A Vindication Of the CASE relating to the Greenwax-fines SHEWING How the Rights and Prerogative of the Crown are diminished Officers enriched and the Subjects oppressed by the Mismanagement of That Revenue ALSO Disproving the Allegations used to hinder a Reformation thereof as Contradictory to the Reports and Resolutitions of the Judges and Lawyers and the Experience of Persons of all Ranks and Degrees in all Ages Proved by undenyable Matter upon Record against which the Law alloweth no Plea or Averment LONDON Printed in the Year 1684. TO THE KINGS Most Excellent MAJESTY c. Great Sir I Have Advised with many Eminent Lawyers upon the ensuing Treatise who agree The Statutes Presidents and Book-Cases to be rightly quoted And I know the matter of Fact to be Truely Stated Therefore humbly and in all Duty beg of Your Majesty to Read and Judge how my dear Lord and I have been mis-represented for promoting Your Service Your Majesties Most Dutiful Subject Yarmouths TO THE High and Mighty Monarch Charles II. By the Grace of God KING of England c. Most Gracious Soveraign WIthout Fines and Amerciaments Your Majesty may have many Laws but no Obedience to them Many People but few Subjects In this Age men obey rather for Fear of Punishment than Love of Vertue Rewards and Punishments are the two Wheeles which make the great Clock of the Kingdom go right The one keeps the people within the Circle of Obedience the other is the Golden Spur to Glory and all Noble Actions The just Rights and Liberties of the Crown like Hippocrates Twyns live and die together Therefore Your Royal Progenitors and their great Ministers ever termed such as blasted these flowers Regiae Majestatis homicida Every Subject within your Majesties Dominions at the Age of 18. is obliged to defend them Officers more especially upon every Admission into Imployments to discover whatsoever they know or believe to be done or suffered to Your Majesties dishonour Eclipsing Your Prerogative or Deminution of Your Profits which made me discover such things as I being educated in the practice of the Law knew to be actually committed and done And your Majesties Councel at Law not only reported that I deserved encouragement and a Liberal reward for the good service performed by the Discovery thereof But countenanced me therein untill they themselves became Judges or perceived how displeaing it was to forego Pretended perquisites innovated Practices and Fees I have been at continual expence and trouble besides the loss of my Practice by this long contest ever since October 1674. Clyents being unwilling to imploy a reputed enemy to the Courts I humbly beg of Your Majesty that the Judges refusing to reform the Abuses discovered in such manner as I propose may not deprive me of Your Majesties Mercy and Bounty seeing the discovery thereof is all that 's required in this Case of Your Majesties Most Loyal and Dutiful Subject P. Brunskell THE CONTENTS Of this BOOK DIvers Abuses with Proposals following every Abuse to Remedy it from Page 1. to page 30. Sir Francis Norths Report when Attorney General in behalf of the said Brunskell p. 30 31. Sir Francis Norths Evasions Allegations or Retractions upon his being made Chief Justice of the Common-pleas p. 31. Sir Charles Herboards Report upon hearing what the Lord Chief Justice North and his Officers had to say p. 31. Sir Francis Norths opinion occasioned by Sir Charles Herboards Report p. 32. Sergeant Maynards opinions and retraction p. 32. Saunders several opinions and how he evaded the same after he was made Chief Justice p. 32. Reymonds opinion and how he sate mute after he became a Judge p. 32. Vpon what occasion Sir William Jones Your Majesties Attorney General reported for Your Majesties service That many of the Abuses were true and fit to be remedied that the discovery thereof was Good service already performed and deserved to be liberally rewarded And how he and Mr. Finch your Majesties Solicitor General refused to give the said Brunskell encouragement pursuant thereto for your Majesties service p. 32 33 34. How the Judges and Barons confirmed Sir Jones's Report and agreed to make Rules pursuant thereto p. 33 34. How Sir Robert Sawyer before and after he was your Majesties Attorney General Argued as Councel for and Reported in behalf of the said Brunskell p. 34. Sir Robert Sawyers Allegations Evasions or Retractions p. 35 36. The Judges appointed to meet at the Earl of Angleseys to setle Orders or Rules pursuant to Sir Robert Sawyers first Report because the said Earl had your Majesties Commands to see them made But the Judges disappointed his Lordship and met at Serjeants-Inn in Fleet-Street where the late Lord Chief Justice Pemberton declared that your Majesty had no such Revenue p. 35. Why and wherefore Fines and Penalties were ordained p. 36. Several Statutes enjoyning the Judges and Officers to be carefull of Fines Issues and Amerciaments from p. 36. to p. 39. Oaths now Administred to great Ministers and Officers to make them careful of your Majesties Honour Rights and Profits To Bishops Lord Chancellor p. 39. Privy Councellors Treasurers Barons and Judges p. 40. Justices of Peace High-Sheriffs p. 41. Lawyers Officers and Attorneys p. 42. The inconveniencies formerly experienced when Judges sold Offices and took Fees and Gifts of other than the King p. 42 43. Divers Resolutions of former Judges and Sages of the Law shewing the great Veneration and Esteem they had of Your Majesties Casual profits p. 43 44. That Grantees by a Derivative Power take the small Amerciaments yet Your Majesties Officers who have certain Sallaries to take care of Your Majesties Profits neglect them p. 44. That Fines inflicted fall not upon High Sheriffs as alledged p. 44. Several Statutes declaring that Officers use many shifts contrary to their Oaths and Duties and the known Laws of the Land to withdraw your Majesties Fines Issues and Amerciaments and increase their Fees p. 45. Examples Of King Henry the 3d. 1. In setling Orders for the better management of the Green-Wax Fines 2. In Assigning it over for Payment of his Debts 3. In allotting His Judges Sallaries to be paid thereout And 4ly In Punishing Hubert De Burgh His Chief Justice and Baron for neglect thereof p. 46. Of Queen Eliz. countenancing Carmerthen upon the discovery of Abuses in the Customs p. 47. Of King James setling Orders upon the discovery of Abuses in withdrawing the Green-Wax Fines and why Officers imbezled or lost them p. 47. Several Ficticious Allegations fully disproved and detected p. 48. to p. 55. How the said Brunskell and Mr. Middelton are better Entituled than their Brethren to be Commissioners in the Alienation Office p. 55. The Antiquity and certainty of the Duty upon Pleas of Land and how it s to be improved and better managed then now and that the said Brunskell and Middelton are not to blame for the non-Improvement or better Management thereof from p. 55. to p. 69. Heriotts and Reliefs fully saved in
his Officers claimed some Fines as Fees to Buy Necessaries for the Judges and Repair the Courts It was Referred to Sir Charles Harboard who Reported after a serious Debate with his Lordship and Officers That all Fines were Agreed to be Due to Your Majesty Ergo Not applicable to any Vse without Your Majesties express Warrant Then his Lordship yeilded by a second Opinion under his hand That it was Needful to Appoint a Person who by taking the Officers Accompts might Controul such as pocket His Majesties Profits And Serjeant Maynard gave his Opinion in private for the said Brunskel in behalf of Your Majesty Yet when he appeared in publick and saw the Judges and Officers against him Retracted the same And Mr. Saunders ever pleaded for the said Brunskel in behalf of Your Majesty and maintained the Green-Wax Fines to be Your Ancient Revenue And that Your Majesty may Legally Grant it in Farm or settle Orders or Rules for the Management thereof as Proposed Yet being Chief Justice alledged It was one thing to be Judge and another to be Counsel And Serjeant Reymond gave his Opinion for the said Brunskel in behalf of Your Majesty But being a Judge satt mute Sir William Jones Your Majesties Attorney General ever refused to say or do any thing in Favour of the said Brunskel But a Scheam of Abuses and Remedies which the said Brunskell gave to some Persons active in the revocation of his Patent to let them see what reasonable things he desired and was denyed And how unjustly his Adversaries sought to ruine his Reputation and Estate being carried to the said Sir William Jones by his own Creatures without discovering the said Brunskell to be the Author thereof he reported thereon That many of the Abuses are True and fit to be Redressed That all or the greatest part thereof may be redressed by the Judges Orders in the respective Courts That the discoveror thereof deserveth all due Encouragement for the service he hath already done and may for the future do in discovering these or the like Abuses Also the assurance of a liberal Reward And the Judges confirmed his Report by acquainting the Lords Commissioners of your Majesties Treasury That they had made Orders pursuant thereunto Also the Barons by agreeing to make Orders accordingly as appears by the minute Book in the Treasury Chamber Yet effectual Orders are not made And when the said Brunskell appeared and Petitioned for his Reward pursuant thereto being referred to the said Sir William Jones and afterwards to Mr. Finch the Solicitor General they resused to draw either Patent or Commission for him Sir Robert Sawyer before and after he was Your Majesties Attorney General pleaded upon several occasions for the said Brunskell in behalf of your Majesty and Reported That great Abuses are practiced by Clarks and it 's fit such Rules be made that your Majesty may not be injured That the Ancient Practice is best That the Method as the Starute 11 Hen. 7. cap. 15. directeth ought to be pursued That the Orders proposed seem reasonable in the main And advised the Lords Commissioners of Your Treasury to send them to the Judges to be made Rules in the respective Courts which their Lordships did accordingly and your Majesty Commanded the Earl of Anglesey to see them made for Your Service Whereupon the Judges appointed to meet at his Lordships House But for some reasons best known to themselves They not only declined meeting there but to have his Lordship present at the debate thereof in Serjeants-Inn-Hall where the Late Lord Chief Justice Pemberton declared That your Majesty had no such Revenue and dismissed the said Brunskell from all farther Solicitations for Rules Whereupon the Earl of Anglesey stated the Abuses represented by way of Question under his hand and delivered them by your Majesties Command to Sir Leoline Jenkins your Majestyes Principal Secretary to be referred to the Judges to Answer under their Hands which is not yet done Yet the said Sir Robert Sawyer forgetting his former Reports and Opinions acquainted your Majesty at the hearing that the said Brunskell was impertinently troublesome And reported lately upon the said Brunskells petition to the Lords Commissioners of your Majesties Treasury That the substance of what the said Brunskell insists on hath been debated over and over and will never be determined to the said Brunskells satisfaction yet warily submits to their Lordships Judgment For he knew that their Lordships were as sensible as himself that repeating nine Years Transactions Stating and Answering all Objections made the said Brunskells Case unavoidably long and for that reason it was not Read Ergo not Debated That Fines and Penalties were Originally ordained to quicken the Execution which is the life of the Law and established to defray the charge which your Majesty is at with your Courts for Administration of Justice and Equity to Your Subjects For that reason 't is provided by the Statute 51 Hen. 3. and 7 Hen. 4. cap. 3. That they shall be duely Recorded Estreated Levied and Accompted for The Statute 6 Edw. 1. cap. 14. directeth That the Treasurers and Barons shall see Amerciaments Levied to your Majesties use The Statute of Rutland 10 Edw. 1. provideth That Sheriffs and Bayliffs shall not withdraw Your Revenues by returning Nichills or the like And that Your Treasurers and Barons cause particular Rolls of Estreats to be made and delivered to faithfull and circumspect men to Enquire thereinto The Statute 27 Edw. 1. directeth That once every year a Baron and a Clark shall go round the Countries to enquire whether any be concealed or withdrawn The Statute 18 Edw. 3. enjoyneth the Judges to do all reasonable things to procure them By the Statute 6 Hen. 4. cap. 3. Commissions shall be issued out after every Officers final accompt into the respective Counties where the Officers and Accomptants live to enquire of Frauds that they may be severely punished And Under-Sheriffs and Bayliffs by the Statute 1 Hen. 5. cap. 4. shall not be in Office above a year The Statute 2 Hen. 6. cap. 10. provideth That persons shall be appointed in all Courts faithfully to attend your Majesties business And the Statute 33 Hen. 8. cap. 39. provideth That the Officers concealing or withdrawing your Majesties Fines shall pay three times the value and forfeit their Offices And it was found by experience as appeareth by the said Statute 27 Hen. 8. That Suits were delayed when Bailiffs were not punished by Fines and Amerciaments because the Lords of Liberties to whom your Royal Ancestors had granted the Return of Writs had power to remit the same Therefore the Statute nulled those Grants and restored the Fines to the Crown as the ancient Estate and Prerogative thereof for administring Justice and the Statute 27 Hen. 8. cap. 10. 13. Eliz. cap. 5. prohibiteth all Contrivances to deceive your Majesty of any Fines and all persons Officers especially are
thereout to make them careful of it the Parliament esteeming Fines the only means to expedite Justice petitioned Richard the second That the Justices might have part of all Fines and Penalties to excite them to inflict and levy them whereupon the Statutes 12 Rich. 2. cap. 10. and 14 cap. 11. were made for their Wages to be paid thereout still in force and observed And it appears by Crompton's Jurisdiction of Courts in Banco Regis that Judge Ingham was punished for reducing an Amerciament to a lesser Sum tho' in pity to a poor man because the Statute 18 Eliz. 3. Statute 4. still in force prohibits him and all Judges to do any thing in prejudice to the King And some Historians report That the Clock-House in Westminster was built with the Fine and the great Bell hung therein that the Judges may remember when they hear it Toll to observe their Oaths established by that Statute Queen Elizabeth received and countenanced oppressed Carmerthen upon his discovery of Abuses in the Customes and subjected the Officers to his Methods Also King James being Informed of abusive practices in withdrawing the Green-wax-Fines constituted a Surveyor thereof and setled Orders to enable him to perform his Surveyorship which were hung up in Tables in the Exchecquer but are now imbezelled or lost for Officers love not lasting Monuments of their Corruptions And the old Fine Rolls shew that contempts in Chancery were duely estreated which are now wholly neglected Also it appeareth by good matter upon Record that all Your Royal Progenitors have constituted Special Commissioners to inquire into Officers Misdemeanors And that the same were ever reformed upon their Certificate without more ado yet to hinder a Reformation 1. The said Brunskells opponents stopt a Grant to the said Brunskell after it had past the Privy Seal with no small trouble and charge to him upon a suggestion that it was Empson and Dudleyes Case who had power to Impose Imprison Levy Compound and Discharge Whereas the said Brunskell never had or desired any power but to make Officers Record all Fines and Amerciaments duely or charge them when they withdraw or conceal any 2. They represented a Grant of the Office of Surveyor illegal for the said Brunskell and denied him a Commission of Inspection for fear of setting malicious informations on foot Whereas with running the risk of Barratry he may turn Informer at any time without a Commission 3. To hinder Persons of Quality to be Surveyors The said Brunskells Opponents represented this Revenue as an inconsiderable project Whereas their own Oathes Statutes and Presidents before-mentioned clearly evidence That Fines and Penalties were ordained for the Punishment of bad and Relief of good men because ill men will rather obey formidine poenoe than vertutis amore Ergo No projects 4. The Right Honourable Earls of Peterburough and Yarmouth Henry Lord O Bryen Sir Francis Compton Mr. Greenvil Mr. Fanshaw and the said Brunskell upon the Officers certifying your Majesties High Treasurer Danby That the Green-wax-Fines yeilded but 500 l. Comunibus Annis proposed to Farm the Moiety thereof at 250 l. per Annum excepting thereout all forfeitures of Popish Recusants Conventiclers yet the said Brunskells Opponents hindred them to be Surveyors or Farmers upon a suggestion That such Grants were Illegal imprudent impracticable until it appeared That a Grant of the Office of Surveyors was then in being to one Mr. Aram and all the Green-wax-Fines were then and are now in Farm throughout the Kingdom of Ireland and in England within the Dutchy and Countyes-Palatine of Durham Lancaster and Cheshire and to divers Cities Corporations and Lords of Liberties where divers of the Grantees are impowred to Impose Imprison Levy compound and discharge And your Majesty was graciously pleased upon the Judges and Lawyers agreeing them to be Legal to make this Remark thereon If Grants with those Powers were good allowed and practiced The Grants without them could not be illegal the Judges and Lawyers agreeing the Surveyor to be a necessary Officer Your Majesty was graciously pleased to make this further Remark thereon That it was more prudent to grant a Moiety of the improvement than a certain Sallary because it obliged the Grantees to promote your Majesties Profits with their own Whereupon the several Letters-Patents passed Your Majesties Great Seal Yet the Judges hindred the Patentees to Officiate by not Subjecting Officers to a prudent controul for your Majesties Service until the Grants were revoked by an Order of Council It is endless to repeat every passage and what trouble and charge the said Brunskell and his Partners were put to with Feeing and instructing five or six Lawyers at a time to disprove their Opponents fictitious Alligations And how the said Brunskell being denied to be Surveyor was no sooner gone into the Country for a little repast but his Enemies concluding him to be wearied out adjudged the Office of Surveyor Legal and fit for their own Creatures useing great endeavours to pass two Patents thereof until your Majesty being gratiously pleased to stop them declared the Grant as legal for the said Earl of Yarmouth and Brunskell as any other and how the said Brunskells Opponents delayed him for an Account from Ireland and after the Account came untill the said Earl of Yarmouth Petitioned for a hearing before your Majesty in Council and upon Sanders arguing and maintaining the Legality of the Grant desired Your Majesty was graciously pleased to constitute the said Brunskell Surveyor who obtayning your Majesties Grant by an Order of Council about April 1681. acquainted the Lords Commissioners of your Majesties Treasury That it required many Deputies to attend the Great Courts at Westminister Assizes and Sessions and to go from Office to Office tracing Fines and Amerciaments duly to Accompt who will not act without an assurance from your Majesty or Treasures how they may be paid The said Brunskel therefore petitioned the Lords Commissioners for Orders or Rules to inable him to Officiate as proposed Or an Allowance for Deputies And the said Earl of Yarmouth thinking the Judges or Lords Commissioners to blame in not setling Orders or an Allowance for Deputies and taking such Lawyers as say and gainsay to be ill Advocates and worse Guides to the Ignorant Petitioned for a hearing before your Majesty in Council But the late Lord Chief Justice Pemberton who declared That your Majesty had no such Revenue Et nescit vox missa reverti and the other Judges who did not contradict it unwilling to hear all the matter of fact publickly debated and proved Quia qui que vult dicit que non vult audiet represented the said Brunskels Case to be impertinently long And for that reason it was not read And the said Lord Chief Justice Pemberton not only moved your Majesty to take his and the others Judges opinions thereon which was not rejected but quibled upon the said Brunskels ignorance in jumbling Actions Popular and informations
Sallaries and Imployments As to Heriots and Reliefes Sir William Jones Sir Robert Sawyer and Sir John Sympson gave their Opinions That Heriots and Releifes are fully saved in the Crown by the Statute 12 Car. 2. cap. 24. But now t is alledged That Tenures as part and parcel of Mannors pass by your Majesties Grant of a Customary Mannor cum pertinen ' whereas Heriots and Releifes being Services incident to Tenures and Tenures in Gross to the Persons and disappendant to Land or Mannors cannot pass by grant of the Mannors or Land cum pertinen ' As for instance There is no Land in England in the hands of any Subject but what 's holden of some Lord or other by some kind of Service Cooke upon Litleton Fol. 65. a. And the Services make Tenures Fol. 92. b. And every Freehold Tenant except in Frank Almoigne is bound to do Fealty to his Lord for the Tenement holden of him Cooke upon Litleton Sect. 91. If Lords knew the advantages of Homage and Fealty they would not neglect them Cooke upon Litleton Sect. 94. Also the Writ de Cessavit saith precipe a quod juste c. reddit B. Tentum suum quod de eo which is de Domino non de Manerio tenuit per tale Servicium Et quod perfat ' reverti debet Eo quod predict ' a infaciendo Servic ' per biennium cessavit c. Ergo The Tenures being in Gross to the Person and disappendant to the Mannor cannot pass with the Grant of the Mannor cum pertinen ' in your Majesties Case Because the Services which make the Tenures oblige Your Tenants upon pain of forfeiting their Estates by Force of the Statute 13 Ed. 1. to be ever in readiness to defend your Majesty and Kingdom in time of War and encourage Tillage in times of Peace for the preservation thereof and relief of the poor And an Army of such Freehold Tenants may in reason be thought better Souldiers than Hirelings saying Omnia mea mecum porto who will fight for or revolt from your Majesty as their Interest leads It is agreed That Tenures and Services are Established by Custom and Common Law pro bono publico That the Common Law shall be preferred before Acts of Parliament clashing with it That if a private Lord Alien a Customary Mannor consisting of Freehold Tenants the very Tenures Services and Royalties which he hath shall pass to the Alienee by general words because it 's equal to your Majesty and Subjects whether the Alienor or Alienee have them that the Act and Deed of a private person shall be construed most strongly against him But when Customary Mannors come into the Crown by Attainder Escheat or otherwise The Tenures are thereby changed from the Person of the Lord to the Person of your Majesty so become special Royalties And Royalties shall not pass out of the Crown by the Grant of the Mannors cum pertinen ' or general words Hob. Rep. 233 234. Plow Com. 333. b. 334. a. Dyer Fol. 268. Davys Rep. Fol. 56. a. If a private Lord Alien Land it shall be holden of the Alienee If your Majesty Alien it shall be holden of Your Self in Capite Rolls Abridgments Fol. 517. Private Lords may and do frequently Manumit their Tenants But if your Majesty Release a Tenant in Capite to hold by a penny and not in Capite That Release is void because the Tenures are incident to Your Person and Crown Rolls Abridgments Fol. 513. For that reason the Homage and Fealty of your Majesties Tenants do differ from private Lords For your Majesties is called Homagium Ligeum which bind them by Oath to be Your subjects of life and member Cooke upon Litleton Fol. 68. And every thing is expounded most largly and beneficially for your Majesty Because the Profits of the Crown are termed Ornamenta pacis et firmamenta Belli And of so High Estimation that every body is bound to promote them Cookes Reports the Earl of Devonshires Case Therefore the Learned Judge Hutton declared Tenures and Services to be inseparably annexed and united to the Imperial Crown And the Learned Lord Chief Justice Hailes and others who had the penning of the Statute Anno 12 of your Majesties Raign saved Rents Heriots and Suits of Court incident to Tenures in Capitee to be as they were before the Tenures were thereby turned or alter'd into common Soccage Also createth a Relief as in Soccage Tenure and saved the Fealty incident thereto And the 4th proviso of the same Statute dischargeth Tenants holding by Soccage in Capite of no service but Ward Value and forfeiture of Marriage Livery primer seisin ouster le Mayne pur fair ' Fitz Chivalier purfile Marrier Ergo Heriots and Reliefs ought to be in charge with the Auditors where your Majesty hath not granted them away in Terminis as separate and disappendant to your Mannors As to Offices The Law consisteth but of two parts viz. Judicial and Executive And most Offences being Baylable it 's at the Criminals Election whether they will stand Tryal or forfeit their Recognizance Ergo If Officers for Bribes or Rewards withdraw Recognizances They frustrate the Judicial part Officers are also entrusted to see proceedings right and duely Drawn and Recorded but if they by ignorance corruption or negligence draw long and vexatious Bills Answers Orders or Decrees or Imbezal or deface Depositions in Equity Or draw ill Declarations or Pleas or Misenter Special Verdicts or Judgments at Common-Law It giveth great disturbance to Suitors to have the Errors rectified and the Non-amendment thereof in due time giveth litigious Adversaries opportunity upon Writs of Errors to be very vexatious and frequently overthroweth all the proceedings thereon It was found by experience when the Judges had divers Fees as well as their Officers which increased or decreased as Suits were delayed and proceedings multiplyed and sold Offices at dear Rates that they placed men therein for Lucre without Merit and acted or countenanced such things as were contrary to the Laws and Statutes in force For which some Judges were put to Death divers Fined and Suspended and others were Banished as appeareth by Ancient Record and History Also the Attorney and Solicitor General did not then prosecute and convict the Officers guilty of misdemeanours because their own practice and profit as private Councellors depended upon the Favour of the Judges and indearement of Officers therefore the Sallaries of the Judges and Kings Counsel were inlarged and made certain For it 's Enacted by the Statutes 18 and 20 Edw. 3. That the Judges shall not take Guifts Fees Robes or Rewards of any but your Majesty and the Oath of a Judge thereby established enjoyneth the observance thereof because their Sallaries were then made certain which have been since further enlarged It 's also further provided by the Statute 12 Richard 2. That the Judges and great Ministers shall not sell Offices Also by the Statute 3 Edw. 1. Cap. 26 27 and 30. That Officers shall not commit