custome is here over all the kingdome And yet if any man aske the question by what law wee are governed there is no proper answer other then by the law of England And for the statutes of England generall statutes were received in this kingdome some at one time some at another and all generall statutes by Poynings Act anno 10. Henr. 7. but no other statute or new introducting law untill the same be first received and enacted in Parliament in this kingdome and this may appeare by two declarative statutes the one 10. Henr. 4. the other 29. of Henr. 6. The law of England as it is the best humane law so it is a noble and sociable law and for the more cleere discerning of the truth and equall administration of Iustice it referres many causes to their genuyn and naturall proceedings as Maritime causes to the Court of Admiralty Co. Institutes 260. 361. Stamford 57. b. Co. 5. 106. 107 Constables Case and there the proceeding is by the Civill law Co 8 47. b. Matters beyond the Seas are determined in the Court of constable and Marshall Cookes institutes 391. b. matters of Latin the law referres to Grammarians Com. fol. 122. matters meerely Ecclesiasticall to bee tryed and determined in the proper Courts Coke 7. 43 b 8. Co. 68. 5. Co. 57. 1. R. 3. 4. matters of merchandize to Marchants 34. Henr. 8. Dy 52 54. Many other cases upon this learning are to be found Co. 9. fol. 30. 31. 32. Strat. Marclads case Yet in all these and the like Cases the tryall and determination thereof are bounded and controuled by the rules of the Common-law they are as Rivers which are necessary to run through the land to helpe the inhabitants thereof but if they overflow the bankes the bankes are made higher and stronger to suppresse their violent current so in all the cases aforesaid and the like The Common-law hath limitted the proceedings if they exceede their bounds witnesse the prohibitions in all our Bookes and the statutes of Provision and praemunire and cases there upon in many ages by which it is manifest that the Supreame and governing law are the Common-law Common-customes and statutes of the Realme and the rest but ministers and servants unto it brevia remediana are onely by the Common-law mandatoria may bee in the said other cases 7. Co. Calvins case Dy. 176. So that the answer as to the words in the generall is short and ought to be positive As to the Courtes of equitie they have beene ancient in England and the Courts of eqnity here ought to bee guided by the constant proceedings in England in ages past I meane not by this or that Chancellor but by that naturall and just equity in the Courts here observed This equitie is of absolute necessitie in many cases ipsae etenim leges capiunt ut jure regantur and therefore is included within the law of the Land and not to bee devided from it as out of this writing it may bee inferred As to the case of killing in rebellion to operate an Attaynder if this bee no law in England it cannot bee law here vide Dame-hales case com 263. a. 8. Edw. 3. 20. fitz Dower 106. Cromptons Iurisdiction fol. 84. a. by which it may be urged that it is an Attaynder for that hee prevented the judgement of law by fighting against the Crowne and by his killing therein which ensued his unlawfull and trayterous act but I observe to the contrary the books of 7. Henr. 4. 32 b. Cook 4. 57. Sadlers case I doe confesse that in England statutes may be obsolete as the statute of VVilliam Butler by which the heire may have an action of wast Rastall 5. 21. all the books are contrary and so is the statute of Merton of disparagment as to an action to bee brought for the same so are some antiquated lawes 40. Edw. 3. 42. 42. ass 8. 25. one present aiding to murder was accessary but now is principall 4. Hen. 7. 18. Com. 99. 100. a Vicar could not anciently have an action against a Parson 40. Edw. 3. 28. Finchden the law is now otherwise and so of an entry upon a feoffee with warranty sit fol. 23. 24. in the case of disparagement give the reason because that those statutes and lawes were never used therfore obsolete our case is nothing like for life liberty and propertie being in debate but an obsolete law is no law in force Therefore the answer as to that is defective As to the case of a fellon upon his keeping and terrifying of the people I conceive the answer is uncertaine and dangerous if such a fellon raise an armed power against the Crowne and terrifie that way no doubt this is treason within the statute of 25. Edw. 3. or the equity of it and by the statute of 10. Hen. 7. cap. 13. in Ireland statuto Hiberniae fol. 62. but if such terrifying be without raising armes or by committing the same or the like fellonies it is no more then the case of purse-takers by force in the high wayes of England many a man was terrified thereby in Salisbury-plaine and yet no treason and if there be no statute here which is not in England to make it treason certainly it cannot be treason since the Conquest writ of error have been brought for to reverse Iudgments given in the Kings Bench here in the Court of Kings Bench in England no course here which is contrary to law can alter the law of England therefore to what purpose is a declaration of Iudges here contrary to the law there This writ of error is a writ framed in the Register and appeares by common experience I will offer a notable case which I saw adjudged in the Kings Bench in England Pasc 18. Iacobi for Stafford against Stafford in a writ of error for to reverse a Iudgment given in the Kings Bench in Ireland when Sir VVilliam Iones was Chiefe Iustice here in an ejectione firme for that in the declaration there was contained among other things ducentas acras Montani Sir VVilliam Iones being in England affirmed the course here to have been so and vouched many notable Presidents thereupon an order was conceived that Sir Iames Ley Sir Humphry VVinch and Sir Iohn Denham knights who were formerly Chiefe Iustices here should certifie the course who made report that the course in Ireland was and ought to be in writts originall and Iudiciall to be directed by the Register in pleading to be guided by the books of entries and thereupon the Iudgement was reversed And the Chiefe Iustice Mountague said that if they did not proceed in Ireland according to law they should learne it And so I conclude that the answer to the first Question is insufficient As touching the second Question which is concerning the Oath which this Iudges doe take the question is whether the Iudges of the land doe take the Oath of Iudges And if so c.
Let us therefore examine the course alleadged here in both those points and if it be found to faile in eyther of them it is to be rejected As to the first I cannot find or read any president of it untill of late and the usage of it for a few yeares cannot make it to be cursus Curiae which ought to bee a custome used time beyond the memory of man As to the second it is confessed by the Iudges that they know no law to warrant this course let us see then whether it be against law or standeth with the law and I conceive it is against law for divers reasons First by the common-Common-law if a judgement be given against a man after a verdict of twelve men which is the chiefe and cleare proofe which the law looketh upon or upon a demurrer after solemne argument he shall in the one case have an attainte against the Iury in the other a writ of error to reverse the judgement but in this case by the confession of the justnesse of the sentence all the meanes to reverse the sentence is taken away and therefore contrary to law and reason Whereas by the Common-law fines ought to bee moderate secundum quantitatem delicti in reformationem non in destructionem of late times the fines have beene so high in destruction of the party in the Castle-chamber as his whole family and himselfe if hee did pay the fine should bee driven to begge and without performance of the sentence hee could not be admitted to reverse the sentence in respect of all which howbeit in his conscience he is not guiltie yet to gaine his libertie and save part of his estate hee is necessitated to acknowledge the justnesse of the sentence so that the confession is extorted from him and consequently is against law Third reason if the fine were secundum quantitatem delicti as it ought to be without danger of destruction the reducement of the fine had not been so necessarie and therefore no just ground for this confession Lastly the confession of the party after sentence doth rather blemish the sentence then any way cleare it for the confession comming after the sentence which ought to be just in it selfe can adde nothing to it but draw suspition upon it and in that respect a confession is strayned the racke used by the course of the Civill law in criminall causes to cleare the conscience of the Iudge to proceede to sentence is intollerable in our Common-law And therefore this course being an innovation against law without any reasonable ground the said Iudges ought in their said answer to declare so much to the end a course might bee taken for abolishing the same This answer I will not now draw into question I could wish the rest were answered no worse What power have the Barons of the Court of Exchequer to rayse the respite of homage arbitrarily c. Vnto this they answer that untill the Kings Tenant by knights service in capite hath done his homage the ancient course of the Exchequer hath beene and still is to issue processe to distrayne the tenants ad faciendum homagium or ad faciendum finem pro homagio suo respectuando upon which processe the Sheriffe returnes issues and if the tenant doe not appeare and compound with the King to give a fine for respite of homage then the issues are forfeyted to the King But if the Kings tenant will appeare the Court of the Exchequer doth agree with him to respite his homage for a small fine They say further that it resteth in the discretion of the Court by the rule of the Common-law to lay downe a fine for respite of homage according to the yearely value of the said lands which I conceive to be very unreasonable and inconvenient that it should lye in the power of any to assesse a fine for respite of homage such as to him shall be thought meete in discretion for if so hee may raise the fine to such a summe as may exceed the very value of the lands Neyther hath the same beene the ancient course for it appeares by severall ancient Records and by an Order of the Court of Exchequer made Termino pascae 1607. that there should be payed for respiting of homage for every Towneship xx d. Irish and for every Mannor xxxx d. Irish and that such as hold severall houses acres or parcels of land which are not Mannors nor Towneship shall pay for everie hundred and twentie Acres of Land Meadow and pasture or of any of them xx d. Irish and no more and according to that rate and proportion if a greater or lesser number of Acres and for every house without ground iiij d. Irish and of Cottages or Farme houses which bee upon the Lands no fine to bee payed for them solely alone And I conceive where a man holdeth severall parcels of land of the King by severall homages that in such case he is to pay but for one respite of homage onely and no more for that a man is to doe homage but once and consequently to pay for one respite of homage onely The late course in the Exchequer here hath been contrary whereas in their answer they goe in the Exchequer according to the statute of primo Iacobi cap. 26. in England under their favour they goe cleare contrary for that statute was made in confirmation and pursuance of former Orders in the Exchequer Whereas the Barons here goe directly contrary to the ancient course and Order of the Exchequer in this kingdome more of this in my reason or ground for this question So I conclude their answer to this is short My Lords the question contaynes two points First whether the subject of this kingdome is censurable for to repayre into England to appeale to his Majesty for redresse of injuries or for his lawfull occasions Secondly why what condition of persons and by what law The first part of the Iudges their answer is positive and full viz. They know no law or statute for such censure nor I neyther and could wish they had stayed there In the second part of their answer they come with an if viz. unlesse they be prohibited by his Majesties writ proclamation or command and make mention of the statute of 5. Rich. 2. cap. 2. in England and 25. Henr. 6. cap. 2. in Ireland I will onely speake to the second part of this answer My Lords the house of Commons in the discussion of this point tooke two things into consideration First what the Common-law was in such cases Secondly what alteration was made of the Common-law by the statute of 5. Rich. 2. cap. 2. in England and 25. Henr. 6. cap. 2. in Ireland as to the subjects of Ireland As for the first the Register hath a writ framed in the point viz. the writ De securitate in venienda quod se non divertat ad partes extras
No Freeman shall be taken imprisoned put off his freehold liberties free customes c. other then by the lawfull judgement of his Peeres as by the law of the land This great assurance in the 38. Chap. of the same statute was granted for the King and his successors to all his people and was confirmed in thirty Parliaments as I said before Cooke 8. the Princes Case by the statute of 5. Edw. 3. cap. 9. 25. Edw. 3. Cap. 4. 28. Edw. â— cap. â— 42. Edw. 3. cap. 1 â— The great Charter is againe confirmed and not onely so but proceedings contrary to the same before the King or his Counsell are declared voyde The King is to observe and mantayne the law the Iudge by his Oath 18. Edward â— is bound to doe right betweene the King and his people and that right strengthens the Kings prerogative presidents or practise contrary to so many statutes are of no use in many ages past encroachments were made upon these just liberties which were alwayes removed by Parliaments Yet I must confesse that of all antiquity some pleas have beene held in the Kings Royall house as in the Court held by the Marshall of the Kings houshold for things arising within the Verge Fleta lib. 2. cap. 2. but when that Court exceeds its due bounds declaratory statutes were alwayes made to meete them as mischiefes in the common-wealth when they medled with land or the like as appeares by the statute of Articule super Chartam 28. Edw. 1. 15. R. 2. cap. 12. all these statutes My Lords and many more to this purpose are undenyably of force in this kingdome and none of them can be with impunitie said to be obsolete or antiquated My Lords they raise another doubt viz that as the King may grant cognizance of pleas to Corporations or the like and therefore to the Councell-table if this neede an answer I will answer it thus that a grant of cognizance never was neyther can it be otherwise then to proceede per legem terrae or per judicium parium in the same manner as Courts doe proceede at Common-law and not upon paper petitions or summary hearings such cognizance was never granted the King is at losse by such proceedings he looseth fines upon originals he looseth amerciaments and fines incident to every judgement at Common-law as I said before I he subject undergoeth an inconvenience First the law will decline writs originall will by disuse be forgotten Clerks who should draw them discouraged to learne legall proceedings out of doores being the foundation of the law and in stead of regular and orderly proceeding rudenesse and barbarisme introduced the subject will loose the benefit of his attaynte and writ of error by which the law might relieve him against false verdicts or erroneous judgments he will loose the benefit of his warranty which might repaire a purchaser in case his acquired purchase were not good Whereas if a Iudge or Iuror doe wrong the remedy is at hand but against the Lord Deputy and Councell who will seeke for it therefore the countenance of this Iudicature in Common-pleas is against the Kings prerogative and the peoples just rights both which the Iudges ought to maintaine and likewise against the intent of your Lordships order My Lords as in England the said severall statutes were made to prevent the inconveniences aforesaid one good statute was made in Ireland 28. Henr. 6. cap. 2. Irish statut fol. 15. which directs matters of Interest to be determined in the Common-pleas matters of the Crowne in the Kings-bench matters of equity in the Chancery This law if there were no more regulates the proceedings in this kingdome The Iudges insist upon the words in the end of that statute viz. Saving the Kings prerogative My Lords this was stood upon at the late great tryall in England and easily answered for by the Common-law the King may by his prerogative sue in any of the foure Courts for his particular interest although it be contrary to the nature of that Court for he may sue à Quare impedit in the Kings Bench the like yet so as the said suite be bounded by the rules of law I will demaund a question whether the King may bring à Quare impedit in paper at the Councell-board the Kings now Atturney I am confident will answer me he cannot The word salvo or saving is in construction of law of a thing in esse or existente and no creative word 26. Ass pla 66. and cannot in the Kings Case be construed to overthrow the law nor many expresse and positive acts of Parliament My Lords in all humblenesse and dutie I will and must acknowledge his Majesties Sacred and lawfull prerogative whereof the King himselfe is the best expositor in his answer to the Petition of right Poltons stat fol. 1433. he declares that his prerogative is to defend the peoples libertie and the peoples libertie strenghtens the Kings prerogative the answer was a Kingly answer and More â—ajorum this is conformable to the great Charter and to all the statutes before recited The government of England being the best in the world was not onely Royall but also politicke some other princes like Cain Nemrod Esau and the like hunters of men subverted lawes The Kings of England maintayned them and did never assume the power to change or alter the lawes as appeares by Fortescue that grave and learned Lord Chancellor in King Henry the sixts time de laudibus legum Angliae cap. 9. fol. 25. and in the same Booke cap. 36. fol. 84. nor to take his peoples goods nor to lay taxe nor tallage upon them other then by their free consent in Parliament this appeares by the Booke Cases in 1â— Henr. 4. fol. 14. 15. 16. the great case of the Awlnage of London and in the Case of toll-travers and toll-through 14. Henr. 4. 9 37. Henr. 6. 27. 8. Henr. 6. 19 all agreeing nor to alter the nature of land as by converting land at Common-law to Gavelkind or Borrough English or e conuerso as to the estate otherwise as to the person of the King Ple. Com. the Lord Barclyes Case fol. 246. 247. Yet it is most true that the law of the land gives the King many naturall and great prerogatives farre beyond all other men as may appeare in the said Case fol. 243. but not to doe wrong to any subject Com. 246. The person of the King is too sacred to doe a wrong in the intention of Law if any wrongs bee done his ministerâ— are Authors and not the King And the Kings just prerogatives by the Kings Royall assent in Parliament were bounded limited and qualified by severall Acts of Parliament as if Tenant in cap. did alien at Common-law without licence this was a forfeyture of his estate Plo Com. case of mines fol. 332. the statutes of 2. Edw. 3. cap 14. makes this only finable the statute of Magna Charta cap. 21.
meane and mediocritie which regulated the power of that great Court in former times had not beene of late converted and strayned unto that excesse wee saw these questions had never beene stirred but many things being extended to their uttermost Spheare or I feare beyond the same enforce mee although unwillingly and slowly to looke upon our lawes and just rights The answer to the sixteenth viz. whether Iurors giving their verdicts according to their conscience may be punished in the Castle-chamber by fines excessive mutillation of members c. I finde in my Lord Barcklayes case placit. Com. 231. from the beginning the usuall tryall at Common-law was devided betweene the Iudges and the Iurors matters of fact were and are tryable by the Iurors and matters in law by the Iudges the antiquitie of this tryall appeares Glan fol. 100. b. in Henr. the seconds time Bracton 174. Briton fol. 130. a. Fortescue de laudibus legum Angliae fol 54. 55. So much being cleared they being Iurati ad dicendum veritatem are Iudges of the fact Co. 9. 13. a. Dowmans case 25. c. Strata Marcellas case and infinite other authorities they are so farre Iudges of the fact that although the partes bee estopped to averre the truth yet these Iudges of the fact shall not be so estopped because they are upon their Oath Co. 2. 4. b. Goddards case Co. 4. 53. a. Raw-hins case 1. Henr. 4. 6. a. c. They are so far Iudges of the fact that they are not to leave any part of the truth of the evidence to the Court Co. 1. 56. b. Chauncellor of Oxfords case nay they may finde releases and other things of their knowledge not given in evidence 8. ass plac 3. Co. 10. 95. b. Doctor Leyfields case what is done by Iudges shall not bee tryed by Iurors Co 9. Strata Marcellas case 30. Ergo è converso but if any doubt in law ariseth upon the evidence there is a proper remedie by bill of exception by the statute of VV. 2. cap. 30. which Co. 9 Dowmans case fol. 13. a. saith to be in affirmance of the ancient Common-law as to this point of law the Iudges of the law are Iudges of the validitie of the evidence but under favour not of the truth of the fact as it is set forth in the answer if the Iudges of the law doe erre in matter of law the party grieved hath his remedie by writ of error but hee is not punishable if practise or misdemeanor doe not appeare 2. Rich. 3. fol 9. 10. Fitz Natur. br 243. E. 27. ass 18. 4. Henr. 6. and other bookes by the same reason the Iudges of the fact if they goe according to their conscience as our question is stated if the Iury in this case goe contrary to their evidence the Common-law gives a full remedy by attainte wherein the judgement is â—ost heavie if the Iurors have done amisse as I said before to another question yet in this action the law gives credit to the verdict before it be falsified for if a judgement be given upon this verdict and after an attainte is brought no super sedeas can bee in this writ to hinder the partie who recovered from his execution 5. Henr. 7. 22. b. 33. Henr. 6. 21. otherwise in a writ of error Your Lordships therefore may see what faith is given to verdicts at common-Common-law I observe the notable case of 7. Henr. 4 41 b. where Gascoigne answereth the King that would give judgement contrary to his private knowledge As for the next part of these two questions it was the late height of punishments and the drawing of more causes to that Court then in former times moved this debate out of the statute of 3 Henr. 7. cap. 1. concerning this Court I make these observations first that the Iudges of that Court according their discretion may examen great offences secondly that they may punish according to the demerits of delinquents after the forme of the statute thereof made thirdly in like manner forme as they should or ought to be punished if they were convict by the due order of the Common-law For the first what discretion this is we finde in our books Co. 5. fol. 100. Rookes case discretion is to proceede within the bounds of law and reason at Common-law a Man in a Leete is fined but in ten groats for a light bloudshed in the Castle-chamber a Noble-man for an offer of a switch to a person inferior to him upon provocation perhaps given was fined in foure thousand pound committed to long imprisonment and low acknowledgements were imposed on him For the second and third observations if men of quality and ranke were pillored papered stigmatized and fined to their destruction in cases where if they had beene convicted by due order of law they could not be so punished by any law or statute I humbly offer to your Lordships sad and grave consideration And whether these courses be warranted by the said statute of 3. Henr. 7. cap. 1. or by any other law or statute of force in this Realme and if all Iurors bee brought to the Castle-chamber what shall become of that great and noble tryall by which all the matters of our law regularly are tryable And so I conclude that the answers to these two questions are not satisfactorie Whether in the Censures in the Castle-chamber regard be to be had to the words of the great Charter viz. salvo contenemento c. I conceive that in the Censures in the Castle-chamber regard is to bee had to the words of the great Charter viz. Salvo contenemento c although in the great Charter and in the statute of VVestminst 1. cap. 6. amerciamentum and misericordia are expressed and not fines or redemptio because a fine and an amerciament are in the old yeare bookes used promiscuously as Synonima for one and the same thing and therefore in 10. Edw. 3. fol. 9. 10. The Iurors of the Abbot of Ramseis Leete being sworne and refusing to present the articles of the Leete were amerced and there it is resolved because all did refuse to present all shall be amerced but when the same shal be imposed or affeared shall bee imposed severally upon each of them secundum quantitatem delicti salvo contenemento suo yet the summe there imposed was revera à fine and not an amerciament as an amerciament is now taken and here with agrees 4. Eliz. Dy. 211. b. in these words if the Iurors of a Leete refuse to present the articles of the Leete according to their Oath the Steward shall assesse a fine upon every of them and Godfries case 11. Rept ' fol. 42. b. 43. a. Secondly if by intendment of law as the law was conceived at the time of the making of the statutes of Magna Charta and VVestm. 1. fines and amerciaments had not beene or taken to be Synonyma the feazors of those acts would