the Sentence given by the Constable and Marshal in the Suit before them concerning a Coat of Arms Rot. Claus 12 Rich. 2. m. 4. Appeal by Bond vers Singleton 't is in a Cause of Arms in our Court before our Constable and Marshal wherein Sentence was given by them 1 pars Pat. 17 Rich. 2. m. 12. Thus it appears by a Commission for the Execution of the Office of Constable of England Committimus vobis officium hujusmodi Constabularii ad querelam Thome Moor in hac parte una cum Edmundo de Mortimore Mareschallo Anglie audiendum secunda pars Patent ' 48 Edw. 3. m. 20. in dorso As also by a Claim at the Coronation of H. 5. before Beauchamp Earl of Warwick then Lord Steward John Mowbray Earl Marshal Son to the then Duke of Norfolk claimed under a Grant in 20th of Rich. 2. of the Office of Earl Marshal of England to hold Court with the Constable and to hold Pleas before them and Copies of these Precedents were said to have been ready in Court Further to prove the joynt Authority were cited several of our Old Books 48 Edw. 3. fol. 3. in a Case of Debt upon an Indenture by which P. was retained by the Defendant with two Squires of Arms for the War in France Belknapp said of such Matter this Court cannot have conusance but 't is triable before the Constable and Marshal In the Case of Pountney and Bourney 13 Hen. 4.4 the Court of King's Bench call it the Court of the Constable and Marshal And in 37 Hen. 6.3 upon another occasion Prisot said this Matter belongs to the Constable and Marshal And Coke 4 Inst 123. says that they are both Judges of the Court and that the Constable sometimes gave Sentence is no Argument that the Marshal was no Judge with him it only proves him the Chief who in most Courts doth usually give the Rule Nor is the Earl Marshal's receiving Writs from the Constable to execute his Commands any Argument that he sits there only as a Ministerial Officer and not as a Judge for he may be both as in many Corporations Mayors are Judges of the Court and yet have the Custody of their Goals too and so have the Sheriffs of London their Compters tho' they strictly are Judges of their several Courts 2. During the Vacancy of the Earl Marshal's Office the Constable alone had the Judicature as in 11 Hen. 7. on Holy-rood-day the Earl of Darby being then Constable of England sate and gave Judgment alone in a Cause between Sir Thomas Ashton and Sir Piers Leigh upon a Coat of Arms but this needs no Proof since 't is contended on the other side that the Court doth belong only to the Constable 3. 'T was argued that the Earl Marshal hath set alone and given Judgment and to prove that it was said this Court was held when there was no Constable before Thomas Howard Duke of Norfolk Lord High Treasurer and Earl Marshal of England who Died 16 Hen. VIII and next after him before Charles Brandon Duke of Suffolk then Earl Marshal who Died 37 Hen. VIII after him the Court was held and Sentences given by Thomas Howard Duke of Norfolk who Died in 1512. and after him in the 30 Eliz. the Earl of Essex sat as Earl Marshal and heard and determined Causes judicially and the chief Judge sat then as Assistant with him in Court and then after the Death of the Earl of Essex it was in Commission to my Lord Treasurer Burleigh and others and then the great Oase of Sir F. Mitchell was heard and determined at which several Judges assisted and the Sentence of degradation was executed upon him 26. April 1621. and then was Cited the Case of Pool and Redhead 12 Jac. 1.1 Roll's Rep. 87. where 't was held that the proper remedy for Fees of Knighthood was to sue to the Earl Marshal and Coke says in the same Case the Common-Law does not give remedy for precedency but it belongs to the Earl Marshal And since that in Parker's Case which was 20 Car. II. Syd 353. the Earl Marshal was agreed to have the absolute determination of matters of Honour in the Court of Chivalry as much as the Chancellor hath in matters of Equity And the Error on the other side was occasioned by not distinguishing between the Ancient Jurisdiction of this great Court at the Common-Law and the Jurisdiction given to the Constable and Marshal under those names by Statute for the latter cannot be executed by one alone and that distinction answers the Authority in 1 Inst 74. which grounded the mistake that there is no Court of Chivalry because there 's no Constable whereas the reason why in Sir Francis Drake's Case the not constituting of a Constable silenced the Appeal was from the 1 Hen. IV. Cap. 14. which orders all Appeals of Murder committed beyond Sea to be before the Constable and Marshal by name But the Ancient Jurisdiction of this Court by prescription wherein both the Constable and Marshal were Judges severally or together and which each of them did and could hold alone remains still as much in the Earl Marshal alone as it ever was in him and the Constable Then it was argued that no Prohibition lay to this Court because none had ever been granted and yet greater occasions then now can be pretended by reason of the large Jurisdiction which this Court did in Ancient time exercise many Petitions were frequently preferred in Parliament Complaining of the Incroachments of this Court in Edw. I. Edw. III. Rich. II. Hen. IV. and Hen. VIth's time as appears in 4 Inst. 125. 2 Hen. IV. num 79. and 99. 1 Roll's Abridg. 527. and yet no Prohibition granted or moved for which according to Littleton's Text is a very strong Argument that it doth not lie The Statute of 13 Rich. II. 2. is an Argument against it because after several Complaints of the Incroachments of this Court another remedy is given which had been needless if this had been legal nay it shews the Opinion of the Parliament that there was no other way of relief and soon after the making of this Statute in the same Reign two Privy Seals were sued upon it in the Case of Poultney and Bourney 13 Hen. IV. 4. 5. Besides this might be grounded on the Antiquity and greatness of this Court for as to the subject matter of it 't is by Prescription a Court for determining matters of Honour to preserve the distinction of degrees and quality of which no other Courts have Jurisdiction and the right and property in Honours and Arms is as necessary to be preserved in a Civil Government as that in Lands or Goods Then 't was urged that this Court hath Jurisdiction even of Capital Offences its extent is large 't is throughout the Realm even in Counties Palatine even beyond the Seas its manner of proceeding is different in a Summary way by Petition its trial of Fact may be by Duel as is 4
Ancient Legislators The wise Solon who founded that Popular Government of Athens was not so fond of his own Frame as to recommend it to other places tho' he believed that it suited best with the Infirmities of the People And even in Rome before she acquired any great Reputation there was a Senate under Kings it had one nor doth it appear that a Senate was adjudged useless when it became and was called a Common-wealth And as soon as the Senate lost its Authority a Tyranny was set up This may be called their Aristocratical Part and whosoever reads the Lives of those Roman Worthies Cato Vticensis c. that nobly attempted to defend the Liberties of their Country will find That it was for the upholding the Authority of the Senate that they contested fought and died Machiavel indeed in his Discourses upon the Decades of Titus Livius has strained almost every thing in favour of Democracy and with extream Art and Labour hath illustrated a Popular State and made Rome the Example of it and yet even in those Discourses he sometimes shews the Necessity of an Aristocratical Mixture to make a just and regular and happy and lasting Government Nay Algernoon Sydney himself that famous Assertor of Liberty doth almost every where prefer the Aristocracy and he was confirmed in that Sentiment by the Views he had taken of former and present Governments and by the Knowledge he had of what formerly was our own Constitution till Henry the Sevenths Reign For that Prince as the Lord Bacon rightly observes was rather cunning in relation to his own Times then a Person that had a full prospect of what would afterwards be the Consequence of his Measures or that had a due regard to Posterity No Man can wish that the House of Lords should be made Cyphers if they could once again be made the Natural Balance between the King and People There drop even from Mr. Sidney's Pen Expressions enough to prove that a just Composition of the Three Powers Monarchical Aristocratical and Democratical would have been reckoned even by him an equal Government Such a Mixture even our Government was and tho' some perhaps out of meer Ignorance have disputed the Democratical and others the Monarchical part of our Constitution yet no Body ever to this day could pretend that our Barons those Majores Regni had not originally a Share both in the Legislature and Administration within this Kingdom The Fact is not necessary to be proved because 't is not denied and the reasonableness of it is apparent There 's no occasion to Complement them for what their Ancestors did in procuring of Magna Charta which the judicious and indefatigable Antiquary Sir Henry Spelman saith was only an Ascertainment or Recompilement of our Old Laws It would be of Publick Service to have a just State of the true Powers of the House of Lords in their Judicial and Legislative Capacities according to the true English Constitution that we might be familiarized to the almost antiquated Notions of the Aristocratical part of our Government and so may neither be over-run with the Schemes of Absolute Monarchy-Men who would have all Judicial Power even the Dernier Resort lodged in the Crown or in Delegates appointed by it and not in the Parliament nor be crumbled into the Disorders which must follow the Notions of those who aim at a pure Democracy But to write an Exact Discourse upon this Head would require more Lines then can become a Preface The Reader therefore must not here expect an Account of the Growth and Decays of their Power and the true Reasons of Each and the Regulations or Restrictions that will be needful if they ever happen in any degree to be restored to the Preheminence and Authorities which they formerly enjoyed among us It is enough for the present to say That all the Measures taken and used in the Exercise of their Judicature are observed without Doors especially by the Persons concerned their Relations and Friends That the Errors in such Exercise if any are only to be corrected by themselves and no ways proper or fit to be suggested by any private Person much less to be published in Print However it may be hoped that these Reports may probably convince the young Nobles of this Realm and all who are imployed in and about their Education that some general Knowledge of the Laws of England and some Acquaintance with History and other Learning cannot be unworthy the Ambition of every Noble-man's Son who has any hopes to sit as Judge in that August Assembly where the nicest of Questions in Cases of the greatest Consequence and between the greatest of Subjects and many times between the King and his People do frequently come under Consideration And these Papers may likewise remember them what just Liberty of Arguing and Debating hath been allowed to Counsel and with what Candour and Patience they have been heard even in the most tender Points As also shew them what Resolutions were taken upon those Debates and Arguments that the Law may be consistent with it self and remain as it is a certain Rule of doing Right As to the present Performance the Reader is desired to pardon all Mistakes in Grammar and in the Figures of Folio's and Pages and other common Errata of the Press which by reason of multiplicity of other Business could not easily be attended to and observed Omari Res ipsa negat THere will shortly be Printed The Historical Library of Diodorus the Sicilian the whole Fifteen Books Translated from the Greek with all the Fragments And will be Sold by Awnsham and John Churchill in Pater-noster-row Dominus Rex Viscount Purbeck UPON a Petition the Question was in the House of Lords Whether the Dignity of a Viscount could be surrendred to the King by a Fine And it was Argued at the Bar by three Counsel for the Petitioner and by the Attorney General for the King It was urged on behalf of the Petitioner That a Dignity cannot be surrendred to the Crown and that for these Reasons 1. It is a Personal Dignity annexed to the Blood and so inseparable and immoveable See Ratcliff's Case 3 Rep. Rutland's Case 6 Rep. 53. that it cannot be either transferred to any other Person or surrendred to the Crown it can neither move forward nor backward but only downward to Posterity and nothing but a Deficiency or a Corruption of the Blood can hinder the Descent as if the Ancestor be Attainted of Treason or Felony c. For in that Case the Heir conveying no Inheritable Blood cannot make any Claim to that which is annexed to the Inheritable Blood and besides there is a tacite Condition of Forfeiture annexed to those Dignities by the Breach of which Condition the Dignity is determined but by the Act of the Party there can be no Determination of it unless there be an Attainder which corrupts the Blood And he took a difference between Ancient Honours and Dignities which were
Disorder and most Proceedings informal and in the English Tongue in such a mean Court where are few Precedents to guide them where the Parties themselves are not empowered to draw up their own Proceedings as here above but the whole is left to the Steward who is a Stranger to the Person concerned and therefore 't is hard and unreasonable that Mens Purchases should be prejudiced by the Ignorance Unskilfulness or Dishonesty of a Steward or his Clerks that there is scarce one Customary Recovery in England which is exactly agreeable to the Rules of the Common Law that the questioning of this may in consequence endanger multitudes of Titles which have been honestly purchased especially since there can be no aid from the Statutes of Jeofailes for they do not extend to Courts Baron 'T was further urged That there was no Precedent to enforce Lords of Mannors to do as this Bill desired that the Lords of Mannors are the ultimate Judges of the Regularity or Errours in such Proceedings that there 's no Equity in the Prayer of this Plaintiff that if the Lord had received such Petition and were about to proceed to the Reversal of such Recovery Equity ought then to interpose and quiet the Possession under those Recoveries That Chancery ought rather to supply a Defect in a Common Conveyance if any shall happen and decree the Execution of what each Party meant and intended by it much rather than to assist the annulling of a Solemn Agreement executed according to Usage tho' not strictly conformable to the Rules of Law For which Reasons it was prayed that that Appeal might be dismissed and the Dismission below confirmed and ' was accordingly adjudged so The Countess of Radnor versus Vandebendy al. APpeal from a Decree of Dismission in Chancery the Case was to this effect The Earl of Warwick upon Marriage of his Son settles part of his Estate upon his Lady for a Jointure and after failure of Issue Male limits a Term for 99 years to Trustees to be disposed of by the Earl either by Deed or Will And for want of such Appointment then in trust for the next in Remainder and then limited the whole Estate in such manner as that a third part of a Moiety thereof came to the Lord Bodmyn the Appellants late Husband in Tail general with the Reversion in Fee to the Earl and his Heirs The Son died without Issue the Earl by his Will appoints the Lands to his Countess for so many years of the Term as she should live and to her Executors for one year after her Death and charges the Term with several Annuities some of which remain in being The Respondent's Father purchased part of these Lands from the Lord Bodmyn after his Marriage and had the Term assigned to him The Lord Bodmyn dyes the Appellant brings her Writ of Dower in C. B. the Respondent pleads the Term for 99 years and she Exhibits her Bill praying that she may after the discharge of the Earls Incumbrances have the benefit of the Trust as to a third of the Profits of this Term and upon hearing the Cause the Lord Chancellor saw no cause to give Relief but dismissed her Bill There were many Particulars in the Case and many Proceedings before both in Law and Equity but this was the whole Case as to the general Question Whether a Tenant in Dower shall have the benefit of the Trust of a Term which is ordered to attend the Inheritance against a Purchaser after the Marriage The Lord Chancellor Jeffryes had been of opinion with the Appellant but the Cause coming to be heard again a Dismission was decreed and now it was argued against the Decree on behalf of the Appellant that Equity did entitle her to the Thirds of this Term that a Tenant by the Curtesie is intitled to it and br the same reason a Tenant in Dower that the Term created by the Settlement was to attend all the Estates limited by that Settlement and in Trust for such Persons as should claim under it which the Appellant doth as well as the Respondents that it was in consequence to attend all the particular Estates carved or derived from the others the Term was never in its creation designed for this purpose to prevent or protect against Dower that in the Case of Snell and Clay the Tenant in Dower had it in Chancery against the Heir at Law and that this was the same Case a Purchaser with notice of that Incumbrance of Dower the Vendor being then married this was an Estate of which the Husband was full Owner and received the whole Profits that in proportion 't is as much a Trust for her for her Thirds during Life as it is a Trust for the Respondents for the Inheritance she claims under her Husband who had the benefit of the whole Trust If there be a Mortgage by an Ancecestor upon the whole Eqinty will permit her to redeem paying her proportion according to the value of her Thirds for Life and the same reason holds in this Case and there 's no Precedent in Equity to the contrary And many Precedents in favour of Tenant in Dower were cited and much Reason well urged from parallel Cases to entitle the Lady to her proportion of the Trust of this Term. On the other side 'T was said that Dower is an Interest or Right at the Common Law only that no Title can be maintained to have Dower but where the Common Law gives it and that is only to have the Thirds of that which the Husband was seized of and if a Term were in being no Feme was ever let in but after the determination of that Term that this is the first pretence set up for a Dower in Equity the Right is only to the Thirds of the Rent reserved upon any Term and 't is a new thing to affirm that there shall be one sort of Dower at Law and another in Chancery that 't is and always hath been the common received Opinion of Westminster-hall and of all Conveyancers that a Term or Statute prevents Dower that if a Purchaser can procure it the same becomes his Defence that this is what the Wisdom of our Forefathers thought fit to use and tho' some Mens reasoning may render it in appearance as absurd yet the consequence of an alteration will be much more dangerous than the continuance of the old Rules that tho' this Lady's Case be unfortunate yet the multitude of Purchasors who have bought upon full consideration and have been advised and still conceive themselves safe under this Law will be more unfortunate if the Law be broken Then ' was argued That there could be no Equity in this Case for it must be not only from the Party Appellant but also against the Respondent and that 't is not because he bought the whole Her Portion her Quality and her being a Wife create no Equity as to the Purchaser 't would perhaps be prevalent against an Heir but
tried by a Jury And the Petition is wholly of a new Nature and without any Example or Precedent being to compel Judges who are by the Law of the Land to act according to their own judgments without any Constraint or Compulsion whatsoever and trenches upon all Mens Rights and Liberties tending manifestly to destroy all Trials by Jury And it is further manifest That this Complaint is utterly improper for your Lordships Examination for that your Lordships cannot apply the proper and only Remedy which the Law hath given the Party in this Case which is by awarding Damages to the Party injured if any Injury be done for these are only to be assessed by a Jury And they these Respondents are so far from apprehending they have done any wrong to the Petitioners in this Matter that they humbly offer with your Lordships leave to wave any Priviledge they have as Assistants to this Honourable House and appear gratis to any Suit that shall be brought against them in Westminster-hall touching the Matter complained of in the Petition And they further with all humility offer to your Lordships Consideration That as they are Judges they are under the Solemn Obligation of an Oath to do Justice without respect of Persons and are to be supposed to have acted in this Matter with and under a due regard to that Sacred Obligation and therefore to impose any thing contrary upon them may endanger the breaking of it which they humbly believe your Lordships will be tender of And they further humbly shew to your Lordships That by a Statute made in the 25th of Edw. 3. cap. 4. it is enacted That from thenceforth none shall be taken by Petition or Suggestion to the King or his Councel unless by Indictment or Presentment of good and lawful People of the Neighbourhood or by Process by Writ Original at Common Law and that none shall be put out of his Franchise or Freehold but by the Course of the Common Law And by another Statute in the 28th of Edw. 3. cap. 3. it is expresly provided that no Man shall be put out of his Lands and Tenements nor imprisoned or disinherited but by due Process of Law And by another Statute made in the 42 Edw. 3. cap. 3. it is enacted That no Man shall be put to answer without Presentment before Justices or Matter of Record on due Process and Original Writ according to the old Law of the Land And the Respondents further say That inasmuch as the Petition is a Complaint in the nature of an Original Cause for a supposed Breach of an Act of Parliament which Breach if any be is only examinable and triable by the Course of the Common Law and cannot be so in any other manner and is in the Example of it dangerous to the Rights and Liberties of all Men and tends to the Subversion of all Trials by Juries these Respondents conceive themselves bound in Duty with regard to their Offices and in Conscience to the Oaths they have taken to crave the benefit of defending themselves touching the Matter complained of in the Petition by the due and known Course of the Common Law and to rely upon the aforesaid Statutes and the Common Right they have of Free-born People of England in Bar of the Petitioners any further proceeding upon the said Petition and humbly pray to be dismissed from the same Then it was after Debate ordered That Counsel be heard at the Bar of the House on the said Petition And afterwards upon the Day appointed for the hearing of Counsel it was insisted on in the behalf of the Petitioners That here was a Right and a Right proved and no ways to come at it but this that if a Bill of Exceptions be tendred and refused this House can command them to do it that this proceeding of the Judges is to stifle the Matter of Law the Writ upon the Statute must be returnable here and cannot be otherwise that this follows the Judgment into Parliament that this House is to judge of every thing belonging to that Judgment that if this cannot be done there will be a failure of Justice that there have been Writs of Error upon Judgments with the Bill of Exceptions annexed that Damages to be recovered in an Action gives no Reparation for the Office that the Action must be brought before the Judges and so it must be a Dance in a Circle that as to the Judges Oaths the Justices of Peace are upon their Oaths and yet they may be committed that this is not fit for a Jury to try Whether the Judges have done well or ill in refusing to Seal this Bill of Exceptions This Refusal is the way to keep the Law within the Bounds or Walls of Westminster-hall and effectually to prevent its ever coming hither that this was not a Complaint of the Judges that as yet they would not accuse them of a Crime they only said fac hoc vive that the Court of King's Bench below doth the same thing to the Judges in Ireland they command others and ought to be commanded that they themselves send Mandatory Writs as the Cases are in Yelvert ' Cro. Car. That the Lords had directed the Judges in many things and so they did in Jeffrey Stanton's Case that by Command under the Privy Seal things have been done which otherwise would not and my Lord Shaftsbury was remanded to the Tower upon the Authority of that Case 15 Edw. 3. the Statute says that the Peers shall Examine for by great Men are meant the Peers Then were urged certain Cases where the Lords had commanded the Chancery to proceed speedily and to give Judgment c. Earl of Radnor's Case Englefield and Englefield and other like Cases were quoted and from thence they argued the Power of the Lords to command the Judges to do the thing desired 'T was argued on the other side against the Petition to this effect That this was a Cause of great consequence in respect of the Persons concerned as also of the Subject Matter it being the Complaint of a Noble Peeress against three of the Judges before whom she was lately a Suitor and concerning the Jurisdiction of this House That this Petition was the most artificial which could be contrived to hinder the Justice of the Law and to procure a Determination in prejudice of Two hundred thirty five years enjoyment that it is designed to get a Cause to be heard and adjudged on a Writ of Error by the Evidence onone side only or rather by that which was no Evidence at all if the Copy produced at the Trial was true for now upon the return of what they desire nothing of the Defendants Evidence would or could appear When a Bill of Exceptions is formed upon the Statute it ought to be upon some point of Law either in admitting or denying of Evidence or a Challenge or some Matter of Law arising upon Fact not denied in which either Party is over-ruled by the
cum aggravatione pene corporalis somewhat more than Death Then this being a Common Law Punishment and not prescribed by any Statute the knowledge of it must be fetcht from our Law-Books and from Presidents for the General Practise of the Realm is the Common Law 't is describ'd with an ipso vivente in Smith's Republica Anglic. p. 28. lat Edit pag. 245. Stamf. 182. en son view which is tantamount and Stamford wrote 2 Eliz. In Coke's 3 Inst 210. 't is ipsoque vivente comburentur Pulton de Pace Regni 224. and many other Books were cited to the same effect And 't was affirmed that there was no Book which recited the Judgment at large but had this Particular in it Several Books do in short put it That for Treason the Party shall be Drawn and Hanged and Quartered but those are only Hints of the Chief Parts not Recitals of the Judgment it self In the English Book of Judgments printed 1655. pag. 292. 't is mentioned particularly as the Kings Bench have adjudged it should be The Duke of Buckingham's was so 13 Hen. 8. Stow's Chronicle 513. shews that he was the Person Then 't was said they have been thus in every Age without interruption 'till 26 Car. 2. Humfrey Stafford's Case 1 H. 7.24 which was per consensum omnium Justiciariorum tho' quoted on the other side as shortly stated in the Year-Book yet on the Roll which hath been seen and perused 't is with an ipso vivente Plowden 387. and Rastal's Entries 645. the same Case is thus Coke's Ent. 699. is so likewise John Littleton in 43 Eliz. Coke's Ent. 422 423 and 366. is so In the Lord Stafford's Case 33 Car. 2. by the Direction of this House and with the Advice of all the Judges was the Judgment so given by the Earl of Nottingham then Lord High Steward In the Lord Preston's Case 't is so which was drawn by Advice of the then Attorney and Sollicitor the present Keeper and Chief Justice of the Common Pleas. As to the Objection That vivens prosternatur doth imply it and that 's enough It was answered That ipso vivente comburentur implies both but not e contra and all the Presidents shew the latter to be requisite And as to the Case of David Prince of Wales mentioned in Fleta there 's only a Relation of what was the Execution not of what was the Judgment And Coke 2 Inst 195. says That the Judgment was in Parliament and therefore the same can be no President to this purpose and any one that runs over Cotton's Records will find the Judgments in Parliament to be different as the Nature of the Case required No Argument can be drawn from the Acts of the Legislature to govern Judiciary Proceedings however John Hall's Case 1 Hen. 4. Cott. 401. is as now contended for Before the 1 Hen. 7. there were some Erroneous Attainders and the 29 Eliz. takes notice of them as so errneous The Judgments against Benson and Sir Andrew Helsey cited below are plainly erroneous they dispose of the Quarters which they ought not but leave the same to the King's pleasure Sir Andrew's President is a monstrous arbitrary Command by Writ to Commissioners of Oyer and Terminer ordering them to Examine him and to give Judgment in manner as in the Writ is directed that therefore is not to be justified and 't was before 25 Edw. 3. Henry Ropers 21 Rich. 2. doth dispose of the Quarters and hath other Errors in it and so have William Bathurst's and Henry South's which were in 3 Hen. 4. But from that time to 26 Car. 2. there 's none which do omit it The four Presidents at the Old Baily were against Popish Priests and what private politick Reasons or Commands might occasion the omission is unknown and Hampden was not Executed but his Judgment was upon a Confession and his Life saved the reason of which is also unknown So that there have been none Executed upon such Erroneous Judgments And that there are no more Presidents with the Omission is a good Argument that those many which have this Particular in them are good and legal the constant Current having been this way proves the same to be the Common Law And this is the most severe part of the Punishment to have his Bowels cut out while alive and therefore not to be omitted As to the Earl of Essex's Case in Moore and Owen's Case in Roll's Rep. the first is only a Report of the Case and the last a descant upon the Judgment but neither do pretend to recite the whole Judgment Then to pretend that this Judgment cannot be Executed is to arraign the Wisdom and Knowledge of all the Judges and Kings Counsel in all Reigns And Tradition saith that Harrison one of the Regicides did mount himself and give the Executioner a Box on the Ear after his Body was opened c. Then 't was argued That if it be a necessary part of the Judgment and be omitted it is a fatal Error and doth undoubtedly in all Cases give a good reason for the Reversal of such Judgment as in the Common Case of Debt where dampna are omitted in the Judgment tho' for the Advantage of the Defendant as is Beecher's Case and Yelv. 107. Besides if this be legal then all those Attainders in which this Particular is inserted must be illegal for 't is impossible that both the Judgments should be right for either those are more severe than they should be or this is more remiss To say that 't is discretionary is to give the Judges a power which they themselves have disclaimed and to Reverse this Reversal is to tell the Court of Kings Bench that they are not obliged to follow the General Practise of their Predecessors that they are obliged to no form in their Judgment for Treason that nothing but Death and being Drawn to it are essential and according to that Doctrine a Woman might receive the Judgment of Quartering and a Man might be Burnt and both according to Law But the Constitution of this Kingdom hath prescribed and fixed Rules and Forms which the Executive Power is obliged and bound to follow that as nothing can be made or construed to be an Offence at the Pleasure of the Court so no Judgment can be given for any known Offence at Pleasure But the Law either Statute or Common hath established what is an Offence and what is its Punishment and there is nothing of Arbitrary Power allowed in respect of either Wherefore upon the whole it was prayed that the Reversal might be affirmed and it was affirmed accordingly Sir Evan Lloyd Baronet and Dame Mary his Wife and Sidney Godolphin Esq and Susan his Wife Appellants Versus Sir Richard Carew Baronet an Infant the Son and Heir of Sir John Carew Baronet deceased Respondent APpeal from a Decree of Dismission in Chancery The Case was thus Rice Tannott died seized in Fee of several Lands in the several Counties of Salop
the Alienation even of an Ideot and then after Office the Practise is to Issue a Scire facias to him in possession or to the Alienee and so is Fitzh tit Scire facias pl. 2. 106. All these Methods prescribed by the Law would be useless if the Acts themselves were void Then 't is as certain that the Office must be found during the Parties Life and during the insanity and not afterwards If there had been an Office 't would only avoid it with a prospect as it would be in case of an Heir after death Even after an Office the King cannot have the Profits from the time of the Alienation which shews it not it not void from the beginning If a Suit be against an Ideot after Inquisition the Ideot cannot plead it but the King shall send a Supersedeas to the Judges suggesting the Inquisition so that even then the Party himself cannot avoid it As to the other way of avoiding it by the Heir it must be by Writ or Entry and till Entry or Writ the Act remains good But here 's no Contest with the Party himself or with his Heirs but with a Remainder Man This Act of Surrender was no tortious Act it wrought no discontinuance there was no Trust in him to preserve the Contingent Remainder A Feoffment with livery is allowed not to be void and yet that may do a wrong by discontinuance c. As to the pretence that a Warrant of Attorney to make livery is void that doth not reach this Case for here 's an Act done by himself which would have passed the Estate as by and from himself if he had been of sound Mind Then 't was desired that the other side would shew any such Case as this whereas multitudes of Gifts Grants Releases Bonds and other Specialties sealed and delivered by the Party himself are allowed to be good and the same reason holds for a Surrender made in Person and there 's no difference between a livery made in Person and a Surrender the Act being Personal and not by another under his Authority makes the livery good and so it ought to be here 18 Ed. 4.2 Perkins sect 139. And 't is observable in 39 Hen. 6.42 per Priscott upon the Inquisition 't is reseized and revested into the Interest of the Ideot and consequently of the King and if revested 't was once out of him Now here 's no prejudice to the Man himself by this Opinion he is taken care of and his Acts avoided by the King on his behalf and his Heirs may avoid them But that Strangers should take notice of them as void was denied and therefore prayed that the Judgment should be reversed On the other side it was argued with the Judgment That this never was a Surrender that 't was against sense and reason to allow the Acts of a Madman a Person distracted to be valid to any purpose that in case of livery it had been allowed to be only voidable by reason of the solemnity and notoriety of the thing but in case of a Deed or a Thing passing only by Deed 't was otherwise and Bracton Britton Fleta and the Register were cited where 't is declared who can take and who can alien and that a Madman cannot alien and Fitzh is of Opinion that the Writ of dum non fuit compos may be brought by himself that there was a notion scattered in the Books that such Acts are only voidable but the reason of the Law is otherwise 39 Hen. 6.42 hath the distinction that Feoffment with livery is good but if livery be by Warrant of Attorney 't is void If it be a Feoffment with Warranty by Deed and possession delivered with his own hands yet the warranty is void because the Deed is void Perk. 5. The Deed of a Mad-man is void if he grants a Rent 't is void If an Infant makes a Warrant of Attorney 't is void so is Whittingham's Case A Deed and a Will are not to be distinguished and by the same reason that the one is void the other is so Finch 102. is general All Deeds of a Man of non sane memorie are null 12 Rep. Shulter's Case 'T is an offence to procure a Deed from him The Civil Law makes all his Acts which he doth without consent of his Curator to be void A Madman is taken pro absente 'T is a Rule unaccountable That a Man shall not stuitifie himself that he shall not be able to excuse himself by the Visitation of Heaven when he may plead Duress from Men to avoid his own Act. 'T is absurd to say That a Deed procured from a Man in a Fever or in Bethlehem shall be valid to any purpose Fitzherbert who was a good Lawyer ridicules the pretence and maintains That he himself may avoid such Act. Then were cited 2 Inst 14. Lloyd and Gregory 1 Cro. 501 502. Perkins tit Grant 13. Then it was said That in this Case there needs not much Argument the Reason of the Thing exposes the pretended Law And the Judges have declared that this Surrender is void the word amens or demens imply that the Man hath no Mind and consequently could make no Conveyance Wherefore 't was prayed that the Judgment should be affirmed and without much debate it was accordingly affirmed Henry Earl of Lincoln by Susanna Countess of Lincoln his Mother and Procheine Amye Appellant Versus Samuel Roll Esq Vere Booth Hugh Fortescue Esq and Bridget his Wife al' Respondents AApeal from a Decree of Dismission in Chancery The Case was thus Edward late Earl of Lincoln who was Son and Heir of Edward Lord Clinton the only Son of Theophilus Earl of Lincoln deceased being seized in Fee of the Mannors of c. after his Mothers decease who is yet living and of other Lands of about 3000 l. per Annum part of the ancient Estate of the Family And designing that in default of Issue-Male by himself his Estate should go with the Honour made his Will 20 Sept. 34 Car. 2. and thereby devised the Premisses to Sir Francis Clinton for Life Remainder to his first and other Sons in Tail-Male with many Remainders over to such Persons in Tail-Male to whom the Honour might descend and directed that his Houshold Goods at ...... should remain there as Heir Loomes to be enjoyed by the next Heir-Male who should be Heir of Lincoln and made the said Sir Francis the Appellants Father and after his Death Earl of Lincoln Executor On the sixth of Novemb. 36 Car. 2. Earl Edward made another Will in writing in like manner with the alteration of some Personal Legacies and afterwards in April 1686. and in Dec. 1690. did republish his Will Then Earl Edward sold part to Richard Wynne Esq for 24491 l. 3 s. 6 d. and mortgaged the Premisses in question to him for 12200 l. Then Earl Edward by Deeds of Lease and Release dated the 27th and 28th of April 1691. conveys his whole Estate to
contra ligeantie sue debitum and as to this it was argued That it was not necessary to use those very Words That they are not Terms of Art such as are absolutely necessary they are not like to the Words Burglariter Felonice Murdravit and the like That proditorie implies it that 't is plainly apparent to be contrary to his Allegiance That all the whole Indictment shews it to be so 't is not weighing his Allegiance 't is against his true natural Liege Lord and Sovereign That it appears he was a natural born Subject That the very Words themselves are only of Aggravation That they may as well be laid precedent to the Fact as in the Conclusion That here is that which is Tantamount That Sir Henry Vane's Indictment was thus Cotton and Messingers Sid. 328. The Scotch Officers in Suffolk Lamberts Hackshams Titchburns and many more That 't is true the Fact in the Indictment ought not to be made good by Intendment or Inference but if there be Words which shew that the Party owed Allegiance it s enough An alien Enemy is not indictable in this manner but here 't is shewn That he is a Person capable of committing Treason and that the Act done was against his Duty and Obedience which he owed as a Subject That many Precedents have been thus That nimia subtilitas in jure reprobatur That a Certainty to a common Intent is sufficient Longs case That in 2 Rolls abr 82. contra coron ' et dignitat ' suas is held not necessary wherefore and for other Reasons then urged 't was prayed That the Reversal might be reversed and the King restored c. On the other side it was argued That this Reversal was just That this Arraignment being Joint for want of separatim makes the Proceeding Erroneous That the Precedents do use the Word separatim and abundance of Entries were mentioned as Leach and Ruthford et al' 28 Hen. 8. Dudely Gates and Palmer 1 and 2 Phil. and Mar ' Throgmorton and Weddall 2 and 3 Ph. and M. Peckham and Daniel eodem Anno. Blunt and Danverse 44. Eliz. Earl of Ess and S. eodem Anno. Guy Fawks and Sir Everard Digby 3 Jac. 1. Harrison Scot and the other Regicides 12 Car. 2. 1660. Green Berry and Hill for the Murder of Sir E. Godfrey 1678. Ireland Pickering and Grove 31 Car. 2. rot ' 242. Whitebread Fenwick et al' 32 Car. 2. rot ' 224. Johnson et al' 2 Will. et Mar. num ' 57. and Lord Preston and Ashton Trin. 3 Will. et Mar. n. 16. separatim allocut ' and many more Besides the Nature of the thing is such as requires a several Arraignment because they may plead several Pleas and they are several Offences and tho' they plead in this Case severally that 's not enough for they ought to be askt severally But this was not so much insisted on as the next Error the Omission of secreta in the Judgment 't is part of the Judgment upon the 25 Edw. 3. for compassing c. tho' for coining 't is only to be drawn and hanged according to Morgan's Case Cro. Car. 383 Stamp 182. 3. Inst 15 17. Finch's Law lib. 2. cap. Treason they are all secreta membra abscindant ' as well as interiora all common Books have it as Bolton's Justice of the Peace tit Prefidents of Indictments for High Treason 38 42. Dalton's Justice p. 335. Sheppard's Epitome tit Crown and all those common Abridgments c. Lord Preston and Ashton's was drawn by good Advice Harrison and al' 12 Car. 2. Ireland Pickering and Grove 1678. Whitehread's 1679. Walcott's 1683. Langhorn's 31. Car. 2. Colonel Sidney's 1683. The Earl of Stafford's in 1680. was thus upon Debate and Consultation with all the Judges Dominus Rex versus Owen 1 Rolls Rep 185 186. there 't is mentioned But then it was chiefly insisted on That the Reversal was to be maintained for the Error in the Indictment that contra ligeantie sue debitum was the general Form that all the great Men in all Ages who had been of Counsel for the Crown had inserted it That all the Indictments the first Assizes after Monmouth's Rebellion which were drawn or perused by Sir H. Poll ' had this Conclusion That Ashtons Crosses Gaunts Cornishes Earl of Staffords Batemans Ayliffs Goodenoughs Hone Blague Rowse Armstrong Sir Robert Peyton Langhornes Lord Bellasis Venner Harrisons Faukes Sir Everard Digbyes Patricius Dolphie Pasch 41 Eliz. John Tipping 34 Eliz. are all thus and the Prints are so likewise 3 Inst 214. Fitzh Justiee pag. 218. Plowd 387. Coke's Entries 361. Cro. Car. 120 122 123. and a great number of Particulars more which might be cited Then 't was urged that Reason doth require this for that Treason is punishable as a Breach of Allegiance that that is the very Essence of Treason that if the Fact be not alledged to be against his Allegiance 't is not Treason that 't is by reason of his Allegiance that he can commit Treason and therefore 't is that an Alien Enemy who was never protected can't commit Treason because he owed no Allegiance and there may be many Acts done which look like a levying of War without any Breach of Allegiance and for that was quoted King John's Charter made at Rumney Mead 18 die Junii Anno Regni 17 Rot. Pat. 17. m. 13. a Transcript whereof is in Matthew Paris 245. Anno 1215. which Charter was ratified four times within nine years after The first Confirmation was granted 1 Hen. 3. and probably at his Coronation for there was a Charter dated at Glocester 6 Febr. Rot. Pat. 1 Hen. 3. m. 13. that they should enjoy Libertatibus Regno nostro Anglie a Patre nostro et nobis concessis In the second year of his Reign he sends a Mandate to the several Sheriffs to proclaim this Charter amongst others Rex c. Salutem Mittimus tibi Chartas de Libertatibus c. Mandantes quatenus eas legi facias in pleno comitatu tuo Dat' 22 Febr. Rot. Claus 2 Hen. 3. Then was cited Fox's Acts and Monuments ad Ann. 1218. That after Michaelmas this King held a Parliament at Westminster wherein he confirmed and ratified by his Charter all the Franchises and Liberties which were made and given by King John his Father In the seventh year of his Reign viz. the Sixteenth of his Age he took the Government into his own Hands and then the Archbishop of Canterbury in open Parliament doth mind him of the Oath sworn in his Name by the Earl of Pembroke Rectore Regis Regni and others at the Pacification between him and the Dauphin that he would restore and confirm those Liberties to his Subjects for which the War broke out between his Father and the Barons Then was quoted what Henry the Third promised when he invited Henry de Lucy to come in to him 1 Hen. 3. m. 16. which is in very strange language if his Allegiance had been broken Then was cited Sadler