one Bellingham 2 Jac. in Westminster-Hall Sedentibus Curiis with his Elbow and Shoulder out of malice justled Anthony Dyer of the Temple that he overthrew him and spurned him with his Feet upon the Legs but smote him not in any other manner And yet it was held That his right hand should be cut off c. upon which Bellingham was indicted in Banke le Roy and after got his Pardon A Case was put to all the Justices of England viz. The Bishopricks of Waterford and Lismore originally two Bishopricks by lawful Authority in the time of H. 3. were united but the Chapters yet remain several After which Union the Bishop aliened Lands of the Sea of Waterford and also of the Sea of Lismore with confirmation of the Chapter of Lismore 1. The Question was Whether such Alienations are not voydable by the Successor being with the Confirmations of both the Deans and Chapters 2. The second Question was Whether the Queen might avoid such alienations by seizure or otherwise The Justices demanded a View of the Union to which it was answered That it was not extant then was it Resolved by the Justices That inasmuch as the Usage hath been after the Union that the several Deans and Chapters have severally made Confirmations ut supra it shall be intended that the Union notwithstanding yet for avoiding Confusion and in respect of the remoteness of the Deans and Chapters that Estates made shall be severally confirmed as before the Union and then such Confirmations shall be good for in such Case Modus conventiovincunt Legem 50 Ed. 3. Title Assize Statham Ri. 2. Title Grant 27 H. 8. Dyer 58. 11 Eliz. Dyer 33 H. 8. 2. It was Resolved That upon a lawful Alienation made with Confirmation of the Dean and Chapter no contraformam collationis lyes upon the Statute of Westm â— See my 7th Reports Trin. 8 Jacobi Regis Convocation Case It was Resolved by the two Chief Justices and divers other Justices at a Committee before the Lords of Parliament concerning the Authority of a Convocation 1. That a Convocation cannot assemble without the assent of the King 2. That after their Assembly they cannot confer to Constitute any Cannons without Licence d l Roy. 3. When upon Conference they conclude any Cannons yet they cannot exâ—cute any of them without Royal assent 4. They cannot execute any after Royal assent but with these Limitations 1. That they be not against the Kings Prorogative 2. Nor against the Common Law 3. Nor against Statute Law 4. Nor against any Custom of the Realm And all this appears by 25 H. 8. cap. 19. 19 Ed. 3. Title Quare non admisit 7. 10 H. 7. 17. Merton cap. 9. 2 H. 6. 13. A Convocation may make Constitutions to bind the Spiritualty because they all in person or by representation are present but not the Temporality 21 Ed. 4. 47. The Convocation is Spiritual and so are all their Constitutions Vide the Records in Turri 18 H. 8. 8 Ed. 1. 25 Ed. 1. 11 Ed. 2. 15 Ed. 2. Prohibitio Regis ne Clerus in Congregatione sua c. attemptet contra jus seu Coronam c. by which it appears they can do nothing against the Law of the Land or the Kings Prerogative Case of Piracy Trin. 8 Jacobi Regis In this Term the King referred the Consideration of Letters Patents of the Lord Admiral of England to the two Chief Justices and the Chief Baron whether by the said Letters Patents the Goods which Pirates should take from Others by Robbery and Piracy did pass to the Lord Admiral or no. And upon Consideration thereof it appeared to us That he had Bona et Catalla Piratorum and also Bono et Catalla depraedata Goods robbâ—d from others which did not pass for two Causes 1. If the King Grant Bona et Catalla Felonum the Patentee shall have the Goods and Chattels of the Felon himself but not the Goods and Chattels which the Felon stealeth from others 2. The Goods taken from Others the King cannot Grant for it appears by the Statute 27 Ed. 3. cap. 8. St. 2. That the Merchant c. so robbed shall be received to prove that the Goods and Chattels belong to him by his Cockâ—â— or other lawful Proof c. the said Goods shall be delivered without any Suit at Common Law But it was Resolved That till such proof be made the King may seize the Goods for Goods of which the property is unknown the King may seize And if they are bona peritura the King may sell them and upon proof c. restore the value And the Owner is not limited to any time by the Statute 31 H. 6. cap. 4. 2 R. 2. cap. 2. 13 Ed. 4. 9 10. a good resolution of the Justices and the Register 179. F. N. B. 114. when a Subject of the King spoiled beyond Sea shall have a Writ c. for to take Goods within England c. Case of Simony Trin. 8 Jacob. Regis It was agreed ad mensam by all the Justices and Barons in Fleet-street That if the Patron for any Money present any Parson to a Benefice with Cure c. then every such Presentation c. thereupon are void though the Presence be not party not privy to it for the Statute intends to punish such wicked avarice and gives the Presentation to the Queen And this per verba Statuti penned strongly enough against corrupt Patrons Proclamations Mich. 8 Jacobi Regis On Thursday the 20th of Sept. 8 Regis Jacobi I was sent for to attend the Lord Chancellor the Lord Treasurer Lord Privy-Seal and Chancellor of the Dutchy the Attorney Sollicitor and Recorder being present And two Questions were moved to me by the Lord Treasurer 1. If the King by his Proclamation may prohibite new Buildings in and about London 2. If the King may prohibite the making of Starch of Wheat The Treasurer said These were preferred to the King as Grievances and against the Law and Justice To which the King Answered That he will conferr with his Privy-Council and Judges and then he will do them right To which I answered That these Questions being of great Importance I did desire that I might have Conference with my Brethren the Judges To which the Chancellor said Every President had first a Commencement and that he would advise the Judges to maintain the Kings Prerogative and where there was no President to leave it to the King and all concluded it should be necessary to confirm the Kings Prerogative with our Opinions To which I answered True it is every President hath a Commencement but when Authority and President is wanting there needs great Considerations before any Novelty be established For I said The King cannot change any part of the Common-Law nor create any offence by his Proclamation But I desired to Confer with my Brethren for Deliberandum est diu quod Statuendum est semel To which Mr. Sollicitor said Dâ—vers Sentences were given
89. But in a Writ of false Judgement the Plaintiff shall have direct averment against what the Judges in the inferior Court have done as Judges Quia Recordum non habent 21 H. 6. 34. Neither shall a Judge in the Cases aforesaid be charged before any other Judge at the Suit of the King 27 Ass pl. 18. 23. 2. R. 3. 9. 28 Ass pl. 21. 9 H. 6. 60. Catlyn and Dyer chief Justices Resolved That what a Judge doth as a Judge of Record ought not to be drawn in Question in this Court Nota bene that the said matters at the Bar were not examinable in the Star-Chamber and therefore it was Decreed by all the Court That the said Bill without any Answer to it by Barker shall be taken off the File and utterly cancelled And it was agreed That the Judges of the Realm ought not to be drawn into question for any supposed Corruption which extends to the annihilating of a Record or tending to the slander of the Justice of the King except it be before the King himself for they are only to make an account to God and the King otherwise this would tend to the subversion of all Justice for which reason the Orator said well Invigilandum est semper multae invidiae sunt bonis And the reason hereof is the King himself being de jure to deliver Justice to all his Subjects and because himself cannot do it to all Persons he delegates his Power to his Judges who have the Custody and Guard of the Kings Oath Thorpe being drawn into question for Corruption before Commissioners was held against Law and he pardoned Vide the conclusion of the Oath of a Judge Stowes châ—oi 18 Ed. 3. 312. Weyland chieâ— Justice of the Common Bench and Hengham Justice of the Kings Bench and other Justices were accused of Bribery and their Causes were determined in Parliament Vide 2 Ed. 3. fol. 27. The Justices of Trayl-Baston their Authority was grounded upon the Statute of Ragman which you may see in old Magna Charta Vide the form of the Commission of Trayle-Baston Hollingshead Chron. fol. 312. whereby it appears That the Corruption of his Judges the King himself examined in Parliamentâ— and not by Commission Absurdum est affirmare recredendum esse non judici Pasch 4 Jacob. Regis Case concerning the Oath ex officio The Lords of the Council at Whitehall sedente Parliamento demanded of Popham chief Justice and my self upon motion of the Commons in Parliament In what cases the Ordinary may examine any person ex Officio upon Oath and upon Consideration and View of our Books we answered the said Lords at another day in the Council Chamber 1. That the Ordinary cannot constrain any man to swear generally to Answer to such Interrogatories as shall be administred unto them but ought to deliver them a Copy of the Articles in writings that they may know whether they ought to answer them by Law or no according to the Course of the Chancery and Star-Chamber 2. No man shall be examined upon the secret thoughts of his Heart or of his secret Opinion but of what he hath spoken or done No Lay-man may be examined ex officio nisi in causis matrimonialibus et Testamentariis as appears by an Ordinance of Ed. 1. Title Prohibition Rastal See also the Register fol. 366. the force of a Prohibition and an Attachment upon it by which it appears That such Examination was not only against the said Ordinance but also against the Custome of the Realm which hath been time of which c. but also in prejudice of the Crown and Dignity of the King and with this agrees F. N. B. fol. 41. And so the Case reported by my Lord Dyer not printed Trin. 10 Eliz. One Leigh an Attorney of the Common Pleas was committed to the Fleet because he had been at Mass and refused to swear to certain Articles and in regard they ought in such case to examine upon his Oath and hereupon he was delivered by all the Court of Common-Pleas The like in Mich. 18 Eliz. Dyer fol. 175. in Hinds Case Also vide de Statute 25 H. 8. cap. 14. which is declaratory as to this point It stands not with the right order of Justice that any person should be convict and put to the losse of his Life good Name and Goods unless by due Accusation and Witnesses or by Presentment Verdict precess of Outlawry c. And this was the Judgment of all the said Parliament See F. N. B. Justice of Peace 72 Lam. 6. in his Justice of Peace 338. Crompton in his Justice of Peace 36. 6. In all which it appears That if any be compelled to Answer upon his Oath where he ought not by Law this is oppression and punishable before a Justice of Peace c. But if a Person Ecclesiastical be charged with any thing punishable by our Law as for Usury there he shall not be examined upon Oath because his Oath is Evidence against him at the Common Law but Witnesses may be cited Register title Consult F. N. B. 53. d. 2 H. 4. cap. 15. In H. 8. nor Ed. 6. time no Lay-man was examined upon his Oath except in the said two Cases But in Queen Maries Reign 2 H. 4. was revived but afterwards repealed 10 Eliz. Note King John in the time of his Troubles granted by his Charter 13 Maii Anno Regni 140. submitted himself to the Obedience of the Pope And after in the same year by another Charter he resigned his Crown and Realm to Pope Innocent and his Successors by the hands of Pandulph his Legate and took it of him again to hold of the Pope which was utterly voyd because the Dignity is an inherent inseparable to the Royal Blood of the King and descendable and cannot be transferred Also the Pope was an Alien born and therefore not capable of Inheritance in England By colour of which Resignation the Pope and his Successors exacted great Sums of the Clergy and Layety of England pro commutandis paenitentiis And to fill his Coffers Pope Gregory the 9th sent Otho Cardinalis de Carcere Tulliano into this Realm to Collect Money who did Collect infinite Sums so that it was said of him Quod Legatus saginatur bonis Angliae which Legate held a Councel at London Anno Dom. 1237. 22 H. 3. and for finding out Offences which should be redeemed with Money with the assent of the English Bishops he made certain Canons among which one was Jusjurandi Calumniae in causis Ecclesiasticis cujus libet de veritate dicendi in spiritualibus quoque ut veritas facilius aperiatur c. Statuimus de Caetero praestari in regâ—o Angliae secundum Canonicas legitimas Sanctiones obtenta in contrarium consuetudine non obstante c. By which Cannon it appears That the Law and Custom of England was against such Examinations so that this was a new Law and took its effect de
Kings Bench because no Writ of Error lyes but in Plaint Robert Bankes Case Mich. 6 Jac. Regis Mich. 6 Jac. Rot. 639. Robert Bankes Gent. brought an Action upon the Statute of Winton 13 Ed. 1. against the Inhabitants of the Hundred of Burnham in the County of Bucks and counted that certain misdoers to the Plaintiff unknown at Hitcham the 22d of Nov. 5 Jac. assaulted the Plaintiff and robbed him of 25 l. 3 5. 2 d. ob and that he immediately after the robbery the same 22d of Nov. at Joplow and Maalow the next Towns to Hitcham in the said County made Hâ—e-and Cry c. and after the said Robbery and within 20 dayes before the purchase of the Writ viz. the 19 of Fâ—br Aâ— 5. at Dorney in Com. praed the Plaintiff before Sir William Gâ—rrard Knight then Justice of Peace in the said County and living next the said Hundred being examined upon Oath according to the Statute 27 Elâ—z the Plaintiff upon his Oath said He knew not the Parties who robbed him and since the said Robbery 40 dayes are past and the said Inhabitants of Burnham have not made him any amends nor the Bodies of the Felons or any of them have taken but suffered them to escape to which the Defendants plead Not Guiley and Vâ— fa. was awarded de vicineto c. And the Jury gave a special Verdict and found that the Plaintiff was robbed and made Hue-and-Cry as aforesaid and found over That the Plaintiff was sworn before Sir William Gerrard as aforesaid and said upon his Oath in these English words viz. That he on Thursday the 22 d. of Nov. 1604. riding under Hitcham wood c. was then and there set upoâ— by Horsemen which he knew not and robbed of 25 l. 3 s. 2 d. ob but whether the said Oath so taken be true according to the said Statute 27 Eliz. the Jurors pray the direction of the Court. Mouses Case Mich. 6 Jac. Regis In an Action of Trespass brought by Mouse for a Casket and 113 l. taken and carryed away the Case was the Ferryman of Gravesend took 47 Passengers into his Barge to pass to London and Mouse was one of them the Barge being upon the Water a great Tempest happened so that the Barge and all the Passengers were in danger to be drowned if a Hogshead of Wine and other pouderous things were not cast out And it was Resolved per totam Curiam That in a case of necessity for saving the Lives of the Passengers it was lawful to the Defendant being a Passenger to cast the Plaintiff's Casket out of the Barge with what was in it for quod quis ob tutelam corporis sui fecerit jure id fecissâ— videtur Upon the special matter pleaded and Reply De injuria sua propria absque tali causa the first day of this Term the Issue being tryed and it was proved directly That the Men had been drowned if the things had not been cast out The Plaintiff was Non-sult Resolved also That though when the Ferry-man surcharge the Barge yet to save the Passengers Lives in such a Necessity it is lawful for the Passengers to cast the things out of the Barge yet the Owners shall have their Remedy upon the surchage against the Ferry-man but if there was no surcharge but the danger came by the Act of God then every one must bear his own losse for Interest Râ—ipub quod homines conserventur â— Ed. 4. 23. Bull. c. 12 H. 8. 15. 28 H. 8. Dyer 36. Mich. 5. Jac. Regis Prohibitions del Roy. Noâ—e On Sunday the 10. of Nov. in this Term the King upon Complaint made by Bancroft Arch-Bishop of Canterbury concerning Prohibitions the King was informed That when Question was made of what matters the Ecclesiastical Judges have Cognâ—zance c. in any Case in which there is not express Authority in Law the King himself may decide in his Royal Person the Judges being but his Delegates c. And the Arch-Bishop said this was clear in Divinity To which it was answered by Mee in the presence and with the clear Consent of all the Justices of England and Barons of the Exchequer that the King in his own person cannot adjudge any Case either Criminal as Treason c. or betwixt party and party concerning Inheritance Goods c. But it ought to be determined in some Court of Justice according to the Law and Custome of England and all Judgments are given Ideo consideratum est per Curium And the King hath his Court in the Upper House of Parliament in which he with his Lords is the Supream Judge over all Judges And in this respect the King is called Chief Justice 20 H. 7. 7. a. by â—rudnel and it appears in our Bookes 2 R. 3. 9. 21 H. 7. 8. that that the King may sit in the Star-Chamber but this was onely to consult not in judicio So in the Kings-Bench but the Court gives Judgment And 't is commonly said in our Books the King is alwayes present in Court and therefore he cannot be Non-suit And it appears by the Acts of Parliament 2 Ed. 3. c. 9. 2 Ed. 3. c. 1. That neither by the Great Seal nor by the little Seal Justice shall be delayed ergo The King cannot take any Cause out of any of his Courts and give Judgment upon it but in his own Cause he may stay it as appears 11 H. 4. 8. And the Judges informed the King that no King after the Conquest ever assumed to himself to give Judgment in any Cause whatsoever which concerned the Administration of Justice within the Realm 17 H. 6. 14. 39 Ed. 3. 14. the King cannot Arrest any man 1 H. 7. 4. Hussey chief Justice Reports being Attorney to Ed. 4. That Sir John Markham chief Justice said to Ed. 4. That the King cannot Arrest a man for suspition of Treason or Felony as his other Leiges may And it was greatly marvailed That the Archbishop durst inform the King that such absolute Power as aforesaid belonged to him by the Word of God Vide 4 H. 4. cap. 22. Westm 2. cap. 5. vide le stat de Marlbridge cap. 1. stat de Magn. Chart. cap. 29. 25 Ed. 3. c. 5. 43 Ed. 3. c. 3. 28 Ed. 3. c. 3. 37 Ed. 3. c. 18. vide 17 R. 2. ex Rotulis Parliamenti in Turri act 10. A controversy of Land between Parties was heard by the King and Sentence given which was repealed because it did belong to the Common Law Then the King said That the Law was grounded upon Reason and that He and Others had reason as well as the Judges To which it was answered by Me That true it was God had endued his Majesty with excellent Science but his Majesty was not learned in the Laws of England and Causes which concern the Life or Inheritance or Goods of his Subjects which are not to be decided by natural Reason but artificial Reason and Judgment of Law which
hath well observed Vide Dyer 298. vide le Stat. 27 Eliz. Pasch 9 Jacobi Regis Sir William Chancâ—ys Case In this Term Sir William Chancy having the priviledg of this Court and being a Prisoner in the Fleet was brought to â—he Bar by Habeas Corpus by the Guardian of the Fleet who returned That the said Sir William was committed to the Fleet by Warrant from the High-Commissioners in Ecclesiastical Causes which Warrant follows in these words viz. These are to Will and Require you in his Majesties Name by Vertue of his Hâ—gh-Commission c. to Us and others directed c. That herewithal you take and receive into your Custody the Body of Sir William Chancy Knight whom we will that you keep c. untill further Order c. letting you know the cause of his Committment to be for that being at the Suit of his Lady convented bâ—fore c. for Adultery and expelling her from his Company and Co-habiting with another Woman without allowing her any competent Maintenance and by his own Confession convict thereof he was thereupon enjoyned to allow his Wife a competent Maintenance c. and to perform such Submission and other order for his Adultery as by Law should be enjoyned him which he expresly refused to do in contempt c. Given at London 19 Martii 1611. subscribed Henry Mountague George Overall Thomas Morton Zach. Paâ—field And it was moved by Nicholas Serjeant a Councel with Sir William that this return was insufficient 1. Because Adultery ought to be punished by the Ordinary and not by the High-Commâ—ssioners on which the Offender is remediless and can have no appeal Quod fuit concessum per Coke Warberton and Foster but Walmesly doubted of Adultery 2. That by force of the Act of the 1. of Eliz. the High-Commissioners cannot imprison Sir William for Adultery nor for denying Alimony to his Wife And Doderidge the Kings Sâ—rjeant of Council on the other side did not defend the Imprisonment to be lawful And it was clearly agreed by Coke Walmesly Warberton and Foster That the Commissioners had not power to imprison in this Case And Walmâ—sly said That though they have used this Power for twenty years without any exception yet when it comes before them judicially they ought to Judge according to Law and upon this Sir William Chancy was Bailed And it was resolved per totam Curiam That when it appears upon the Return that the Imprisonment is not lawful the Court may discharge him of Imprisonment Also it was Resolved That the Return was insufficient in form 1. It is not shewn when the Adultery was committed 2. He was enjoyned to allow his Wife a competent Maintenance without any certainty and to perform such submission c. as by Law shall be enjoyned which is all infuturo and uncertain Vide in my Treatise at large the Reasons and Causes why the High-Commissioners may sue and imprison Vide Pasch 42 Eliz. Rot. 1209. Pasch 9 Jacobi Regis Empringham's Case In this Term a Case was moved in Star-Chamber upon a Bill exhibited by the Attorney-General against Robert Empringham Vice-Admiral in the County of York Marmaduke Ketthewell one of the Marshals of the Admiralty and Thomas Haâ—rison an Informer in the same Court for Oppression and Extortion in Fining and Imprisoning divers of the Kings Subjects in the said County which no Judge of the Admiralty can justifie because it is not a Court of Record but they proceed according to the Civil Law and upon their Sentence no Writ of Error lyeth but an Appeal Also the said Empringham hath caused divers to be cited to appear before him for things done in the Body of the County which were determinable by the Common Law and not before the Admiralty whose authority is limited to the High Sea And for these and other Oppressions they were fined and imprisoned and sentenced beside to make Restitution c. Trin. 9 Jacobi Regis Memorandum That upon the Thursday before this Term all the Justices of England by the Kings Command were assembled in the Council-Chamber at Whitehall where was Abbot Archbishop of Canterbury and with him two Bishops and divers Civillians the Archbishop complained of Prohibitions out of the Common-Pleas and delivery of Persons by Haheas Corpus but chiefly of Sir William Chancy I defended our proceedings according to my Treatise thereof which I delivered before the High-Commissioners And after great dispute between the Archbishop and Me at last he said He had a Point not yet touched upon in my Treatise which would give satisfaction to the Lords and Us also and upon which he would rely And that the Clause of Restitution and Annexation viz. And that all such Jurisdictions c. Spiritual and Ecclesiastical as by any power Spiritual hath heretofore or hereafter lawfully may be used c. for visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and of all Errors Heresies Schismes c. shâ—ll for ever by authority of this present Parliament be united and annexed to the Imperial Crown of this Realm And it was said That H. 8. and Ed. 6. did give Power by their Commissions to divers to impose Mulcts c. in Ecclesiasticall Causes c. and upon this he concludes That this having been used before 1 Eliz. this is given to Queen Eliz. and her Successors Also inasmuch as by 2 H. 4. and 2 H. 7. the Jurisdiction Ecclesiastical may Fine and Imprison in particular Causes therefore Power to Fine and Imprison in all Ecclesiastical Causes is given to the King And this he said he uttered that it might be answered 1. To which I for a time gave this Answer That it was good for the Weal-publick that the Judges at the Common-Law should interpret the Statutes within this Realm 2. It was said by me That before the Statute of 1 Eliz. no Ecclesiastical Judge may impose a Fine or Imprison for any Ecclesiastical or Spiritual Offence unless there be Authority by Act of Parliament And this was so affirmed by all the Justices Vide my Book of Presidents the Commission at large to Cromwel to be Vicegerent Afterwards in this very Term the Privy-Council sent for the Justices of the Common-Pleas only and there the Reasons of the said Resolution were largely debated and strong Opposition made hy Egerton Lord Chancellor but the Justices of the Common-Pleas remained constant in their Resolution Afterward the Council sent for the chief Justice of the Kings Bench Justice Williams Justice Crook Chief Baron Taâ—field Snig Althan and Bromly who were not acquainted with the Reasons of the said Rule of the Common-Pleas nor knew why they came before the Council And hearing the Lord Chancellor affirm That the High-Commissioners have alwayes by the Act 1 Eliz. imposed Fines and Imprisonments for exorbitant Crimes without any Conference with us or among then selves or hearing the matter debated were of Opinion with us And after at another day this
holden That if one were to sit in the Chancel and hath there a place his Carpet Livery and Cushion the Parson cannot claim them as Oblations for that they were hanged there in honour of the Deceased the same Reason of a Coat-Armour c. And the Chief Justice said the Lady might have a good Action during her Life in the Case aforesaid because she caused the things to he set up there and after her death the Heir shall have his Action they being in the nature of Hire-looms which belong to the Heir And with this agrees the Laws of other Nations Bartho Cassanâ—us sol 13. Coâ—cl 29. Actioâ— dat si aliquis arma in aliquo loco posita deleat aut abrasit c. and in 21 Ed. 3. 48. in the Bishop of Carlisle's Case Note That in Easter Term 10 Jacob. it was Resolved in the Star-Chamber in the Case between Hussâ—y and Katharine Leyton that if a man have a house in any Parish and that he and all those whose Estate he hath have used to have a certain Pew in the Church that if the Ordinary will displace him he shall have a Prohibition but where there is no such Prescription the Ordinary shall dispose of common and vulgar Seats Earl of Shrewes buryes Case Sir Humphry Winch Sir James Ley Sir Anthony St. Leger and Sir James Hullesâ—on certified the Lords of the Councel by Command from them by Letters dated 28. Martii 1612. of the Claim of Gilbert Earl of Shrewesbury to the Earldome of Waterford and Barony of Dungarvan in Ireland as followeth King Henry the Sixth by Letters-Patents in the 20th year of his Reign did Grant to his Cosin John Earl of Shrewsbury in consideration of his Loyal Services in the City and County of Waterford pro se c. ipsum in Comitem Waterford una cum stilo et titulo ac nomine ac honore eisdem debitis ordinamus creamus habendum to the said Earl and his Heirs-males of his Body and further did Grant the Castles Lordships c. of Dungarvan to the said Earl and the Heirs-males of his Body To hold c. of the King and his Heirs by Homage and Fealty and by the Service of being his Majesties Seneschal in Ireland After in the Parliament called Des Absentees holden at Dublin in Ireland 10. Maii 28 H. 8. It was enacted by reason of the long absence of George Earl of Shrewesbury out of the said Realm That the King his Heirs c. shall enjoy in right of his Crown of England all Honors Mannors Castles c. and all and singular possessions c. as well Spiritual as Temporal which the said George Earl of Shrewesbury and VVaterford or any other Persons had to his Use c. King Henry the 8th by his Letters Patents dated 29th of his Reign reciting the said Statute Nos praemissa Considerantes c. did Grant to the said Earl and his Heirs the Abbey of Rufford with the Lands thereunto c. in the County of Nottingham and the Lordship of Rotheram in the County of York the Abbeys of Chestersteld Shirbrook and Glossaâ—dale in Derbyshire with divers other Lands c. to be holden in Capite And the Questions were as followeth 1. Whether by the long absence of the Earl of Shrewsbury out of Ireland the Title of the Honor be lost and forfeited he being a Peer of both Realms and refiding here in England 2. Whether by the Act Des absentâ—es 28 H. 8. the Title of Dignity of Earl of VVaterford be taken from the said Earl as well as the Land c. Afterwards by other Letters Patents dated 27th of Sept. 1612. the two Chief Justices and Chief Baron were required to consider of the Case and to certifie their Opinions which Case being argued by Councel learned in the Law in behalf the said Earl and they having taken great advisement It was unanimously Resolved by them all as followeth 1. As to the fiâ—st Resolved That since it does not appear what defence was requisite and that the Consideration Executory was not found by Office to be broken in that Point the said Earl of Shrewsbury notwithstanding does remain Earl of Waterford 2. As to the second It was Resolved That the said Act 28 H. 8. Des Absenteâ—s does not onely take away the Possessions given him at his Creation but also the Dignity it self for though one may have a Dignity without Possession yet is it very inconvenient that Dignity should be cloathed with Poverty and so it was resolved in the Lord Ogles Case in Edw. 6. Reign as the Baron of Burleigh 35 Elâ—z did report The cause of Degradation of George Nevil Duke of Bedford is worth observation which was done by Act of Parliament 16 June 17 Ed. 4. which Act reciting the making the said George Duke sets forth the cause of his Degradation in these words And for so much as it is openly known that the said George hath not or by Inheritance may have any livelyhood to support the said Name Estate and Dignity c. Therefore the King by Advice of his Lords Spiritual and Temporal and Commons c. Enacteth c. That from henceforth the same Creation of the said Duke and all Names of Dignity given to the said George or to John Nevil his Father be void and of none effect Wherein are to be observed 1. That though the Duke had not Possessions to maintain his Dignity yet it could not be taken from him but by Act of Parliament 2. Great Inconveniencies follow where there is great State and Dignity and no means to maintain it 3. It is good reason to take away such Dignity by Act of Parliament and then the Act shall be expounded to take away such Inconvenience And though the Earl of Shrewsbury be of great Honour Vertue and Possessions in England yet it was not the Intention of the Act to continue him Earl in Ireland when his Possessions there were taken away And where it was objected that the general words Honours and Hereditaments are explained and qualified by the said Relative subsequent which the said George or any to his use hath Now in regard no man can be seized of the said Digniâ—y therefore the Act doth not extend to it 'T is answered that is to be understood Reddendo singula singulis and these words which the said G. E. hath are sufficient to pass the Dignity and with this agrees all the Judges Opinions in England in Nevils Case upon the like in the Statute 28 H. 8. in 7th Part of my Reports sol 33 and 34. Hill 2 Jacob. Regis Jurisdiction of the Court of Common-Pleas In the last Term by the King's Commands the Justices of the Kings Bench and Barons of the Exchequer were assembled before the Lord Chancellor Ellesmere at York-house to deliver their Opinion Whether there was any Authority in our Books that the Justices of the Common-Bench may grant Prohibitions or whether every Plea ought to be pending
in the Court for such cause And the King would know their Opinions The Judges took time till this Term and then Fleming Chief Justice Tanfield Chief Baron Saig Altham Crook Bromley and Dodderidge Yelverton and Williams Justices being dead since last Term did deliver their Opinions to the Lord Chancellor That the Presidents of each Court are sufficient Warrant for their Proceedings in the same Court and for a long time and in many Successions of Reverend Judges Prohibitions upon Information without any other Plea pending have been granted Issues tryed Verdicts and Judgments given upon Demurrer All which being in force they unanimously agreed to give no Opinion against the Jurisdiction of the Common-Bench in this Case See my Treatise of the Jurisdiction of the Common-Bench in this Point Hill 10 Jac. Regis Parliament in Ireland The Lords of the Councel did write to the two Chief Justices and Chief Baron to look into Poynings Act made 10 H. 7. in Ireland and to consider thereof and certifie what shall be fit to be held concerning the same their Letter bore date Ultimo Janii 1612. Upon which in this Term the said Chief Justices Chief Baron Attorney and Sollicitor General were assembled two days at Sergeants Inne And they considered not onely of the said Act 10 H. 7. c. 4. called Poynings Act but also of an Act made in Ireland 3 4 P. M. c. 4. Entituled An Act declaring how Poynings Act shall be expounded and taken for by the said Act 10 H. 7. it is provided That no Parliament be hereafter holden in Ireland but when the Kings Lieutenant and Councell there first certifie the King under the Great Seal of that Land the causes c. and such causes c. affirmed by the King and his Councel to be good and expedient for the Land and his Licence thereupon c. A Parliament to be holden after the former before c. And any Parliament holden contrary c. to be void in Law Upon which Act divers Doubts were conceived 1. And first Whether the said Act 10 H. 7. does extend to the Successors of H. 7. the Act speaking onely of the King generally and not his Successors 2. If the Queen Mary were within the word King and both were held affirmatively for the word King being spoke indefinitely does extend in Law to all his Successors And this is so expounded by the Act 3 and 4 P. and M. viz. That the said Act 10 H. 7. shall extend to the King and Queens Majesty her Heirs and Successors Secondly where Povnings Act sayes the Kings Lieutenant and Councel the said Act 3 and 4 P. and M. explains it to extend to all other Officers the King shall Depute by what Name soever 3. The greatest Doubt was upon these words of Poynings Act And such Causes Considerations and Acts affirmed by the King and his Councel to be good and expedient for the Land c. Whether the King may make any change or alteration of the Causes c. which shall be transmitted hither from the Lieutenant and Councel of Ireland for that it is not affirmative but correction and alteration of them and therefore it was necessary to explain that the Act 3 and 4 P. and M. was in these words Either for the passing of the said Acts and in such form and tenor as they should be sent into England or else for the change or alteration of them or any part of them 4. Another Doubt arose from these words That dâ—ne a Parliament to be had If at the same Parl. other Acts which have been affirmed or altered here may be Enacted there which is explained by the said last Act in these words viz. For passing and agreeing upon such Acts and no others as shall be returned c. 5. A fifth Doubt arose from the same words Whether the Lieutenant and Councel of Ireland after the Parliament begun and pendente Parliamento may upon debate there transmit any other Considerations c. the which said Act 3 and 4 P. and M. is by express words explained they may And it was unanimously Resolved That the Causes Considerations and Acts transmitted hither under the Great Seal of Ireland ought to be kept in the Chancery in England and not be remanded 2. Iâ— they be affirmed they must be transcribed under the Great Seâ—l and so returned into Ireland 3. If the Acts transmitted hither be in any part altered or changed here the Act so altered must forthwith be returned under the Great Seal of England for the Transcript under the Irish Great Seal to remain in Chancery here shall not be amended but the Amendment shall be under the English Great Seal See 10 H. 6. 8. which begins Mich. 18 H. 6. Rot. 46. coram Rege how a Parliament was holden there before Poynings Act. See also another Act made in Ireland the same 10 H. 7. c. 22. vide R. 3. 12. Hibernia habet Parliamenta faciunt leges nostra statuta non ligant â—os quia non mittunt milites ad Parliamentum sed personae coâ—um sunt subjecti Regis sicut inhabitantâ—s Calinae Gascogniae Guienae But question is made of this in some of our Books vid. 20 H. 6. 8. 32 H 6 25. 1 H. 7. 3. 8 H. 7. 10. 8 R. 2. Precess 204. 13 Ed. 2. Tit. Bastard 11 H. 47. 7 Ed. 4. 27. Plow Comment 368. 13 Eliz. Dyer 35. 2 Eliz. Dyer 366. Calvins Case 7th of my Reports 226. 14 Ed. 3. 184. A Prâ—bend in England made Bishop of Dublin in Ireland his Prebendary is voâ—d See the Sâ—atute of Ireland c. That the Acts of Parliament made in England since the 10 H. 7. do not hind them in Ireland but all made in England before the 10 H. 7. by the Act made in Ireland 10 H. 7. c. 22. do bind them in Ireland Note Cambden King at Arms told me that some held if a Baron dyes having Issue divers Daughters the King confer the Dignity to him who marryes any of them as hath been done in divers Cases viz. In the case of the Lord Cromwel who had Issue divers Daughters And the King did confer the Dignity upon Burchier who marryed the youngest Daughter and he was called Cromwel and so in other Cases Note by Linwood it appears by the Canons Ecclesiastick none may exercise Ecclesiastick Jurisdiction unless he be within the Orders of the Church because none may pronounce Excommunication but a Spiritual Person But now by the 37 H. 8. c. 17. a Doctor of Law or Register though a Lay-man may execute Ecclesiastical Jurisdiction No Ecclesiastical may cite a Church-Warden to the Court but so as he may return home the same day Also the Canons limit how many Courts Ex Officio they may have in a year Mich. 11 Jac. Regis Note If a man give to one of his Children a certain sum in his life and after dyes though this is not given as a Child 's full Portion yet it
THE RESOLUTIONS Of the JVDGES upon the several STATUTES Of Bankrupts As also The like Resolutions Upon 13 Eliz. and 27 Eliz Touching Fraudulent CONVEYANCES By T. B. Esq LONDON Printed for T. Twyford and are to be sold by Hen. Twyford and other Booksellers 1670. Pasch 4. Jacobi Regis Ford and Sheldon's Case upon Information in the Exchequer for the King THomas Ford a known Recusant bâ—fore the 23 of Eliz. for money lent to Sheldon some before and some after the said 23 Eliz. took Recognizance in the Names of others and also a Rent-charge to them in Fee with a Clause of Redemption by Deed the Condition of the Recognizance being for performance of the Covenanss in the Deeds and afterward was made the Statute of the 28 Eliz. which was That as often as any Failer was made in the payment of 20 l. a Month that so often the Queen by Process out of the Exchequer might take and enjoy all the Goods and two Parts c. And after the said Act Ford lent the several Sums of Money and took the Securities as aforesaid amounting in all to 21000 l. which being to Ford's use were all forfeited Afterwards 41 Eliz. was Convict of Recusancy and did not pay the 20 l. a Month If the King should have the Bâ—nefit of these Recognizances and Securities was the Qâ—estion 1. Upon Debate it was objected by Ford's Councel That the Recognizances had not been Forfeited though they had been made in Ford's Name the Statute speaking onely of Goods which doth not include Debts As if the King grant all the Goods of J. S. coming to him by Attainder the Patentee shall not have Debts And a Penal Law shall not be extended by Equity Obj. 2. That three Recognizances are not within the Intention of the Act being Savers of the Realty and acknowledged to perform Covenants as to the Rent-charge Ob. 3. No Fraud was in the Case And then no Statute being in this Case the Common-Law gives no benefit to the King As if Cestuy que use had been Attaint of Treason the Use being but a Trust could not be forfeited to the King And it not a Use A multo fortiori a meer Trust Ob. 4. What Forfeiture accrues to the King in this Case must be by force of the words Goods in the Statute which cannot be Ford having no Goods but a meer Trust Also one Recognizance was taken in the Names of others before the Stature and therefore cannot be thought to defeat the King of a Forfeiture which was not then in use Resolved 1. By all the Barons and Popham Chief Justice of England and divers other Justices that Personal Actions are as well included within this Word Goods in an Act of Parliament as Goods in Possession But because by Law things in Action cannot be granted over therefore by General Grant without special words can never pass And where the Statute saith Shall take seize and enjoy all the Goods and two parts c. the King may well enjoy a Debt due to a Recusant and by Process out of the Exchequer Levy it and so take and seize refers to Goods and two Parts of Lands in Possession Resolved 2. That it was Originally for the Loan of Money and both the Recognizance and Annuity were to secure the said Money And Recognizances fotfeited are but Chattels Personal Resolved 3. There was Covin apparent for he being a Recusant always as aforesaid and so chargeable to the King his taking the Recognizances in the Name of others shall be Construed with an Intent to prevent the King of his Forfeiture And so shall all Recognizances taken in others Names after the said Act be presumed to be taken As to Ceâ—â—uy que use who neither hath Jus in Re nor Jus ad Rem true it is he cannot Forfeit but an Act done to defraud the King of his lawful Duty the King shall not be barred thereof per obliquum if the Act was made de directo And for this If a man outlawed buy Goods in the Names of others the King shall have them notwithstanding So if an Accountant to the King purchase Lands in others Names yet the King shall sâ—ze those Lands for Money due to him And this appears by Walter Cherton's Case Trin. 24. Ed. 3. Rot. 4. in Scaccario for Reâ— fallere non vult falli autem non potest See another President Trin. 24. Ed. 3. Pot. 11. Resolved 4. Noâ—resert Whether the Duty do accâ—ue to the King by the Common-Law or by the Statute And though one of the Recognizances was taken before the Statute of the 28 of Eliz. yet that was to his use And though Ford was not Convict till the 41 of Eliz. that is not material for he was subject to a Forfeiture before Pasch 4 Jac. In Chancery 27 Junii 29 Eliz. The Case between the Lord St. John of Bletso and the Dean of Gloucester The Lord St. John brought a Quare Impedit in the Common-Pleas against the Defendant for the Church of Penmark in the County of Glamorgan which Suit was staid by Aid prayer and the Record removed into the Chancery The Plaintiff moved for a Procedendo and upon Oyer of Cause before Sir Thomas Bromley Lord Chancellor in the presence of Sir Gilbert Gerrard Master of he Rolls and Shute and Windham Justices and Popham Attorney and Egerton Sollicitor of the Queen the Plaintifâ— shewed a Gift in Tail of the said Advowson made to his Anc stor in 18 R. 2. and a Verdict for the same in 12 H. 8. and a presentation by his Grandfather to the said Church of a Clerk that was admitted instituted inducted and had possession divers years with other matters to prove the Plaintiffs Tâ—tle yet for that the Defendant and those from whom he claimes had time out of mind possessed the said Parsonage as Impropriate And for that it will be a dangerous President to all Owners of Impropriations It was Resolved by the Court of Chancery by the advice of the Justices and Councel Learned by the Queen aforesaid That no Procedendo in loquela be granted Vide Ridley fol. 153 154. the beginning of Appropriations and Annuities to be discharged of Tythes Vide ibid. 155. That the Saxon Kings appropriated eight Churches to the Monastery of Croyland Trin. 37 Eliz. In the Exchequer Chamber Crimes and Smith The Abbot of Sulby held the Parsonage of Iubbenhâ—m in Leicestershire to his proper use which as impropriate came to H. 8. by the dissolution of Monasteries 31 H. 8. who in the 37th year of his Reign granted it in Fee-Farm under which Grant the Plaintiff claimed The Defendant obtained a Presentation of the Queen and to destroy the said Impropriation shewed the Original Instrument of it 22 Ed. 4. with Condition in it That a Vicaridge should be competently endowed which was alledged never to be done But for that the Rectory was reputed and taken to be appropriate and a Vicar presented admitted instituted and inducted as a Vicar
lawfully endowed and paid his first Fruits and Tenths Resolved by all the Court that it shall be presumed that the Vicaridge was lawfully endowed And that it is a dangerous President to examine Originalls of Impropriations and Endowments of Vicaridges for that they may perish And so it was decreed for the Plaintiff Hill 4. Jac. Regis Bedle and Beard Anno 31. Ed. 1. The King being seized of the Mannor of Kâ—mbolton to which the Advowson of the said Church was appendant by Letters Patents granted the said Mannor wish the Appâ—â—tenances to Humphry de Bohun Earl of Hereford in tayl generall Humphry de Bohun the Issue in tayl by his Deed. 4 Ed. 3. granted the said Advowson then full of an Incumbent to the Prior of Stonely and his Successors And at next avoydance they held In proprios usus Upon this Appropriation Concurrentibus his quae in jure requiruntur the Prior and his Successors held the same till the dissolution of the Monastery 27. H. 8. The said Mannor descended to Edward Duke of Buckingham as Issue to the Estate Tayl. And the Reversion descended to H. 8. The Duke 13 H. 8. was attaint of High Treason 14 H. 8. The King granted the said Mannor c. with all Advousons appendant c. to Richard Wingfield and his Heirs Males 16 H. 8. It was Enacted that the said Duke forfeit all Mannors c. Advousons c. which he had c. in 4 H. 8. The King 37 H. 8. granted and sold the said Rectory of Kimbolton as impropriate in Fee which by mean conveyance came to the Plaintiff for 1200 li. 37 Eliz. Beard the Defendant got a Presentation of the Queen by Lapse pretending the said Church was not lawfully impropriate to the Prior. 1. For that Humphry who granted to the Prior had nothing in it nothing passing to his Ancestor by these words Manâ—rium cum pertinentiis 2. Or for that having no more but an Estate Tayl by his death his Grant was void But Resolved by the Lord Chancellor Ellesmere with the principal Judges and upon consideration of Presidents that the Plaintiff shall enjoy the Rectory for though by any thing which can now be shewn the Impropriation is defective yet it shall be now intended in regard of the antient and continual possession that there was a lawfull grant of the King to the said Humphry who granted in Fee so that he might lawfully grant it to the said Priory Omnia pâ—â—sumitur Solâ—mniter esse acta And all shall be presumed to be done which might make the antient Impropriation good And antient Grants and Acts shall not be drawn in question though they cannot be shewn for Tempus edâ—x rerum Letters Patents and Writings may consume be lost or imbezilled And therefore the Church was allowed to be rightfully impropriate and the rather in regard of the antient and long possession of the Owners of the said Rectory Mich. 4. Jac. Regis Case of Forfeiture by Treason Hill 43 Eliz. A Case was moved to all the Justices Tenant in Tayl before the Statute of 27 H. 8. made a Feoffment in Fee to the use of himself and his Wife in Tayl. And after the said Statute the Husband was attaint of High Treason 31 H. 8. and dyed The Wife continued in possession and dyed their Issue enter and die and this descends to his Issue and all this found by Office The Question was if the Issue in Tayl or the King shall have the Land 1. And it was objected that the antient Estate Tayl cannot be forfeited because it was discontinued and such right of Action cannot be forfeited As was agreed in the Marquess of Winchesters Case 2. The Feoffor himself in this Case had not any right to the antient Estate Tayl it being extinguished by his Feoffment and therefore by his Attaint could not forfeit what he had not 3. The Issue in Tayl in remitted to that antient right which cannot be forfeited And the new Estate Tayl derived under the discontinuance which may be forfeited by the Statute 26 H. 8. cap. 13. is continued and by Act in Law viz. the discent and remitter avoided And the Kings Estate may be divested out of the King by remitter As if Tenant in Tail grant Land to the King c. and the King grant the Land to the Tenant in Tail for life the remainder to his Son and Heirs for life Tenant for life dies the Issue by and in Law is remitted and the Kings Estate is divested out of him This accords with Plow Com. 489. Nicols Case 1. Resolved that in this Case the Issue in Tail is barred for though right of Action cannot be given to the King by the 26 H. 8. yet when Tenant in Tail discontinues his Estate to the use of himself in Tail and after is attaint of Treason now by that Statute he doth not onely forfeit the new Estate in Tail but by this the right of the antient Estate is barred for ever And so note out of the said Statute a diversity between a naked right of Action not forfeitable and an Estate of Inheritance forfeiâ—able coupled with an antient right for which the Forfeiture of the possession is barred by the said Act And iâ— is not like the Case in Plow Com. of Remitter for this is no barre of an antient right Pasch 4 Jac. Regis Case at a Committee aoncerning Bishops At this Parliament held Pasch 4 Jac. Regis It was strongly urged at a Grand Committee of Lords and Commons in the Painted-Chamber that such Bishops as were made after the first day of the Session were not lawful Bishops 1. Admitting them Bishops yet the manner and form of their Seals Stiles Process and Proceeding in their Ecclesiastical Courts were not consonant to Law Because by the Statute 1 Ed. 6. cap. 2. it is provided That thenceforth Bishops should not be Elective but Donative by Letters-Patents of the King And for that at this day all Bishops were made by Election not Donation of the King therefore the saâ—d Bishops are not lawful 2. By the same Act it is provided That all Summons c. and Process in Ecclesiastical Courts shall be made in the King's Name and Stile and their Seals Engraven with the Kings Arms and Certificates made in the Kings Name It was therefore concluded Thâ—t the said Statute being still in force by Consequence all Bishops made after the Act 1 Jac. were not lawful Bishops And the Proceedings being in the Name of the Bishop makes them unlawful Quia non obserâ—ata forma infertur adâ—ullatio actus Upon Consideration had of these Objections by the Kings Commandment it was Resolved by Popham Chief Justice of England â—nd Coke Attorney of the King and after affirmed bâ— the Chief Baron and the other Justices Attendant to â—he Parliament that the said Act of the 1 Ed. 6. cap. 2. is not now in force being repealed annulled and annihlated by three several Acts of Parliament Any whereof being
in force it makes that Act of 1 Ed. 6. that it cannot stand Quia Leges Posteriores Priores contrarias abrogant And by the Act of the 25 H. 8. cap. 20. Is set forth the manner of Election and Consecration of Archbishops and Bishops And also for the making and execution of all things which belongs to their Authority within which words the Stile and Seal of their Courts and the manner of their Proceedings are included Which Act of 25 H. 8. is revived by 1 El. cap. 1. and consequently that of 1 Ed. 6. cap. 2. is repealed It appears by our Books if a Deacon or Priest take a Wife their Marriage is voidable not void for they had not vowed Chastity Otherwise of a Monk or a Nun. And this appears 5 Ed 3. Title Nonability 26. 19 H. â— Title Bastardy 33. 21 H. 7. 39. 6. Mich. 4. Jac. Regis Case of the Stannaries It was Resolved this Term in the Star-Chamber That the King had not the Emption of Tin in Cornwal by his Prerogative for Stanni nec plumbi fodina c. or other sase Mineb belong not to the King by his Prerogative but to the Subject Owner of the Land But the Emption of Tin in Cornwal belongs to the King as an antient Right and Inheritance for though now a Reason cannot easily be rendred of things done time out of mind yet it may well be that all the Land in that County was the King Demesne and upon Grant of the Land the King reserved the Mines to himself These Tin Mines being of great Antiquity as appears Ex Diodoro Siculo Et certo certius est That all the Land in England is derived mediately or immediately from the Crown and therefore such a Profit may have a reasonable Commencement Usage also allowing it to the King for all Cornwal was within the King's Forest which by King John was disafforested as by Cambden appears And it is evident that before 33 Ed. 1. all the Tin in Cornwal and Devon also was the Kings whoever owned the Land And this is proved by divers Records and by an antient Charter of King John among the Bishop of Exeters Records In haec verba Johannes Dei Gratia Rex Angliae c. Omnibus Bâ—llivis salutem Sciatis quod intuitu Dei pro salute animae nostrae c. dedimus c. Deo Ecclesiae Beati Petri Exon venerabili Patri Simoni Exon. Episcopo successoribus c. decimam de antiqua firma Stanni in Com. Devon Cornub. Habendum sibi successoribus c. cum omnibus libertatibus liberis consuetudinibus ad eam pertinentibus per manus illius vel illorum qui stannaria habuerint in custod c. Rex Roberto de Courtney salutem Mandâ—mus vobis quod sine dilatione difficultate aliqua habere facietis Dominae Johannae Reginae matri nostrae stannaria Com. Devon c. Paten 1 H. 3. H. 4. Rex concessit Johanni filio Richardi stannaria in Cornubia reddendo 1000 marks 4 H. 3. Fines 5 H. 3. Rex c. Sciatis quod concessimus Richardo dilecto fratri nâ—stro stannariam nostram Cornubiae cum pertinen Prohibiting Tin to be transported without the said Richards Licence 10 H. 3 M. 9. See also 10 Ed. 2. Inqui. 2. Nu. 29. There are two several Charters both dated 10 April 33 Ed. 1. One ad emendationem stannariarum nostrarum in Cornub. The other Ad emendationem stannariarum nostrarum in Devon That of Cornwall hath these word Concessimus eisdem stannatoribus quod fodere possint stannum et turbus ad stannum fundendum ubisque in terris nostris et vastis nostris et aliorum quorumcunque in Com. praedict et Aquas et aquarum cursus divertere ubi et quoties opus fuerit c. ad sundaturam stanni sicut Antiquitus coâ—suâ—vit sine impedimento nostro seu aliorum quorumcunque Ac quod omnes stannatores nostri praed totum stannum suum ponderatum c. licitè vendere possint cuicunque voluerint faciendo nobis et haeredibus nostris Cunageum et alias Consuetudines debitas nisi nos vel haerede nostri stannum illum emere volumus This was confirmed 4 Ed. 2. And also 1 17 Ed. 3. De Advisamento consilii nostri ordinavimus quod stannum in Com. Cornub. et Devon ad opus nostrum capiatur pro defensione regni nostri c. Et ad partes marinas celeriter mittatur c. Ita quod hominibus quibus stannum illum capi contigerit de pretio ejusdem stami ad certos terminos solvend sufficiens securitas per nos fiat Assignavimus vos c. ad capiend ad opus nostrum totum stannum in Com. praed Cunitum et etiam Cuniend cum cunitum fuerit with Authority to take Carriages and Commandment to the Sheriff to pay for the same Rot. Amlâ—yne An. 12. R. 2. part 1. Edward the black Prince grant and the King 21 E. 3. confirmed to Tydman of Lymberge Cunageum Stannariae c. nec non emptionem totius Stanni c. infra c. pro fine mille marcarum et reddendo 3500 marcas The like done to one Brockhouse 7 Ed. 6. The Charter of 33 Ed. 1. was confirmed 8 R. 2. 1 Ed. 4. 3 H. 7. The 11 H. 7. a certain weight and measure was ordained to be used through England yet the weights belonging to the Carriage of Tin were excepted in that Statute The Stile of the Court of Stannaries is Magna Curia Domini Regis Ducatus sui Cornub. apud Cockerenton in Com. Devon Johanne Comite Bedford Custode stannar dicti Domini Regis aut Reginae in dicto Com. Devon By which it appears that all the Tin belonged to the King For the Antiquity of Tin Mines in Cornwall see Camdâ—n in Cornwell 121. And Diodorus Siculus L. 5. c. 8. fo 142. 6. Upon which it was resâ—lved 1. That the King hath all the Tin as well in the Subjects Lands as his own 2. It is absurd for the King to reserve Emption of his own Tin 3. The King grants Stannatoribus divers liberties which are enjoyed by the Tinners as well in the Subjects Lands as the Kings own In the Session of Parliament hâ—ld in Decemb An. 4. Jac. Regis Case of the Kings Prerogative in Saltpeter All the Justices viz. Popham Chief Justice of England Coke Chief Justice of the Common Pleas. Fleming Chief Baron Fenner Searle Yelverton Williams and Tanfield Justices met at Sergeants Inne to consult what Prerogative the King had in digging and taking of Saltpeter to make Gunpowder by the Law And upon conference between them these points were resolved by them all 〈◊〉 voce 1. That in as much as Gunpowder concerns the defence of the Realm and insomuch as Saltpeter whereof Gunpowder is made is within the Realm the King shall not be driven to buy it but may take it according to the Limitations following 2. That
though the King cannot take the Trees of his Subject growing upon his Freehold nor Gravel in the Inheritance of his Subject for reparation of his houses as 11 H. 4. 28. Yet 't is resolved that he may dig for Saltpeter because the Kings Ministers who dig for the same are bound to leave the Inheritance of the Subject in as good plight as they found it which they could not do if they should cut the Timber growing which would be to the Subjects disinherison The Case of Gravel for reparation of the Kings Houses may not be compared to this for Saltpeter extends to the defence of the whole Realm not so the reparation on of the Kings Houses 13 H. 4. The King may charge for Murage of a Town And so for Portage but not for making a Wall about his own House When Enemies invade the Realm it is lawful to come upon any Land adjoyning to the invaded Coast to make Trenches or Bulworks 8 Ed. 4. 23. And in such Cases they may dig for Gravel 3 H. 8. fo 15. And in this Case the Rule is true Princeps et republica ex justa causa possunt rem mean auferre 3. Resolved That the taking of Saltpeter is a purveyance of it for the making of Gunpowder for the necessary defence of the Realm And therefore is an incident inseparable from the Crown and ought to be taken onely by the Kings Ministers and not converted to any other use then the defence of the Realm And 't is not like Silver or Gold Mines for there the King hath Interest in the Mettall and may dig Quia quando lex alicui concedit aliquid Concedere videtur id sine quo res ipsa esse non potest Vide Plow Com. in le Case de Mynes so the King may dig for Treasure Trove eadem ratione 4. The Ministers of the King cannot undermine weaken or impair any the Walls of Foundations of any Houses or Buildings whatsoever Nor dig in the Flore of a Mansion-house which serves for the Habitation of a man because it is his place of refuge and defence There are two notable Presidents that the King by his Prerogative had power to prohibit Depopulation and provide for Habitation The one in the 43 Ed. 3. Rot. claus in turri num 23. provillade Southampton The other An. 21. R. 2. in dorso claus par 1. N. 15. Neither may the Kings Ministers dig in any Barn-floore used for Corn Hay c. but they may dig in the floores of Stables and Oxehouses so that they leave room for the Horses and other Cattel of the Owner and put it in convenient time into as good plight as they found it Also they may dig in Cellars and Vaults and and Mud-walls being not Walls of a Mansion-house and in the ruines and decayes of any Houses or Buildings 5. They ought to make the places where they dig as commodious to the Owner as before 6. They may work in the possession of the Subject but betwixt Sun-rising and Sun setting 7. They may not place any Furnace or other Vessels in any Subjects House without consent nor so near it as to prejudice the same 8. They are not to stay over long in a place nor to return thither again in a long time 9. Resolved That the owner of the Land cannot be restrained from digging and making Saltpeter for the King hath no Interest in it the property is in the owner of the Land Before the 31 Eliz. no King or Queen of this Realm granted any Licence for taking Saltpeter but in that 31 year there were two the one to George Constable Esque and the other generall to George Evelin Richard Hills and John Evelin And after Scilicet 18 Octob. 2. Jacob. Commission was granted to Evelin and others to take Saltpeter c. So that there were but three Licences ever made Case of Treason In this very Term one George Leake a Chancery Clark had upon an ordinary piece of Parchment by great deceit fixed with a kind of Glew another Parchment so thin that it appear but one piece And upon the thin piece he writ by good Warrant a Li ense which brought to the Chancellor was sealed with the Great Seal After the George took the thin piece upon which the writing was from the other to which the Seal was fixed and then all was blank with the Great Seal annext upon which blank the said George writ a Grant of the King of certain Lands and what Offence this was was the Question And after a long debate upon the 25 Ed. 3. 2 H. 4. 25. Stamford l. 1. fol. 3. 40 Ass pla 33. 37 H. 8. Title Treason 2 H. 4. Claus 42 Ed. 3. memb 8. in dorso where the Case was That King Richard the First by his Charter granted divers Lands and Liberties Abbati de Bruera in which the Abbot rased out this word Fittetrida and instead of it writ est leigh and upon shewing it obtained a confirmation of it from King Ed. 3. And an allowance of it in Banco R. And for this Offence the Abbot was called before the King and Council in the Star-Chamber where the Abbot being Convict it was part of the Sentence That the Charter confirmation and allowance of it should be brought in to be cancelled where note 1. The Antiquity of the Star-Chamber being then a Court. 2. That the rasure was not any Counterfeit of the Great Seal for if the Offence had been High Treason it should not have been determined before the King and Council 3. That Spiritual Persons were then punishable before Temporal Judges 4. That if there be a rasure of a Deed between Subject and Subject in a place material all the Deed becomes naught so if a Patentee rase his Heirs Patents in a place material Thence concluded That if the rasing of a word in the Kings Patent be not Treason then the rasing of two or three or all the words of the Patent and writing a new Grant is not Treason By the Statute of the 25 Ed. 3. it is provided That because many other Cases of like Treason might happen in time to come which men cannot think or declare at present That if another Case suffered Treason and not specified in the Act shall come before any of the Justices they shall stay without going to Judgment of Treason untill the Case be shewen before the King in Parliament 1. That though a Case happen like to the Cases of Treason mentioned in the said Act yet that the Judges ought not to judge it Treason but it ought to be declared in Parliament 2. That when a particular Case was adjudged High Treason as the Case of murdring an Embassador of a King Et Legatos violare contra jus Gentium est Afterwards George Leake upon Examination before the chief Justice of England made a clear Confession of of all the manner and circumstances of the Fact as aforesaid whereupon Two Questions were moved 1. Whether this Offence
or Demise of his Lands Wards c. these are Contracts concerning the Kings Revenues and there it cannot be said that the Subjects sponte se obligant as to purchase any the Revenues of the King 3. It ought to be sponte super considerationem non ex mera gratia benevolentia subditi Hil. 4. Ed. 1. in Scaccario c. 4. It ought to be sponte super considerationem quae non loâ—ge reventionem seu interesse Coronae in any thing which the King hath As if a Subject give the King a Summe of Money for Licence in Mortmain or to create a Tenure of himself to have a Fair Market Park Chase or Warren in his Mannor there the Queen shall have it for the Subject did this sponte And this Resolution was reported to the King by Popham in the Gallery at White-Hall Pasch 5 Jac. Regis The Case of Forests This Term it was informed to the King that great wrongs were done in the Forest of Leicester in the County of Leicester and in his Forest of Bowland in the County of Warwick parcel of his Dutchy of Lancaster And upon this by Warrant from the King under his Signet all the Justices were assembled to resolve certain Questions to be moved concerning Forests by the Attorney of the Dutchy and the Councel of the other part which were Forests and Chases Which being matter in Fact the Judges could not give their Resolutions but by way of Directions And it was Resolved 1. That if these are Forests it will appear by matter of Record as by Eyres of Justices of Forests Swannimotes Regardors c. But the calling it a Forest in Grants c. proveth it not a Forest in Law 2. Resolved by all the Justices That if there be no Forests in Law but Free-Chases then who hath any Free-hold in them may cut his Wood growing upon it without view or Licence leaving sufficient for Covert to maintain the Kings Games so a common person having Chace in another Soil the Owner may not destroy the Covert nor Browse-wood 3. Resolved That in such a Chase the Owner by Prescription may have Common for his Sheep and Warren for his Coneys by Grant or Prescription but he must not surcharge or make Burrows in other places than hath been used from the time of which nor may he erect a new Warren without Charter 4. Resolved That who hath such a Warren may lawfully build a Lodge upon his Inheritance for preservation of his Game 5. Popham Chief Justice said That in the time of Chief Baron Bett It was adjudged in the Exchequer That a man may prescribe to cut his Wood upon his own Inheritance within a Forest though it was against the Act in the 43 Ed. 1. See the Abridgement Title Forest 21. And this was the Case of Sellenger vide 2 Ed. 2. Title Trespass fol. 9. in the time of Ed. 1. Trespass 239. â—low Com. Dyer 72. 32. 2 Ed. 4. cap. 7. that the Subject may have a Forest Consuetudo ex rationebili causa usitata privat communem Legem And it was held by some that this was but an Ordinance not an Act of Parliament Pasch 5 Jacobi Regis Case of Conspiracy This Term in the Case between Rice ap Evan ap Floyd Plaintiff and Richard Barker one of the Justices of the Grand Sessions in the County of Anglesey and others Defendants 1. Resolved by Popham and Coke Chief Justices the Chief Baron and Egerton Lord Chancellor and all the Court of Star-Chamber That when a Grand Inquest indicts one of Murder or Felony though the Party be acquitted yet no Conspiracy lyes for him against the Inâ—ictors for they are returned by the Sheriff by Law to make Inquiry of Offences upon their Oath for service of the King and Country and are compellable to serve the Law 10 Eliz. 265. And their Indictment or Verdict is matter of Record and called Verum dictum and shall not be avoided by Surmise and no Attaint lyes And with this agrees the Books in 22 Assise 77. 27 Ass 12. 21 Ed. 3. 17. 16 H. 6. 19. 47 Ed. 3. 17. 27 H. 8. 2. F. N. B. 115. a. But otherwise of a Witness for if he conspire out of the Court and after swear in Court his Oath shall not excuse his Conspiracy before for he is a private person 2. Resolved That when the party indicted is convictd of Felony by another Jury upon Not Guilty pleaded there he shall never have a Writ of Conspiracy But when he is upon his Arraignment Lâ—gitimo modo acquietatus But in the Case at Bar the Grand Jury who Indicted one William Price for the Murther of Hugh ap William the Jury who upon Not Guilty pleaded convicted him were Charged Indicted and Convict in the Star-Chamber which was never seen before For if the party shall not have a Conspiracy against the Indictors when Acquitted a multo fortiori when he is lawful Convict he shall neither charge the Grand Inquest nor Jury that convicted him But when a Jury acquits a Felon or Traytor against manifest Proof there they may be charged in the Star-Chamber ne maleficia remanerent impunita But if such Supposals shall be admitted after ordinary Judicial Proceedings it will be a means ad detrahendos Juratores deterrendos a servitio Regis 3. Resolved That Barker who was Judge of Assize and gave Judgement upon the Verdict of Death against the said W. P. and the Sheriff that executed him nor the Justices of Peace that examined the offender and the Witnesses for proof of the murther before the Indictment were not to be drawn in question in the Star-Chamber for any conspiracy nor ought to be charged there with any conspiracy or elsewhere when the party indicted is convicted or Attaint of murther or Felony And though such person were acquitted yet the Judge c. being by Commission and of Record and sworn to do Justice cannot be charged for conspiracy for that he openly did in Court as Judge Justice of Peace c. but if he hath conspired before out of Court this is extrajudiciall but subordinations of Witnesses and false malicious prosecutions out of Court c. amounts to an unlawfull conspiracy And if Judicial matters of Record which are of so high a nature that for their sublimity they import verity in themselves should be drawn in question by partiall and sinister supposall and averments of offenders there will never be an end of Causes but Controversies will be infinite Et infinitum in jure repâ—obatur 47 Ed. 3. 15. 25. Ed. 4 67. and 27 Ass pl. 12. But in a Hundred Court or other Court which is not of Record there averment may be taken against their proceedings 47 Ed. 3. 15. Also one shall never assign for Error that the Jury gave Verdict for the Defendant and the Court entred it for the Plaintiff c. Vide 1 H. 6 4. 39 H. 6. 52. 7 H. 7. 4. 11 H. 7. 28. 1 Mar. Dyer
Justices of Nisi Prius power in all Cases of Felony and Treason to give Judgment 28 Ed. 1. De appellatis gives Justices of Assize power to try Appeals of Approvers They may also by the 34 and 35 H. 8. cap. 14. write to the Clerk of the Crown de Banco R. to certifie the first Conviction in their own Name otherwise the best Form is in the King 's Nanâ—e 2 and 3 Ed. 6. cap. 24. By Articuli super chartas cap. 10. 4 Ed. 3. cap. 11. 7 R. 2. they may hear and determine Conspiracies false Informations c. By the Statute of Northampton 2 Ed. 3. cap. 3. they may hear and determine the Statute of Armor and punish Justices of Peace and others c. They ought twice a year to proclaim the Statute 32 H. 8. and other Statutes against Champerâ—y Imbracery and unlawful Retainers By 3 H. 7. cap. 1. they may take Bail of one acquitted of Murther within the year to answer the Appeal of the Party By 33 H. 8. they must proclaim in their Circuit the Statute against unlawful Games They make Execution of the Statute 13 H. 4. cap. 7. of Ryoâ—s c. And by 2 H. 5. cap. 8. Commission shall be awarded to enquire of the Defaults of Justices of Assize and of the Peace By Westminster 2 cap. 37. and 2 Ed. 3. c. 5. they ought also to enquire of the 23 H. 6. cap. 10. concerning Sheriffs c. Bayliffs c. and Guardians of Prisons for their Extortion and delivering who are not Bailable and detaining who are 2 Mariae Dyer 99. they held Plea in Assize of Murther by W. 2 and 3 H. 7. and of Robbery by Commission of Gaol Delivery By 23 Ed. 3. they may inquire of Default c. punishment of Victuallers c. Note Justices of Oyer and Terminer can only enquire of such who are endicted before themselves But Justices of Goal-delivery may arraign a Prisoner indicted before others the words of their Commission are Ad Gaolas Gaolam de B. de peâ—sonaribus in ea existeâ—t hac vice deliberand secund leges c. Brook tiâ— Commission 3. Maii 24. 4 Ed. 3. cap. 2. Justices of Gaol-delivery deliver Prisoners indiâ—ted before Guardians of the Peace And by 1 Ed. 6. cap. 7. new Commissioners of Gaol-delivery This extends not to Indictments c. before Commissioners of Oyer and Termiâ—er because the proceedings before Justices of Oâ—er and Terminer after the Oyer determined ought to remain in the Kings Bench But the Records before Justices of Gaol-delivery remain with the Custos Rotulorum vide Brook tit Commission 12. 38 H. 8. Title Oyer and Terminer 44 Ed. 2. 31. Case of Customes Subsidies and Impositions Upon Conference between Popham chief Justice and my self upon a judgment lately given in the Exchequer and upon Consideration of our Books and Statutes It appeared That the Rule of the Common-Law is the the Register Title ad quod dampnum F. N. B. 222. a. quod patria magis solito non oâ—eretur nec gravetur Also another Rule That the King may Charge his People to a thing which may be to their Profit without assent of the Commons but not to their Charge As is held in 13 H. 4. 16. Statutum de Tallagio non concedendo Mag. Chart. cap. 30. which hath been confirmed above 30 times Vide le Stat. 25 Ed. 1. 3 Ed. 1. in turri 9 Ed. 3. cap. 1. 2. 14 Ed. 3. 2. 25 Ed. 3. cap. 2. Queen May put an Imposition upon Cloaths which 1 â—liz Dyer 165. was moved but not Resolved Vide 31 H. 8. Dyer fol. 43. 1 Eliz. Dyer 165. Magna Custuma Parva Custuma Vide 9 H. 12. 35. Upon all which and divers Records by us seen it appeared to us That the King cannot at his Pleasure put any Imposition upon any Merchandize to be Imported or Exported unless for advancement of Trade the life of the Island Pro bono publico As if in Forâ—aign Parts any Imposition is put upon the Merchandize of our Merchants non pro bono publico to make equality and advance Trade the King may put an Imposition upon their Merchandizâ—s for this is not against any of the said Statutes which was the Case of Currants lately adjudge in the Exchequer And also of Customer Smith in Queen Elizabeth's time And it was clearly Resolved That such Imposition so put cannot be demised or granted to any Subject because it is to augment and decrease or be quite taken away upon occasion And though the King may prohibite any person in some Cases with some Commodities to pass out of the Realm yet this cannot be where the end is Private but where it is publick because Quam plurima nobis et Coronae prejudicialia in partibus exteris prosequi intendit and to restrain in time of Dearth or War for Necessitas est lex temporis It appeared to us also That at Common Law no Custom was paid but only for Woolls Woollfells and Leather which is called in Magna Charta Recta consuetudo all others are called Mala Tolneta which in the Statute de Tallagio non concedendo is called Male. And it hath of long time been used by Parliament to Grant to the Kings at the beginnings of their Reigns certain Subsidies of Tunnage and Poundage for term of Life which began 2 3 H. 5. 31 H. 6. cap. 8. and 12 Ed. 4. cap. 3. which proves the King by his own Power cannot impose it and this may be granted by the King but the other noâ— Vide 31 H. 8. Dyer 43. 1 Ma. D. 92. 1. Eliz. D. 165. 2 and 3 P. and M. D. 128. 12 Eliz. D 296. 23 Eliz. D. 375. 45 Ed. 3. cap. 4. 27 Ass pl. 44. Register 192 c. Vide magna Charta cap. 10. They are called Consuetudines Et per vocabulum artis they are called Cuâ—uma Vide Lestat 51 H. 3. Titl Exchequer in Rastall and 9 Ed. 3. cap. 2. Vide Fortescue de laud. leg Ang. cap. 36. fol. 48. fol. 13. cap. 9. And note for the benefit of the Subject the King may lay Imposition within the Realm â—o repair High-wayes Bridges and Walls for defence But the sum must be proportioned to the benefit And this appears 13 H. 4. 16. See also Charta mercatoria ex Rot. mercator 31 Ed. 1. n. 42. Patents 3 Ed. 1. n. 1. 9. de sacco lanae dim marcae lasta Coriorum 1 Marke c. Fines 3 Ed. 1. n. 24. intus et non in dorso Vide Rot. Parl. an 13 Ed. 3. And 22 Ed. â— n. 8. And 8 H. 6. n. 29. 28 H. 6. n. 35. 9 R. 2. n. 30. 29 Ed. 3. 11. n. ex Rot. Parliam 5 Ed. 3. n. 17 18 19. 22 Ed. 3. n. 31. 5 Ed. 3. n. 163. 5 Ed. 3 n. 191. 38 Ed. 3. n. 26 Rot. Parl. 7 R. 2. n. 35. 36. 9 R. 2. n. 30. 2 R. 2. Parl. apud Glocestriam Act. 25. 1 R.
Nicholas Bishop of Norwich against whom he then being in the Custody of the Marshall the Kings Attorney did prefer a Bill of Premunire the matter whereof was this In Thetford in Com. Norfolke hath been de tempore cujus c. such Custom that all Ecclesiastical Causes rising in that Town should be determined before the Dean of that Town who hath particular Jurisdiction there and that none in that Town shall be drawn in Plea in any other Court-Christian unless before the same Dean And if it ought to be done against the same Custom this to be presented before the Mayor of the same Town and the Party to forfeit 6 s. 8 d. That One such sued in the Consistory of the Bishop for a thing arising within the said Town which was presented before the Mayor for which he forfeited 6 s. 8 d. The Bishop cited the Mayor to appear before him at his House at Hoxin in Suffolk generally pro salute animae but upon appearance◠〈◊〉 upon all the Matter and enjoyn'd him on pain of Excommunication to annul the said Presentment The Bishop had Council assigned him who objected That as well the Presentment as Custom was void and therefore not contra Coronam c. nor drawn by the Bishop ad aliud examen 2. They objected That the Bishop's Court was not intended within the Act of 16 R. 2. but in Cur. Romana aut alibi and this alibi ought not to be out of the Realm but it was Resolved by Fitz James chief Justice Et. per totam Curiam that be the Custom or Presentment good or bad this is a Temporal thing determinable at Common Law and not in Spiritual Court and therefore the Bishop hath incurred the Premunire 3. That alibi extends as well to the Bishop's Courts c. as well within the Realm as else-where and so the Court said it had been often adjudged whereupon the Bishop confessed the Indictment And Judgment was given That he shall be out of the King's Protection and that his Lands Goods and Chattels should be forfeited and his Body to be imprisoned ad voluntatem Regis c. Nicholas Fuller's Case In the great Case of Nicholas Fuller of Grays-Inn these Points were Resolved by all the Justices and Barons of the Exchequer 1. Resolved That no Consultation can be granted out of Term because it is a final award of the Court and can neither be granted in Term nor out of Term by all the Judges except in Court the name of the Writ signifying the same 2. Resolved That the Construction of the Statute 1 Eliz. cap. 1. and of the Letters Patents of High-Commission in Ecclesiastical Causes founded upon the said Act belongs to the Judges of the Common Law And therefore the Consultation which was granted with this restraint Quatenus non agat de authoritate et validitate Literarum Patentium pro causis Ecclesiasticis vobis vel aliquibus vestrum direct aut de expesitione et interpretatione Statuti de anno primo nuper Reginae c. As if the King hath a Benefice donative by Letters Patents this shall not be visitable nor deprivable by any Ecclesiastical Authority but by the Chancellor of the King or Commissioners under the Great Seal 3. Resolved When there is any Question concerning what Power or Jurisdiction belongs to Ecclesiastical Judges in any such Case the determination of this belongs to the Judges of the Common Law in what cases they have Cognizance and in what not And according to this Resolution Bracton lib. 5. tract de except cap. 15. fol. 412. Vide also Entries fol. 445. There was a Question whether Court-Christian should have Cognizance of a Lamp and a Prohibition was granted Quod non procedant in Curia Christianitatis quousque in Curiae â—ostra discussum fuerit utram cognitio placiti illius ad Curiam nostram vel ad forum Ecclesiasticum pertineat And all this appears in our Books that the Judges of the Common Law shall determâ—ne in what Cases the Ecclesiastical Judges have Power to punish any pro Laesioae fidei 2 H. 4. fol. 10. 11 H. 4. 88. 22 Ed. 4. 20. or of the bounds of Parishes 5 Ed. 3 8 8 Ed. 3. 69. 70. 18 Ed. 3. 58. 12 Ed. 4. 9 H. 7. 1. 10 H. 7. 9. And therefore in this Case of Fuller one other Restraint was added in the Consultation Et quatenus non agat de aliquibus scandalis contemptibus sâ—u aliis rebus quae ad communen legem aut Statuta Regni nostri Angliae suat puâ—ienda et determinanda 4. Resolved That if a Councellor at Law in his Argument shall scandal the King or his Government Temporal or Ecclesiastical this is a misdemeanor and and contempt to the Court for which he shall be indicted fined and imprisoned but not in Court Christian but if he publish any Heresy Schisme or erroneous Opinion in Religion he may for this be punished by the Ecclesiastical Judges for the Rule is Quod non est juri consonum quod quis pro aliis quae in Curiis nostris act a sunt quorum cognitio ad nos pertinet trahatur in placitum in Curia Christianitatis See the Book of Entries fol. 448. And for this cause a Consultation was granted Quoad Schismata Hereses c. Vide Mâ—ch 18 H. 8. Rot. 78. in Banco Regis The Case was a Leet was â—eld Jovis post Festum Sancti Mich. Arch. 17 H. 8. of the Prior of the House of St. John de Bethelehem de Shrine of this Mannor of Levisham in Com. Surrey before John Beare Steward there a Grand Jury was charged to inquire for the King of all Offences inquirable within the said Leet where one Phillip Aldwin who was a resident within the said Leet appeared Idemque Phillippus sciens quandam Margaretam uxorem Johannis Aldwin apud East-Greenwich infra jurisdictionem Letae proed pluries per antea corpus suum in adulterio viciose exercuissse c. eisdem sic juratis de dicta c. informationem veraciter dedit Upon which the said Margaret drew the said Phillip into the Archbishop of Canterbury his Court and there libelled against him for defamation of Adultery and that the Phillip said in hisce Angl. verbis Margaret Allen is a Whore and a Bawde and it is not yet three weeks agone since a man might take a Priest betwixt her Legs which words were parcel of the words by which he informed the Jury at the Leet And upon this he had a Prohibition and by this Record it appears and by the Statute 10 Ed. 3. c. 11. that Indictors of Lay-People or Clerks in Turneys and after delivering them before Justices shall not be sued for Defamation in Court-Christian but that the Plaintiff grieved shall have a Prohibition Vide Pasch 6 Eliz. In the Lord Dyers Reports which Case is not Printed John Halles in the Case of Marriage between the Earl of Hereford and the Lady Katharine Gray declared his Opinion against the
die causa c. Et iidem Justiciarii hic visa causa illa ulterius fieri fecerint quod c. Et modo hic ad hunc diem viz. diem Sab. prox Oct. Sanct. Mich. isto eoâ—um termino venit praed Anthonius in propria persona suaâ— sub custod praed Guard ad Barr. hic praed idem Guardianus tunc hic mand Quod ante advent brevis praed vâ—z 9. die Oct. ult praeter praed Anthonii Roper mil. reducit se prison praed perantea Commissus virtute cujusdam â—arranti dat 30 die Junii ult praeter quod sequitur in haec verba viz. These are in his Majâ—sties Name to require and charge you by Vertute of his High-Commission for causes Ecclesiastical under the Great Seal of England to us and others directed that herewith you receive and take into your Custody the Body of Sir Anthony Roper Knight and him safely detain c. signifying unto you That the cause of his Commitment for that there being a certain cause c. betwixt him the said Sir Anthony Roper and John Bullbrooke Vicar of Bently for that he detained wrongfully from him the said Vicar a certain yearly Pension c. Given at Lambeth this thirtieth of June 1607. Et quod haec suit causa captionis et detentionis praed Anthonii in prison praed corpus tamen praed Anthonii modo hic paratus hâ—bet prout â— super quo visis praemissis per Justiciurios hic plenius examinatis videtur iisdem Justiciariis hic quod praed causa Commissionis praed Anthonii prison de Fleet praeâ— in retorn spâ—cificat minus sufficiens in lege existit c. Idco prad Anthonius a prisona prad per-Cur hic dimittitur ac idem Guardianus de hujusmodi Custodia per eand Cur. hic plene exoneretur And this was resolved una voce by Coke chief Justice Walmesly Warberton Daniel and Foster Justices And in the same Term in I am's Case A Parson in Noâ—folk that sued one of his Parishioners before the High-Commissioners for Scandal in saying only in the Church on a Sabbath day That he was a wicked man and an arrant Knave Prohibition lyes for this That it was not so enormous as the Staâ—â—te intended Hill 5 Jac. Regis Note It was moved to the Justices this Term upon consideration of the Acts of 34 H. 8. and 18 Eliz. If the Justices in Wales may be Constituted by Commission and it was conceived they could not but that it ought to be by Patent as hath been ever used since 34 H. 8. Then it was moved If the King by force of a Clause there in might do it which Clause is That the King 's most Royal Majesty shall and may at all times hereafter change adde alter minish and reform all manner c. And it seemed to divers of the Justices that this Power given to the King determin'd by his Death for divers Causes 1. Because it wants these Words His Successors and to draw it in Succession by Construction would be against the Intention of the Maker of the Act For they gave this high Power of Alteration c. of Laws to the King as to his most Excellent Wisdom shall be thought most meet which words want His Successors For they well knew his Wisdom did not go in Succession so the Power went not in Succession And for this that Eorum progressus ostendent multa quae ab initio provideri non possunt And what ensues upon this concerning this uniting of Wales and England none could divine But it was never the Intention of the said Act to give Power to the King and his Successors for ever to alter c. 2. Power of Alteration of Laws c. is a Point of Confidence concerning the Administration of Justice which the Act by omitting of his Successors intended to unite this Confidence to the Person of H. 8. and not to extend it without Limitation of time to his Successors 1 Ed. 5. 1. 1 H. 7. 1. 14 Ed. 4. 44. All Commissions concerning Administration of Justice determine by the King's Death Not so if he make a Lease durante bene placito or present one to a Church these are not void by his Death untill revoked by his Successor And upon Certificate of the Justices Opinion That the Justices of Wales cannot be Constituted by Commission Baron Snig had a Patent for the Circuit of Wales as others before him had Trin. 6 Jac. Regis This Term it was Resolved per totam Curiam in Communi Banco viz. Coke Chief Justice Walmesly Warberton Daniel and Foster in the Case of Allan Ball That the High-Commissions cannot be force of the Act 1 Eliz. cap. 1. send a Pursivant to Arrest any Person subjâ—ct to their Jurisdiction to answer to any matter before them But they ought to proceed according to Ecclesiasticall Law by Citation And in the Circuit of Northampton when the Lord Anderson and Glanvile were Justices of Assize a Pursivant was sent by the Commissioners to Arrest the Body of a Man to appear before them and in resistance of the Arrest and striving among them the Pursivant was killed And if this was Murther or not was doubted and it was Resolved that the Arrest was tortious and by consequence that this was not Murther though the killing of an Officer of Justice whose Authority is lawful in Execution of his Office is Murther But they may send Citation by a Puisivant and upon default proceed to Excommunication and then to have a Capias Excommunicatum which Writ de excommunicato capiendo is preserved and returnable by the Statute 5 Eliz. See Magna Charta and all the antient Statutes Vid. Rast Title Accusation Marmaduke Langdale's Case In the Case of Marmaduke Langdale of Leventhorp in the County of York by Joan his Wife being sued for maintenance before the Bishop of Canterbury and others High-Commissioners It was Resolved per totam Curiam praeter Walmesly that a Prohibition before granted was well maintainable because it was not any Enormity nor Offence within the Statute but a neglect of his duty and a Breach of his Vow of maintenance And the Rule of the Court was That the Plaintiff shall count against the High-Commissioners and upon Demurrer joyned the Case to be argued and adjudged and the Party grieved to have a Writ of Errour si sibi viderit expedire c. Upon Complaint made to the King and Councel by the Lord President of Wales and the Lord President of York against the Judges of the Realm and the King's Pleasure signified to them Upon Consideration had of the parts of the Complaint they Resolved upon these Answers And because of the Lord President of York first opened the Cause of his Grief more amply they first answered those Objections made on the behalf of that Councel And first as to the Institution of that Court. 1. After the Suppression of all Religious Houses Anno 27. H. 8. in
October 28. H. 8. there was an Insurrection of the Lord Hussey and 20000 Men in Lincolnshire about Religion which was appeased by the Duke of Suffolk This was no sooner over but 40000 Men under Sir Robert Aske made a Commotion in Yorkshire Soon after was a great Rebellion in Lancashire Westmerland Cumberland and Northumberland which the Earl of Derby quieted Then Musgrave Tilby and others assaulted Carlisle Castle and were overthrown by the Duke of Norfolk Soon after Sir Francis Pigot Rebelled at Setrington in Yorkshire Soon after the Lord Darcy c. began a Commotion about Hull appeased by the Duke of Norfolk And all these Rebellions were between the 28. of and 30. of H. 8. in which time many of the Rebels were Executed And the King having effected in the 31 year of his Reign the Suppression of the greater Houses of Religion he establisht a Councel there for the quiet of the Counties of Yorkshire Northumberland Westmerland Cumberland Durham the Counties of the City of York Kingston upon Hull and Newcastle upon Tyâ—e for preventions of Ryots c. And in this time of Necessity the King Armed the President and Councel with two Authorities in one Commission The one A Commission of Oyer and Terminer de quibuscunque Congregationibus conventiculis illicitis coadjutoribus Lolardiis c. per quae pax tranquilitas subditorum nostrorum Comitatibus c. praedict gravat c. secundum legem coâ—suetudinem regni nostri Angliae c. The other Authority was Nec non quascunque actionesreales seu de libero tenemento personales causasque de bitorum demandorum quorumcunque in Com. c. praed quando ambae partes vel altera pars sic gravata paupertate fuerit quod commode Jus suum secundum legem Regni nostri aliter prosequi non possit c. And this was the Authority that the President and Councel had at first without any private Instructions as appears by the Commission under the Great Seal 31 H. 8. 6 pars Roberto Landavensi Episcopo Presidenti Consilii aliis out of which these things were observed 1. That the intention of the Commission was Quod pax subditorum tranquilitas preserventur 2. That they hear and determine Riots Routs c. according to Law or their Discretions which without question was no otherwise intended but that they should proceed according to Law for that is summa discretio and not according to private Conceits for talis discretio discretionem confundit so the other Clause concerning reall and personal Actions in all the Counties and Places aforesaid was onely ad faciendum populum for it was utterly void in Law 1. Because no such general Authority granted may be made by the Commission of the King to hear and determine all reall Actions within such a County according to Law as he may be Charter in a particular County or place As it was Resolved in Scrogges Case An. 2 Eliz. so 175. in Dyer Vid. Dyer 236. But the King by Letters-Patents may grant to a Corporation in such a Town Tenere placita realia personalia mixta And none can by this be prejudiced for the proceeding ought to be according to Law and if they erre a Writ of Errour lies See Magna Charta cap. 12. and Westm 2. cap. 30. which Acts give Authority to Justices of Assize in their proper Counties whereby it appears that without an Act of Parliament the King by Letters Patents cannot authorize Justices De Assize capiend to take them in another County As a Justice of one Bench or other ought to be made by Commission not by Writ yet he may be discharged by Writ 5 Ed. 4. 32. But Justices in Eyre are by Writ Bracton lib. 3. cap. 11. Britton fo 1. Also Westm 2. cap. 30. and of York cap. 4. sic de ceteris Also it was observed that at first the Commission extended onely when one or both Parties were so poor as they were not able to prosecute at Law Also they had no power to grant Injunctions and lastly their Commission was a Patent under the Great Seal and enrolled in Chancery And thus much was said concerning the first Institution of the Court 2. That our Proceedings in granting Prohibitions is for matter justifiable by Law As to this whereas at first their Authority was Patent it is now private for the Letters-Patent refer to private Instructions which are no where of Record Et de non apparentibus non existentibus eadam est ratio besides the danger to the Subject is great for if they lose their Instructions which hath and may happen all is Coram non Judice The second Reason is drawn from the contumacy of the Party supposed to be grieved by the Prohibition and against whom it is granted for if the Authority of the Councel be never so good yet being a late Jurisdiction the Party must of necessity plead it so as it may appear judicially for as we are Judges of Record so must we be informed of Record And no party prohibited ever yet moved in Court to have a consultation by which might be set forth the Jurisdiction of that Court and Councel so as the granting of Prohibitions hath been just The third Reason is drawn from the great Injury offered to the Defendants for it is a true Rule Misera servitus ubi jus est vagum aut incertum The Defendants by Law may in all Courts plead to the Jurisdiction of the Court but how can they do so when no man can possibly know what Jurisdiction they have And the keeping of them in such Secrecy bewrayeth that the Councel are afraid that they would not be justified if they were known 3. That the manner of our Proceedings was respectful for a Jury of Officers and Attorneys of our Court being according to an antient Custome time out of mind used sworn to present among other things all Defaults of Officers and Ministers in not executing the Process of this Couâ—t and all Impediments of the due Proceedings thereof And finding upon their Oaths divers unjust Impediments of the said Proceedings by the said Councel in particular thereupon a motion being made in open Court in Michaelmas Term last by the King 's Serjeant Philips of many Grievances done thereby prayed the Court according to Law and Justice to grant several Prohibitions in all those several Causes which we could not deny Yet first we conferred with Sir Cuthbert Pepper Attorney of the Wards and one of that Councel to let him understand the partâ—cular Gâ—ievances who upon Motion came to us to Seâ—geants Inne with whom we conferred who would not take upon him to justifie the same in no sort but said he would acquaint the President and Councel therewith and return their Answer Which for that it was neglected upon further Motion in Court we granted Prohibition as in Justice we ought 4. Now to answer all Objections And first where it was objected
Common-Law none can be burnt for Heresy but by Conviction at a Convocation Note The High Commission may punish Heresies and upon their Conviction a Writ de Haeretico cumburendo See 6 R. 2. by which the Commons disavowed their assent to the Act of the 5 R. 2. which was contrived by the Prelates in the Name of the Commons whereas they never assented Mich. 6 Jac. Regis Langdale's Case In Langdales Case this Term in a Prohibition to the High Commissioners two Points were moved 1. If a Feme Covert may sue for Alimony before the High-Commissioners 2. If the Court of Common Pleas may grant a Prohibition when there is no Plea pendant there This concerning the Jurisdiction of the Court was first debated and divers Objections were made against it 1. That this Court hath not Jurisdiction to hold Plea without an Original unless by Priviledge of an Attorney Officer or Clerk of the Court and unless it be in a special Case viz. when there is an Action there depending for the same Cause then it was agreed that a Prohibition ought to recite Quod cum tale Placitum pendet c. And it was said That F. N. B. 43. g. agrees with this But a man ought to have his Prohibition out of Chancery or the Kings Bench upon surmise that he is sued in Court Christian for a Temporal Cause and the 2 Ed. 4. 11. 6. was cited To this it was answered and Resolved by Coke chief Justice Warberton Daniell and Foster Justices That the Common Pleas may award a Prohibition though no Suit be there pendent for it is the principal Court of Common Law for Common Pleas Quia Communia Placita non sequantur Curiam nostram as it is Enacted by Magna Charta thirty times confirmed by Parliamâ—â—â— then if the Ecclesiastical Judges incroach upon the Jurisdiction of the Common Pleas there the Court shall Grant a Prohibition and that without Original Writ for divers Causes 1. Because no Original Writ issuing out of Chancery is retornable into the King Bench or Common Pleas but is directed to a Judge or Party or both and is not retornable And upon contempt of the Prohibition the Chancellor may award an Attachment retornable either in the Kings Bench or Common Pleas which in such case is but a Judicial Writ And if such Attachment be retornable in the Common Pleas c. the Plaintiff in the Declaration shall make mention of an Original in Chancery and of the contempt c. as appears in a notable President 2. There was great reason that no Original Writ of Prohibition shall be retornable for the Common-Law was a Prohibition in it self and incroachment upon it incurred a contempt and with this agrees our Books 9 H. 6. 56. And there 't is held That the Statute of the 45 Ed. 3. and the Common Law also was a Prohibition in it self and thus the Rule of the Book 19 H. 6. 54. so is it held in 8 R. 2. Title Attachment Sur Prohibition 15. Note By Clopton a Sergeant at the Common Pleas That if a Plea be held in Court-Christian which belongs to the Court of the King without a Prohibition in facto the Plaintiff shall have an Attachment upon a Prohibition Quod fuit concessum c. Register 77. Estrepement Praecipimus quod inhibeas c. F. N. B. 259. Register 112. A Consultation is as much an Original as a Prohibition And the Court hath granted a Consultation ergo Prohibitions Qui habet jurisdictionem absolvendi habet juris dictionem Ligandi There are several sorts of Prohibitions one sort with this word Probibemus vobis and Letters in nature thereof as Supersedeas And Injunction is a Prohibition and Prohibition of Wast out of Chancery c. Express Prohibition are in two manners the one founded upon a Suggestion the other upon Record Upon Suggestion where Plea is pendent and yet the Suggestion is the Foundation but it is founded upon Record where no Plea is pendent for Prohibitions founded upon Record Ne admittas ought to recite the Plea pendent So a Writ to the Bishop to admit a Clerk is a Judicial Latitat as Dyer defends it As to the pendency of a Plea or not pendency it is not material for divers causes 1. The pendency of the Plea may give a priviledge to the party but no Jurisdiction to the Court in a Collateral Suit between which there is great diversity 2. The Prohibition where Plea is pendent is no process Judicial upon Record for it is a Collateral Suit 3. If the Common-Pleas cannot grant a Prohibition without a Plea pendent then the Kings which onely holds Plea of Common-Pleas by second means cannot But inasmuch as the Common-Law is instead of an Original as hath been said both Courts may grant it 4. Infinite Presidents may be shewn of Prohibition out of the Common Pleas without recital of any Plea pendent And true it is That it ought to be if the Court hath not Jurisdiction to grant any without Plea-pendant every petty-Clerk of the Common-Pleas shall have by his Priviledge a Prohibition without Plea-pendent A fortiori the Common Law it self may prohibite any one 4 Ed. 4. 37. 37 H. 8. 4. 5. A President is in the 22 Ed. 4. where a Prohibition was granted for that the Plaintiff might have a Writ of false Judgment at the Common Law The Record and Report agree the words of the Record are 6. That Officers and Clerks as well in the Common-Pleas as in the Exchequer c. may have by Privileng of Court a Prohibition without Original a fortiori the Law it self shall have greater Priviledge than an Officer or Clerk and to enforce the party to bring an Action will be a means to multiply Suits to no end 4 Ed. 4. fol. 37. every Prohibition is as well at the Kings Suit as at the Parties 28 Ed. 3. 97. false Latin shall not abate nor excommunication in the Plaint is no Plea 15 Ed. 3. Title Corrody 4. Note Though the Original cause was in the Kings Bench for Corrody Excommunication is no Plea in disability of the Plaintiff Vide 21 H. 7. 71 Kelway 6. quare non admissit 4 Ed. 4. 37. for not delivery of a Libel in the Common Pleas he shall have a Prohibition by all the Justices So upon 2 Ed. 6. cap. 13. See 38 H. 6. 14. 22. Ed. 6. 20. 13 Ed. 3. Title Prohibition 11. 32 H. 6. 34. An Attorney in the Palace assaulted and menaced the Court shall take a Bill and inquire of it 4 Ed. 4. 36 37. Statham Prohibition 3. Prohibition super articulos title Prohibition pl. 5. gives a Prohibition before Scil. coram Justiciaâ—iis nostris apud Westm Vide F. N. P. fol. 69. b. in a Writ of Pone Register indic coram Justicia iis nost is apud Westm is the Common Pleas F. N. B. 64. d. 38 Ed. 3. 14. Statute 2 Ed. 6. cap. 13. Hales Case in my Reports Many Prohibitions were granted in the
proceed in Blasphemy Heresy Schisme c. loyalty of Matrimonies probate of Wills c. and that from these proceedings depends not only the Salvation of Souls but the legitimation of Issues c. and other thingâ— of great Consequence It is most reason that such Officers shall be within the Statute then Officers which concern Temporal maâ—ters the Temporal Judge committing the Convict only to the Gaoler but the Spiritual Judge by excommunication to the Devil And there is a Proviso in â—he Statute for them It was Resolved That such Offices were within the Purview of the said Statute Hill 8 Jac. Regis Admiralty It is to be understood That the Jurisdiction of the Admiralty is more antient than Mr. Lambert in his Jurisdiction of Courts doth affirm which was the time of Edward the Third But without question the Jurisdiction of the Admiralty is more antient for I find a notable Book in the time of Ed. 1. Title Avowry 192. which proves it more antient than Mr. Lambert speaks The Case was One brought a Replevin of his Ship taken on the Coast of Scarbrough upon the Sea and carryed into Norfolk and there detained the plaint of taking in the Coast of S. which is no Town nor Place certain by which the Paiis mâ—y be taken for the Coast contains four Leagues And also a thing done at Sea this Court cannot have Cognizance for this Judgment is given to Mariners Beresford who gave the Rule in this Case The King Wâ—lls That the Peace be kept as well upon the Sea as the Land-And we find that you come by due Process and we see nothing why you ought not to answer upon which Book I observe five things 1. That of things done upon the Sea Judgment is given to Mariners id est to Admirals as shall appear and belongeth not to the King's Court because no Paiis may be taken there for where the Paiis or Jury may come the Admiral hath no Jurisdiction 2. This proves directly That there the Admiral hath Jurisdiction to adjudge things done upon the Sea from whence no Paiis may come And this did nor begin then for questionless ever since there was Trade or Traffick which is the Life of every Island there was Marine Jurisdiction to redresse Depraedations Piracies Murthers and other Offences upon the Sea 3. The third thing is That if part of the matter be done on the Sea and part in the Country that the Common-Law shall have all the Jurisdiction 4. The Sea within the Jurisdiction of the Admiral is described to be out of every County 5. If a thing be done upon the Sea hors del County the Party may plead it to the Jurisdiction of the Court. And it is to wit that in antient time the Jurisdiction of Admiral was called Maritina Angliae and sometimes Marina Angliae which signifies the Admiralship or Marinship of England for Marinus is the same with 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is of the Sea and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is the Admiral or General of the Fleet and Almarath is corruptly Admirall And antiently sometimes one was Admiral of all England and sometime the Office was divided And for this see ex Rot. Patentium de An. 6 H. 3. de Maritina Custodiend 29 Aug. ex Rot. Pat. An. 9 H. 3. 3. Octob. Charta 15 H. 3. 28 Junii 25 Ed. in 14. Claus in Dorso in 18. William teyborne Capitaneus Marinariorum At this time there were two Admirals the one had the Government of all the Fleet from the Thames mouth versus Boream the other from the Thames mouth versus occidentem 1 Pars. Patent 25 Ed. 1. 25 Martii in 9. 1 Pars. Patent 10 Ed. 2. 8. Decem. And so in the time of R. 2. H. 4. H. 5. H. 6. during whose Reigns there was like unus qui fuit Admirallus Angliae 3 Ed. 2. Coron 399. where a man may see what is done of one part and the other of the Water c. in that place the County may have Cognizance and it may be tryed by a Jury And Stamfords Pleas of the Crown lib. 1. fol. 51. citing this Book saies thus So this proves That by the Common-Law before the Statute c. the Admiral shall not have Jurisdiction unless upon the High-Sea which proves his Jurisdiction by the Common-Law upon the High-Sea Ex quo sequitur that his Jurisdiction was by the Common-Law and then 't is so antient that the Commencement cannot be known Whence I conclude that this Authority did not begin of King Edw. 3. as Monsieur Lambert upon uncertain Conjectures supposeth Pasch 9 Jac. Regis It was Resolved by the two Chief Justices Chief Baron the Attorney and Sollicitor That the King may erect any Name of Dignity which was not before and for that Reason the King may Create a Baronet to him and his Heirs-males of his Body issuing It was Resolved That if he Create him not of some Place he shall not have an Estate Tail but Fee-simple conditional forfeitable for Felony but if he Create him Baronet of a Place then he shall have an Estate-Tail within the Statute West 2. And the King may Grant to such Precedency before Knights Bannerets Knights of the Bath and Kinghts-Batchelors And also he may Grant Precedency to their Wives Sons and Daughters c. The King cannot Create any Dignity above the Dignity of a Baronet and under the Dignity of a Baron And the creation of this Dignity of a Baronet shall not discharge the Heir to be in Guard Pasch 9 Jacobi Regis Accessary in Treason c. Note That in Trespass and Treason there are no Accessaries but all are Principles But in Felony above the sum of 12 d. there and in case of death c. there may be Accessary as well before as after In Petit larceny there can be no Accessaries for the smallness of the Felony Then the Case is A. Counterfeits the Great Seal of England and B. knowing that he did Counterfeit it receives abets and comforts him If B. in this Case be Guilty of Treason is the Question And it seems he is not for though A. by the Counterfeiting be a Traytor yet the abetting c. cannot make B. an Accessary because at the time of Counterfeiting it he did not know it but if one before the Act be done procure another to Conterfeit the Great-Seal there it is High-Treason and in the Indictment he may be charged with the Fact And this appears to me very evident in Reason and agrees with our Books as 19 H. 6. 47. 6. he who is consenting to the making of false Money commits High-Treason for he is Particeps Criminis before the Fact But it is held in Conyers Case Mich. 13 14 Eliz. Dyer 296. that in the same Case if one after the Fact done know thereof and receive the Party this is but Misprision of Treason and with this accords 3 H. 7. 10. which diversity Stam. Pleas of the Crown fol. 3.
same Term the said Judges of the Kings Bench Barons of the Exchequer and Justice Fenner and Yelverton who were omitted before and We the Justices of the Common-Bench were commanded to attend the Council And being all assembled We of the Common-Pleas were commanded to retire and then the King demanded their Opinions in certain Points touching the High-Commission wherein they unanimously agreeing We viz. Coke Walmesly Warberton and Foster were called before the King Prince and Council where the King declared That hy the Advice of his Council and the Justices of the Kings Bench and Barons he will reform the High-Commission in divers Points which after he will have to be obeyed in all Points Whereupon I said to the King That it was grievous to Us his Majesties Justices of the Bench to be severed from our Brethren but more grievous that they differed from us in Opinion without hearing one another especially since in what we have done in Sir VVilliam Chancys Case aud others the like concerning the Power of the High-Commissioners was done judicially in open Court upon argument at the Bar and Bench. And further I said to the King that when we the Justices of the Common-Pleas see the Commission newly reformed We will as to that which is of Right seek to satisfie the Kings expectation and so We departed c. Trin. 9 Jac. Regis Stockdale's Case in the Court of VVards The King by Letters Patents dated 9. April the ninth year of his Reign did Grant to VVilliam Stockdale in these words Such and so many of the Debts Duties Arrearages and Sums of Money being of Record in our Court of Exchequer Court of Wards Dutchy-Court or within any Court or Courts c. in any year or several years from the last year of the Reign of H. 8. to the 13th year of Our Dear Sister as shall amount to the sum of 1000 l. To have takâ— levy c. the said Debts c. to the said VVilliam Stockdale his Executors c. And in this Case divers Points were resolved 1. That the said Grant of the King is void for â—he incertainty for thereby no Debt in certain can pass As if the King have an 100 Acres of Land in D. and he Grants to a Man 20 Acres of the Lands in D. without describing them by the Rent Occupation or Name c. this Grant is void 2. When the Patentee Claims by force of this word Arreragia It was resolved clearly That he shall not have Arrearages of Rents Reliefs and mean Rates of Lands c. in the Court of Wards c. if the Patent go not further But the Proviso in the end of the Patent viz. Provided that the said VVilliam Stockdale shall take no benefit by any means of Arrearages of any Rents c. untill Sir Patrick Murrey and others be paid the sum of 1000 l. c. hath well explained what Arrearages the King intended But clearly mean Rates are not within the words for they are the Profits of Demesne Land Trin. 9 Jacobi Regis Divers men playing at Bowles at great Marlow in Kent two of them fell out and a third man who had not any quarrel in revenge of his Friend struck the other with a Bowl of which he dyed This was held Manslaughter because it happened upon a suddain motion In the same Term a special Verdict divers years past found in the County of Hertford which was That two Boyes fighting together one was seratched in the Face and bled very much at the Nose and so he run three quarters of a Mile to his Father who seeing his Son so abused he took a Cudgel and run to the place where the other Boy was and stroke him upon the Head upon which he dyed And this was held but Man-slaughter for the Passion of the Father was continued and no time to judge it in Law Malice prepense And this Case was moved ad mensam c. Mich. 9 Jac. Regis Memorandum upon Thursday in this Term a High Commission in Causes Ecclesiastical was published in the Archbishops great Chamber at Lambeth in which I with the Chief Justice Chief Baron Justice VVilliams Justice Crooke Baron Altham and Baron Bromly were named Commâ—ssioners among all the Lord of the Council divers Bishops Attorney and Sollicitor and divers Deans and Doctors in the Cannon and Civil Laws And I was commanded to sit by force of the said Commission which I refused for three Causes 1. Because neither I nor any of my Brethren of the Common-Pleas were acquainted with it 2. Because I did not know what was contained in the new Commission and no Judge can execute any Commission with a good Conscience without knowledg for Tantum sibi est permissum quantum est Commissum 3. That there was not any necessity of my sitting who understood nothing of it so long as the other Judges whose advise had been had in this new Commission were there 4. That I have endeavoured to inform my self of it by a Copy from the Rolls but it was not enrolled 5. None can sit by force of any Commission till he hath taken the Oath of Supremacy according to 1 Eliz. and if I may hear the Commission read and have a Copy to advise upon I will either sit or shew cause to the contrary The Lord Treasurer perswaded me to siâ— but I utterly refused it and the rest seemed to incline Then the Commission was openly read containing divers Points against the Laws and Statutes of England At hearing of which all the Judges rejoyced they sate not by it Then the Archbishop made an Oration during all which as the reading of the Commission I stood and would not sit and so by my Example did the rest of the Judges And so the Archbishop appointed the great Chamber at Lambeth in Winter and the Hall in Summer and every Thursday in the Term at two a clock Afnoon and in the Forenoon one Sermon Mich. 9 Jacob. Regis In this Term the Issue in an Information upon the 〈◊〉 2 H. 6. 15. was tryed at the Bar and upon Evidencâ— upon the words of the Statute which are That evâ—â—y person that sets or fastens in the Thames any Nets or Enâ—iâ—â—s called Trincks or any other Nâ—ts to any â—â—sts c. to stand continually day and night forfeits to â—he King 100 s. for every time c. And the Defendants having set and fastned Nets called Trincks in the Thames c. to Boats day and night as long as the Tide served and nor continually The Question was If this was within the Statute and it was clearly Resolved That it was within the Statute for the Nets called Trinks cannot stand longer than the Tyde serve and for this the word continually shall be taken for so long as they may stand to take Fish for lex non intendit aliquid impossibile Mich. 9 Jacob. Regis Shulters Case in the Star-Chamber The Case was such John Shulter of Wisbich of the age of 115 years
had Issue John his eldest Son and others viz. Christopher Richard c. and being seized of Land in Fee oâ— 100 Marks per annum value his eldest Son being dead and his Grandchild John withâ—n age he gave direction for a Lease to be made of a Faâ—m called Roushal to Christopher during the minority of his Grand-child rendring the antient Rent with power of Revocation and of Lands in Yatesbury to Richard in the same manner and the same time Chrâ—stopher and Richard by the Covin of one Woodruff a Serivener 25 Eliz. drew two Leases to Christopher and Richard for 51 years rendring 4 d. per annum and without any power of Revocation John Shulter the Grandfather being blind with age and Woodruff telling him they were according to his direction And thereupon John Shulter thâ— Grandfather sealed and delivered them And it was resolved by the Lord Ellesmere Chancellor and two Chief Justies That the said Indentures could not bind the said John Shulter because he was blind and the effect was declared to him other than in truth it was Iâ— fully agreed with Mansers Case in the second part of my Reports fol. 4. Mich. 9 Jacobi Regis Sir Anthony Ashley's Case The Case was this Sir James Creyton had bought a pretended Right of and in the Mannor of â—yddy and Millisent and divers oâ—her Lands of which Sir Anthony had long possession Upon which divers Motions were made concerning Fines acknowledged to be staid c. in the Common-Bench and Sir James not prevailing in it entred into a wicked Conspiracy with several other Defendants in the Cause to accuse the said Sir Anthony of some Capital Crimes whereby he should forfeit all his Lands Goods and Chattels which they should share amongst them and in the end Henry Smith formerly a Servant to Sir Anthony was suborned to accuse the said Sir Anthony of the Muâ—ther of William Rice late Husband of Mary Rice one of the Defendants which William was dead 18 years before and Smith was to have 500 l. for his pains to have a place procured him in the Kings Guard in Ordinary a Proteâ—tion also from the King against his Creditors and a General Pardon Of all which Smith would have assurance before he would make any Accusation of the said Sir Anthony Whereupon Articles in Writing were drawn ingrossed and sealed between Sir James Creyton of the one part and John Cantrel Servant to Hunnings by Smith's Consent and to his use on the other part By which Sir Jaâ—es Covenanted that the said Cantrel and his Heirs after the Conviction and Attainder of Sir Anthony shall have a sixth part of his Mannors c. In consideration whereof Cantrel Covenanted that he should procure Witnesses to Convict the Plaintiff of Murther or other Capital Crimes c. Which Articles were sealed 16 of Feb. 7 Jac. And for the performance of the said Articles Sir James gave Bond of 8000 l. to Cantrel Within two dayes after Smith counterfeits himself sick and then pretending to disburthen his Conscience reveales the said Murther and accused himself for poysoning the said William Rice by the said Sir Anthonies Command so that he himself was Principal Upon this Sir James procures Mary Rice the Widow of the said William Rice to prefer a Petition to the King importing the Accusation aforesaid Which Petition the King referred to the Chief Justice of the Kings-Bench who after full Examination certified the King that he found a false Conspiracy to indict Sir Anthony without any just ground and certified also the effect of the Articles Upon which the King by Advice of the Privy-Councel thought the matter fit to be sentenced in the Star-Chamber Which in the same Term upon ordinary proceeding was heard by six dayes And it was objected by the Defendants Councel That the Bill upon the said Conspiracy did not lye and that it would be dangerous to maintain it for it will deter men to prosecute against great Offenders whereby they will pass unpunished And by the Law Conspiracy lyes where a man is indicted and legitimo modo acquietus but here he was never indicted c. But to this it was Answered and Resolved by the Lord Chancellor the two Chief Justices and all the Court That in this Case the Bill was maintainable though the Party accused was not indicted and acquitted before as it was Resolved in this Court Hill 8. Jac. in Poulter's Case Besides be Sir Anthony guilty or no the Defendants are punishable for promising Bribes and Rewards to Smith to accuse the Plaintiff and the Articles to share Sir Aâ—thonies Estate after Attainder And there is a great Indignity offered to the King in assuming to Covenant that the King shall protect or pardon or that any man's Estate may be shared before Attainder And it appeared by many Witnesses that William Rice dyed not of any poysoning but of a horrible Disease got by his dissolute life which with Reverence cannot be spoken And in this Case it was Resolved That if Felony be done and one hath suspition upon probable matter that another is guilty of it he may arrest the party so suspected to bring him to Justice But in this Case three things are to be observed 1. That a Felony be done 2. That he that doth arrest hath suspition upon probable cause 3. That he himself who hath the suspition arrest the party Resolved also That if Felony be done and common fame and noise is that one hath committed it this is good cause for him that knowes of it to arrest the party and with this agrees the Book 2 H. 5. 15 16. 15 H. 7. 5. 20 H. 7. 12. 21 H. 7. 28. 7 Ed. 4. 20. 8 Ed. 4. 27. 11 Ed. 4. 4. 6. 17 Ed. 4. 5. 6. 20 Ed. 4 6. B. 7 H. 4. 25. 27 H. 8. 23. 26 H. 8 9. 7 Eliz. Dy. 226. Hill 9 Jac. Regis In this Term the Attorney and Sollicitor consulted with me if at this day upon Conviction of an Heretick before the Ordinary the Writ de Haeretico combunendo lyeth and it seems to be clear that it doth not for the Reasons and Authorities that I have reported Trin. 9 Jacob before But after they consulting with Fleming Chief Justice Tanfield Chief Baron and Williams and Crook And they upon the Report of Dr. Cosins mentioned in my said Report and some Prâ—sidents in Queen Elizabeth's time they certified the King that the said Writ lyeth but that the most sure way was to convict the Heretick before the High Commissioners Pasch 10 Jac. Regis The Lord Vaux his Case In this Term the Lord Vaux was indicted of a Premunire in the Kings-Bench upon the New Statute for refusing the Oath of Allegeance upon his Arraignment he prayed he might be tryed per Pares But iâ— was Resolved That he shall not for that Magna Charta cap. 29. Nec super cum ibimus nec super eum mittemus nisi per legale judicium parium suorum is onely to be
understood of Treasons Misprision of Treason Petit Treason and Felony and their Accessaries c. But Premunire is but a contempt and Pardon of all Contempts pardons it Whereupon the Lord Vaux confessed the Indictment Vide Lamb Justice dâ—l Peace 520 Dallisons Report accordingly Vide Stamford c. Trin. 10 Jacob. Regis Countess of Shrewsbury's Case In this Term before a select Councel at York-house the Countess of Shrewsbury Wife of Gilbert Earl of Shrewsbury then Prisoner in the Tower was brought and by the Kings Attorney and Sollicitor was charged with a high Contempt of dangerous consequence declaring That the Lady Arbella being of the Blood-Royal had marryed Seymor the Earl of Hertford's second Son without the King's Consent for which he was committed to the Tower and had escaped and fled beyond the Seas And the Lady Arbella being under restraint escaped also and embarked her self on the Sea but was taken ere she got over of which flight of the Lady Arbella the said Countess well knew as is directly proved by Crompton and not denied by the Lady Arbella And admitting the Lady Arbella had no evil intent against the King yet when she fled and should be inviron'd with Evil Spirits cum perversis perverti possit Now the Charge was in two Parts 1. That the Countess of Shrewsbury being by the King's Command called to the Councel-Table and being required by the Lords to declare her knowledge touching the said Points she answered she would not answer particularly and being again by the King's Commands asked by the Councel at Lambeth she refused for two Causes 1. Because she had made a Vow that she would not declare any thing in particular touching the said Points and she said it was better to obey God than Man 2. She stood upon her Priviledge of Nobility viz. to answer when Judicially called before her Peers such Priviledge having been allowed to William Earl of Pembroke and the Lord Lumly 2. The second Point of the Charge was That when the Answer she had made was put in Writing and read to her yet she refused to subscribe the same Which Denial was urged by the King's Councel as a high contempt c. And the Countess hearing the Charge yet persisted in her obstinate Refusal for the same Reasons the insisted on as before And the Lord Chancellor began and the Archbishop and the other Lords adjudged it a great and high Contempt And that no such allowance was to the Earl of Pembroke or Lord Lumly as was supposed And the Archbishop and Earl of Northampton proved by Scripture that the said Case now was against the Law of God All that the Justices said was That they might well be silent but that silentium in Senatu est vitium and therefore they briefly speak of three things 1. Whâ—ther the Refusals aforesaid were Offences in Law against the King his Crown and Dignity 2. What Proceeding this is and if justifiable by President or Reason 3. What the Offences are and how punishable 1. As to the first It was resolved by the Justices and Master of the Rolls that the denying to be examined was a high Contempt against the King his Crown and Dignity and upon hope of Impunity it will be an encouragement to Offenders as Fleming Chief Justice said to enterprize dangerous Attempts The Master of the Rolls said the Nobility in this Case had no more priviledge to deny to be examined than any other Subject Also if one Noble be sued and a Peer be sued in Star-Chamber or Chancery they must answer upon their Oaths And if produced as a Witness they ought to be sworn And therefore for maintaining of Order the Chief Justice said he would recite some of those Honourable Priviledges which the Law of England attributes to Nobility 1. If a Baron Viscount Earl c. be Plaintiff in any Action and the Defendant will plead that the Plaintiff is not a Baron c. this shall be tryed onely by the Record in Chancery which imports by its self solid truth 2. Their Persons have many Priviledges in Law 1. At a Subjects Suit they shall not be arrested 2. Their Bodies are not subject to Torture in causa criminis â—aesae Majestatis 3. They are not to be sworn in Assizâ—s Juries or Inquests 4. It is Felony in any Servant of the King named in the Checquer Roll to compass or intend to kill any Lord of Parliament or of the King's Councel 5. In the Common-Pleas a Lord shall have Knights returned of his Jury 6. He shall have Day of Grace 7. Shall not be Tryed in case of Treason Felony or Miâ—prison of them but by those that are Nobles and Peers 8. In Tryal of a Peer the Lords of Parliament shall not swear but give their Judgment Super Fidem Ligeantiam Domino Regi debitam And the King honours with Nobility for two Causes 1. Ad consulendum and therefore he gives them a Robe 2. Ad Defendendum Regem Regnum and therefore he gives them a Sword And therefore as they derive their Dignities with those Honourable Priviledges from the King to deny to answer being required by the King is a high Contempt accompanied with great Ingratitude This Denial is contra Ligeantiam suam as appears by the Antient Oath of Allegeance And the Law hath greater account to a Noble-mans Allegeance then one of the Commons because the breach of their Allegeance is more dangerous for Corruptio optimorum est pessima 2. As to the second Point viz. concerning the manner of Proceedings 1. Privative It is not to fine imprison or inflict corporal punishment for that ought to be assessed in some Court Judicially 2. Positive The Fine is ad monendum or at most ad minandum it is ad instruendum non ad destruendum This selected Councel is to express what punishment this Offence justly deserved if judicially proceeded against in the Star-Chamber Therefore this Proceeding is out of the King's Mercy to this Lady that seeing her Offence she might submit to the King without any Judicial Proceedings against her And though the Law puts Limits to the King's Justice it doth not so to his Mercy Et ideo processus iste est regalis plane rege dignus And this manner of Proceeding is fortified by the President of the Earl of Essex against whom such Proceedings were in this very place 42 43 Eliz. As to the last Point It was resolved by all quasi una voce that if a Sentence should be given in the Star Chamber she should be fined 20000 l. and imprisoned during the Kings pleasure Trin. 10 Jacobi Regis Robert Scarlet 's Case Note That at the Sessions of Peace lately holden at Woodbridge in Suffolk the Sheriff returned a Grand Inquest of which one Robert Scarlet desired to be one But the Sheriff knowing the malice of the man refused to return him Yet by Confederacy with the Clark who read the Pannel he was sworn of the Grand Inquest
and being amongst them of the Grand Inquest though not returned as one of them of his malice and upon his own knowledge as he pretended indicted 17 honest men upon divers penal Laws Some of the Justices looking over the Bills and seeing so many honest men indicted as they supposed malitiously demanded what Evidence they had to find the said Bills and they answered By the Testimony and Cognizance of one of themselves viz. Robert Scarlet And upon Examination it appeared that the said Robert Scarlet was not returned but had procured himself to be sworn by Confederacy as aforesaid For which Offence he was indicted at the Summer Assizes following 10 J c. held at Buâ—y upon the Statute 11 H. 4. c. 9. And he pleaded not guilty All the especiall Matter aforesaid being proved he was found guilty by a substantial Jury And in this Case divers Points were considered 1. Whether Justices of Assize have power to punish this offence or no And it was held affirmatively scil by force of their Commission of Oyer and Terminer And if the Act be indefinite or general and doth not give Jurisdiction to any Courts in special the general words of Commission of Oyer and Terminer extends to it Vide 7 Eliz. Dyer Commissioners of Oyer and Terminer may inquire of Offences against Penal Statutes unless the Statute appoint them to be determined in any Court of Record And the Opinion there that in any Courts of Record are restrained to the four ordinary Courts at Westminster is not held for Law as the Statute 5 Ed. 6. 14. against Forestallers c. gives the Penalty to be recovered in any Court of Record And Justices of Assize in regard of their Commission of Oyer and Terminer have always enquired thereof So the 33 H. 8. 9. of unlawful Games And of Woods 35 H. 8. c. 17. and many others 2. The second consideration was upon the Statute 11 H. 4. cap. 9. and it was held that Robert Scarlet was an Offender within that Statute because knowing he was not returned of the Grand Inquest procured himself by false Conspiracy to be sworn as aforesaid 3. The third Consideration was had of 3 H. 8. 10. which alters the Act of the 11 H. 4. in part as to denomination But in regard that still by that Act none can be of any Grand Inquest but by Return of the Sheriff And for this the Act 3 H. 8. 10. hath not altered the Law as to the Offence of Robert Scarlet 4. The said Act 11 H. 4. hath made a new Law viz. That any Indictment found against the said Act shall be void So that this may draw in Question all the Indictments found at the same Sâ—ssions And for this Judgment was given that he should be fined and imprisoned Trin. 10 Jac. Regis Baker and Hall's Case Note Upon Consideration of the Statute 3 H. 7. c. 14. It was Resolved by Coke Chief Justice of the Common-Pleas Yelverton Williams Snig and others That whereas it is provided that what person soever takes a Woman so against her Will c. in respect of this Word So which hath relation to the Preamble It was agreed by all that if the Wife hath nothing nor is Heir apparent it is out of the Statute for iâ— would not have been so curious in describing the Person and all in vain And Clergy is taken away by the 38 Eliz. cap. 9. for Principals or Procurers before Vide Stamf. so 37. b. and so was the Law taken 3 4 P. M. Vide Lamb 252. Note Receivers of the Woman are Principals but not the Receivers of them who took the Woman Vide Lamb. bid Note I saw a Report in Queen Mary's time upon the 50 Ed. 3. cap. 5. and 1 R. 2. cap. 15. concerning arresting Priests in Holy Church that the said Statutes are but in affirmance of the Common-Law and 't is there held that eundo redeundo morando for to celebrate Divine Service the Priest ought not to be arrested nor any who aid him in it and that the Party grieved may have an Action upon the Statute 50 Ed. 3. For though an Act doth not give an Action yet Action lyeth upon it 7 H. 6. 30. c. 2 H. 5. and 4 Ed. 4. 37. Vide Register in breve super Stat. Note If a man be convicted or hath Judgment of Death for Felony he shall never answer by the Common Law to any Felony done before the Attainder so long as the Attainder remains in force Vide 8 Eliz. c. 4. 18 Eliz 7. And at this day if a man be adjudg'd to be hang'd and hath his Pardon he shall never answer to any Felony before for he cannot have two Judgments to be hang'd Aliter If the first Attainder by Errour be reversed Vide 10 H. 4. Coroâ— 227. Case del Appeal c. A man seized of a Mannor to which he hath stray appendant by Prescription c. by his Bayley he seizeth an Ox as a Stray in the Mannor and makes Proclamation according to Law and within the Year and Day le ts the Mannor with all Royalties c. And Dyâ—r Sergeant moved the Court who should have the Stray And Brown Justice was of Opinion that the Lâ—ssor should have it But all the Justices were against him that the Lessee shall have it because the property of the Stray is not altered before the Year and Day and till then the Lord or the Mannor hath but the custody of it In Dr. Hutchinson's Case Parson of Kenn in Devonshire It was Resolved per totam Curiam That if any shall receive or take Money Fee Reward or other Profit for any Presentation to a Benefice with Cure although in truth he which is presented be not knowing of it yet the Presentation Admission and Induction are void per expressa verba Statuti 31 H. 8. cap. 6. and the King shall have the Presentation hac vice But if the Presence be not cognizant of the Corruption then he shall not be within the Clause of Disability in the same Statute and so it was Resolved by all the Justices in Fleetstreet Mich. 8. Jac. so 7. vide verba statuti Hugh Manneyes Case In an Information in the Exchequer against Hugh Manney Esque the Father and Hugh Manney the Son for Intrusion and cutting a great number of Trees in Merionâ—th shire the Defendants plead not guilty and one Rowland ap Eliza produced as a Witness for the King deposed upon his Oath that Hugh the Father and Son joyned in sale of the said Trees and commanded the Vendees to cut them down The Jury found upon this great Damages for the King and Judgment was given and Execution had of a great part Hugh Manney the Father exhibited a Bill in the Star-Chamber at Common-Law against Rowland ap Eliza and assigns the Perjury in this That the said Hugh the Father did never joyn in Sale nor command the Vendees to cut the Trees and Rowland ap Eliza was convict
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
Benevolent Hearts By this means he collected great Sâ—ms of Money but with some grudge 11 H. 7. ca. 20. An Act was made for levying that Benevolence 20 H. 7. A Commission to levy what was granted 11 H. 7. 15 H 8. A Commission under the Great Seal called A Commission of Anticipation 16 H. 8. For Warre with Fraâ—ce a Benevolence levyed with great Curses against the Councel for it was for a sixth part of the value in Money or Plate against the Subjects good-will 26 H. 8. Another Benevolence levyed by Commission against the Subjects Will But if the Subjects will of their free Will give the King any Moneys this is not prohibited by any Stature This is proved by the 11 H. 7. c. 18. Feb. Anno 40 Eliz. Resolved by all the Justices and Barons That a free Grant to the Queen without coertion is lawful and accordingly they granted the Queen Quod not a hene Quia c. Pasch 12 Jac. Regis The Case of Dungannon in Ireland being a New Corporation was thus The King Constituted the Town of Dungannon to be a Free Borough Et ulterius volumus c. quod Inhabitantâ—s Villae praedictae sint unum corpus corporatum per nomen Praepositio 12 Burgensium Communiâ—atis Dungannon c. Et quod ipsi praedicti Praepositi Burgenses successores sui habeant potestaten eligendi duos Burgenses c. ad Parl. c. And the Doubt was If this Grant of Election of Burgesses of Parliament were good because it was granted but to parcel of the body viz. the Provost and Burgesses and not to the Commonalty And the Chief Baron thought this being but a Nomination it was sufficient to make the Provost and Burgesses onely to have it but this was denyed by all Justices and Barons For the power to Elect Burgesses is an Inheritance which the Provost and Burgesses are not capable of and ought to be vested in the entire Corporation And so it was Resolved by all That such a Grant made by the King should be void for the Inhabitants have not Capacity to take an Inheritance as in 15 Ed. 4. to have Common And Littleton saith in his Chapter of Burgage That the Burroughs which send Burgesses to Parliament were the most antient and chief Cities c. So that it shall be intended that at first they were incorporate Also Plus valet saepenumero vulgaris consuetudo quam regalis concessio But it was Resolved by Hâ—bbard Tanfield Altham Wiâ—th Nicols and Haughton that Quod Volumus was a good word of Grant as Pigot was of Opinion 21. Edw. 4. and this shall be implyed a Grant to all the Corporation that the Provost and Burgesses shall Elect c. And regularly when the Grant is indefinite viz. First Concedimus an incertain thing ulterius volumus quod Praepositus Burgenses Successores sui eligerint This shall be within the first Concedimus to all the Body But the Chief Justice of England and Dodderidge thought the contrary Note All the New Corporations were of the same Form and in none of them is any Clause to Elect New Burgesses so that when the modern Burgesses dye the power to Elect Burgesses is gone Mich. 12 Jacobi Regis A Question was moved to the Chief Baron and Justices of Sergeants Inn in Chancery-Lane That if a Felon be convict either by Verdict or Confession if immediatly by his Conviction his Goods and Chattels be forfoited And it was said That if the Felon after Conviction pray his Clergy he then shall clearly forfeit his Goods and Chattels for Quodam modo this is a Flight because refusing the Common-Law he flyes to Priviledge of Holy Church But it was Resolved by the chief Baron and Justices That immediatly by his Conviction his Goods and Chattels are forfeited and the praying of his Clergy is not any Forfeiture and with this agrees Stamf. sol 192. a. and also 1 R. 3. And of the same Opinion was the Chief Justice and Justices of Sergeants Inne in Fleetstreet Vid. Trin. 41 Eliz. 332. Mich. 12 Jacobi Regis Anne Hungate's Case in Cam. Stell In this Term a great Case was heard and determined in the Star-Chamber between Sir Henry Day who dyed pendent the Bill and Anne his Wife and Nicholas Bedingfield Esque and Elizabeth his Wife Plaintiffs And Anne Hungate Widow Sir Robert Winde Henry Branthwait Esque Thomas Townesend Esq Thomas Blomfield Gent. and George Min Gent Defendants The Case was thus Henry Hoogan Esq being seized of the Mannor of Hamonds and of divers Lands of East-Bradenham c. in Norfolk in Fee by Deed enfeoffed them in the use of the said Anne who took Hungate to Husband and had Issue by him a Son and a Daughter and he dyed Anne obtained the Wardship of the Son and after when the Son was of the Age of 21 years wanting onely 6 Weeks by Dedimus potestatem directed to Sir Robert Winâ—e Henry Branthwayt then Feoâ—ary and Thomas Townesend they took Cognizance of a Fine of the said Son being of the Age aforesaid and sick And the Bill charged them all with Practice in procuâ—ing the said Son to acknowledge the said Fine they knowing him under Age and in Wardship as aforesaid but there was no practice used by any of the Defendants but the Son of his own good-will levyed it And by Indâ—nture the use was limited to his Mother the said Anne and her Heirs with power of Revocation by the Son upon tender of 10 s. And this was in consideration that the Mother had paid the Debts of his Father which were very great and had obtained the Wardship of him and to confirm her Joynture And that his Mother if she pleased might give it to his Brother by Hungate who was but of half-bloud And it appeared the Mother knew the Son to be within Age but the Commissionars were ignorant of it nor did they send for the Church-Book in which his Age did appear being in the same Parish And the Plaintiffs Councel prayed that the Defendants should be punished for their Misdemeanour And that the Women Plaintiffs who were Cosins c. Heirs to the said Son of the entire bloud should be dis-inherited by the said Fine To which it was Resolved by the two Chief Justices and chief Baron That there was not any Crime punishable by the Law in this Case for the Judges of the Law and of this Court may punish Offences c. but they cannot create Offences nor do as Hannibal did to make his Way over the Alps when he could find none for Judicandum enim legibus ubi non est lex ibi nec est transgressio And therefore if a Fine levyed by an Infant be not Reversed during his Minority 't is unavoidable in Law because the Infants Age is to be tryed Non testium testimonio non juratorum veredicto sed Judicis inspectione solummodo F. N. B. sol 21. And for this it was Resolved by the said
the Law behead his Wives for Treason for judicandum est legibus non exemplis Tâ—iâ— 9 Jacob. Regis In this Term I moved the Justices in Sergeants Inne in Fleetstreet upon the Stat. 27 Jac. cap. 6. If the Justices of Peace may make a special Warrant to Constables c. to have the bodies of parties who are to take the Oath according to the Statute before them And it was Resolved by all unâ voce that they may and that for two Reasons 1. When the Statute gave power to Justices of the Peace to require any persons c. to take the Oath the Law implicite gave power to make a Warrant to have the body for Quando lex aliquid alicui concedit conceditur et id sine quo res ipsa esse non potest 2. It is against the Offices of the Justices and the Authority given them by that Statute that they shall go and seek the parties Then I moved if in such case the Constables may break the Houses of the Parties named in their Warrants and it seemed to Us all that they cannot because they are not Offenders till they refuse to take the Oath before them or commit some Contempt to the King Note If the person be fugitive in another County he evades the Statute for the present but he may be indicted for Recusancy and the Indictment be removed into the Kings-Bench and they may make Process against them into any County of England Also if they are in their Houses the Door being shut c. they may be indicted before the Justices of Assize or Quarter-Sâ—ssions and then after a Venire Facias c. by force of a Capias their Houses may be broken by the Sheriff 10 Eliz. cap. 2. to which the 23 Eliz. refers Memorandum Hill 9 Jac. All the Justices of England by the Kings Command were assembled to consider of these two Statutes And in the beginning of this Term they were recited and debated and after good consideration and Conference together It was Resolved by all That if one be indicted for Recusancy the Court may proceed by Process upon the Stat. 23 Eliz. or by Proclamation according to 28 Eliz. And that the Process upon the Indictment and Venire Facias and Capias c. and upon the Capias the Sheriff upon Request made to open the Door as in Seymans Case and when by the Sheriff brought into Court he may upon refusal of taking his Oath be generally indicted c. But the Justices upon the second day of Conference did not speak to the other Point And this Resolution being reported to the Lords of the Councel aâ— Whitehall all the Judges being present 7 Feb. Hill 9 Jacob. Regis We were desired to put our Resolution into Writing I answered The Judges never used so to do But if the Attorney or Sollicitor came to us we will deliver our Opinions to them ore tenus but not in Writing At thâ— third day upon the Conference in this Term it seemed upon the Statute 3 Jac. If Justices of Peace upon Refusal before them commit any person to Gaol with Bayâ— and mention in their Warrant the Tender and Refusal then the Oath ought to be tendred again But if the Mittimus do not comprehend the Tender and Refusal then they may be generally indicted as upon Refusal in â—pon Court And it was Resolved That the major number of Justices of Peace who commit the Parties have Election to commit to the next Assizes or the next Sâ—ssions And observe that two Justices whereof one of the Quorum by the Stat. 7 Jac. may commit any person above the Age of 18. and under the Degree of Nobility altâ—ough he be not indicted or convict And it was Resolved by all That if the Indictment be commenced upon the Stat. 3 Jac. upon Refusal in open Court then the Indictment may be short and general c. Not so if the Indictment be upon the Commitment made by two Justices of the Peace This is good of any person whatsoever Mich. 10 Jac. Regis The Earl of Northampton's Case 1. The Attorney-General informed against Thomas Goodrick Gent. Sir Richard Cox Kt. Henry Vernon Gent. Henry Minors Thomas Lake Gent. and James Ingrum Merchant ore tâ—nus in the Star-Chamber and charged Goodrick that he had spoken and published of the E. of Northampton a Peer of the Realm c. divers false and horrible Scandals scil That more Jesuits Papists c. have come into England since the Earl of Northampton was Guardian of the Cinque-Ports then before 2. That the said Earl had writ a Book openly against Garnet c. but secretly had writ a Letter to Bellarmine intimating that he writ the said Book ad placandum regem sive ad faciendum populum and requested that his Book â—ight not be answered and that the Archbishop of Canterbury had told it the King and that the said Goodrick told it to one Deusbery who acquainted the Earl with it Goodrick being examined vouches Sir Richard Cox for Author Sir Richard Cox vouched the said Vernon Vernon cited Lake Lake that he heard it from Sergeant Nichols Nichols said one Speaket related it to him and that he heard it from James Ingrum and James Ingrum said that in October he heard the said words of two English Fugitives at Ligorn but never published them till the Earl of Salisbury's death in May last And all the Defendants confâ—ssed at Bar all that they were charged with and at the Hearing of this Case were 11 Judges Fleming being absenâ— propter aegritudinem And so it was Resolved That the publishing of false Rumours concerning the King or the Peers was in some Cases punishable by the Common-Law But of this were divers Opinions 1. And first as to Rumors themselves 1. They ought to be fase and horrible 2. Such of which Discord may arise betwixt the King and his People c. West 2. c. 24. 2 R. 2. cap. 53. 3. The Subversion and Destruction of the Realm ibidem 2. As to Persons they declared to be Prelates Dukes Earls Barons c. Justice of the one Bench or other or any great Officers c. 2 R. 2. c. 5. And the King is contained within West 1. c. 34. as appears in Dyer 5 Mary 155. 3. As to the third Point it was Resolved That if one hear such false and horrible Rumors it is not lawful to relate them to others And this appears by the Stat. viz. That the Party shall be imprisoned until he find out the party who spoke them Which proves it was an Offence else he should not be punish'd by Fine and Imprisonment It was also Resolved That the Offenders at the Bar if against them the Proceedings had been by Indictment upon these Statutes no Judgment could be had against them that they should be imprisoned till they found their Author for Goodrick did not relate to Deusbery that he heard from Sir Richard Cox but he related the same as of himself
Ayd Hill 6 Jacob. Regis Prohibitions Upon Ashwednesday in Feb. 1606. A great Complaint was made by the President of York to the King That the Judges of the Common-Law had in Contempt of the Kings Command last Term granted 50 or 60 Prohibitions out of the Common-Plâ—as to the President and Councel of York after the 6th of February and named 3 in particular 1. Between Bell and Thawptes 2. Another between Snell and Huâ—t 3. And another in an Information of a Riotous Rescue by English Bill by the Attorney-General against Christopher Dickenson one of the Sheriffs of York and others in rescuing one William Watson out of the Custody of the Deputy of one of the Purseyvants of the said Councel who had Arrested the said Watson by force of a Commission of Rebellion by the said President and Councel awarded Which Prohibition upon the Information was as was said denyed upon a Motion in the Kings-Bench the last Term but granted by Us. And the King sent for me to answer the Complaint and I onely all the rest of the Justices being absent waited upon the King who in the presence of Egerton Lord Chancellor and others of the Privy-Councel rehearsed to me the Complaint aforesaid And I perceived well that the King had thereupon conceived great displeasure against the Judges of the Common-Pleas but chiefly against Me To which I having the Copy of the Complaint sent me by the Lord Treasurer answered in this manner That I had made search in the Office of Prothonotaries of the Common-Pleas and as to the Cases between Bell and Thawpts and Snell and Huet no such could be found but I would not take advantage of a Misprisal And the truth was the 6th of February the Court of Common-Pleas had granted a Prohibition to the President and Councel of York between Lock Plaintiff and Bell and others Defendants and that was a Replevin in English was granted by the said President and Councel which I affirmed was utterly against Law for at Common-Law no Replevin ought to be made but by Original Writ directed to the Sheriff and the Statute of Marlbridge cap. 21. and West 1. cap. 17. authorize the Sheriff to make a Replevin So 29 Ed. 3. 21. 8 Eliz. Dyer 245. And the King by his Instructions neither had made the President and Councel Sheriffs nor could grant them Power to make a Replevin against Law which the Lord Chancellor affirmed for very good Law and it may well be we have granted others in the like Case Another Prohibition I confess we have granted between Sir Bethel Knight now Sheriff of the County of York as Executor to one Stephenson who made him and another his Executors and preferred an English Bill against Chambers and others in nature of an Action of the Case upon a Trover and Conversion of Goods and Chattels in the Testators Life to the value of 1000 l. And because the other Executor would not joyn with him he had no remedy at Common-Law but was forced to pray remedy there in Equity And I say the President and Councel have not any Authority to proceed in that Case for divers causes 1. Because there is an express Limitation in their Commission that they shall not hold Plea between Party and Party c. unless both or one of the Parties tanta paupertate sunt gravati that they cannot sue at Common-Law and in that Case the Plaintiff was a Knight Sheriff and man of great quality 2. Because by that Suit the King was deceived of his Fine which was 200 l. because the Damages amounted to 4000 l. And that was one of the Causes that the Sheriff began his Suit there and not at Common-Law Another Cause was that their Decrees which they take upon them are final and uncontroulable either by Errour or any other Remedy which is not so in the Kings Courts where there are five Judges for they can deny Justice to none who hath Right nor give any Judgment but what is controulable by Errouâ— c. And if we shall not grant Prohibitions in Cases where they hold Plea without Authority then the Subjects shall be wrongfully oppressed without Law and we denyed to do them Justice And their Ignorance in the Law appeared by allowing that Suit viz. That the one Executor had no Remedy at Common Law because the other would not joyn in Suit with him whereas every one Learnâ—d in the Law knows that Summons and Severance lyeth in any Suit brought as Executors And this was also affirmed by the Lord Chancellor Another Prohibition I confess we granted between the L. Wharton who by English Bill before the Councel sued Bank S. Buttermere and others for fishing in his several Fishings in Darwent in the County of C. in nature of an Action of Trespass at Common-Law to his Damages of 200 l. and for the Causes before recited and because the same was meerly determinable at Common-Law we granted a Prohibition And that also was allowed by the Lord Chancellor Then the King asked me the Case of Information upon the Riotous Rescous To which I answered That one exhibited a Bill there in the nature of an Action of Debt upon a Mutuatus against Watson who upon his Oath affirmed that he had satisfied the Plaintiff and owed him nothing yet because he did not deny the Debt the Councel Decreed the same against him And upon that Decree the Pursuyvant was sent to Arrest the said Watson who Arrested him upon which the Rescous was made And because the Action was in the nature of an Action of Dâ—bâ— upon a Mutuatus where the Defendant at Common Law might have waged his Law the Prohibition was granted and that was also affirmed by the Lord Chancellor Also I affirmed it was Rescous because the principal cause belonged not to them but it might be a Riot yet not punishable by them but by course of Law by a Commission of Oyer and Terminer Also I confess that we have granted divers Prohibitions to stay Suits there by English Bill upon penal Statutes for the manner of prosecution as well for the Action Process c. as for the Count is to be pursued and cannot be altered and therefore without question the Councel in such Cases cannot hold Plea which was affirmed also by the Lord Chancellor And I said no Court of Equity can be Erected at this day without Act of Parl as was Resolved in Q. Eliz. time in Parots Case and lately in the Case of the President and Councel of Wales And the King was well satisfied with these Reasons who gave me his Royal Hand and I departed from thence in his favour Pasch 7 Jac. Regis This Term a Question was moved at Sergeants Inne who by the Common-Law ought to repair the Bridges common Rivers and Sewers and the High-ways and by what means they shall be compelled to it and first of Bridges And as to them it is to be known that of common right all the Country shall be
c. Mills c. and to correct repair or pull down c. as cause requireth according to their discretions c. after the effect of the Statute made before the 1. of March 23 H. 8. By which appears that the Commissioners discretion was limited viz. to proceed according to the Statutes and Ordinances before made c. And the said Act provides That all and every Statute Act and Ordinance heretofore made concerning the Premises not contrary to this Act nor repealed shall stand good and be effectual for ever But the said Acts 25 Ed. 3. and 1 H. 4. are not contrary to the said Act nor repealed and always such construction ought to be made that one part of the Act may agree with another And according to this Resolution We certified the Lords of the Councel that the said Star 25 E. 3. 1 H. 4. remained yet in force and that the Authority given by the Commission of Sewers did not extend to Mills Mill-stanks Cawseys c. erected before Ed. 1. unless they have been inhanced and then they are not to be subverted but reformed by abating the Inhancement onely Trin. 7 Jacobi Regis The Case de modo Deciâ— andi and of Prohibitions Richard Archbishop of Canterbury with the Bishops of London Bath and Wells and Rochester divers Doctors of the Civil and Canon-Law as Dr. Dun Judge of the Arches Dr. Rennet Judge of the Prerogative Dr. James Dr. Martin and others came and attended the King at White-Hall the Thursday Friday and Saturday after Easter Term in the Councel-Chamber where the Chief Justice and I my self Daniel Judge of the Common-Pleas and Williams Judge of the Kings-Bench by the King's Command attended also where the King assisted with his Privy-Councel all sitting at the Councel-Table spake as a most Gracious Soveraign to this effect As He would not suffer any Novelties or Innovations in his Courts of Justice Ecclesiastical and Temporal so he would not have any the Laws which had Judicial Allowances in the Times of his Predecessors Kings of England to be forgotten And forasmuch as Contentions between the Temporal and Ecclesiastical Courts cannot but breed great Inconvenience to the Subjects especially when the Controversie ariseth upon the Jurisdiction of his Ordinary Courts of Justice And because he was the Head of Justice immediately under God and knowing what hurt may grow to his Subjects when the Jurisdiction of his Courts are drawn in question He thought it concerned him as a King to hear the Controversies between the Bishops and Clergy and the Judges of his Laws of England and to take Order that the one do not encroach upon the other And He said The onely Question then to be disputed was If a Parson or Vicar of a Parish sues one of his Parish in the Spiritual Court for Tythes in Kind or Layfee and the Defendant alleadgeth a Custom or Prescription de modo Decimandi if that Custom or Prescription shall be tryed and determined before the the Judge Ecclesiastical where the Suit is begun or a Prohibition lyeth to try the same by the Common-Law And the King directed that We who were Judges should declare the Reasons of our Proceedings and what Authorities in the Law we had to warrant our Proceedings in granting Prohibitions in Cases de modo Decimandi But the Archbishop of Canterbury kneeled before the King and desired he would hear him and others provided to speak in the Case for the good of the Church of England And the Archbishop inveighed chiefly against two things 1. That a Modus Decimandi should be tryed by a Jury because they themselves claim more or less modum Decimandi so as in effect they were Tryers in their own Cause or in the like Cases 2. He inveighed much the precipitate and hasty Tryals by Juries and after him Dr. Bennet made a large Invection against Prohibitions in causis Ecclesiasticis and he made five Reasons why they should try modum Decimandi 1. The first and principal was out of the Register fol. 58. quia non est consonans rationi quod cognitio accessarii in Curiae Christianitatis impâ—diatur ubi cognitio causae principalis ad forem Ecclesiasticum noscitur peâ—tinere And the principal cause is Right of Tythes and the Plea of Modus Decimandi sounds in satisfaction of Tythes and therefore the Conuzance of the Original Cause viz. the Right of Tythes belonging to them the Conuzance of the Bar of Tythes belonged to them And whereas it is said in the second Part of my Reports in the Bishop of Winchesters Case and 8 Ed. 4. 14. that they would not accept of any Plea in discharge of Tythes in the Spirituall Court he said they would allow such Pleas and had allowed them being duly proved before them 2. There was great inconveniency that Lay-men should be Tryers of their own Customs for they shall be Jurors in their own Cause 3. That the Custom of Modo Decimandi is of Ecclesiastical Jurisdiction for it is a manner of Tything and all manner of Tything belongs to Ecclesiastical Jurisdiction and therefore he said if the Right of Tythes be of Ecclesiastical Conuzance and the Satisfaction also for them of the same Jurisdiction the same shall be tryed in the Ecclesiastical Court 4. In the Prohibitions of Modus Decimandi Averment is taken that though the Plaintiff in the Prohibition offer to prove Modum Decimandi the Ecclesiastical Court doth refuse to allow it but he said they would allow such Plea and therefore Cessante causa cessabit et effectus and no Prohibition shall lye 5. He said he can shew many Consultations granted in the Cause de modo Decimandi and a Consultation is of greater force then a Prohibition And Bacon Sollicitor General being as is said assigned with the Clergy by the King said less then Dr. Bennâ—t but he vouched 1 R. 3. 4. the Opinion of Hussey when the Originall ought to begin in the Spiritual Court and afterwards a thing cometh in Issue and is Tryable by our Law yet it shall be tryed by their Law See the Register 57 58. 38 Ed. 3 5. and 38 Ed. 3. 6. And the Judges made humble Suit to the King That in regard they perceived his Majesty in his Princely Wisdom derested Novelties and Innovations that He vouchsafe to suffer them to inform him of one Innovation which they did conceive would tend to hinder the Administration of Justice within his Realm Your Majesty for the due Administration of Justice hath made 14 Judges to whom you have committed not onely the Administration of ordinary Justice but crimina Laesae Majestatis Also in Parliament we are called by Writ to give our Advice and Councel to your Majesty and the Lords when we are required We two Chief Justices sit in the Star-Chamber Chancery Court of Wards and other High-Courts of Justice We in our Circuits do visit twice in the Year your Realm and execute Justice according to your Laws and if We
capiantur in Patria A Prohibition lyes to the Justices of Nisi Prius So upon Articuli super chartas cap. 7. to the Constable af Dover Regist 185. So upon the same Stat. cap. 3. to the Steward and Marshal of the Houshold 185. and yet no Prohibition is given by express words in any of these Statutes So upon the Statutes 13 R. 2. c. 3. 15 R. 2. c. 2. 2 H. 4. c. 11. a Prohibition lyes to the Admiralty Court So upon West 2. c. 43. against Hospitals and Templers Regist 39. a. So upon the Stat. de Prohibitione regia a Prohibition lyes So upon the Stat. 2. H. 5. c. 3. and upon that Stat. 4 E. 4. 37. the Case was Peirce Peckham took Letters of Administration of the Goods of Rose Brown of the Bishop of London afterwards T. T. sued to Thomas Archbishop of Canterbury to have Administration committed to him because Rose Brown had Goods in his Diocess and they were granted to him Afterward T. T. Libelled in the Court of the Arches against Peirce Peckham to repeal his Administration and Peirce Peckham according to the Stat. prayed a Copy to the Libel and could not have it and thereupon he sued a Prohibition and upon that an Attachment And there Catesby Sergeant moved that a Prohibition did not lye for two Causes 1. The Statute says that the Libel shall be deliver'd but not that the Plea shall surcease 2. The Statute is not intended of Matter meerly Spiritual And there Danby Chief Justice If you will not deliver the Lâ—bel according to the Statute you do wrong which wrong is a Temporal matter and punishable at the Common-Law and therefore the party shall have a special Prohibition And always after the said Act in every Term throughout the Reigns of Ed. 6. Q. Mary and Q. Eliz. to this day Prohibitions have been granted in Modo Decimando and Judgments given upon many of them without any contradiction and accordingly all the Judges Resolved 7 Ed. 6. Dyer 79. Et contemporanea expositio est optima et fortissima in lege et minime mutanda sunt quae certam habuerunt interpretationem 1. As to the first Objectio That the Plea of Modus Decimandi is but accessary to the Right of Tythes It was Resolved That the same was of no force for three Causes 1. In this Case admitting there is a Modus Decimaâ—di then by the Custom and by the Act 2. E. 6. and the other Acts the Tythes in Kind are extinct and discharged for one and the same Land cannot be subject to two manner of Tythes but the Modus Decimandi is all the Tythe with which the Land is chargeable and it shall be intended that the Modus Decimandi began at first by reall Composition So as in this Case there is neither Principal nor Accessary but an Identity of the same things 2. The Stat. 2 Ed. 6. being a Prohibition in it self and that in the Negative If the Ecclesiastical Judge doth against it a Prohibition lyes as appeareth clearly before 3. Though the Rule be general yet it appears by the Register it self that a Modus Decimandi is out of it for there is a Prohibition in causa modi Decimandi when Lands are given in satisfaction of the Tythes 2. As to the second Objection It was Answered and Resolved That that was from or out of the Question for status Quaestionis non est deliberativussed judicialis for convenient or inconvenient is not the Question but what the Law is 3. As to the third Objection it was answered and resolved First That satisfactio pecuniaria of it self is Temporal But because the Parson hath not remedy pro modo Decimandi at Common by force of the Acts cited before he might sue pro modo Decimandi in the Ecclesiastical Court But that proves not That if he sue for Tythes in Kind which are utterly extinct c. that upon the Plea de modo Decimandi that a Prohibition should not lye for the contrary appears without all question by what hath been said before See also 12 H. 7. 24. b. 39 Ed. 3. 22 E. 4. Consultation As to the Objection That Averment is taken of the Refusal of the Plea of Modus Decimandi It was answered and Resolved That the same is of no force for divers Causes 1. It is onely to inforce the Contempt 2. If the Spiritual Court ought to have the Tryal de modo Decimandi then the refusing to accept such a Plea should give cause of Appeal not of Prohibition 3. From the beginning of the Law no Issue was ever taken upon the Refusal of the Plea in causa modi Decimandi nor any Consultation granted to them because they did not refuse but allow the Plea 4. The Refusal is no part of the matter issuable or material in the Plea and therefore the Modus Decimandi is proved by two Witnesses according to the Stat. 2 E. 6. cap. 13. and not the Refusal which proves the Modus Decimandi is onely the Matter of Suggestion not the Refusal 5. All the said five Matters of discharge of Tythes mentioned in the said Act of 2 Ed. 6. ought to be proved by two Witnesses and so have been always since the making of the said Act. And therefore it clearly intended that Prohibitions should be granted in such Cases 6. Though they would allow bona fide de modo Decimandi without Refusal yet if the Parson sue there for Tythes in Kind when the Modus is proved the same being expresly forbidden by that Act 2 Ed. 6. 13. a Prohibition lyes though the Modus be Spiritual as appears by the Book 4 E. 4. 37. Afterwards the third day of the Debate of this Case before the King Dr. Bennet and Dr. Martin had reserved divers Consultations granted in causa modi Decimandi thinking they might work upon the King's Opinion and thereupon they said That Consultations were the Judgments of Courts had upon Deliberations whereas Prohibitions were onely granted upon Surmises And they shewed 4 Presidents 1. One where three joyntly sued a Prohibition in the Case of modo Decimandi and the Consultation saith Pro co quod suggestio materiaque in eodem content a minus sufficiens in lege existit c. 2. Another in causa modi Decimandi to be paid to the Parson or Vicar 3. Where the Parson sued for Tythes in Kind and the Defendant alleadged modus Decimandi to be paid to the Vicar 4. Where the Parson Libelled for Tythe-Wooll and the Defendant alleadged a Custom to reap Corn and make it into Sheaves and set forth the Tenth Sheave at his Charges and so of Hay to sever it from the Nine Cocks at his Charge in full satisfaction of the Tythes of the Corn Hay and Wooll To which I answer'd and humbly defir'd the King to observe these were reserved for the last and center-point of their Proof And herein these things may be observed 1. That the Kings Courts do them Justice when with
County of Hereford in his Denâ—esne as of Free and found the other Points of the Writ and it was holden by the two Chief Justices and the Chief Baron 1. That Mâ—ssâ—agium vel Tenementum is uncertain for Tenementum is nomen collectivum and may contain Land or any thing that is holden 2. It was holden That it was void for the whole because no Town is mentioned in the Office where the Mâ—ssuage or Tenement c. lyeth and it was holden that no melius inquirendum shall issue forth because the whole Office is incertain and void Trin. 7 Jac. Regis In the Court of Wards The Attorney of the Court of Wards moved the two Chief Justices and the Chief Baron in this Case A man seized of Lands in Fee-simple covenants for the advancement of his Son and his Name Blood and Posterity that he will stand seized of them to the use of himself for life and after to the use of his eldest Son and to such Woman as he shall marry and the Heir-males of the body of the Son and afterwards the Father dyeth and after the Son takes a Wife and dyeth if the Wife shall take an Estate for Life And it was Resolved by the said two Chief Justices and Chief Baron That the Wife should take well enough being within the consideration which was for the advancement of his Posterity and without a Wife the Son cannot have Posterity Secondly It was Resolved that the Estate of the Son shall support the use to the Defendant and when the Contingent happeneth the Estate of the Son shall be changed according to the Limitation viz. to the Son and the Woman and the Heirs of the Body of the Son And so it was Resolved in the Kings-Bench by Popham Chief Justice and the whole Court in Sheffields Case in Q. Elizabeths time Trin. 7 Jac. Regis In the Court of Wards Spary's Case John Spary seized in Fee in the Right of his Wife of Lands holden by Knight-service had Issue by her and 22 Dec. 9 Eliz. alienated to Edward Lord Stafford The Wife dyed the Issue of full age the Alienee holds the Lands And 10 years after the Fathers death and 12 years after the Mothers Office is found 7 Jac. finding all the special Matter after the Mothers death The Question was Whether the mean Profits are to be answer'd to the King And it was Resolved by the two Chief Justices and Chief Baron that the King should have the mean Profits because the Alienee was in by Title and untill Entry the Heir has no Remedy for the mean Profits but that the King might seize and make Livery because the Entry of the Heir is lawful by the Stat. 32 H. 8. Trin. 7 Jac. Regis In the Court of Wards It was found by force of a Mandamus at Kendal in Westmerland 21 Dec. 6 Jac. that George Earl of Cumberland long before his death was seized in Tail to him and to the Heirs-male of his body of the Castles and Mannors of Browham Applâ—by c. the remainder to Sir Ingram Clifford with divers Remainders in Tail the remainder to the right Heirs of Henry Earl of Cumberland Father of the said George and that the said George Earl so seized by Fine and Recovery conveyed them to the use of himself and Margaret his Wife for their Lives for the Joynture of Margaret and after to the Heir-males of the body of George Earl of Cumberland and for want of such Issue to the use of Francis now Earl of Cumberland and the Heir-males of his body and for want of such Issue to the use of the right Heirs of the said George And after by another Indenture conveyed the Fee-simple to Francis Earl By force of which and of the Statute of Uses they were seized accordingly and afterwards the 30 of Octob. 3 Jac. George Earl of Cumberland dies without Heirs male of his body c. And found further that Margaret Countess of Cumberland that now is was alive and took the profits of the Premisses from the death of the said George Earl till the taking the Inquisition and further found the other Points of the Writ 1. And first it was objected Here was no dying seized found by Office and therefore the Office shall be insufficient But to that it was Resolved That by this Office the King was not intitled by the Common-Law for then a dying seized was necessary But this Office is to be maintained upon the Stat. 32 and 34 H. 8. by force of which no dying seized is necessary and so it was Resolved in Vincents Case Anno 23 Eliz. 2. The second Objection was It doth not appear that the Wives Estate continued in her till the Earles death for the Husband and Wife had aliened the same to another and then no primer seizin shall be as is agreed in Binghams Case And to that it was Resolved That the Office was sufficient prima facie for the King because it is a thing collateral and no point of the Writ And if such Alienation be the same shall come in of the other part of the Alienee by a Monstrans de droit And the Case at Bar is a stronger Case because it is found the Councess took the Profits from the death of George the Earl till the finding the Office Trin. 7 Jac. Regis In the Court of Wards Wills Case Henry Wills seized of the 4th Part of the Mannor of Wryland in the County of Dâ—von holden of Q. Eliz. iâ— Socage Tenure in capite of the said 4â—h part enfeoffed Zathary Irish and others and their Heirs to the use of the said Henry for his Life and after his Decâ—ase to Thomas Wills his second Son in Tail and after to the use of Richard Wills his youngest Son in Tail and after the said Henry so seized as aforesaid dyed All this Matter is found by Office And the Question was If the King ought to have primer seizin in this Case that Livery and Ouster le mayne should be sued by the Statutes of the 32 and 34 H. 8. And it was Resolved by the two Chief Justices and the Chief Baron that not if in this Case by the Common-Law no Livery or Ouster le main shall be sued and that was agreed by them all by the experience and couâ—se of the course See 21 Eliz. Dyer 362. and 4 Eliz. Dyer 213. And two Presidents were shâ—wed which were Decreed in the same Court by the Advice of the Justices Assistants to the Court. One in Trin. 16 Eliz. Thomas Stavely enfeoffed William Strelley and Thomas Law of the Mannor of Ryndly in Nottingh â—shire on condition that they re-enfeoffe the Feoffor and his Wife for their Lives the remainder to Thomas Stavely Sâ—n and Heir apparent of the Feoffer in Fee Which Mannor was holden of Q. Elizabeth in Socage Tenure in capite And it was Resolved That no Livery or Ouster le maine shall be sued in such Case because of the saving of the Stat. 32 H. 8.
assigned in the Ve Fa which was certified by Writ of Certiorari and upon this Writ no Return was made upon the Back of the Writ which is called Returnum Album And for that Cause this Easter Term the Judgment was reversed Trin. 7 Jac. Regis In Cur. Wardorum It was found by Writ of Diem clausit extremum after Roger Westcots death that the said Roger the day that he dyed was seized of and in the moiety of the Mannor of Trewalliard in his Demesne as of Fee and so dyed seized and that the moiety of the said Mannor 19 E. 3. was holden of the then Prince as of his Castle of Trematon parcel of his Dutchy of Cornwall by Knight-Service as appears by a certain Exemplification of Trematon for the said Prince made 9 Martii 19 E. 3. And the Words of the Extent were Willielmus de Torr tenet duo feoda et dimid Milit. apud Picke Stricklestombe Trewalliard per servitium militare reddit inde per annum 8 d. And it was Resolved by the two Chief Justices and Chief Baron That the Office concerning the Tenure was insufficient and void for the Verdict of a Jury ought to be full and direct and not with a prout patet for now the force of the Verdict lyes upon the Extentâ— which if it be false he who is grieved shall have no remedy by any Traverse for they have not found the Tenure indefinite which may be Traversed but with a prout patet which makes the Office in that Point insufficient And upon that a melius inquirendum shall issue And herewith agrees F. N. B. 255. FINIS THE TABLE A. AUrum Reginae what and what right the Queen hath to it 19 Alienations by Bishops when voidable by their Successors and when the King or Queen may void them 75 76 Admiralty Jurisdiction thereof is no Court of Record 82 83 84 85. 88 89. 109. 199. 200 201 Absence takes not away a Title of Honour and why 111 112 113 Affidavits false when how and from whom punishable 134 135 Arches Court its Jurisdiction 147 Arch-Bishop of Canterbury his power to act and in what cases 148 149 150 151 Apprentice none may keep a shop c. or set up a Trade c. unless he have served seven years 154 155 Apples whether within the Act for ingrossing and what within that Act 160 B. Bishops when lawfull and their Authority what and whence derived 8 9 Buggery what and how punishable 36 37 Baron who shall be said to be a Baron of Parliament and in what cases 73 74 Benevolence the nature thereof and how may be imposed 124 125 Burgage Tenure what and if tenant in Burgage shall pay aid to the King to make his Eldest Son Knight 169 170 171 172 Bridges who ought to repair them 176 177 C. Custome whence to be paid and of what 16 17. 33 Commissioners High Commissioners their power 17 18. 47 48 49 50 51 52. 72 73. 87 88 89 90 Conspiracy where such action lies for what and against whom 22 23 24. 95 96 97 Commissions what of them are against Law e contra 29 30 31 32. 93 94 Consultation where grantable 43. 46. 67 68 69 70 71 Court Christian their Power 44 Court of Common-Pleas their Power and Antiquity 60 61. 113 114 Convocation authority thereof 76 Contempt what shall be said a high contempt of the King and how punishable 100 101 Chester Chamberlain there his power 118 119 Court what judgement shall be given when the Court is divided in opinion 123 124 Contract what shall be said an intire Contract 205 206 Common when suspended or discharged e contra 214 215 Custome where and how available 216 217 218 219 D. Dignity the King may erect any name of Dignity that was not before or transfer it 85 86. 116 117 Deed obtained by Covin shall not bind 95 Duresse per Gaoler 133 Dower what a barre thereto e contra 161 162 163 164 165 F. Forrests what so properly and what may be done therein 20 21 First-Fruits and Tenths given to the Crown 46 47 Ferry-man when he may throw goods over boord 65 Felony while an Attainder in force no Felony before to be answered for 105 Forgery where punishable and how 108 177 178 Felon when his goods are forfeit 127 Fine levied how avoidable and for what 127 128 129 130 131 132 133. 202 Fine to the Lord of a Manor in Copy-hold ought to be reasonable 143 144 145 146 G. Grants antient not to be drawn in question 6 Grants of the Kings when void e contra 91 92 What shall be a good Grant to elect Burgesses to Parliament 126 H. Heresie what how and by whom punishable 58 59 60 Hand when the right hand shall be cut off and for what 74 75 Habeas Corpus 89 90 Haeretico comburendo the Writ therein lyeth 98 I. Impropriations not examinable and why 4 5 Confirmed by time though defective 5 6 Impositions when they may be laid by the King 32 33 34 Justices of Peace when they may award Processe of Outlawry 107 108 Their Power as to making Warrants 136 137 138 L. Libells what shall be judged a Libell and how and where to be punished 35 35 Law of England to be expounded by the Judges of it and none other 147 Lease for Lives when determinable 216 M. Marriages Priests Marriages not void 9 Marches Courts there when erected and why as also the power of Lords President there 51 53 54 55 56 57 58 Man-slaughter what so adjudged 92 93 Modus Decimandi what where suable 155 156 157 158 159 160. 181 182 183 184 185 186 ad 193 Meane profits when to be answered to the King 196 N. Nobility Priviledge thereof what 100 101 102 O. Oath Ex Officio in what cases the Ordinary may examine Ex Officio upon Oath 25 26 27 28 Office where traversable 106 107 Offices new where and upon what cause they may be erected 121 122 123 Office found where void and why 195 196 197. 222 Where an Estoppell 210 211 P. Procedendo in Loquela not allowable 4 Pardons what offences the King may pardon 28 29 Premunire where it lies and where not and against whom 37 38 39 40 41 42. 98 99 Prohibitions in what cases grantable and against whom and by what Courts 43 44 45 46. 52. 60 61 62 63. 66 67. 80 81. 89. 90. 150 151 152 153 Piracy who shall have Pyrates goods 77 Proclamations what may be prohibited thereby and the validity thereof 78 79 80 Priests may not be arrested in Holy Church c. 104 105 Perjury where punishable 106 Poynings Law how it shall be expounded 114 115 116 117 Portion what shall be said a sufficient Childs Portion 117 Palatine County its Jurisdiction 119 Parliament Forms and Orders of Parliament 119 120 Prohibition where it lies and for what and in what not 155 156 157 158 159 160. 172 173 174 175 176. 181 ad 193 Primer seisin where the King shall have it 198 199 Priviledge of Parliament to be determined by the Court of Parliament 212 213 Processe not to be made out of the Star-Chamben neither for damages nor costs 213 Parish Clerke who shall chuse 219 220 R. Recognizances when forfeited and for what 1 2 3 Rent when determinable by the Lessors death e contra 35 36 Robbery where the Hundred may be sued 64 65 Return when insufficient e contra 135 136 Returnum Album 222 S. Stannaries the Kings Prerogative therein 9 10 11 Salt-petre the Kings Prerogative therein in several points 12 13 14 Simony what it is and the penalty thereof 78 Statute what Officers shall be within the Stat. 5 E. 6. 16. for avoiding corruption 82 83 What is an offence within 11 H. 4. 9. 102 103 Slander fined in the Star-Chamber and why 108 Seat in the Church right thereto 109 110 Scandalum Magnatum what and how punishable 138 139 Sewers the Commissiones therein their power and how antient 179 180 T. Tayle Tenant in Tail may forfeit his Estate and when and for what 6 7 Treason what shall so be accounted e contra 14 15 16 Accessary in Treason who 86 Tenure what shall be said a Tenure in Capite c. 140 141 142 Tithes substracted where to be sued for 165 166 167 Tithes to be paid and for what and the neglect thereof how punishable 193 194 Timber-trees Oakes and Ash who may cut e contra 208 209. 216 217 V. Vowes of what validity in Common Law 99 W. Women Maids c. to take and marry against their Wills is Felony 18 19. 104 Wales Justices there not to be constituted by Commission 50 51 Witnesses Testis singularis not allowable 68 Parties to be no witnesses 72 Widow when and how her election shall determine 117 Winding-sheets felony to steal them 118 Wills and Testaments fees for writing thereof and extortion therein how punishable 177 202 Ward who shall be a ward to the King 203 204 205 Words action for words where it lies 207 208. 221 The End
Helenam ideo ipsi c. Out of which Record these things are to be observed 1. Though it is Enacted by the Stat. West 2. cap. 21. That in this Case Justiciarii c. puniant appellatorem per prisonam unius Anni c. so that they were not Bailable yet quia eadem Helena praegnans fuit in periculo mortis she was let to Bayl to have her Body 15 Mich. ad satisfaciendum praedicto Laurentio et aliis c. And the Reason of this is because the Common-Law requires in every Case conveniency and it is inconvenient a Woman with Child should remain in Common-Gaol And the Judges of the Common-Law ought to know what the Moral Poet spoke Redâ—ere personae sit convenientia cuique and agrees with Advice of Bracton lib. 2. cap. 2. 2. That the Defendants recover their Damages either wholly against the Principle or wholly against the Abettors and with this agrees Ed. 4. 3. 3. Though the Statute saith Restituant Appellatores damna c. yet the Damages shall be singulatim assessed for as the Defamation of one may be greater than another so the Damages of one may be greater than another 4. Though the Appellor be not sufficient to pay yet his body shall be taken ad satisfaciendum Quia qui non habet in aere luat in corpore 5. Though the Jurors in the Appeal have found the Defendants Abettors yet insomuch as they are strangers to the Original they shal not be concluded Quia res inter alios actae alteri nocere non debent Vide the Book of Entries Title Appeal Divisione Damages 1 2. Vide Placita coram rege apud Ebor. in Crast Sancti Trin. 7 Ed. 3. 44. Divisione Indictments are very well worth observing Duresse per Gaoler See there divers sorts of Presentments as of Wollingover John Alnner Thomas Ballivus de Flaxwel Laughton Thomas de Mandon Ballivus de Boby of Grafton Thomas Carleton Under-Sheriff of the County of Lincoln and Hugo de Baxter c. False Affidavits In an Action suâ—le case it was Resolved per totam Curiam That iâ— a Sumner return one certified upon his Oath in Court-Christian where in truth he was not and thereon he is pronounced contumax and so becometh excommunicate he shall have his Action sur le case for here is damaum et injuria And it was Resolved That Perjury by which Damages do accrew may be punished as a Misuemeanour at the Suit of the King and also the Party may have his Action upon the Case for Perjury may not be committed with Impunity And for that Reason If Jurors themselves use Perjury an Attaint â—yes by the Common-Law as appears by Glanvil lib. 2. cap. 29. 15 H. 8. Title Attaint 75. 6 H. 3. ibid. 73 75. and in the time of Ed. 1. â—ttaint 70. West 1 cap. 38. Vide F. N. B. 109 Vid. 27 H. 6. 25. In like manner it was agreed That if one make a false Affidavit by which the Party is Arrested with Process of Contempt he may have an Actioâ— sur le case and recover Damage And though the Court-Christian may punish pro salute animae yet they cannot award Damages to he party And though the matter be meerly Ecclesiastical yet if the Party grieved hath Damages either by wrongful Proceedings of the Judge or Mâ—sfeasans or Nonfeasans or falsity of any Minister c. the Party grieved may have an Action sur le câ—se and recover Damages Doctor and Stud. 118 119. Action sur le Case lyes against the Ordinary for a wrongful Excommunication touching any thing out of his Jurisdiction c. So in Fitz. 47 H. 6. 8. If an Arch-Deacon refuse to induct the Clerk c. he shall have Action sur le case Which was affirmed for good Law by all the Court with which agrees 26 H. 8. 3. a. If a man proceed against a Prohibition the Party may have an Action upon the Case against him for prosecuting in Court-Christian Vid. Trin. 20 Ed. 3. Rot. 46. in the Treasury Richard Tresil's Case So the like Pasch 13 Ed. 3. Rot. 78. Philip de Harâ—eshals Case Hill 32 Ed. 3. Rot. 78. and Trin. 37 Ed. 1. and Mich. 29 Ed. 3. Rot. 19. similiter and divers other Records you may have See in my Book of Presidents Pasch 14 Jac. Regis An Habeas Corpus to the Marshal of the Admiralty granted in Hillary Term last past for Haukridge Prisoner in the custody of the said Marshal who did return Quaedâ—m causa spolii c. contra Haukridge pendet indecisa pro judicio sententia paratus c. Qui quidem Will Haukridge remanet donec antedict causa per praefat Daniel Dun suerit hoc est causa And also upon another Habeas Corpus he made such a Return and otherwise Parata sit c. Which the Court took to be very insufficient and gave divers days to amend the Return and to shew the cause of Delay and why Sentence was not given and the Marshal would not amend his Return Upon which the Party being in Prison 16 or 18 Weekes always the Return was est parata c. And after in another Writ returnable Crast Ascentionis was another Return of Parata c. without shewing cause of Delay The Return also was insufficient because Quaedam causa spolii civilis maritima quae coram c. which is too general for two Causes 1. Because spolii is uncertain and ought to be specified in some more certainty besides it shews not the value of the Goods 2. That Maritima est super littus or in portu maris and yet the Admiral hath not Jurisdiction Super littus maris or in portu because they are infra corpus comitat And so it was adjudged in Lacies Case Dyer 15 Eliz. the Abbot of Ransey's Case 15 Eliz. Dyer fol. 236. Pasch 17 Eliz. in Scaccar ac contra Digges for which cause he ought to have said Super altum mare intra Jurisdictionem Admiralli See the Stat. 13 R. 2. c. 5. 2 H. 4. c. 11 19 H. 6. 7. For the first all the Court Resolved that it was insufficient also there was shewn no time of the spoyl And for this in the same Term the said Haukridge was bailed in open Court till the next Term according to the Books 6 H. 6. 44. 28 H. 8. c. 15. Note It was said by some That when Judgment is given that one shall be hanged till he be dead the King cannot alter the Judgment and command that he shall be beheaded for the Execution ought to be conform to the Judgment and with this accords 35 H. 6. fol 58. and Stamf. lib. 1. fol. 13. Vide 27 Ass pl. 41. F. N. B. 144. 22 Ass pl. 49. Duke of Somersets Case and the Lord Sturtons Case in Queen Mary's time and the Lord Datres his Case in H. 8. both which were hanged for Felony It was Resolved also That King H. 8. could not by