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
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
of the Perjury by all the Lords in the Star-Chamber and it was Resolved by all That it was by the Common-Law punishable before any Statute Hayes Case in Cur-Wardorum By Inquisition in the County of Middlesex Anno 6 Jac. by vertue of a diem clausit extremum after the death of Humphry Willward it was found that the said Humphry died seized of a Messuage and 26 Acres of Land in Stepney and that John Willward was his Heir being 14 years and 9 days old and that the Land was held of the King in capite by Knights Service John Willward died within age and by Inquisition in Middlesex 8 Jun. Anno Jac. by vertue of a Writ of Deveneront after the said John's death it was found that John dyed seized in Ward to the King and that the said Messuage and Lands at the time of the said John's death were holden of the Dean of Pauls as of his Mannor of Shadwel All the mean Rates incurred in John's life-time are paid to the King 1. The Questions are 1. Whether by John's death and finding of the mean Tenure in the Deveneront the fiâ—st Office granted to Points be determined 2. Whether the Tenure found by the first Office may be traversed And as to these Questions it was Resolved by the two Chief Justices and chief Baron That where the said John dyed the Office found by force of the Diem clausit extremum after Humphries death whereby the King was entituled to the Guardianship of John hath taken its effect and is executed and does remain as Evidence for the King after Johns death but yet is not traversable for it is traversable during the time it remains in force onely and the Jurors upon the Deveneront after the death of the said John are at liberty to find the certainty of the Tenure and they are not concluded by the first Inquisition and with this agrees 1 H. 4. 68. And this appears by the diversity between the Writ of Diem clausit extremum and the Deveneront which is but in one Point to wit the Diem clausit extremum is general And the Deveneront is not general but does restrain onely the Lands and Tenements quod deveneront c. And thus it was Resolved nono Jacobi in the Court of Wards in the Case of Dune Lewis Award of Capias Uâ—lagatum by Justices of the Peace In this same Term the Opinion of all the Court of Common-Pleus was That if one be out-lawed before Justices of Assize or Justices of Peace upon an Indictment of Felony that they may award a Capias Utlagatum and so was the Opinion of Pâ—riam Chief Baron and all the Court of Exchequer as to Justices of Peace for they that have power to award process of Outlawry have also power to award a Capias utlagatum See 34 H. 8. c. 14. See Lamb. Justice of Peace fol. 503. contra But see 1 Ed. 6. cap. 1. Justices of Peace in case of Profanation of the Sacrament shall award a Capias Utlagatum throughout all England Hersey's Case Star-Chamber John Hersey Gent exhibited his Bill in the Star-chamber against Anthony Barker Knight Thomas Barker Councellor at Law Robert Wright Doctor of Divinity Ravenscroft Clerk and John Hai is and thereby charged the Defendants with forging the Will of one Margery Pain and the Cause came to Hearing ad requisitionem defendentium and upon hearing the Plaintiffs Councel there appeared no Presumption against any of the Defendants but that the Testament was duly proved in the Ecclesiastical Court and upon an Appeal was also affirmed before Commissioners Delegates and Decreed also in Chancery So that it appeared to the Court that the said Bill was preferred of meer malice to slander the Defendants Now because the Defendants had no Remedy at Law for the said Slander and if it should pass unpunished it may encourage men It was Resolved by the Court That by the course of the Court and according to former Presidents the Court may give Damages to the Defendants and so it was done viz. 200 l. to the Doctor of Divinity 200 Marks to the Knight 40 l. to the Clerk 120 l. to the Woman And it was said that Creare ex ihilo quando bonum est est divinum sed creare aliquid ex nihilo quando est malum est diabolicum et plus Maledicite nocâ—nt quam Benedicite docent Hill 2 Jac. Regis Theodore Tomlinson brought an Action of account for Goods against one Philips in the Common Pleas and thereupon Philips sued Tomlinson in the Admiralty supposing the Goods to have been received in Forraign Parts beyond Sea and Tomlinson being committed for refusing to answer upon his Oath to some Interrogatories brought his Habeas Corpus Upon which it was resolved by the Court of Common plea in thrâ—e Points viz. 1. That the Court of Admiralty hath no Cognizance of things done beyond Sea and this appears plainly by the Statute 13 R. 2. cap. 5. and the 19 H 6. fol. 7. 2. That the Proceedings in the Court of Admiralty are according to the Civil Law and therefore the Court is not of Record and so cannot assess a Fine as the Judges of a Court of Record may 3. It doth appear that the Interrogatories were of such things as were within their Jurisdiction and the Parry ought by Law to answer This Case was intended by my Lord Coke to be inserted into his 7th Report but that the King commanded it should not be Printed but the Judges resolved ut supra Corven's Case Right to Sâ—ats in the Church Corven did Libel against Pym for a Seat in a Church in Dâ—vonshire And Pym by Sergeant Hutton moved for a Prohibition upon this Reason that himself is seized of a House in the said Parish and that he and all whose Estates he hath in the House have had a Seat in an Isle of the Church And it was Resolved by the Court that if a Lord of a Mannor or other Person who hath his House and Land in the Parish time out of mind and had a Seat in an Isle of the same Church so that the Isle is proper to his Family and have maintained it at their Charges that if the Bishop would dispossess him he shall have a Prohibition But for a Seat in the Body of the Church iâ— a Question ariseth it is to be decided by the Ordinary because the Freehold is to the Parson and is common to all the Inhabitants And it is to be presumed that the Ordinary who hath Cure of Soules will take Order in such Cases according to right and conveniency and with this agrees 8 H. 7. 12. And the Chief Justice Dame Wick her Case 9 H. 4. 14. which was The Lady brought a Bill in the Kings-Bench against a Parson Quare Tunicam unam vocatam A Coat Armor and Pennons with her Husband Sir Hugh Wick his Arms and a Sword in a Chappel where he was buried and the Parson claimed them as Oblations And it is there
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
Service Tenant Richard Hulme dyed after whose death 31 H. 8. it was found that he dyed seized of the said Mesnalty and that the same descended to Edward his Son and Heir within Age and found the Tenure aforesaid c. And during nonagâ— Robert Male dyed seized of the said Tenancy peravail and that the same descended to Richard his Son and Meir as was found by Office 25 H. 2. within age and that the said Tenancy was holden of the King as of his said Dutchy by Knights Service whereas in truth the same was holden of Edward Hulme then in Ward of the King as of his Mesnalty for which the King seized the Ward of the Heir of the Tenant And afterwards Anno quarto Jacobi Rogis nunc after the death of Richard Male the lineal Heir of Robert Male by another Office it was found that Richard dyed seized of the Tenancy and held the same of the King as of his Dutchy c. his Heir within age Whereupon Richard Hulme Cozen and Heir of the said Richard Hulme preferred a Bill to be admitted to traverse the Office found 4 Jac. Regis And the Question was Whether the Office found 35 H. 8. be any Estoppel to the said Hulme or if that the said Hulme should be first driven to Traverse that And it was objected That he ought first to traverse the Office of 35 H. 8. as in the Case 26 E. 65. And that the first Office shall stand as long as the same remaines in force To which it was Answered and Resolved by the two Chief Justices and Chief Baron and Court of Wards That the finding of an Office is not any Estoppel for that is but an Inquest of Office and the party grieved shall have a Traverse to it But when an Office is found falsly that Land is holden of the King by Knights Service in capite or of the King himself in Socage if the Heir fueâ—h a general Livery it is holden 46 Ed. 3. 12. by Mowbray and Persey that he shall not after adde that the Land is not holden of the King But that is not any Estoppel to the Heir himself and shall not conclude his Heir for so saith Mowbray himself expresly 44 Ass pl. 35. See 1 H. 4. 6. b. So 33 H. 6. 7. And there is no Book that saith that the Estoppel shall endure longer than his life but that is to be intended of a general Livery but a special Livery shall not conclude one And if a Jury find falsly in a Tenure of the King the Lord of whom the Land is holden may traverse that Office Or if Land be holden of the King in Socage c. the Heir may traverse the last Office for by that he is grieved and he shall not be driven to traverse the first Office And when the Father sues Livery and dyes the Conclusion is executed and past as is aforesaid And note there is a special Livery but that proceeds of the King's Grace and is not the Suit of the Heir and the King may grant it either at full age before aetate probanda or to the Heir within age as appears 21 E. 3. 40. And then is general and shall not comprehend any Tenure as the several Livery doth and therefore it is not any Estoppel without question See the 33 H. 8. cap. 22. 23 Eliz. Dyer 177. It was also Resolved in this Case that the Office of 35 H. 8. was not traversable for his own Traverse shall prove that the King had cause to have Wardship by reason of Ward And when the King comes to the Possession by a false Office or otherwise if it appears the King have any other Right to have the Land there none shall traverse the Office or Title of the King because the Judgment in the Traverse is Ideo consideratum est quod manus Domini Râ—gis amoveantur c. See 4 H. 4. fol. 33. in the Earl of Kents Case c. Mich. 7 Jacobi Regis Note The Priviledge Order or Custom of Parliament either of the Upper-House or House of Commons belongs to the Determination of the Court of Parliament and this appeareth by two notable Presidents 1. The one at the Parliament holden in the 27 H. 6. There was a Controversie moved in the Upper-House between the Earles of Aâ—undel and Devonshire for their Seats Places and Pre-eminences of the same to be had in the King's Presence as well in Parliament as in Councels and elsewhere The King by the Advice of Lords Spiritual and Temporal committed the same to certain Lords of Parliament who not having leisure to examine the same by the said Lords Advice referred it to the Judges of the Land to hear see and examine the Title c. and to report what they conceive herein The Judges reported as followeth That this matter viz. of Honour and Pre-eminency between the two Earles Lords of Parliament was a matter of Parliament and belonged to the King and his Lords in Parliament to be decided Yet being so commanded they shewed what they found upon Examination and their Opinions thereon Another Parliament 31 H. 6. 6th of March begun and after some continuance was prorogued to the 14 of February and afterwards in Michaelmas Term the same 31 H. 6. Thomas Thorpe Speaker of the Commons House was condemned in the Exchequer in 1000 l. Damages at the Duke of Buckingham's Suit for a Trespass done to him The 14th of Feb. the Commons mâ—ved in the Upper-House that their Speaker might be set at liberty to exercise his Place c. The Lords refer it to the Judges and Fortâ—scue and Prisoit the two Chief Justices in the Name of all the Judges answer'd That they ought not to consider this Question c. but it belongeth to the Lords of the Parliament and not to the Justices But as to their Proceedings in the Lower-Courts in such Cases they deliver'd their Opinions See 12 E. 4. 2. Hill 7 Jac. Regis In Cam. Stâ—ll Heyward and Sir John Whitbrook's Case In the Case between Hyward and Sir John Whitbrook in the Star-Chamber the Defendant was convicted of divers Misdemeanours and Fine and Imprisonment imposed on him and Damages to the Plaintiff And it was moved that a special Process might be made out of that Court to levy the said Damages upon the Lands and Goods of the said Defendant And it was referred to the two Chief Justices whether any such Process might be made who this Term moved the Case to the Chief Baron and the rest of the Judges and Barons and it was unanimously by them all Resolved That no such Process could or ought to be made neither for the Damages nor for the Costs given to the Plaintiff the Court having no such power but onely to keep the Defendant in Prison till he pay them For for a Fine due to the King they can make no Process to levy it but they estreat it into the Exchequer which hath power by Law to write forth Process
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
Justices of Nisi Prius power in all Cases of Felony and Treason to give Judgment 28 Ed. 1. De appellatis gives Justices of Assize power to try Appeals of Approvers They may also by the 34 and 35 H. 8. cap. 14. write to the Clerk of the Crown de Banco R. to certifie the first Conviction in their own Name otherwise the best Form is in the King 's Nanâ—e 2 and 3 Ed. 6. cap. 24. By Articuli super chartas cap. 10. 4 Ed. 3. cap. 11. 7 R. 2. they may hear and determine Conspiracies false Informations c. By the Statute of Northampton 2 Ed. 3. cap. 3. they may hear and determine the Statute of Armor and punish Justices of Peace and others c. They ought twice a year to proclaim the Statute 32 H. 8. and other Statutes against Champerâ—y Imbracery and unlawful Retainers By 3 H. 7. cap. 1. they may take Bail of one acquitted of Murther within the year to answer the Appeal of the Party By 33 H. 8. they must proclaim in their Circuit the Statute against unlawful Games They make Execution of the Statute 13 H. 4. cap. 7. of Ryoâ—s c. And by 2 H. 5. cap. 8. Commission shall be awarded to enquire of the Defaults of Justices of Assize and of the Peace By Westminster 2 cap. 37. and 2 Ed. 3. c. 5. they ought also to enquire of the 23 H. 6. cap. 10. concerning Sheriffs c. Bayliffs c. and Guardians of Prisons for their Extortion and delivering who are not Bailable and detaining who are 2 Mariae Dyer 99. they held Plea in Assize of Murther by W. 2 and 3 H. 7. and of Robbery by Commission of Gaol Delivery By 23 Ed. 3. they may inquire of Default c. punishment of Victuallers c. Note Justices of Oyer and Terminer can only enquire of such who are endicted before themselves But Justices of Goal-delivery may arraign a Prisoner indicted before others the words of their Commission are Ad Gaolas Gaolam de B. de peâ—sonaribus in ea existeâ—t hac vice deliberand secund leges c. Brook tiâ— Commission 3. Maii 24. 4 Ed. 3. cap. 2. Justices of Gaol-delivery deliver Prisoners indiâ—ted before Guardians of the Peace And by 1 Ed. 6. cap. 7. new Commissioners of Gaol-delivery This extends not to Indictments c. before Commissioners of Oyer and Termiâ—er because the proceedings before Justices of Oâ—er and Terminer after the Oyer determined ought to remain in the Kings Bench But the Records before Justices of Gaol-delivery remain with the Custos Rotulorum vide Brook tit Commission 12. 38 H. 8. Title Oyer and Terminer 44 Ed. 2. 31. Case of Customes Subsidies and Impositions Upon Conference between Popham chief Justice and my self upon a judgment lately given in the Exchequer and upon Consideration of our Books and Statutes It appeared That the Rule of the Common-Law is the the Register Title ad quod dampnum F. N. B. 222. a. quod patria magis solito non oâ—eretur nec gravetur Also another Rule That the King may Charge his People to a thing which may be to their Profit without assent of the Commons but not to their Charge As is held in 13 H. 4. 16. Statutum de Tallagio non concedendo Mag. Chart. cap. 30. which hath been confirmed above 30 times Vide le Stat. 25 Ed. 1. 3 Ed. 1. in turri 9 Ed. 3. cap. 1. 2. 14 Ed. 3. 2. 25 Ed. 3. cap. 2. Queen May put an Imposition upon Cloaths which 1 â—liz Dyer 165. was moved but not Resolved Vide 31 H. 8. Dyer fol. 43. 1 Eliz. Dyer 165. Magna Custuma Parva Custuma Vide 9 H. 12. 35. Upon all which and divers Records by us seen it appeared to us That the King cannot at his Pleasure put any Imposition upon any Merchandize to be Imported or Exported unless for advancement of Trade the life of the Island Pro bono publico As if in Forâ—aign Parts any Imposition is put upon the Merchandize of our Merchants non pro bono publico to make equality and advance Trade the King may put an Imposition upon their Merchandizâ—s for this is not against any of the said Statutes which was the Case of Currants lately adjudge in the Exchequer And also of Customer Smith in Queen Elizabeth's time And it was clearly Resolved That such Imposition so put cannot be demised or granted to any Subject because it is to augment and decrease or be quite taken away upon occasion And though the King may prohibite any person in some Cases with some Commodities to pass out of the Realm yet this cannot be where the end is Private but where it is publick because Quam plurima nobis et Coronae prejudicialia in partibus exteris prosequi intendit and to restrain in time of Dearth or War for Necessitas est lex temporis It appeared to us also That at Common Law no Custom was paid but only for Woolls Woollfells and Leather which is called in Magna Charta Recta consuetudo all others are called Mala Tolneta which in the Statute de Tallagio non concedendo is called Male. And it hath of long time been used by Parliament to Grant to the Kings at the beginnings of their Reigns certain Subsidies of Tunnage and Poundage for term of Life which began 2 3 H. 5. 31 H. 6. cap. 8. and 12 Ed. 4. cap. 3. which proves the King by his own Power cannot impose it and this may be granted by the King but the other noâ— Vide 31 H. 8. Dyer 43. 1 Ma. D. 92. 1. Eliz. D. 165. 2 and 3 P. and M. D. 128. 12 Eliz. D 296. 23 Eliz. D. 375. 45 Ed. 3. cap. 4. 27 Ass pl. 44. Register 192 c. Vide magna Charta cap. 10. They are called Consuetudines Et per vocabulum artis they are called Cuâ—uma Vide Lestat 51 H. 3. Titl Exchequer in Rastall and 9 Ed. 3. cap. 2. Vide Fortescue de laud. leg Ang. cap. 36. fol. 48. fol. 13. cap. 9. And note for the benefit of the Subject the King may lay Imposition within the Realm â—o repair High-wayes Bridges and Walls for defence But the sum must be proportioned to the benefit And this appears 13 H. 4. 16. See also Charta mercatoria ex Rot. mercator 31 Ed. 1. n. 42. Patents 3 Ed. 1. n. 1. 9. de sacco lanae dim marcae lasta Coriorum 1 Marke c. Fines 3 Ed. 1. n. 24. intus et non in dorso Vide Rot. Parl. an 13 Ed. 3. And 22 Ed. â— n. 8. And 8 H. 6. n. 29. 28 H. 6. n. 35. 9 R. 2. n. 30. 29 Ed. 3. 11. n. ex Rot. Parliam 5 Ed. 3. n. 17 18 19. 22 Ed. 3. n. 31. 5 Ed. 3. n. 163. 5 Ed. 3 n. 191. 38 Ed. 3. n. 26 Rot. Parl. 7 R. 2. n. 35. 36. 9 R. 2. n. 30. 2 R. 2. Parl. apud Glocestriam Act. 25. 1 R.
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-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
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
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-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
holden That if one were to sit in the Chancel and hath there a place his Carpet Livery and Cushion the Parson cannot claim them as Oblations for that they were hanged there in honour of the Deceased the same Reason of a Coat-Armour c. And the Chief Justice said the Lady might have a good Action during her Life in the Case aforesaid because she caused the things to he set up there and after her death the Heir shall have his Action they being in the nature of Hire-looms which belong to the Heir And with this agrees the Laws of other Nations Bartho Cassanâ—us sol 13. Coâ—cl 29. Actioâ— dat si aliquis arma in aliquo loco posita deleat aut abrasit c. and in 21 Ed. 3. 48. in the Bishop of Carlisle's Case Note That in Easter Term 10 Jacob. it was Resolved in the Star-Chamber in the Case between Hussâ—y and Katharine Leyton that if a man have a house in any Parish and that he and all those whose Estate he hath have used to have a certain Pew in the Church that if the Ordinary will displace him he shall have a Prohibition but where there is no such Prescription the Ordinary shall dispose of common and vulgar Seats Earl of Shrewes buryes Case Sir Humphry Winch Sir James Ley Sir Anthony St. Leger and Sir James Hullesâ—on certified the Lords of the Councel by Command from them by Letters dated 28. Martii 1612. of the Claim of Gilbert Earl of Shrewesbury to the Earldome of Waterford and Barony of Dungarvan in Ireland as followeth King Henry the Sixth by Letters-Patents in the 20th year of his Reign did Grant to his Cosin John Earl of Shrewsbury in consideration of his Loyal Services in the City and County of Waterford pro se c. ipsum in Comitem Waterford una cum stilo et titulo ac nomine ac honore eisdem debitis ordinamus creamus habendum to the said Earl and his Heirs-males of his Body and further did Grant the Castles Lordships c. of Dungarvan to the said Earl and the Heirs-males of his Body To hold c. of the King and his Heirs by Homage and Fealty and by the Service of being his Majesties Seneschal in Ireland After in the Parliament called Des Absentees holden at Dublin in Ireland 10. Maii 28 H. 8. It was enacted by reason of the long absence of George Earl of Shrewesbury out of the said Realm That the King his Heirs c. shall enjoy in right of his Crown of England all Honors Mannors Castles c. and all and singular possessions c. as well Spiritual as Temporal which the said George Earl of Shrewesbury and VVaterford or any other Persons had to his Use c. King Henry the 8th by his Letters Patents dated 29th of his Reign reciting the said Statute Nos praemissa Considerantes c. did Grant to the said Earl and his Heirs the Abbey of Rufford with the Lands thereunto c. in the County of Nottingham and the Lordship of Rotheram in the County of York the Abbeys of Chestersteld Shirbrook and Glossaâ—dale in Derbyshire with divers other Lands c. to be holden in Capite And the Questions were as followeth 1. Whether by the long absence of the Earl of Shrewsbury out of Ireland the Title of the Honor be lost and forfeited he being a Peer of both Realms and refiding here in England 2. Whether by the Act Des absentâ—es 28 H. 8. the Title of Dignity of Earl of VVaterford be taken from the said Earl as well as the Land c. Afterwards by other Letters Patents dated 27th of Sept. 1612. the two Chief Justices and Chief Baron were required to consider of the Case and to certifie their Opinions which Case being argued by Councel learned in the Law in behalf the said Earl and they having taken great advisement It was unanimously Resolved by them all as followeth 1. As to the fiâ—st Resolved That since it does not appear what defence was requisite and that the Consideration Executory was not found by Office to be broken in that Point the said Earl of Shrewsbury notwithstanding does remain Earl of Waterford 2. As to the second It was Resolved That the said Act 28 H. 8. Des Absenteâ—s does not onely take away the Possessions given him at his Creation but also the Dignity it self for though one may have a Dignity without Possession yet is it very inconvenient that Dignity should be cloathed with Poverty and so it was resolved in the Lord Ogles Case in Edw. 6. Reign as the Baron of Burleigh 35 Elâ—z did report The cause of Degradation of George Nevil Duke of Bedford is worth observation which was done by Act of Parliament 16 June 17 Ed. 4. which Act reciting the making the said George Duke sets forth the cause of his Degradation in these words And for so much as it is openly known that the said George hath not or by Inheritance may have any livelyhood to support the said Name Estate and Dignity c. Therefore the King by Advice of his Lords Spiritual and Temporal and Commons c. Enacteth c. That from henceforth the same Creation of the said Duke and all Names of Dignity given to the said George or to John Nevil his Father be void and of none effect Wherein are to be observed 1. That though the Duke had not Possessions to maintain his Dignity yet it could not be taken from him but by Act of Parliament 2. Great Inconveniencies follow where there is great State and Dignity and no means to maintain it 3. It is good reason to take away such Dignity by Act of Parliament and then the Act shall be expounded to take away such Inconvenience And though the Earl of Shrewsbury be of great Honour Vertue and Possessions in England yet it was not the Intention of the Act to continue him Earl in Ireland when his Possessions there were taken away And where it was objected that the general words Honours and Hereditaments are explained and qualified by the said Relative subsequent which the said George or any to his use hath Now in regard no man can be seized of the said Digniâ—y therefore the Act doth not extend to it 'T is answered that is to be understood Reddendo singula singulis and these words which the said G. E. hath are sufficient to pass the Dignity and with this agrees all the Judges Opinions in England in Nevils Case upon the like in the Statute 28 H. 8. in 7th Part of my Reports sol 33 and 34. Hill 2 Jacob. Regis Jurisdiction of the Court of Common-Pleas In the last Term by the King's Commands the Justices of the Kings Bench and Barons of the Exchequer were assembled before the Lord Chancellor Ellesmere at York-house to deliver their Opinion Whether there was any Authority in our Books that the Justices of the Common-Bench may grant Prohibitions or whether every Plea ought to be pending
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
all his Right Estate c. The Plaintiff surjoyneth and saith that the said sum of 5 l. 6 s. 8 d. c. was not rationabilis finis as the said Thomas Bradley above hath alleadged c. Upon which the Defendant doth demur in Law c. And in this Case these Points were Resolved by Coke Chief Justice Walmesly Warberton Daniel and Foster Justices 1. If the Fine had been reasonable yet the Lords ought to have set a certain time and place when the same should be paid because it stands â—â—on the point of Forfeiture As if a man assures Lands to one and his Heirs upon condition to pay to the Bargainee and his Heirs 10 l. at such a place or that he and his heirs shall re-enter there because no time is limited the Bargainor ought to give notice to the Bargainee c. when he will tender the money and he cannot tender it when he pleaseth and with this agrees 19 Eliz. Dyer 244. So in the Case at the Bar the Copyholder is not bound to carry his Fine alwayes with him c. And though that the Rejoynder is that the Plaintift refused to pay the Fine so he might well do when the Request is not lawful or reasonable And he that is to pay a great Fine as 100 l. or more it is not reasonable that he carry it always with him And the Copyholder was not bound to do it because the Fine was incertain and arbitrable as was Resolved in Hulbarts Case in the 4th Part of my Reports among the Copy-hold Cases 2. It was Resolved That though the Fine be uncertain and arbitrable yet it ought to be secundum arbitrium boni viri and it ought to be reasonable because Excessus in re qualibet jure reprobatur communi for the Common-Law forbids any excessive Distress as appears 41 Ed. 3. 26. And this doth appear to be the Common-Law for the Statute of Articuli super Chartas extends onely for a grievous Distress taken for the Kings Debt See F. N. B. 147. a. and 27 Ass 51. 28 Ass 50. 11 H. 4. 2. and 8 H. 4. 16. c. And so if an excessive Amerciament be imposed in any Couâ—t-Baron or other Court not of Record the Party shall have Moderata mis ericordia And Magna Charta is but an Affirmance of the Common-Law in this Point See F. N. B. 75. And the Common-Law gives an Assize of Sovient Distress and multiplication of Distress found which is Excess And with this agrees 27 Ass 50 51. F. N. B. 178 b. And if Tenant in Dower hath Tenants at Will that are rich and makes them poor by excessive Tallages and Fines this is wast F. N. B. 61. b. 16 H. 3. Wast 135. and 16 H. 7. Vide also the Register Judicial fol. 25. B. Waste lyeth in Exulando Henricum Hermanum c. Villeynes Quorum quilibet tenet unum messuagium unam Virgat terrae in Villenagio in Villa praed c. By all which it appears the Common-Law forbids excessive oppressing of Villains c. So in the Case at Bar though the Fine is uncertain yet it ought to be reasonable and so it appears by the Custome alleadged by the Defendant See Hubbard's Case before in the 4th Part of my Reports And when reasonableness concerning a Fine is in question the same shall be determined by the Court in which the Action depend 21 H. 6. 30. 22 Ed. 4 27. and 50 29 H. 8. 32. c. 3. It was Resolved That the Fine in the Case at the Bar was unreasonable being for the admittance of a Copy-holder in Fee-simple upon a Surrender made for this is not like a voluntary Grant c. for there Arbitrio Domini res estimari debet But when the Lord is compellable to admit him to whose use the Surrender is And when Câ—stuy que use is admitted he shall be in by him who made the Surrender and the Lord is but an Instrument to present the same 4. It was Resolved That the Surjoinder is no more than what the Law saith And for the Causes aforesaid Judgment was given for the Plaintiff And Coke Chief Justice said in this Case That if the Court of Admiralty amerce the Defendant excessively at discretion as seems by 19 H. 6. 7. the same shall not bind the Party and be it excessive or not it shall be determined in the Court where the Action shall be brought And a Writ of Account against a Bayliff or Guardian Quod reddat â—i rationabilem compâ—tum c. for the Law requires Reason and no excuse or extremity in any thing Mich. 6 Jac. Regis in the Common-Pleas Porter and Rochester's Case This Term Lewis and Rochester who dwelt in Essex in the Diocess of London were sued for subtraction of Tythes growing in B. in the said County of Essex by Porter in the Court of the Arches of the B. of Canterbury in London And the Case was The Archbishop of Canterbury â—ath a peculiar Jurisdiction of 14 Parishes called a Deanry exempt from the Authority of the Bishop of London whereof the Parish of St. Mary de Arcubus is the chief And the Court is called the Arches because it is holden there And a great Question was moved If in the said Court of Arches holden in London he might cite any dwelling in Essex for substraction of Tythes growing in Essex or if he be prohibited by the Statute 23 H. 8. cap. 9. which after Debate at Bar by Councel and also by Dr. Ferrard Dr. James and others in open Court and lastly by all the Justices of the Common-Pleas A Prohibition was granted to the Court of Arches And in this Case divers Points were Resolved by the Court. 1. That â—â—l Acts of Parliament made by the King Lords and Commons in Parliament are parcel of the Laws of England and therefore shall be expounded by the Judges of the Laws of England and not by the Civillians Cannonist although the Acts concern Ecclesiastical Jurisdiction And in 10 H. 7. the Bishop of London caused onâ— to be imprisoned because the Plaintiff said he ought not to pay his Tythes to his Curate And the imprisoned Party brought his Action of false Imprisonment against those that arrested him by the Bishops Command and there the Matter is well argued what words are within the Statute and what words are not So upon the same Statute was Resolved in 5 Ed. 4. in Keysar's Case in the Kings Bench which see in my Book of Presidents And so the Statutes of Articuli Cleri de Prohibitione regiâ De Circuâ— spâ—cte agitis of 2 Ed. 6. cap. 13. c. have alwayes been expounded by the Judges of the Common-Law as was adjudged in Wood's Case Pasch 29 Eliz. So 21 H. 8. cap. 13. See 7 Eliz. Dyâ—r 233. 15 Eliz. Dyer 251. 14 Eliz. Dyer 312. 15 Eliz. Dyâ—r 327. 18 Eliz. Dyer 352 347. 22 Eliz. Dyer 377. 2. Resolved by Coke Chief Justice Warbâ—â—ton Daniel and
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-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
c. Mills c. and to correct repair or pull down c. as cause requireth according to their discretions c. after the effect of the Statute made before the 1. of March 23 H. 8. By which appears that the Commissioners discretion was limited viz. to proceed according to the Statutes and Ordinances before made c. And the said Act provides That all and every Statute Act and Ordinance heretofore made concerning the Premises not contrary to this Act nor repealed shall stand good and be effectual for ever But the said Acts 25 Ed. 3. and 1 H. 4. are not contrary to the said Act nor repealed and always such construction ought to be made that one part of the Act may agree with another And according to this Resolution We certified the Lords of the Councel that the said Star 25 E. 3. 1 H. 4. remained yet in force and that the Authority given by the Commission of Sewers did not extend to Mills Mill-stanks Cawseys c. erected before Ed. 1. unless they have been inhanced and then they are not to be subverted but reformed by abating the Inhancement onely Trin. 7 Jacobi Regis The Case de modo Deciâ— andi and of Prohibitions Richard Archbishop of Canterbury with the Bishops of London Bath and Wells and Rochester divers Doctors of the Civil and Canon-Law as Dr. Dun Judge of the Arches Dr. Rennet Judge of the Prerogative Dr. James Dr. Martin and others came and attended the King at White-Hall the Thursday Friday and Saturday after Easter Term in the Councel-Chamber where the Chief Justice and I my self Daniel Judge of the Common-Pleas and Williams Judge of the Kings-Bench by the King's Command attended also where the King assisted with his Privy-Councel all sitting at the Councel-Table spake as a most Gracious Soveraign to this effect As He would not suffer any Novelties or Innovations in his Courts of Justice Ecclesiastical and Temporal so he would not have any the Laws which had Judicial Allowances in the Times of his Predecessors Kings of England to be forgotten And forasmuch as Contentions between the Temporal and Ecclesiastical Courts cannot but breed great Inconvenience to the Subjects especially when the Controversie ariseth upon the Jurisdiction of his Ordinary Courts of Justice And because he was the Head of Justice immediately under God and knowing what hurt may grow to his Subjects when the Jurisdiction of his Courts are drawn in question He thought it concerned him as a King to hear the Controversies between the Bishops and Clergy and the Judges of his Laws of England and to take Order that the one do not encroach upon the other And He said The onely Question then to be disputed was If a Parson or Vicar of a Parish sues one of his Parish in the Spiritual Court for Tythes in Kind or Layfee and the Defendant alleadgeth a Custom or Prescription de modo Decimandi if that Custom or Prescription shall be tryed and determined before the the Judge Ecclesiastical where the Suit is begun or a Prohibition lyeth to try the same by the Common-Law And the King directed that We who were Judges should declare the Reasons of our Proceedings and what Authorities in the Law we had to warrant our Proceedings in granting Prohibitions in Cases de modo Decimandi But the Archbishop of Canterbury kneeled before the King and desired he would hear him and others provided to speak in the Case for the good of the Church of England And the Archbishop inveighed chiefly against two things 1. That a Modus Decimandi should be tryed by a Jury because they themselves claim more or less modum Decimandi so as in effect they were Tryers in their own Cause or in the like Cases 2. He inveighed much the precipitate and hasty Tryals by Juries and after him Dr. Bennet made a large Invection against Prohibitions in causis Ecclesiasticis and he made five Reasons why they should try modum Decimandi 1. The first and principal was out of the Register fol. 58. quia non est consonans rationi quod cognitio accessarii in Curiae Christianitatis impâ—diatur ubi cognitio causae principalis ad forem Ecclesiasticum noscitur peâ—tinere And the principal cause is Right of Tythes and the Plea of Modus Decimandi sounds in satisfaction of Tythes and therefore the Conuzance of the Original Cause viz. the Right of Tythes belonging to them the Conuzance of the Bar of Tythes belonged to them And whereas it is said in the second Part of my Reports in the Bishop of Winchesters Case and 8 Ed. 4. 14. that they would not accept of any Plea in discharge of Tythes in the Spirituall Court he said they would allow such Pleas and had allowed them being duly proved before them 2. There was great inconveniency that Lay-men should be Tryers of their own Customs for they shall be Jurors in their own Cause 3. That the Custom of Modo Decimandi is of Ecclesiastical Jurisdiction for it is a manner of Tything and all manner of Tything belongs to Ecclesiastical Jurisdiction and therefore he said if the Right of Tythes be of Ecclesiastical Conuzance and the Satisfaction also for them of the same Jurisdiction the same shall be tryed in the Ecclesiastical Court 4. In the Prohibitions of Modus Decimandi Averment is taken that though the Plaintiff in the Prohibition offer to prove Modum Decimandi the Ecclesiastical Court doth refuse to allow it but he said they would allow such Plea and therefore Cessante causa cessabit et effectus and no Prohibition shall lye 5. He said he can shew many Consultations granted in the Cause de modo Decimandi and a Consultation is of greater force then a Prohibition And Bacon Sollicitor General being as is said assigned with the Clergy by the King said less then Dr. Bennâ—t but he vouched 1 R. 3. 4. the Opinion of Hussey when the Originall ought to begin in the Spiritual Court and afterwards a thing cometh in Issue and is Tryable by our Law yet it shall be tryed by their Law See the Register 57 58. 38 Ed. 3 5. and 38 Ed. 3. 6. And the Judges made humble Suit to the King That in regard they perceived his Majesty in his Princely Wisdom derested Novelties and Innovations that He vouchsafe to suffer them to inform him of one Innovation which they did conceive would tend to hinder the Administration of Justice within his Realm Your Majesty for the due Administration of Justice hath made 14 Judges to whom you have committed not onely the Administration of ordinary Justice but crimina Laesae Majestatis Also in Parliament we are called by Writ to give our Advice and Councel to your Majesty and the Lords when we are required We two Chief Justices sit in the Star-Chamber Chancery Court of Wards and other high-High-Courts of Justice We in our Circuits do visit twice in the Year your Realm and execute Justice according to your Laws and if We
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
County of Hereford in his Denâ—esne as of Free and found the other Points of the Writ and it was holden by the two Chief Justices and the Chief Baron 1. That Mâ—ssâ—agium vel Tenementum is uncertain for Tenementum is nomen collectivum and may contain Land or any thing that is holden 2. It was holden That it was void for the whole because no Town is mentioned in the Office where the Mâ—ssuage or Tenement c. lyeth and it was holden that no melius inquirendum shall issue forth because the whole Office is incertain and void Trin. 7 Jac. Regis In the Court of Wards The Attorney of the Court of Wards moved the two Chief Justices and the Chief Baron in this Case A man seized of Lands in Fee-simple covenants for the advancement of his Son and his Name Blood and Posterity that he will stand seized of them to the use of himself for life and after to the use of his eldest Son and to such Woman as he shall marry and the Heir-males of the body of the Son and afterwards the Father dyeth and after the Son takes a Wife and dyeth if the Wife shall take an Estate for Life And it was Resolved by the said two Chief Justices and Chief Baron That the Wife should take well enough being within the consideration which was for the advancement of his Posterity and without a Wife the Son cannot have Posterity Secondly It was Resolved that the Estate of the Son shall support the use to the Defendant and when the Contingent happeneth the Estate of the Son shall be changed according to the Limitation viz. to the Son and the Woman and the Heirs of the Body of the Son And so it was Resolved in the Kings-Bench by Popham Chief Justice and the whole Court in Sheffields Case in Q. Elizabeths time Trin. 7 Jac. Regis In the Court of Wards Spary's Case John Spary seized in Fee in the Right of his Wife of Lands holden by Knight-service had Issue by her and 22 Dec. 9 Eliz. alienated to Edward Lord Stafford The Wife dyed the Issue of full age the Alienee holds the Lands And 10 years after the Fathers death and 12 years after the Mothers Office is found 7 Jac. finding all the special Matter after the Mothers death The Question was Whether the mean Profits are to be answer'd to the King And it was Resolved by the two Chief Justices and Chief Baron that the King should have the mean Profits because the Alienee was in by Title and untill Entry the Heir has no Remedy for the mean Profits but that the King might seize and make Livery because the Entry of the Heir is lawful by the Stat. 32 H. 8. Trin. 7 Jac. Regis In the Court of Wards It was found by force of a Mandamus at Kendal in Westmerland 21 Dec. 6 Jac. that George Earl of Cumberland long before his death was seized in Tail to him and to the Heirs-male of his body of the Castles and Mannors of Browham Applâ—by c. the remainder to Sir Ingram Clifford with divers Remainders in Tail the remainder to the right Heirs of Henry Earl of Cumberland Father of the said George and that the said George Earl so seized by Fine and Recovery conveyed them to the use of himself and Margaret his Wife for their Lives for the Joynture of Margaret and after to the Heir-males of the body of George Earl of Cumberland and for want of such Issue to the use of Francis now Earl of Cumberland and the Heir-males of his body and for want of such Issue to the use of the right Heirs of the said George And after by another Indenture conveyed the Fee-simple to Francis Earl By force of which and of the Statute of Uses they were seized accordingly and afterwards the 30 of Octob. 3 Jac. George Earl of Cumberland dies without Heirs male of his body c. And found further that Margaret Countess of Cumberland that now is was alive and took the profits of the Premisses from the death of the said George Earl till the taking the Inquisition and further found the other Points of the Writ 1. And first it was objected Here was no dying seized found by Office and therefore the Office shall be insufficient But to that it was Resolved That by this Office the King was not intitled by the Common-Law for then a dying seized was necessary But this Office is to be maintained upon the Stat. 32 and 34 H. 8. by force of which no dying seized is necessary and so it was Resolved in Vincents Case Anno 23 Eliz. 2. The second Objection was It doth not appear that the Wives Estate continued in her till the Earles death for the Husband and Wife had aliened the same to another and then no primer seizin shall be as is agreed in Binghams Case And to that it was Resolved That the Office was sufficient prima facie for the King because it is a thing collateral and no point of the Writ And if such Alienation be the same shall come in of the other part of the Alienee by a Monstrans de droit And the Case at Bar is a stronger Case because it is found the Councess took the Profits from the death of George the Earl till the finding the Office Trin. 7 Jac. Regis In the Court of Wards Wills Case Henry Wills seized of the 4th Part of the Mannor of Wryland in the County of Dâ—von holden of Q. Eliz. iâ— Socage Tenure in capite of the said 4â—h part enfeoffed Zathary Irish and others and their Heirs to the use of the said Henry for his Life and after his Decâ—ase to Thomas Wills his second Son in Tail and after to the use of Richard Wills his youngest Son in Tail and after the said Henry so seized as aforesaid dyed All this Matter is found by Office And the Question was If the King ought to have primer seizin in this Case that Livery and Ouster le mayne should be sued by the Statutes of the 32 and 34 H. 8. And it was Resolved by the two Chief Justices and the Chief Baron that not if in this Case by the Common-Law no Livery or Ouster le main shall be sued and that was agreed by them all by the experience and couâ—se of the course See 21 Eliz. Dyer 362. and 4 Eliz. Dyer 213. And two Presidents were shâ—wed which were Decreed in the same Court by the Advice of the Justices Assistants to the Court. One in Trin. 16 Eliz. Thomas Stavely enfeoffed William Strelley and Thomas Law of the Mannor of Ryndly in Nottingh â—shire on condition that they re-enfeoffe the Feoffor and his Wife for their Lives the remainder to Thomas Stavely Sâ—n and Heir apparent of the Feoffer in Fee Which Mannor was holden of Q. Elizabeth in Socage Tenure in capite And it was Resolved That no Livery or Ouster le maine shall be sued in such Case because of the saving of the Stat. 32 H. 8.
The words whereof are Saving c. to the King c. all his Right c. of primer seizin and relief c. for Tenure in Socage or of the nature of Tenure in Socage in chief as heretofore hath bin used But there was no Custom before the Act for the King to have primer seizin c. Another President was in Pasch 37 Eliz. in the Book of Orders fol. 444. where the Case was That William Allet was seized of certain Lands in Pitsey called Lundsey holden of the Queen in Socage Tenure in chief and by Deed covenanted to stand seized to the use of his wife for life and afterwards to the use of Richard his younger Son in Fee and dyed and all was found by Office and it was Resolved ut supra But the Doubt oâ— the Case at Bar was because Henry the Feoffor had a Reversion in Fee which descended to the said William his eldest Son Trin. 7 Jacobi Regis The Case of the Admiralty A Bâ—ll was preferred in the Star-Chamber against Sir Richard Hawkins Vice-Admiral of the County of Devon and was charged that one William Hull and others were notorious Pyrates upon the High Seas and shewed in certain what Pyracy they had committed That the said Sir Richard Hawkins knowing the same did receive them and abet comfort them and for Bribes suffered them to be discharged And what Offence that was the Court referred to the consideration of the two Chief Justices and Chief Baron who heard Councel of both sides divers days at Sergeants Inne And it was Resolved by them 1. That the Admirals by the Common-Law ought not to meddle with any thing done within the Realm but onely with things done upon the Sea and that appeareth fully by the 13 R. 2. cap. 5. and therewith agrees 2 H. 4. c. 11. and 15 H. 2. c. 3. So also 2 H. 5. c. 6. 5 Eliz. c. 5. and this agrees with Stamf. fol. 51. 8 Ed. 2. Coron 399. See Plo. Com. 37 b. 2 R. 3. 12. 30 H. 6. 6. by Prisoit 2. It was Resolved That the Statutes are to be intended of a Power to hold Plea not of a Power to award Execution for notwithstanding the said Statutes the Judge of the Admiralty may do Execution within the Body of the County And therefore 19 H. 6. 7. the Case was W. T. at Southwark affirmed a Plaint of Trespass in the Admiralty against J. B. of a Trespass done upon the High-Sea Whereupon J. B. was cited to appear at the common day next ensuing at which day the said J. B. made default And according to the usage of the Court the said J. B. was amerced to 20 Marks Whereupon Command was made to P. as Minister of the said Court to take the Goods of the said J. B. to make agreement with the aforesaid W. T. by force of which he for the said 20 Marks took 5 Cowes and 100 Sheep in Execution for the said Money in the County of Ieicester And there it is holden by Newton and the whole Court That the Statutes restrain the power of the Court of Admiralty to hold Plea of a thing done within the body of the County but they do not restrain the Execution of the same Court to be served upon the Lands In which Case these Points were Resolved 1. Though the Court of Admiralty is not a Court of Record see Brooks Error 77. acc yet by Custom of the Court they may amerce the Defendant for his default by their discretion 2. That they may make Execution for the same of the Goods of the Defendant in corpore Comitatus and if he have not Goods may arrest his Body But the great question between them was If a man commit Pyracy upon the Sea and one knowing thereof receive and comfort the Defendant in the Body of the County if the Admiral and other the Commissioners by the Act 28 H. 8. cap. 16. may proceed by Indictment and Conviction against the Receiver and Abetter the Offence of the Accessary having his beginning within the Body of the County And it was Resolved by them That such a Receiver and an Abetter by the Common-Law could not be indicted and convicted because the Common-Law cannot take Cognizance of the Original Offence being done out of the Jurisdiction of the Common-Law and where it cannot punish the Principal it cannot punish the Accessary And therefore Coke Chief Justice reported to them a Case which was in Suffolk 28 Eliz. where Butler and others upon the Sea next to the Town of Iaystoff robbed divers of the Queens Subjects of their Goods which they brought into Norfolk and there were apprehended and brought before Me then a Justice of Peace in the same County and upon Examination they confessed a cruel and barbarous Pyracy and that the Goods then in their Custody were part of the Goods which they had so robbed And I was of Opinion that in that Case it could not be Felony punishable by the Common-Law because the Original Act was not offence whereof the Common-Law taketh knowledge and then the bringing them into the County could not make the same Felony punishable by our Law Yet I committed them to the Gaol untill the coming of the Justices of the Assizes And at the next Assizes the Opinion of Wray Chief Justice and Perian Justices of Assize was agreeing with Me ut supra and thereupon they were committed to Sir Robert Southwel then Vice-Admiral for those Countieâ— and this in effect agrees with Lacies Case which see in my Reports cited in Bingham's Case 2 Rep. 93. and in Constables Case C. 5. Rep. 107. See Pyracy was Fâ—lony 40 Ass 25. by Schard where a Captain of a Ship with some English-men robb'd the Kings Subjects upon the High Seas and the saith 't was Felony in the Norman Captain and Treason in the English-men which is to be understood of Petit-Treason and therefore in that Case the Pyrates being taken the Norman Captain was hang'd and the English drawn c. hang'd as appears by the same Book See Stamford 10. Trin. 7 Jac. Regis In the Common-Pleas Pettus and Godsalve's Case In a Fine levyed Trinity Term Anno quinto of this King between John Pettus Esq Plaintiff and Richard Godsalve and others Deforceants of the Mannor of Castre c. in Norfolk where in the â—hird Proclamation upon the Foot of the Fine the said Proclamation is said to be made in the sixth year of the King that now is which ought to have been Anno quinto And the fourth Proclamation is altogether left out because upon view of the Proclamations upon Dorsis upon Record not Finis ejusdem Termini per Justiciarios remaining with the Chirographer c. it appeareth the said Proclamations were duly made therefore it was adjudged that the Errours aforesaid should be amended and made to agree as well with the Prâ—clamation upon Record of the Fine and Entry of the Book as with the other Proclamations in Dorsis c. And
THE RESOLUTIONS Of the JVDGES upon the several STATUTES Of Bankrupts As also The like Resolutions Upon 13 Eliz. and 27 Eliz Touching Fraudulent CONVEYANCES By T. B. Esq LONDON Printed for T. Twyford and are to be sold by Hen. Twyford and other Booksellers 1670. Pasch 4. Jacobi Regis Ford and Sheldon's Case upon Information in the Exchequer for the King THomas Ford a known Recusant bâ—fore the 23 of Eliz. for money lent to Sheldon some before and some after the said 23 Eliz. took Recognizance in the Names of others and also a Rent-charge to them in Fee with a Clause of Redemption by Deed the Condition of the Recognizance being for performance of the Covenanss in the Deeds and afterward was made the Statute of the 28 Eliz. which was That as often as any Failer was made in the payment of 20 l. a Month that so often the Queen by Process out of the Exchequer might take and enjoy all the Goods and two Parts c. And after the said Act Ford lent the several Sums of Money and took the Securities as aforesaid amounting in all to 21000 l. which being to Ford's use were all forfeited Afterwards 41 Eliz. was Convict of Recusancy and did not pay the 20 l. a Month If the King should have the Bâ—nefit of these Recognizances and Securities was the Qâ—estion 1. Upon Debate it was objected by Ford's Councel That the Recognizances had not been Forfeited though they had been made in Ford's Name the Statute speaking onely of Goods which doth not include Debts As if the King grant all the Goods of J. S. coming to him by Attainder the Patentee shall not have Debts And a Penal Law shall not be extended by Equity Obj. 2. That three Recognizances are not within the Intention of the Act being Savers of the Realty and acknowledged to perform Covenants as to the Rent-charge Ob. 3. No Fraud was in the Case And then no Statute being in this Case the Common-Law gives no benefit to the King As if Cestuy que use had been Attaint of Treason the Use being but a Trust could not be forfeited to the King And it not a Use A multo fortiori a meer Trust Ob. 4. What Forfeiture accrues to the King in this Case must be by force of the words Goods in the Statute which cannot be Ford having no Goods but a meer Trust Also one Recognizance was taken in the Names of others before the Stature and therefore cannot be thought to defeat the King of a Forfeiture which was not then in use Resolved 1. By all the Barons and Popham Chief Justice of England and divers other Justices that Personal Actions are as well included within this Word Goods in an Act of Parliament as Goods in Possession But because by Law things in Action cannot be granted over therefore by General Grant without special words can never pass And where the Statute saith Shall take seize and enjoy all the Goods and two parts c. the King may well enjoy a Debt due to a Recusant and by Process out of the Exchequer Levy it and so take and seize refers to Goods and two Parts of Lands in Possession Resolved 2. That it was Originally for the Loan of Money and both the Recognizance and Annuity were to secure the said Money And Recognizances fotfeited are but Chattels Personal Resolved 3. There was Covin apparent for he being a Recusant always as aforesaid and so chargeable to the King his taking the Recognizances in the Name of others shall be Construed with an Intent to prevent the King of his Forfeiture And so shall all Recognizances taken in others Names after the said Act be presumed to be taken As to Ceâ—â—uy que use who neither hath Jus in Re nor Jus ad Rem true it is he cannot Forfeit but an Act done to defraud the King of his lawful Duty the King shall not be barred thereof per obliquum if the Act was made de directo And for this If a man outlawed buy Goods in the Names of others the King shall have them notwithstanding So if an Accountant to the King purchase Lands in others Names yet the King shall sâ—ze those Lands for Money due to him And this appears by Walter Cherton's Case Trin. 24. Ed. 3. Rot. 4. in Scaccario for Reâ— fallere non vult falli autem non potest See another President Trin. 24. Ed. 3. Pot. 11. Resolved 4. Noâ—resert Whether the Duty do accâ—ue to the King by the Common-Law or by the Statute And though one of the Recognizances was taken before the Statute of the 28 of Eliz. yet that was to his use And though Ford was not Convict till the 41 of Eliz. that is not material for he was subject to a Forfeiture before Pasch 4 Jac. In Chancery 27 Junii 29 Eliz. The Case between the Lord St. John of Bletso and the Dean of Gloucester The Lord St. John brought a Quare Impedit in the Common-Pleas against the Defendant for the Church of Penmark in the County of Glamorgan which Suit was staid by Aid prayer and the Record removed into the Chancery The Plaintiff moved for a Procedendo and upon Oyer of Cause before Sir Thomas Bromley Lord Chancellor in the presence of Sir Gilbert Gerrard Master of he Rolls and Shute and Windham Justices and Popham Attorney and Egerton Sollicitor of the Queen the Plaintifâ— shewed a Gift in Tail of the said Advowson made to his Anc stor in 18 R. 2. and a Verdict for the same in 12 H. 8. and a presentation by his Grandfather to the said Church of a Clerk that was admitted instituted inducted and had possession divers years with other matters to prove the Plaintiffs Tâ—tle yet for that the Defendant and those from whom he claimes had time out of mind possessed the said Parsonage as Impropriate And for that it will be a dangerous President to all Owners of Impropriations It was Resolved by the Court of Chancery by the advice of the Justices and Councel Learned by the Queen aforesaid That no Procedendo in loquela be granted Vide Ridley fol. 153 154. the beginning of Appropriations and Annuities to be discharged of Tythes Vide ibid. 155. That the Saxon Kings appropriated eight Churches to the Monastery of Croyland Trin. 37 Eliz. In the Exchequer Chamber Crimes and Smith The Abbot of Sulby held the Parsonage of Iubbenhâ—m in Leicestershire to his proper use which as impropriate came to H. 8. by the dissolution of Monasteries 31 H. 8. who in the 37th year of his Reign granted it in Fee-Farm under which Grant the Plaintiff claimed The Defendant obtained a Presentation of the Queen and to destroy the said Impropriation shewed the Original Instrument of it 22 Ed. 4. with Condition in it That a Vicaridge should be competently endowed which was alledged never to be done But for that the Rectory was reputed and taken to be appropriate and a Vicar presented admitted instituted and inducted as a Vicar
lawfully endowed and paid his first Fruits and Tenths Resolved by all the Court that it shall be presumed that the Vicaridge was lawfully endowed And that it is a dangerous President to examine Originalls of Impropriations and Endowments of Vicaridges for that they may perish And so it was decreed for the Plaintiff Hill 4. Jac. Regis Bedle and Beard Anno 31. Ed. 1. The King being seized of the Mannor of Kâ—mbolton to which the Advowson of the said Church was appendant by Letters Patents granted the said Mannor wish the Appâ—â—tenances to Humphry de Bohun Earl of Hereford in tayl generall Humphry de Bohun the Issue in tayl by his Deed. 4 Ed. 3. granted the said Advowson then full of an Incumbent to the Prior of Stonely and his Successors And at next avoydance they held In proprios usus Upon this Appropriation Concurrentibus his quae in jure requiruntur the Prior and his Successors held the same till the dissolution of the Monastery 27. H. 8. The said Mannor descended to Edward Duke of Buckingham as Issue to the Estate Tayl. And the Reversion descended to H. 8. The Duke 13 H. 8. was attaint of High Treason 14 H. 8. The King granted the said Mannor c. with all Advousons appendant c. to Richard Wingfield and his Heirs Males 16 H. 8. It was Enacted that the said Duke forfeit all Mannors c. Advousons c. which he had c. in 4 H. 8. The King 37 H. 8. granted and sold the said Rectory of Kimbolton as impropriate in Fee which by mean conveyance came to the Plaintiff for 1200 li. 37 Eliz. Beard the Defendant got a Presentation of the Queen by Lapse pretending the said Church was not lawfully impropriate to the Prior. 1. For that Humphry who granted to the Prior had nothing in it nothing passing to his Ancestor by these words Manâ—rium cum pertinentiis 2. Or for that having no more but an Estate Tayl by his death his Grant was void But Resolved by the Lord Chancellor Ellesmere with the principal Judges and upon consideration of Presidents that the Plaintiff shall enjoy the Rectory for though by any thing which can now be shewn the Impropriation is defective yet it shall be now intended in regard of the antient and continual possession that there was a lawfull grant of the King to the said Humphry who granted in Fee so that he might lawfully grant it to the said Priory Omnia pâ—â—sumitur Solâ—mniter esse acta And all shall be presumed to be done which might make the antient Impropriation good And antient Grants and Acts shall not be drawn in question though they cannot be shewn for Tempus edâ—x rerum Letters Patents and Writings may consume be lost or imbezilled And therefore the Church was allowed to be rightfully impropriate and the rather in regard of the antient and long possession of the Owners of the said Rectory Mich. 4. Jac. Regis Case of Forfeiture by Treason Hill 43 Eliz. A Case was moved to all the Justices Tenant in Tayl before the Statute of 27 H. 8. made a Feoffment in Fee to the use of himself and his Wife in Tayl. And after the said Statute the Husband was attaint of High Treason 31 H. 8. and dyed The Wife continued in possession and dyed their Issue enter and die and this descends to his Issue and all this found by Office The Question was if the Issue in Tayl or the King shall have the Land 1. And it was objected that the antient Estate Tayl cannot be forfeited because it was discontinued and such right of Action cannot be forfeited As was agreed in the Marquess of Winchesters Case 2. The Feoffor himself in this Case had not any right to the antient Estate Tayl it being extinguished by his Feoffment and therefore by his Attaint could not forfeit what he had not 3. The Issue in Tayl in remitted to that antient right which cannot be forfeited And the new Estate Tayl derived under the discontinuance which may be forfeited by the Statute 26 H. 8. cap. 13. is continued and by Act in Law viz. the discent and remitter avoided And the Kings Estate may be divested out of the King by remitter As if Tenant in Tail grant Land to the King c. and the King grant the Land to the Tenant in Tail for life the remainder to his Son and Heirs for life Tenant for life dies the Issue by and in Law is remitted and the Kings Estate is divested out of him This accords with Plow Com. 489. Nicols Case 1. Resolved that in this Case the Issue in Tail is barred for though right of Action cannot be given to the King by the 26 H. 8. yet when Tenant in Tail discontinues his Estate to the use of himself in Tail and after is attaint of Treason now by that Statute he doth not onely forfeit the new Estate in Tail but by this the right of the antient Estate is barred for ever And so note out of the said Statute a diversity between a naked right of Action not forfeitable and an Estate of Inheritance forfeiâ—able coupled with an antient right for which the Forfeiture of the possession is barred by the said Act And iâ— is not like the Case in Plow Com. of Remitter for this is no barre of an antient right Pasch 4 Jac. Regis Case at a Committee aoncerning Bishops At this Parliament held Pasch 4 Jac. Regis It was strongly urged at a Grand Committee of Lords and Commons in the Painted-Chamber that such Bishops as were made after the first day of the Session were not lawful Bishops 1. Admitting them Bishops yet the manner and form of their Seals Stiles Process and Proceeding in their Ecclesiastical Courts were not consonant to Law Because by the Statute 1 Ed. 6. cap. 2. it is provided That thenceforth Bishops should not be Elective but Donative by Letters-Patents of the King And for that at this day all Bishops were made by Election not Donation of the King therefore the saâ—d Bishops are not lawful 2. By the same Act it is provided That all Summons c. and Process in Ecclesiastical Courts shall be made in the King's Name and Stile and their Seals Engraven with the Kings Arms and Certificates made in the Kings Name It was therefore concluded Thâ—t the said Statute being still in force by Consequence all Bishops made after the Act 1 Jac. were not lawful Bishops And the Proceedings being in the Name of the Bishop makes them unlawful Quia non obserâ—ata forma infertur adâ—ullatio actus Upon Consideration had of these Objections by the Kings Commandment it was Resolved by Popham Chief Justice of England â—nd Coke Attorney of the King and after affirmed bâ— the Chief Baron and the other Justices Attendant to â—he Parliament that the said Act of the 1 Ed. 6. cap. 2. is not now in force being repealed annulled and annihlated by three several Acts of Parliament Any whereof being
in force it makes that Act of 1 Ed. 6. that it cannot stand Quia Leges Posteriores Priores contrarias abrogant And by the Act of the 25 H. 8. cap. 20. Is set forth the manner of Election and Consecration of Archbishops and Bishops And also for the making and execution of all things which belongs to their Authority within which words the Stile and Seal of their Courts and the manner of their Proceedings are included Which Act of 25 H. 8. is revived by 1 El. cap. 1. and consequently that of 1 Ed. 6. cap. 2. is repealed It appears by our Books if a Deacon or Priest take a Wife their Marriage is voidable not void for they had not vowed Chastity Otherwise of a Monk or a Nun. And this appears 5 Ed 3. Title Nonability 26. 19 H. â— Title Bastardy 33. 21 H. 7. 39. 6. Mich. 4. Jac. Regis Case of the Stannaries It was Resolved this Term in the Star-Chamber That the King had not the Emption of Tin in Cornwal by his Prerogative for Stanni nec plumbi fodina c. or other sase Mineb belong not to the King by his Prerogative but to the Subject Owner of the Land But the Emption of Tin in Cornwal belongs to the King as an antient Right and Inheritance for though now a Reason cannot easily be rendred of things done time out of mind yet it may well be that all the Land in that County was the King Demesne and upon Grant of the Land the King reserved the Mines to himself These Tin Mines being of great Antiquity as appears Ex Diodoro Siculo Et certo certius est That all the Land in England is derived mediately or immediately from the Crown and therefore such a Profit may have a reasonable Commencement Usage also allowing it to the King for all Cornwal was within the King's Forest which by King John was disafforested as by Cambden appears And it is evident that before 33 Ed. 1. all the Tin in Cornwal and Devon also was the Kings whoever owned the Land And this is proved by divers Records and by an antient Charter of King John among the Bishop of Exeters Records In haec verba Johannes Dei Gratia Rex Angliae c. Omnibus Bâ—llivis salutem Sciatis quod intuitu Dei pro salute animae nostrae c. dedimus c. Deo Ecclesiae Beati Petri Exon venerabili Patri Simoni Exon. Episcopo successoribus c. decimam de antiqua firma Stanni in Com. Devon Cornub. Habendum sibi successoribus c. cum omnibus libertatibus liberis consuetudinibus ad eam pertinentibus per manus illius vel illorum qui stannaria habuerint in custod c. Rex Roberto de Courtney salutem Mandâ—mus vobis quod sine dilatione difficultate aliqua habere facietis Dominae Johannae Reginae matri nostrae stannaria Com. Devon c. Paten 1 H. 3. H. 4. Rex concessit Johanni filio Richardi stannaria in Cornubia reddendo 1000 marks 4 H. 3. Fines 5 H. 3. Rex c. Sciatis quod concessimus Richardo dilecto fratri nâ—stro stannariam nostram Cornubiae cum pertinen Prohibiting Tin to be transported without the said Richards Licence 10 H. 3 M. 9. See also 10 Ed. 2. Inqui. 2. Nu. 29. There are two several Charters both dated 10 April 33 Ed. 1. One ad emendationem stannariarum nostrarum in Cornub. The other Ad emendationem stannariarum nostrarum in Devon That of Cornwall hath these word Concessimus eisdem stannatoribus quod fodere possint stannum et turbus ad stannum fundendum ubisque in terris nostris et vastis nostris et aliorum quorumcunque in Com. praedict et Aquas et aquarum cursus divertere ubi et quoties opus fuerit c. ad sundaturam stanni sicut Antiquitus coâ—suâ—vit sine impedimento nostro seu aliorum quorumcunque Ac quod omnes stannatores nostri praed totum stannum suum ponderatum c. licitè vendere possint cuicunque voluerint faciendo nobis et haeredibus nostris Cunageum et alias Consuetudines debitas nisi nos vel haerede nostri stannum illum emere volumus This was confirmed 4 Ed. 2. And also 1 17 Ed. 3. De Advisamento consilii nostri ordinavimus quod stannum in Com. Cornub. et Devon ad opus nostrum capiatur pro defensione regni nostri c. Et ad partes marinas celeriter mittatur c. Ita quod hominibus quibus stannum illum capi contigerit de pretio ejusdem stami ad certos terminos solvend sufficiens securitas per nos fiat Assignavimus vos c. ad capiend ad opus nostrum totum stannum in Com. praed Cunitum et etiam Cuniend cum cunitum fuerit with Authority to take Carriages and Commandment to the Sheriff to pay for the same Rot. Amlâ—yne An. 12. R. 2. part 1. Edward the black Prince grant and the King 21 E. 3. confirmed to Tydman of Lymberge Cunageum Stannariae c. nec non emptionem totius Stanni c. infra c. pro fine mille marcarum et reddendo 3500 marcas The like done to one Brockhouse 7 Ed. 6. The Charter of 33 Ed. 1. was confirmed 8 R. 2. 1 Ed. 4. 3 H. 7. The 11 H. 7. a certain weight and measure was ordained to be used through England yet the weights belonging to the Carriage of Tin were excepted in that Statute The Stile of the Court of Stannaries is Magna Curia Domini Regis Ducatus sui Cornub. apud Cockerenton in Com. Devon Johanne Comite Bedford Custode stannar dicti Domini Regis aut Reginae in dicto Com. Devon By which it appears that all the Tin belonged to the King For the Antiquity of Tin Mines in Cornwall see Camdâ—n in Cornwell 121. And Diodorus Siculus L. 5. c. 8. fo 142. 6. Upon which it was resâ—lved 1. That the King hath all the Tin as well in the Subjects Lands as his own 2. It is absurd for the King to reserve Emption of his own Tin 3. The King grants Stannatoribus divers liberties which are enjoyed by the Tinners as well in the Subjects Lands as the Kings own In the Session of Parliament hâ—ld in Decemb An. 4. Jac. Regis Case of the Kings Prerogative in Saltpeter All the Justices viz. Popham Chief Justice of England Coke Chief Justice of the Common Pleas. Fleming Chief Baron Fenner Searle Yelverton Williams and Tanfield Justices met at Sergeants Inne to consult what Prerogative the King had in digging and taking of Saltpeter to make Gunpowder by the Law And upon conference between them these points were resolved by them all 〈◊〉 voce 1. That in as much as Gunpowder concerns the defence of the Realm and insomuch as Saltpeter whereof Gunpowder is made is within the Realm the King shall not be driven to buy it but may take it according to the Limitations following 2. That
though the King cannot take the Trees of his Subject growing upon his Freehold nor Gravel in the Inheritance of his Subject for reparation of his houses as 11 H. 4. 28. Yet 't is resolved that he may dig for Saltpeter because the Kings Ministers who dig for the same are bound to leave the Inheritance of the Subject in as good plight as they found it which they could not do if they should cut the Timber growing which would be to the Subjects disinherison The Case of Gravel for reparation of the Kings Houses may not be compared to this for Saltpeter extends to the defence of the whole Realm not so the reparation on of the Kings Houses 13 H. 4. The King may charge for Murage of a Town And so for Portage but not for making a Wall about his own House When Enemies invade the Realm it is lawful to come upon any Land adjoyning to the invaded Coast to make Trenches or Bulworks 8 Ed. 4. 23. And in such Cases they may dig for Gravel 3 H. 8. fo 15. And in this Case the Rule is true Princeps et republica ex justa causa possunt rem mean auferre 3. Resolved That the taking of Saltpeter is a purveyance of it for the making of Gunpowder for the necessary defence of the Realm And therefore is an incident inseparable from the Crown and ought to be taken onely by the Kings Ministers and not converted to any other use then the defence of the Realm And 't is not like Silver or Gold Mines for there the King hath Interest in the Mettall and may dig Quia quando lex alicui concedit aliquid Concedere videtur id sine quo res ipsa esse non potest Vide Plow Com. in le Case de Mynes so the King may dig for Treasure Trove eadem ratione 4. The Ministers of the King cannot undermine weaken or impair any the Walls of Foundations of any Houses or Buildings whatsoever Nor dig in the Flore of a Mansion-house which serves for the Habitation of a man because it is his place of refuge and defence There are two notable Presidents that the King by his Prerogative had power to prohibit Depopulation and provide for Habitation The one in the 43 Ed. 3. Rot. claus in turri num 23. provillade Southampton The other An. 21. R. 2. in dorso claus par 1. N. 15. Neither may the Kings Ministers dig in any Barn-floore used for Corn Hay c. but they may dig in the floores of Stables and Oxehouses so that they leave room for the Horses and other Cattel of the Owner and put it in convenient time into as good plight as they found it Also they may dig in Cellars and Vaults and and Mud-walls being not Walls of a Mansion-house and in the ruines and decayes of any Houses or Buildings 5. They ought to make the places where they dig as commodious to the Owner as before 6. They may work in the possession of the Subject but betwixt Sun-rising and Sun setting 7. They may not place any Furnace or other Vessels in any Subjects House without consent nor so near it as to prejudice the same 8. They are not to stay over long in a place nor to return thither again in a long time 9. Resolved That the owner of the Land cannot be restrained from digging and making Saltpeter for the King hath no Interest in it the property is in the owner of the Land Before the 31 Eliz. no King or Queen of this Realm granted any Licence for taking Saltpeter but in that 31 year there were two the one to George Constable Esque and the other generall to George Evelin Richard Hills and John Evelin And after Scilicet 18 Octob. 2. Jacob. Commission was granted to Evelin and others to take Saltpeter c. So that there were but three Licences ever made Case of Treason In this very Term one George Leake a Chancery Clark had upon an ordinary piece of Parchment by great deceit fixed with a kind of Glew another Parchment so thin that it appear but one piece And upon the thin piece he writ by good Warrant a Li ense which brought to the Chancellor was sealed with the Great Seal After the George took the thin piece upon which the writing was from the other to which the Seal was fixed and then all was blank with the Great Seal annext upon which blank the said George writ a Grant of the King of certain Lands and what Offence this was was the Question And after a long debate upon the 25 Ed. 3. 2 H. 4. 25. Stamford l. 1. fol. 3. 40 Ass pla 33. 37 H. 8. Title Treason 2 H. 4. Claus 42 Ed. 3. memb 8. in dorso where the Case was That King Richard the First by his Charter granted divers Lands and Liberties Abbati de Bruera in which the Abbot rased out this word Fittetrida and instead of it writ est leigh and upon shewing it obtained a confirmation of it from King Ed. 3. And an allowance of it in Banco R. And for this Offence the Abbot was called before the King and Council in the Star-Chamber where the Abbot being Convict it was part of the Sentence That the Charter confirmation and allowance of it should be brought in to be cancelled where note 1. The Antiquity of the Star-Chamber being then a Court. 2. That the rasure was not any Counterfeit of the Great Seal for if the Offence had been High Treason it should not have been determined before the King and Council 3. That Spiritual Persons were then punishable before Temporal Judges 4. That if there be a rasure of a Deed between Subject and Subject in a place material all the Deed becomes naught so if a Patentee rase his Heirs Patents in a place material Thence concluded That if the rasing of a word in the Kings Patent be not Treason then the rasing of two or three or all the words of the Patent and writing a new Grant is not Treason By the Statute of the 25 Ed. 3. it is provided That because many other Cases of like Treason might happen in time to come which men cannot think or declare at present That if another Case suffered Treason and not specified in the Act shall come before any of the Justices they shall stay without going to Judgment of Treason untill the Case be shewen before the King in Parliament 1. That though a Case happen like to the Cases of Treason mentioned in the said Act yet that the Judges ought not to judge it Treason but it ought to be declared in Parliament 2. That when a particular Case was adjudged High Treason as the Case of murdring an Embassador of a King Et Legatos violare contra jus Gentium est Afterwards George Leake upon Examination before the chief Justice of England made a clear Confession of of all the manner and circumstances of the Fact as aforesaid whereupon Two Questions were moved 1. Whether this Offence
were High Treason or no And in this the Justices were divided my self and divers others holding That this Act was not Treason but the chief Justice and divers others were against us 2. If it be High Treason then whether he may be indicted generally for the Counterfeiting of the Great Seal or else the special Fact must be expressed By reason of diversity of Opinions Râ—spectuatur vid. Fleta lib. 1. cap. 22. Item crimen falsi dicitur cum quis illicitus cui non fuerit ad haec data authoritas de sigillo Regis rapto vel invento et brevia Carteria vide le Attainder de Elizabeth Barton Edw. Bocking by Parliament c. 25. H. 8. c. 12. Hill 24 Eliz. In the Exchequer A Merchant brought eighty weigh of Bay-Salt by Sea to a Haven in England and out of the Ship sold 20 weighs and discharged them to another Ship wherein they were transported being never actually put on shore and for the residue viz. 60 weigh he agreed for the Custome and put them upon Land and now the dâ—nbt was 1 Eliz. cap. 12. for the words of the Statute concerning Exportation sent from the Wharfe Key or other place on the Land and concerning Importation taken up discharge and lay on Land If in this Case the said 20 weighs which alwayes were waterborn and never touched the Land ought to pay Custome as well inwards as outwards And it was Resolved That in both the Cases Custome ought to be paid and forasmuch as no Custome was paid It was Resolved That the Goods were forfeited Note No Act of Parliament can bind the King from any Prerogative which is sole and inseperable to his person but that he may dispence with it by a non obstante as his Soveraign Power of Commandines his Subjects to serve him for the publick Weal See 23 H. 6. cap. 8. 2 H. 7. 66. 13 R. 2. Parl. 2. cap. 1. See also 4 H. 4. cap. 31. Coke l. 2. fol. 69. But in things which are not incident solely and inseparably to the person of the King but belongs to every Subject and may be severed there an Act of Parliament may absolutely bind the King As if an Act of Parliament do disable any Subjects of the King to take any Land of his Grant or any of his Subjects as Bishops as it is done by the Statute 1 Jac. cap. 3. to Grant to the King this is good for to grant or take Lands or Tenements is common to every Subject Hill 4. Jac. Regis Care of High Commissioners If they have Power to Imprison Mich. 4 Jac. post prand There was moved a Question amongst the Judges and Sergeants at Sergeants Inn If the High Commissioners in Ecclesiastical Causes may by force of their Commission imprison any man or not First Resolved by all That before the Statute of the first of Eliz. the King might have granted a Commission to hear and determine Ecclesiastical Causes yet the Commissioners ought to proceed according to the Ecclesiastical Law allowed within the Realm Vide Caudrye's Case 5 Report Then all the Question rests upon the Act 1 Eliz. which hath three Branches 1. Such Commissioners have power to exercise Jurisdiction Spiritual and Ecclesiastical 2. By force of Letters-Patents they have power to visit reform c. all Heresies c. which by any manner of Spiritual or Ecclesiastical Power c. can or lawfully may be Reformed c. So that these Branches limit the Jurisdiction 3. That after such Commission delivered to them shall have power by vertue of this Act and the said Letters-Patents to exercise c. all the Premisses c. according to the Tenor c. This Branch gives them Power to execute their Commission But it was Objected That this Branch gave no power to the Queen to alter the Proceedings of the Ecclesiastical Law or to prescribe what manner of proceedings or punishment concerning the Lands Goods or Bodies of the Subject And this appears by the Title of the Act Restoring the intent being to make Restitution not any Innovation Vide a notable Case adjudged in this Point Hill 42. El. â—o 389. as to Imprisonment Smith's Case for at the last Consultation was granted And at last by the better Opinion as to things committed to them by Commission they may put Fine and Imprisonment By the 3 H. 7. cap. 14. 't is Ordained where Women as well Maids as Widows and Wives having substance c. for the lucre of such substance be taken by Misdoers contrary to their Wills and after marryed c. or defiled That what person henceforth so taketh c. against her will c. such taking c. to be Felony And the Misdâ—ers c. to be reputed as Felons Upon this great question was moved 4 5 Phil. Mar. in the Star-Chamber If the Eloym ent against her without Mariage or Carnal Copulation be Felony or no And the Opinion of Brook and some other of the Justices was that It was Felony But Sanders Lord Chief Justice was against it and afterwards as Peryam chief Baron did Report It was Resolved by all the Justices That such Eloynment onely is not Felony by the intent of the Statute without Marriage or Carnal Copulation Note By the express purview of the Act the Accessary both before and after is made Principal Pasch 4 Jac. Regis By the Commandement of the King it was referred to Popham Chief Baron and my self what Right the Queen which now is hath and in what Cases to a Right claim'd by her called Aurum Reginae that is to say Pro centum marcis argenti una marca Auri solvendum per illum qui se sponte obligat And upon consideration had thereof and view of Records and Presidents viz. Librum Rubrum in Scaccario fol. 56. de Auro Reginae where it is said that this is to be taken De iis qui sponte se obligant Regi c. which is the Foundation of this Claim And of a Record in the Tower 52 H. 3. And a Record in the Exchequer 4 Ed. 1. And a Record in the Exchequer Hill 12 Ed. 3. And in the Tower in the same year in Rot. Claus And of Acts of Parliament 15 Ed. 3. cap. 6. and 31 Ed. 3. cap. 13. and 13 R. 2. in Turri And divers other Presidents and Process out of the Exchequer in the time of R. 2. H. 4. and other Kings till H. 7. It was Resolved that the Queen hath Right to it but with these Limitations 1. It ought to be sponte by the Subject sine coactione And for this all Fines upon Judgments or by Offer or Fine for Alienation or any other Case where the Subject doth it not sponte sine aliqui coactione That the King of Right ought to have it there the Queen shall have nothing 2. It ought to be sponte sine consideration alicujus reventionis seu interesse That the King hath in esse in jure Coronae As upon Sale
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
caetero 2. Obâ—enta in contrarium consuetudine non obstante And this agrees with the Register and Treaties de Regia prohibitione and the other Authorities And it appears in Linwood cap. jurejurandi fol. 8. 9. That Boniface Archbishop of Canterbury 1272. 57 H. 3. made this Cannon Statuimus quod Laici de subditorum peccatis c. per praelatos judices Ecclesiaslicos inquiratur ad praestandum de veritate dicenda Sa ramentum per excommunicationis sententias si opusfuerit compellantur impedientes vero ne hujusmodi juramentum praestetur per interdict est excommunicatio c. In which Cannon it is to be noted That it extends to Lay-People And note Linwood saith cap. Jurejurandi fol. 6. litera E. Hic dicitur causa editionis hujus c. Praelati c. procedebant ad inquirendum de criminibus c. Laici nota hic suffult potestate dominorum in hujusmodi inquisitionibus noluerint jurare de veritate dicenda 1. Note Why Lay-people refused to be examined for Crimes and Excess 2. The Judges of the Common-Law by their Prohibition did interdict c. as appears by their Register and other Authorities in Ed. 1. time c. 3. That where by the Law they may examine Lay-people upon Oath in causis matrimonialibus testamentariis Here Boniface makes the Canon to extend to Peccata excessus which Canon was utterly against the Law and Custom of England See another at the same time in Linwood Cap. de Benef. fo 231. And this is declared by Act of Parliament made 9 Ed. 2. called Articuli Cleri si Praelati imponant poenam pecuniariam alicui pro peccato c. Regis prohibitio locum habet Trin. 5 Jac. Regis Case concerning Pardons The Law so regards the Weal-publike that though the King shall have the Suit solely in his Name for the redress of it yet by his Pardon he cannot discharge the Offender because it is not onely in prejudice of the King but in damage of the Subjects If a man ought to repair a Bridge and for default of Reparation it fall to decay in this Case the Suit ought to be in the King's Name and he is sole Party to it but for the benefit of his Subjects And if the King pardon it yet the Offence remains but peradventure the Pardon shall discharge the Fine for the time past And with this agrees 37 H. 6. 4. 6 Plow Con. in Nichol's Case 487. A multo fortiori in case of Depopulation for this is not onely an Offenc against the King but against all the Realm for by this the Realm is infeebled and therefore Depopulation and Diminution of Subjects is a greater Nusance than the hindrance of Subjects in their good and easie passage by any Bridge or High-way And for this notwithstanding the King's Pardon he shall be bound to re-edifie the Houses of Husbandry which he depopulated and though for the time before the Pardon perchance he shall not be Fined yet without doubt he shall for the time after For the Offence it self cannot be pardoned as in Case of a Bridge or High-way because it is malum in se But this continues as to the Fine and Imprisonment at all times after the Pardon But the Penalty inslâ—cted by the Statute may be discharged Quia prohibitum Vide 3 Ed. 3. Tit. Ass 443. But when the King chargeth his Subjects for the making of a Bridge or Cawsie or Wall c. there the King may discharge the Pontage Murage c. Note If one be bound to the King in a Recognizance to keep the Peace in this Case the King before the Peace broken cannot pardon and release the Recognizance as 't is agreed 11 H. 4. 43. 37 H. 6. 4. 1 H. 7. 10. because it is made for the Safety of the King's Subjects Note No Licence can be made to do any thing that is Malum in se but Malum prohibitum 11 H. 7. 11. 3 H. 7. 39 H. 6. 39. Trin. 5 Jacobi Regis Case of Commissions Note Commissions in English under the Great Seal were directed to divers Commissioners in the Counties of Bedford â—ucks Huntington Northampton Leicester and Warwick to inquire of divers Articles annexed which were also in English to inquire of depopulation of Houses converting Arable Land into Pasture c. the Commissioners onely to have power to enquire not to hear and determine By colour whereof many Presentments wiere taken in English and returned into the Chancery and after viz. Trin. 5 Jac. It was Resolved by the two Chief Justices Walmesly Fenner Yelverton Williams Snig Althum and Foster that the said Commissions were against Law for three Reasons 1. Because they were in English 2. Because the Offences inquirable were not certain in the Commission but in a Scâ—edule annexed 3. Because that it was onely to enquire which is against Law for so a man may be unjustly accused or defamed and shall have no Remedy nor Traverse to it for it is not within the Statute of the 5 Eliz. At Common-Law Assizes were not taken but before Justices in Eyre who sit virtute brevis every seventh year Vid. Britton fo 1. and Bracton lib. 5. and 11. or in the Common-Pleas And because this was a great trouble it was provided by Magna Charta cap. 30. Quod requisitiones de nova disseizina de mort ' d'an cester non capientur nisi in propriis Comitatibus c. And after by the Statute of Westminster 2. cap. 30. it was provided Quod assignentur duo Justiciarii jurati coram quibus et non aliis capiantur assiz ad plus ter per annum By which Act justices of Nisi Prius were constituted of other Pleas as well of one Bench as the other Coram quibus c. And by the same Act Justices of Nisi Prius may give Judgment in Assizes of Darreine presentment and quare Impedit Then came the Statute 21 Ed. 3. de flâ—ibus cap. 4. and provided that inquisitioâ—es et recognitiones capiantnr tempore vacationis generally before aliquo Justiciario de utroque Banco coram quibus c. And after by the Statute of York cap. 3. It is provided That in Plea of Land Nisi Prius shall be taken before one of the Justices c. and Cap. 4. That no other Pleas moved by Attachment or Distress shall be taken before any Justice c. By the 14 Ed. 3 cap. 15. Nisi Prius may be taken in any Plea before two so one be Justice of one Bench or Chief Justice or Serjeant sworn By the Statute de finibus cap. 3. Justiciarii ad assizas capiend assignati deliberant Gaolas in Com. illis c. vide de recitat del Stat. 28 Ed. 1. de appellat which recites the Statute defâ—lonia Felony formerly included Trespass vide Stamf. 57. 3 H. 3. cap. 7. gives power to Justices of Assize to hear and determine Treason concerning false Money 14 H. 6. cap. 1. gives
2. Parl. accord 1 R. 3. against Benevolence Vide Claus 4 Ed. 3. n. 22. bis Case of Libells between Edwards and Wooton In Cam. Stellat The Case was That Doctor Wooton writ to Edmunds an infamous malicious scandalous and obscene Letter with his Name subscribed And this he Sealed and directed to his Loving Friend Mr. Edward Speed this and after the said Doctor dispersed to others a great number of Copies of the said Letter And it was Resolved by the Lord Chancellor Egerton the two chief Justices et per totam curiam That this was a subtle and a dangerous kind of Libell For though the writing of a private Letter without other Publicatior the Party to whom it is directed cannot have an Action Sur le Case but where it is published to others ' to the Plaintiffs Scandal Action lyeth The Doctor thought this could not in any manner have been punish't but 't was Resolved That the infamous Letter which in Law is a Libell shall be punished in the Star-Chamber being an Offence to the King and a motive to breach of the Peace And in the Case at Bar the dispersing of Copies of it aggravates the Offence for which also the Party may have an Action Sur le Case Note By the Civil Law a Person disabling himself to bear Office or making a Libell against himself shall be punished And though the Doctor subscribed his Name to the said Letter yet it importing matter Scandalous is in the Law a Libell The Law of the Lydians is That who slanders another shall be let Blood in the Tongue who hears it and ascents to it in the Ear c. Mich. 5 Jac. Regis Wooton and Edwins Case In Replevin the Defendant avowed and the Plaintiff demurred and the Case was thus William Hawes was seized in Fee of a Messuage and 55 Acres of Land five Acres of Meadow and six Acres of Pasture in Formanton in Com. Hereford and 27. Junii 28 H. 8. by Indenture demised the Tenement aforesaid to N. Traheron for 79 years Reddendo inde annuatim praefat Gulielm Hawes et assign suis 26 s. 8 d. at the Feasts of the Annunciation and St. Michael by equal portions And after the Lessor dyed and the Reversion descended to William his Son under whom the said John Edwin Claimed And the sole Point was If the Rent reserved in this Case shall go to the Heir or be determined by the death of the Lessor If the Lessor had reserved the Rent to him without more this shall determine by the death of the Lessor And the addition of the word Assignes shall not enlarge the reservation for the Assignes cannot have the Rent longer than the Lessor himself should have it Vide 18 Ed. 3. tit Ass 86. 10 Ed. 4. 18. 27 H. 8. 19. per Audlâ—y et vide Hâ—ll 33 Eliz. Rot. 1341. In a Replevin enter Richmond and Butcher Butcher avowed for Rent as Heir to his Father upon a Demise made by his Father of certain Lands for 21 years by these words Reddendo proinde durant termin 21 annos praefat Patri executor et assignat suis 10 l. legalis c. ad festa c. And it was adjudged That by this Reservation the Heir should not have the Rent because the Reservation was to the Father and his Executors c. not to his Heirs Mich. 5 Jac. Regis Case concerning Buggary The Letter of the Statute 25 H. 8. cap. 6. If any Person shall commit the detestable sin of Buggary with Mankind or Beast c. it is Felony which Act being Repealed 1 Mar. is revived and made perpetual 5 Eliz. cap. 17. and he lose his Clergy It appears by antient Authorities of the Law That this was Felony but they vary in the punishment For Britton who writ 5 Ed. 1. cap. 17. saith That Sorcerers Sodomers and Hereticks shall be burned F. N. B. 269. agrees with it But Fleta lib. 1. cap. 35. Christiani Apostati c. debent cumburi this agrees with Britton but Pecorantes et Sodomitae terra vivisâ—ffodiantur But in the Mirror of Justice vouched in Plow Com. in Fogosses Case the Crime is more high for there it is called Crimen laesae majestatis a horrible Sin against the King either Celestial or Terrestial in three manners 1. By Heresy 2. By Buggary 3. By Sodomy Note Sodomy is with mankind and is Felony and to make that Offence Opertet rem penetrate et semen naturae emittere et effundere for the Indictment is Contra ordinationem Creatoris et naturae ordinem rem habuit veneream dictumque puerum carnaliter cognovit and so it was held in the Case of Stafford Paederastes â—mator puerorum Vide Rot. Parl. 50 Ed. 3. 58. So in a Rape there must be penetration and emission of Seed Vide Stamf. fol. 44. which Statute makes the Accessary Guilty of Felony West 1. cap. 34. If a Man ravish a Woman 11 H. 4. 18. If one Ayd another in a Rape or be present he is principle in the Buggary Vide Levit. 18. 22. et cap. 10. 13. 1 Cor. 6. Case of Premunire In Doctor Cosines Book intituled An Answer c. and publisht 1584. And a Pamphlet lately publisht by Doctor Ridley they would obtrude upon the World That in regard by the Act 10 Eliz. cap. 1. all Spiritual and Ecclesiastical Power within the Realm is annexed to the Crown and the Law thereof is the Kings Ecclesiastical Law That therefore no Premunire lyes against any Spiritual Judge for any cause whatsoever And the Reasons some of their Profession give to confirm it are 1. That when the Statute of Premunire was made the Pope usurped Ecclesiastical Jurisdiction though de jure it belonged to the King But now since the King as well de facto as de jure is Supream Head of all The cause being changed the Law is changed also 2. â—T conclusion of the Writ of Premunire is in Domini Regis contemptum et prejudicium et dictae Coronae et dignitatum suarum Laesionem et exhaeredationem manifestam et contra forman statuti c. which proves the Jurisdictions united to the Crown and what is united to and derived from the Crown cannot be said contra Coronam et dignitatem Regis 3. The High Commission Court is the Kings Court and therefore though it may be said The Consistory Courts are Curiae Episcoporum yet that Court by force of the High Commission is the Kings and so their Proceedingâ— shall not be lyable to the Premunire 4. This new Court is erected by Act of Parliament c. And because the Sâ—atute of R. 2. speaks de curia Romana seu alibi c. This alibi cannot extend to a Court erected by Act of Parliament 10 Eliz. But to these Objections it was answered and resolved by divers Justices in this Term That without Question theâ— Statutes of 27 Ed. 3. 16 R. 2. c. de Premunire are yet in force And all proceedings before any
die causa c. Et iidem Justiciarii hic visa causa illa ulterius fieri fecerint quod c. Et modo hic ad hunc diem viz. diem Sab. prox Oct. Sanct. Mich. isto eoâ—um termino venit praed Anthonius in propria persona suaâ— sub custod praed Guard ad Barr. hic praed idem Guardianus tunc hic mand Quod ante advent brevis praed vâ—z 9. die Oct. ult praeter praed Anthonii Roper mil. reducit se prison praed perantea Commissus virtute cujusdam â—arranti dat 30 die Junii ult praeter quod sequitur in haec verba viz. These are in his Majâ—sties Name to require and charge you by Vertute of his High-Commission for causes Ecclesiastical under the Great Seal of England to us and others directed that herewith you receive and take into your Custody the Body of Sir Anthony Roper Knight and him safely detain c. signifying unto you That the cause of his Commitment for that there being a certain cause c. betwixt him the said Sir Anthony Roper and John Bullbrooke Vicar of Bently for that he detained wrongfully from him the said Vicar a certain yearly Pension c. Given at Lambeth this thirtieth of June 1607. Et quod haec suit causa captionis et detentionis praed Anthonii in prison praed corpus tamen praed Anthonii modo hic paratus hâ—bet prout â— super quo visis praemissis per Justiciurios hic plenius examinatis videtur iisdem Justiciariis hic quod praed causa Commissionis praed Anthonii prison de Fleet praeâ— in retorn spâ—cificat minus sufficiens in lege existit c. Idco prad Anthonius a prisona prad per-Cur hic dimittitur ac idem Guardianus de hujusmodi Custodia per eand Cur. hic plene exoneretur And this was resolved una voce by Coke chief Justice Walmesly Warberton Daniel and Foster Justices And in the same Term in I am's Case A Parson in Noâ—folk that sued one of his Parishioners before the High-Commissioners for Scandal in saying only in the Church on a Sabbath day That he was a wicked man and an arrant Knave Prohibition lyes for this That it was not so enormous as the Staâ—â—te intended Hill 5 Jac. Regis Note It was moved to the Justices this Term upon consideration of the Acts of 34 H. 8. and 18 Eliz. If the Justices in Wales may be Constituted by Commission and it was conceived they could not but that it ought to be by Patent as hath been ever used since 34 H. 8. Then it was moved If the King by force of a Clause there in might do it which Clause is That the King 's most Royal Majesty shall and may at all times hereafter change adde alter minish and reform all manner c. And it seemed to divers of the Justices that this Power given to the King determin'd by his Death for divers Causes 1. Because it wants these Words His Successors and to draw it in Succession by Construction would be against the Intention of the Maker of the Act For they gave this high Power of Alteration c. of Laws to the King as to his most Excellent Wisdom shall be thought most meet which words want His Successors For they well knew his Wisdom did not go in Succession so the Power went not in Succession And for this that Eorum progressus ostendent multa quae ab initio provideri non possunt And what ensues upon this concerning this uniting of Wales and England none could divine But it was never the Intention of the said Act to give Power to the King and his Successors for ever to alter c. 2. Power of Alteration of Laws c. is a Point of Confidence concerning the Administration of Justice which the Act by omitting of his Successors intended to unite this Confidence to the Person of H. 8. and not to extend it without Limitation of time to his Successors 1 Ed. 5. 1. 1 H. 7. 1. 14 Ed. 4. 44. All Commissions concerning Administration of Justice determine by the King's Death Not so if he make a Lease durante bene placito or present one to a Church these are not void by his Death untill revoked by his Successor And upon Certificate of the Justices Opinion That the Justices of Wales cannot be Constituted by Commission Baron Snig had a Patent for the Circuit of Wales as others before him had Trin. 6 Jac. Regis This Term it was Resolved per totam Curiam in Communi Banco viz. Coke Chief Justice Walmesly Warberton Daniel and Foster in the Case of Allan Ball That the High-Commissions cannot be force of the Act 1 Eliz. cap. 1. send a Pursivant to Arrest any Person subjâ—ct to their Jurisdiction to answer to any matter before them But they ought to proceed according to Ecclesiasticall Law by Citation And in the Circuit of Northampton when the Lord Anderson and Glanvile were Justices of Assize a Pursivant was sent by the Commissioners to Arrest the Body of a Man to appear before them and in resistance of the Arrest and striving among them the Pursivant was killed And if this was Murther or not was doubted and it was Resolved that the Arrest was tortious and by consequence that this was not Murther though the killing of an Officer of Justice whose Authority is lawful in Execution of his Office is Murther But they may send Citation by a Puisivant and upon default proceed to Excommunication and then to have a Capias Excommunicatum which Writ de excommunicato capiendo is preserved and returnable by the Statute 5 Eliz. See Magna Charta and all the antient Statutes Vid. Rast Title Accusation Marmaduke Langdale's Case In the Case of Marmaduke Langdale of Leventhorp in the County of York by Joan his Wife being sued for maintenance before the Bishop of Canterbury and others High-Commissioners It was Resolved per totam Curiam praeter Walmesly that a Prohibition before granted was well maintainable because it was not any Enormity nor Offence within the Statute but a neglect of his duty and a Breach of his Vow of maintenance And the Rule of the Court was That the Plaintiff shall count against the High-Commissioners and upon Demurrer joyned the Case to be argued and adjudged and the Party grieved to have a Writ of Errour si sibi viderit expedire c. Upon Complaint made to the King and Councel by the Lord President of Wales and the Lord President of York against the Judges of the Realm and the King's Pleasure signified to them Upon Consideration had of the parts of the Complaint they Resolved upon these Answers And because of the Lord President of York first opened the Cause of his Grief more amply they first answered those Objections made on the behalf of that Councel And first as to the Institution of that Court. 1. After the Suppression of all Religious Houses Anno 27. H. 8. in
one Bellingham 2 Jac. in Westminster-Hall Sedentibus Curiis with his Elbow and Shoulder out of malice justled Anthony Dyer of the Temple that he overthrew him and spurned him with his Feet upon the Legs but smote him not in any other manner And yet it was held That his right hand should be cut off c. upon which Bellingham was indicted in Banke le Roy and after got his Pardon A Case was put to all the Justices of England viz. The Bishopricks of Waterford and Lismore originally two Bishopricks by lawful Authority in the time of H. 3. were united but the Chapters yet remain several After which Union the Bishop aliened Lands of the Sea of Waterford and also of the Sea of Lismore with confirmation of the Chapter of Lismore 1. The Question was Whether such Alienations are not voydable by the Successor being with the Confirmations of both the Deans and Chapters 2. The second Question was Whether the Queen might avoid such alienations by seizure or otherwise The Justices demanded a View of the Union to which it was answered That it was not extant then was it Resolved by the Justices That inasmuch as the Usage hath been after the Union that the several Deans and Chapters have severally made Confirmations ut supra it shall be intended that the Union notwithstanding yet for avoiding Confusion and in respect of the remoteness of the Deans and Chapters that Estates made shall be severally confirmed as before the Union and then such Confirmations shall be good for in such Case Modus conventiovincunt Legem 50 Ed. 3. Title Assize Statham Ri. 2. Title Grant 27 H. 8. Dyer 58. 11 Eliz. Dyer 33 H. 8. 2. It was Resolved That upon a lawful Alienation made with Confirmation of the Dean and Chapter no contraformam collationis lyes upon the Statute of Westm â— See my 7th Reports Trin. 8 Jacobi Regis Convocation Case It was Resolved by the two Chief Justices and divers other Justices at a Committee before the Lords of Parliament concerning the Authority of a Convocation 1. That a Convocation cannot assemble without the assent of the King 2. That after their Assembly they cannot confer to Constitute any Cannons without Licence d l Roy. 3. When upon Conference they conclude any Cannons yet they cannot exâ—cute any of them without Royal assent 4. They cannot execute any after Royal assent but with these Limitations 1. That they be not against the Kings Prorogative 2. Nor against the Common Law 3. Nor against Statute Law 4. Nor against any Custom of the Realm And all this appears by 25 H. 8. cap. 19. 19 Ed. 3. Title Quare non admisit 7. 10 H. 7. 17. Merton cap. 9. 2 H. 6. 13. A Convocation may make Constitutions to bind the Spiritualty because they all in person or by representation are present but not the Temporality 21 Ed. 4. 47. The Convocation is Spiritual and so are all their Constitutions Vide the Records in Turri 18 H. 8. 8 Ed. 1. 25 Ed. 1. 11 Ed. 2. 15 Ed. 2. Prohibitio Regis ne Clerus in Congregatione sua c. attemptet contra jus seu Coronam c. by which it appears they can do nothing against the Law of the Land or the Kings Prerogative Case of Piracy Trin. 8 Jacobi Regis In this Term the King referred the Consideration of Letters Patents of the Lord Admiral of England to the two Chief Justices and the Chief Baron whether by the said Letters Patents the Goods which Pirates should take from Others by Robbery and Piracy did pass to the Lord Admiral or no. And upon Consideration thereof it appeared to us That he had Bona et Catalla Piratorum and also Bono et Catalla depraedata Goods robbâ—d from others which did not pass for two Causes 1. If the King Grant Bona et Catalla Felonum the Patentee shall have the Goods and Chattels of the Felon himself but not the Goods and Chattels which the Felon stealeth from others 2. The Goods taken from Others the King cannot Grant for it appears by the Statute 27 Ed. 3. cap. 8. St. 2. That the Merchant c. so robbed shall be received to prove that the Goods and Chattels belong to him by his Cockâ—â— or other lawful Proof c. the said Goods shall be delivered without any Suit at Common Law But it was Resolved That till such proof be made the King may seize the Goods for Goods of which the property is unknown the King may seize And if they are bona peritura the King may sell them and upon proof c. restore the value And the Owner is not limited to any time by the Statute 31 H. 6. cap. 4. 2 R. 2. cap. 2. 13 Ed. 4. 9 10. a good resolution of the Justices and the Register 179. F. N. B. 114. when a Subject of the King spoiled beyond Sea shall have a Writ c. for to take Goods within England c. Case of Simony Trin. 8 Jacob. Regis It was agreed ad mensam by all the Justices and Barons in Fleet-street That if the Patron for any Money present any Parson to a Benefice with Cure c. then every such Presentation c. thereupon are void though the Presence be not party not privy to it for the Statute intends to punish such wicked avarice and gives the Presentation to the Queen And this per verba Statuti penned strongly enough against corrupt Patrons Proclamations Mich. 8 Jacobi Regis On Thursday the 20th of Sept. 8 Regis Jacobi I was sent for to attend the Lord Chancellor the Lord Treasurer Lord Privy-Seal and Chancellor of the Dutchy the Attorney Sollicitor and Recorder being present And two Questions were moved to me by the Lord Treasurer 1. If the King by his Proclamation may prohibite new Buildings in and about London 2. If the King may prohibite the making of Starch of Wheat The Treasurer said These were preferred to the King as Grievances and against the Law and Justice To which the King Answered That he will conferr with his Privy-Council and Judges and then he will do them right To which I answered That these Questions being of great Importance I did desire that I might have Conference with my Brethren the Judges To which the Chancellor said Every President had first a Commencement and that he would advise the Judges to maintain the Kings Prerogative and where there was no President to leave it to the King and all concluded it should be necessary to confirm the Kings Prerogative with our Opinions To which I answered True it is every President hath a Commencement but when Authority and President is wanting there needs great Considerations before any Novelty be established For I said The King cannot change any part of the Common-Law nor create any offence by his Proclamation But I desired to Confer with my Brethren for Deliberandum est diu quod Statuendum est semel To which Mr. Sollicitor said Dâ—vers Sentences were given
in the Star-Chamber upon the Proclamation against Building and that I had given Sentence against the said Proclamation To which I answered That Presidents were to be seen and Considerations to be had upon Conference with my Brethren for Melius est recurrere quam male currere and Indictments conclude contra leges statuta never contra regiam Proclamationem At last my motion was allowed and the Lords appointed the two Chief Justices Chief Baron and Baron Altham to consider of it Note the King by his Proclamation or otherwise cannot change any part of the Common-Law Statute-Law or Customs of the Realm 11 H. 4. 37. Fortescue in laudibus legum Ang. cap. 9. 18 Ed. 4. 35 36 c. 31 H. 8. cap. 8. ubi non est lex ubi non est transgressio ergo That which cannot be punished without Proclamation cannot be punished with it Vide le Stat. 31 H. 8. cap. 8. But if a man be indicted upon a Contempt against a Proclamation he shall be Fined anâ— imprisoned Vide Fortescue cap. 9. 18 34 36 37 c. In all Cases the King out of his Providence and to prevent dangers may prohibite them before which will aggravate the Offence if it be afterwards committed And as it is a Grand Prerogative of the King to make Proclamations 22 H. 8. Procl B. yet we find Presidents of Proclamations utterly against Law and Reason and therefore void For Quae contra rationem Juris introducta sunt non debent trahi in sequentiam An Act made to License Forreiners to Merchandize in London H. 4. by Proclamation prohibited the Execution of it usque ad prox Parliament which was against Law Vide doâ—s claus 8 H. 4. Proc. in London but 9 H. 4. An Act was made That all Irish should depart the Realm before the Feast of the Nativity this only was in terrorem being utterly against Law Hollingshead 772. Anno Dom. 1546. 37 H. 8. The Whorâ—-houses vulgo Stews were suppressed by Proclamation and found of Trumpet In the same Term Râ—solved by the two Chief Justices Chief Baron and Baron Altham upon Conference between the Lords of the Privy-Council and them That the King by his Proclamation cannot create any Offence which was not an Offence before for then he may alter the Law And the Law of England is divided into three parts 1. Common-Law 2. Statute-Law 3. Custom But the Kings Proclamation is none of them Resolved also That he hath no Prerogative but what the Law of the Land allows him but he mry by Proclamation admonish his Subjects that they keep the Laws upon pain to be inflicted by Law c. Lastly If the Offence be not punishable in the Star-Chamber Prohibition by Proclamation cannot make it punishable there And after this Resolution no Proclamation imposing Fine and Imprisonment was made c. Mich. 8 Jac. Regis Prohibitions It was Resolved in this Term That if a man be excommunicated by the Ordinary where he ought not as after a general Pardon c. and the Defendant being Negligent doth not sue a Prohibition but remains excommunicate by 40 dayes and upon Certificate in Canc is taken by the Kings Writ de excommunicato capiendo no Prohibition lies in this Case because he is taken by the Kings Writ Then it was moved what remedy the Party hath who is wrongfully excommunicate to which it was answered he hath three Remedies 1. He may have a Writ out of Chancery to absolve him 14 H. 4. fol. 14. and with this agrees 7 Ed. 4. 14. 2. When he is excommunicate against the Law of this Realm so that he cannot have a Writ de Cauâ—fone admittenda then he ought Parere mandatis Ecclesiae in sorma Juris i. e. Ecclesiastici where in truth it 's Excommunicatio contra jus forman Juris i. e. Communis Juris But if he shew his Cause to the Bishop and Request him to assoyl him either because he was excommunicate after the Offence pardoned or that the Cause did not appear in Ecclesiastical Cognizance and he refuse he may have an Action Sur le Case against the Ordinary and with this agrees Dr. St. lib. 2. cap. 32. fol. 119. 3. If the Party be excommunicate for nonâ—e of the Causes mentioned in the Act 5 Eliz. cap. 23. then he may plead this in the Kings Bench and so avoid the Penalties in the Act. Note It was Resolved by the Court c. That where one is cited before the Dean of the Articles in cause of defamation for calling the Plaintiff Where out of the Diocess of London against the Statute of 23 H. 8. And the Plaintiff hath Sentence and the Defendant is excommunicated and so continues 80 dayes And upon Certificate into the Chancery a Writ of Excommunicato capiendo is granted and the Defendant taken and imprisoned thereby that he shall not have a Prohibition upon the Statute 23 H. 8. for no Writ in the Register extends to it but there is a Writ there called de cautione admittenda when the Defendant is taken by the Kings Writ de excommunicato capiendo de parendo mandatis Ecclesiae and to assoyl and deliver the Defendant But in the Case at Bar it does not appear to us judicially without Information that the Citation is against the forme of the Statute And the Information comes too late in this Case after the Defendant hath persisted so long in his Contumacy and is taken by the Kings Writ and imprisoned Admiralty It was Resolved per totam Curiam That if One be sued in the Admiralty-Court for a thing alledged to be done upon the High-Sea within the Admirals Jurisdiction and the Defendant plead and confess the thing done and after Sentence the Court will be advised to Grant a Prohibition upon surmise That it was done infra corpus comitatus against their own confession unless it can be made appear to the Court by matter in Writing or other good matter that this was done upon the Land for otherwise every one will stay till after Sentence and then for vexation only sue out a Prohibition And admonition was given to them that sue out Prohibitions That they should not keep them long in their Hands or untill they perceive they cannot prevail in the Ecclesiastical Court then to cast in their Prohibition for if they abuse that liberty to the vexation of the Party we will take such order as in case of a Writ of Priviledge if the Defendant keep it till the Jurors are ready c. it shall not be allowed Hill 8 Jacob. Regis In this Term in Doctor Trevor's Case who was Chancellor of a Bishop in Wales It was Resolved That the Office of a Chancellor and Register c. in Ecclesiastical Courts are within the Statute 5 Ed. 6. cap. 16. which Act being made for avoiding corruption of Officers c. and advancement of worthy Persons shall be expounded most beneficially to suppress Corruption And because the Law allows Ecclesiastical Courts to
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.
hath well observed Vide Dyer 298. vide le Stat. 27 Eliz. Pasch 9 Jacobi Regis Sir William Chancâ—ys Case In this Term Sir William Chancy having the priviledg of this Court and being a Prisoner in the Fleet was brought to â—he Bar by Habeas Corpus by the Guardian of the Fleet who returned That the said Sir William was committed to the Fleet by Warrant from the High-Commissioners in Ecclesiastical Causes which Warrant follows in these words viz. These are to Will and Require you in his Majesties Name by Vertue of his Hâ—gh-Commission c. to Us and others directed c. That herewithal you take and receive into your Custody the Body of Sir William Chancy Knight whom we will that you keep c. untill further Order c. letting you know the cause of his Committment to be for that being at the Suit of his Lady convented bâ—fore c. for Adultery and expelling her from his Company and Co-habiting with another Woman without allowing her any competent Maintenance and by his own Confession convict thereof he was thereupon enjoyned to allow his Wife a competent Maintenance c. and to perform such Submission and other order for his Adultery as by Law should be enjoyned him which he expresly refused to do in contempt c. Given at London 19 Martii 1611. subscribed Henry Mountague George Overall Thomas Morton Zach. Paâ—field And it was moved by Nicholas Serjeant a Councel with Sir William that this return was insufficient 1. Because Adultery ought to be punished by the Ordinary and not by the High-Commâ—ssioners on which the Offender is remediless and can have no appeal Quod fuit concessum per Coke Warberton and Foster but Walmesly doubted of Adultery 2. That by force of the Act of the 1. of Eliz. the High-Commissioners cannot imprison Sir William for Adultery nor for denying Alimony to his Wife And Doderidge the Kings Sâ—rjeant of Council on the other side did not defend the Imprisonment to be lawful And it was clearly agreed by Coke Walmesly Warberton and Foster That the Commissioners had not power to imprison in this Case And Walmâ—sly said That though they have used this Power for twenty years without any exception yet when it comes before them judicially they ought to Judge according to Law and upon this Sir William Chancy was Bailed And it was resolved per totam Curiam That when it appears upon the Return that the Imprisonment is not lawful the Court may discharge him of Imprisonment Also it was Resolved That the Return was insufficient in form 1. It is not shewn when the Adultery was committed 2. He was enjoyned to allow his Wife a competent Maintenance without any certainty and to perform such submission c. as by Law shall be enjoyned which is all infuturo and uncertain Vide in my Treatise at large the Reasons and Causes why the High-Commissioners may sue and imprison Vide Pasch 42 Eliz. Rot. 1209. Pasch 9 Jacobi Regis Empringham's Case In this Term a Case was moved in Star-Chamber upon a Bill exhibited by the Attorney-General against Robert Empringham Vice-Admiral in the County of York Marmaduke Ketthewell one of the Marshals of the Admiralty and Thomas Haâ—rison an Informer in the same Court for Oppression and Extortion in Fining and Imprisoning divers of the Kings Subjects in the said County which no Judge of the Admiralty can justifie because it is not a Court of Record but they proceed according to the Civil Law and upon their Sentence no Writ of Error lyeth but an Appeal Also the said Empringham hath caused divers to be cited to appear before him for things done in the Body of the County which were determinable by the Common Law and not before the Admiralty whose authority is limited to the High Sea And for these and other Oppressions they were fined and imprisoned and sentenced beside to make Restitution c. Trin. 9 Jacobi Regis Memorandum That upon the Thursday before this Term all the Justices of England by the Kings Command were assembled in the Council-Chamber at Whitehall where was Abbot Archbishop of Canterbury and with him two Bishops and divers Civillians the Archbishop complained of Prohibitions out of the Common-Pleas and delivery of Persons by Haheas Corpus but chiefly of Sir William Chancy I defended our proceedings according to my Treatise thereof which I delivered before the High-Commissioners And after great dispute between the Archbishop and Me at last he said He had a Point not yet touched upon in my Treatise which would give satisfaction to the Lords and Us also and upon which he would rely And that the Clause of Restitution and Annexation viz. And that all such Jurisdictions c. Spiritual and Ecclesiastical as by any power Spiritual hath heretofore or hereafter lawfully may be used c. for visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and of all Errors Heresies Schismes c. shâ—ll for ever by authority of this present Parliament be united and annexed to the Imperial Crown of this Realm And it was said That H. 8. and Ed. 6. did give Power by their Commissions to divers to impose Mulcts c. in Ecclesiasticall Causes c. and upon this he concludes That this having been used before 1 Eliz. this is given to Queen Eliz. and her Successors Also inasmuch as by 2 H. 4. and 2 H. 7. the Jurisdiction Ecclesiastical may Fine and Imprison in particular Causes therefore Power to Fine and Imprison in all Ecclesiastical Causes is given to the King And this he said he uttered that it might be answered 1. To which I for a time gave this Answer That it was good for the Weal-publick that the Judges at the Common-Law should interpret the Statutes within this Realm 2. It was said by me That before the Statute of 1 Eliz. no Ecclesiastical Judge may impose a Fine or Imprison for any Ecclesiastical or Spiritual Offence unless there be Authority by Act of Parliament And this was so affirmed by all the Justices Vide my Book of Presidents the Commission at large to Cromwel to be Vicegerent Afterwards in this very Term the Privy-Council sent for the Justices of the Common-Pleas only and there the Reasons of the said Resolution were largely debated and strong Opposition made hy Egerton Lord Chancellor but the Justices of the Common-Pleas remained constant in their Resolution Afterward the Council sent for the chief Justice of the Kings Bench Justice Williams Justice Crook Chief Baron Taâ—field Snig Althan and Bromly who were not acquainted with the Reasons of the said Rule of the Common-Pleas nor knew why they came before the Council And hearing the Lord Chancellor affirm That the High-Commissioners have alwayes by the Act 1 Eliz. imposed Fines and Imprisonments for exorbitant Crimes without any Conference with us or among then selves or hearing the matter debated were of Opinion with us And after at another day this
same Term the said Judges of the Kings Bench Barons of the Exchequer and Justice Fenner and Yelverton who were omitted before and We the Justices of the Common-Bench were commanded to attend the Council And being all assembled We of the Common-Pleas were commanded to retire and then the King demanded their Opinions in certain Points touching the High-Commission wherein they unanimously agreeing We viz. Coke Walmesly Warberton and Foster were called before the King Prince and Council where the King declared That hy the Advice of his Council and the Justices of the Kings Bench and Barons he will reform the High-Commission in divers Points which after he will have to be obeyed in all Points Whereupon I said to the King That it was grievous to Us his Majesties Justices of the Bench to be severed from our Brethren but more grievous that they differed from us in Opinion without hearing one another especially since in what we have done in Sir VVilliam Chancys Case aud others the like concerning the Power of the High-Commissioners was done judicially in open Court upon argument at the Bar and Bench. And further I said to the King that when we the Justices of the Common-Pleas see the Commission newly reformed We will as to that which is of Right seek to satisfie the Kings expectation and so We departed c. Trin. 9 Jac. Regis Stockdale's Case in the Court of VVards The King by Letters Patents dated 9. April the ninth year of his Reign did Grant to VVilliam Stockdale in these words Such and so many of the Debts Duties Arrearages and Sums of Money being of Record in our Court of Exchequer Court of Wards Dutchy-Court or within any Court or Courts c. in any year or several years from the last year of the Reign of H. 8. to the 13th year of Our Dear Sister as shall amount to the sum of 1000 l. To have takâ— levy c. the said Debts c. to the said VVilliam Stockdale his Executors c. And in this Case divers Points were resolved 1. That the said Grant of the King is void for â—he incertainty for thereby no Debt in certain can pass As if the King have an 100 Acres of Land in D. and he Grants to a Man 20 Acres of the Lands in D. without describing them by the Rent Occupation or Name c. this Grant is void 2. When the Patentee Claims by force of this word Arreragia It was resolved clearly That he shall not have Arrearages of Rents Reliefs and mean Rates of Lands c. in the Court of Wards c. if the Patent go not further But the Proviso in the end of the Patent viz. Provided that the said VVilliam Stockdale shall take no benefit by any means of Arrearages of any Rents c. untill Sir Patrick Murrey and others be paid the sum of 1000 l. c. hath well explained what Arrearages the King intended But clearly mean Rates are not within the words for they are the Profits of Demesne Land Trin. 9 Jacobi Regis Divers men playing at Bowles at great Marlow in Kent two of them fell out and a third man who had not any quarrel in revenge of his Friend struck the other with a Bowl of which he dyed This was held Manslaughter because it happened upon a suddain motion In the same Term a special Verdict divers years past found in the County of Hertford which was That two Boyes fighting together one was seratched in the Face and bled very much at the Nose and so he run three quarters of a Mile to his Father who seeing his Son so abused he took a Cudgel and run to the place where the other Boy was and stroke him upon the Head upon which he dyed And this was held but Man-slaughter for the Passion of the Father was continued and no time to judge it in Law Malice prepense And this Case was moved ad mensam c. Mich. 9 Jac. Regis Memorandum upon Thursday in this Term a High Commission in Causes Ecclesiastical was published in the Archbishops great Chamber at Lambeth in which I with the Chief Justice Chief Baron Justice VVilliams Justice Crooke Baron Altham and Baron Bromly were named Commâ—ssioners among all the Lord of the Council divers Bishops Attorney and Sollicitor and divers Deans and Doctors in the Cannon and Civil Laws And I was commanded to sit by force of the said Commission which I refused for three Causes 1. Because neither I nor any of my Brethren of the Common-Pleas were acquainted with it 2. Because I did not know what was contained in the new Commission and no Judge can execute any Commission with a good Conscience without knowledg for Tantum sibi est permissum quantum est Commissum 3. That there was not any necessity of my sitting who understood nothing of it so long as the other Judges whose advise had been had in this new Commission were there 4. That I have endeavoured to inform my self of it by a Copy from the Rolls but it was not enrolled 5. None can sit by force of any Commission till he hath taken the Oath of Supremacy according to 1 Eliz. and if I may hear the Commission read and have a Copy to advise upon I will either sit or shew cause to the contrary The Lord Treasurer perswaded me to siâ— but I utterly refused it and the rest seemed to incline Then the Commission was openly read containing divers Points against the Laws and Statutes of England At hearing of which all the Judges rejoyced they sate not by it Then the Archbishop made an Oration during all which as the reading of the Commission I stood and would not sit and so by my Example did the rest of the Judges And so the Archbishop appointed the great Chamber at Lambeth in Winter and the Hall in Summer and every Thursday in the Term at two a clock Afnoon and in the Forenoon one Sermon Mich. 9 Jacob. Regis In this Term the Issue in an Information upon the 〈◊〉 2 H. 6. 15. was tryed at the Bar and upon Evidencâ— upon the words of the Statute which are That evâ—â—y person that sets or fastens in the Thames any Nets or Enâ—iâ—â—s called Trincks or any other Nâ—ts to any â—â—sts c. to stand continually day and night forfeits to â—he King 100 s. for every time c. And the Defendants having set and fastned Nets called Trincks in the Thames c. to Boats day and night as long as the Tide served and nor continually The Question was If this was within the Statute and it was clearly Resolved That it was within the Statute for the Nets called Trinks cannot stand longer than the Tyde serve and for this the word continually shall be taken for so long as they may stand to take Fish for lex non intendit aliquid impossibile Mich. 9 Jacob. Regis Shulters Case in the Star-Chamber The Case was such John Shulter of Wisbich of the age of 115 years
had Issue John his eldest Son and others viz. Christopher Richard c. and being seized of Land in Fee oâ— 100 Marks per annum value his eldest Son being dead and his Grandchild John withâ—n age he gave direction for a Lease to be made of a Faâ—m called Roushal to Christopher during the minority of his Grand-child rendring the antient Rent with power of Revocation and of Lands in Yatesbury to Richard in the same manner and the same time Chrâ—stopher and Richard by the Covin of one Woodruff a Serivener 25 Eliz. drew two Leases to Christopher and Richard for 51 years rendring 4 d. per annum and without any power of Revocation John Shulter the Grandfather being blind with age and Woodruff telling him they were according to his direction And thereupon John Shulter thâ— Grandfather sealed and delivered them And it was resolved by the Lord Ellesmere Chancellor and two Chief Justies That the said Indentures could not bind the said John Shulter because he was blind and the effect was declared to him other than in truth it was Iâ— fully agreed with Mansers Case in the second part of my Reports fol. 4. Mich. 9 Jacobi Regis Sir Anthony Ashley's Case The Case was this Sir James Creyton had bought a pretended Right of and in the Mannor of â—yddy and Millisent and divers oâ—her Lands of which Sir Anthony had long possession Upon which divers Motions were made concerning Fines acknowledged to be staid c. in the Common-Bench and Sir James not prevailing in it entred into a wicked Conspiracy with several other Defendants in the Cause to accuse the said Sir Anthony of some Capital Crimes whereby he should forfeit all his Lands Goods and Chattels which they should share amongst them and in the end Henry Smith formerly a Servant to Sir Anthony was suborned to accuse the said Sir Anthony of the Muâ—ther of William Rice late Husband of Mary Rice one of the Defendants which William was dead 18 years before and Smith was to have 500 l. for his pains to have a place procured him in the Kings Guard in Ordinary a Proteâ—tion also from the King against his Creditors and a General Pardon Of all which Smith would have assurance before he would make any Accusation of the said Sir Anthony Whereupon Articles in Writing were drawn ingrossed and sealed between Sir James Creyton of the one part and John Cantrel Servant to Hunnings by Smith's Consent and to his use on the other part By which Sir Jaâ—es Covenanted that the said Cantrel and his Heirs after the Conviction and Attainder of Sir Anthony shall have a sixth part of his Mannors c. In consideration whereof Cantrel Covenanted that he should procure Witnesses to Convict the Plaintiff of Murther or other Capital Crimes c. Which Articles were sealed 16 of Feb. 7 Jac. And for the performance of the said Articles Sir James gave Bond of 8000 l. to Cantrel Within two dayes after Smith counterfeits himself sick and then pretending to disburthen his Conscience reveales the said Murther and accused himself for poysoning the said William Rice by the said Sir Anthonies Command so that he himself was Principal Upon this Sir James procures Mary Rice the Widow of the said William Rice to prefer a Petition to the King importing the Accusation aforesaid Which Petition the King referred to the Chief Justice of the Kings-Bench who after full Examination certified the King that he found a false Conspiracy to indict Sir Anthony without any just ground and certified also the effect of the Articles Upon which the King by Advice of the Privy-Councel thought the matter fit to be sentenced in the Star-Chamber Which in the same Term upon ordinary proceeding was heard by six dayes And it was objected by the Defendants Councel That the Bill upon the said Conspiracy did not lye and that it would be dangerous to maintain it for it will deter men to prosecute against great Offenders whereby they will pass unpunished And by the Law Conspiracy lyes where a man is indicted and legitimo modo acquietus but here he was never indicted c. But to this it was Answered and Resolved by the Lord Chancellor the two Chief Justices and all the Court That in this Case the Bill was maintainable though the Party accused was not indicted and acquitted before as it was Resolved in this Court Hill 8. Jac. in Poulter's Case Besides be Sir Anthony guilty or no the Defendants are punishable for promising Bribes and Rewards to Smith to accuse the Plaintiff and the Articles to share Sir Aâ—thonies Estate after Attainder And there is a great Indignity offered to the King in assuming to Covenant that the King shall protect or pardon or that any man's Estate may be shared before Attainder And it appeared by many Witnesses that William Rice dyed not of any poysoning but of a horrible Disease got by his dissolute life which with Reverence cannot be spoken And in this Case it was Resolved That if Felony be done and one hath suspition upon probable matter that another is guilty of it he may arrest the party so suspected to bring him to Justice But in this Case three things are to be observed 1. That a Felony be done 2. That he that doth arrest hath suspition upon probable cause 3. That he himself who hath the suspition arrest the party Resolved also That if Felony be done and common fame and noise is that one hath committed it this is good cause for him that knowes of it to arrest the party and with this agrees the Book 2 H. 5. 15 16. 15 H. 7. 5. 20 H. 7. 12. 21 H. 7. 28. 7 Ed. 4. 20. 8 Ed. 4. 27. 11 Ed. 4. 4. 6. 17 Ed. 4. 5. 6. 20 Ed. 4 6. B. 7 H. 4. 25. 27 H. 8. 23. 26 H. 8 9. 7 Eliz. Dy. 226. Hill 9 Jac. Regis In this Term the Attorney and Sollicitor consulted with me if at this day upon Conviction of an Heretick before the Ordinary the Writ de Haeretico combunendo lyeth and it seems to be clear that it doth not for the Reasons and Authorities that I have reported Trin. 9 Jacob before But after they consulting with Fleming Chief Justice Tanfield Chief Baron and Williams and Crook And they upon the Report of Dr. Cosins mentioned in my said Report and some Prâ—sidents in Queen Elizabeth's time they certified the King that the said Writ lyeth but that the most sure way was to convict the Heretick before the High Commissioners Pasch 10 Jac. Regis The Lord Vaux his Case In this Term the Lord Vaux was indicted of a Premunire in the Kings-Bench upon the New Statute for refusing the Oath of Allegeance upon his Arraignment he prayed he might be tryed per Pares But iâ— was Resolved That he shall not for that Magna Charta cap. 29. Nec super cum ibimus nec super eum mittemus nisi per legale judicium parium suorum is onely to be
understood of Treasons Misprision of Treason Petit Treason and Felony and their Accessaries c. But Premunire is but a contempt and Pardon of all Contempts pardons it Whereupon the Lord Vaux confessed the Indictment Vide Lamb Justice dâ—l Peace 520 Dallisons Report accordingly Vide Stamford c. Trin. 10 Jacob. Regis Countess of Shrewsbury's Case In this Term before a select Councel at York-house the Countess of Shrewsbury Wife of Gilbert Earl of Shrewsbury then Prisoner in the Tower was brought and by the Kings Attorney and Sollicitor was charged with a high Contempt of dangerous consequence declaring That the Lady Arbella being of the Blood-Royal had marryed Seymor the Earl of Hertford's second Son without the King's Consent for which he was committed to the Tower and had escaped and fled beyond the Seas And the Lady Arbella being under restraint escaped also and embarked her self on the Sea but was taken ere she got over of which flight of the Lady Arbella the said Countess well knew as is directly proved by Crompton and not denied by the Lady Arbella And admitting the Lady Arbella had no evil intent against the King yet when she fled and should be inviron'd with Evil Spirits cum perversis perverti possit Now the Charge was in two Parts 1. That the Countess of Shrewsbury being by the King's Command called to the Councel-Table and being required by the Lords to declare her knowledge touching the said Points she answered she would not answer particularly and being again by the King's Commands asked by the Councel at Lambeth she refused for two Causes 1. Because she had made a Vow that she would not declare any thing in particular touching the said Points and she said it was better to obey God than Man 2. She stood upon her Priviledge of Nobility viz. to answer when Judicially called before her Peers such Priviledge having been allowed to William Earl of Pembroke and the Lord Lumly 2. The second Point of the Charge was That when the Answer she had made was put in Writing and read to her yet she refused to subscribe the same Which Denial was urged by the King's Councel as a high contempt c. And the Countess hearing the Charge yet persisted in her obstinate Refusal for the same Reasons the insisted on as before And the Lord Chancellor began and the Archbishop and the other Lords adjudged it a great and high Contempt And that no such allowance was to the Earl of Pembroke or Lord Lumly as was supposed And the Archbishop and Earl of Northampton proved by Scripture that the said Case now was against the Law of God All that the Justices said was That they might well be silent but that silentium in Senatu est vitium and therefore they briefly speak of three things 1. Whâ—ther the Refusals aforesaid were Offences in Law against the King his Crown and Dignity 2. What Proceeding this is and if justifiable by President or Reason 3. What the Offences are and how punishable 1. As to the first It was resolved by the Justices and Master of the Rolls that the denying to be examined was a high Contempt against the King his Crown and Dignity and upon hope of Impunity it will be an encouragement to Offenders as Fleming Chief Justice said to enterprize dangerous Attempts The Master of the Rolls said the Nobility in this Case had no more priviledge to deny to be examined than any other Subject Also if one Noble be sued and a Peer be sued in Star-Chamber or Chancery they must answer upon their Oaths And if produced as a Witness they ought to be sworn And therefore for maintaining of Order the Chief Justice said he would recite some of those Honourable Priviledges which the Law of England attributes to Nobility 1. If a Baron Viscount Earl c. be Plaintiff in any Action and the Defendant will plead that the Plaintiff is not a Baron c. this shall be tryed onely by the Record in Chancery which imports by its self solid truth 2. Their Persons have many Priviledges in Law 1. At a Subjects Suit they shall not be arrested 2. Their Bodies are not subject to Torture in causa criminis â—aesae Majestatis 3. They are not to be sworn in Assizâ—s Juries or Inquests 4. It is Felony in any Servant of the King named in the Checquer Roll to compass or intend to kill any Lord of Parliament or of the King's Councel 5. In the Common-Pleas a Lord shall have Knights returned of his Jury 6. He shall have Day of Grace 7. Shall not be Tryed in case of Treason Felony or Miâ—prison of them but by those that are Nobles and Peers 8. In Tryal of a Peer the Lords of Parliament shall not swear but give their Judgment Super Fidem Ligeantiam Domino Regi debitam And the King honours with Nobility for two Causes 1. Ad consulendum and therefore he gives them a Robe 2. Ad Defendendum Regem Regnum and therefore he gives them a Sword And therefore as they derive their Dignities with those Honourable Priviledges from the King to deny to answer being required by the King is a high Contempt accompanied with great Ingratitude This Denial is contra Ligeantiam suam as appears by the Antient Oath of Allegeance And the Law hath greater account to a Noble-mans Allegeance then one of the Commons because the breach of their Allegeance is more dangerous for Corruptio optimorum est pessima 2. As to the second Point viz. concerning the manner of Proceedings 1. Privative It is not to fine imprison or inflict corporal punishment for that ought to be assessed in some Court Judicially 2. Positive The Fine is ad monendum or at most ad minandum it is ad instruendum non ad destruendum This selected Councel is to express what punishment this Offence justly deserved if judicially proceeded against in the Star-Chamber Therefore this Proceeding is out of the King's Mercy to this Lady that seeing her Offence she might submit to the King without any Judicial Proceedings against her And though the Law puts Limits to the King's Justice it doth not so to his Mercy Et ideo processus iste est regalis plane rege dignus And this manner of Proceeding is fortified by the President of the Earl of Essex against whom such Proceedings were in this very place 42 43 Eliz. As to the last Point It was resolved by all quasi una voce that if a Sentence should be given in the Star Chamber she should be fined 20000 l. and imprisoned during the Kings pleasure Trin. 10 Jacobi Regis Robert Scarlet 's Case Note That at the Sessions of Peace lately holden at Woodbridge in Suffolk the Sheriff returned a Grand Inquest of which one Robert Scarlet desired to be one But the Sheriff knowing the malice of the man refused to return him Yet by Confederacy with the Clark who read the Pannel he was sworn of the Grand Inquest
shall be sufficient for him But if the Father by Writing declare that it is but part of a Childs portion then he shall have a full Childs part otherwise not Note It was holden by the Judges in the Kings-Bench That if a man be possessed of a House and Term for years doth devise for years does demise this to his Wife for Life the remainder over the dyes all his Debts being paid If the Widow enters generally and converts the profiâ—s to her own use and not to pious Works this is a Determination of her Election And this is the general case and therefore it is good that it be specially found Hâ—yn's Case In the Lent Assize holden at Leicester 11 and 12 Jac. the Case was One William Haynes had digged up the several Graves of three men and one Woman in the Night and had taken their Winding-Sheets from their Bodies and buryed them again And it was Resolved by the Justices at Sergeants Inne in Fleetstreet that the property of the Sheets remains in the Owners that is of him that had the property therein when the dead body was wrapped therewith as in 11 H. 4. If Apparel be put upon a Boy this is a Gift in Law for the Boy hath Capacity to take it but a dead Body being but a Lump of Earth hath no capacity Also it is not a Gift to the Person but bestowed on the Body for the Reverence towards it to express the hope of Resurrection And therefore at the second Assizes he was severally Indicted for taking these Sheets The first Indictment was of Petty-Larceny for which he was whipped And at the same Assizes he was Indicted for the Felonious taking the other three Sheets for which he had his Clergy and escaped Death Hill 11 Jacobi Regis Earl of Derby's Case In Chancery between Sir John Egerton Plaintiff and William Earl of Dirby Chamberlain of Chester and others Defendants It was Resolved by the Lord Chancellor the Chief Justice of England the Master of the Rolls Dodderidge and Winch Justices 1. That the Chamberlain of Chester being sole Judge of Equity cannot Decree any thing wherein himself is party but in such Case the Suit shall be heard here in Chancery coram Domino Rege 2. If the Defendants dwell out of the County Palatine he who hath to complain in Equity may complain here in Chancery And therefore the Suit shall be here in Chancery Ne Curia Domini Regis deficient in justitia exhibenda Else the Subject shall have good Right and yet have no Remedy And this pursues the Reason of the Common-Law 13 Ed. 3. Tit. Jurisdiction 8 Ed. 2. Ass 382. 5 Ed. 3. 30. 30 H. 6. 6. 7 H. 6. 37. For where the particular Courts cannot do Justice to the Parties they shall sue in the Kings general Courts at Westminster 11 H. 4. 27. 8 Ed. 4. 8. 3. It was Resolved That the King cannot grant a Commission to any to determine any matter of Equity but it ought to be determined in Chancery which hath had Jurisdiction in such case time out of mind and had allowance by Law whereas such new Commissions have been resolved to be against Law as was agreed in Pott's Case 4. Upon Consideration of the Lord Dyer and other Justices in Queen Elizabeth's time concerning the Jurisdiction of the County Palatine It was Resolved That for things Transitory though in truth they be in the County Palatine the Plaintiff may alleadge them to be done in any place of England and the Defendant may not plead to the Jurisdiction of the Court See Dyer 13 Eliz. sol 202 716. Forms and Orders of Parliament In the House of Commons when the Speaker is chosen he in his place where he shall first sit down shall disable himself and pray them to proceed a new Election But after he is put into the Chair then he shall pray them that he may disable himself to the King Note The King the first day of the Parliament shall sit in the Upper-House and there the King or Chancellor by his Command shall shew the Causes of Calling the Parliament and in Conclusion of the Oration the Commons are commanded to chuse a Speaker which after 2 or 3 dayes they present where He makes an Oration disabling himself c. In the Lower House when a Bill is read the Speaker opens the parts of it so that each Member may understand the intent thereof and the like is done by the Lord Chancellor in the Upper House Then upon the second Reading sometimes it is Engrossed without Commitment Then it is put to the Question and so in the Upper House But neither in the Upper or Lower House the Chancellor or Speaker shall not repeat a Bill or an Amendment but once When a Bill is committed to the second Reading then if Committees do amend it in any Point they shall write their Amendments in a Paper and shall direct to a Line and what Words shall be interlined and where and then all shall be ingrossed in a Bill And if a Bill pass the Commons House and the Lords amend it they do as before shew the Line c. and after the Amendments are ingrossed with particular References and the Bill sent down to the Commons the Amendments are road three times and so eâ—converso of a Bill passing the Upper House No Lord Knight Citizen or Burgess may speak above once to one Bill in one day No private Bill ought to be read before publike Bills In the Commons House those that are for the New Bill if there be a Question of Voyces shall go out of the House and who are against the Bill or for the Common-Law or any former shall fit still for they are in possession of the Old Law In the Upper House two Lords are appointed to number the Voyces In both Houses he that stands up first to speak shall speak first without difference of Persons When a Bill is ingrossed at the third Reading it may be amended in the same House in matter of substance â— fortiori the Errour of the Clerk in the ingrossing may be amended c. Pâ—sch 12. Jac. Regis Walter Chute's Case Walter Chute Sewer to the King exhibited a Petition to the King That for safety of the Realm c. that he would erect a new Office to Register all Strangers within the Realm except Merchant-Strangers to be kept at London and to grant it to the Petitioner with a Fee or without And all Strangers except Merchant-strangers to depart the Realm in a certain time unless they take a Billet under the said Registers Hand Which Petition the Lords of the Councel referred to Me by their Letters of the 13 Novemb. 1613. to consider what the Law is in that behalf c. And upon Conference with the Justices of the Common-Pleas and other Justices and Barons at Sergeants Inne in Fleetstreet It was Resolved That the Erection of such New Offices for the benefit of a private man was against all
Benevolent Hearts By this means he collected great Sâ—ms of Money but with some grudge 11 H. 7. ca. 20. An Act was made for levying that Benevolence 20 H. 7. A Commission to levy what was granted 11 H. 7. 15 H 8. A Commission under the Great Seal called A Commission of Anticipation 16 H. 8. For Warre with Fraâ—ce a Benevolence levyed with great Curses against the Councel for it was for a sixth part of the value in Money or Plate against the Subjects good-will 26 H. 8. Another Benevolence levyed by Commission against the Subjects Will But if the Subjects will of their free Will give the King any Moneys this is not prohibited by any Stature This is proved by the 11 H. 7. c. 18. Feb. Anno 40 Eliz. Resolved by all the Justices and Barons That a free Grant to the Queen without coertion is lawful and accordingly they granted the Queen Quod not a hene Quia c. Pasch 12 Jac. Regis The Case of Dungannon in Ireland being a New Corporation was thus The King Constituted the Town of Dungannon to be a Free Borough Et ulterius volumus c. quod Inhabitantâ—s Villae praedictae sint unum corpus corporatum per nomen Praepositio 12 Burgensium Communiâ—atis Dungannon c. Et quod ipsi praedicti Praepositi Burgenses successores sui habeant potestaten eligendi duos Burgenses c. ad Parl. c. And the Doubt was If this Grant of Election of Burgesses of Parliament were good because it was granted but to parcel of the body viz. the Provost and Burgesses and not to the Commonalty And the Chief Baron thought this being but a Nomination it was sufficient to make the Provost and Burgesses onely to have it but this was denyed by all Justices and Barons For the power to Elect Burgesses is an Inheritance which the Provost and Burgesses are not capable of and ought to be vested in the entire Corporation And so it was Resolved by all That such a Grant made by the King should be void for the Inhabitants have not Capacity to take an Inheritance as in 15 Ed. 4. to have Common And Littleton saith in his Chapter of Burgage That the Burroughs which send Burgesses to Parliament were the most antient and chief Cities c. So that it shall be intended that at first they were incorporate Also Plus valet saepenumero vulgaris consuetudo quam regalis concessio But it was Resolved by Hâ—bbard Tanfield Altham Wiâ—th Nicols and Haughton that Quod Volumus was a good word of Grant as Pigot was of Opinion 21. Edw. 4. and this shall be implyed a Grant to all the Corporation that the Provost and Burgesses shall Elect c. And regularly when the Grant is indefinite viz. First Concedimus an incertain thing ulterius volumus quod Praepositus Burgenses Successores sui eligerint This shall be within the first Concedimus to all the Body But the Chief Justice of England and Dodderidge thought the contrary Note All the New Corporations were of the same Form and in none of them is any Clause to Elect New Burgesses so that when the modern Burgesses dye the power to Elect Burgesses is gone Mich. 12 Jacobi Regis A Question was moved to the Chief Baron and Justices of Sergeants Inn in Chancery-Lane That if a Felon be convict either by Verdict or Confession if immediatly by his Conviction his Goods and Chattels be forfoited And it was said That if the Felon after Conviction pray his Clergy he then shall clearly forfeit his Goods and Chattels for Quodam modo this is a Flight because refusing the Common-Law he flyes to Priviledge of Holy Church But it was Resolved by the chief Baron and Justices That immediatly by his Conviction his Goods and Chattels are forfeited and the praying of his Clergy is not any Forfeiture and with this agrees Stamf. sol 192. a. and also 1 R. 3. And of the same Opinion was the Chief Justice and Justices of Sergeants Inne in Fleetstreet Vid. Trin. 41 Eliz. 332. Mich. 12 Jacobi Regis Anne Hungate's Case in Cam. Stell In this Term a great Case was heard and determined in the Star-Chamber between Sir Henry Day who dyed pendent the Bill and Anne his Wife and Nicholas Bedingfield Esque and Elizabeth his Wife Plaintiffs And Anne Hungate Widow Sir Robert Winde Henry Branthwait Esque Thomas Townesend Esq Thomas Blomfield Gent. and George Min Gent Defendants The Case was thus Henry Hoogan Esq being seized of the Mannor of Hamonds and of divers Lands of East-Bradenham c. in Norfolk in Fee by Deed enfeoffed them in the use of the said Anne who took Hungate to Husband and had Issue by him a Son and a Daughter and he dyed Anne obtained the Wardship of the Son and after when the Son was of the Age of 21 years wanting onely 6 Weeks by Dedimus potestatem directed to Sir Robert Winâ—e Henry Branthwayt then Feoâ—ary and Thomas Townesend they took Cognizance of a Fine of the said Son being of the Age aforesaid and sick And the Bill charged them all with Practice in procuâ—ing the said Son to acknowledge the said Fine they knowing him under Age and in Wardship as aforesaid but there was no practice used by any of the Defendants but the Son of his own good-will levyed it And by Indâ—nture the use was limited to his Mother the said Anne and her Heirs with power of Revocation by the Son upon tender of 10 s. And this was in consideration that the Mother had paid the Debts of his Father which were very great and had obtained the Wardship of him and to confirm her Joynture And that his Mother if she pleased might give it to his Brother by Hungate who was but of half-bloud And it appeared the Mother knew the Son to be within Age but the Commissionars were ignorant of it nor did they send for the Church-Book in which his Age did appear being in the same Parish And the Plaintiffs Councel prayed that the Defendants should be punished for their Misdemeanour And that the Women Plaintiffs who were Cosins c. Heirs to the said Son of the entire bloud should be dis-inherited by the said Fine To which it was Resolved by the two Chief Justices and chief Baron That there was not any Crime punishable by the Law in this Case for the Judges of the Law and of this Court may punish Offences c. but they cannot create Offences nor do as Hannibal did to make his Way over the Alps when he could find none for Judicandum enim legibus ubi non est lex ibi nec est transgressio And therefore if a Fine levyed by an Infant be not Reversed during his Minority 't is unavoidable in Law because the Infants Age is to be tryed Non testium testimonio non juratorum veredicto sed Judicis inspectione solummodo F. N. B. sol 21. And for this it was Resolved by the said
Fostér Justices That the Archbishop of Canterbury is restrained by the 23 H. 8. cap. 9. to câ—â—e any one out of his own Diocess for Diocâ—ses dicitur distinctio c. quae divisa vel diversa est ab Ecclesia alterius Episcopatus commissa gubernatio in unius and is derived a Di that signifies duo two et Electio quia separat duas Jurisdictiones And because the Archbishop of Canterbury hath a peculiar Jurisdiction in London for this cause it is fitly said in the Title Preamble and Body of the Act that when the Archbishop sitting in his exempt Peculiar in London cites one dwelling in Essex he cites him out of the Bishop of Londons Diocess ergo out of the Diocess And in the Clause of the Penalty of 10 l. it is said Out of the Diocess c. where the Party dwelleth which agrees with the signification of Diocess befóre And the words far off were put in the Preamble to shew the great mischief that was before the Act as the 32 H. 8 cap. 33. in the Preamble it is disseizins with strength And the Body of the Act saith such Disseizor the same extending to all Disseizors but Disseizin with force is the greatest mischief 4 and 5 Eliz. Dyer 219. So West 2. cap. 5. adjudged 44 Ed 3. 18. So 21 H. 8. cap. 15. In all which the Case is stronger than the Case at Barre there the word such in the Body of the Act referring to the Preamble which is not in our Case 2. The Body of the Act is No Person shall be henceforth cited before any Ordinary c. out of the Diocess or peculiar Jurisdiction where the Person shall be dwelling and if so then a fortiori the Court of Arches which sits in a Peculiar shall not cite oâ—hers out of another Diocess And the words out of the Diocess are meant of the Diocess or Jurisdiction of the Ordinary where he dwelleth 3. Observe the Preamble of the Act recites expresly That the Subjects were called by compulsory Process to appear in the Arches Audience and other Courts of the Archbishoprick of this Realm So that the Intention of the Act was to reduce the Archbishop to his proper Diocess unless in five Cases 1. For any Spiritual Offence or Cause committed or omitted contrary to Right and Duty by the Bishop c. which word omitted proves there ought to be a Default in the Ordinary 2. Except it be in Case of Appeal and other lawfull Cause where the Party shall find himself grieved by the Ordinary after the matter there first begun ergo it ought to be first begun before the Ordinary 3. In case the Bishop or Ordinary c. dare not or will not convent the Party to be sued before him 4. In case the Bishop or Judge of the place within whose Jurisdiction or before whom the Suit by this Act should be begun and prosecuted be party directly or indirectly to the Matter or Cause of the same Suit 5. In case any Bishop or other inferiour Judge under him c. make Request to the Archbishop Bishop or other inferiour Ordinary or Judge and that to be done in Cases onely where the Law Civil or Common doth affirm c. 1. Also there are two Provisoes which explain it also viz. That it shall be lawful for every Archbishop to cite any person inhabiting in any Bishop Diocess in his Province for matter of Heresie by which it appears that for all Causes not excepted he is prohibited by the Act. 2. There is a saving for the Archbishop calling any Person out of the Diocess where he shall be dwelling to the Probate of any Testament which Provisoe should be vain if notwithstanding that Act should have concurrent Authority with every Ordinary throughout his whole Province Wherefore it was concluded That the Arch-Bishop out of his Diocess unless in the Cases excepted is prohibited by the 23 H. 8. to cite any man out of any other Diocesse which Act is but a Law declaratory of the antient Canons and a true Exposition of them And that appears by the Canon Cap. Romana in sexto de Appellationibus Cap. de competenti in sexto And the said Act is so expounded by all the Clergy of England at a Convocation at London Anno 1 Jac. Regis 1603. Canon 94. And whereas it is said in the Preamble of the Act in the Arches Audience and other High-Courts of this Realm It is to be known that the Archbishop of this Realm before that Act had power Legantine from the Pope By which they had Authority not onely over all but concurrent Authority with every Ordinary c. not as Archbishop of Canterbury c. but by his Power and Authority Legantine Et tria sunt genera Legatorum 1. Quidam de latere Dom. Papae mittuntur c. 2. Dativi qui simpliciter in Legatione mittuntur c. 3. Nati seu nativi qui suarum Ecclesiarum praetextu legatione fingantur et sunt 4. Archiepiscopus Cant. Eboracensis Remanensis et Pisanis Which Authority Legantine is now taken away and abolished utterly 3. It was Resolved That when any Judges are by Act of Parliament if they proceed against the Act there a Prohibition lyes As against the Steward and Marshal of the Houshold Quod non teneant placita de libero tenemento de debito de Conventione c. So Articuli super Chartas cap. 3. Register fol. 185. So against the Constable of Dover So to Justices of Assize Quod inquisitiones quae sunt magni exactionis non capiantur in Patria So to the Treasurer and Barons of the Exchequerâ— upon Art super Chart. c. 4. Stat Rutland cap. ult See F. N. B. 45. 46 c. 17 H. 6. 54. vide 13 Ed. 3. Title Prohibition So against all Ecclesiastical Judges upon 2 H. 5. 3. and therewith agrees 4 Ed. 4. 37. and F. N. B. 43. c. So the Case upon the Stat. 2 H. 5. c. 15. as appears by the President 5 Ed. 4. Keysons Case 10 H. 7. 17. See Paston's Opinion 9 H. 6. 3. See the 35 H. 6. 6. when any things is prohibited by a Statute if the Party be convicted he shall be fined for the Contempt to the Law And if every person should be put to his Action upon the Statute it would encrease Suits and a Prohibition is the shorter and easier way And the Rule of the Court was Fiat prohibitio Curiae Cantuar. de Arcubus Inter partes praedict per Curiam And Sherly and Harris jun. Sergeants at Law were at Councel of the Case Mich. 6 Jac. Reges Edward's Case The High-Commissioners in Causes Ecclesiastical objected divers English Articles against Thomas Edwards of Exeter As 1. That Mr. John Walton being trained up in Oxferd University was there worthily admitted to several Degrees of Schools and deservedly took upon him the Degree of Dr. of Physick 2. That he was a Reverend and well-practised man in the Art of Physick 3. That
positivi Juris est And he holds that a Portion is due by the Law of Nature which is the Law of God but it pertains to the Law of Man to assign Hane vâ—l illam portionem And saith further That Tythes may be exchanged into Lands Annuity or Rent c. And also that in Italy and other the East-Countries they pay not Tythes but a certain Portion according to the Custom And forasmuch as the Tenth Part is now due Ex Institutione Ecclâ—â—â—ae that is by their Canons and it appears by 25 H. 8. cap. 19. That all Canons c. made against the King's Prerogative c. are void and that Law was but Declaratory for no Statute or Custome of the Realm can be abrogated by any Cannon c. and that well appeareth by 10 H. 7. fol. 17. cap. 18. The second Point which agrees with the Law at this day which was adjudged in the said Record 25 H. 3. is That the Limits and Bounds of Towns and Parishes shall be trayed by the Common-Law and not by the Spirituall Court And in this the Law hath great Reason for thereupon depends the Title of Inheritance of the Layfee whereof the Tythes were demanded for Fines and Recoveries are the common Assurances of Lay-Inheritances and if the Spiritual Court should try the Bounds of Towns if they determine that my Land lyeth in another Town than is contained in my Fine Recovery or other Assurance I am in danger to lose my Inheritance and therewith agrees 39 Ed. 3. 29. 5 H. 5. 10. 32 Ed. 4. Consultation 3 Ed. 4. 14. 19 H. 6. 20. 50 Ed. 3. 20. and many other Presidents to this day And Note There is a Rule in Law that when the Right of Tythes shall be tryed in the Spiritual Court and the Spiritual Court hath Jurisdiction of the same that our Courts shall be oâ—sted of the Jurisdiction 35 H. 6. 47. 38 H. 6. 21. 2 Ed. 4. 15. 22 Ed. 4. 13. 38 Ed. 3. 36. 14 H. 7. 17. 13 H. 2. Jurisâ— 19 and when not ousted 12 H. 2. Jurisdiction 17. 13 â— 2. ibid. 19. 7 H. 4. 34. 14 H. 4. 17. 38 Ed. 3. 56. 42 Ed 3. 12. And the Causes why the Judges of the Common-Law would not permit the Ecclesiastical Judges to try Modum Decimandi being pleaded in their Court is because that if the Recompence which is to be given to the Parson in satisfaction of his Tythes doth not amount to the value of his Tythes in kind they would overthrow the same And that appears by Linwood among the Constitutions Simonis Mepham tit de Decimis cap. Quoniam propter fol. 139. b. verbo Consuetudines And that is the true Reason and therefore a Prohibition lyes and therewith agrees 8 Ed. 4. 14. and the other Books aforesaid and infinite Presidents See 7 Ed. 6. Dyer 79. and 18 Eliz. Dyer 349. the Opinion of all the Justices Mich. 6 Jacobi Regis In the Exchequer Baron and Boyse Case In the Case between Baron and Boys in Information upon the Stat. 5 Ed. 6. cap. 14. of Ingrossers after Verdict it was found for the Informer that the Defendant had ingrossed Apples against the said Act. The Barons held clearly that Apples were not within the Act and gave Judgment against the Informer upon the matter apparent to them and caused the same to be entred in the Margin of the Record where the Judgment was given The Informer brought a Writ of Errour in the Exchequer Chamber and the onely Question was Whether Apples were within the said Act. The Letter of which is viz. That whatsoever person c. shall ingross or get into his or her hands by buyiâ—â— c. any Corn growing or other Corn or Grain Butter Cheese Fish or other dead Victuall c. to sell the same again shall be accepted c. an unlawsul Ingrosser And though the Sâ—at 2 Ed. 6. 6. 15. numbreth Butchers Brewers Bakers Cooks Coster Mongers and Fruiterers as Victuallers yet Apples are not dead Victuals within the 5 Ed. 6. there being no Provisoe for Coster-mongers and Fruiterers in the said Act as there are for Buyers and Sellers of Corn and other Victualâ— Also ever since the Act they have bought Apples by Ingross and sold them again and yet no Information was ever before this for the same being for Delicacy more than necessary Food But the Stat. 5 Ed. 6. is intended of things necessary for sustenance of man where the Statute of 2 Edward the 6. 15. made against Conspiracies to enhance the Prices was done by express words to extend it to things which are more of pleasure than profit But this was not resolved by the Justices because the Information was conceived upon that Branch of the Statute concerning Ingrossers Hill 27 Eliz. in Chancery Hill 27 Eliz. In Chancery the Case was thus Ninian Menvil seized of certain Lands in Fee took a Wife and levyed a Fine of the said Lands with Proclamations and afterwards was indicted and outlawed of High-Treason and dyed The Conusees convey the Land to the Queen who is now seized The five years pass after the Husband's death the Daughters and Heirs of the said Ninian in a Writ of Errour in the Kings-Bench reverse the said Attainder M. 26 and 27 Eliz. and thereupon the Wife sues to the Queen by Petition containing all the special matter Which Petition being indorsed by the Queen Fait droit aux Parties c. the same was sent into Chancery as the manner is And in this Case divers Objections were made against the Demandant 1. That the Fine with Proclamations should bar the Wife of Dower and the Attainder of her Husband should not help her for as long as that remained in force the same was a Bar also of her Dower But admit the Attainder of the Husband shall avail the Wife the same being reversed by a Writ of Errour and so in Judgment of Law as if it had never been and against which a man might plead there is no such Record agreeing with the Book 4 H. 7. 11. and the Case in 4 H. 7. 10. b. is A. seized of Land in Fee was Attaint of Hâ—gh-Treason The King grants the Land to B. and afterwards A. committed Trespass upon the Land and after by Paâ—l A. was restored and the Attainder void This shall be as auciplable and ample to A. as if no Attainder had been Afterwards B. brinâ—s Trespass for the Trespass Mesne and it was adjudged 10 H. 7. f. 22. b. that the Action of Trespass was not maintainable because the Attainder was annulled ab initio 2. It was objected That the Wife could not have a Petition because there was not any Officâ— by which her Title of Dower was sound viz. her Marriage her Husbands Seizin and Death for it was said that though he was marryed yet if her Husband was not seized after the Age that she is Dowable she shall not have Dower And the Title of him that sueth by Petition ought to be
found by Office as appears by the Books 11 H. 4. 52. Ass 31. 30. Ass 28. 46 Ed. 3. bre 618. 9 H. 7. 24. c. 1 As to the first it was Resolved That the Wife should be endowed and that the Fine with Proclamations was not a Bar to her and yet it was Resolved That the Act 4 H. 7. c. 24. shall barre a Woman of her Dower by such a Fine if the Woman bring not her Writ of Dower within five years after the Husbands death as was adjudged Hill 4 H. 8. Rot. 344. in the Common-Pleas and 5 Eliz Dyer 224. For by the Act the Title of Feâ—e-Covert iâ— saved by taking Action in 5 years after she is uncovert c. But it was Râ—solved That the Wife was not to be aâ—dâ—d by that saving for in respect of her Husbands Attainder she had not any Right of Dower at his death nor could sue for the same after his death But it was Resolved That the Wife was to be aided by another former saving in the same Act viz. And saving to all other persons viz. who were not Parties to the Fine such Action Right c. as shall first grow or come c. to them after the Fine ingrossed and Proclamations made by force of any Gift in Tail or other Cause or Matter before the Fine levyed so that they take their Action and pursue their Title within 5 years after such Right come to them c. And in this Case the Action and Right of Dower accrewed to the Wife after the Reversal of the Attainder by reason of a Title of Record before the Fine by reason of the Seizin in Fee had and Marriage made before the Fine levyed according to the meaning of the said Act. And as to the Point of Relation it was Resolved That sometimes by construction of Law a thing shall relate ab initio to some intent and to some not for relatio est fictio Juris to do a thing which was and had essence to be adnulled ab initio betwixt the same Parties to advance a Right but not to advance a Wrong which the Law hates or to defeat Collateral Acts which are lawful and chiefly if they concern Strangers for true it is as hath been said that as to the mean profits the same shall have relation by construction of Law till the time of the first Judgment given and that is to favour Justice and advance his Right that hath Wrong by the Erroneous Judgment But if a Stranger hath done a Trespass upon the Land in the mean time he who recovereth after the Reversal shall have an Action of Trespass against the Trespassors and if the Defendant pleads there is to such Record the Plaintiff shall shew the Special Matter and maintain his Action And for the better apprehending the Law on this Point it is to know That when any man recovers any Possession or Seizin of Land in any Action by Erroneous Judgment and afterwards the Judgment is reversed as is said before and thereupon the Plaintiff in the Writ of Errour shall have a Writ of Restitution and that Writ reciâ—es the first recovery and the Reversal of it in the Writ of Errour is That the Plaintiff in the Writ of Errour shall be restored to his Possession and Seizin Una cum exitibus thereof from the time of the Judgment c. Tibi praecipimus quod cadem A. ad plenariam seizinam tenementor praed c. restitui facias per Sacramentum proborum c. diligâ—nter inquiras ad quantum exitus proficua tenementor illor c. a tempore falsi Judicii c. usque ad Oct. Sanct. Mich. anno c. quo die Judicium illu c. revocat fuit c. et quâ—liter hoc praecept c. in Octâ—b c. By which it appears that the Plaintiff in the Writ of Errour shall have Restitution against him who recovereth of all the mean Profits without any regard by them taken for the Plaintiff in the Writ of Erâ—our cannot have Remedy against a Stranger and therefore the words of the said Writ command the Sheriff to inquire of the Issues and Profits generally c. And therefore the Plaintiff in the Writ of Errour after the Reversal shall have any Action of Trespass for a Trespass mean and therewith agreeth Brian Chief Justice 4 H 7. 12. a. See Butler and Baker's Case in the third Part of my Reports good matter concerning Relations So as it was Resolved in the Case at Bar though to some intent the Reversal hath relation yet to bar the Wife of her Dower by fiction of Law by the Fâ—ne with Proclamations and five years past after the Husbands death when in truth she had not cause of Action nor any Title so long as the Attainder stood in force should be to do a Wrong by a fiction in Law and to bar the Wife who was a meer stranger and could have no Relief till the Attainder was reversed As to the other Objection That the Demandant on the Petition ought to have an Office found for hâ—r It was Resolved That it needed not in this Case because the Title of Dower stood with the Queens Title and affirmed it Also in this Case the Queen was not intitled by any Office that the Wife should be driven to traverse it for then she ought to have had an Office But in case of Dower though that Office had been found for the Queen which doth not disaffirm the Title of Dower in such Case the Wife shall have her Petition without Office See Sâ—dlers Case in the Fourth Part of my Reports And the Case put on the other side was utterly denied by the Court for it was Resolved That if a man seized of Lands in Fâ—e take a Wife of eight years of Age and alien his Lands and after the Wife attains to the Age of nine years and afterwards the Husband dyeth that she shall be endowed because the Title of Dower being not consummate till the death of the Husband and there being Marriage Seizin in Fee age of 9 years and the Husbands death for that cause she shall be endowed it being sufficient that the Marriage Seizin and Age happen during the Coverture So if a man seized of Lands in Fee take a Wife and after she elopes from her Husband now she is barrable of her Dower if during the elopement the Husband alien and after the Wife is reconciled she is Dowable So if a man hath Issue by his Wife and the Issue dyeth and afterwards Land discends to the Wife or she purchase Lands in Fee and dyes without other Issue the Husband for the Issue which he had before the Discent or Purchase shall be Tenant by the Courtesie But if a man taketh an Alien to Wife and afterwards he aliens his Lands and after that she is made a Denizen she shall not be endowed for she was not by her Birth capable of Dower but by her Denization it began But
all the purview of the Statute which is penned so precisely concerning persons should be all in vain by that evasion of Transcribing it as well against the express Letter of the Act as the intention of it And the Act ought to be expounded to suppress Extortion which is a great affliction and impoverishing of the Subjects 4. As this Case is he annexes the Probate and Seal to the Transcript ingrossed which the Plaintiff brought him so as the Case at Bar was with question And afterwards the Jury found for the Plaintiff And of such Opinion was Walmesly Warberton Daniel and Foster Justices the next Term in all things But upon Exception in Arrest of Judgment for not pursuing of the Act in the Information Judgment is not yet given c. Hill 6 Jac. Regis In the Common-Pleas In this Term a Question was moved to the Court which was this If Tenant in Burgage should pay aid to the King to make his eldest Son Knight And the Point rests upon this If Tenure in Burgage be a Tenure in Socage for by the antient Common-Law every Tenant in Knights Service and in Socage was to give to his Lord a reasonable Ayd to make his eldest Son a Knight and to marry his eldest Daughter and that was uncertain at Common-Law and also incertain when the same should be paid And this appears by Glanvil lib. 9. cap. 8. fol. 70. who wrote in the time of Henry the second Nihil autem certum statutum de hujus modi auxilâ—is dandis vel exigendis c. And in the beginning of the Chapter it is called rationabile auxilium because then it was not certain but to be moderated by Reason in respect of Circumstances The like appears by the Preamble of the Statute West 1. 3 Ed. 1. cap. 35. The said Act put those incertainties to a certainty 1. That for a whole Knights Fee there be taken but 20 s. and of 20 l. Lands holden in Socage 20 s. and of more more and of less less whereby the Ayd it self became certain 2. That none might levy such Ayd to make his Son a Knight untill his Age of 15 years nor to marry his Daughter till her Age of 7 years And Fleta who wrote after that Act calls them rationabilia auxilia c. And by the Stat. 25 Ed. 1. where it is provided That Taxes shall be taken but by common consent of the Realm there is an Exception of the Antient Ayds which is to be intended of these Ayds But notwithstanding the said Act of West 1. it was doubted if the King were bound by it being not expresly named And therefore Ed. 3. in the 20 year of his Reign took â—n Ayd of 40 s. of every Knights Fee to make the Black Prince Knight and then nothing of Lands holden in Socage and to take away all question concerning the same it was confirmed by Parliament and after 25 Ed. 3 cap. 11. It is Enacted That reasonable Ayd to make the Kings eldest Son Knight and to marry his eldest Daughter shall be levyed after the form of the Stat. made thereof and not in other manner Now Littleton lib. 2. cap. 10. fol. 36. b. Burgage Tenure is where an antient Borough is whereof the King is Lord and those who have Tenements within the Borough hold of the King That every Tenant for his Tenement ought to pay to the King a certain Rent And such Tenure is but Tenure in Socage and all Socage Land is contributary to Ayd and therefore a Tenant in Burgage shall be contributary to Ayd It appeareth in the Register fol. 1 2. in a Writ of Right Lands held in Knights Service are said Quas clamat tenere perservitium unius Feâ—di militis And Socage Lands Quas clamat per liberum servitium unius cumini c. So F. N. B. 82. Rationabile auxilium de militibus et liberis tenentibus where Militibus distinguisheth Knights Service from Socage which is called libtris tenentibus But it appears by the Books of Avowry 26. and 10 H. 6. So Antient Demesne 11. It was Resolved by all the Justices in the Exchequor Chamber That no Tenure shall pay for a reasonable Ayd but Tenure by Knights Service and by Socage but not by Grand Sergeanty nor no other And 13 H. 4. 34. agrees to the Case o Grand Sâ—rgeanty And I conceive that Petit Sergeanty shall also pay Ayd for Littleton lib. 2. cap. 8. fol. 36. sayes That such a Tenure is but Socage in effect though Fitzh N. B. 83. a. avouch the contrary 13 H. 4. 34. And I conceive That he who holds a Rent of the King by Knights Service or in Socage shall pay Ayd according to the words in West 1. cap. 35. And though it was said that a Tenure in Socage in servitium Socae as Littleton saith and the same cannot be applyed to Houses To that it was answered That the Land upon which the Houses are buâ—l or if the House fall down may be made arable and plowed See Huntington Polydor Virgil and Hollinsheads Chron. fol. 35. 15 H. 4. Ayd was levyed by H. 1. 7. to marry Mawd his eldest Daughter to the Emperour viz. 3 l. of every Hide of Land c. See also The Grand Customary of Normandy cap. 35. there is a Chapter of Aydeâ— See also the Stat. made 19 H. 7. which beginneth thus Item Praefati Communes in Parliamento praed existent ex assensu c. concesserunt praefat Regi quand pecuâ—iae summam in loco duorum rationabilium auxilior suae Majestat de jure debit c. See Rot. 30 H. 3. Ex parte Reman Dom. Thâ—saur in scemino in auxilio nobis concess ad primogenitam filiam noâ—â—ram maritand And H. 3. had an Ayd granted by Parliament Ad Is abellam sororem suam Imperatori But that was of Benevolence Rot. 42 H. 3. ibid. 6. Monstrat R. Johanne le Francois Baro de Scaccario quod cum Dom. Rex non caperet nisi 20 s. de integro Feodo Mil. de auxilio c. Ibid. in Regno 2 Ed. 1 Rot. 3. de auxilio ad Militiam Which is meant of Knight of the Kings Son Note If one withâ—n Age be in Ward of the King he shall not be contributary to Ayd but his Tenants that hold of him shall as appears by that Record Ibid. 30 Ed. 1. Ibid. T. R. 34 E. 1. Ibid. Hill 4 H. 4. Rot. 19. de rationabili auxilio de Will. Dom. Roos The like M. Rot. 5 H. 4. Rot. 33. Lincoln Roâ— 34. Lincoln Rot. 35 Lincoln Tr. R. 5 H. 4. Rot. 2. Kanc. Rot. 3. Kanc. Rot. 5. Kanc. See ibid. R. 21 Ed. 3. Rot. Cantab. â—e auxilio adfilium Regis primogenitâ—m faciend per Episcopum EEliens See also ibid. 20 Ed. 3. Rot. 13 14. de auxiliendo ad primogenitum filium Râ—gis Militem faciend By all which before cited it appeareth that Tenure in Burgage is subject to the payment of
charged and therewith agrees 10 Ed. 3. 28. b. and the Star 22 H. 8. cap. 5. was but an affirmance of the Common-Law in that Point He that hath Toll of Men or Cattel passing over a Bridge ought to repair the same when no other is bound by Law to do it for he hath Toll to that purpose Et quisentit commodam sentire debet onus and with this agrees 14 Ed. 3. Bar. 276. Also a man may be bound to repair a Bridge ratione tenurae of certain Land but a particular person cannot be bound by Prescription for if he have not profit by the same his Ancestors Act shall not bind him But an Abbot or Corporation may be charged by Prescription and may bind their Successors Vide 21 E. 4. 28. 27 Ed. 3. 8. 22 Ass 8. 5 H. 7. 3. Yeaâ— they shall be compelled if time out of mind they have repaired it though of Alms and therewith agrees 10 E. 3. 28. So of a High-way all the Country ought to repair it but some may be bound particularly as in the Case of Bridges As he who hath Land adjoyning ought to scour and cleanse the Ditches next to the way to his Land and therewith agrees the Book 8 H. 7. 5. So of a common River all who have Passage by it ought to scour and cleanse it for it is as a common Street as it is said 17 Assi and 37 Ass 10. Pasch 7 Jacobi Regis Sir William Reades and Booth's Case In the great Case of Forgery in the Star-Chamber between Sir William Read Plaintiff and Roger Booth and Cuthbert Booth and others Defendants the Case was thus Roger Booth 38 Eliz. was Convict in that Court of publishing a Writing under Seal forged in Sir Thomas Greshams Name of a Rent charge of 100 l. out of all his Lands c. to one Markham for 99 years dated 21 year of Queen Elizabeth's Reign knowing it to be forged And afterwards the said Sir William Read exhibited the said Bill against the said Boothes and others for forging another Writing under Seal dated the 20th of Elizabeth in the said Sir Thomas Gresham's Name purporting a Deed of Feoffment of all his Lands except certain to Sir Rowland Heyward and Edward Hoogen and their Heirs in effect to the use of Markham the younger and his Heirs and for publishing the same knowing it to be forged was the Bill exhibited And upon hearing this Cause this Term these Doubts were moved upon the Star 1 Eliz. 1. If one who is Convict of publication of a Deed of eoffment or Rent-charge knowing the same to be forged again at another day forge another Deed of Feoffment or Rent-charge if he be within the Case of Felony within the Aâ—t which Doubt ariseth upon these words est-soons committed again any of the said Offences 2. The second Doubt was If a man commit two Forgeries one in 37 Eliz. the other in 38 Eliz. and he is first convicted of the last if he may now be impeached for the first 3. When Roger Booth was Convict in 38 Eliz. and after is charged with a new Forgery in 37 Eliz. If the Witnesses moving in truth that it was forged after the 〈◊〉 Conviction if the Star-Chamber hath Jurisdiction of 〈◊〉 4. When Cuthbert Booth who was never Convict of Forgery before if in truth the Forgery was done and so proved in 38 Eliz. If he might be convicted upon this Bill because the Forgery is alleadged before it was done 1 2. To the first and second Doubts It was resolved by the two Chief Justices and Chief Baron That if one be Convict of Forgery or publishing any Writing concerning Free-hold c. within the first Branch or concerning Interest or Term of Years c. in the second Branch and be convicted if afterwards he offend either against the first Branch or second that the same is Felony As if he forge a Writing concerning an Interest for Years within the second Branch and be convicted and after he forgeth a Charter of Feoffment within the first Branch et e converso that is Felony by express words of the Act. But if one forge a Writing in 37 Eliz and after he forge another in 38 Eliz. yet it is not Felony though he forge many Writings one after another for the Forgery c. which is Felony by the Act ought to be after Conviction or Condemnation of a former Writing 3. As to the third Doubt It was Resolved That the Allegation of the time by the Plaintiff in the Bill shall not alter the Offence but shall give to the Court Jurisdiction But if it appear that the Forgery or Publication was after the Sentence then the Court shall surcease 4. As to the last Point It was Resolved That the time of the Forgery is not material if it be committed before the exhibiting the Bill But if the date of such Writing supposed to be Forged had been mistaken there the Defendant could not be condemned of a Deed of another Date Pasch 7 Jac. Regis The Case of Sewers The Case was There was a Cawsey or Milstank of Stone in the River of Dee and in the City of Chester which Cawsey before the Reign of King Edward the first was Erected for the necessary maintenance of certain Mills at the end of the said Cawsey And now a certain Decree was made by certain Commissioners of Sewers for a Breach to be made by ten Poles in length in the said Cawsey and if by any Decree of the Commissioners by force of any Statute any breach may be made in that Cawsey was the Question And it was referred by Letters of the Lords of the Privy-Councel to the Chief Justices and Chief Baron who upon hearing of Councel Learned at divers dayes and good Consideration had of all Statutes of Sewers and Conferences among themselves It was Resolved as followeth 1. That the Stat. of Magna Chart. cap. 23. Quod omnâ—s Kidelli deponantur c. extended onely to Kidels viz. Open Wears for taking Fish But the first Stat. that extended to pulling down or abating any Mills Mill-Stanks or Cawseyes was 25 Ed. 3. cap. 4. which appointed onely such to be pulled down as were Erected in the Reign of King Edward the first or after But by 1 H. 4. cap. 12. upon complaint in Parliament of great damages by inhansing Mills Mill-stanks c. made before Edward the first 's Reign that Act appoints them to be surveyed and such as were found to be much inhansed to be corrected None of which Acts extend to the Case in question for that Cawsey was erected before Edw. 1. and never inhanced since the Erection And the 12 H. 4. c. 7. confirms all the said Acts. And by the 23 H. 8. c. 5. none of the said Statutes are repealed as to the Case in question for thereby the Form and Effect of the Commission of Sewers is appointed and power given to the Commissioners to survey Walls c. Fences Cawseys
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
shall be extinct for Fealâ—y is by necessity of Law incident to the Reversion but the Rent shall be divided pro rata portionis and so it was adjudged And it was also adjudged That though Collins come to the Reversion by several Conveyances and at severall times yet he might bâ—ing an Action of Debt for the whole Rent Hill 43 Eliz. Rot. 243. West and Lassels Case So Hill 42 Eliz. Rot. 108. in the Common Pleas Ewer and Moylâ—s Case Note It was adjudged 19 Eliz. in the Kings-Bench that where one obtained a Prohibition upon Prescription de modo Decimandi by payment of a sum of money at a certain day upon which Issue was takeâ— and the Jury found the modus Decimandi by payment of the said sum but at another day the Case being well debated at last it was Resolved That no Consultation should be granted for though the day of payment may bâ— mistaken yet a Consultation shall not be granted where the Soitâ—tual Court hath not Jurisdiction of the Cause Taafi ld Chief Baron hath the Report of this Cause Mich. 7 Jac. Regis In an Ejectione Firmae he Writ and Declaration were of two parts of certain Lands in Hetherset and Windham in the County of Norfolk and saith not in two parts in three parts to be divided and yet it was good as well in the Declaration as the Writ for without question the Writ is good de duabus partibus generally and so is the Register See the 4 E. 3. 162. 2 E. 3. 31. 2 Ass 1. 10 Ass 12. 10 E. 3. 511. 11 Ass 21. 11 E. 3. Bre. 478. 9 H. 6. 36. 17 E. 4. 46. 19 E. 3. Bre. 244. And upon all the said Books it appears that by the Intendment and Construction of the Law when any parts are demanded without shewing in how many parts the whole is divided that there remains but one part undivided But when any Demand is of other parts in other form there he ought to shew the same specially And according to this difference it was resolved in Jordan's Case in the Kings-Bench and accordingly Judgment was given this Term in the Caseat Bar. Mich. 7 Jac. Regis In the Common-Pleas Muttoa's Case An Action upon the Case was brought against Mutton for calling the Plaintiff Sorce and Inchanter who pleaded Not Guilty and it was found against to the Damage of six pence And it was holden by the whole Court in the Common-Pleas that no Action lyes for the laid words for Sortilegus est qui per sortes futura praenunciat Inchantry is vordis aut rebus adjunctis aliquid praeter naturam moliri See 45 Ed. 3. 17. One was taken in Southwark with the Head and Visage of a dead man and with a Book of Sorcery in his Mayl and he was brought into the Kings-Bench before Knevet Justice but no Indictment was framed against him for which the Clerks made him swear never after to commit Sorcery and he was sent to Prison and the Head and Book were burn'd at Tuthil at the Prisoners charges The antient Law was as by Britton appears that who were attainted of Sorcery were burned but the Law at this day is they shall onely be fined and imprisoned So if one call another Witch an Action will not lye But if one say She is a Witch and hath bewitched such a one to death an Action upon the Case lyes if in truth the party be dead Conjuration in the Stat. 5 Eliz. cap. 16. is taken for Invocation of any evil and wicked Spirits and the same by that Act is made Felony But Witchcraft Inchantment Charms or Sorcery is not Felony if not by them any person be killed or dyeth The first Statute made against Conjuration Witchcraft c. was the Act 33 H. 8. c. 8. and by it they were Felony in certain Cases special but that was repealed by the 1 Ed. 6. c. 12. Mich. 7 Jae Regis In the Court of Wards Sir Allen Percy 's Case Sir John Fitz and Bridget his Wife being Tenants for life of a Tenement called Ramshams the remainder to Sir John Fitz in Tail the remainder to Bridget in Tail the reversion to Sir John and his Heirs Sir John and Bridget his Wife by Indenture demised the said Tenement to William Sprey for divers years yet to come except all Trees of Timber Oakes and Ashes and liberty to carry them away rendring Rent And afterwards Sir John dyed having Issue Mary his Daughter now Wife of Sir Allen Percy Knight and afterwards the said William Sprey demised the same Tenement to Sir Allen for 7 years The Question was Whether Sir Allen having the immediate Inheritance in right of his Wife expectant upon the Estate for the life of Bridget and also having the Possession of the said Demise might cut down the Timber Trees Oakes and Ashes And it was objected he might well do it for it was Resolved in Sanders Case in the 5th Part of my Reports That if Lessee for years or life assigns over his term or Estate to another excepting the Mines or the Trees c. that the Exception is void But it was answered and Resolved by the two Chief Justices and the Chief Baron that in the Case at Bar the Exception was good without question because he who hath the Inheritance joyns in the Lease with the Lessee for life And it was further Resolved That if Tenant for life Leaseth for years excepting the Timber Trees the same is lawfully and wisely done for otherwise if the Lessee or Assignee cut down the Trees the Tenant for Life should be punished in Wast and should not have any remedy against the Lessee for years But when Tenant for life upon his Lease excepteth the Trees if they be cut down by the Lessor the Lessee or Assignee shall have an Action of Trespass Quare vi armis and shall recover Damages according to his loss And this Case is not like the Case of Sanders for there the Lessee assigned over his whole Interest and therefore could not except the Mines Trees c. But when Tenant for life leases for years except the Timber Trees the same remaineth yet annexed to his Free-hold and he may command the Lessee to take them for necessary Reparations of his Houses And in the said Case of Sanders a Judgment is cited between Foster and Miles Plaintiffs and Spencer and Bourd Defendants That where Lessee for years assigns over his Term except the Trees that Wast in such Case shall be brought against the Assignee But in this Case without question Wast lyeth against Tenant for life and so there is a difference Mich. 7 Jac. Regis In the Court of Wards Hulme's Case The King in Right of his Dutchy of Lancaster Lord Richard Hulms seized of the Mannor of Male in the County of Lancaster holden of the King as of his Dutchy by Knights Service Mesne and Robert Male seized of Lands in Male holden of the Mesne as of his said Mannor by Knights
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