manifest that by their Oathes they are bound to interprete the lawes truely betweene the King and his people and betweene partie and partie and if in any Case granted it cannot be denyed when the Common-wealth desires a Declaration of the law in certaine points wherein they conceive their just liberties to have beene invaded least under colour of prerogative which the Parliament holds to be sacred some ministers may presume as of late they have endevored to destroy the peoples just liberties In the ordinarie Courts of Iustice the Iudges upon Oath are bound to afford the subject Iustice against the King and all others and are appointed by his Majesty for that purpose all writs are in his Majesties name in the Kings bench the pleas are styled Coram Rege Letters-patents and writs originall are Teste me ipso the King is therefore present in Parliament being the highest tribunall where in truely he sits in the exaltation of Royaltie and greatnesse Therefore the Commands of all his ordinary Courts are the commands of the King much more Commands in Parliament where his presence is more apparant and essentiall then in all other Courts of this kingdome It appeares copiously by the great Charter and by constant practise of all Parliaments since that time that all Courts and Iudges were regulated by Parliaments as for the Kings prerogative or revenue the Iudges cannot bee ignorant but the Parliament is and ever hath beene the best mantayner of his just prerogatives the best overseer of his revenue which if it fall short they onely are able and willing to supply It is true that the abuses of former times might be reformed for the future by Bils to bee past as statutes Yet that is away about and we may not loose the possession of our lawes and just liberties nor by new statutes admitt impunitie or give countenance to past offences statutes of this kind sufficient were already enacted and passed in former ages The declaration of a knowne law and the manifestation of wholesome statutes already established well may helpe the Common-wealth for the present but cannot in any probabilitie fall out hereafter to be prejudiciall to the state or Commonwealth and there is no president or example of any such prejudice It is confessed that most of the matters contayned in the Questions are alreadie voted for grievances in both houses and that very justly but how the law is therein remaynes yet to be declared as to this present Parliament which I hope in due time shall bee declared according to law and justice as in many Parliaments before the same or the like hath beene often done Where they doe againe insist upon the want of president and withall that in the preamble to the Questions the protestation cleares the law This word President strikes close unto us I have answered it before by presidents yet some more presidents I will offer as often as they speake the word president 7. 8. Elizabeth Dy. fol. 241. b. placit. 49. The Kings Atturney demanded the opinion of the Iudges 9. Elizab. Dy. 261. placit. 28 Casus Hiber where the Iudges of England signed their opinions to questions propounded by the Iudges of Ireland 11. Eliz. Dy. fol. 282. b plac 26. Casus Hiber 19. 20. Elizab. Dy. 360. The Case of arraignement of a Peere the like 13. CÃ roli by all the Iudges of England the Earle of Ormonds Case and yet in none of these Cases the matter was depending before them Notwithstanding the protestation may cleare the law yet in all precedent ages lawes cleare in themselves for their greater honor and countenance they have beene declared and enacted in Parliament The Law declared by Magna Charta was cleare before yet it was enacted 9. Henr. 3. and in thirty Parliaments since Cooke 8. 19. b. Primes Case the statute of praerog Regis And the statute of 25. Edw. 3. of treasons is declarative and so are many other statutes Adam eate the forbidden fruite Cain killed his brother God demaunded whether this was done yet he could not be ignorant of the fact The first article in the Civill and Canon law Courts is whether there is such a law all this is done for illustrations sake My Lords The ground of the Questions and the preamble to the writing styled an Answer kept me so long that I feare much to have trespassed upon your patience and yet the importance of the cause urgeth me to importune your Lordships favour a little further This Question is short and yet comprehensive that we are a free people is confessed to my hands to that part of the answer I doe not except the second part of the Question is whether wee are to be governed by the lawes of England and statutes of force in Ireland onely First though I need not prove it yet it is cleare we ought to bee so governed Matth. Paris historia maiori fol 121. Sir Iohn Davis discovery of Ireland fol. 100. King Henry the second held a Parliament at Lismore in Ireland in which Parliament Leges consuetudines Angliae fuerunt gratanter acceptae by the representative body of this whole Nation Magna Charta and other beneficiall statutes of England are here in the red Booke of the Exchequer in and since King Iohns time and so is Gervasius Tilberiensis of the Course and Officers of the Exchequer in the white booke of the Exchequer of Ireland leges consuetudines Angliae received in Ireland by Parliament otherwise this appeares 9. Iohn pat membr. 2. 1. Henr. 3. pat memb. 13. 10. Hen. 3. pat membr. 4. 12. Henr. 3. claus. membr. 8. by which words and by the constant practise of all ages since this kingdome was governed and ought to be so by the law of England as the law of the land which law as it was alwayes here received consists of three parts First the Common-law Secondly the generall customes of England Thirdly statutes here received The Common-law that is cleared already Customes as Tenant by the Curtesie Inne-keepers to be responsible for things within their houses or the like when we speake of a Custome in the law it must be intended a generall Custome over the Realme and no particular Custome And this appeares by the yeare bookes of 37. Henr. 6. fol. 5. 21. Henr. 7. 17. 18. Particular customes as Gavelkiâ—d Boreugh English-tenant right or the like are not to be intended when wee speake generally of Custome and these Customes are warranted by the Common-law of England being not contrary to the same but praeter legem so there may bee and are particular customes here praeter legem and yet not contrary to law as in many Corporations and Countries so the wives third of goods is good in England by the custome of many counties and places F. N. B. 122. 7. Edward 4. 21. 40. Edw. 3. 38. 17. Edw 2. f. detinue 58. Therefore it is not contrary to law that such a
from her And yet the constant practise is otherwise in England and other instances of that kind might be made so that the words onely must receive a benigne exposition before the first question can receive a generall answer in the affirmative Secondly many causes of great weight and consequence in this kingdome are to bee decreed and ordered by equitie in the proper Courts of equitie and in course of State at the Councell-board and by particular customes and contrary to law for which the Common-law and statutes of force in this kingdome give no remedie Thirdly there are severall other lawes of force in England and Ireland so farre as they have been received which though some would have to be part of the Common-law of England yet we find them particularly distinguished from it in our Printed Bookes in Parliament Rolles in England as Lex est consuetudo Parliamenti jura belli Ecclesiasticall or Canon law in certaine cases Civill law in some cases not onely in Ecclesiasticall Courts but in the Courts of Constable and Marshall and of the Admiralty and upon particular occasions in the other Courts lex Mercatoria c. 2. To the second They say that the Iudges of this kingdome doe take the Oath of Iudges which Oath is specified amongst the statutes in 18. Edw. 3. and is after explaned by the statute of 20. Edw. 3. and that they may not stay hinder or delay the suite of any subject or his judgement or execution thereupon otherwise then according to the law and course of the Court where they sit under pretence of any act of state proclamation writ letter or direction under the great or privy Seale or privie Signet or Letter or other Commandement from the Lord Lieutenant Lord Deputy Iustice Iustices or other chiefe Governor of this kingdome most of which doth appeare by their Oath expressed in the said statutes and the said statute of 2â— Edw. 3. cap. 8. and the statute of 28. Edw. 3. cap. 2. as to Barons of the Exchequer And that as they know no punishment due to Iudges for their deviations transgressions without other aggravation So they know no punishment layd downe by any law against them for their deviations and transgressions in hindering staying or delaying of Iustice contrary to their said Oath other then what is declared in their said Oath and the statute of 20. Edw. 3. 3. To the third they say that it is part of their said Oath as Iudges that they shall not counsell or assent to any thing that may turne to the damage or disherison of our Soveraigne Lord the Kings most Excellent Majestie by any manner of way or colour And that they shall give no advice or counsell to any man great or small in no cases wherein the King is a party And they shall doe and procure the profit of the King and his Crowne in all things where they may reasonably doe the same And that in the explanation of their said Oathes by the statute of 20. Edw. 3 cap. 1. It is declared that they shall give no counsell to great men nor small in case where the King is party or which doth or may touch the King in any point And as your Lordships have beene honorably pleased by an order of this honorable house bearing date the first of March Anno Dom. 1641. Annoque Regni Caroli decimo sexto to give way that they should not be compelled to answer any part of those questions which did concerne his Majesties prerogatives or were against their oathes so they humbly represent unto your Lordships that they conceive that the answering of the particulars of this question doth concerne both for that the Kings privie Counsell as the question tearmes it or the Councell-board is a Court of his Majesties high prerogative where all proceedings are before him and his Counsell or before his Governor who doth immediately to many purposes represent his Majesties person and the Counsell And where the great affaires of state concerning his Majesties honor government profit and of great persons and causes concerning the Common-wealth which may not conveniently be remedied by the ordinary rules of Common-law and many other causes have beene treated of and managed And as his Majesty is the fountayne of all Iustice with in his kingdomes and may grant Cognizance of pleas unto his subjects and Corporations and may by his Commission authorize whom he shall thinke fit to execute many branches of his authoritie so they humbly conceive it doth not stand with their Oathes or duties of their places who are but Iudges of the ordinary Courts of Iustice before his Majesties pleasure signified in that behalfe to search into the Commissions or instructions of the chiefe Governor and Counsell or to give any opinion concerning the limits jurisdiction orders decrees proceedings or members of that high Court and that the King hath a prerogative for the hearing some of the matters in this question specified before his chiefe Governor We beseech your Lordships to cast your eyes on the statute of 28. H. 6. cap. 2. in this kingdome where after mâ—â—ters are directed to be sent to the ordinary Courts yet the Kings prerogative is expressely saved notwithstanding all which his gracious Majesty for whom it is most proper hath of late beene pleased to limit the proceedings of that Board by his instructions in print 4. To the fourth they answer as to the Third 5. To the fift they say that generally all grants of Monopolies whereby trading manufacture or commerce is restrayned the profit which should goe to many hindred brought into a few hands are against law the liberty of the subject and the good of the Common-wealth though they carrie never so faire a pretence of reforming abuses and that the pretended transgressors against such grants are not at all punishable by any rule of law that they know of And yet they say that they conceive that his Majestie that is the head and father of the Common-wealth may restrayne the use and importation and exportation of certaine commodities or confine the same into a few hands for a time where there may be likelyhood of his Majesties profit which is the profit of the Common-wealth and no apparent prejudice to the Common-wealth doth appeare and that when time shall discover such prejudice then such restraints ought to cease So if a man by his owne invention at home or travell observation or charge abroade doth introduce a new profitable and usefull trade or profession into the Common-wealth in such cases his Majesty may lawfully grant licence the only making of such commoditie or teaching or using of such trade for a certayne time and the transgressors against such warrantable grants may be punished by payment of damages unto the Patentee in an ordinary course of Iustice or otherwise as the nature of the offence and matter doth deserve and as the consequence and importance of the matter may be to the King State or
Common-wealth And they say that the matter manner restrictions limitations reservations and other clauses contayned in such grants or licences and the Commissions or Proclamations thereupon and undue execution thereof and severall circumstances may make the same lawfull or unlawfull whereof they are not able to give any certayne resolution before some particular commes in judgement before them neyther are they otherwise able to answer the generall in the particulars of the said question of what in what cases how where and by whom or which of them wherein whosoever desireth further satisfaction he may please to have recourse unto the knowne cases of Monoplies Printed authorities and written Reports and unto the statute of 21. Ia. in England concerning Monopolies and the severall exceptions and limitations therein 6. To the sixt they say they can no otherwise answer then they have already in their answer to the third question for the reasons therein setforth 7. To the seventh they say that a Proclamation or act of State cannot alter the common-law and yet Proclamations are acts of his Majesties prerogative and are and alwayes have beene of great use and that the contemners of such of them as are not against the law are and by the constant practise of the Star-chamber in England have beene punished according the nature of the contempt and course of the said Court and although acts of State are not of force to bind the goods possessions or inheritance of the subject yet they have beene of great use for the setling of the estates of very many subjects in this kingdome as may appeare in the Report of the case of Irish gavelkind in Print And further to that question they cannot answer for the reasons in their answer unto the third question set forth 8. To the eight they say that they know no ordinary rule of law by which the subjects of this kingdome are made subject to Marshall-law in time of peace and that they find the use thereof in time of peace in England complayned off in the petition of right exhibited to his Majestie in the third yeare of his raigne And that they conceive the granting of authority and Commission for execution thereof is derived out of his Majesties Regall and prerogative power for suppressing of suddaine and great insolencies and insurrections among armies or multitudes of armed men lawfully or unlawfully convented together the right use wherof in all times hath beene found most necessary in this kingdome And further to that question they cannot answer for that as they conceive it doth concerne his Majesties Regall power and that the answering of the other part of the question doth properly belong to another profession whereof they have no Cognizance 9. To the ninth they say that as the taking of any Oath before any but such Iudges or persons as have power to give or demaund an Oath for decision of controversies is by most Divinâ— in most cases counted to be a rash Oath and so an offence against God within the third Commandement so the prescribing and demaunding of a set Oath by any that cannot derive power so to doe from the Crowne where the fountaine of Iustice under God doth reside is an offence against the law of the Land and as for voluntary and extra judiciall Oathes although freely taken before arbitrators or others they say as this kingdome is composed in many particulars as the nature consequence of the cause or the quality of the person who taketh or before whom the same is taken may concerne the Common-wealth or the members therof such taking of such Oathes or proceeding or grounding on such Oath in deciding of controversies according to the severall circumstances that may occurre therein or the prejudice it may introduce to the Common-wealth may be punishable by the Common-law or if it grow unto an height or generall inconvenience to the common-wealth or members thereof in the Castle-chamber For though such an Oath be voluntary yet in most cases it is received by him that doth intend to ground his Iudgment thereon and after the Oath is taken the arbitrator or he that intends to yeeld faith to the party that tooke the Oath doth examine him upon one or more questions upon the said Oath unto the answer whereof hee doth give faith and assent trusting on the said Oath And whereas Oathes by Gods institution were chiefly allowed to bee taken before lawfull Magistrates for ending of controversies yet common experience doth teach in this kingdome that oftentimes orders and acts grounded on such voluntary Oathes beget strife and suits and commonly such orders when they come to bee measured by rules of law or equitie in the Kings Courts become voyde after much expence of time and charge that we say nothing of that that thereby many causes proper to the Kings Courts are drawn ad aliud examen and thereby the Kings justice and Courts often defrauded and declined 10. To the tenth they say that they are not Iudges of rules of policie but of law and that they know no certayne rule of law concerning reducement of fines The same being matters of his Majesties own meere Grace after a man is censured for any offence And that they know no law that none shall be admitted to reducement of his fines or other penalties in the Courts in the question specified untill he confesse the fact for which he was censured But forasmuch as the admittance to a reducement after conviction for an offence is matter of Grace and not Iustice It hath beene the constant course of these Courts both here and in England for cleering of his Majesties justice where the partie will not goe about to cleere himselfe by reversall of the censure or decree not to admit him to that grace untill he hath confessed the justnesse of the sentence pronounced by the Court against him And that the rather for that commonly the ability and disabilitie of the partie doth not appeare in judgement before them but the nature and circumstances of the offence according to which they give sentence against him or them in terrorem after which when the partie shall make the weaknesse of his estate appeare or that the Court is otherwise ascerteyned that they doe of course proportion the censure or penaltie having regard to his estate 11. To the eleventh they say That neither the Iudges of the Kings Bench as they informe us that are of that Court or Iustices of Gaole delivery or of any other Court doe or can by any law they know deny the copies of Indictments of Felony or Treason to the partie only accused as by the said question is demanded 12. To the twelfth they say that where lands are holden of the King by the Knights service in Capite the tenant by the strict course of Law ought in person to doe his homage to the King and untill he hath done his homage the ancient course of the Exchequer hath beene yet is to issue
processe of distringas out of the second remembrance Office to distrayne the tenants ad faciendum homagium or pro homagio suo respectuaÌ„do upon which processe the Shiriffes returneth issues And if the Tenant doe not therupon appeare and compound with the King to give a fine for respite of homage then the issues are forfeyted to the King for his contempt but if he appeare then the Court of Exchequer doth agree with him to respite his homage for a small fine wherein they regulate themselves under the rate expressed and set downe in England by vertue of a privie Scale in the 15. yeare of Queene Elizabeth whereby the rates are particularly set downe according to the yearely value of the Lands which rates are confirmed by act of Parliament in 1. Iacob Regis cap. 26. in England before which time there was not any such certayntie but the same rested in the discretion of the Court by the rule of Common-law and so it doth at this day in Ireland howbeit we conceive that the Court of Exchequer here doe well to regulate their discretions by those rates in England and rather to be under then to exceede the same which the Barons there doe as they doe informe us that are Iudges of the other Courts 13. To the 13. they say that they know no rule of Law or statute by which it should be ceÌ„surable in the subjects of this kingdome to repayre into England to appeale unto his Majesty for redresse of injuries or for other their lawfull occasions unles they be prohibited by his Majesties writ or proclamation or other his Command But they find that by the statute of 5. Rich. 2. the passage of the subject out of the Realme is prohibited without speciall licence excepting Noblemen others in the said statute specially excepted some inference to that purpose may be made upon the statute of 25. Hen 6 cap. 2. in this kingdome 14. To the 14. they say that some Deanries dignities not Deanes or dignitaries as the question propounds it are properly de mero jure donative by the King some Elective some Collative according to the first foundation usuage of such Churches they humbly desire that they may not be required to give any further answer to this question for that it may concerne many mens estates which may come judcially in question before them 15. To the 15. they say that they conceive that where priviledges are claymed by any body politicke or other the Kings Counsell may exhibite à quo-warranto to cause the parties clayming such priviledges to shew by what warrant they clayme the same that the Court cannot hinder the issuing of processe at the instance of the Kings Atturney or hinder the Kings Atturney to exhibite such informations But when the case shall upon the proceedings be brought to judgment then not before the Court is to take notice and give judgâ—ment upon the merite circuÌ„stances of the cause as upon due consideration shal be conceived to be according to law in which case the Iudges or the Kings Atturney as they conceive ought not to be punished by any ordinary rule of law or statute that they know But for the particular case of Quo-warranto for that it hath beene a great question in this present Parliament so concernes the highest Court of justice in this kingdome also concernes two other of his Majesties Courts of justice therin his Majesties prerogative in those Courts they say that they cannot safely deliver any opinion therein before it comes judicially before them and that they heare it argued and debated by learned Counsell on both sides 16. To the sixteenth they say that although the Iurors be sole Iudges of the matter of fact yet the Iudges of the Court are Iudges of the validitie of the evidence and of the matters of law arising out of the same wherein the Iury ought to be guided by them And if the Iury in any criminall cause betweene the King and party give their verdict contrary to cleere and apparent evidence delivered in Court they have beene constantly and still ought to be censured in the Star-chamber in England and Castle-chamber here for this misdemeanor in perverting the right course of justice in such fines and other punishment as the merites circumstances of the cause doth deserve according to the course of the said Courts for that their consciences ought to be directed by the evidence and not to bee misguided by their wills or affections And if the Iury know any matter of fact which may eyther better or blemish their evidence they may take advantage thereof but they ought to discover the same to the Iudges And they say that this proceeding in the Court of Castle-chamber is out of the same grounds that writs of attaint are against a Iury that gives a false verdict in a Court of Record at the Common-law betwixt partie and partie which false verdict being found by a Iury of twenty foure notwithstanding that the first Iurie were Iudges of the fact yet that infamous judgement was pronounced against the first Iury which is next or rather worse then judgment to death and did lay a perpetuall brand of perjury upon them for which reason it was anciently called the villanous judgement and they say that the law to direct the punishment for such offences is the course of the said Court which is a law as to that purpose the statute of 3. Henr. 7. cap. 1. and other statutes in force in this kingdome 17. To the seventeenth they say they can answer no otherwise then they have in their answer to the next precedent question 18. To the eighteenth they say that in a Legall construction the statute of Magna Charta in which the words Salvo contenemento are mentioned is only to be understood of amerciaments not of fines yet where great fines are imposed in terrorem upon the reducement of them regard is to be had to the abilitie of the persons 19. To the nineteenth they say that if one doth steale a sheepe or commit any other felony and after flyeth the course of justice or lyeth in woods or mountaynes upon his keeping yet doth he not thereby become a Traytor neyther doth a Proclamation make him so the chiefe use whereof in such a Case is to invite the partie so standing out to submit himselfe to justice or to forewarne others of the danger they may runne into by keeping him company or giving him mayntenance and reliefe whereby he may the rather submit to Iustice 20. To the twentieth they say that the testimony of Rebels or Traytors under protection of Theeves or other infamous persons is not to bee used or pressed as convincing evidence upon the tryall of any man for his life and so is his Majesties printed instructions as to persons condemned or under protectioÌ„ yet the testimony of such persons not condemned being fortified with other concurring
to receive no reward Sixtly to take no Fee of any other then the King Seventhly to commit such as breake the peace in the face of Iustice Eightly not to mantayne any suite Ninthly not to deny Iustice notwithstanding the Kings Letters or Commandements and in that Case to certifie the King of the truth Tenthly by reasonable wages to procure the profits of the Crowne Eleventhly if he be found in default in any the matters aforesaid to bee in the Kings mercie body Lands and goods The second reason principally moveth from the following particulars In the Kings Bench the Major-part of the Iudges denyed his Majesties writ of prohibition to the late Court called the high Commission in a cause meerely temporall The foure Courts of Iustice durst not proceede in any cause depending before the chiefe Governor or at the Counsell-board upon paper petitions or rather voyde petitions these paper-petitions being the oblique lines aforesaid grave Iudges of the law were commonly assistants and more commonly referrees in the proceedings upon these paper-petitions in what causes in all causes proper for the Cognizance of the Common-law and determinable by writs of right and petitions of right and so to the most inferior action the like of the Courts of equitie whether this be lawfully to serve the King and his people or whether the King was at losse by the non-prosecuting of the causes aforesaid in their proper orbes by originall writs which might afford the King a lawfull revenue and likewise by the losse of fines and amerciaments naturall to actions at the Common-law or whether the losse aforesaid was made knowne to his Majestie or who consented to the Kings damage therein or whether this be a denyall of justice to deferre it upon paper Orders or Commaunds be conformable to that Oath I will pretermit yet your Lordships may even in this mist discerne a cleere ground for the second question The motive which in part stirred the third and fourth questions was the infinity of Civill causes of all natures without exception of persons without limitation of time proceeded in ordered decreed and determined upon paper-petitions at Counsell-board by the chiefe Governor alone The Commons of this kingdome observing the Iudges of the law who were Counsellors of estate to have agreed and signed unto such Orders the Iudges of the foure Courts and Iustices of Assize in all the partes of the kingdome to bee referrees upon such proceedings wherby these new devises were become so notorious that as all men heavily groaned under them so no man could bee ignorant of them By the colour of Proclamations more more frequent and of the Orders and Acts of state at Counsell-board which were in a manner infinite and other proceedings mentioned in these questions these effects were produced First imprisonment close imprisonment of such numbers that a great defeate in a battle could hardly fill more gaoles and prisons then by these meanes were surcharged in Ireland Secondly by seizures made by crewes of Catchpoles and Caterpillers his Majesties Leige people lost their goods as if lost in a battaile nay worse without hope of ransome Thirdly possessions were altered and that so often and so many that more possessions were lost by these courses in a few yeares then in all the Courts of Iustice in Ireland in an age or two The fourth effect was this after liberty was taken away propertie altered and possession lost by the wayes aforesaid that was not sufficient the subject must be pillored papered stigmatized and the image of God so defaced with indignities that his life became a continuing death the worse of punishments in these feates were advising and concurring some grave and learned Iudges of the Land who were Counsellors of estate as by their signatures may appeare The house of Commons finding as yet no warrant of president nor countenance of example in the law of England to beare up the courses aforesaid have drawne the said Questions from the effects aforesaid My Lords the liberty estate in lands or goods the person of the subject nay his honor and spirit being invaded altered and debased in manner aforesaid there remayned yet one thing his Life See how this is brought into play nothing must escape were not the Gates of Ianus shut up was not the Kings peace universall in his three kingdomes when a Peere of this Realme a Counsellor of the Kings a great Officer of state was sentenced to be shot to death in a Court Marshall what the cause was what defence was permitted what time given and what losse sustayned I submit to your Lordships as therein most neerely concerned were not others actually executed by Marshall law at such time as the Kings Iustice in his Courts of law was not to be avoyded by any person whatsoever This was in part the ground of the eight question This question is plaine a late introduced practise here contrary to former use and no appearing president to warrant such prosecution for a voluntary Oath and the great benefit and quiet accrewed to his Majesties people by arbiterments conceived by consent of parties hath in part occasioned this question Heretofore this Confession was not required for the Iustnesse of the Iudgements was then able enough to beare them up and if the judgement in some Case had beene otherwise what force can the confession of a delinquent add to a Iudiciall act this is part of the reason for this question A complaint exhibited in the house of Commons touching the denyall of the Copy of a Record which the complaynant undertooke to Iustifie in part raised this question In King Iames his time by an order conceived in the Court of Exchequer upon great debate and warranted by ancient presidents the respite of homage was reduced to a certaintie viz. two shillings sixe pence sterling For a Mannor yearly and so for Townes and other portions of Land this course was alwayes held untill now of late the respite is arbitrarily raysed as appeares by the second remembrances certificate viz. I finde that anciently before the beginning of King Iames his raigne every Mannor payed three shillings foure pence Irish per annum every Towne-land twentie pence Irish per à nnum as a fine for respite of homage but cannot finde any order or warrant for it untill the fifth yeare of the said Kings raigne and there in Easter Terme 1607. I finde an order entred directing what homage every man should pay a Copy whereof you have already from mee the preamble of which orders sheweth that that matter had beene long depending in the Court undecided which induceth me to beleeve that there was no former president or order in it About three yeares after the freeholders of the Countie of Antrim as it should seeme finding this rate to be too heavy for them they petitioned to the Lord Chichester then Lord Deputy for reliefe therein I finde his Lordships opinion to the
or penaltie upon the libertie goods or lands of him that would bring an assize of Daren presentment for a prebendary I doe finde that a provision was made in haec verba Promissum est à Consilio Regis quod nullus de potestate Regis Franciae respondeat in Anglia antequam Anglici de jure suo in terra Regis Franciae c. Yet by that provision no forfeyture upon the lands or goods of him who sued a Frenchman in England at that time It is true that a Custome may bee contrary to the law and yet allowable because that it may have a lawfull commencement and continuall usage hath given it the force of a law Consuetudo ex certa rationabili causa vsitata privat communem legem but no proclamation or act of state may alter law For example sake at Common-law a Proclamation cannot make lands devisable which are not devisable by the law nor alter the course of descent The King by his Letters-patents cannot doe the same nor grant lands to bee ancient demesne at this day nor make lands to be descendible according the course of Gavelkind or Borrough English unlesse that the custome of the place doth warrant the same nor Gavelkind land to be descendible according the course of law à fortiori an act of state or proclamation which I hold to bee of lesse force then the Kings patent under the great Seale cannot doe it And in the case of Irish Gavelkind it is not the proclamation or act of state that did abolish or alter it but the very custome was held to be unreasonable and repugnant to law If an act of state bee made that none within the kingdome shall make Cards but Iohn at Stile this act is voyde for the King himselfe cannot grant a Patent under his great Seale to any one man for the sole feazance of Cards So it is of all proclamations or acts of state that are to the prejudice of Trafficke trade or Merchant affaires or for raysing of Monopolies or against the freedome and libertie of the subjects or the publicke good as I said before Also if proclamations or acts of state may alter the law or bind the libertie goods or lands of the subjects then will acts of Parliaments bee to no purpose which doe represent the whole body of the kingdome and are commonly for creating of good and wholesome lawes Therefore I conceive that all proclamations made against law are absolutely voyde and that the infringers thereof ought not to loose or forfeyte their liberty goods or lands And for the punishment of such Iudges that vote herein I referre to the sixt they deny to answer to this question This answer is generall and dangerous withall it is generall viz. they know no ordinary rule of law for it they ought to declare the law against it the right use of it here they commend and yet they doe not describe that right use therefore they commend two things the one the life of a subject to be left to Marshall law in time of peace the other they leave it likewise discretionary when they describe not the right use their last resort is to the Kings prerogative I have said before that Lawyers write the King can doe no wrong and sure I am our King meanes no wrong the Kings of England did never make use of their prerogative to the destruction of the subject nor to take away his life nor libertie but by lawfull meanes I conceive this advise should become the Iudges other advise they find not in their law Bookes The statute of Magna Charta cap. 29. and 5. Edw. 3. cap. 9. the petition of right the third of King Charles in full Parliament declared Tell them nay doe convince them that no man in time of peace can bee executed by Marshall law My Lords I could wish the Iudges had timely stood in the right opposition to the drawing of causes proper for the Kings Courts to an aliud examen the improper and unlawfull examen thereof on paper petitions whereby the Kings Iustice and Courts were most defrauded whereas an arbitrement being a principall meane to compose differences arising betweene neighbours and to settle amitie betweene them without expence of time or money was a course approved by law all our Bookes are full of this It is by consent of parties by arbitrators indifferently chosen bonds for performance thereof are not voyde in law and Iudgements given upon arbitrements and such bonds in our Bookes without question or contradiction to the lawfullnesse of an arbitrement or bond in proper Cases the principall good wrought by them was the hindering of suites debates at law therfore that exception fals of it selfe then I am to consider how far an Oath in the particular is punishable I will not speake of an Oath exacted or tendered that is not the question the question is of a voluntary Oath which the arbitrator cannot hinder I speake not to the commendation of any such Oath nor doe I approve of any Oath other then that which is taken before a Magistrate who derives his authoritie from the King the fountaine of Iustice but onely how farre this Oath is punishable by the late statute 10. Caroli fol. 109. a prophane Oath is punished by the payment of twelve pence no more vide stat of Marl. cap 23. 52. Hen. 3. viz. Nullus de caetero possit distringere liber ' tenentes suos c. nec jurare faciat libere tenentes suos contra voluntatem suam quia nullus facere potest sine praecepto Domini Regis which statute teacheth us that an exacted or compulsive Oath is by the Kings authority a voluntarie Oath is not reprehended 19. Edw. 4. 1. a. It was not reprehended in the case of an arbitrement this voluntarie Oath is punishable in the Star-chamber as the Iudges would affirme which I conceive to bee against the law First for that wee cannot learne any president in England for it It was but lately introduced here therefore the house of Commons is unsatisfied with the answer to this question in Boyton and Leonards case in the Star-chamber in Ireland Boyton was dismissed in a Case to this purpose about the yeare 1630. or 1631. It hath beene the late introduced course of the Castle-chamber and Councell-table not to admit the party censured to the reducement of his fine before hee acknowledged the justnesse of the sentence pronounced against him and that for divers reasons First the course of a Court being as ancient as the Court and standing with law is Curiae lex as appeareth by our bookes 2. Co. 16. b. Lanes case 17. Long 5. Edw. 4. 1. but if it be a course introduced de novo in mans memorie or a course that is against law it cannot be said to be lex Curiae for consuetudo licet sit magnae authoritatis nunquam tamen praejudicat manifestae veritati
with other proofes is not materiall for other proofe will doe the deede without this bad concurrence and so will a violent presumption as if two goe safe into a Roome one of them is found stabbed to death the other may suffer this presumption is inevitable the law of God the lawes and statutes of the Realme protect and preserve the life of man it were therefore hard to take away by circumstance such a reall and noble essence This concurrence marrs the evidence it helps it not If one gives false testimonie once by the ancient law his testimonie shall never be received againe Leges Canuti Regis Lamb Saxons lawss fol. 113. p. 34. much lesse where they are notorious ill doers this and the reason and ground of this question already opened will I hope give your Lordships satisfaction For this question I will state it without any tenure reserved by expresse words as the question is put whether the reservation of rent or Annuall summe will rayse this to bee a tenure in capite I conceive it will not for sundrie reasons First from the beginning there have beene Fayres and Markets and no president booke-case or Record to warrant the new opinion in this Case before Trinitie terme 1639. in the Court of wards Secondly the practise of that Court was alwayes before to the contrary in the same and the like Cases Thirdly it is a thing as the question is of new creation and never in esse before for this see the Bookes of 3. Henr. 7. 4. 12. Henr. 7. 19. 15. E. 4. 14. 46. E. 3. 12. 21. Henr. 6. 11. Stamford prerogative 8. Therefore there is no necessitie of a tenure thereof upon the Conquest it was necessarie that all lands should be held by some tenure for the defence of the kingdome 1. The statute of Quia emptores terrarum c. praerogativa Regis speake of Feoffator Feoffatores c. therefore a tenure I meane this tacite or implyed tenure was originally onely intended of Land 2. The King may reserve a tenure in all things not mainerable by expresse reservation or Covenant 44. Edw. 3. 45. Fitz. natur brevium 263. c. but that is not our Case 3. Heere it is left to construction of Law which is aequissimus Iudex and lookes upon the nature of things and therefore in Cases that include Land or where land may come in liew therof a tenure may be by implication as a mesnalty a reversion expectant upon an intayle the like 10. Edw. 44. a. 42. Edw 3. 7. Fitz. Grants 102. and divers other bookes 4. No tenure can be implyed by reason of a rent if the rent be not distreynable by some possibility of its owne nature upon the thing granted as appeares by 5. Henr. 7. 36. 33. Henr. 6. 35. 40. Ed. 3. 44. 1. Henr. 4. 1. 2. 3. Fitz-cessabit 17. 5. The distresse upon other land is the Kings meere prerogative like the case of Buts Co. 6. 25. a distresse may be for rent in other land by Covenant 6. This is no rent because it issueth not out of land 7. If the Patentee here had no land there can be no distresse in this case 8. This is a meere priviledge it issueth out of no lands and participates nothing of the nature of land all the cases of tenures in our bookes are eyther of land or things arising out of land or some way or other of the nature of land or that may result into land or that land by some possibilitie may result into it Therefore I humbly conceive that new opinion is not warranted by law or president These My Lords are in part the things which satisfied the house of Commons in all the matters aforesaid they are now left to the judgement and Iustice of your Lordships QVESTIONS PROPOVNDED IN PARLIAMENT AND Declarations of the Law thereupon in Parliament WHither the Subjects of this kingdome bee a free people and to be governed onely by the Common-lawes of England and statutes of force in this kingdome The subjects of this his Majesties kingdome of Ireland are a free people and to be governed onely according to the Common-law of England and Statutes made established by Parliament in this kingdome of Ireland and according to the lawfull customes used in the same VVhither the Iudges of this land doe take the Oath of Iudges and if so whether under pretext of any Act of State Proclamation writ letter or direction under the great or privie Seale or privie Signet or Letter or other Commandment from the Lord Lieutnant Lord Deputy Iustice or other chiefe Governor or Governors of this kingdome they may hinder stay or delay the suite of any subject or his Iudgement or execution thereupon if so in what cases and whether if they doe hinder stay or delay such suite judgement or execution thereupon what punishment doe they incurre for their deviation and transgression therein That Iudges in Ireland ought to take the Oath of the Iustices or Iudges declared and established in severall Parliaments of force in this kingdome and the said Iudges or any of them by colour or under pretext of any act of state or proclamation or under colour or pretext of any writ Letter or direction under the great Seale privie Seale or privie Signet from the Kings most Excellent Majestie or by colour or pretext of any Letter or Commandement from the chiefe Governor or Governors of this kingdome ought not to hinder or delay the suite of any subject or his judgement or execution thereupon and if any letters writs or commaunds come from his Majestie or any other or for any other cause to the Iustices or to other deputed to doe the law and right according to the usage of the Realme in disturbance of the law or of the execution of the same or of right to the parties the Iustices and other aforesaid ought to proceed and hold their Courts and processes where the pleas and matters bee depending before them as if no such letters writs or commaundments were come to them and in case any Iudge or Iudges Iustice or Iustices bee found in default therein he or they so found in default ought to incurre and undergoe due punishment according the law and the former declarations and provisions in Parliament in the case made and of force in this kingdome or as shall be ordered adjudged or declared in Parliament And the Barons of the Exchequer Iustices of assize and Goale-delivery if they be found in default as aforesaid it is hereby declared that they ought to undergoe the punishment aforesaid VVhether the Kings Majesties privie Councell eyther with the chiefe Governor or Governors of the kingdome or without him or them be a place of Iudicature by the Common-lawes and wherein causes betweene party and party for debts trespasses accompts possession or title of Lands or any of them and which of them may bee heard and determined and
fall out that may alter the reason of the Lawes in such a case which could not be included or foreseene in a generall question or answer thereunto And therefore they desire your Lordships to consider of what use such answers may be to the present and future times 5. Fifthly many of the said questions as they are propounded as the said Iudges humbly conceive doe concerne his Majesty in a high degree in his Regall and prerogative power in his Government in his Revenue in the Iurisdiction of his Courts in his Martiall affaires and in his Ministers of State so that the said Iudges considering their Oathes the duty which by their places they owe unto his Majesty humbly conceive they may not with safety give answer thereunto without speciall licence from his Majesty and therefore they still humbly pray your Lordships as formerly they did not to presse any answers from them untill his Majesties princely pleasure therein be signified 6. Sixtly if the matters of these questions which ayme at some abuses of former times were reduced into Bils they conceive it were the speedy way to have such a reformation which might bind the present times and posteritie and in such proceeding they ought and would most cheerefully contribute their opinions best endevors but in such a course as they apprehend it which points at punishment they have reason to bee sparing in giving any opinion further then the duty of their places doth command from them 7. Seventhly although it may be conceived that the answering of such and so many generall questions by the now Iudges may contribute some helpe to the reformation now so much desired yet no man knoweth but this new president in propounding of such questions to Iudges in succeeding times as the Iudges frame constitution of the Common-wealth may be may fall out to bee most prejudiciall to the State and Common-wealth 8. Eightly most of the matters in severall of the said questions are already by your Lordships and the said house of Commons voted and represented to his Majesty for grievances and therefore no opinions of the Iudges under favour are needfull or to bee required thereunto unlesse the same shall come in further agitation and discussion in this honorable House 9. The Iudges opinions are not usually called upon in Parliament but when upon debate great and difficulte points in Law doe arise where this most honorable house doth thinke fit to command their opinions but no resolutions doe belong unto the said Iudges in Parliament but unto your Lordships Yet in the front and preamble of the said questions the resolution of the said questions by the Iudges is forthwith desired to be required by your Lordships in writing although the first question viz. Whether the subjects of this kingdome be a free people c. be positively resolved by the preamble to the said questions in which it is likewise declared that the said Iudges answers thereunto are not desired for any doubt or ambiguitie which may be conceived or thought of for or concerning the premisses nor of the said questions but for manifestation and declaration of a cleere truth and of the Lawes and Statutes already planted and setled in this kingdome And they say that it is impossible to make any manifestation or declaration of Law or statutes which may hold or be usefull upon such generall questions as most of these are namely By what Law in what cases of what and which of them of what power of what force how where by whom why wherefore what punishment by what rule of policy in what condition of persons in regard that the next succeeding Iudges may be of another opinion and that a circumstance may alter the reason of this Law in many particular cases which the wit of man is not able to forsee or give a generall rule in And they say that to give answers unto such questions as might give any satisfaction to your Lordships or to the honorable house of Commons would make up a great volume and require more time than your Lordships have afforded unto the said Iudges considering their great toyle in their Circuites the last short vacation their other imployments in the Common-wealth and their daily attendance on your Lordships in Parliament and the ordinary Courts of Iustice And yet least they might seeme to come any way short in performance of that duty which they confesse to be due unto your Lordships or be wanting in promoting or advancing the Common-wealth which they beleeve to be aymed at by the said questions though it may seeme to drawe damage or prejudice upon their particulars they doe in all humblenesse present unto your Lordships the ensuing answers unto the said questions which is as much as by their Oathes or in the duty they owe unto his Sacred Majesty before his princely pleasure bee therein signified they can answer thereunto 1. To the first they answer that the subjects of this kingdome are a free people and are for the generall to bee governed onely by the Common-lawes of England and statutes of force in this kingdome yet they say that as in England many statutes are growen obsolete and out of use and some particular ancient Lawes aswell in criminall as in Civill causes have beene changed by interpretation of the Iudges there as they found it most agreeable to the generall good of the Common-wealth and as the times did require it So our predecessors the Iudges of this kingdome as the necessitie of the times did move them did declare the law in some particular cases otherwise than the same is practised in England which the now Iudges cannot alter without apparent diminution of a great part of his Majesties standing revenue and opening a gap for the shaking and questioning of the estates of many of his Majesties subjects and the overthrowing of severall Iudgements Orders Decrees which depend thereupon For example If it be found by office of Record sufficient for forme that a man was killed in actuall rebellion and at the time of his death was seized of lands hereditaments goods or chattels by the constant declaration of Law and practise of former times here the Crown was intituled to such lands goods and chattels and many mens estates depend thereupon and yet the law is not so taken in England So if one or more commit Felony and then stand out upon his or their keeping and hee or they will not submit themselves to be tryed by the law but being in that state doe robbe or spoyle and terrifie his Majesties people wherby the countrie is disquieted this by the constant opinion of our predecessors in this kingdome hath beene adjudged a leavying of warre within the Statute 25. Edw. 3. and so consequently treason Also by the common received opinion practise in this kingdome the VVife is to have a third of all the goods chatels and credits of her husband the debts being payed although he dispose of all by his will
The answer of the Iudges to the first part is that they confesse they take the Oath of Iudges which is specified amongst the statutes in 1â— Edw. 3. and 20. Edward 3 as I said before and that they may not stay hinder or delay the suite of any subject or his judgement or execution there upon otherwise then according to the law and course of the Court where they sit under pretence of any act of state proclamation writ letter or direction under the great Seale or privie Seale or privie Signet or Letter or other Commandement from the Lord Lieutenant Lord Deputy Iustice Iustices or other chiefe Governor of this kingdome most of which doth appeare by their Oath expressed expressed in the said statutes and the statute of 2. Edw. 3. c. 8. and the statute of 20. Edw. 3. as to the Barons of the Exchequer and as they know no punishments due to the Iudges for their deviations and transgressions without other aggravation so they know no punishment layd downe by any law against them for their deviations and transgressions in hindering staying or delaying of Iustice contrary to their said Oath other then what is declared in their said Oath and the statute of 20. Edw. 3. I conceive the answer is not a full and perfect answer to the Question For where the Question is whether the Iudges under pretext of any act of state proclamation writ Letter or direction under the great or privie Seale or privie Signet or Letter or other Commandement from the Lord Lieutenant Lord Deputie Iustice or Iustices or other chiefe Governor or Governors of this kingdome they may hinder stay or delay the suite of any subject or his judgement or execution thereupon if so in what cases and whether if they doe hinder stay or delay such suite judgement or execution thereupon what punishment doe they incurre for their deviations and transgressions therein To this they answer that they may not stay hinder or delay the suite of any subject or his judgement or execution therupon otherwise then according to the law course of the Court where they sit under pretence of any act of state proclamation writ letter or direction under the great or privie Seale or privie signet or letter or other commandement from the Lord Lieutenant Lord Deputy Iustice or Iustices or other chiefe Governor or Governors of this kingdome whereas they ought to have expressed the particular of this exception for by that clause it is supposed or may be strongly implyed that in some cases they may hinder stay or delay the suite of any subject or his judgement or execution therupon under pretext of any act of state proclamation letter or direction under the great or privie Seale or privie signet or other Commandement from the Lord Lieutenant Lord Deputy Iustice Iustices or other chiefe governor or governors of this kingdome which they ought to have expressely layd downe the question being if they may stay hinder or delay the suite of any subject upon any such pretext then to set forth in what Cases which ought to be particularly answered unto In the next place the Question is if they doe stay hinder or delay such suite judgement or execution therupon then to set forth what punishment they doe incurre for their deviation or transgression therein Vnto this they answer they know no punishment due to the Iudges for their deviation and transgressions without other aggravation This I conceive is an implication that there is a punishment where there is matter of aggravation and therefore it ought to be expressed what matter of aggravation they intend the same to be They further say they know no punishment layd downe by any law against them for their deviations or transgressions in hindering staying or delaying of Iustice contrary to their Oath other then what is declared in their said Oath and the statute of â—0 Edw. 3. This I conceive not to bee a full answer in respect the punishment layd downe in that Oath is in a generality viz. that the Iudges so offending contrary to their Oath are to be at the Kings will of body lands and goods which they should declare and expresse how farre that punishment extendeth in their bodies lands and goods Whether imprisonment of their bodies or in their lives and whether in forfeiture of their lands goods or how else The breach of an Oath is a very high offence and the higher it is that the matter it doth concerne is the greater and therefore it is much secundum subjectam materiam It is to be considered to whom the oath of a Iudge is made and what matter it doth concerne To the first the Oath is made to GOD the King and to the Common-wealth For the matter it is concerning the true and equall administration and distribution of Iustice to the people If the Iudge doe offend contrary to his Oath he commits breach of the trust reposed in him by the King besides the violation of his Oath Looke upon trust betweene Common persons A man makes a Lease for yeares the Lessee makes a scoffment this is a forfeyture of his estate by the Common-law by reason of the breach of trust Lessee for life in an action brought against him prayes in ayde of a stranger this is a forfeyture of his estate A quid Iuris clamat brought against Lessee for life he claymes a fee which is found against him this is a forfeyture of his estate So much for breach of trust To come unto a false verdict given by a Iurie which is a breach of their Oath they being sworne ad veritatem dicendam For this false verdict an attaynt lyeth at Common law against the petit Iury The judgement at the Common-law in an attaynt importeth eight grievous punishments 1. Quod amittat liberam legem in perpetuum 2. quod forisfaciat omnia bona Catalla sua 3. quod terrae tenementa in manus Domini Regis capiantur 4. quod uxores liberi extradomus suas eijoiantur 5. quod domus suae prostrentur 6. quod arbores suae extirpentur 7. quod prata sua arentur 8 quod corpora sua Carceri mancipentur So odious is perjurie in the eye of the Common-law It followeth therefore that the breach of the Oath of a Iudge materia considerata in regard it tends to the subversion of Iustice is an offence of an higher nature deserving a farre greater punishment in his body lands and goods as I conceive This question is very short and as plaine it is no more then whether the Councell-table be a Iudicatorie in Civill causes betweene subject and subject for lands goods or Chattels and by what law The answer is wholly ad aliud But it is answered fully by the great Charter capit 11. 9. Henr. 3. Communia placita non sequantur Curiam nostram Common-pleas which are the pleas in question shall not follow the Kings Court againe cap. 29.
answer is insufficient as in the case of a new invention of manufactory or the like in such cases a Patent may be good they say for certaine yeares whereas the yeares ought to be competent ten thousand years are certaine but not competent and they who offend are to give damage in an ordinary Court of Iustice to the Patentee unto which they adde or otherwise Oh this arbitrary word the like arbitrary advice of others I feare hath occasioned this Question Where Monopolies were clearly voyde punishments were inflicted upon The honest man and the Monopolist escaped they answer nothing to the losse of goods heavy fines mutillation of members the before recited statutes direct cleare answers to these particulars My Lords the statute of Magna Charta cap. 30. quod omnes Mercatores tam indigenae quam alienigenae have free passage sine omnibus malis tolnetis consuetudinibus ex Anglia in Anglia nisiantea publicè prohibiti fuerunt the subsequent statutes declaring many oppressions and grievances occasioned by restraints in trade and Commerce made trade free for victuall and merchandises and in them Nisi c. is omitted as the statute of 9. Edw. 3. c. 1. 25. Edw. 3. cap. 2. 2. Rich. 2. cap. 1. 11. Rich. 2. cap. 7. 16. Rich. 2. cap. 1. these statutes give double damage to the party and the offender to be imprisoned The statute of 21. Iacob c. 3. in England against Monopolies in the exception of new inventions limits the time to a reasonable number of yeares viz. fourteene yeares or under whether the heavie punishments aforesaid can be in this case especially the private interest of a subject being therein onely or mainly concerned Magna Charta cap. 29. gives me a cleere answer and satisfactory Nullus liber homo capiatur imprisonetur disseifietur vel aliquo modo destruatur c. nisi per judicium parium legem terrae if this be law or a lawfull statute as no doubt it is the question is soone answered My Lords by this time you know how the Innocent was actually punished in these cases Now it is time and not improper to shew how the Nocent ought to be punished who tooke unlawfull Monopolies seised the subjects goods by violence imprisoned fined mutilated and destroyed the Kings people and caused all the evils that depended therevpon For that my Lords it is not within my charge yet I hope it shall not remaine unrepresented by the house of Commons nor unremembred by your Lordships in due time To this the Iudges answered nothing but with a reference to their answer to the third whereas in truth this comprehends two matters besides of great weight and consideration first whereas the third question concerneth the decision at Counsell-board of matters of interest onely This question is of matters of punishment in an extrajudiciall way secondly this question demands knowledge of the punishment due to such as vote for such extrajudiciall punishments to these mayne matters there is no answer at all My Lords the statutes and authorities before mentioned upon the third and fourth questions against the determination at Councell-board or before the chiefe Governor in matters of interest do cleare this businesse as to the punishments depending upon those interests although not è converso And as for such as voted and acted therein if they besworne Iudges of the law the before recited Oath of 18. Edw. 3. declares enough His Majesty at his Coronation is bound by Oath to execute justice to his people according to the lawes this great trust the King commits to his Iudges who take a great Oath to discharge this trust if they fayle therein Sir VVilliam Thorp in Edward the 3. time for breaking this oath in poore things was indicted thus Quia praedictus VVillielmus Thorp habuit Sacramentum Domini Regis erga populum suum ad custodiendum illud fregit malitiosè falsé rebellitèr quantum in ipso fuit this extends to a Iudge onely who tooke that Oath habuit leges terrae ad custodiendum The trust betweene the King and his people is threefold First as betweene Soveraigne and Subject Secondly as betweene a Father and his Children under Pater Patriae Thirdly as betweene Husband and Wife this trust is comprehensive of the whole body politicke And for any Magistrate or private person to advise or contrive the breach of this trust in any part is of all things in this world the most dangerous vae homini illi First I doe conceive that an act of state or Proclamation cannot alter the Common-law nor restrayne the old nor introduce a new law and that the same hath no power or force to bind the goods lands possessions or inheritance of the subject but that the infringing thereof is onely a contempt which may bee punished in the person of the delinquent where the Proclamation is consonant and agreeable to the lawes and statutes of the kingdome or for the publicke good and not against law and not otherwise punishable I do conceive that a Proclamation is a branch of the Kings prerogative and that the same is usefull and necessary in some cases where it is not against the law wherein the publicke weale is interested or concerned but that any clause therein contayning forfeyture of the goods lands or inheritance of the subjects is meerely voyde for otherwise this inconvenience will ensue That Proclamations or acts of state may bee made in all cases and in all matters to bind the libertie goods and lands of the subjects and then the Courts of Iustice that have flourished for so many ages may be shut up for want of use of the law or execution thereof and there is no case where an offence is committed against law but the law will find out away to punish the delinquent The King by his proclamation may inhibit his subject that he shall not goe beyond Sea out of this Realme without his licence and this without any writt or other Commandement to his subject for perchance the King may not finde his subject or know where he is And if the subject will goe out of the Kings Realmes contrary to this proclamation this is a contempt and he shall be fined to the King for the same as saith Fitz-Herbert that such a proclamation can prohibit the Kings subjects to repayre into England for England is our Mother and though the Sea divide us that Sea is the Kings and therefore it is not pars extra in this sense It seemes by the Lord Chauncellor Egertons argument upon the case of post nati that a proclamation cannot binde the goods lands or inheritance of the subjects A provision was made in haec verba Promissum est coram Domino Rege Archiepiscopus Comitibus Baronibus quod nulla assis ultimae praesentationis de caetero capiatur de Ecclesiasticis praebendatis nec de praebendis but I doe not finde any forfeyture
to this positive question the answer is too generall viz the Parliament is concerned therein and so are two other Courts of Iustice and likewise the Kings prerogative is interested therein wherefore they cannot answer till the matter come in debate and be argued before them The consideration of the Court of Parliament will much conduce to the clearing of this question Co. preface to the fourth Reporte the exposition of Lawes ordinarily belongeth to the Iudges but in maximis difficillimisque causis ad supremum Parliament ' Iudicium Cooke preface to the ninth Report describes that supreame Court in this manner si vetustatem spectes est antiquissima si dignitatem est honoratissima si jurisdictionem est capacissima of this enough the learning is too manifest that it is the Supreame Court nay the primitive of all other Courts to that Court belongs the making altering or regulating of lawes and the correction of all Courts and ministers Looke upon the members of it first the King is the head who is never so great nor so strong as in Parliament where he sits insconced with the hearts of his people the second are all the Lords Spirituall Temporall the third the knights Citizens Burgesses these three doe represent the whole Common-wealth Looke upon the causes for which they are called Circa ardua urgentia negotia Regni looke upon the priviledges of it if any member or members servant thereof bee questioned or any thing ordered against him in any other Court sitting the Parliament or within forty dayes before or after all the proceedings are voyde by the lawes and statutes of this Realme The not clearing of this question is against the Kings prerogative which is never in greater splendor or Majestie then in Parliament and against the whole Common-wealth therein concerned as aforesaid the King hath foure Councels the first is commune concilium which is this Councell secondly Magnum Concilium which is the Councell of his Lords thirdly the privie Councell for matters of estate fourthly the Iudges of his law Co. institut 110. a. Then by what law or use can the inferiour of these foure Councels question the first Supreame and mother Councell I know not the state of the question considered which is of Burroughs who anciently and recently sent to the Parliament by the same law that one member may bee questioned forty eight members may bee questioned as was done in our case in one day six such dayes may take away the whole house of Commons and consequently Parliaments especially as this case was for upon the returne of the first summons foure and twenty Corporations were seized the learning therefore is new that it should rest in the discretion of the Sheriffes who might make unfaithfull returnes and of three Barons in the Exchequer who have no infallibilitie to overthrow Parliaments the best Constitutions in the world Search hath beene made in the two bookes of Entries in old Natura brevium and in all the yeare bookes that are printed there is not one president that in any time ever so badde such à Quo-warranto was brought in Co. entries 527. a à Quo-warranto was brought against Christopher Helden and others to shew cause why they claymed such a Borrough c. which is nothing to our purpose the quo-warrantoes in the question and those which were in the Exchequer did admit them Borroughs and yet required them to shew cause why they sent Burgesses to the Parliament this is oppositum in objecto to admit them Burgesses and to question their power to send Burgesses which were formerly both anciently and recently so admitted in Parliament Master Littleton the first booke we reade cleares this question sectione 164. There are ancient Townes called Borroughs the most ancient Townes of England all Cities were Borroughs in the beginning and from them come Burgesses to the Parliament so that in effect if an ancient Borrough ergo they sent Burgesses to the Parliament all these ancient Townes in England did remayne of Record in the Exchequer 40. ass plac 27. In Ireland they doe remayne of Record in the Parliament Rolles the tryall of them is by the Record it selfe and not otherwise If a Towne send Burgesses once or twice it is Title enough to send ever after 11. Henr. 4. 2. So if a Peere called once by writ and once sitting as a Peere Co. institut fol. 9. b. hee is a Baron ever after In the foure ordinary Courts they have priviledge for the meanest of their members or servants why not the Parliament It was the custome of the ancient grave Iudges to consult with parliaments in causes of difficultie weight a parliament was then to be at hand they did not stay to advise with them in a point which concerned the parliament so neerely and which was of the greatest weight of any cause that ever was agitated in the kingdome In our books all the entries it is true and cleare that Quo-warrantoes are brought and ought to bee brought against such as clayme priviledges Franchises Royalties or the like flowers of the Crowne but to question Burgesses in this nature is to question the Kings prerogative in an high degree priviledges take from the King parliaments adde and give unto him greatnesse and profit in parliaments he sits essentially in other Courts not altogether so but by representation what greater disservice could bee done the King then to overthrow parliaments how shall Subsidies bee granted or the kingdome defended how shall ardua Regni be considered Oh the Barons of the Exchequer I wot will salve all these doubts I may not forget My Lords how the law of the land the whole Common-wealth is herein concerned and upon that I will offer a Case or two If a statute be made wherein the private interest of a subject or the generall interest of the Common-wealth be enacted the King by his Letters-patents cannot dispence with this statute Co. 8. 29. a. Princes case though they be with à non obstaute nor make any grant Non obstante of the Common-law therefore I conclude this question First that it is against the Kings prerogative to issue such à Quo-warranto as is here stated Secondly it is against the Common-wealth as destructive of parliaments and consequently of government Thirdly this is no priviledge but a service done to the King whole Common-wealth which cannot receive so much as a debate but in parliament Fourthly all the proceedings in the Excheqver touching this parliament were Coram non judice as was already voted in both houses as for the punishment we come not to urge your Lordships to punish other then with reference to that which I said before viz. the Oath These two questions have so neere a relation the one to the other meeting in the Center of the Castle-chamber that I will speake to them at once or as to one question My Lords if that golden
of what Civill causes they have jurisdiction and by what law and of what force is their order or decree in such cause or any of them That the Councell-table of this Realme eyther with the chiefe Governor or Governors is no Iudicatorie wherein any action reall personall popular or mixt or any suite in the nature of the said actions or any of them can or ought to bee commenced heard or determined and all proceedings at the Councell-table in any suite in the nature of any of the said actions are voyde especially causes particularly provided for by expresse acts of Parliament of force in this kingdome onely exempted The like of the chiefe Governor above The proceedings before the chiefe Governor or Governors alone in any action reall personall popular or mixt or in any suite in the nature of any of the said actions are Coram non Iudice and voyde VVhether grants of Monopolies be warranted by the law and of what and in what cases and how and where and by whome are the pretended transgressors against such grants punishable and whether by fine mutillation of members imprisonment losse and forfeyture of goods or otherwise and which of them All grants of Monopolies are contrary to the lawes of this Realme and therefore voyde and no subject of the said Realme ought to bee fined imprisoned or otherwise punished for exercising or using their lawfull liberty of a subject contrary to such grants In what cases the Lord Lieutenant Lord Deputie or other chiefe governor or governors of this kingdome and Councell may punish by fine imprisonment mutillation of members pillory or otherwise and whether they may sentence any to such the same or the like punishment for infringing the commaunds of or concerning any proclamation of and concerning Monopolies and what punishment doe they incurre that vote for the same The Lord Lieutenant Lord Deputy or other chiefe governor or governors and Councell of this Realme or any of them ought not to imprison any of his Majesties subjects but onely in Cases where the Common-lawes or statutes of the Realme doe enable and warrant them so to doe they ought not to fine or to censure any subjects in mutillation of members standing on the pillory or other shamefull punishment in any case at the Councell-table and no subject ought to be imprisoned fined or otherwise punished for infringing any commaunds or proclamation for the support or countenance of Monopolies And if in any case any person or persons shall bee committed by the commaund or warrant of the chiefe governor or governors and privie Councell of this Realme or any of them that in every such case every such person or persons so committed restrayned of his or their libertie or suffering imprisonment upon demaund or motion made by his or their Councell or other imployed by him or them for that purpose unto the Iudges of the Court of Kings-bench or Common-pleas in open Court shall without delay upon any pretence whatsoever for the ordinarie fees usually payed for the same have forthwith granted unto them or him a writ or writts of Habeas Corpus to be directed generally to all and every Sheriffe Gaoler-minister officer or other person in whose custody the party or parties so committed or restrayned shall be shall at the returne of the said writ or writs and according to the commaund thereof upon due and convenient notice thereof given unto him at the charge of the party or parties who requireth or procureth such writ or writs and upon securitie by his or their owne Bond or Bonds given to pay the charge of carrying backe the prisoner or prisoners if hee or they shall bee remanded by the Court to which he or they shal be brought as in like causes hath beene used such charges of bringing up and carrying backe the prisoner or prisoners to be alwayes ordered by the Court if any difference shall arise there about to bring or cause to be brought the body or bodies of the said partie or parties so committed or restrayned unto before the Iudges Iustices of the said Court from whence the same writ or writs shall issue in open Court shall then likewise certifie the true cause of such his or their detayner or imprisonment and thereupon the Court after such returne made and delivered in open Court shall proceed to examine and determine whether the cause of such commitment appearing upon the said returne be just and legall or not and shall thereupon doe what to justice shall appertayne eyther by delivering bayling or remanding the prisoner or prisoners Of what force is an act of state or proclamation in this kingdome to bind the libertie goods possessions or inheritance of the Natives thereof whether they or any of them can alter the Common law or the infringers of them loose their goods chattels or leases or forfeyte the same by infringing any such act of state proclamation or both and what punishment doe the sworne Iudges of the law that are privy Councellors incurre that vote for such acts and execution thereof An act of state or proclamation in this kingdom cannot bind the libertie inheritance possession or goods of the subjects of the said kingdome nor alter the Common-law and the infringers of any such act of state or proclamation ought not to forfeyte lands leases goods or chatels for the infringing of any such act of state or proclamation And the Iudges of the law who doe vote for such acts of state or proclamation are punishable as breakers and violaters of their Oathes of Iudges Are the subjects of this kingdome subject to the marshall law whether any man in time of peace no enemie being in the field with banner displaid can be sentenced to death if so by whom and in what causes if not what punishment doe they incurre that in time of peace execute marshall law No subject of this kingdome ought to bee sentenced to death or executed by Marshall-law in time of peace and if any subject be so sentenced or executed by marshall-law in time of peace the authors actors of any such sentence or execution are punishable by the law of the land for their so doing as doers of their owne wrong and contrarie to the said law of the land VVhether voluntary Oathes taken freely before arbitrators for affirmance or disaffirmance of any thing or for the true performance of any thing be punishable in the Castle-chamber or any other Court why or wherfore No man ought to bee punished in the Castle-chamber or in any other Court for taking a voluntary Oath before arbitrators for affirmance or disaffirmance of any thing or the true performance of any thing in civill causes nor are the arbitrators before whom such voluntary oathes shall be taken punishable VVhy and by what law or by what rule of policie is it that none is admitted to reducement of fines
and other penalty in the Castle-chamber or Councell-table untill he confesse the offence for which he is censured when as revera hee might bee innocent thereof though suborned proofes or circumstance might induce a Censure By the lawes and statutes of the Realme no man is bound or ought to be compelled to acknowledg the offence layd to his charge or the justnesse of any censure past against him in the Castle-chamber or at the Councell-table nor ought to bee detayned in prison or abridged of his liberty or the reducement of his fine stayed or delayed untill he doe acknowledge such offence or the iustnesse of such censure And it is further declared that no such inforced or wrested cōfession or acknowledgment can or ought to debarre or hinder any subject from his Bill of reversall or review of any sentence or decree past or conceived against him in the Castle-chamber or in any other Court VVhether the Iudges of the Kings-bench or any other Iudge of Gaole-delivery or of any other Court and by what law doe or can deny the Copies of indictments of felony or treason to the parties accused contrary to the law The Iudges of the Kings-bench or Iustices of Gaole-delivery or the Iudges of any other Court ought not to deny Copies of indictments of felonies or treason to the parties indicted VVhat power hath the Barons of the Court of Exchequer to rayse the respite of homage arbitrarily to what rate they please to what value they may rayse it by what law they may distinguish betweene the respite of homage upon the diversitie of the true value of the Fees when as Escuage is the same for great and small Fees and are proportionable by Parliament The Barons of the Exchequer ought not to rayse the respite of homage above the usuall rates appearing in and by the course and presidents of that Court continued untill the yeare of our Lord God 1637. and the raysing thereof since that time was arbitrary and against the law and the Barons of the Exchequer ought not to distinguish between the respite of homage upon any diversity of the true values of the knights Fees VVhether it be censurable in the subjects of this kingdome to repaire into England to appeale to his Majesty for redresse of injuries or for other lawfull occasions if so why what condition of persons and by what law The subjects of this kingdome may lawfully repayre into England to appeale to his Majesty for redresse of injuries or for other their lawful occasions for their so doing ought not to be punished or questioned upon the statute of 5. of K. Rich. the 2. nor by any other law or statute of force in this kingdome eminent officers ministers of state Commanders souldiers of his Majesties Army The Iudges and ministers of his Majesties Courts of Iustice and of his highnesse Revenue and customes whose attendance is necessary requisite by the lawes statutes of the realme only excepted VVhether Deanes or other dignitaries of Cathedrall Churches be properly and de mero jure donatiue by the King and not Elective or collative if so why and by what law and whether the Confirmation of a Deane de facto of the Bishops grant be good and vallid in law or no if not by what law Deaneries or other Ecclesiasticall dignities of this Realme are not de mero jure donative but some are donative and some elective and some are collative according to their respective foundations and the confirmation of the Bishops grant by a Deane de facto having actually stallum in Choro vocem in Capitulo together with the Chapter is good in law VVhether the issuing of Quo-warrantoes out of the Kings-bench or Exchequer against Borroughs that anciently and recently sent Burgesses to the Parliament to shew cause why they sent Burgesses to the Parliament be legall if not what punishment ought to be inflicted on those that are or hath beene the occasioners procurers and Iudges of and in such Quo-warrantoes The issuing of Quo-warrantoes out of the Court of Kings-bench Court of Exchequer or any other Court against Boroughs that anciently or recently sent Burgesses to the Parliament to shew cause why they sent Burgesses to the Parliament and all the proceedings therein are coram non Iudice illegal and voyde and the right of sending Burgesses to the Parliament is questionable in Parliament onely and the occasioners procurers and Iudges in such Quo-warrantoes and proceedings are punishable as in Parliament shall be thought consonant to law and Iustice By what law are Iurors that give verdict according their conscience and are the sole Iudges of the fact censured in the Castle-chamber in great fines and sometimes pillored with losse of eares boared through the tongue and marked sometimes in the forehead with a hot Iron and other like infamous punishment Iurors are the sole Iudges of the matter in fact and they ought not for giving their verdict to bee bound over to the Court of Castle-chamber by the Iudge or Iudges before whom the verdict was or shall be given By what law are men censurable in the Castle-chamber with the mutillation of members or any other brand of infamy and in what cases and what punishment in each case there is due without respect of the qualitie of the person or persons No man ought to bee censured in the Castle-chamber in the mutillation of members or any other brand of infamy otherwise or in other cases then is expressely limitted by the statutes of this Realme in such cases provided VVhether in the censures in the Castle-chamber regard be to be had to the words of the great Charter viz. Salvo Contenemento c. In the censures of the Castle-chamber especially regard ought to bee had to the words of the great Charter viz. Salvo Contenemento c. VVhether if one that steales a Sheepe or commits any other felony and after slieth the course of Iustice or lieth in woods or mountaines upon his keeping be a Traytor if not whether a proclamation can make him so A Felon who flies the course of Iustice lieth in woods mountaines or elsewhere upon his keeping is no Traytor and a proclamation cannot make him a Traytor VVhether the testimonie or evidence of Rebels Traytors protected Theeves or other infamous persons bee good evidence in law to be pressed upon the tryals of men for their lifes or whether the Iudges or Iurors ought to be Iudge of the matter in fact The testimony of convicted or protected Rebels Traytors or Fellons is no sufficient evidence in law upon the tryall of any person for his life and the credit of the testimony of persons accused or impeached and not convicted of felony or treason ought to be left to the Iury who are sole Iudges of the truth and validity of the said testimony By what law are
sine licentia Domini Regis Fitz. Natur. br fol. 85 the words of this writ cleares the Common-law in the point it begins with a datum est nobis intelligi c. The King being informed that such person or persons in particular doe intend to goe whether ad partes exteras viz. foraigne Countries to what purpose to prosecute matters to the prejudice of the King his Crowne the King in such a case by his writ warrant or Command under the great Seale privie Seale privy Signet or by proclamation may command any subject not to depart the kingdome without the Kings licence this writ is worthy to be observed for the causes aforesaid therein expressed the writ extendeth only to particular person or persons not to all the subjects of the kingdome no man can affirme that England is pars extera as to us Ireland is annexed to the Crowne of England and governed by the lawes of England our question set forth the cause viz. to appeale to the King for Iustice or to goe to England for other lawfull causes whereas the said writ intends practises with foraigne Princes to the prejudice of the King and his Crowne At the Common-law if a subject in contempt of this Command went ad partes exteras his Lands and goods ought to be seized 2. 3. Philip Mary Dy. 128. b. and yet if the subject went to the parts beyond the Seas before any such speciall inhibition this was not punishable before the statute of 5. Rich. 2. cap. 2. as appeares 12. 13. Elizab. Dy. 296. a. So that before the inhibition the law was indifferent now the question is at Common-law whether the subject of Ireland having no Office can be hindered to appeale or goe to the King for Iustice The King is the fountaine of Iustice and as his power is great to command so the Scepter of his Iustice is as great nay the Scepter hath the priority if any be for at his Coronation his Scepter is on his right side his Sword on his left side to his Iustice he is sworne therefore if any writ Commandement or proclamation bee obtayned from him or published contrary to his Iustice it is not the act of the King but the act of him that misinformed him then will I adde the other words of the question viz. or other his lawfull occasions as I said before in the case of a writ of error in the Kings Bench of England or in the Parliament of England which are remedies given by the law therefore the Common-law doth not hinder any man to prosecute those remedies which are given to everie subject by the same A scire facias may be brought by the King in England to repeale a patent under the great Seale of Ireland of lands in Ireland 20. Henr. 6. fol. a. An exchange of lands in England for lands in Ireland is a good exchange in law 8. ass placit. 27. 10. Edw. 3. fol. 42. tempor Edw. 1. Fitz voucher 239. What law therefore can prohibit any subject for to attend this scire facias in England or to make use of his freehold got by exchange The law being thus then it was considered what alteration was wrought by one branch of the statute of 5 Rich. 2. cap. 2. by which the passage is stopped out of the kingdome Lords notable Marchants and the Kings souldiers excepted I conceive this statute doth not include Ireland I never heard any Irishman questioned upon this statute for going into England nor any Englishman for comming into Ireland untill the late proclamation by the statute 34. Edw. 3. c. 18. in England all persons which have their heritage or possessions in Ireland may come with their beasts corne c. to and fro paying the Kings dues The statute of 5. Rich. 2. did never intend by implication to avoyde the said expresse statute of Edw. 3. betweene the Kings two kingdomes being governed by one law in effect the same people the words of the statute of 5. Rich. 2. are observable the principall scope of it is against the exportation of Bullion in the later part there is a clause for licences to be had in particular Portes by which I conceive that the Customers of those Portes may grant a let passe in such Cases It is therefore to be considered whether that branch of the said statute of 5. Rich. 2. was received in Ireland I thinke it is cleare it was not for by the statute 10. Henr. 7. cap. 22. in Ireland all the generall statutes of England were received in Ireland with this qualification viz. such as were for the Common and publicke weale c. And surely it cannot be for the weale of this kingdome that the subjects here be stayed from obtayning of Iustice or following other lawfull causes in England The statute of 25. Henr. 6. cap. 2. in Ireland excuseth absentes by the Kings command and imposeth no other penaltie so that upon the whole matter this question is not answered For so much as they doe answer of this question the answer is good for there is no doubt to be made but Deaneries are some donative some elective and some may be presentative according to the respective foundations I will only speake of a Deane de facto if a Deane bee made a Bishop and hath a dispensation Decanatus dignitatem in commenda in the retinere the confirmation of such a Deane is good in law This was the case of Evans and Acough in the Kings Bench in England Ter. 3. Caroli where Doctor Thornbow Deane of Yorke was made Bishop of Limmericke with a dispensation to hold in the retinere after his patent and before consecration it was adjudged his confirmation was good and yet if a Deane be made a Bishop in any part of the world this is a Cession Co. 5. 102. a. VVindsors case Davis Rep. 42. 43. c. The Deane of Fernes his case 18. Elizab. Dy. 346. the confirmation of a meere Laicus being Deane is good though he be after deprived 10. Eliz. Dy. 273. 12. 13. Elizab. Dy. 293. although the Deane be after deprived by sentence declaratorie yet his precedent confirmations are good So I conceive that a Deane who hath stallum in Choro vocem in Capitulo during all the time of his life and never questioned and usually confirmed all Leases without interruption is good And to question all such acts 40. 50. 100. yeares after is without president especially in Ireland untill of late yeares and in this kingdome few or no foundations of Bishopricks or Deaneries can bee found upon any Record therefore I conceive the Iudges ought to answer this part of the question My Lords I know you cannot forget the grounds I layd before for this question nor the time nor the occasion of the issuing of Quo warrantoes nor what was done thereupon in the Court of Exchequer Now remayneth to consider of the answer