Common-wealth And they say that the matter manner restrictions limitations reservations and other clauses contayned in such grants or licences and the Commissions or Proclamations thereupon and undue execution thereof and severall circumstances may make the same lawfull or unlawfull whereof they are not able to give any certayne resolution before some particular commes in judgement before them neyther are they otherwise able to answer the generall in the particulars of the said question of what in what cases how where and by whom or which of them wherein whosoever desireth further satisfaction he may please to have recourse unto the knowne cases of Monoplies Printed authorities and written Reports and unto the statute of 21. Ia. in England concerning Monopolies and the severall exceptions and limitations therein 6. To the sixt they say they can no otherwise answer then they have already in their answer to the third question for the reasons therein setforth 7. To the seventh they say that a Proclamation or act of State cannot alter the common-law and yet Proclamations are acts of his Majesties prerogative and are and alwayes have beene of great use and that the contemners of such of them as are not against the law are and by the constant practise of the Star-chamber in England have beene punished according the nature of the contempt and course of the said Court and although acts of State are not of force to bind the goods possessions or inheritance of the subject yet they have beene of great use for the setling of the estates of very many subjects in this kingdome as may appeare in the Report of the case of Irish gavelkind in Print And further to that question they cannot answer for the reasons in their answer unto the third question set forth 8. To the eight they say that they know no ordinary rule of law by which the subjects of this kingdome are made subject to Marshall-law in time of peace and that they find the use thereof in time of peace in England complayned off in the petition of right exhibited to his Majestie in the third yeare of his raigne And that they conceive the granting of authority and Commission for execution thereof is derived out of his Majesties Regall and prerogative power for suppressing of suddaine and great insolencies and insurrections among armies or multitudes of armed men lawfully or unlawfully convented together the right use wherof in all times hath beene found most necessary in this kingdome And further to that question they cannot answer for that as they conceive it doth concerne his Majesties Regall power and that the answering of the other part of the question doth properly belong to another profession whereof they have no Cognizance 9. To the ninth they say that as the taking of any Oath before any but such Iudges or persons as have power to give or demaund an Oath for decision of controversies is by most Divinâ— in most cases counted to be a rash Oath and so an offence against God within the third Commandement so the prescribing and demaunding of a set Oath by any that cannot derive power so to doe from the Crowne where the fountaine of Iustice under God doth reside is an offence against the law of the Land and as for voluntary and extra judiciall Oathes although freely taken before arbitrators or others they say as this kingdome is composed in many particulars as the nature consequence of the cause or the quality of the person who taketh or before whom the same is taken may concerne the Common-wealth or the members therof such taking of such Oathes or proceeding or grounding on such Oath in deciding of controversies according to the severall circumstances that may occurre therein or the prejudice it may introduce to the Common-wealth may be punishable by the Common-law or if it grow unto an height or generall inconvenience to the common-wealth or members thereof in the Castle-chamber For though such an Oath be voluntary yet in most cases it is received by him that doth intend to ground his Iudgment thereon and after the Oath is taken the arbitrator or he that intends to yeeld faith to the party that tooke the Oath doth examine him upon one or more questions upon the said Oath unto the answer whereof hee doth give faith and assent trusting on the said Oath And whereas Oathes by Gods institution were chiefly allowed to bee taken before lawfull Magistrates for ending of controversies yet common experience doth teach in this kingdome that oftentimes orders and acts grounded on such voluntary Oathes beget strife and suits and commonly such orders when they come to bee measured by rules of law or equitie in the Kings Courts become voyde after much expence of time and charge that we say nothing of that that thereby many causes proper to the Kings Courts are drawn ad aliud examen and thereby the Kings justice and Courts often defrauded and declined 10. To the tenth they say that they are not Iudges of rules of policie but of law and that they know no certayne rule of law concerning reducement of fines The same being matters of his Majesties own meere Grace after a man is censured for any offence And that they know no law that none shall be admitted to reducement of his fines or other penalties in the Courts in the question specified untill he confesse the fact for which he was censured But forasmuch as the admittance to a reducement after conviction for an offence is matter of Grace and not Iustice It hath beene the constant course of these Courts both here and in England for cleering of his Majesties justice where the partie will not goe about to cleere himselfe by reversall of the censure or decree not to admit him to that grace untill he hath confessed the justnesse of the sentence pronounced by the Court against him And that the rather for that commonly the ability and disabilitie of the partie doth not appeare in judgement before them but the nature and circumstances of the offence according to which they give sentence against him or them in terrorem after which when the partie shall make the weaknesse of his estate appeare or that the Court is otherwise ascerteyned that they doe of course proportion the censure or penaltie having regard to his estate 11. To the eleventh they say That neither the Iudges of the Kings Bench as they informe us that are of that Court or Iustices of Gaole delivery or of any other Court doe or can by any law they know deny the copies of Indictments of Felony or Treason to the partie only accused as by the said question is demanded 12. To the twelfth they say that where lands are holden of the King by the Knights service in Capite the tenant by the strict course of Law ought in person to doe his homage to the King and untill he hath done his homage the ancient course of the Exchequer hath beene yet is to issue
Let us therefore examine the course alleadged here in both those points and if it be found to faile in eyther of them it is to be rejected As to the first I cannot find or read any president of it untill of late and the usage of it for a few yeares cannot make it to be cursus Curiae which ought to bee a custome used time beyond the memory of man As to the second it is confessed by the Iudges that they know no law to warrant this course let us see then whether it be against law or standeth with the law and I conceive it is against law for divers reasons First by the Common-law if a judgement be given against a man after a verdict of twelve men which is the chiefe and cleare proofe which the law looketh upon or upon a demurrer after solemne argument he shall in the one case have an attainte against the Iury in the other a writ of error to reverse the judgement but in this case by the confession of the justnesse of the sentence all the meanes to reverse the sentence is taken away and therefore contrary to law and reason Whereas by the Common-law fines ought to bee moderate secundum quantitatem delicti in reformationem non in destructionem of late times the fines have beene so high in destruction of the party in the Castle-chamber as his whole family and himselfe if hee did pay the fine should bee driven to begge and without performance of the sentence hee could not be admitted to reverse the sentence in respect of all which howbeit in his conscience he is not guiltie yet to gaine his libertie and save part of his estate hee is necessitated to acknowledge the justnesse of the sentence so that the confession is extorted from him and consequently is against law Third reason if the fine were secundum quantitatem delicti as it ought to be without danger of destruction the reducement of the fine had not been so necessarie and therefore no just ground for this confession Lastly the confession of the party after sentence doth rather blemish the sentence then any way cleare it for the confession comming after the sentence which ought to be just in it selfe can adde nothing to it but draw suspition upon it and in that respect a confession is strayned the racke used by the course of the Civill law in criminall causes to cleare the conscience of the Iudge to proceede to sentence is intollerable in our Common-law And therefore this course being an innovation against law without any reasonable ground the said Iudges ought in their said answer to declare so much to the end a course might bee taken for abolishing the same This answer I will not now draw into question I could wish the rest were answered no worse What power have the Barons of the Court of Exchequer to rayse the respite of homage arbitrarily c. Vnto this they answer that untill the Kings Tenant by knights service in capite hath done his homage the ancient course of the Exchequer hath beene and still is to issue processe to distrayne the tenants ad faciendum homagium or ad faciendum finem pro homagio suo respectuando upon which processe the Sheriffe returnes issues and if the tenant doe not appeare and compound with the King to give a fine for respite of homage then the issues are forfeyted to the King But if the Kings tenant will appeare the Court of the Exchequer doth agree with him to respite his homage for a small fine They say further that it resteth in the discretion of the Court by the rule of the Common-law to lay downe a fine for respite of homage according to the yearely value of the said lands which I conceive to be very unreasonable and inconvenient that it should lye in the power of any to assesse a fine for respite of homage such as to him shall be thought meete in discretion for if so hee may raise the fine to such a summe as may exceed the very value of the lands Neyther hath the same beene the ancient course for it appeares by severall ancient Records and by an Order of the Court of Exchequer made Termino pascae 1607. that there should be payed for respiting of homage for every Towneship xx d. Irish and for every Mannor xxxx d. Irish and that such as hold severall houses acres or parcels of land which are not Mannors nor Towneship shall pay for everie hundred and twentie Acres of Land Meadow and pasture or of any of them xx d. Irish and no more and according to that rate and proportion if a greater or lesser number of Acres and for every house without ground iiij d. Irish and of Cottages or Farme houses which bee upon the Lands no fine to bee payed for them solely alone And I conceive where a man holdeth severall parcels of land of the King by severall homages that in such case he is to pay but for one respite of homage onely and no more for that a man is to doe homage but once and consequently to pay for one respite of homage onely The late course in the Exchequer here hath been contrary whereas in their answer they goe in the Exchequer according to the statute of primo Iacobi cap. 26. in England under their favour they goe cleare contrary for that statute was made in confirmation and pursuance of former Orders in the Exchequer Whereas the Barons here goe directly contrary to the ancient course and Order of the Exchequer in this kingdome more of this in my reason or ground for this question So I conclude their answer to this is short My Lords the question contaynes two points First whether the subject of this kingdome is censurable for to repayre into England to appeale to his Majesty for redresse of injuries or for his lawfull occasions Secondly why what condition of persons and by what law The first part of the Iudges their answer is positive and full viz. They know no law or statute for such censure nor I neyther and could wish they had stayed there In the second part of their answer they come with an if viz. unlesse they be prohibited by his Majesties writ proclamation or command and make mention of the statute of 5. Rich. 2. cap. 2. in England and 25. Henr. 6. cap. 2. in Ireland I will onely speake to the second part of this answer My Lords the house of Commons in the discussion of this point tooke two things into consideration First what the Common-law was in such cases Secondly what alteration was made of the Common-law by the statute of 5. Rich. 2. cap. 2. in England and 25. Henr. 6. cap. 2. in Ireland as to the subjects of Ireland As for the first the Register hath a writ framed in the point viz. the writ De securitate in venienda quod se non divertat ad partes extras
to receive no reward Sixtly to take no Fee of any other then the King Seventhly to commit such as breake the peace in the face of Iustice Eightly not to mantayne any suite Ninthly not to deny Iustice notwithstanding the Kings Letters or Commandements and in that Case to certifie the King of the truth Tenthly by reasonable wages to procure the profits of the Crowne Eleventhly if he be found in default in any the matters aforesaid to bee in the Kings mercie body Lands and goods The second reason principally moveth from the following particulars In the Kings Bench the Major-part of the Iudges denyed his Majesties writ of prohibition to the late Court called the high Commission in a cause meerely temporall The foure Courts of Iustice durst not proceede in any cause depending before the chiefe Governor or at the Counsell-board upon paper petitions or rather voyde petitions these paper-petitions being the oblique lines aforesaid grave Iudges of the law were commonly assistants and more commonly referrees in the proceedings upon these paper-petitions in what causes in all causes proper for the Cognizance of the Common-law and determinable by writs of right and petitions of right and so to the most inferior action the like of the Courts of equitie whether this be lawfully to serve the King and his people or whether the King was at losse by the non-prosecuting of the causes aforesaid in their proper orbes by originall writs which might afford the King a lawfull revenue and likewise by the losse of fines and amerciaments naturall to actions at the Common-law or whether the losse aforesaid was made knowne to his Majestie or who consented to the Kings damage therein or whether this be a denyall of justice to deferre it upon paper Orders or Commaunds be conformable to that Oath I will pretermit yet your Lordships may even in this mist discerne a cleere ground for the second question The motive which in part stirred the third and fourth questions was the infinity of Civill causes of all natures without exception of persons without limitation of time proceeded in ordered decreed and determined upon paper-petitions at Counsell-board by the chiefe Governor alone The Commons of this kingdome observing the Iudges of the law who were Counsellors of estate to have agreed and signed unto such Orders the Iudges of the foure Courts and Iustices of Assize in all the partes of the kingdome to bee referrees upon such proceedings wherby these new devises were become so notorious that as all men heavily groaned under them so no man could bee ignorant of them By the colour of Proclamations more more frequent and of the Orders and Acts of state at Counsell-board which were in a manner infinite and other proceedings mentioned in these questions these effects were produced First imprisonment close imprisonment of such numbers that a great defeate in a battle could hardly fill more gaoles and prisons then by these meanes were surcharged in Ireland Secondly by seizures made by crewes of Catchpoles and Caterpillers his Majesties Leige people lost their goods as if lost in a battaile nay worse without hope of ransome Thirdly possessions were altered and that so often and so many that more possessions were lost by these courses in a few yeares then in all the Courts of Iustice in Ireland in an age or two The fourth effect was this after liberty was taken away propertie altered and possession lost by the wayes aforesaid that was not sufficient the subject must be pillored papered stigmatized and the image of God so defaced with indignities that his life became a continuing death the worse of punishments in these feates were advising and concurring some grave and learned Iudges of the Land who were Counsellors of estate as by their signatures may appeare The house of Commons finding as yet no warrant of president nor countenance of example in the law of England to beare up the courses aforesaid have drawne the said Questions from the effects aforesaid My Lords the liberty estate in lands or goods the person of the subject nay his honor and spirit being invaded altered and debased in manner aforesaid there remayned yet one thing his Life See how this is brought into play nothing must escape were not the Gates of Ianus shut up was not the Kings peace universall in his three kingdomes when a Peere of this Realme a Counsellor of the Kings a great Officer of state was sentenced to be shot to death in a Court Marshall what the cause was what defence was permitted what time given and what losse sustayned I submit to your Lordships as therein most neerely concerned were not others actually executed by Marshall law at such time as the Kings Iustice in his Courts of law was not to be avoyded by any person whatsoever This was in part the ground of the eight question This question is plaine a late introduced practise here contrary to former use and no appearing president to warrant such prosecution for a voluntary Oath and the great benefit and quiet accrewed to his Majesties people by arbiterments conceived by consent of parties hath in part occasioned this question Heretofore this Confession was not required for the Iustnesse of the Iudgements was then able enough to beare them up and if the judgement in some Case had beene otherwise what force can the confession of a delinquent add to a Iudiciall act this is part of the reason for this question A complaint exhibited in the house of Commons touching the denyall of the Copy of a Record which the complaynant undertooke to Iustifie in part raised this question In King Iames his time by an order conceived in the Court of Exchequer upon great debate and warranted by ancient presidents the respite of homage was reduced to a certaintie viz. two shillings sixe pence sterling For a Mannor yearly and so for Townes and other portions of Land this course was alwayes held untill now of late the respite is arbitrarily raysed as appeares by the second remembrances certificate viz. I finde that anciently before the beginning of King Iames his raigne every Mannor payed three shillings foure pence Irish per annum every town-Towne-land twentie pence Irish per à nnum as a fine for respite of homage but cannot finde any order or warrant for it untill the fifth yeare of the said Kings raigne and there in Easter Terme 1607. I finde an order entred directing what homage every man should pay a Copy whereof you have already from mee the preamble of which orders sheweth that that matter had beene long depending in the Court undecided which induceth me to beleeve that there was no former president or order in it About three yeares after the freeholders of the Countie of Antrim as it should seeme finding this rate to be too heavy for them they petitioned to the Lord Chichester then Lord Deputy for reliefe therein I finde his Lordships opinion to the
Court thus Recorded I know much of the petitioners Lands is waste and no part of it improved by any manner of husbandrie other then in grazing of Cattle and in sowing of little Oates And the proprietors of the Land to be for the most part very poore and needie and the two Children of Neale mac Hugh to be yet under age Wherefore I thinke it fit that the Court of Exchequer should consider thereof and rate the respite of homage accordingly for a time untill the Countie be better inhabited and these men made to understand that it is not an imposition but a lawfull duty and payment due to his Majestie This is my advise and opinion for the present xxx die April 1610. Arthur Chichester Vpon this the said Freeholders were admitted to pay but foure pence Irish every Twogh of Land it consisting of sixteene towne-Towne-lands and according to this rate they still payed untill the yeare 1630. and then the Court taking notice of the unequalitie of it made this order 5. Febr. 1630. After this I finde that all his Majesties Tenants did conforme themselves to the said order of 1607. untill Easter Terme 1637. in which Terme this ensuing order was made which is the last that I can finde Recorded in my Office Henry VVarren I finde by the payments made in the late Queen Elizabeths time that the rates of homage payed was according to the said order of 1607. Henr. VVarren Divers were actually imprisoned and long kept in close restraint for none other cause then in dutifull manner be seeming termes to have made knowne their particular complaints to his sacred Majesty imprisonment of this kind was frequent therefore it is not improper to demaund by what law it was done Many have lost great estates and possessions by Orders of the Counsel-bord although the Deanes elected or actuall Deanes confirmed their estates if no donation from the Crown were found upon Record to the confirming Deane and this after that by verdict at the Common-law the Deanrie was found to be Elective this Question therefore is not improper After such time as this Parliament was agreed upon at Counsell-board to bee summoned some persons having prepared bloudy and destroying Bils to be past as lawes and intending to defeate by act of Parliament very many of his Majesties faithfull subjects of this kingdome of their estates and liberties and having obtayned some undue elections by threates or intreaties mistrusting that all should run cleere before them have caused twenty foure Corporations to bee seized upon the returne of the first summons in severall Quowarrantees procured by Sir Richard Osbalston late Atturney generall to shew cause why they sent Burgesses to the Parliament the said Corporations having formerly sent Burgesses to the Parliament even to the last Parliament by meanes whereof the said Corporations sent no Burgesses in the beginning of this Parliament from this act being done in a legall Court against the high Court of Parliament sprung this question which My Lords is of consequence if Parliaments be so as without question they are The faith which the Common-law giveth to verdicts the Iurors being Iudges of the fact the late usage of that great Court growing to the punishment of Iurors and others in greater numbers by heavier fines and more shamefull punishments without respect to estate age sex or qualitie then was or can be observed in all precedent times and the just sense thereof moved the house of Commons to propound these questions My Lords a poore fellow stole or was accused to have stolne a Sheepe feare or guilt or both brought him to the mountaynes another relieved him the reliever was executed as a Traytor and after the principall submits to tryall and judgment and was acquited this example My Lords I hope may warrant the question The testimony of such infamous persons have brought men of qualitie to their tryall for their lives and being acquited the Iurors being of very good ranke were heavily censured in the Castle-chamber aswell by fines surmounting their abilities as by most reprochfull punishments upon these acts the question is grounded There being no warrant in the Printed law or otherwise for ought yet appearing for to make this a Tenure in Capite the constant course of the Court of wards taking it to be no Tenure in capite since the erection of that Court untill Trinitie terme 1639. it was then and not before certified a tenure in capite by the then Atturney of that Court who said that the Iudges concurred with him in that opinion by which meanes Counsell did not then argue and the next terme after were denyed to be heard ne aliquid contra responsum prudentum this being done in the Court of wards the question did spring from thence The two and twentieth question was not yet agitated in the house of Commons nor brought thither therefore My Lords that may be deferred to a further conference By this which I have opened being the smaller part of those weighty reasons delivered unto mee by the house of Commons yet the best I can for the present remember I hope your Lordships are satisfied that those questions were not intrapping fayned or circumventing or phantazies as formerly I touched In the next place I will labour to give your Lordships a more cleere satisfaction that those questions grounded upon sufficient and apparant reasons and causes doe deserve cleare and satisfactorie answers and to remove all doubts The questions I will no more call Questions I will humbly style them Causes of weight and Consequence wherein the Lords and Commons of this Realme on the behalfe of themselves and their posteritie in after times are Plaintifes and only delinquents of an high nature are defendants in this high Court of Parliament It is not unworthy your Lordships consideration to whom the questions were put I answer unto the Iudges of the Land who are and sure I am ought to be first etate graves secondly eruditione praestantes thirdly usu rerum prudentes fourthly publica authoritate constituti The persons unto whom being thus qualified the place where is most considerable it is the high Court of Parliament the Iudges are called thither Circa ardua urgentia negotia regni of the whole kingdome what to doe Quod personaliter intersint cum Rege ac cum caeteris de consilio suo super dictis negotijs tractaturi consiliumque impensuri Therefore they are not called thither to bee ciphers in augurisme or tell clockes no those great causes are mentioned in their writ and upon that great Oath they are to give faithfull counsell and make direct answers to your Lordships in all things wherein ardua urgentia regni are concerned and whether that concernment doe comprehend the matters aforesaid I doe humbly offer to your Lordships great consideration most of the matters included in those questions are solemnely voted in both houses
manifest that by their Oathes they are bound to interprete the lawes truely betweene the King and his people and betweene partie and partie and if in any Case granted it cannot be denyed when the Common-wealth desires a Declaration of the law in certaine points wherein they conceive their just liberties to have beene invaded least under colour of prerogative which the Parliament holds to be sacred some ministers may presume as of late they have endevored to destroy the peoples just liberties In the ordinarie Courts of Iustice the Iudges upon Oath are bound to afford the subject Iustice against the King and all others and are appointed by his Majesty for that purpose all writs are in his Majesties name in the Kings bench the pleas are styled Coram Rege Letters-patents and writs originall are Teste me ipso the King is therefore present in Parliament being the highest tribunall where in truely he sits in the exaltation of Royaltie and greatnesse Therefore the Commands of all his ordinary Courts are the commands of the King much more Commands in Parliament where his presence is more apparant and essentiall then in all other Courts of this kingdome It appeares copiously by the great Charter and by constant practise of all Parliaments since that time that all Courts and Iudges were regulated by Parliaments as for the Kings prerogative or revenue the Iudges cannot bee ignorant but the Parliament is and ever hath beene the best mantayner of his just prerogatives the best overseer of his revenue which if it fall short they onely are able and willing to supply It is true that the abuses of former times might be reformed for the future by Bils to bee past as statutes Yet that is away about and we may not loose the possession of our lawes and just liberties nor by new statutes admitt impunitie or give countenance to past offences statutes of this kind sufficient were already enacted and passed in former ages The declaration of a knowne law and the manifestation of wholesome statutes already established well may helpe the Common-wealth for the present but cannot in any probabilitie fall out hereafter to be prejudiciall to the state or Commonwealth and there is no president or example of any such prejudice It is confessed that most of the matters contayned in the Questions are alreadie voted for grievances in both houses and that very justly but how the law is therein remaynes yet to be declared as to this present Parliament which I hope in due time shall bee declared according to law and justice as in many Parliaments before the same or the like hath beene often done Where they doe againe insist upon the want of president and withall that in the preamble to the Questions the protestation cleares the law This word President strikes close unto us I have answered it before by presidents yet some more presidents I will offer as often as they speake the word president 7. 8. Elizabeth Dy. fol. 241. b. placit. 49. The Kings Atturney demanded the opinion of the Iudges 9. Elizab. Dy. 261. placit. 28 Casus Hiber where the Iudges of England signed their opinions to questions propounded by the Iudges of Ireland 11. Eliz. Dy. fol. 282. b plac 26. Casus Hiber 19. 20. Elizab. Dy. 360. The Case of arraignement of a Peere the like 13. CÃ roli by all the Iudges of England the Earle of Ormonds Case and yet in none of these Cases the matter was depending before them Notwithstanding the protestation may cleare the law yet in all precedent ages lawes cleare in themselves for their greater honor and countenance they have beene declared and enacted in Parliament The Law declared by Magna Charta was cleare before yet it was enacted 9. Henr. 3. and in thirty Parliaments since Cooke 8. 19. b. Primes Case the statute of praerog Regis And the statute of 25. Edw. 3. of treasons is declarative and so are many other statutes Adam eate the forbidden fruite Cain killed his brother God demaunded whether this was done yet he could not be ignorant of the fact The first article in the Civill and Canon law Courts is whether there is such a law all this is done for illustrations sake My Lords The ground of the Questions and the preamble to the writing styled an Answer kept me so long that I feare much to have trespassed upon your patience and yet the importance of the cause urgeth me to importune your Lordships favour a little further This Question is short and yet comprehensive that we are a free people is confessed to my hands to that part of the answer I doe not except the second part of the Question is whether wee are to be governed by the lawes of England and statutes of force in Ireland onely First though I need not prove it yet it is cleare we ought to bee so governed Matth. Paris historia maiori fol 121. Sir Iohn Davis discovery of Ireland fol. 100. King Henry the second held a Parliament at Lismore in Ireland in which Parliament Leges consuetudines Angliae fuerunt gratanter acceptae by the representative body of this whole Nation Magna Charta and other beneficiall statutes of England are here in the red Booke of the Exchequer in and since King Iohns time and so is Gervasius Tilberiensis of the Course and Officers of the Exchequer in the white booke of the Exchequer of Ireland leges consuetudines Angliae received in Ireland by Parliament otherwise this appeares 9. Iohn pat membr. 2. 1. Henr. 3. pat memb. 13. 10. Hen. 3. pat membr. 4. 12. Henr. 3. claus. membr. 8. by which words and by the constant practise of all ages since this kingdome was governed and ought to be so by the law of England as the law of the land which law as it was alwayes here received consists of three parts First the Common-law Secondly the generall customes of England Thirdly statutes here received The Common-law that is cleared already Customes as Tenant by the Curtesie Inne-keepers to be responsible for things within their houses or the like when we speake of a Custome in the law it must be intended a generall Custome over the Realme and no particular Custome And this appeares by the yeare bookes of 37. Henr. 6. fol. 5. 21. Henr. 7. 17. 18. Particular customes as Gavelkiâ—d Boreugh English-tenant right or the like are not to be intended when wee speake generally of Custome and these Customes are warranted by the Common-law of England being not contrary to the same but praeter legem so there may bee and are particular customes here praeter legem and yet not contrary to law as in many Corporations and Countries so the wives third of goods is good in England by the custome of many counties and places F. N. B. 122. 7. Edward 4. 21. 40. Edw. 3. 38. 17. Edw 2. f. detinue 58. Therefore it is not contrary to law that such a
No Freeman shall be taken imprisoned put off his freehold liberties free customes c. other then by the lawfull judgement of his Peeres as by the law of the land This great assurance in the 38. Chap. of the same statute was granted for the King and his successors to all his people and was confirmed in thirty Parliaments as I said before Cooke 8. the Princes Case by the statute of 5. Edw. 3. cap. 9. 25. Edw. 3. Cap. 4. 28. Edw. â— cap. â— 42. Edw. 3. cap. 1 â— The great Charter is againe confirmed and not onely so but proceedings contrary to the same before the King or his Counsell are declared voyde The King is to observe and mantayne the law the Iudge by his Oath 18. Edward â— is bound to doe right betweene the King and his people and that right strengthens the Kings prerogative presidents or practise contrary to so many statutes are of no use in many ages past encroachments were made upon these just liberties which were alwayes removed by Parliaments Yet I must confesse that of all antiquity some pleas have beene held in the Kings Royall house as in the Court held by the Marshall of the Kings houshold for things arising within the Verge Fleta lib. 2. cap. 2. but when that Court exceeds its due bounds declaratory statutes were alwayes made to meete them as mischiefes in the common-wealth when they medled with land or the like as appeares by the statute of Articule super Chartam 28. Edw. 1. 15. R. 2. cap. 12. all these statutes My Lords and many more to this purpose are undenyably of force in this kingdome and none of them can be with impunitie said to be obsolete or antiquated My Lords they raise another doubt viz that as the King may grant cognizance of pleas to Corporations or the like and therefore to the Councell-table if this neede an answer I will answer it thus that a grant of cognizance never was neyther can it be otherwise then to proceede per legem terrae or per judicium parium in the same manner as Courts doe proceede at Common-law and not upon paper petitions or summary hearings such cognizance was never granted the King is at losse by such proceedings he looseth fines upon originals he looseth amerciaments and fines incident to every judgement at Common-law as I said before I he subject undergoeth an inconvenience First the law will decline writs originall will by disuse be forgotten Clerks who should draw them discouraged to learne legall proceedings out of doores being the foundation of the law and in stead of regular and orderly proceeding rudenesse and barbarisme introduced the subject will loose the benefit of his attaynte and writ of error by which the law might relieve him against false verdicts or erroneous judgments he will loose the benefit of his warranty which might repaire a purchaser in case his acquired purchase were not good Whereas if a Iudge or Iuror doe wrong the remedy is at hand but against the Lord Deputy and Councell who will seeke for it therefore the countenance of this Iudicature in Common-pleas is against the Kings prerogative and the peoples just rights both which the Iudges ought to maintaine and likewise against the intent of your Lordships order My Lords as in England the said severall statutes were made to prevent the inconveniences aforesaid one good statute was made in Ireland 28. Henr. 6. cap. 2. Irish statut fol. 15. which directs matters of Interest to be determined in the Common-pleas matters of the Crowne in the Kings-bench matters of equity in the Chancery This law if there were no more regulates the proceedings in this kingdome The Iudges insist upon the words in the end of that statute viz. Saving the Kings prerogative My Lords this was stood upon at the late great tryall in England and easily answered for by the Common-law the King may by his prerogative sue in any of the foure Courts for his particular interest although it be contrary to the nature of that Court for he may sue à Quare impedit in the Kings Bench the like yet so as the said suite be bounded by the rules of law I will demaund a question whether the King may bring à Quare impedit in paper at the Councell-board the Kings now Atturney I am confident will answer me he cannot The word salvo or saving is in construction of law of a thing in esse or existente and no creative word 26. Ass pla 66. and cannot in the Kings Case be construed to overthrow the law nor many expresse and positive acts of Parliament My Lords in all humblenesse and dutie I will and must acknowledge his Majesties Sacred and lawfull prerogative whereof the King himselfe is the best expositor in his answer to the Petition of right Poltons stat fol. 1433. he declares that his prerogative is to defend the peoples libertie and the peoples libertie strenghtens the Kings prerogative the answer was a Kingly answer and More â—ajorum this is conformable to the great Charter and to all the statutes before recited The government of England being the best in the world was not onely Royall but also politicke some other princes like Cain Nemrod Esau and the like hunters of men subverted lawes The Kings of England maintayned them and did never assume the power to change or alter the lawes as appeares by Fortescue that grave and learned Lord Chancellor in King Henry the sixts time de laudibus legum Angliae cap. 9. fol. 25. and in the same Booke cap. 36. fol. 84. nor to take his peoples goods nor to lay taxe nor tallage upon them other then by their free consent in Parliament this appeares by the Booke Cases in 1â— Henr. 4. fol. 14. 15. 16. the great case of the Awlnage of London and in the Case of toll-travers and toll-through 14. Henr. 4. 9 37. Henr. 6. 27. 8. Henr. 6. 19 all agreeing nor to alter the nature of land as by converting land at Common-law to Gavelkind or Borrough English or e conuerso as to the estate otherwise as to the person of the King Ple. Com. the Lord Barclyes Case fol. 246. 247. Yet it is most true that the law of the land gives the King many naturall and great prerogatives farre beyond all other men as may appeare in the said Case fol. 243. but not to doe wrong to any subject Com. 246. The person of the King is too sacred to doe a wrong in the intention of Law if any wrongs bee done his ministerâ— are Authors and not the King And the Kings just prerogatives by the Kings Royall assent in Parliament were bounded limited and qualified by severall Acts of Parliament as if Tenant in cap. did alien at Common-law without licence this was a forfeyture of his estate Plo Com. case of mines fol. 332. the statutes of 2. Edw. 3. cap 14. makes this only finable the statute of Magna Charta cap. 21.
Fayres and Markets to bee held in Capite when no other expresse tenure bee mentioned in his Majesties Letters-patents or grants of the same Fayres and Markets although the rent or yearely summe be reserved thereout The King grants Lands to be held in free and Common-soccage as of a Castle or Mannor by Letters-patents under the great Seale and by the same Letters-patents or by other Letters-patents grants a Fayre and Market reserving a yearly rent or summe without expressing any tenure as to the said Fayre or Market the said Fayre or Market is not held by knights-service in Capite or otherwise in Capite Copia vera Ex ' per Phil Fern Cleric Parl. Com. FINIS Faults escaped PAg. 9. l. 19. insteed of causes reade Cases p. 40. l. 6. for the reade their p. 44. l. 10. for wages reade wayes p. 56. l. 17. for best reade least p. 57 lin 18. for Rottoman reade Hotoman ibid. l. 21. for Master Sleyden say Selden p 61. l. 3. is omitted before that p. 63. l. 19. for strike r. stick p. 64. l. 14 for Primes case say Princes case p. 67 l ultima for Strata Marclad say Strata Marcella p. 68. l vlt. for here say there p 70 l 1 for sit say Litt. ibid. l 2 for give say gives p 70 l 22 for writ say writs p 72 l 1. for this the p 7â— l 23. for as say or p 86. for Willielmi Collet say Willielmus Collet p. 87 l 12 for Monopolites Monopolists p 88 l 8 for Cod. say C. p 93 l 19 for promissum est say provisum est p 94 l 2 for promissum say provisum p 97 l 21 for the say this p 109 l. 3 for Thornbow say Thorn borow pag 116. l. 7. for Placit. Com. say Plo. Com. ibid. l 19 for partes say parties p 121 l 7 non is omitted p 122 l vltim for relivuum say relevium Preamble to the questions 1. q. 1. rat 2. q. 2. rat 3. 4. q. 3. 4. ratio 5. 6. 7. q. 5. 6. 7. rat 8. q. 8. rat 9. q. 9. rat 10. quest 10. ratio 11. quest 11. ratio 12. q. 12. rat The second remembrancers certificate 1. Iunii 1641. 13 quest 13. ratio 14. quest 14. ratio 15. q. 15. rat 16. quest 16. ratio 17. quest 17. ratio 18. q. 18. rat 19. quest 19. rat 20. que 20. rat 21. quest 21. rat Hopperus de vera Iuris prudentia pag. 118. Lord Chancel Egerton de postnat fol. 17. â— ratio Poltons stat fol. 8. Atchi Tuâ—ris Lond. Cambd. Anals Hibern 2. ratio 3. ratio 4. ratio 5. ratio 6. ratio 7. ratio 8. ratio 9. ratio Genes c. 3. vers. 7. c. 4. vers. 8. 1. Quest 1. Answer Archi. Turris London Stat. Hiberniae 67. a. 2. Quest 2. Answe 5. Ed. 4. 2. 36. Hen. 6. 29. 14. Hen. 7. 13. 3. quest 3. answ. Sir Thomas Tempest Knight 1. object 2. object 1. Resp. 2. Resp. ad 2. Object 4. Quest 4 Answer Archiv Turris Londin De comunibus placitis per billas coram Iusticiariis Hiberniae nequaquam terminandis 5. Quest 5. Answer 6. Quest 6. Answer 7. Quest 7. Answer Natura Br. fol. 85. in se Briefe de securitate inveniend quod non se divertat ad partes extras pars extra cannot be intended the Kings dominions Fol. 12. 13. Natura Br. 32. 19. Hen. 3. fitz Her Darien presentment 23. â— Hen. 3. fitz Her Dower 179. 35. Henr. 6 26. 37. Hen. 6. 17. 49. Edw. 3. 4. 11. Co. 86. 8. Quest 8. Answer 9. Quest 9. Answer 10. Quest 10. Answ 11. Quest 11. Answ 12. Quest 12. Answ Vide 5. Henr. 7. 9. a. prescription to impound Cattle untill amends be done according to his will not good This appeares by severall Records in Hen. 6. Hen. 7 time in the secoÌ„d Remembrancers Office in Ireland 24. Hen. 8 B Fealty homage 8. 13. Quest 13. Answ 14 Quest 14. Answ Vide 2. 3. Phil. Ma 〈…〉 e 123. b. 15. Quest 15. Answ Co. Inst. 109. Stat. Hib. 3. Edw. 4. cap. 1. Co. 4. 34. Bozoons case 16. Quest 16. Answ 17 Quest 1. Answ Verba Statut. Lo. Visc Clanmoris 18. Quest 18. Answ 19. Quest 19. Answ 20. Quest 20 Answ Gen. cap. 1. v. 31. Gen cap. 1. v. 27. 21. Quest 21. Answ 48. Edw. 3. 9. 33. H. 6. 7. 8. Hen. 7. 12. Co. 6. 6â— Co. 9. 123. Question 1. Declaraon Question 2. Declaraon Question 3. Declaraon Questioâ— 4. Declaration Question 5. Declaraon Question 6. Declaration Question 7. Declaration Question 8. Declaration Question 9. Declaration Question 10. Declaration Question 11. Declaration Question 12. Declaration Question 13. Declaration Question 14. Declaration Question 15. Declaration Question 16. Declaraon Question 17. Declaraon Question 18. Declaration Question 19. Declaration Question 20. Declaration Question 21. Declaiation