eas in omnibus sequantur In cujus c. T. R. apud Wadestocks ix die Septembris Out of the Close Rolls of King Henry the Third his Time Clause 1 H. 3. dorso 14. The Kings thanks to G. de Mariscis Justice of Ireland The King signifies that himself and other his Lieges of Ireland should enjoy the Liberties which he had granted to his Lieges of England and that he will grant and confirm the same to them Clause 3. H. 3. m. 8. part 2. The King writes singly to Nicholas Son of Leonard Steward of Meth and to Nicholas de Verdenz and to Walter Purcell Steward of Lagenia and to Thomas the son of Adam and to the King of Connage and to Richard de Burgh and to J. Saint John Treasurer and to the other Barons of the Exchequer of Dublin That they be intendant and answerable to H. Lord Arch-bishop of Dublin as to the Lord the King's Keeper and Bailiff of the Kingdome of Ireland as the King had writ concerning the same matter to G. de Mariscis Justice of Ireland Clause 5. H. 3. m. 14. The King writes to his Justice of Ireland That whereas there is but a single Justice itinerant in Ireland which is said to be dissonant from the more approved custome in England for Reasons there specified two more Justices should be associated to him the one a Knight the other a Clerk and to make their Circuits together according to the Custome of the Kingdom of England Witness c. The Close Roll. 5 H. 3. m. 6. Dorso The King makes a Recital That though he had covenanted with Geoffrey de Mariscis That all Fines and other Profits of Ireland should be paid unto the Treasure and to other Bailiffs of the Kings Exchequer of Dublin yet he receiv'd all in his own Chamber and therefore is removed by the King from his Office Whereupon the King by advise of his Council of England establisheth that H. Arch-bishop of Ireland be Keeper of that Land till further order And writes to Thomas the son of Anthony to be answerable and intendant to him After the same manner it is written to sundry Irish Kings and Nobles there specially nominated Clause 7. H. 3. m. 9. The King writes to the Arch-bishop of Dublin his Justice of Ireland to reverse a Judgment there given in a Case concerning Lands in Dalkera between Geoffrey de Mariscis and Eve his wife Plaintiffs and Reignald Talbott Tenant By the Record of the same Plea returned into England the Judgment is reversed upon these two Errors The first because upon Reignald's shewing the Charter of King John the King's Father concerning the same Land in regard thereof desiring peace it was denyed him The second Because the Seisin was adjudged to the said Geoffrey and Eve because Reynald calling us to warranty had us not to warranty at the day set him by the Court which was a thing impossible for either Geoffrey or the Court themselves to do our Court not being above us to summon us or compel us against our will Therefore the King writes to the Justice of Ireland to re-seise Reynald because he was disseised by Erroneous Judgment Clause 28. H. 3. m. 7. The King writes to M. Donenald King of Tirchonill to aid him against the King of Scots Witness c. The like Letters to other Kings and Nobles of Ireland Clause 40. E. 3. m. 12. Dorso The King takes notice of an illegal proceeding to Judgment in Ireland Ordered to send the Record and Process into England It was objected by one of my Brothers That Ireland received not the Laws of England by Act of Parliament of England but at the Common Law by King John's Charter If his meaning be that the Fact was so I agree it but if he mean they could not receive them by Act of Parliament of England as my Brother Maynard did conjecturally inferr for his purpose then I deny my Brothers Assertion for doubtless they might have received them by Act of Parliament And I must clear my Brother Maynard from any mention of an Union as was discoursed of England and Ireland Nor was it at all to his purpose If any Union other than that of a Provincial Government under England had been Ireland had made no Laws more than Wales but England had made them for Ireland as it doth for Wales As for the Judgment Obj. One of my Brothers made a Question Whether George Ramsey the younger Brother inheriting John Earl of Holdernes before the naturalization of Nicholas Whether Nicholas as elder Brother being naturalized should have it from him Doubtless he should if his Naturalizing were good He saith the Plaintiff cannot have Iudgment because a third person by this Verdict hath the Title Answ If a Title appear for the King the Court ex Officio ought to give Iudgment for him though no party But if a man have a prior Possession and another enters upon him without Title I conceive the priority of Possession is a good Title against such an Entry equally when a Title appears for a third that is no party as if no Title appear'd for a third But who is this third party For any thing appears in the Verdict George Ramsey died before the Earl 2. It appears not that his Son John or the Defendant his Grand-child were born within the Kings Liegeance Patient appears to be born at Kingston and so the Daughters of Robert by the Verdict The Acts of Ireland except all Land whereof Office was found before the Act to entitle the King but that is in Ireland for the Act extends not to England If Nicholas have Title it is by the Law of England as a consequent of Naturalization So it may be for the Act of 7 Jac. cap. 2. he that is Naturalized in England since the Act must receive the Sacrament but if no Alien by consequent then he must no more receive the Sacrament than a Postnatus of Scotland Obj. Ireland is a distinct Kingdom from England and therefore cannot make any Law Obligative to England Answ That is no adequate Reason for by that Reason England being a distinct Kingdom should make no Law to bind Ireland which is not so England can naturalize if it please nominally a person in Ireland and not in England But he recover'd by saying That Ireland was subordinate to England and therefore could not make a Law Obligatory to England True for every Law is coactive and it is a contradiction that the Inferior which is civilly the lesser power should compel the Superior which is greater power Secondly He said England and Ireland were two distinct Kingdoms and no otherwise united than because they had one Soveraign Had this been said of Scotland and England it had been right for they are both absolute Kingdoms and each of them Sui Juris But Ireland far otherwise For it is a Dominion belonging to the Crown of England and follows that it cannot be separate from it but by
more Books Obj. 3 That by the Statute of 9 E. 3. Pleas of Releases or Deeds dated in Franchises within the Realm shall be tryed where the Action is brought Answ Wales is no Franchise or if it were not within the Realm for the questions concerning a Deed pleaded bearing date there but of Original Process for Causes arising and Tryals of them in the next County adjoyning and not in the County where the Action of a Deed dated in a Franchise of the Realm which do toto coelo differ and concerning Executions and Judgments here to be made in another Dominion The same may be said concerning the Statute of 12 E. 2. when Witnesses to Deeds in Forreign Franchises are to be summoned with the Iury and the Tryal notwithstanding their absence to proceed when the Writ is brought Obj. 4 Presidents of Process issued to the Sheriffs of Wales without a Judicial decision upon Argument are of no moment Many things may be done several ways as Bonds though they have regularly one common form yet they may be in other forms as well Presidents are useful to decide questions but in such Cases as these which depend upon Fundamental Principles from which Demonstrations may be drawn millions of Presidents are to no purpose Besides it is known that Officers grant such Process to one Sheriff or County as they use to another nor is it in them to distinguish between the power of the Court over a Sheriff in Wales from a Sheriff in England especially when they find some Writs of Execution going which are warranted by Acts of Parliament which they know not though they do know Process of Execution in fact runs thither as Capias utlagatum Extents upon Statute which are by Acts of Parliament And that other Mandatory Writs issue thither as well at Common Law as by a particular Clause concerning the Chancellor in the Act of 34 H. 8. c. 26. By the Register upon a Judgment had in the Common Pleas against a Clerk Regist f. 43. B Brevium Judicialium who was after made Archbishop of Dublin in Ireland upon a Fieri Facias issued to execute the Judgment to the Sheriff of Middlesex and his Retorn that he had no Lands or Goods in his Bayliwick but was Archbishop in Ireland upon a Testatum of it in the Common Pleas that he had Lands and Goods in Ireland a Fieri Facias issued in the King's name Justiciario suo Hiberniae to make Execution but it appears not whether this Writ issued from the Common Pleas or especially by the King's Direction out of the Chancery which possibly may be as a special Mandatory Writ of the Kings locum tenens there which varies in stile at the Kings pleasure anciently Justiciario suo Hiberniae at other times Locum tenenti nostro at other times Deputat or Capitaneo generali nostro which stiles are not regularly known to the Officers of the Courts at Westminster And perhaps by special Writs to the chief Officer and the King Execution may be made of Judgments given at Westminster in any of his Dominions which would be enquired of FINIS An Exact and Perfect TABLE TO THE REPORTS and ARGUMENTS OF Sir JOHN VAVGHAN Lord Chief Justice of the Court of Common Pleas. Abatement of Writs See Writs 1. WHere a Writ is brought against an Executor in Debt upon a simple Contract he may abate it 94 2. Judges ought not Ex officio to abate Writs but it must come before them by Demurrer 95 Act of the Party 1. Every act a man is naturally enabled to do is in it self equally good as any other act he is so enabled to do 333 Actions and Actions upon the Case 1. Actions upon the Case are more inferior and ignobler than Actions of Debt 101 2. Actions of the Case are all Actiones Injuriarum contra Pacem and it is not a Debt certain but damages for the breach of the promise that must be recovered in it 101 3. Wheresoever the Debt grew due yet the Debtor is indebted to the Creditor in any place where he is as long as the Debt is unpaid 92 4. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 5. If you will recover any thing against any man it is not enough for you to destroy his Title but you must prove your own better than his 60 6. In life liberty and estate every man who hath not forfeited them hath a property and a right which the Law allows him to defend and if it be violated it gives an Action to redress the wrong and punish the wrong-doer 337 7. There are several penal Laws by transgressing of which the Subject can have no particular damage and therefore no particular Action 341 8. All Actions brought against Officers within the Statute of the One and twentieth of K. James must be laid in the proper County 115 116 117 9. Case and not Debt lies for a Solicitor for Soliciting Fees 99 Ad quod dampnum 1. When the King can license without a Writ of Ad quod dampnum he may license if he will whatever the Return of the Writ be 341 345 2. Where the Writ of Ad quod dampnum informs the King better then a Non obstante 356 3. Though there be a Return upon an Ad quod dampnum that it is not ad dampnum yet there must be the Kings license afterwards 341 Administration and Administrator 1. How they are to administer the Intestates Estate 96 2 An Administrator hath a private office of trust he cannot assign nor leave it to his Executor 182 3. An Administrator must take an Oath to make a true accompt 96 4. An Action will not lye against them upon a Tally because it is no good Specialty 100 5. In an Action of Debt upon Bond or Contract brought against him he may confess Judgment if there is no fraud although he hath notice of a former Suit depending 95 100 6. If an Administrator durante minore Aetate brings an Action he must averr the Administrator or Executor to be under the Age of Seventeen years 93 7. The manner of pleading Plene administravit praeter ultra 154 Advowson See Quare Impedit 1. The rights of an Advowson 7 2. Where the Plaintiff and Defendant must alledge Seisin in an Advowson by a former Presentation 8 Agent and Patient 1. In a Quare Impedit both Plaintiff and Defendant are Actors and may have a Writ to the Bishop 6 7 58 Age See Infant Alien 1. The time of the birth is of the Essence of a Subject born for he cannot be a Subject unless at the time of his birth he was under the Kings Liegeance 286 287 2. Regularly who once was an Alien to England cannot be inheritable there but by Act of Parliament 274 282 3. He that is priviledged by the Law of England to inherit must be a Subject of the Kings 268 in loco 278 286 4. He must be more
8. before he is consecrated Bishop remains Rector as before after Consecration â—8 H. 6. f. 19. Br. Spoliation pl. 4. 1. Where the Pope licenses one who is created a Bishop to retain his ancient Benefice and the Patron presents another the elder Incumbent sues a Spoliation in the Spiritual Court it well lyes for both claim by the same Patron Quae supradicta omnes concesserunt saith the Book Fitz. N. B. Tit. Spoliation f. 36. b. 2. The Writ of Spoliation lyes properly by one Incumbent against another Incumbent where the right of the Patron comes not in debate As if a person be created Bishop and hath a Dispensation to hold his Rectory and after the Patron presents another Incumbent who is instituted and inducted the Bishop shall have against that Incumbent a Spoliation this proves the Bishop to continue Incumbent after his Consecration and to hold his Rectory by his former presentation Dy. 6. El. f. 228. b. pl. 48. 6 7 El. f. 233. A. p. 12. John Packhurst Rector of Cleve in Gloucestershire had a Dispensation to hold it notwithstanding he were advanc'd to any Bishoprick in the Realm for three years from the Feast of St. Michael 1560. to the same Feast 1563. he was after consecrated Bishop of Norwich and within the three years resign'd the Queen presented _____ one her Chaplain supposing she had title by Cession of the Bishop Sir H. Sydney the Patron brought a Quare Impedit and the Church was found to be void by Resignation of the Bishop of Norwich and recover'd and had Judgment 1. This case proves the Bishop of Norwich Incumbent as formerly notwithstanding his Consecration else the Living had not voided by his Resignation 2. The Dispensation was only for three years yet he was as intire Incumbent and might resign during those three years as if he had not been Bishop 3. It proves the Dispensation may be for a time only to hold his former Benefice ad modum concedentis which clears the last Question that in such a Commendam retinere the Dispensation is good though it be but for as long as he is Bishop of that See and then determines An Incumbent made Bishop and retaining by Dispensation may have which none but a perfect Incumbent can have a Writ of Spoliation Juris Utrum Vi Laica Removenda Annuity for him or Annuity brought against him In the Bishop of Ossory's case they which argued against him conclude out of all this difference results viz. That a Faculty granted to one which is not Incumbent to take a void Benefice is void and a Faculty to one which is Incumbent of a Benefice to retain the same is good The other side for the Bishop concluded the Capere in Commendam good where the Patron was not prejudic'd as in Lapse and consequently the Retinere to be good consented to by him who was to present upon voidance The Commendam Retinere may be for years or any time Colt and Glovers Case Hobart f. 156. the difference is manifest if their nature and reason be observed The difference between Retinere and Capere is no less than between holding that which is already my own and taking that which is anothers I am already benefic'd by Presentation c. in ordinary form I would take a Bishoprick which would void the Benefice therefore I obtain a Dispensation to continue holding my Benefice for three years I remain Parson of the same benefice of no less estate than I had before and when the three years are past the benefice voids as it would have done at the first if there had been no Dispensation And again Hob. f. 158. a Bishop by Dispensation may retain as many Benefices as he had lawfully before but take none of new if he had his number before c. William Bradbridge being Bishop of Exeter Cok. lib. Intr. f. 475. Heales Case Rolls 344. b. pl. 2. obtain'd Letters of Dispensation from the Arch-bishop with the Queens Confirmation to receive any two Benefices with or without cure and retain them with his Bishoprick within his Diocess quamdiu Episcopatui praedict praeesset after he was presented to the Rectory of Newton ferris and dyed and the Patron presented Simonaically and after six Months the Bishop presented as by Lapse and a Quare Impedit brought against him where the avoidance of the Church per mortem of the Bishop of Exeter is admitted though it be taken by protestation in that case that the Church non vacavit per mortem Note the Bishop of Exeter was presented to the Arch-bishop and instituted and inducted If after the death of the last Bishop who held this Church by Dispensation the King may present as the case is the next succeeding Bishop to hold it by Dispensation he may so present the third and so toties quoties there shall be a Bishop of Oxford and for the same reason viz. the small Incomes of the Bishoprick So shall the Patron for ever loose his Presentation omitting nothing to be done nor committing any thing not to be done but doing his duty in presenting a fit person and who deserved to be made Bishop Objections Tr. 9. E. 3. pl. 6 18 E. 3. f. 21. Fitz. N. Br. f. 34. Letter F. The most specious Objection is made upon the Books of ℈ E. 3. 18 E. 3. and the Abbot of Thorneys case there cited That if the King recover in a Quare Impedit and after confirms the Incumbents estate yet after the Incumbents death the King shall present and therefore in this case Answ 1 When the King hath recover'd in a Quare Impedit he hath right to present uncontrolably by the Record and may at his pleasure sue forth Execution and in the mean time permit the Incumbent to continue in the Benefice at his pleasure but here it is denied that the King hath any right to present Answ 2 The Kings permission or grant that the Incumbent should not be troubled during his life cannot be pleaded by the Patron in barr of the Kings right to present by vertue of his Iudgment for the Kings permisson was nothing to the Patron and the King ought to have Execution of his Iudgment when he demands it against him Answ 3 Justice Thyrning also gives the Reason of those Books The Cause 11 H. 4. f. 76. b per Thyrning 45 E. 3. f. 19. saith he is although the King confirms the Incumbents estate yet he had not his estate or possession by the King but by his Patrons presentment and by the Kings confirmation his right was neither executed nor extinct Answ 4 The Kings confirmation in the present case is not of the nature of his confirmation in the case of 9 E. 3. for he doth not here as there he did intend to transfer any right of his into the Incumbent by continuing his possession But his confirmation here is only formal and to compleat the dispensation of the Arch-bishop which
Land cum pertinentiis in Sandridge aforesaid That long before the Caption Ralph Rowlett Knight was seis'd of the Mannor of Sandridge in the said County whereof the said place is and was parcel time out of mind Grant of the Rent June 26 8 Eliz. That the said Sir Ralph 26. June 8 Eliz. at Sandridge aforesaid by his Deed in writing under his Seal produc'd in Court thereby granted and confirmed to Henry Goodyeare then Esquire and after Knight and to the Heirs of his Body a yearly Rent of 30 l. out of all his said Mannor and other his Lands in Sandridge aforesaid payable at the Feasts of St. Michael the Arch-angel and the Annunciation The first payment at such of the said Feasts which should happen after the expiration surrender or forfeiture to be made after Sir Ralph Rowlett's death of certain terms of years of parcel of the Premisses made to one William Sherwood and Ralph Dean severally With Clause of Entry and Distress to Henry and the Heirs of his Body if the Rent were unpaid And that Sir Ralph gave the said Henry seisin of the said Rent by payment of a peny as appears by the Deed. Rowletts death 1 Sept. 33 Eliz. Sir Ralph Rowlett after the First day of September 33 Eliz at Sandridge aforesaid died That after the Second day of September Terms expired Sept. 2. 33 Eliz. 33 Eliz. the said terms of years expired whereby the said Henry became seis'd of the said Rent in tail That Henry had Issue the said Elizabeth and Mary Hen. Good-year died 1. Octob. 33 Eliz. and one Anne his Daughters and Coheirs and died 1. Octob. 33 Eliz so seis'd That the said Coheirs being seis'd of the said Rent Mary married Samuel 1. May 1634. and Anne the same time married John Kingston to them and the Heirs of their Bodies the First of May 1634. Mary married the said Samuel Hildersham and Anne married one John Kingston whereby the said Elizabeth and Samuel and Mary in right of the said Mary and John and Anne in right of Anne were seis'd of the Rent December 25. 1635. Anne had Issue by John her Husband Anne had Issue Frances and Theodofia she and her Husband John died 1 Jan. 1635. the said Frances and Theodosia and John her Husband and Anne died 1. Januarii 1635. That thereby Elizabeth Samuel and Mary in right of Mary Frances and Theodosia became seis'd of the Rent April the 10th 1647. Frances married the said Biddulph and Theodosia the said Humphrey Holden whereby Elizabeth Samuel and Mary in right of Mary Biddulph and Frances in right of Frances and Holden and Theodosia in right of Theodosia became seis'd of the Rent And for 120 l. for four years arrear after the death of John and Anne ending at the Feast of St. Michael 1655. being unpaid at the time and place c. the Defendant as their Bailiff entred and distrained the said Cows The Plaintiff demands Oyer of the Deed of Grant and hath it in these words c. And then the Plaintiff replies that before the time of the Caption that is A die Paschae in quindecim dies a Fine was levied in the Court of Common Pleas in the One and twentieth of the King before the Iustices there c. between Richard Harrison Esquire and the Avowants of the said Rent with Warranty to the said Richard and his Heirs And that this Fine was to the use of the Conizors and their Heirs and demands Iudgment The Defendant thereupon demurrs WHERE the Law is known and clear though it be unequitable and inconvenient the Iudges must determine as the Law is without regarding the unequitableness or inconveniency Those defects if they happen in the Law can only be remedied by Parliament therefore we find many Statutes repealed and Laws abrogated by Parliament as inconvenient which before such repeal or abrogation were in the Courts of Law to be strictly observed But where the Law is doubtful and not clear the Iudges ought to interpret the Law to be as is most consonant to equity and least inconvenient And for this reason Littleton in many of his Cases resolves the Law not to be that way which is inconvenient which Sir Edward-Cook in his Comment upon him often observes and cites the places Sect. 87. In the present Case there are several Coparceners whereof some have Husbands seis'd of a Rent Charge in tail the Rent is behind and they all levy a Fine of the Rent to the use of them and their Heirs If after the Fine levied they are barr'd from distraining for the Rent arrear before the Fine is the Question It being agreed they can have no other remedy because the Rent is in the reality and still continuing If they cannot distrain the Consequents are 1. That there is a manifest duty to them of a Rent for which the Law gives no remedy which makes in such case the having of right to a thing and having none not to differ for where there is no right no relief by Law can be expected and here where there is right the relief is as little which is as great an absurdity as is possible 2. It was neither the Intention of the Conizors to remit this Arrear of Rent to the Tenant nor the Tenants to expect it nor could the Conizors remit it but by their words or intentions or both nor did they do it by either 3. It is both equitable in it self and of publick convenience that the Law should assist men to recover their due when detain'd from them 4. Men in time of Contagion of Dearth of War may be occasioned to settle their Estates when they cannot reasonably expect payment of Rents from their Tenants for Lives or others and consequently not seasonably distrain them and it would be a general inconvenience in such case to lose all their Rents in Arrear So as both in Equity and Conveniency the Law should be with the Avowants In the next place we must examine Whether the Avowants that is the Conizors of the Fine be clearly barr'd by Law to distrain for the Rent arreare before the Fine For it must be agreed they have no other remedy by the Common Law or otherwise to which purpose I shall open some Premises that my Conclusion may be better apprehended 1. A privity is necessary by the Common Law to distrain and avow between the Distrainor and the Distrained that the Tenant may know to whom the Rent or other Duty ought to be paid and likewise know a lawful distress from a tortious taking of his Cattel 2. This privity is created by Attornment either in Fact or in Law by the Tenant to the Lord to the Reversioner to the Grantee of a Remainder or of a Rent by Deed or by Fine Litt. Sect. 579. For this Sir Edward Cooe upon the 579th Section of Littleton and in many other of his Sections The Conizee of a Fine before Attornment cannot distrain because an
of that made in 27 H. 8. Therefore it is manifest That the sole Reason why no such lease was admitted to be in 28 H. 8. is no other than because the Jury find no such to have been made but find a suggestion of it only in Rochester's lease And it is the same exactly in our present Case The third thing deducible from the Case is That a Demise by Indenture for a term Habendum from the Expiration of another recited or mentioned term therein 35 H. 6. 34 Br. Tit. Faits p. 4. 12 H. 4. 23 Br. Faits 21. which is not or not found to be which is the same thing is no Estoppel or Conclusion to the Lessee or Lessor but that the Lessee may enter immediately and the Lessor demise or grant in Reversion after such immediate lease There is another Case resolv'd at the same time between the same Persons and concerning the same Land and published in the same Report and specially found by the same Jury Edward Earl of Oxford Son of John the Son of John Earl of Oxford by Indenture between him and Geoffry Morley Dated the Fourteenth of July 15 Elizabethae reciting That John his Father by Indenture the Thirtieth of July 35 H. 8. had demised to Robert Rochester the said Farm or Mannor of Blacon Habendum for Thirty years from the end or determination of the lease made to Anne Seaton the Tenth of February 27 H. 8. which is a false recital for the lease to Rochester was to commence from the end or determination of a lease made to Anne Seaton that is recited to be made the Tenth of February 28 H. 8. and that afterwards the said John Earl of Oxford had granted by Indenture Dated the Six and twentieth of March 35 H. 8. reciting the lease to Anne Seaton the Tenth of February 27 H. 8. to Hamlett Freer the Reversion of the said Mannor of Blacon Habendum the said Mannor and Premisses from such time as the same shall revert or come to the possession of the said Earl or his Heirs by Surrender Forfeiture or otherwise for Sixty years for so is the Case put in one part of the Report but in another part of it it seems to be That the Demise to Freer was when it should revert after the Expiration Surrender or Forfeiture omitting the words or otherwise of the Lease made to Anne Seaton which will nothing vary the Case The said Edward Earl of Oxford 〈…〉 demised the said Mannor or Farm of Blacon to the said Geoffry Morley Habendum from the end of the said Leases for Fifty years The Question was Whether any of these leases made either to Hamlett Freer or Morley be good or were in esse at the time of the lease made by Sir Randolph Crew to the Plaintiff Sir Randolph Crew claiming the Inheritance from the Earl of Oxford and Sir William Norris the Leases from Freer and Morley and under him the Defendant And Iudgment was given in Chester for the Plaintiff And upon a Writ of Error of this Iudgment brought in the Kings Bench wherein the Error assign'd was The giving of Iudgment for the Plaintiff After several Arguments at Barr and at the Bench Seriatim by the Iustices it was unanimously agreed The Iudgment in Chester for the Plaintiff should be affirmed And that neither the Lease to Freer nor that to Morley was good to avoid the Plaintiffs Title As for the lease to Freer it being a grant of a Reversion nominally and by Agreement of Parties there being no Reversion because no lease at the time of the Grant was in esse either of Seatons or Rochesters upon a point of Rasure in Rochester's Demise found in the Case and for that Land in possession could not pass by the name of a Reversion though by the name of Land a Reversion may pass for he who will grant Land in possession cannot be thought not to grant the same if only in Reversion L. Chandoes Case 6. Rep. according to the doctrine of Throgmorton's Case in the Commentaries And for that Morley's lease was to commence after the lease granted to Rochester which was to commence after that granted to Seaton the Tenth of February 27 H. 8. whereas no such lease was granted to Rochester but a lease to commence after one granted to Seaton in 28 H. 8. It was resolv'd None of those leases were in esse and that Morley's lease commenced therefore presently The words of the Resolution are these as to Morley's Lease It was Resolv'd that Morley's Lease was not in esse for that misrecites the former Leases and so hath the same Rule as the former where it recites Leases and there be none such Therefore it shall begin from the Date which being in the Fifteenth of the Queen for Fifty years ended 1623. which was before the Lease made to the Plaintiff for these Reasons Judgment was affirmed The same Conclusions are deducible from this lease to Morley as from the former to Rochester and therefore I will not repeat them But here are two Judgments in the very point of our Case and affirmed in a Writ of Error unanimously in the Kings Bench. And where it is thought material that the Jury have found a half years Rent to have been behind at Michaelmas 1643. and thence inferr'd the Jury have found the leases by which that Rent was ascertain'd namely the leases of 29 H. 8. and 1 E. 6. Surely if a lease be for a term of years to commence from the end of a former term and for such Rent as is reserv'd upon such former Demise that never was as no term can commence from the end of another which never was so no Rent can be behind which cannot appear but by a Demise which was never made that is which is never found to be made Add further That if the Iury had found the Leases of 29 H. 8. and 1 E. 6. to have been made as is mentioned in the lease of 1 Mar. that had not been a sufficient finding of them For a Deed is not found at all nor a last Will when only the Jury find but part of the Deed or Will for the Court cannot Iudge but upon the whole and not upon part It it be found in Assise the Defendant was Tenant and disseis'd the Plaintiff nisi verba contenta in ultima voluntate W. M. give a lawful Estate from W. M. to R. M. and find the words contain'd in the Will but not the Will at large the Court cannot judge upon this Verdict 38. 39 El. B.R. West and Mounsons C. Rolls 696. Tit. Tryal whose Office it is to judge upon the whole Will which is not found 38 39 El. B. R. West and Mounsons Case Rolls 696. Title Tryal So for the same reason finding but part of a recited Deed and not the whole is as if no part were found and it appears by the Deed of 1 Mariae that both Deeds of 29 H. 8. and 1 E. 6. are
But if he after the structure acquire or purchase a Water-course to it and grant it with the Appurtenances the Water-course passes because the Mill cannot be used without it So it is for the Mill-damm or Bank or the like So if he acquire an inlargement or bettering of his Water-course that additional water shall pass as pertaining how lately soever acquired So if a man grants his Saddle with all things thereto belonging Stirrops Girths and the like pass So if a man will grant his Viol the Strings and Bow will pass And the Pool was belonging and appertaining to the Water-work in this last sense as pertaining to the nature of the thing granted without which it could not be us'd for the Iury find Quod Stagnum praedictum fuit necessarium pro structura Anglicè Water-work praedict quodque eadem structura sine eodem Stagno operare non potuit And where a thing is so pertaining to the nature of the thing granted it is belonging and pertaining immediately as soon as the thing is erected and it is annexed to it And note the Iury do not find that aqua Stagni praedict but the Stagnum it self was necessary for the Water-work Nor do they find that the Water-work could not operare sine aqua Stagni but sine Stagno praedict And thereby they find that the Water and Soyl which Stagnum signifies was necessary for the work and it could not work without it Pasch 19 Car. II. Henry Stiles Plaintiff Richard Coxe Baronet Richard Coxe Esquire John Cromwell Thomas Merrett and Charles Davies Defendants In an Action of Trespass of Assault Battery and False Imprisonment 1. THE Plaintiff declares That the Defendants the last day of December in the Seventeenth year of the King in the Parish of St. Mary Bow in the Ward of Cheap in London assaulted wounded and kept him in Prison by the space of two days next following to his Damage of One hundred pounds 2. The Defendants plead They are not Culpable of the Trespass Assault Battery c. aforesaid 3. The Iury find Richard Coxe Esquire and Charles Davies not Culpable accordingly 4. And as to the rest of the Defendants they find specially That before the suppos'd Trespass that is the Eight and twentieth day of September in the Seventeenth year of the King one Richard Baughes Esquire one of the Iustices of the Peace of the County of Gloucester issued his Warrant under his Hand and Seal to the Constable and Tithingmen of Dumbleton in the said County to apprehend and bring before him the Plaintiff Henry Stiles and others to answer to such matters of Misdemeanour as on his Majesties behalf should be objected against them by Sir Richard Coxe Baronet then high Sheriff of the said County They find the Warrant in haec verba 5. That the said Warrant was afterwards and before the Trespass delivered to one Samuel Williams Constable of Dumbleton to be executed and that upon the said last day of December mentioned in the Declaration being Sunday immediately before Divine Service the Plaintiff sitting in a Seat of the said Church of Dumbleton by order of Richard Dasney Esquire his Master who claimed right to the said Seat the said Plaintiff being no Parishioner there nor dwelling in the said Parish the said Samuel being then Constable arrested the said Plaintiff 6. That the said Plaintiff at first resisted and refused to obey the said Warrant and after obey'd it That the said Samuel the Constable required the said Defendant Thomas Merret to assist him to convey him before a Iustice of the Peace But the said Samuel Thomas Merret and John Cromwell convey'd him to the House of the said Samuel in Dumbleton 7. Et tunc the aforesaid Richard Coxe Miles sent for the said Samuel at the House of the said Samuel in Dumbleton aforesaid Et praecepit eidem Samueli to lay the Plaintiff in the Stocks and thereupon the said Samuel John and Thomas convey'd the Plaintiff fromwards the way to the said Richard Baughes Iustice of the Peace and about Eleven of the Clock of the same day in the morning put the Plaintiff in the Stocks 8. They find the Act of 21 Jac. particularly cap. 12. And the Recital therein of the Act of 7 Jac. cap. 5. being an Act intitled An Act for easie pleading against troublesome and contentious Suits against Justices of the Peace Mayors Constables c. 9. And find particularly That it was Enacted by the said Parliament Quod si aliqua Actio Billa c. 10. But whether upon the whole matter by them found the said Sir Richard Coxe Baronet John and Thomas are Culpable they know not Et petunt advisamentum Curiae in Praemissis 11. And if upon the whole matter so found the Court shall think quod actio praedicta possit commensari in London Then they find the said Richard Coxe Baronet John and Thomas Culpable of the Trespass and assess damages to One hundred Marks and Costs to Three and fifty shillings and four pence 12. But if the said Court be of Opinion That the aforesaid Action could only be laid in the County of Gloucester then they find the said Richard Coxe Baronet John and Thomas not Culpable The words of the Act of 21 Jac. cap. 12. and which are particularly found by the Iury are 1. That if any Action Bill Plaint or Suit upon the Case Trespass Beating or False Imprisonment shall be brought against any Justice of the Peace Mayor or Bayliff of City or Town Corporate Headborough Portreeve Constable Tithingman c. or any of them or any other which in their Aid or Assistance or by their Commandment shall do any thing touching or concerning his or their Office or Offices for or concerning any matter cause or thing by them or any of them done by virtue or reason of their or any of their Office or Offices That the said Action Bill Plaint or Suit shall be laid within the County where the Trespass or Fact shall be done and committed and not elsewhere 2. And that it shall be lawful to every person and persons aforesaid to plead the general Issue and to give the special matter in evidence As by the Act of 7 Jac. cap. 5. 3. That if upon the Tryal of any such Action Bill Plaint or Suit the Plaintiff therein shall not prove to the Jury Trespass Beating Imprisonment or other Fact or cause of Action Bill Plaint c. was or were had made or committed within the County wherein such Action Bill Plaint or Suit shall be laid That then the Jury shall find the Defendant or Defendants in every such Action Bill Plaint or Suit Not guilty without having any regard or respect to any Evidence given by the Plaintiff touching the Trespass or other cause of the Action Bill Plaint or Suit c. 4. If Verdict shall pass with the Defendant or Defendants or if the Plaintiff therein become Non-suit or suffer any discontinuance thereof the Defendant or Defendants shall have such
ipso facto but after six Months after notice of such deprivation given by the Ordinary to the Patron By these Clauses immediately upon not reading the Articles according to the Statute the Incumbent is depriv'd ipso facto And the Patron may presently upon such Deprivation present if he will and his Clerk ought to be admitted and instituted but if he do not no lapse incurrs until after six months after notice of the Deprivation given to the Patron by the Ordinary who is to supply the Cure until the Patron present Another Clause of the Statute is No person shall hereafter be admitted to any Benefice with Cure except he then be of the Age of Three and twenty years at the least and a Deacon and shall first have subscribed the said Articles in the presence of the Ordinary c. And relative to this Clause there is a third That all Admissions to Benefices Institutions and Inductions of any person contrary to any provision of this Act shall be utterly void in Law as if they never were Now though the Church of Wringlington became void immediately of what value soever it were by admission and institution of the Defendant into the Church of Elme by the ancient Canon Law receiv'd in this Kingdom which is the Law of the Kingdom in such Cases if the Patron pleas'd to present And for that the Patron accordingly did within a month after the Defendants Admission and Institution into the Rectory of Elme present his Clerk Hugh Ivy to the Church of Wringlington who was thereto Admitted Instituted and Inducted within that time which was a month before the Defendant was depriv'd for not reading the Articles in the Church of Elme Whereby any Interest the Defendant had to Wringlington was wholly avoided as the Case is Yet if the Church of Wringlington had been under value and the Patron had not presented to it his Clerk before Higden's Deprivation of the Church of Elme he might not have still continued Parson of Wringlington as if never Admitted Instituted or Inducted to the Rectory of Elme But if he had not subscribed the Articles before the Ordinary upon his Admission and Institution to the Rectory of Elme he had never been Incumbent of Elme and consequently never accepted a second Benefice to disable him of holding the first And so it is resolv'd in the last Case of the Lord Dyer 23 of the Queen where a man having a Living with Cure under value accepted another under value also having no Qualification or Dispensation and was Admitted Instituted and Inducted into the Second but never subscribed the Articles before the Ordinary as the Statute of 13. requires Vpon question whether the first Living vacavit per mortem of him or not the Court resolv'd That the first Living became vacant by his death and not by accepting the second because he was never Incumbent of the second for not subscribing the Articles before the Ordinary whereby his Admission Institution and Induction into the second Living became void as if they had never been This Case was urg'd at the Barr for the Defendant as if his not reading the Articles within two months after his Induction into Elme had still as in the Lord Dyers Case left him Incumbent of the first Living But that was mistaken for not subscribing the Articles made that he never was Incumbent of the second Living and consequently then there was no cause to lose the first But the Defendant having subscribed the Articles upon his Admission and Institution was perfect Incumbent pro tempore of the second Living and thereby lost the first and afterwards lost the second for not reading the Articles within two months after his Induction so as he was compleat Incumbent by Admission Institution and Induction of the second Living full two months before he lost it It was upon this Clause of the Statute smartly urg'd by my Brother Baldwyn That if the Statute makes the Defendants Admission Institution and Induction to the second Living void as if they had never been For what reason doth he not still retain his first The Answer is as before 1. That his not retaining the first is no effect nor consequent of his losing the second But the first was lost because he accepted a second and the right Patron thereupon presented to the first so as he lost the first whilst he was and for being lawful Incumbent of the second And therefore could be no effect nor consequent at all proceeding from his loss of the second by not reading the Articles after more than if he had lost the second by Deprivation for Heresie or other cause 2. The Clause of 13. is not That all Admissions Institutions and Inductions to Benefices where any person is depriv'd by virtue of that Act shall be void as if they never were for so should the Clause have been to warrant the Objection made at the Barr. But the Clause is That all Admissions Institutions and Inductions made contrary to any provision of the Act shall be void as if they never were But Higden's Admission Institution and Induction to the Church of Elme was not contrary to any provision of the Act but every way legal but had he not subscribed the Articles before the Ordinary then his Admission Institution and Induction had been contrary to the provision of the Act and so void as if they never were The Chief Justice delivered the Opinion of the Court and Judgment was given for the Plaintiff Bushell's Case THE King 's Writ of Habeas Corpus Dat. 9 die Novembris 22 Car. 2. issued out of this Court directed to the then Sheriffs of London to have the Body of Edward Bushell by them detained in Prison together with the day and cause of his Caption and Detention on Friday then next following before this Court to do and receive as the Court should consider as also to have then the said Writ in Court Of which Writ Patient Ward and Dannet Foorth then Sheriffs of London made the Retorn following annex'd to the said Writ That at the Kings Court of a Session of Oyer and Terminer held for the City of London at Justice Hall in the Old Baily London in the Parish of St. Sepulchres in Farringdon Ward without London on Wednesday 31 die August 22 Car. 2. before Sir Samuel Sterling then Mayor of London and divers other his Majesties Justices by virtue of his Majesties Letters Patents under the Great Seal of England to them any four or more of them directed to enquire hear and determine according to the tenor of the said Letters Patents the Offences therein specified And amongst others the Offences of unlawful Congregating and Assemblies within the limits appointed by the said Commission within the said City as well within Liberties as without Edward Bushel the Prisoner at the Barr was committed to the Goal of Newgate to be there safely kept under the Custody of John Smith Knight and James Edwards then Sheriffs of the said City
be admitted sufficient causes to remand persons to prison To those Objections made by the Prisoners Council against the Retorn as too general 1. It hath been said That Institutum est quod non inquiratur de discretione Judicis 2. That the Court of Sessions in London is not to be look'd on as an inferiour Court having all the Judges Commissioners that the Court having heard the Evidence it must be credited that the Evidence given to the Iury of the Fact was clear and not to be doubted As for any such Institution pretended I know no such nor believe any such as it was applyed to the present cause but taking it in another and in the true sense I admit it for truth that is when the King hath constituted any man a Iudge under him his ability parts fitness for his place are not to be reflected on censured defamed or vilified by any other person being allowed and stampt with the Kings Approbation to whom only it belongs to judge of the fitness of his Ministers And such scandalous Assertions or Inquiries upon the Judges of both Benches is forbidden by the Statute of Scandalum Magnatum 2 R. 2. c. 5. Nor must we upon supposition only 2 R. 2. c. 5. either admit Judges deficient in their Office for so they should never do any thing right nor on the other side must we admit them unerring in their places for so they should never do any thing wrong And in that sense the saying concerns not the present Case But if any man thinks that a person concern'd in Interest by the Iudgment Action or Authority exercis'd upon his person or fortunes by a Judge must submit in all or any of these to the implyed discretion and unerringness of his Judge without seeking such redress as the Law allows him it is a perswasion against common Reason the received Law and usage both of this Kingdome and almost all others If a Court Inferiour or Superiour hath given a false or erroneous Iudgment is any thing more frequent than to reverse such Iudgments by Writs of False Judgment of Error or Appeals according to the course of the Kingdome If they have given corrupt and dishonest Iudgments they have in all Ages been complained of to the King in the Starr-Chamber or to the Parliament Andrew Horne in his Mirror of Justices Hornes Mirror f. 296. mentions many Judges punisht by King Alfred before the Conquest for corrupt Iudgments and their particular Names and Offences which could not be had but from the Records of those times Our Stories mention many punisht in the time of Edward the First our Parliament Rolls of Edward the Third's time of Richard the Second's Time for the pernicious Resolutions given at Nottingham Castle afford Examples of this kind In latter times the Parliament Journals of 18 and 21 Jac. the Iudgment of the Ship-mony in the time of Charles the First question'd and the particular Judges impeacht These Instances are obvious and therefore I but mention them In cases of retorns too general upon Writs of Habeas Corpus of many I could urge I will instance in two only One Astwick brought by Habeas Corpus to the Kings Bench 9 El. Moore f. 837. was retorn'd to be committed per Mandatum Nicholai Bacon Militis domini Custodis magni Sigilli Angliae virtute cujusdam Contemptus in Curia Cancellar facti and was presently bail'd 13 Jac. Moore f. 839. One Apsley Prisoner in the Fleet upon a Habeas Corpus was retorn'd to be committed per considerationem Curiae Cancellar pro contemptu eidem Curiae illato and upon this retorn set at liberty In both these Cases no inquiry was made or consideration had whether the Contempts were to the Law Court or equitable Court of Chancery either was alike to the Judges lest any man should think a difference might arise thence The reason of discharging the Prisoners upon those retorns was the generality of them being for Contempts to the Court but no particular of the Contempt exprest whereby the Kings Bench could judge whether it were a cause for commitment or not And was it not as supposeable and as much to be credited That the Lord Keeper and Court of Chancery did well understand what was a Contempt deserving commitment as it is now to be credited that the Court of Sessions did understand perfectly what was full and manifest Evidence against the persons indicted at the Sessions and therefore it needed not to be reveal'd to us upon the retorn Hence it is apparent That the Commitment and Retorn pursuing it being in it self too general and uncertain we ought not implicitly to think the Commitment was re vera for cause particular and sufficient enough because it was the Act of the Court of Sessions And as to the other part That the Court of Sessions in London is not to be resembled to other inferiour Courts of Oyer and Terminer because all the Judges are commission'd here which is true but few are there at the same time and as I have heard when this Tryal was none of them were present However persons of great quality are in the Commissions of Oyer and Terminer through the Shires of the Kingdom and always some of the Judges nor doth one Commission of Oyer and Terminer differ in its Essence Nature and Power from another if they be general Commissions but all differ in the Accidents of the Commissioners which makes no alteration in their actings in the eye of Law Another fault in the retorn is That the Jurors are not said to have acquitted the persons indicted against full and manifest Evidence corruptly and knowing the said Evidence to be full and manifest against the persons indicted for how manifest soever the Evidence was if it were not manifest to them and that they believ'd it such it was not a finable fault nor deserving imprisonment upon which difference the Law of punishing Jurors for false Verdicts principally depends A passage in Bracton is remarkable to this purpose concerning Attainting Inquests Committit Jurator perjurium propter falsum Sacramentum Bracton l. 4. c. 4. f. 288. b. ut si ex certa scientia aliter Juraverit quam res in veritate se habuerit si autem Sacramentum fatuum fuerit licet falsum tamen non committit perjurium licet re vera res aliter se habeat quam juraverat quia jurat secundum conscientiam eo quod non vadit contra mentem Sunt quidam qui verum dicunt mentiendo sed se pejerant quia contra mentem vadunt The same words and upon the same occasion Fleta l. 5. c. 22 f. 336. n. 9. are in effect in Fleta Committit enim Jurator perjurium quandoque propter falsum Sacramentum ut si ex certa scientia aliter juraverit quam res in veritate se habuerit secus enim propter factum quamvis falsum and lest any should think that these passages are to be
for the Damages in Debt though by several Originals But it may be said That in a Writ of Error in this kind the foundation is destroy'd and no such Record is left Drury's Case 8. Rep. But as to that in Drury's Case 8. Rep. an Outlawry issued and Process of Capias upon the Outlawry the Sheriff retorn'd Non est inventus and the same day the party came into Court and demanded Oyer of the Exigent which was the Warrant of the Outlawry and shew'd the Exigent to be altogether uncertain and insufficient and consequently the Outlawry depending upon it to be null And the Court gave Iudgment accordingly though the Record of the Outlawry were never revers'd by Error which differs not from this Case where the Order of Commitment is Iudicially declar'd illegal though not quasht or revers'd by Error and consequently whatever depends upon it as the Fine and Commitment doth and the Outlawry in the former Case was more the Kings Interest than the Fine in this The Chief Justice deliver'd the Opinion of the Court and accordingly the Prisoners were discharg'd Hill 23 24 Car. II. B. C. Rot. 615. Edmund Sheppard Junior Plaintiff In Trespass Suff. ss against George Gosnold William Booth William Haygard and Henry Heringold Defendants THE Plaintiff declares for the forcible taking and carrying away at Gyppin in the said County the Eight and twentieth of January 22 Car. 2. Five and twenty hundred and Three quarters of a hundred of Wax of the said Edmunds there found and keeping and detaining the same under Arrest until the Plaintiff had paid Forty nine shillings to them the said Defendants for the delivery thereof to his Damage of 40 l. The Defendants plead Not Culpable and put themselves upon the Country c. The Jury find a Special Verdict 1. That before the Caption Arrest and Detention of the said Goods and at the time of the same Edmund Sheppard the younger was and is Lord of the Mannor of Bawdsey in the said County and thereof seis'd in his Demesne as of Fee and that he and all those whose Estate he hath and had at the time of the Trespass suppos'd in the said Mannor with the Appurtenances time out of mind had and accustomed to have all Goods and Chattels wreck'd upon the high Sea cast on shore upon the said Mannor as appertaining to the said Mannor 2. They further say The said Goods were shipped in Forraign parts as Merchandise and not intended to be imported into England but to be carried into other Forraign parts 3. That the said Goods were wreck'd upon the high Sea and by the Sea-shoar as wreck'd Goods cast upon the Shoar of the said Mannor within the same Mannor and thereby the said Edmund seis'd as wreck belonging to him as Lord of the said Mannor They further find That at the Parliament begun at Westminster the Five and Twentieth of April the Twelfth of the King and continued to the Nine and Twentieth of December following there was granted to the King a Subsidy call'd Poundage Of all Goods and Merchandises of every Merchant natural born Subject Denizen and Alien to be exported out of the Kingdom of England or any the Dominions thereto belonging or imported into the same by way of Merchandise of the value of Twenty shillings according to the particular Rates and Values of such Goods and Merchandises as they are respectively rated and valued in the Book of Rates intitled The Rates of Merchandise after in the said Act mentioned and referr'd to to One shilling c. Then they say That by the Book of Rates Wax inward or imported every hundred weight containing One hundred and twelve pounds is rated to Forty shillings and hard Wax the pound Three shillings four pence They find at the time of the Seisure of the Goods That the Defendants were the King's Officers duly appointed to collect the Subsidy of Poundage by the said Act granted and that for the Duty of Poundage not paid at the said time they seis'd and arrested the said Goods until the Plaintiff had paid them the said Fine of Forty nine shillings But whether the Goods and Chattels aforesaid so as aforesaid wreck'd be chargeable with the said duty of Poundage or not they know not And if not They find the Defendants Culpable and Assess Damages to the Plaintiff to Nine and forty shillings ultra misas custagia And if the said Goods be chargeable with the said Duty they find the Defendants not Culpable It is clear Dyer 31 H. 8. 43. b. n. 22. That formerly in the times of Henry the Eighth Queen Mary and Queen Elizabeth it was suppos'd that some Customes were due by the Common Law wherein the King had an Inheritance for certain Merchandise to be transported out of the Realm and that such Customes were not originally due by any Act of Parliament so is the Book 31 H. 8. It was the Opinion likewise of all the Justices in the Chequer Chamber when Edward the Sixth had granted to a Merchant Alien That he might Transport or Import all sorts of Merchandise not exceeding in the value of the Customes and Subsidies thereof Fifty pounds paying only to the King his Heirs and Successors pro Custumis Subsidiis oneribus quibuscunque of such Marchandises so much and no more as any English Merchant was to pay That this Patent remained good for the old Customes Dyer 1 Mar. f. 92. a. n. 17. wherein the King had an Inheritance by his Prerogative but was void by the Kings death as to Goods customable for his life only by the Statute of Tunnage c. So upon a Question rais'd upon occasion of a new Imposition laid by Queen Mary upon Clothes Dyer 1 Eliz. f. 165. a. b. n. 57 the Judges being consuited about it 1 Eliz. The Book is Nota That English Merchants do not pay at Common Law any Custome for any Wares or Merchandises whatever but Three that is Woolls Woolfells and Leather that is to say pro quolibet sacco lanae continent 26 pierres chescun pierr 14 pound un demy marke and for Three hundred Woolfells half a Mark and for a Last of Leather Thirteen shillings four pence and that was equal to Strangers and English Merchants This was in those several Reigns the Opinion of all the Iudges of the times whence we may learn how fallible even the Opinion of all the Judges is when the matter to be sesolved must be clear'd by Searchers not common and depends not upon Cases vulgarily known by Readers of the Year Books For since these Opinions it is known those Customes called the Old or Antiqua Custumae were granted to King Edward the First in the Third year of his Reign by Parliament as a new thing and was no Duty belonging to the Crown by the Common Law But the Act of Parliament it self by which this custome was granted is no where extant now but undeniable Evidence of it appears For King Edward
Whether the Temporal Courts of the King can take Conizance in general that it is not an Incestuous marriage by the Act of 32 H. 8. and consequently prohibit the questioning of it in the Ecclesiastical Courts Because the words of that Act are That no marriage shall be impeached Gods Law except without the Levitical Degrees and therefore within the meaning of that Act Some marriages might be impeach'd according to Gods Law though such marriage were out of the Levitical Degrees whereof this may be one As to the first Question The marriage of Harrison and Jane Resp 1 his wife is a lawful marriage by the Act of 32 H. 8. cap. 38. As to the Second I hold the Judges of the Temporal Courts Resp 2 have by that and other Acts of Parliament full Conizance of marriages within or without the Levitical Degrees As to the Third I hold that as the Law stands at this time Resp 3 the Kings Temporal Courts at Westminster have full Conizance what marriages are incestuous or not according to the Law of the Kingdom and may prohibit the Ecclesiastick Courts from questioning marriages as Incestuous which the said Courts in their Iudgment shall conceive not to be so Yet I shall agree the Ecclesiastick Courts may proceed in order to Divorcement and punishment concerning divers marriages and the Kings Courts at Westminster ought not to prohibit them though such marriages be wholly without the Levitical Degrees I shall begin in some measure first to clear the Second Question viz. Whether the Kings Temporal Courts have any Conizance of the Subject matter namely what marriages are within or without the Levitical Degrees Questions of that nature being as must be confessed regularly to be decided by the Law Divine whereof the Ecclesiastick Courts have generally the Conizance For it were improper for us to resolve a Question in a Law when it was left to an after Inquiry whether we had any Conizance of or skill in that Law by which the Question was to be determined There was a time when the Temporal Courts had no Conizance of lawful or unlawful marriages so was there a time when the Ecclesiastical Courts had no Conizance of matters Testamentary and probat of Wills Hensloes C. 9. Rep. but the Law-making power of the Kingdom gave them that which they had not before and the same hath given the Temporal Courts this now which they had not in former times By Conizance in this sense I intend Jurisdiction and Judicial Power as far as it extends concerning the lawfulness of marriages which an Act of Parliament hath given them Notwithstanding it will be said They want knowledge or skill in the Law by which it must be determined what are or are not the Levitical Degrees for they are not studied in that Divine Law they want skill in the Original in which it was written and in the History by which it is to be interpreted As specious as this seems it is a very empty Objection for no man is supposed necessarily ignorant of a Law which he is bound to observe It is irrational to suppose men necessarily ignorant of those Laws for breach of which they are to be punisht and therefore no Canon of Divine or Human Law ought to be supposed unknown to them who must be punisht for transgressing them We are obliged not to marry in the prohibited Degrees not to be Heretical or the like therefore we are supposed to know both Nor is it an Exception to disable a man of having any Church Dignity whatever that he is not knowing in the Hebrew or Greek Tongue All States receive the Scriptures in that Language wherein the several States think fit to publish them for common use and it is but very lately that the Christian Churches have become knowing in the Original Tongues wherein the Scriptures were written which is not a knowledge of obligation and required in all or any but acknowledged accidental and enjoy'd by some If it were enacted by Parliament That matters of Inheritance of Theft and Murther should be determined in the Courts of Westminster according to the Laws of Moses this Objection would not stand in the way no more can it in this particular concerning Incestuous marriages The Laws of one people have frequently been transferred over and become the Laws of another As those of the Twelve Tables from Greece to Rome in like manner those Laws of the Rhodians for Maritime Affairs made the Law of the Romans the Laws of England into Ireland and many such might be instanced As another lymn of this Objection it is said This Act 13 H. 8. seems rather a directing Act how the Courts Ecclesiastical should proceed touching marriages out of the Levitical Degrees than an Act impowering the Temporal Courts to prohibit their proceeding When the King's Laws prohibit any thing to be done there are regular ways to punish the Offender As for common Offences by Indictment or Information Erronious Judgments are remedied by Writs of Error or Appeal Incroaching Jurisdiction by Courts where no Writ of Error lies is corrected by the King's Writs of Prohibitions It is most proper for the King to hinder the violating of his Laws by impeaching of marriages which the Law will not have impeach'd by incroaching Iurisdiction as to hinder them from impeaching or drawing into question Contracts for Lands or other things whereof they have not Conizance And the King hath never otherwise remedied that fault against his Laws but by his Prohibitions out of his Courts of Iustice Nor is it consonant to Law or common Reason That they who offend by incroaching Jurisdiction against Law should be the redress allowed by Law only against such incroachment which were to provide against doing wrong by him who doth it By the Act no person of what estate or condition soever Rep. 1 2. p.m. but that was Rep. again 1 El. c. 1. is to be admitted to any of the Spiriual Courts and to any Process Plea or Allegation contrary to the Act. This Act therefore never intended the Ecclesiastick Courts should have any Judicial power to determine or judge what marriages were within or without the Levitical Degrees contrary or not contrary to the Act when it admits not any Process Plea or Allegation in a Spiritual Court contrary to the Act. For it is impossible that Court should have Conizance to determine the lawfulness or unlawfulness of a marriage which is forbid to admit Process Plea or Allegation against such marriage if it be lawful 1. This marriage not prohibited in the 18. of Leviticus nor the same degree with any there prohibited 2. If marriages neither prohibited in terminis in Leviticus nor being in the same degree with a marriage there prohibited should be unlawful there would be no stop or terminus of unlawful marriages 3. The 20. of Leviticus prohibits no other marriages than the 18. of Leviticus doth but appoints the punishments which the Eighteenth doth not 4. Not now to
because the Libel was That the marriage was Incestuous Next a Consultation might be granted unless cause were shew'd for it was no otherwise Because the Suggestion was not That the marriage was out of the Levitical Degrees but that the persons married were extra leges Leviticales which was as if they had said They were not under the Jewish Common-wealth And then a Consultation might be granted upon this Prohibition as upon that of Mann's Case because the Plaintiff did not averr the marriage to be extra gradus Leviticus and ground his Prohibition thereupon As those two Prohibitions were for marrying the Wives Sisters daughter that is the Wives Neece by the Sister So there is a Case in the Lord Hobbard Hobbard f. 181. a. Keppington where one Keppington married his Wives Sisters daughter was questioned for Incest by the High Commissioners and sentenced and entred into Bond to abstain from her Company but was not divorced and therefore the Wife recover'd a Wives Widows Estate in a Copy-hold notwithstanding the Sentence but no Prohibition was in the Case The same Case is in the Reports which pass for Mr. Noye's f. 29. but mistaken for there in place of his Wives sister it is Fathers sister Hill 21. Car. II. This Case was by the King's Command adjourn'd for the Opinion of all the Judges of England Trin. 22. Car. II. The Chief Justice delivered their Opinions and accordingly Judgment was given That a Prohibition ought to go to the Spiritual Court for the Plaintiff Mich. 20 Car. II. C. B. Sir Henry North Plaintiff William Coe Defendant SIR Henry North hath brought an Action of Trespass Quare clausum fregit against William Coe in a Close upon the new Assignment called Westrow-hills containing Fifty Acres a Close called the Heyland containing One hundred Acres and another called the Delf and Brink containing One hundred and fifty Acres in Milden-hall The Defendant pleads That the said places are part of the Mannor of Milden-hall whereof the Plaintiff was seis'd tempore transgressionis suppositae and that he was then and yet is seis'd of an ancient Messuage with the Appurtenances in Milden-hall being one of the free Tenements of the said Mannor and held of the said Mannor by Rents and other Services in his demesne as of Fee That there are divers freehold Tenements time out of mind in the said Mannor held by several Rents and Services parcel of the said Mannor and that there were and are infra candem Villam divers customary Tenements parcel of the said Mannor grantable Ad voluntatem Domini by Copy That all the Tenants of the free Tenements time out of mind habuerunt usi fuerunt and all the Tenants of the Customary Tenements Per consuetudinem ejusdem Manerii in eodem Manerio à toto tempore supradict usitat approbat habuerunt habere consueverunt solam separalem Pasturam praedict Clausi vocat Westrow-hills cum pertinen for all their Cattel Hogs Sheep and Northern Steers except levant and couchant upon their respective Messuages and Tenements every year for all times of the year except from the Feast of St. Edmond to the Five and twentieth of March next following as belonging and pertaining to their several Tenements And likewise had and used to have solam separalem Pasturam praedict Clausi vocat Westrow-hills from the Feast of St. Edmund every year to the Five and twentieth of March for feeding of all their Cattel Hogs Sheep and Northern Steers except levant and couchant c. Excepted that the Tenants of the Demesne of the Mannor every year from the said Feast to the Five and twentieth of March by custome of the said Mannor depastured their Sheep there That at the time of the Trespass the Defendant put in his own Cattel levant and couchant upon his said Messuage Prout ei bene licuit and averreth not that none of his said Cattel were Porci Oves or Juvenci called Northern Steers but Petit Judicium The like Plea he makes for the Closes called the Haylands Delf and Brink but that the free Tenants as before and customary Tenants had solam separalem Pasturam pro omnibus averiis Porcis Ovibus Juvencis called Northern Steers excepted for all times of the year And that he put in Averia sua levantia cubantia super tenementum praedictum prout ei bene licuit Petit Judicium Cum hoc quod verificare vult quod nullus bovium praedict ipsius Willielmi suerunt Juvenci vocat Northern Steers Whereas no mention is of putting in Oxen but Averia sua in general and no averment that no Sheep were put in The Plaintiff demurs upon this Plea Exceptions to the Pleading The Defendant saith he was seis'd de uno antiquo Messuagio being one of the freehold Tenements of the said Mannor and that there are divers freehold Tenements within the said Mannor and that omnes Tenentes of the said Tenements have had solam separalem pasturam for all their Cattel levant and couchant except Porcis Ovibus and Juvencis called Northern Steers in the place called Westrow-hills and that he put his Cattel levant and couchant prout ei bene licuit 1. That he was seis'd de uno antiquo Messuagio and of no Land is not proper for Cattel cannot be levant in common intention upon a Messuage only 2. He saith he put in his Cattel levant and couchant but avers not as he ought That none of them were Porci Oves or Northern Steers for Porci there is a Rule of Court 3. He pleads in like manner as to the Hayland Delf and Brink That he put in his Cattel and avers that non Bovium praedict were Northern Steers when as there is no mention of putting in Oxen but Averia generally and no averment that there were no Sheep 4. The Plea doth not set forth the Custome of the Mannor but implicity that the Free-hold and customary Tenants have had and enjoy'd per consuetudinem Manerii solam separalem pasturam for all their Cattel which is a double Plea both of the custome of the Mannor and of the claim by reason of the custome which ought to be several and the Court should judge and not the Jury whether the claim be according to the custome alledg'd The custome may be different from the claim per consuetudinem Manerii if particularly alledg'd Lastly the matter in difference is not before the Court formally by this way of pleading for the matter in question must be Whether the Lord of the Mannor be excluded from pasturing with the Tenants in the place in question or from approving the Common If the Defendant had distrained Damage feasant and the Plaintiff brought his Action and the Defendant avow'd propter solam separalem pasturam the Lords right to depasture had come properly in question and by natural pleading Or if the Lord upon the Tenants plea had taken no notice of sola separalis pastura but had
Mothers But if a fiction could make a natural Subject he hath two natural Princes one where he was born and the other where naturalized 3. If one naturalized in Ireland should in law make him naturally born there then one naturalized in Scotland after the Vnion should make him naturally born there consequently inheritable in England which is not contended 4. A naturalized person in a Dominion belonging to England is both the King 's Subject when he is King of England and inheritable in that his Dominion when naturaliz'd So the Antenati of Scotland are the King of England's Subjects when he is King of England and inheritable in that Dominion of his yet cannot inherit in England and being his Subjects before doth not make them less his Subjects when King of England Or if it did Nicholas Ramsey before he was naturalized in Ireland and became there a Subject to the King of England was a Subject in Scotland of the Kings There are four ways by which men born out of England may inherit in England besides by the Statute of Edward the Third De Natis ultra Mare 1. If they be born in any Dominion of the Kings when he is actually King of England 2. If they be made inheritable by Act of Parliament in England as by naturalization there 3. If they be born Subjects to a Prince holding his Kingdom or Territories as Homager and Liegeman to the King of England Calvins Case f. 21. b. during the time of his being Homager So the Welch were inheritable in England before 12 Ed. 1. though Subjects to the Princes of Wales who were Homagers to the King of England So were the Scotch in Edward the First 's time during the King of Scotlands Homage to him and to other Kings of England as long as it continued And that is the reason of the Case in 14. of Eliz. in the Lord Dyer Dyer 14 Eliz. f. 304. pl. 51. where a Scotch-man being arraign'd for a Rape of a Girl under Seven years of Age and praying his Tryal per medietatem Linguae because he was a Scot born it was denied him by the Opinion of the Iudges of both Benches for that among other reasons a Scot was never accounted an Alien here but rather a Subject So are the words of the Book But they did not consider that the Homage was determined then as it was consider'd after in Calvin's Case when only the Postnati of Scotland were admitted inheritable in England Vpon the same ground one Magdulph Subject to the King of Scots appeal'd from his Iudgment to Edward the First Pl. Parl. 21 E. 1. f. 152. 157. ut Superiori Domino Scotiae But this is to be understood where such Prince is Homager Subjectionis and not only Infeodationis for another King may hold of the King of England an Island or other Territory by Tenure and not be his Subject 4. If the King of England enter with his Army hostilly the Territories of another Prince and any be born within the places possessed by the Kings Army and consequently within his Protection such person is a Subject born to the King of England if from Parents Subjects and not Hostile 5 Eliz. Dyer f. 224. pl. 29. So was it resolved by the Iustices 5 Eliz. That one born in Tourney in France and conquered by Henry the Eighth being a Bastard between persons that were of the King's liegeance was enabled to purchase and implead within the Realm and was the same as if a French-man and French-woman should come into England and have a Son born there The like law if he had been born of French Parents in Tourney for it was part of the Dominions belonging to England pro tempore as Calice was Those under the King's Power as King of England in another Prince his Dominions are under his Laws Fleta l. 2. c. 3. 14 E. 1. King Edward the First being at Paris 14 E. 1. one Ingelram de Nogent stole silver Dishes in the King's House there and after dispute about his Tryal with the King of France and his Council he was convicted before the Steward of the King of England's House and executed though the Felony was done in France in Aliero Regno Fleta l. 2. c. 3. 12 E. 1. So Edmund de Murdak brought an Appeal in Gascoigne coram Seneschallo Hospitii Regis Angliae against one William de Lesnes of Robbery done to him 12 E. 1. infra metas Hospitii Regis infra quas invenit ipsum And the Defendant non potuit appellum illud per exceptionem alterius Regni declinare 1. Regularly who once was an Alien to England cannot be inheritable there but by Act of Parliament which is Common Experience But Ramsey was an Alien to England being Antenatus of Scotland and therefore cannot inherit here but by Act of Parliament If it be said there is an Exception to that viz. unless he be naturalized in Ireland that Exception must be well prov'd not suppos'd For the Question being Whether one naturalized in Ireland do thereby become as a Native of England must not be resolv'd by saying That he doth become as a Native of England otherwise it is prov'd only by begging the Question 2. The being no Alien in England belongs not to any made the King of Englands Subject by Act of Law when he is King of England but to such as are born so Natural legitimation respecteth actual Obedience to the Soveraign at the time of the birth Calvins Case f. 27. for the Antenati remain Aliens because they were born when there were several Kings of the several Kingdoms not because they are not by act of law afterwards become Subjects to the King of England by the Union of the Crowns But he that is naturaliz'd in Scotland or Ireland is not a Subject born to the King of England but made by a subsequent Act in law 3. And chiefly the manner of subjection of a Stranger naturaliz'd in Scotland or Ireland doth exactly agree with that of the Antenatus and not of the Postnatus For 1. The Antenatus was another Prince his Subject before he was the King of Englands 2. The Antenatus might have been an Enemy to England by a war between the several Kings before the Vnion So a Stranger naturalized in Scotland or Ireland was the natural Subject of some other Prince necessarily before he was naturaliz'd and then might have been an Enemy to the King of England by a war between his natural Soveraign and the King of England before he was naturalized But the Postnatus was never subject to any before he was the King of Englands nor ever in possibility of being an enemy to England both which are the properties of subjection in the native English Subject and is the reason why the Postnatus in England is as the Natives of England No fiction of Law can make a man a Natural Subject that is not for a Natural Subject and a Natural Prince are
Act of Parliament of England no more than Wales Gernsey Jersey Barwick the English Plantations all which are Dominions belonging to the Realm of England though not within the Territorial Dominion or Realm of England but follow it and are a part of its Royalty Thirdly That distinct Kingdoms cannot be united but by mutual Acts of Parliament True if they be Kingdoms sui Juris and independent upon each other as England and Scotland cannot be united but by reciprocal Acts of Parliament So upon the Peace made after Edward the Third's war with France Gascoign Guien Calais were united and annext to the Crown of England by the Parliaments of both Nations which is a secret piece of Story and mistaken by Sir Edward Coke who took it as a part of the Conquest of France and by no other Title But Wales after the Conquest of it by Edward the First was annext to England Jure Proprietatis 12 Ed. 1. by the Statute of Ruthland only and after more really by 27 H. 8. 34. but at first received Laws from England as Ireland did but not proceeded by Writs out of the English Chancery but had a Chancery of his own as Ireland hath was not bound by the Laws of England unnamed until 27 H. 8. no more than Ireland now is Ireland in nothing differs from it but in having a Parliament Gratiâ Regis subject to the Parliament of England it might have had so if the King pleas'd but it was annext to England None doubts Ireland as conquer'd as it and as much subject to the Parliament of England if it please The Court was divided viz. The Chief Justice and Tyrrell for the Plaintiff Wylde and Archer for the Defendant Trin. 25 Car. II. C. B. Rot. 1488. Thomas Hill and Sarah his Wife are Plaintiffs Thomas Good Surrogat of Sir Timothy Baldwyn Knight Doctor of Laws and Official of the Reverend Father in God Herbert Bishop of Hereford is Defendant In a Prohibition THE Plaintiffs who prosecute as well for the King as themselves set forth That all Pleas and Civil Transactions and the Exposition and Construction of all Statutes and all Penalties for the breach of them pertain only to the King and his Crown Then set forth the time of making the Act of 32 H. 8. c. 38. and the Act it self at large and that thereby it was enacted That from the time limited by the Act no Reservation or Prohibition Gods Law excepted should trouble or impeach any marriage without the Levitical Degrees And that no person shall be admitted after the time limited by the Act in any the Spiritual Courts within this Kingdom to any Process Plea or Allegation contrary to the Act. They set forth That after the making of the said Act and the time thereby limited the Plaintiffs being lawful persons to contract marriage and not prohibited by Gods Law and being persons without the Levitical Degrees the Twentieth day of September in the Four and twentieth year of the King at Lemster in the County of Hereford contracted matrimony in the face of the Church and the same consummated and solemninized with carnal knowledge and fruit of Children at Lemster aforesaid That by reason thereof the said Marriage is good and lawful and ought not to be null'd in Court Christian That notwithstanding the Defendant praemissorum non ignarus fraudulently intending to grieve and oppress the Plaintiffs unduly draws them into question before him in the Court Christian for an unlawful marriage as made within the Degrees prohibited by Gods Laws and there falso caute subdole libelling and supposing that whereas by the Laws and Canons Ecclesiastical of this Kingdom it is ordained That none should contract matrimony within the Degrees prohibited by Gods Law and expressed in a certain Table set forth by Publique Authority Anno 1563. and that all marriages so contracted should be esteemed incestuous and unlawful and therefore should be dissolved as void from the beginning And also That whereas by a certain Act of Parliament made and published in the Eight and twentieth year of King Henry the Eighth It is enacted That no person or persons subject or residing within the Realm of England or within the Kings Dominions should marry within the Degrees recited in the said Act upon any pretence whatsoever And That whereas the said Thomas Hill had taken to wife one Elizabeth Clark and for several years cohabited with her as man and wife and had carnal kdowledge of her He the said Thomas notwithstanding after the death of the said Elizabeth had married with and took to wife the said Sarah being the natural and lawful Sister of the said Elizabeth against the form of the said last mentioned Statute and them the said Thomas and Sarah had caus'd unjustly to appear before him in Court Christian to Answer touching the Premisses although the said marriage be lawful and according to Gods Law and without the Levitical Degrees And That although the Plaintiffs have for their discharge in the said Court Christian pleaded the said first recited Act yet the Defendant refuseth to admit the same but proceeds against them as for an incestuous marriage against the form of the Statute And that notwithstanding he was served with the Kings Writ of Prohibition to desist in that behalf in contempt of the King and to the Plaintiffs damage of One hundred pounds The Defendant denies any prosecution of the Plaintiffs contrary to the Kings Writ of Prohibition and thereupon Issue is joyn'd and demurrs upon the matter of the Declaration and prays a Consultation and the Plaintiffs joyn in Demurrer In the Argument upon Harrisons Case I said and still say That if granting Prohibitions to the Spiritual Courts in Cases of Matrimony were res integra now I saw no reason why we should grant them in any Case The matter being wholly of Ecclesiastick Conizance my Reasons were and are 1. Because in all times some marriages were lawful and others prohibited by Divine and Ecclesiastick Laws or Canons yet the Temporal Courts could not prohibit the impeaching of any marriage how lawful soever nor take notice of it 2. If by Act of Parliament anciently all marriages not prohibited by Gods Law or Canons of the Church had been declared lawful the Temporal Courts thereby had no power to prohibit the questioning of any marriage more than before for it had said no more than what the Law was and did say before such Act. So had it been enacted That all marriages should be lawful not prohibited by the Levitical Law the Church had retain'd the judging which were against the Levitical Law as they did when the unlawfulness was not confin'd only to the Levitical Law And the Question now concerning what are the Levitical Degrees whereof we assume the Conizance is but the same as the question would be concerning what marriages were prohibited in the Eighteenth of Leviticus For though such Acts of Parliaments had been yet they had given no new Iurisdiction or
under such unlawful marriage should be illegitimate And if any such marriages were in any the Kings Dominions without Separation that there should be a separation from the Bonds of such unlawful marriage Now we must observe the Act of 1 2 Phil. Mar. c. 8. doth not repeal this Act entirely of 28 H. 8. c. 7. but repeals only one Clause of it the words of which Clause of Repeal are before cited and manifest this second Clause of the Act of 28 H. 8. and not the first to be the Clause intended to be repeal'd For there was no reason to repeal the Clause declaratory of marriages prohibited by Gods Law which the Church of Rome always acknowledged nor do the words of Repeal import any thing concerning marriages within degrees prohibited by Gods Law But as the time then was there was reason to repeal a Clause enacting all Separations of such marriages with which the Pope had dispenc'd should remain good against his Authority and that such marriages with which he had dispenc'd not yet separated should be separate And the words of the Clause of Repeal manifest the second Clause to be intended viz. All that part of the Act made in the said Eight and twentieth year of King Henry the Eighth which concerneth a prohibition to marry within the degrees expressed in the said Act shall be repeal'd c. As it is true That if a marriage be declared by Act of Parliament to be against Gods Law we must admit it to be so for by a Law that is by an Act of Parliament it is so declared By the same reason if by a lawful Canon a marriage be declared to be against Gods Law we must admit it to be so for a lawful Canon is the Law of the Kingdom as well as an Act of Parliament And whatever is the Law of the Kingdom is as much the Law as any thing else that is so for what is Law doth not suscipere magis aut minus But by a lawful Canon of this Kingdom which is enough and not only so but by a Canon warranted by Act of Parliament the marriage in question is declared to be prohibited by Gods Law therefore we must admit it to be so In a Synod or Convocation holden at London in the year 1603. for the Province of Canterbury by the Kings Writ and with the Kings Licence under the Great Seal of England to treat consult and agree of such Canons and Constitutions Ecclesiastick as should be there thought fit Several Canons were concluded and agreed To which King James gave his Royal Assent and Approbation and by his Letters Patents ratified and confirmed them according to the form of the Statute made in 25 H. 8. c. 19. and commanded the due observance of them Among which the Ninety ninth Canon is No person shall marry within the degrees prohibited by Gods Law and expressed in a Table set forth by Authority in the year of our Lord 1563. and all marriages so made and contracted shall be adjudged incestuous and unlawful and the aforesaid Table shall be in every Church publickly set up and fixed at the charge of the Parish Which is the same as No person shall marry within the degrees prohibited by Gods Law and which degrees are expressed in the Table c. For to the Question What is expressed in the Table there can be no Answer but the degrees prohibited by Gods Law But by this Table this marriage in question is expressed to be in a degree prohibited by Gods Law therefore it must be admitted to be so Another consequent is this That by this Canon and consequently by the Law of this Kingdom All marriages prohibited by that Table are declared to be within the degrees prohibited by Gods Law Note That any marriage unlawful by holy Scripture is declared here to be against Gods Law Judicially no otherwise than because by the Law of the Land the Scripture it self is declared and approved to be the Law of God for the Scripture cannot judge it self to be Scripture without some Judicature Therefore by the sixth Canon tempore Ed. 6. at a Convocation in London Anno 1552. the Authority of the Old Testament was declared Can. 1552. At a Convocation of both Provinces in London Anno 1562. the Canonical and Apocryphal Books of the Old Testament were particularly enumerated Can. 1563. and the Books of the New declared Canonical as Receiv'd By the seventh Canon the Authority of the Old Testament Declared By the Act it is said That the Clergy of this Kingdom nor any of them shall henceforth enact promulgate or execute any Canons Constitutions or Ordinances Provincial by whatsoever name or names they may be called in their Convocations in time coming which shall always be assembled by Authority of the Kings Writ unless the same Clergy may have the Kings most Royal Assent and Licence to make promulge and execute such Canons Constitutions and Ordinances Provincial c. The Chief Justice delivered the Resolution of the Court And accordingly a Consultation was granted In Camera Scaccarii Edward Thomas Plaintiff Thomas Sorrell Defendant THE Plaintiff by Information in the Kings Bench tam pro Domino Rege quam pro seipso demands of the Defendant Four hundred and fifty pounds for selling Wine in the Parish of Stepney in the County of Middlesex by Retail Ninety several times between the Tenth day of June the Seventeenth of the King and the Two and twentieth day of May the Eighteenth of the King to several persons without licence contrary to the Statute of 12 Car. 2. whereby he forfeited Five pounds for every several offence which amounts to Four hundred and fifty pounds The Defendant pleads Nil debet and therefore puts himself upon the Country The Iury find That as to all the Debt except Fifty pounds the Defendant owes nothing And as to the Fifty pounds they find the Statute of 7 E. 6. c. 5. concerning retailing of Wines prout in the Statute They find Letters Patents under the Great Seal dated 2 Febr. 9 Jac. _____ prout in the Letters Patents whereby King James incorporated the Company of Vintners in the City of London by the Name of Master Warden Freemen and Commonalty of the Mystery of Vintners in the said City and thereby among other things granted for him his Heirs and Successors to the said Master Warden and Freemen of the said Company and their Successors that they might always after within the said City and Suburbs of the same and within three Miles from the Walls or Gates thereof and in all and every other City and Sea-ports called Port-towns within the Kingdom of England and in all other Cities and Towns known by the name of Thorough-fare-towns where Posts were set and laid between Dover and London and between London and Barwick where any of the Freemen of the said Mystery did or should happen to dwell and keep a Wine Tavern and by themselves or servants sell Wine by
convert part of their Wood-land into Arable 35 H. 8. c. 17. contrary to the Statute of 35 H. 8. and contrary also to the Common Law I have a Note of a Charter of King John to an Abbot and his Covent by which they had Licence Nemora sua pertinentia Domui suae redigere in culturam 5. A Licence to erect some Cottages upon their Waste or other Lands 31 El. c. 7. contrary to the Statute of 31 Eliz. c. 7. 6. A Licence to erect a Fair or Market 7. A Licence to an Abbot and his Covent Pl. Com. Grendons C. to appropriate a Rectory In all these Cases the King hath no knowledge of the persons themselves or of their number to whom he grants his Licence or Dispensation Therefore that can be no reason to avoid the Charter of the Corporation of Vintners A Dispensation or Licence properly passeth no Interest nor alters or transfers Property in any thing but only makes an Action lawful which without it had been unlawful As a Licence to go beyond the Seas to hunt in a mans Park to come into his House are only Actions which without Licence had been unlawful But a Licence to hunt in a mans Park and carry away the Deer kill'd to his own use to cut down a Tree in a mans Ground and to carry it away the next day after to his own use are Licences as to the Acts of Hunting and cutting down the Tree but as to the carrying away of the Deer kill'd and Tree cut down they are Grants So to licence a man to eat my meat or to fire the wood in my Chimney to warm him by as to the actions of eating fireing my wood and warming him they are Licences but it is consequent necessarily to those Actions that my Property be destroyed in the meat eaten and in the wood burnt so as in some Cases by consequent and not directly and as its effect a Dispensation or Licence may destroy and alter Property Trin. 2. Jac. To the Presidents of Wright versus Horton alios Of Norris versus Mason Trin. 2 Jac. Both which were the same Cases with the present upon the Letters Patents of Queen Elizabeth the Ninth of her Reign to the Vintners of London Of Young versus Wright Mich. 12 Car. 2. No Answer hath been given but that which is none viz. That the two first Judgments were without Argument which is not essential to a Judgment and Judgments are frequently given when the Cause is conceiv'd clear as it seems these were conceiv'd if there were no Argument which is but a Non liquet The Answer to the last President is That the Judgment upon the Roll is torn off That some of the Judges are living who gave the Judgment and many more who know it to have been given Other Presidents of Licences to Corporations 6 H. 8. 1. A Special Licence to the Fraternity of Corvisors London to exercise their Callings notwithstanding a penal Statute to the contrary 1 R. 3. 1 E. 6. 4. Inhabitantibus in Com. Norf. Civitat Norwic. authoritat barganizare pro Lanis non obstante Statuto 37 H. 8. 2 E. 6. 3. Mercatoribus de Venice Licenc Special emere in aliquo Com. hujus regni Angl. 500 Saccas Lanarum ac illas operare sic operat in partes exteras transmarinas carriare absque impedimento non obstante Statut. 4 H. 7. 7 E. 6. 6. Mercatoribus transeuntibus Licenc asportare pecun contra formam Statuti 1 E. 6. 7. Johanni Gale Mil. Licenc pro omnibus suis servis sagittare in vibrell non obstante Act. Parliament Cons Tho. Com. South 2 R. 3. 1. A Proclamation dispensing with a penal Statute touching Cloth-making 1 R. 3. 9 Eliz. 3. Henr Campion al. Brasiator de Lond. Westm licenc retinere alienos in servitiis suis 27 H. 8. 2. Major Civitat Heref. Licenc perquirere terram ad Annuum valorem 40 Marcarum non obstante Statuto 36 Eliz. 3. Ballivis c. de Yarmouth magna Licenc transportare 40000 quarter frument gran infra 10 Ann. 26 Eliz. 7. President c. Mercatorum Hispaniae Portugal infra Civitat Cestr Licenc transportare 10000 Dickers of Leather per 12 Ann. 1 M. 2. Mercatoribus de le Stillyard Licence for three years to Export any manner of Woollen Cloth at 6 l. and under unrowed unbarbed and unshorn without forfeiture 1 M. 11. Mercatoribus periclitan a Licence to transport all manner of Woollen Cloth non obstante Stat. Roberto Heming alios Licence to sell Faggots within London and Westminster non obstante Stat. 2 Jac. 22. A Licence to the Gun-makers of London to transport Guns 4 Eliz. 2. A Licence to the Mayor c. of Bristoll that they may lade and unlade their Ships c. of their Goods and lay the same on Land and from Land to transport them Non obstante Statut. 6 Eliz. 11. Mercatoribus Periclitan Licence to transport their Merchandises in strange Ships Non obstante Statut. 5 Car. 1. Mercatoribus de le East-Indies Licence to transport 10000 l. in English Gold Objections against the Patent 9 Jac. Obj. 1 That by this Patent every Freeman of London and of the Corporation of Vintners which freedom the City and Corporation gives to whom they please is dispens'd with So in effect the City of London and Corporation of Vintners give Dispensation to sell Wine The Case of penal Laws Seventh Rep. Answ 1. which by Law none but the King can grant as is resolved in the Seventh Report The King Incorporates a Town by name of Mayor and Burgesses with power to the Burgesses annually to choose a New Mayor Brook Commission n. 5. and grants that every Mayor at the end of his Majoralty shall be a Justice of the Peace in that Corporation It is no Inference because the Burgesses elect the Mayors that therefore they make Justices of Peace for they are made so by the King 's Great Seal and not by them The Case is in Brook Title Commission N. 5. Nor is that Case of penal Laws so generally true perhaps if not understood where the King governs in person and not by his Lieutenant as in Ireland or by Governours as in the Plantations of the Western Islands The City of London grants Dispensations in this Case no more than the Burgesses make Justices of the Peace in the other Obj. 2 Another Objection made is That the King cannot dispense with a man to buy an Office contrary to the penal Statute of 5 E. 6. nor with one Simoniacally presented to hold the Living nor with any of the House of Commons not to take the Oath of Allegiance according to the Statute 7 Jac. c. 6. nor to Sue in the Admiralty for a Contract on the Land contrary to the Statute 2 H. 4. First It is against the known practise since the Statute of Answ 1 7 E. 6. That the King cannot dispense for selling of
then Vous saves bien que de ley cestuy que demand per Formedon in Reverter ne serra barr per le garranty cestuy à que les Tenements fuerunt done in tayl sil ne eyt per descent tout soit il heire à luy le quel Roy ad per descent ou non ne poiomus enquire And on this Case Sir Edward Coke makes an Observation That the King was not bound by a Collateral warranty for the Reversion of an Estate in tayl no more is any other Donor by that Case So as Sir William Herle's Iudgment who was then Chief Justice of the Common Pleas in three several years and several Cases was directly contrary to what Finchden 41 E. 3. said it was upon Report Besides the contrary of what my Brother Ellis urg'd from this Case may be thus inferr'd out of it This Case admits that the Statute restrains the warranty of the Donee from barring some Donor viz. a Donor stranger in blood as was said for it restrains Alienation without warranty against all Donors but the Statute did not restrain the Donees warranty from barring such a Donor for his warranty could never descend upon a stranger and the Statute did not restrain a thing which could not be Therefore ex concesso the Statute restrained the Donees warranty from barring the Donor of blood to the Donee 7 E. 3. 34. p. 44. 5. The fifth Objection was a Case 7 E. 3. that Tenant in tayl made a Feoffment in Fee and died issuless and the Feoffee rebutted the Donor by the warranty This Case rightly understood is not to the purpose for the Donor was not rebutted by the warranty of Tenant in tayl which is the present question but by the Donors own warranty The Case was That A. gave Land to W. and E. his wife Habendum praedictis W. E. haeredibus inter se legitime procreatis and warranted those Tenements to the said W. E. haeredibus eorum seu assignatis The Heir in tayl made a Feoffment in Fee and died leaving no Issue inheritable and the Donor was rebutted in his Formedon in Reverter by his own warranty having warranted to the Donee his Heirs and Assigns and the Feoffee claimed as Assignee And it was adjudg'd against the Donor after in the same year as appears 46 E. 3. f. 4. b. and there admitted good Law 46 E. 3. f. 4. b. But Sir Edward Coke denies this Case to be Law now saying That the warranty determined with the Estate tayl to which it was first annexed and doubtless it did so as to Voucher but whether as to Rebutter of the Donor the party rebutting having the Land though another Estate in it and deriving the warranty to himself as Assignee is not clear 6. A sixt Objection was made from a Case 27 E. 3. f. 83. of a Formedon in Reverter brought 27 E. 3. f. 83. pl. 42. and the Deed of Tenant in tayl Ancestor to the Demandant shewed forth but the Book mentions no warranty but it is like it was a Deed with warranty and the Plaintiff durst not demurr but traversed the Deed as any would avoid demurring upon the validity of an Ancestor's Deed when he was secure there was no such Deed of the Ancestor 7. 4 E. 3. f. 56. pl. 58. The last Objection was a Case 4 E. 3. f. 56. p. 58. where Tenant in tayl made a Feoffment with warranty and the warranty descended upon him in the Remainder in tayl which barr'd him which is a Case agreed as before For the Statute of Westminster the second provides not at all for hâ—m in Remainder but as to him Tenant in tayls warranty is left as at Common Law In 4 E. 3. a Formedon in the Descender was brought by the Issue in tayl and the Release of his elder Brother 4 E. 3. f. 28. pl. 57. with warranty was pleaded by the Tenant Stoner who gave the Rule in the Case Le statute restraynes le power del Issue in tayl to alien in prejudice of him in the Reversion by express words and à Fortiori the power of the Issue in tayl is restrain'd to alien in prejudice of the Issue in tayl Whereupon the Tenant was rul'd to answer and pleaded Assets descended Here it was admitted 10 E. 3. f. 14 pl. 53. the Issue in tayl could not alien with warranty in prejudice of the Reversioner And in 10 E. 3. soon after a Formedon in Reverter being brought and the warranty of Tenant in tayl pleaded in barr Scot alledg'd the restraint of the Statute as well for the Reversioner as for those claiming by descent in tayl The same Stoner demanding if the Ancestor's Deed was acknowledg'd and answered it was His Rule was That the Iudgment must be the same for the Reversioner as for the Issue in these words Ore est tout sur un Judgment which can have no other meaning considering Scot's words immediately before that the Law was the same for the Reversioner as for the Issue in tayl and Stoner's Opinion in the Case before to the same effect 4 E. 3. Objections from Modern Reports Moore f. 96. pl. 239. In Moore 's Reports this Case is A man seis'd of Land having Issue two Sons devis'd it to his youngest Son in tayl and the eldest Son died leaving Issue a Son the youngest aliened in Fee with warranty and died without Issue the Son of the eldest being within age If this Collateral warranty shall bind the Son within age without Assets notwithstanding the Statute of Westminster the second was the question And the Opinions of Plowden Bromley Solicitor Manwood and Lovelace Serjeants and of the Lord Dyer and Catlin Chief Iustice were clear That it is a Collateral warranty and without Assets did barr notwithstanding his Nonage for that his Entry was taken away And this was the Case of one Evans 12 13 of the Queen as it was reported to me This Opinion makes against me I confess but give it this Answer 1. This Case is not reported by Sir Francis Moore but reported to him non constat in what manner nor by whom 2. It was no Judicial Opinion for Plowden Bromley Solicitor two Serjeants Manwood and Lovelace are named for it as well as Dyer and Catlin who were then Chief Iustices of the several Courts which proves the Opinion not only extra-judicial but not given in any Court 3. The motive of their Opinion was because the warranty was Collateral which is no true reason of the binding or not of any warranty 4. An extra-judicial Opinion given in or out of Court is no more than the Prolatum or saying of him who gives it nor can be taken for his Opinion unless every thing spoken at pleasure must pass as the speakers Opinion 5. An Opinion given in Court if not necessary to the Judgment given of Record but that it might have been as well given if no such or a contrary Opinion had
in time is 11 Jac. in Debt upon a Bond the Action was laid in the County of Hereford upon Nil debet pleaded the Plaintiff had Judgment and Execution and a Writ to the Sheriff of the County of Radnor to levy Execution who did not but made his Retorn That breve Domini Regis non currit there Qu. How an Action of Debt could be laid in Hereford which must be by Original unless the party were in Custodia Mariscal and declared upon a Bond in the County of Hereford Coke the Chief Justice said before the Statute of 27 H. 8. c. 26. which annexed Wales and England doubt might have been in that Case but since the Statute 27 H. 8. it was clear and grounded himself upon a Case in 13 E. 3. of which more anon In this Case the Court did agree That the Writ of Execution did well go into Wales and amerced the Sheriff 10 l. for his had Retorn In this Case Dodridge agreed with Coke and said If the Law should be otherwise all the Executions in England would be defeated This was a Resolution upon some Debate among the Judges of the Court but upon no Argument at Barr for any thing appearing Per Doderidge If Debt be brought against one in London 16 Jac. B.R. Croke 484. and after the Defendant removes and inhabits in Wales a Capias ad satisfaciendum may be awarded against him into Wales or into any County Palatine and this was his Opinion exactly in the former Case But as the course of the Common Pleas was alledged to be contrary to what Mann said was used in the King Bench in the Case of Hall Rotheram 10 Jac. before cited so It was in the same year 11 Jac. wherein the Kings Bench resolved That Execution did well issue to the Sheriff of the County of Radnor of a Recovery in Debt in the Kings Bench and fin'd the Sheriff for his Retorn that breve Domini Regis non currit in Wallia Resolved otherwise in the Common Pleas 11 Jac. Godbolt f. 214. and that by the whole Court That a Fieri facias Capias ad Satisfaciendum or other Judicial Process did not run into Wales but that a Capias utlagatum did go into Wales and as Brownloe Pronotary then said that an Extent hath gone into Wales And it is undoubtedly true as to the Capias utlagatum and Extent but as to all other Judicial Process into Wales upon Judgments obtained here between party and party hitherto there is nothing to turn the Scale The Judgment of the Court of Common Pleas being directly contrary to that of the Kings Bench in the same age and time Vpon occasion of a Procedendo moved for to the Council of the Marches who had made a Decree Bendloes Rep. 2 Car. 1. Term. Mich. f. 192. Beatons Case That some persons living in the English Counties where they at least exercised Jurisdiction should pay monies recovered against him at a great Sessions in Wales he having neither Lands or Goods nor inhabiting in Wales having obtained a Prohibition to the Council of the Marches the Court of the Kings Bench was against the Procedendo No time is mentioned when this Resolution cited by Jones was so as i◠probably preceded the Resolutions of the Judges in Crooke And Justice Jones cited a Case where Judgment was given in the great Sessions of Cardigan against a Citizen of London who then inhabited there and after removed his Goods and Person thence that upon great deliberation it was resolved A Certiorari should issue out of the Chancery to remove the Record out of Wales and that then it should be sent by Mittimus into the Kings Bench and so Execution should be awarded in England of the Judgment had in Wales If this were so for which there is no other Authority but that Justice Jones cited such a Case not mentioning the time I agree it would seem strange that a Judgment obtained in Wales should by Law be executed in England and that a Judgment obtained in England could not be executed in Wales Cr. 2 Car. 1. f. 346. But in the same year in Easter Term before at an Assembly of all the Iustices and Barons it was resolved where Judgment was given in Debt at the great Sessions in Wales against a Defendant inhabiting there and the Defendant dying intestate one who inhabited in London taking Administration This Case is in the point for a Scire facias to have Lands in Wales must be against the Heir inhabiting in England but having Lands in Wales that Execution could not be in Wales because the Administrator inhabited not there nor a Certiorari granted out of the Chancery to remove the Record that so by Mittimus it might be sent to the Kings Bench or Common Pleas to take forth a Scire facias upon it to have Lands out of Wales or Goods in the Administrators hands liable to it there This was the Resolution of all the Justices and Barons for these Reasons First by this way all Judgments given in London or other inferior Jurisdictions would be removed and executed at large which would be of great inconvenience to make Lands or Goods liable to Execution in other manner than they were at the time of the Judgment given which was but within the Jurisdiction Secondly It would extend the Execution of Judgments given in private and limited Jurisdictions as amply as of Iudgment given at the Kings Courts at Westminster By this Resolution a Judgment given in Wales shall not be executed in England out of their Jurisdiction of Wales and à pari a Judgment given in England ought not to be executed in Wales which is out of the Jurisdiction of the English Courts more than a Judgment given in the Kings Bench or Common Pleas ought to be executed in Ireland or the Islands which are out of their Jurisdiction equally and upon the same grounds for any thing deducible from these Cases which was never pretended that it could be done And by that Case of Coke Lands Persons or Goods ought not to be lyable to Judgments in other manner than they were at the time of the Judgment given which was where the Court had Jurisdiction which gave the Judgment Nor is it material to say the Judgments then given are of no effect no more than to say Judgments given in the Kings Courts are of no effect against an Irish-man Dutch-man or Scotch-man that hath no Lands or Goods in England liable to Execution by that Judgment For the Plaintiff commencing his Suit ought to be conuzant what benefit he might have from it Nor are Presidents of Fact which pass sub silentio in the Court of Kings Bench or Common Pleas in such Cases to be regarded For Processes issue out of the Offices regularly to the Sheriffs of the County whereupon the Testator the Person Goods or Lands are said to be without distinction of places within or without the Jurisdiction
but for Churches only within the Lordships Marchers whether of the Kings Patronage or others for there it is certain according to the reason given in the Books that the Stewards of the Lordships Marchers to whomsoever they belonged could not write to the Bishops And Newton was right 19 H. 6. That if Action of Dower once brought in the Court of any Signiory real it should be Royal in Wales and there issue should be upon usque accouple in loyal Matrimony which must be tryed by the Bishop but the Court had no power to write to the Bishop but therefore saith he The King shall write to the Marshal to remove the Record hither and then we shall make Process to the Bishop But this is against the Resolution of all the Judges in Cr. 2 Car. 1. f. 34. So as either of Necessity this was a provision in the same Act That as well Quare Impedits should be brought in England of Churches in the Lordships Marchers of Wales as that Writs should be brought in England of Lordships Marchers or any part of them in question because Justice could not be had in Wales either concerning such Lordships or Churches or else Churches within Lordships Marchers being in the same Case for a failer of Justice they were comprehended and ought to be so within the equity of that Act of Parliament for Iustice to be had touching the Lordships themselves and that the Law was such appears 1. That only Quare Impedits for Churches in Lordships Marchers in Wales and not for Churches in the ancient Shires or of the Principality of Wales whereof submission and render was made to E. 1. were to be brought and tryed in England 2. That Tryals and Writs in England for Land in Wales were only for Lordships Marchers and not for any Land in Wales which was of the ancient Principality for the Lordships Marchers were or most of them of the Dominion of England and held of the King in chief as appears by the Statute 28 E. 3. c. 2. and by the Title of the Earl of March before the rendition of the Principality to E. 1. That the Law was so for the Quare Impedits appears in the first place by the Book before cited 11 H. 6. f. 3. where Danby Martin and Newton were of Opinion argued about a Church in Garnsey for the Case before them was not of a Church in Wales That Quare Impedits for Churches in Wales were to be brought in England which was true but not for Churches which were not in any Lordships Marchers Strange affirms positively in the same Case in these words It is frequent to have Quare Impedits in Wales Per Strange 11 H. 6. f. 3. and the Bishops there do serve the Writs directed to them which I my self have often seen And what he said was most true for Churches within the Principality as what the other Judges said was also true concerning Churches within the Lordships Marchers for those Courts had no power to write to the Bishops But this is most manifest by the Statute of Wales 12 E. 1. That the Kings Justiciar there had power within the County where he was Justiciar to write to the Bishops which the Lords Marchers could not do The words of the Law are upon demand of Dower in Wales before the Kings Justiciar Stat. Walliae f. 17. Si forte objiciat quare non debet dotem habere eo quod nunquam fuit tali quem ipsa vocat virum legitimo matrimonio copulata tunc mandabitur Episcopo quod super hoc inquirat veritatem inquisita veritate certificet Justitiarios Walliae secundum certificationem Episcopi procedatur ad judicium It is clear also 10 H. 4. f. 6. That the Bishops of Wales were originally of the Foundation of the Princes of Wales as is the Book of 10 H. 4. and their Courts did write to their own Bishops as the Courts in England did to the Kings Bishops And when the Dominion of Wales was lawfully vested in the King of England his Justices there must have the same power as to the Bishops that the Justices of the Courts of the Prince of Wales had before How the same stands in this point since the Statute of 27 of the Vnion of Wales with England shall be shewed after Besides what hath been already shewed That the Writs out of the Chancery in England issued not into Wales for Tryals of Land other than the Land of Lordships Marchers and by a special Law that was provided but neither for other Lands nor for other Issues arising in Wales Tryals were not to be in the English Counties 11 H. 6. f. 3. A B. In 11 H. 6. Danby saith That if a Church in Wales which is out of the Jurisdiction of the Common Law and a Franchise of the Prince cannot award a Writ to the Bishop and for this cause it must be brought here But other Actions are not maintainable here of a thing done in Wales which was true of a thing done within the Principality and of a Church within the Principality also a Quare Impedit was not to be brought in England 19 H. 6. f. 12. A. In 19 H. 6. Fortescue takes a difference between Wales which was once a Kingdom of it self and the Counties Palatine which were parcels of England and therefore saith The King may send a Record to be tryed in the Counties Palatine because he might do so at Common Law but could not into Wales because he could not at Common Law And then he saith That is the cause that the Statute wills that of things pleaded there as of a Release bearing date there it shall be tryed in the next adjoyning County What this Statute should be he means unless it be the same mentioned in the Case 18 E. 2. is not intelligible for the Statute of 9 E. 3. which speaks of Releases pleaded in Franchises within the Realm That they should be tryed in the County where the Action was brought he cannot intend for that Wales was no Franches nor Franchis of the Realm and Tryals where the Action is brought is not a Tryal in the next adjoyning County to the place where the Issue arises And by Ascue expresly in that Case that Statute proves in it self it doth not extend to a Deed bearing date in Wales but all such Deeds and all other things alledged in Wales shall be tryed in the County next adjoyning by the Common Law for so he adds which could not be So as an Action brought upon a Bond or Deed made in Wales Ireland Normandy Dutchland or upon a matter there alledged cannot possibly be for want of Tryal but a Plea in Barr to an Action brought arising there some question hath been Whether such a Plea shall not be tryed where the Action is brought and in such a Case if the Plea in Barr arise wholly out of the Realm of England the better Opinion is that such Plea
and Merioneth The residue of the said Lordships Marchers were thereby framed and divided into five particular Counties erected and created by the Act namely the County of 1 Monmouth 2 of Breenock 3 of Montgomery 4 of Radnor 5 of Denbigh The respective Lordships Marchers annexed to the respective English Counties of Salop Hereford and Glocester are now to all intents under the Jurisdiction of the Courts at Westminster in like manner as the Counties to which they were annexed formerly were and yet are So is one of the new erected Counties framed out of the said Lordships Marchers namely the County of Monmouth which by the said Act is to all purposes under the Jurisdiction of the Kings Courts at Westminster as any English Country is All the Lordships Marchers annexed to the ancient Shires of Wales are now since the Statute under the same Jurisdiction for Administration of Justice as those ancient Shires were before the Statute of the 27. and yet are so as the Lordships Marchers annexed to those ancient Shires of Wales are now such parts of them as the Lordships Marchers annexed to the English Shires are parts of them And the four new Shires in Wales excluding Monmouth shire are by the said Act under the same Administration of Justice by the King's Justices to that purpose there Commissioned as the other ancient Shires of Wales formerly were and are and consequently wholly out of the Jurisdiction of the King's Courts at Westminster And the reason appears in the Statute forasmuch as the Counties or Shires of Brecnock Radnor Montgomery and Denbigh be far distant from the City of London and the Inhabitants of the said Shires not of substance to travel out of their Counties to have the Administration of Justice It is therefore enacted that there shall be respective Chanceries and Exchequers in these Counties and that the Sheriffs of those Counties shall make their Accompts before the Chamberlain and Barons there appointed And that Justice shall be used and ministred in the said new Shires according to the Laws and Statutes of England by such Justiciar or Justicers as shall be thereto appointed by the King and after such form and fashion as Justice is used and ministred to the King's Subjects within the three Shires of North-wales which is according to the ancient Administration of Justice by the Statute of Wales 12 E. 1. So as since this Statute the Courts of Westminster have less Jurisdiction in Wales than before for before they had some in all their Lordships Marchers which were in no County as by this Act and since they being all reduced into Counties either of England or Wales their Jurisdiction is absolute over such of them as are annexed to English Counties but none over the rest And accordingly it hath been still practised since the Statute for before Lordships Marchers and Quare Impedits of Churches within them were impleadable in the Kings Courts by Originals out of the Chancery directed to the adjoyning Sheriffs and the Issue tryed in the Counties adjoyning But since no such Original hath issued for real Actions nor any such Tryal been And what hath been in personal Actions of that kind began upon mistake because they found some Originals issued into some part of Wales and knew not the true reason of it that it was by Act of Parliament they then concluded Originals might issue for any cause arising into any part of Wales and the Tryals to be in the adjacent Counties of England generally And though that practise hath been deserted since the Statute of 27 H. 8. as to real Actions because the subject matter of the Lordships Marchers was taken away which in some sense was lawful as is opened before the Statute yet they have retained it still in personal Actions which was never lawful nor found in any Case anciently practised as real Actions were as appears in the Case of Stradling and Morgan in the Commentaries yet that was upon a quo minus out of the Exchequer which I do not see how it can change the Law If Judgments be obtained in the King's Courts against persons Obj. 1 inhabiting in Wales and that Process of Execution cannot be awarded thither the Judgments will be ineffectual The same may be said of Judgments obtained against a Frenchman Answ 1 Scotch man or Dutch-man whose usual Residence Lands and Goods are in those Territories he that sues ought to foresee what benefit he shall have by it and must not expect it but where the Courts have Jurisdiction The same may be said of Judgments obtained here against Irish-men Garnsey or Jersey Inhabitants or formerly against those of Calais Gascoign Guyen which were equally and some are still of the Dominions of England as Wales is subject to the Parliament of England but not under the Jurisdiction of the Courts at Westminster though subject to Mandatory Writs of the King Obj. 2 That of Judgments obtained in the King's Courts Execution is had in Franchises and also in Counties Palatine where the King 's Writ runneth not and by the same reason ought to be had in Wales though the King's Writ runneth not there Answ 1 Franchises inferiour are deriv'd out of Counties by the King's Grant where the King's Writ did run and so were Counties Palatine part of the Realm anciently where the Subjects of the Realm had right to have Execution of the Lands and Goods of those against whom they recovered in the King's Courts whereof they are no more to be deprived than of their Actions by the King's Grant for he may make what Counties he pleases Counties Palatine but in Dominions out of the Realm the Subject had no such Right in the other they have it because they had it at Common Law but in others not because they had it not at Common Law When the Question is of the Jurisdiction in a Dominion or Territory belonging to England the way to determine it is by examining the Law in Dominions the same in Specie with that concerning which the Question is and not to examine the Law in Franchises or Dominions of another kind Therefore to determine what Jurisdiction the King's Courts have in Wales ought to be by examining their Jurisdiction in Ireland the Islands of Garnsey Jersey Calais Gascoign Guyen in former times some part of Scotland and the Western Islands and many others might be named which are Dominions in Specie the same with Wales and belonging to England where the King 's Writ runneth not and not this power in Franchises within the Realm part of English Counties before they were Franchises and continuing so after or in entire Counties Palatine which sometimes were under the Jurisdiction of the King's Courts and in which the Subjects had a right of their Tryals upon Pleas pleaded and of Execution and which cannot be taken from them where the King 's Writ runneth not The Cases are full in this point in 19 H. 6. f. 12. 32 H. 6. f. 25. and many