understood of Treasons Misprision of Treason Petit Treason and Felony and their Accessaries c. But Premunire is but a contempt and Pardon of all Contempts pardons it Whereupon the Lord Vaux confessed the Indictment Vide Lamb Justice dâ—l Peace 520 Dallisons Report accordingly Vide Stamford c. Trin. 10 Jacob. Regis Countess of Shrewsbury's Case In this Term before a select Councel at York-house the Countess of Shrewsbury Wife of Gilbert Earl of Shrewsbury then Prisoner in the Tower was brought and by the Kings Attorney and Sollicitor was charged with a high Contempt of dangerous consequence declaring That the Lady Arbella being of the Blood-Royal had marryed Seymor the Earl of Hertford's second Son without the King's Consent for which he was committed to the Tower and had escaped and fled beyond the Seas And the Lady Arbella being under restraint escaped also and embarked her self on the Sea but was taken ere she got over of which flight of the Lady Arbella the said Countess well knew as is directly proved by Crompton and not denied by the Lady Arbella And admitting the Lady Arbella had no evil intent against the King yet when she fled and should be inviron'd with Evil Spirits cum perversis perverti possit Now the Charge was in two Parts 1. That the Countess of Shrewsbury being by the King's Command called to the Councel-Table and being required by the Lords to declare her knowledge touching the said Points she answered she would not answer particularly and being again by the King's Commands asked by the Councel at Lambeth she refused for two Causes 1. Because she had made a Vow that she would not declare any thing in particular touching the said Points and she said it was better to obey God than Man 2. She stood upon her Priviledge of Nobility viz. to answer when Judicially called before her Peers such Priviledge having been allowed to William Earl of Pembroke and the Lord Lumly 2. The second Point of the Charge was That when the Answer she had made was put in Writing and read to her yet she refused to subscribe the same Which Denial was urged by the King's Councel as a high contempt c. And the Countess hearing the Charge yet persisted in her obstinate Refusal for the same Reasons the insisted on as before And the Lord Chancellor began and the Archbishop and the other Lords adjudged it a great and high Contempt And that no such allowance was to the Earl of Pembroke or Lord Lumly as was supposed And the Archbishop and Earl of Northampton proved by Scripture that the said Case now was against the Law of God All that the Justices said was That they might well be silent but that silentium in Senatu est vitium and therefore they briefly speak of three things 1. Whâ—ther the Refusals aforesaid were Offences in Law against the King his Crown and Dignity 2. What Proceeding this is and if justifiable by President or Reason 3. What the Offences are and how punishable 1. As to the first It was resolved by the Justices and Master of the Rolls that the denying to be examined was a high Contempt against the King his Crown and Dignity and upon hope of Impunity it will be an encouragement to Offenders as Fleming Chief Justice said to enterprize dangerous Attempts The Master of the Rolls said the Nobility in this Case had no more priviledge to deny to be examined than any other Subject Also if one Noble be sued and a Peer be sued in Star-Chamber or Chancery they must answer upon their Oaths And if produced as a Witness they ought to be sworn And therefore for maintaining of Order the Chief Justice said he would recite some of those Honourable Priviledges which the Law of England attributes to Nobility 1. If a Baron Viscount Earl c. be Plaintiff in any Action and the Defendant will plead that the Plaintiff is not a Baron c. this shall be tryed onely by the Record in Chancery which imports by its self solid truth 2. Their Persons have many Priviledges in Law 1. At a Subjects Suit they shall not be arrested 2. Their Bodies are not subject to Torture in causa criminis â—aesae Majestatis 3. They are not to be sworn in Assizâ—s Juries or Inquests 4. It is Felony in any Servant of the King named in the Checquer Roll to compass or intend to kill any Lord of Parliament or of the King's Councel 5. In the Common-Pleas a Lord shall have Knights returned of his Jury 6. He shall have Day of Grace 7. Shall not be Tryed in case of Treason Felony or Miâ—prison of them but by those that are Nobles and Peers 8. In Tryal of a Peer the Lords of Parliament shall not swear but give their Judgment Super Fidem Ligeantiam Domino Regi debitam And the King honours with Nobility for two Causes 1. Ad consulendum and therefore he gives them a Robe 2. Ad Defendendum Regem Regnum and therefore he gives them a Sword And therefore as they derive their Dignities with those Honourable Priviledges from the King to deny to answer being required by the King is a high Contempt accompanied with great Ingratitude This Denial is contra Ligeantiam suam as appears by the Antient Oath of Allegeance And the Law hath greater account to a Noble-mans Allegeance then one of the Commons because the breach of their Allegeance is more dangerous for Corruptio optimorum est pessima 2. As to the second Point viz. concerning the manner of Proceedings 1. Privative It is not to fine imprison or inflict corporal punishment for that ought to be assessed in some Court Judicially 2. Positive The Fine is ad monendum or at most ad minandum it is ad instruendum non ad destruendum This selected Councel is to express what punishment this Offence justly deserved if judicially proceeded against in the Star-Chamber Therefore this Proceeding is out of the King's Mercy to this Lady that seeing her Offence she might submit to the King without any Judicial Proceedings against her And though the Law puts Limits to the King's Justice it doth not so to his Mercy Et ideo processus iste est regalis plane rege dignus And this manner of Proceeding is fortified by the President of the Earl of Essex against whom such Proceedings were in this very place 42 43 Eliz. As to the last Point It was resolved by all quasi una voce that if a Sentence should be given in the Star Chamber she should be fined 20000 l. and imprisoned during the Kings pleasure Trin. 10 Jacobi Regis Robert Scarlet 's Case Note That at the Sessions of Peace lately holden at Woodbridge in Suffolk the Sheriff returned a Grand Inquest of which one Robert Scarlet desired to be one But the Sheriff knowing the malice of the man refused to return him Yet by Confederacy with the Clark who read the Pannel he was sworn of the Grand Inquest
shall be sufficient for him But if the Father by Writing declare that it is but part of a Childs portion then he shall have a full Childs part otherwise not Note It was holden by the Judges in the Kings-Bench That if a man be possessed of a House and Term for years doth devise for years does demise this to his Wife for Life the remainder over the dyes all his Debts being paid If the Widow enters generally and converts the profiâ—s to her own use and not to pious Works this is a Determination of her Election And this is the general case and therefore it is good that it be specially found Hâ—yn's Case In the Lent Assize holden at Leicester 11 and 12 Jac. the Case was One William Haynes had digged up the several Graves of three men and one Woman in the Night and had taken their Winding-Sheets from their Bodies and buryed them again And it was Resolved by the Justices at Sergeants Inne in Fleetstreet that the property of the Sheets remains in the Owners that is of him that had the property therein when the dead body was wrapped therewith as in 11 H. 4. If Apparel be put upon a Boy this is a Gift in Law for the Boy hath Capacity to take it but a dead Body being but a Lump of Earth hath no capacity Also it is not a Gift to the Person but bestowed on the Body for the Reverence towards it to express the hope of Resurrection And therefore at the second Assizes he was severally Indicted for taking these Sheets The first Indictment was of Petty-Larceny for which he was whipped And at the same Assizes he was Indicted for the Felonious taking the other three Sheets for which he had his Clergy and escaped Death Hill 11 Jacobi Regis Earl of Derby's Case In Chancery between Sir John Egerton Plaintiff and William Earl of Dirby Chamberlain of Chester and others Defendants It was Resolved by the Lord Chancellor the Chief Justice of England the Master of the Rolls Dodderidge and Winch Justices 1. That the Chamberlain of Chester being sole Judge of Equity cannot Decree any thing wherein himself is party but in such Case the Suit shall be heard here in Chancery coram Domino Rege 2. If the Defendants dwell out of the County Palatine he who hath to complain in Equity may complain here in Chancery And therefore the Suit shall be here in Chancery Ne Curia Domini Regis deficient in justitia exhibenda Else the Subject shall have good Right and yet have no Remedy And this pursues the Reason of the Common-Law 13 Ed. 3. Tit. Jurisdiction 8 Ed. 2. Ass 382. 5 Ed. 3. 30. 30 H. 6. 6. 7 H. 6. 37. For where the particular Courts cannot do Justice to the Parties they shall sue in the Kings general Courts at Westminster 11 H. 4. 27. 8 Ed. 4. 8. 3. It was Resolved That the King cannot grant a Commission to any to determine any matter of Equity but it ought to be determined in Chancery which hath had Jurisdiction in such case time out of mind and had allowance by Law whereas such new Commissions have been resolved to be against Law as was agreed in Pott's Case 4. Upon Consideration of the Lord Dyer and other Justices in Queen Elizabeth's time concerning the Jurisdiction of the County Palatine It was Resolved That for things Transitory though in truth they be in the County Palatine the Plaintiff may alleadge them to be done in any place of England and the Defendant may not plead to the Jurisdiction of the Court See Dyer 13 Eliz. sol 202 716. Forms and Orders of Parliament In the House of Commons when the Speaker is chosen he in his place where he shall first sit down shall disable himself and pray them to proceed a new Election But after he is put into the Chair then he shall pray them that he may disable himself to the King Note The King the first day of the Parliament shall sit in the Upper-House and there the King or Chancellor by his Command shall shew the Causes of Calling the Parliament and in Conclusion of the Oration the Commons are commanded to chuse a Speaker which after 2 or 3 dayes they present where He makes an Oration disabling himself c. In the Lower House when a Bill is read the Speaker opens the parts of it so that each Member may understand the intent thereof and the like is done by the Lord Chancellor in the Upper House Then upon the second Reading sometimes it is Engrossed without Commitment Then it is put to the Question and so in the Upper House But neither in the Upper or Lower House the Chancellor or Speaker shall not repeat a Bill or an Amendment but once When a Bill is committed to the second Reading then if Committees do amend it in any Point they shall write their Amendments in a Paper and shall direct to a Line and what Words shall be interlined and where and then all shall be ingrossed in a Bill And if a Bill pass the Commons House and the Lords amend it they do as before shew the Line c. and after the Amendments are ingrossed with particular References and the Bill sent down to the Commons the Amendments are road three times and so eâ—converso of a Bill passing the Upper House No Lord Knight Citizen or Burgess may speak above once to one Bill in one day No private Bill ought to be read before publike Bills In the Commons House those that are for the New Bill if there be a Question of Voyces shall go out of the House and who are against the Bill or for the Common-Law or any former shall fit still for they are in possession of the Old Law In the Upper House two Lords are appointed to number the Voyces In both Houses he that stands up first to speak shall speak first without difference of Persons When a Bill is ingrossed at the third Reading it may be amended in the same House in matter of substance â— fortiori the Errour of the Clerk in the ingrossing may be amended c. Pâ—sch 12. Jac. Regis Walter Chute's Case Walter Chute Sewer to the King exhibited a Petition to the King That for safety of the Realm c. that he would erect a new Office to Register all Strangers within the Realm except Merchant-Strangers to be kept at London and to grant it to the Petitioner with a Fee or without And all Strangers except Merchant-strangers to depart the Realm in a certain time unless they take a Billet under the said Registers Hand Which Petition the Lords of the Councel referred to Me by their Letters of the 13 Novemb. 1613. to consider what the Law is in that behalf c. And upon Conference with the Justices of the Common-Pleas and other Justices and Barons at Sergeants Inne in Fleetstreet It was Resolved That the Erection of such New Offices for the benefit of a private man was against all
Law of what nature soever Therefore when one Captain Lee made suit to the King to have an Office to inventory the Goods of those that dyed Testate or Intestate It was Resolved by my Lord Chancellor and my Self That such Grant shall be utterly void being both against the Common-Law and the Statute 21 H. 8. In like manner when another sued to have the Registring of Birth-dayes and the time of death c. So Mich. 19 Jac. To make a New Office in the Kings-Bench onely for making Lattitats was resolved void So Littletons Suit to name an Officer to be a Gen. Reg. c. But the Suit was rejected notwithstanding the fair Pretences of it by the two Chief Justices and others See Hill 12 Jac. Regis 2. Secondly It was Resolved That it was inconvenient for divers Causes 1. For a private man to have private ends 2. The numbring of Strangers by a private man would inâ—er a Terrour and other Kings and Princes will take offence at it 3. It is to be considered what breach it will be to former Treaties 3. As to the third It may be performed without any Inconvenience and so it was divided by the Lord Burleigh and other Lords of the Councel 37 Eliz. To write Letters to the Mayors Bayliffs c. of every City Borough c. where any strangers are resident to certifie how many and of what quality c. which they are to know in respect of their Inhabitants c. and this may be done without any Writing which being shewn to the Lords was by them well approved and the Suits utterly disallowed Decemb. 3. Anno 3 H. 8. Commission was granted to divers to certifie the number of Strangers Artificers c. within London and Suburbs according to the Statutes See Candish Case 29 Eliz. 13 Eliz. A Grant of an Office to Thomas Knivâ—t to examine his Majesties Auditors and Clerks of the Pipe c. Resolved by the Court to be against Law for it belongs to the Barons who are Judges 25 Eliz. A Grant of an Office to Thomas Lichfield to examine all Deceits c. of the Queens Officers for 8 years Resolved to be void Sub-poena's in Chancery belonged antiently to the Six Clerks Queen Elizabeth granted the same to a particular man Affidavits Filing and keeping belonged to the Register King James granted them to a particular man So the erecting and putting down Innes did belong to the Justice of Peace the same King granted it to a particular man So likewise the taking of Depositions c. The Office of Alneger granted by the King to Simon Darlington and the Fees limited The Drawing Ingrossing and Writing all Licences and Pardons granted to Edward Bacon with former Fees and a Restraint to all others The Spa Office granted to Thomas George and others during life with the Fee of 2 s. and a restraint to others The Office of making and Registring all manner of Assurances and Policies c. granted to Richard Gandler Gent. with such Fees as the Lord Mayor and others should rate and a Restraint to others c. The Office of writing Tallies and Counter-Tallies granted to Sir Vincent Skinner The Office of ingrossing Patents to the Great Seal with encrease of Fees granted to Sir Richard Young and Mr. Pye Sed de hoc quaere Sir Stephen Proctor's Case In an Information in the Star-Chamber against Stephen Proctor Berkenhead and others for Scandall and Conspiracy against the Earl of Northampton and the Lord Wooton At the Hearing of the Case were present eight Lords viz. the Chief Baron the two Chief Justices two Bishops one Baron Chancellor of the Exchequer and the Lord Chancellor And the three Chief Justices and the Temporal Baron condemned Sir Stephen Proctor and fined and imprisoned him But the Lord Chancellor the two Bishops and the Chancellor of the Exchequer acquiâ—ted him And the Question was if Sir Stephen Proctor shall be condemned or acquitted And the matter was referred to the two Chief Justices calling to their assistance the Kings Learned Councel And first they Resolved That this Question must be determined by the Presidents of the Court of Star-Chamber that Court being against the Rule and Order of all Courts For in all other Courts if the Justices are equally divided no Judgment can be given So also is it in the Parliament and therefore this course must be warranted by the Custom of the Court. And as to that two Presidents onely were produced viz. One in Hillary Term 39 Eliz. Gibson Plaintiff and Griffith and others Defendants for a Ryot where at Hearing 8 being present 4 gave Judgment that the Defendants were guilty and 4 â— contra and no Sentence of Condemnation was ever entred because the Lord Chancellor was one of the 4 that acquitted them The other was in Hillary 45 Eliz. in an Information against Katherine and others for Forging a Will c. where 4 finding the Defendants guilty of Forgery and 4 onely of Misdemeanour whereof the Lord Chancellor was one Sentence was entred according to the Chancellors Voyce and no other President could be found in this Case as I reported this Term. Concerning Benevolence Note The Exaction under the good Name of Benevolence began thus When King Edw. the 4th had a Subsidy granted him by Parl. in the 12th year of his Reign because he could have no more by Parl and with a Parl. he could not have a Subsidy he invented this Devise wherein observe 3 Things 1. The Cause 2. The Invention 3. The Success 1. The Duke of Burgundy who marryed Edw. the 4th Sister sollicited the King to joyn in War with him against the French King whereto he easily consented to be revenged of him for aiding the Earl of Warwick c. And this was the cause 2. The Invention was The King called before him several times many of his wealthiest Subjects to declare to them his Necessity and Purpose to levy War and demanded of each of them a Sum of Money which by the King 's extraordinary courtesie to them they very freely yielded to Amongst the rest there was a Rich Widow of whom the King merily asked what she would give him for maintenance of his Wars By my Faith quoth she for your lovely Countenance sake you shall have 20 l. which being more than the King expected he thanked her and vouchsafed to kiss her Upon which she presently swore he should have 20 l. more 3. The Success was That where the King called this a Benevolence yet many of the People did much grudge at it and called it a Malevolince Primo Ed. 5. The Duke of Buckingham in Guild-Hall London among other Things inveighed in his Speech against this Taxation and 1 R. 3. c. 2 a Statute is made against it 6 H. 7. The King declaring in Parl that he had just cause of War against the French King desired a Benevolence according to the Example of Edw. 4. and publish'd That he would by their open Hands measure their
holden That if one were to sit in the Chancel and hath there a place his Carpet Livery and Cushion the Parson cannot claim them as Oblations for that they were hanged there in honour of the Deceased the same Reason of a Coat-Armour c. And the Chief Justice said the Lady might have a good Action during her Life in the Case aforesaid because she caused the things to he set up there and after her death the Heir shall have his Action they being in the nature of Hire-looms which belong to the Heir And with this agrees the Laws of other Nations Bartho Cassanâ—us sol 13. Coâ—cl 29. Actioâ— dat si aliquis arma in aliquo loco posita deleat aut abrasit c. and in 21 Ed. 3. 48. in the Bishop of Carlisle's Case Note That in Easter Term 10 Jacob. it was Resolved in the Star-Chamber in the Case between Hussâ—y and Katharine Leyton that if a man have a house in any Parish and that he and all those whose Estate he hath have used to have a certain Pew in the Church that if the Ordinary will displace him he shall have a Prohibition but where there is no such Prescription the Ordinary shall dispose of common and vulgar Seats Earl of Shrewes buryes Case Sir Humphry Winch Sir James Ley Sir Anthony St. Leger and Sir James Hullesâ—on certified the Lords of the Councel by Command from them by Letters dated 28. Martii 1612. of the Claim of Gilbert Earl of Shrewesbury to the Earldome of Waterford and Barony of Dungarvan in Ireland as followeth King Henry the Sixth by Letters-Patents in the 20th year of his Reign did Grant to his Cosin John Earl of Shrewsbury in consideration of his Loyal Services in the City and County of Waterford pro se c. ipsum in Comitem Waterford una cum stilo et titulo ac nomine ac honore eisdem debitis ordinamus creamus habendum to the said Earl and his Heirs-males of his Body and further did Grant the Castles Lordships c. of Dungarvan to the said Earl and the Heirs-males of his Body To hold c. of the King and his Heirs by Homage and Fealty and by the Service of being his Majesties Seneschal in Ireland After in the Parliament called Des Absentees holden at Dublin in Ireland 10. Maii 28 H. 8. It was enacted by reason of the long absence of George Earl of Shrewesbury out of the said Realm That the King his Heirs c. shall enjoy in right of his Crown of England all Honors Mannors Castles c. and all and singular possessions c. as well Spiritual as Temporal which the said George Earl of Shrewesbury and VVaterford or any other Persons had to his Use c. King Henry the 8th by his Letters Patents dated 29th of his Reign reciting the said Statute Nos praemissa Considerantes c. did Grant to the said Earl and his Heirs the Abbey of Rufford with the Lands thereunto c. in the County of Nottingham and the Lordship of Rotheram in the County of York the Abbeys of Chestersteld Shirbrook and Glossaâ—dale in Derbyshire with divers other Lands c. to be holden in Capite And the Questions were as followeth 1. Whether by the long absence of the Earl of Shrewsbury out of Ireland the Title of the Honor be lost and forfeited he being a Peer of both Realms and refiding here in England 2. Whether by the Act Des absentâ—es 28 H. 8. the Title of Dignity of Earl of VVaterford be taken from the said Earl as well as the Land c. Afterwards by other Letters Patents dated 27th of Sept. 1612. the two Chief Justices and Chief Baron were required to consider of the Case and to certifie their Opinions which Case being argued by Councel learned in the Law in behalf the said Earl and they having taken great advisement It was unanimously Resolved by them all as followeth 1. As to the fiâ—st Resolved That since it does not appear what defence was requisite and that the Consideration Executory was not found by Office to be broken in that Point the said Earl of Shrewsbury notwithstanding does remain Earl of Waterford 2. As to the second It was Resolved That the said Act 28 H. 8. Des Absenteâ—s does not onely take away the Possessions given him at his Creation but also the Dignity it self for though one may have a Dignity without Possession yet is it very inconvenient that Dignity should be cloathed with Poverty and so it was resolved in the Lord Ogles Case in Edw. 6. Reign as the Baron of Burleigh 35 Elâ—z did report The cause of Degradation of George Nevil Duke of Bedford is worth observation which was done by Act of Parliament 16 June 17 Ed. 4. which Act reciting the making the said George Duke sets forth the cause of his Degradation in these words And for so much as it is openly known that the said George hath not or by Inheritance may have any livelyhood to support the said Name Estate and Dignity c. Therefore the King by Advice of his Lords Spiritual and Temporal and Commons c. Enacteth c. That from henceforth the same Creation of the said Duke and all Names of Dignity given to the said George or to John Nevil his Father be void and of none effect Wherein are to be observed 1. That though the Duke had not Possessions to maintain his Dignity yet it could not be taken from him but by Act of Parliament 2. Great Inconveniencies follow where there is great State and Dignity and no means to maintain it 3. It is good reason to take away such Dignity by Act of Parliament and then the Act shall be expounded to take away such Inconvenience And though the Earl of Shrewsbury be of great Honour Vertue and Possessions in England yet it was not the Intention of the Act to continue him Earl in Ireland when his Possessions there were taken away And where it was objected that the general words Honours and Hereditaments are explained and qualified by the said Relative subsequent which the said George or any to his use hath Now in regard no man can be seized of the said Digniâ—y therefore the Act doth not extend to it 'T is answered that is to be understood Reddendo singula singulis and these words which the said G. E. hath are sufficient to pass the Dignity and with this agrees all the Judges Opinions in England in Nevils Case upon the like in the Statute 28 H. 8. in 7th Part of my Reports sol 33 and 34. Hill 2 Jacob. Regis Jurisdiction of the Court of Common-Pleas In the last Term by the King's Commands the Justices of the Kings Bench and Barons of the Exchequer were assembled before the Lord Chancellor Ellesmere at York-house to deliver their Opinion Whether there was any Authority in our Books that the Justices of the Common-Bench may grant Prohibitions or whether every Plea ought to be pending