bill in the Star-Chamber at Common-Law against Rowland ap Eliza and assigns the Perjury in this That the said Hugh the Father did never joyn in Sale nor command the Vendees to cut the Trees and Rowland ap Eliza was convict
in the Court for such cause And the King would know their Opinions The Judges took time till this Term and then Fleming Chief Justice Tanfield Chief Baron Saig Altham Crook Bromley and Dodderidge Yelverton and Williams Justices being dead since last Term did deliver their Opinions to the Lord Chancellor That the Presidents of each Court are sufficient Warrant for their Proceedings in the same Court and for a long time and in many Successions of Reverend Judges Prohibitions upon Information without any other Plea pending have been granted Issues tryed Verdicts and Judgments given upon Demurrer All which being in force they unanimously agreed to give no Opinion against the Jurisdiction of the Common-Bench in this Case See my Treatise of the Jurisdiction of the Common-Bench in this Point Hill 10 Jac. Regis Parliament in Ireland The Lords of the Councel did write to the two Chief Justices and Chief Baron to look into Poynings Act made 10 H. 7. in Ireland and to consider thereof and certifie what shall be fit to be held concerning the same their Letter bore date Ultimo Janii 1612. Upon which in this Term the said Chief Justices Chief Baron Attorney and Sollicitor General were assembled two days at Sergeants Inne And they considered not onely of the said Act 10 H. 7. c. 4. called Poynings Act but also of an Act made in Ireland 3 4 P. M. c. 4. Entituled An Act declaring how Poynings Act shall be expounded and taken for by the said Act 10 H. 7. it is provided That no Parliament be hereafter holden in Ireland but when the Kings Lieutenant and Councell there first certifie the King under the Great Seal of that Land the causes c. and such causes c. affirmed by the King and his Councel to be good and expedient for the Land and his Licence thereupon c. A Parliament to be holden after the former before c. And any Parliament holden contrary c. to be void in Law Upon which Act divers Doubts were conceived 1. And first Whether the said Act 10 H. 7. does extend to the Successors of H. 7. the Act speaking onely of the King generally and not his Successors 2. If the Queen Mary were within the word King and both were held affirmatively for the word King being spoke indefinitely does extend in Law to all his Successors And this is so expounded by the Act 3 and 4 P. and M. viz. That the said Act 10 H. 7. shall extend to the King and Queens Majesty her Heirs and Successors Secondly where Povnings Act sayes the Kings Lieutenant and Councel the said Act 3 and 4 P. and M. explains it to extend to all other Officers the King shall Depute by what Name soever 3. The greatest Doubt was upon these words of Poynings Act And such Causes Considerations and Acts affirmed by the King and his Councel to be good and expedient for the Land c. Whether the King may make any change or alteration of the Causes c. which shall be transmitted hither from the Lieutenant and Councel of Ireland for that it is not affirmative but correction and alteration of them and therefore it was necessary to explain that the Act 3 and 4 P. and M. was in these words Either for the passing of the said Acts and in such form and tenor as they should be sent into England or else for the change or alteration of them or any part of them 4. Another Doubt arose from these words That dâ—ne a Parliament to be had If at the same Parl. other Acts which have been affirmed or altered here may be Enacted there which is explained by the said last Act in these words viz. For passing and agreeing upon such Acts and no others as shall be returned c. 5. A fifth Doubt arose from the same words Whether the Lieutenant and Councel of Ireland after the Parliament begun and pendente Parliamento may upon debate there transmit any other Considerations c. the which said Act 3 and 4 P. and M. is by express words explained they may And it was unanimously Resolved That the Causes Considerations and Acts transmitted hither under the Great Seal of Ireland ought to be kept in the Chancery in England and not be remanded 2. Iâ— they be affirmed they must be transcribed under the Great Seâ—l and so returned into Ireland 3. If the Acts transmitted hither be in any part altered or changed here the Act so altered must forthwith be returned under the Great Seal of England for the Transcript under the Irish Great Seal to remain in Chancery here shall not be amended but the Amendment shall be under the English Great Seal See 10 H. 6. 8. which begins Mich. 18 H. 6. Rot. 46. coram Rege how a Parliament was holden there before Poynings Act. See also another Act made in Ireland the same 10 H. 7. c. 22. vide R. 3. 12. Hibernia habet Parliamenta faciunt leges nostra statuta non ligant â—os quia non mittunt milites ad Parliamentum sed personae coâ—um sunt subjecti Regis sicut inhabitantâ—s Calinae Gascogniae Guienae But question is made of this in some of our Books vid. 20 H. 6. 8. 32 H 6 25. 1 H. 7. 3. 8 H. 7. 10. 8 R. 2. Precess 204. 13 Ed. 2. Tit. Bastard 11 H. 47. 7 Ed. 4. 27. Plow Comment 368. 13 Eliz. Dyer 35. 2 Eliz. Dyer 366. Calvins Case 7th of my Reports 226. 14 Ed. 3. 184. A Prâ—bend in England made Bishop of Dublin in Ireland his Prebendary is voâ—d See the Sâ—atute of Ireland c. That the Acts of Parliament made in England since the 10 H. 7. do not hind them in Ireland but all made in England before the 10 H. 7. by the Act made in Ireland 10 H. 7. c. 22. do bind them in Ireland Note Cambden King at Arms told me that some held if a Baron dyes having Issue divers Daughters the King confer the Dignity to him who marryes any of them as hath been done in divers Cases viz. In the case of the Lord Cromwel who had Issue divers Daughters And the King did confer the Dignity upon Burchier who marryed the youngest Daughter and he was called Cromwel and so in other Cases Note by Linwood it appears by the Canons Ecclesiastick none may exercise Ecclesiastick Jurisdiction unless he be within the Orders of the Church because none may pronounce Excommunication but a Spiritual Person But now by the 37 H. 8. c. 17. a Doctor of Law or Register though a Lay-man may execute Ecclesiastical Jurisdiction No Ecclesiastical may cite a Church-Warden to the Court but so as he may return home the same day Also the Canons limit how many Courts Ex Officio they may have in a year Mich. 11 Jac. Regis Note If a man give to one of his Children a certain sum in his life and after dyes though this is not given as a Child 's full Portion yet it
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
Helenam ideo ipsi c. Out of which Record these things are to be observed 1. Though it is Enacted by the Stat. West 2. cap. 21. That in this Case Justiciarii c. puniant appellatorem per prisonam unius Anni c. so that they were not Bailable yet quia eadem Helena praegnans fuit in periculo mortis she was let to Bayl to have her Body 15 Mich. ad satisfaciendum praedicto Laurentio et aliis c. And the Reason of this is because the Common-Law requires in every Case conveniency and it is inconvenient a Woman with Child should remain in Common-Gaol And the Judges of the Common-Law ought to know what the Moral Poet spoke Redâ—ere personae sit convenientia cuique and agrees with Advice of Bracton lib. 2. cap. 2. 2. That the Defendants recover their Damages either wholly against the Principle or wholly against the Abettors and with this agrees Ed. 4. 3. 3. Though the Statute saith Restituant Appellatores damna c. yet the Damages shall be singulatim assessed for as the Defamation of one may be greater than another so the Damages of one may be greater than another 4. Though the Appellor be not sufficient to pay yet his body shall be taken ad satisfaciendum Quia qui non habet in aere luat in corpore 5. Though the Jurors in the Appeal have found the Defendants Abettors yet insomuch as they are strangers to the Original they shal not be concluded Quia res inter alios actae alteri nocere non debent Vide the Book of Entries Title Appeal Divisione Damages 1 2. Vide Placita coram rege apud Ebor. in Crast Sancti Trin. 7 Ed. 3. 44. Divisione Indictments are very well worth observing Duresse per Gaoler See there divers sorts of Presentments as of Wollingover John Alnner Thomas Ballivus de Flaxwel Laughton Thomas de Mandon Ballivus de Boby of Grafton Thomas Carleton Under-Sheriff of the County of Lincoln and Hugo de Baxter c. False Affidavits In an Action suâ—le case it was Resolved per totam Curiam That iâ— a Sumner return one certified upon his Oath in Court-Christian where in truth he was not and thereon he is pronounced contumax and so becometh excommunicate he shall have his Action sur le case for here is damaum et injuria And it was Resolved That Perjury by which Damages do accrew may be punished as a Misuemeanour at the Suit of the King and also the Party may have his Action upon the Case for Perjury may not be committed with Impunity And for that Reason If Jurors themselves use Perjury an Attaint â—yes by the Common-Law as appears by Glanvil lib. 2. cap. 29. 15 H. 8. Title Attaint 75. 6 H. 3. ibid. 73 75. and in the time of Ed. 1. â—ttaint 70. West 1 cap. 38. Vide F. N. B. 109 Vid. 27 H. 6. 25. In like manner it was agreed That if one make a false Affidavit by which the Party is Arrested with Process of Contempt he may have an Actioâ— sur le case and recover Damage And though the Court-Christian may punish pro salute animae yet they cannot award Damages to he party And though the matter be meerly Ecclesiastical yet if the Party grieved hath Damages either by wrongful Proceedings of the Judge or Mâ—sfeasans or Nonfeasans or falsity of any Minister c. the Party grieved may have an Action sur le câ—se and recover Damages Doctor and Stud. 118 119. Action sur le Case lyes against the Ordinary for a wrongful Excommunication touching any thing out of his Jurisdiction c. So in Fitz. 47 H. 6. 8. If an Arch-Deacon refuse to induct the Clerk c. he shall have Action sur le case Which was affirmed for good Law by all the Court with which agrees 26 H. 8. 3. a. If a man proceed against a Prohibition the Party may have an Action upon the Case against him for prosecuting in Court-Christian Vid. Trin. 20 Ed. 3. Rot. 46. in the Treasury Richard Tresil's Case So the like Pasch 13 Ed. 3. Rot. 78. Philip de Harâ—eshals Case Hill 32 Ed. 3. Rot. 78. and Trin. 37 Ed. 1. and Mich. 29 Ed. 3. Rot. 19. similiter and divers other Records you may have See in my Book of Presidents Pasch 14 Jac. Regis An Habeas Corpus to the Marshal of the Admiralty granted in Hillary Term last past for Haukridge Prisoner in the custody of the said Marshal who did return Quaedâ—m causa spolii c. contra Haukridge pendet indecisa pro judicio sententia paratus c. Qui quidem Will Haukridge remanet donec antedict causa per praefat Daniel Dun suerit hoc est causa And also upon another Habeas Corpus he made such a Return and otherwise Parata sit c. Which the Court took to be very insufficient and gave divers days to amend the Return and to shew the cause of Delay and why Sentence was not given and the Marshal would not amend his Return Upon which the Party being in Prison 16 or 18 Weekes always the Return was est parata c. And after in another Writ returnable Crast Ascentionis was another Return of Parata c. without shewing cause of Delay The Return also was insufficient because Quaedam causa spolii civilis maritima quae coram c. which is too general for two Causes 1. Because spolii is uncertain and ought to be specified in some more certainty besides it shews not the value of the Goods 2. That Maritima est super littus or in portu maris and yet the Admiral hath not Jurisdiction Super littus maris or in portu because they are infra corpus comitat And so it was adjudged in Lacies Case Dyer 15 Eliz. the Abbot of Ransey's Case 15 Eliz. Dyer fol. 236. Pasch 17 Eliz. in Scaccar ac contra Digges for which cause he ought to have said Super altum mare intra Jurisdictionem Admiralli See the Stat. 13 R. 2. c. 5. 2 H. 4. c. 11 19 H. 6. 7. For the first all the Court Resolved that it was insufficient also there was shewn no time of the spoyl And for this in the same Term the said Haukridge was bailed in open Court till the next Term according to the Books 6 H. 6. 44. 28 H. 8. c. 15. Note It was said by some That when Judgment is given that one shall be hanged till he be dead the King cannot alter the Judgment and command that he shall be beheaded for the Execution ought to be conform to the Judgment and with this accords 35 H. 6. fol 58. and Stamf. lib. 1. fol. 13. Vide 27 Ass pl. 41. F. N. B. 144. 22 Ass pl. 49. Duke of Somersets Case and the Lord Sturtons Case in Queen Mary's time and the Lord Datres his Case in H. 8. both which were hanged for Felony It was Resolved also That King H. 8. could not by
you the said Thomas Edwards are no Graduate 4. That you knowing the Premisses notwithstanding you the said Edwards c. of purpose to disgrace the said Dr. Walton c. did against the Rules of Charity write and send to the said Dr. Walton a leud and uncharitable Letter taxing him therein of want of Skill and Judgment in his Profession c. And so far you exceeded in your said uncivil Letter that you told him therein in plain terms He may be crowned for an Ass c. 5. And further to disgrace the said Mr. Dr. Walton in the said University did publish a Copy of the said Letter to Sir William Courtney and others and in your Letter was contained Sipsâ—lam lichenen mentegram Take that for your Inheritance and thank God you have a good Father And did you not covertly imply thereby that the said Dr. Waltons Father late Bishop of Exeter was subject to the French Pox and Leprosie c. 6. That in another Letter you sent to Dr. Maders Dr. in Physick also you named Dr. Walton and made a Hoâ—n in your Letter Whether you meant not thereby that they were both Cuckolds or what other meaning you had 7. You knowing Dr. Walton to be one of the High-Commission in the Diocess of Exeter and having obtained a Sentence against him in the Star-Chamber for contriving and publishing a Libel did triumphingly say You had gotten on the Hip a Commissioner for Causes Ecclesiastical c. which you did to disgrace him and in him the whole Commission in those Parts 8. That after the Letter Missive sent to you you said arrogantly That you cared not for any thing this Court can do for that you can remove this Matter at your pleasure And this Term it was moved to have a Prohibition in this Case and the matter was well argued And at last it was Resolved by Coke Chief Justice Warberton Daniel and Foster Justices That the first six Articles were meerly Temporal and in truth is in the nature of an Action upon the Case for Scandal of Dr. Walton in his Profession of Physick and therefore for them a Prohibition doth lye for divers Causes 1. Because the Persons and Matters are Temporal 2. Because it is for Defamation which if any such shall be for the same it ought to begin before the Ordinary because it is not such an enormous Offence which is to be determined by the High-Commissioners nor doth Suit lye before them for calling the Doctor Cuckold as in the seventh Article And 't was said the Commissioners ought to incur the danger of Praemunire 2. It was Resolved That the Ecclesiastical Judge cannot examine any man upon his Oath upon the Intention and Thought of his Heart for cogitationis poenam nemo â—moret for the Proverb saith Thought is free And therefore for the 6th and 7th were Resolved as well for the Matter as for the Form to be such to which the Defendant was not compelled to answer And that to the 7th he might justifie the same because it appears upon his own shewing that the Doctor was sentenced in the Star Chamber Also the Libel is meer Temporal and if it were Spiritual such a Defamation is not examinable before the High-Commissioners As to the last Article it appeareth now by the Judgment of this Court that he might well justifie the said Words Also the Commissioners shall not have any Conuzance of Scandal to themselves they being Parties and such Scandal punishable by the Common-Law as was resolved in Hales Case in Dyer and in my Book of Presidents Hales Indictment c. The Bishop of Winchester being Visitor of Winchester-School and other his Collegues Anno 5 Car. cited the Usher of the said School by force of the said Commission to appear before them c. for which they incurred the danger of Praemunire So did the Bishop of Canterbury and his Collegues for citing one Humphry Frank Master of Arts and School-Master of Sevennock School c. and proceeding c. Mich. 6 Jac. Regis Taylor and Shoyl's Case Taylor informed upon the Statute 5 Eliz. cap. 4. Tam pro Dom. Râ—ge quaâ— prose in the Exchequer That the Defendant had used the Art and Mystery of a Brewer c. and averred That Shoyl the Defendant did not exercise the Art or Mystery of a Brewer at the time of making the Act nor had been Apprentice 7 years c. The Defendant demurred in Law upon the Informaâ—â—on and Judgment was given against him by the Barons And now in this Term upon a Writ of Errour the Matter was argued at Sergeants Inne before the two Chief Justices And two matters were moved 1. One That a Brewer is not within the said Branch of the said Act for the words are That it shall not be lawful to any Persons other than such as now use lawfully any Art Mystery or Manual Occupation to set up or use any Art Mistery or Manual Occupation except he shall have been brought up therein 7 years at least as an Apprentice And 't was said That the Trade of a Brewer is not any Air Mistery or Manual Occupation within the said Branch because it is easily and presently learned and needs not 7 years Apprenticeship to learn the samâ— it being every Country Housewifes Work And the Act of H. 8. is That a Brewer is not a Handicraft Artificer 2. It was moved That the said Averment was not sufficient for it ought to be as general as the Exception in the Statute is 1. To the first it was Resolved That the Trade of a Brewer viz. To hold a Common Brewhouse to sell Beer or Ale to another is an Art and Mystery within the said Act for in the beginning of it it is Enacted That no Person shall be retained for less time than a whole year in any the Services Grafts Mysteries or Arts of Cloathing c. Bakers Brewers c. Cooks c. Upon which words in the said Branch the Information is grounded Also because every Housewife brews for her private use so also she bakes and dresseth meat yet none can hold a Common Bakehouse or Cooks Shop to sell to others unless he hath been an Apprentice c. And the Act 22 H. 8. c. 13. is explained That a Brewer Baker Surgeon and Scrivener are not Handicrafts mentioned in certain penal Laws but the same doth not prove but they are Arts or Mysteries 2. As to the second it was Resolved That the Intention of the Act was that none should take upon him any Art but he who hath Skill or knowledg in the same for Quod quisque norit in hoc se exerceat And so the first Judgment was affirmed Mich. 6 Jac. Regis In the common-Common-Pleas The Case of Modus Decimandi Sherly Sergeant moved to have a Prohibition because a Parson sued to have Tythes of Sylva Coedua under 20 years growth in the Weild of Kent where by the Custom no Tythes were ever paid of any Wood And if
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-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
receive any diminution of such Reverence and Respect in our Places which our Predecessors had We shall not be able to do You such acceptable Service as they did The state of the Question is not in statu deliberativo but in statu judiciali it is not disputed de bono but de vero non de lege fienda sed de lege lata Not to devise or frame new Laws but to inform You what Your Law of England is And it was never seen before that when the Question is of the Law that your Judges of the Law have been made Disputants with their Inferiours that daily plead before them in the several Courts at Westminster And though we are not afraid to dispute with Mr. Bennet and Mr. Bacon yet this Example being primae impressionis and your Mâ—jesty detesting Novelties We leave it to your Princely Consideration whether you will permit our answering in hoc statu judiciali But in obedâ—ence to your Majesties Command We will inform your Majesty touching the said Question which We and our Predecessors before Us have oftentimes adjudged upon Judicial Proceedings in your Courts of Justice at Westminster which Judgments cannot be reversed or examined for any Errour in Law if not by a Writ of Errour in a more High and Supream Court And that this is the antient Law of England appears by the Stat. of 4 H. 4. c. 22. And We being commanded to proceed all that was said by Us the Judges was to this effect That the Tryal de modo Decimandi ought to be by the Common-Law by a Jury of Twelve Men it appears in three Manners 1. By the Common-Law 2. By Acts of Parliament 3. By infinite Judgments and Judicial Proceedings long times past without interruption But first it is to see what is a Modus Decimandi Now Modus Decimandi is when Lands Tenements or Hereditaments have been given to the Parson and his Successors or an Annual certain Sum or other Profit alwayes time out of mind in full Satisfaction and Discharge of all Tythes in kind in such a place and such manner of Tything is now confessed by the other Party to be a good Bar of Tythes in Kind 1. That Modus Decimandi shall be tryed by the Common-Law and therefore put that which is the most common Case That the Lord of the Mannor of Dale prescribes to give to the Parson 40 s. yearly in full Satisfaction and Discharge of all Tythes growing within the said Mannor of Dale at the Feast of Easter The Parson sues the Lord of the Mannor of Dale for his Tythes of his Mannor in kind and he in Bar prescribes ut supra The Question is If the Lord of the Mannor of Dale may upon that have a Prohibition for if the Prohibition lye then the Ecclesiastical Court ought not to try it 1. First The Law of England is divided into Common-Law Statute and Customs and therefore the Customs of England are to be tryed by the Tryal which the Law of England appoints 2. Prescriptions by the Law of the Holy Church and by the Common-Law differ in the times of Limitation and therefore Prescriptions and Customs of England shall be tryed by the Common-Law See 20 H. 6. f. 17. 19 E. 3. Jurisdiction 28. The Bishop of Winchester brought a Writ of Annuity against the Arch-Deacon of Surrey and declared That he and his Successours were seized by the Hands of the Defendant by Title of Prescription and the Defendant demanded Judgment is the Court would hold Jurisdiction between Spiritual Persons c. Stone Justice Be assured That upon Title of Prescription we will there hold Jurisdiction And upon that Wilby Chief Justice gave the Rule Answer Upon which it follows That if a Modus Decimandi which is an Annual sum for Tythes by Prersciption comes in Debate between Spiritual Persons that the same shall be tryed here 32 E. 2. Jurisdiction 26. There was a Vicar who had onely Tythes and Oblations and an Abbot claimed an Annuity or Pension of him by Prescription and it was adjudged That the same Prescription though between Spiritual Persons shall be tryed here Vide 22 H. 6. 46. 47. 3. See the Record 25 H. 3. cited in the Case of Modus Decimandi before and see Register fol. 38. 4. See the Stat. of Circumspecte agatis Decimae debitae seu consuctae which proves that Tythes in kind and a Modus by Custom c. 5. 8 E. 4. 14. and F. N. B. 41. g. A Prohibition lyes for Lands given in discharge of Tythes 28 E. 3. 97. a. There was a Suit for Tythes and a Prohibition lyes 6. 7 E. 6. 79. If Tythes are sold for Money by the Sale the Things Spiritual are made Temporal And so in the Case de modo Decimandi 42 E. 3. 12. agrees 7. 22 E. 3. 2. Because any Appropriation is mixed with the Temporalty otherwise of that which is meer Temporal So it is of reall Composiâ—ion where the Patron ought to joyn Vid. 11 H. 4. 85. 2. Secondly By Acts of Parliament 1. The said Act of Circumspecte agatis that gives power to the Ecclesiastical Judge to sue for Tythes first due in Kind or by Custom viz. Modus Decimandi So as by that Act though the Yearly Sum soundeth in the Temporalty which was paid by Custom in discharge of Tythes yet because the same comes in the place of Tythes and by Constitution the Tythes are changed into Money and the Parson hath not any remedy for the same which is the Modus Decimandi at the Common-Law For that cause the Act is clear that the same was a Doubt at the Common-Law And the Stat. of Articuli Cleri cap. 1. If that corporal punishment be changed into poenam pecuniariam for that Pain Suit lyes in the Spiritual Court For which see Mich. 8 H. 3. Rot. 6. in Thesaur And by the 27 H. 8. cap. 20. It is Enacted That all Subjects of the Realm according to the Ecclesiastical Law and after the laudable Usages and Custom of the Parish c. shall yield and pay his Tythes c. and for substraction thereof may by due process c. compell him to yield the Duties and with that in effect agrees 32 H. 8. c. 7. By the 2 Ed. 3. c. 13. it is Enacted That all the Kings Subjects shall henceforth truly and justly without Fraud c. divide c. and pay all their Predial Tythes in their proper kind as they rise c. And always when an Act of Parl. commands or prohibits any Court be it Spiritual or Temporal to do any thing Spiritual or Temporal if the Stat. be not obtained a Prohibition lyes as upon the Stat. de artic super chart cap. 4. Quod communio Placita non tenentur in Scaccario A Prohibition lyes to the Court of Exchequer if the Barons hold a common Plea there as appears in the Register 187. b. So upon the Stat. West 2. Quod inquisitioâ—â—es quae magnae sunt examinationis non
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
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-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
assigned in the Ve Fa which was certified by Writ of Certiorari and upon this Writ no Return was made upon the Back of the Writ which is called Returnum Album And for that Cause this Easter Term the Judgment was reversed Trin. 7 Jac. Regis In Cur. Wardorum It was found by Writ of Diem clausit extremum after Roger Westcots death that the said Roger the day that he dyed was seized of and in the moiety of the Mannor of Trewalliard in his Demesne as of Fee and so dyed seized and that the moiety of the said Mannor 19 E. 3. was holden of the then Prince as of his Castle of Trematon parcel of his Dutchy of Cornwall by Knight-Service as appears by a certain Exemplification of Trematon for the said Prince made 9 Martii 19 E. 3. And the Words of the Extent were Willielmus de Torr tenet duo feoda et dimid Milit. apud Picke Stricklestombe Trewalliard per servitium militare reddit inde per annum 8 d. And it was Resolved by the two Chief Justices and Chief Baron That the Office concerning the Tenure was insufficient and void for the Verdict of a Jury ought to be full and direct and not with a prout patet for now the force of the Verdict lyes upon the Extentâ— which if it be false he who is grieved shall have no remedy by any Traverse for they have not found the Tenure indefinite which may be Traversed but with a prout patet which makes the Office in that Point insufficient And upon that a melius inquirendum shall issue And herewith agrees F. N. B. 255. FINIS THE TABLE A. AUrum Reginae what and what right the Queen hath to it 19 Alienations by Bishops when voidable by their Successors and when the King or Queen may void them 75 76 Admiralty Jurisdiction thereof is no Court of Record 82 83 84 85. 88 89. 109. 199. 200 201 Absence takes not away a Title of Honour and why 111 112 113 Affidavits false when how and from whom punishable 134 135 Arches Court its Jurisdiction 147 Arch-Bishop of Canterbury his power to act and in what cases 148 149 150 151 Apprentice none may keep a shop c. or set up a Trade c. unless he have served seven years 154 155 Apples whether within the Act for ingrossing and what within that Act 160 B. Bishops when lawfull and their Authority what and whence derived 8 9 Buggery what and how punishable 36 37 Baron who shall be said to be a Baron of Parliament and in what cases 73 74 Benevolence the nature thereof and how may be imposed 124 125 Burgage Tenure what and if tenant in Burgage shall pay aid to the King to make his Eldest Son Knight 169 170 171 172 Bridges who ought to repair them 176 177 C. Custome whence to be paid and of what 16 17. 33 Commissioners High Commissioners their power 17 18. 47 48 49 50 51 52. 72 73. 87 88 89 90 Conspiracy where such action lies for what and against whom 22 23 24. 95 96 97 Commissions what of them are against Law e contra 29 30 31 32. 93 94 Consultation where grantable 43. 46. 67 68 69 70 71 Court Christian their Power 44 Court of Common-Pleas their Power and Antiquity 60 61. 113 114 Convocation authority thereof 76 Contempt what shall be said a high contempt of the King and how punishable 100 101 Chester Chamberlain there his power 118 119 Court what judgement shall be given when the Court is divided in opinion 123 124 Contract what shall be said an intire Contract 205 206 Common when suspended or discharged e contra 214 215 Custome where and how available 216 217 218 219 D. Dignity the King may erect any name of Dignity that was not before or transfer it 85 86. 116 117 Deed obtained by Covin shall not bind 95 Duresse per Gaoler 133 Dower what a barre thereto e contra 161 162 163 164 165 F. Forrests what so properly and what may be done therein 20 21 First-Fruits and Tenths given to the Crown 46 47 Ferry-man when he may throw goods over boord 65 Felony while an Attainder in force no Felony before to be answered for 105 Forgery where punishable and how 108 177 178 Felon when his goods are forfeit 127 Fine levied how avoidable and for what 127 128 129 130 131 132 133. 202 Fine to the Lord of a Manor in Copy-hold ought to be reasonable 143 144 145 146 G. Grants antient not to be drawn in question 6 Grants of the Kings when void e contra 91 92 What shall be a good Grant to elect Burgesses to Parliament 126 H. Heresie what how and by whom punishable 58 59 60 Hand when the right hand shall be cut off and for what 74 75 Habeas Corpus 89 90 Haeretico comburendo the Writ therein lyeth 98 I. Impropriations not examinable and why 4 5 Confirmed by time though defective 5 6 Impositions when they may be laid by the King 32 33 34 Justices of Peace when they may award Processe of Outlawry 107 108 Their Power as to making Warrants 136 137 138 L. Libells what shall be judged a Libell and how and where to be punished 35 35 Law of England to be expounded by the Judges of it and none other 147 Lease for Lives when determinable 216 M. Marriages Priests Marriages not void 9 Marches Courts there when erected and why as also the power of Lords President there 51 53 54 55 56 57 58 Man-slaughter what so adjudged 92 93 Modus Decimandi what where suable 155 156 157 158 159 160. 181 182 183 184 185 186 ad 193 Meane profits when to be answered to the King 196 N. Nobility Priviledge thereof what 100 101 102 O. Oath Ex Officio in what cases the Ordinary may examine Ex Officio upon Oath 25 26 27 28 Office where traversable 106 107 Offices new where and upon what cause they may be erected 121 122 123 Office found where void and why 195 196 197. 222 Where an Estoppell 210 211 P. Procedendo in Loquela not allowable 4 Pardons what offences the King may pardon 28 29 Premunire where it lies and where not and against whom 37 38 39 40 41 42. 98 99 Prohibitions in what cases grantable and against whom and by what Courts 43 44 45 46. 52. 60 61 62 63. 66 67. 80 81. 89. 90. 150 151 152 153 Piracy who shall have Pyrates goods 77 Proclamations what may be prohibited thereby and the validity thereof 78 79 80 Priests may not be arrested in Holy Church c. 104 105 Perjury where punishable 106 Poynings Law how it shall be expounded 114 115 116 117 Portion what shall be said a sufficient Childs Portion 117 Palatine County its Jurisdiction 119 Parliament Forms and Orders of Parliament 119 120 Prohibition where it lies and for what and in what not 155 156 157 158 159 160. 172 173 174 175 176. 181 ad 193 Primer seisin where the King shall have it 198 199 Priviledge of Parliament to be determined by the Court of Parliament 212 213 Processe not to be made out of the Star-Chamben neither for damages nor costs 213 Parish Clerke who shall chuse 219 220 R. Recognizances when forfeited and for what 1 2 3 Rent when determinable by the Lessors death e contra 35 36 Robbery where the Hundred may be sued 64 65 Return when insufficient e contra 135 136 Returnum Album 222 S. Stannaries the Kings Prerogative therein 9 10 11 Salt-petre the Kings Prerogative therein in several points 12 13 14 Simony what it is and the penalty thereof 78 Statute what Officers shall be within the Stat. 5 E. 6. 16. for avoiding corruption 82 83 What is an offence within 11 H. 4. 9. 102 103 Slander fined in the Star-Chamber and why 108 Seat in the Church right thereto 109 110 Scandalum Magnatum what and how punishable 138 139 Sewers the Commissiones therein their power and how antient 179 180 T. Tayle Tenant in Tail may forfeit his Estate and when and for what 6 7 Treason what shall so be accounted e contra 14 15 16 Accessary in Treason who 86 Tenure what shall be said a Tenure in Capite c. 140 141 142 Tithes substracted where to be sued for 165 166 167 Tithes to be paid and for what and the neglect thereof how punishable 193 194 Timber-trees Oakes and Ash who may cut e contra 208 209. 216 217 V. Vowes of what validity in Common Law 99 W. Women Maids c. to take and marry against their Wills is Felony 18 19. 104 Wales Justices there not to be constituted by Commission 50 51 Witnesses Testis singularis not allowable 68 Parties to be no witnesses 72 Widow when and how her election shall determine 117 Winding-sheets felony to steal them 118 Wills and Testaments fees for writing thereof and extortion therein how punishable 177 202 Ward who shall be a ward to the King 203 204 205 Words action for words where it lies 207 208. 221 The End
or Demise of his Lands Wards c. these are Contracts concerning the Kings Revenues and there it cannot be said that the Subjects sponte se obligant as to purchase any the Revenues of the King 3. It ought to be sponte super considerationem non ex mera gratia benevolentia subditi Hil. 4. Ed. 1. in Scaccario c. 4. It ought to be sponte super considerationem quae non loâ—ge reventionem seu interesse Coronae in any thing which the King hath As if a Subject give the King a Summe of Money for Licence in Mortmain or to create a Tenure of himself to have a Fair Market Park Chase or Warren in his Mannor there the Queen shall have it for the Subject did this sponte And this Resolution was reported to the King by Popham in the Gallery at White-Hall Pasch 5 Jac. Regis The Case of Forests This Term it was informed to the King that great wrongs were done in the Forest of Leicester in the County of Leicester and in his Forest of Bowland in the County of Warwick parcel of his Dutchy of Lancaster And upon this by Warrant from the King under his Signet all the Justices were assembled to resolve certain Questions to be moved concerning Forests by the Attorney of the Dutchy and the Councel of the other part which were Forests and Chases Which being matter in Fact the Judges could not give their Resolutions but by way of Directions And it was Resolved 1. That if these are Forests it will appear by matter of Record as by Eyres of Justices of Forests Swannimotes Regardors c. But the calling it a Forest in Grants c. proveth it not a Forest in Law 2. Resolved by all the Justices That if there be no Forests in Law but Free-Chases then who hath any Free-hold in them may cut his Wood growing upon it without view or Licence leaving sufficient for Covert to maintain the Kings Games so a common person having Chace in another Soil the Owner may not destroy the Covert nor Browse-wood 3. Resolved That in such a Chase the Owner by Prescription may have Common for his Sheep and Warren for his Coneys by Grant or Prescription but he must not surcharge or make Burrows in other places than hath been used from the time of which nor may he erect a new Warren without Charter 4. Resolved That who hath such a Warren may lawfully build a Lodge upon his Inheritance for preservation of his Game 5. Popham Chief Justice said That in the time of Chief Baron Bett It was adjudged in the Exchequer That a man may prescribe to cut his Wood upon his own Inheritance within a Forest though it was against the Act in the 43 Ed. 1. See the Abridgement Title Forest 21. And this was the Case of Sellenger vide 2 Ed. 2. Title Trespass fol. 9. in the time of Ed. 1. Trespass 239. â—low Com. Dyer 72. 32. 2 Ed. 4. cap. 7. that the Subject may have a Forest Consuetudo ex rationebili causa usitata privat communem Legem And it was held by some that this was but an Ordinance not an Act of Parliament Pasch 5 Jacobi Regis Case of Conspiracy This Term in the Case between Rice ap Evan ap Floyd Plaintiff and Richard Barker one of the Justices of the Grand Sessions in the County of Anglesey and others Defendants 1. Resolved by Popham and Coke Chief Justices the Chief Baron and Egerton Lord Chancellor and all the Court of Star-Chamber That when a Grand Inquest indicts one of Murder or Felony though the Party be acquitted yet no Conspiracy lyes for him against the Inâ—ictors for they are returned by the Sheriff by Law to make Inquiry of Offences upon their Oath for service of the King and Country and are compellable to serve the Law 10 Eliz. 265. And their Indictment or Verdict is matter of Record and called Verum dictum and shall not be avoided by Surmise and no Attaint lyes And with this agrees the Books in 22 Assise 77. 27 Ass 12. 21 Ed. 3. 17. 16 H. 6. 19. 47 Ed. 3. 17. 27 H. 8. 2. F. N. B. 115. a. But otherwise of a Witness for if he conspire out of the Court and after swear in Court his Oath shall not excuse his Conspiracy before for he is a private person 2. Resolved That when the party indicted is convictd of Felony by another Jury upon Not Guilty pleaded there he shall never have a Writ of Conspiracy But when he is upon his Arraignment Lâ—gitimo modo acquietatus But in the Case at Bar the Grand Jury who Indicted one William Price for the Murther of Hugh ap William the Jury who upon Not Guilty pleaded convicted him were Charged Indicted and Convict in the Star-Chamber which was never seen before For if the party shall not have a Conspiracy against the Indictors when Acquitted a multo fortiori when he is lawful Convict he shall neither charge the Grand Inquest nor Jury that convicted him But when a Jury acquits a Felon or Traytor against manifest Proof there they may be charged in the Star-Chamber ne maleficia remanerent impunita But if such Supposals shall be admitted after ordinary Judicial Proceedings it will be a means ad detrahendos Juratores deterrendos a servitio Regis 3. Resolved That Barker who was Judge of Assize and gave Judgement upon the Verdict of Death against the said W. P. and the Sheriff that executed him nor the Justices of Peace that examined the offender and the Witnesses for proof of the murther before the Indictment were not to be drawn in question in the Star-Chamber for any conspiracy nor ought to be charged there with any conspiracy or elsewhere when the party indicted is convicted or Attaint of murther or Felony And though such person were acquitted yet the Judge c. being by Commission and of Record and sworn to do Justice cannot be charged for conspiracy for that he openly did in Court as Judge Justice of Peace c. but if he hath conspired before out of Court this is extrajudiciall but subordinations of Witnesses and false malicious prosecutions out of Court c. amounts to an unlawfull conspiracy And if Judicial matters of Record which are of so high a nature that for their sublimity they import verity in themselves should be drawn in question by partiall and sinister supposall and averments of offenders there will never be an end of Causes but Controversies will be infinite Et infinitum in jure repâ—obatur 47 Ed. 3. 15. 25. Ed. 4 67. and 27 Ass pl. 12. But in a Hundred Court or other Court which is not of Record there averment may be taken against their proceedings 47 Ed. 3. 15. Also one shall never assign for Error that the Jury gave Verdict for the Defendant and the Court entred it for the Plaintiff c. Vide 1 H. 6 4. 39 H. 6. 52. 7 H. 7. 4. 11 H. 7. 28. 1 Mar. Dyer
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
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