the Law behead his Wives for Treason for judicandum est legibus non exemplis Tâ—iâ— 9 Jacob. Regis In this Term I moved the Justices in Sergeants Inne in Fleetstreet upon the Stat. 27 Jac. cap. 6. If the Justices of Peace may make a special Warrant to Constables c. to have the bodies of parties who are to take the Oath according to the Statute before them And it was Resolved by all unâ voce that they may and that for two Reasons 1. When the Statute gave power to Justices of the Peace to require any persons c. to take the Oath the Law implicite gave power to make a Warrant to have the body for Quando lex aliquid alicui concedit conceditur et id sine quo res ipsa esse non potest 2. It is against the Offices of the Justices and the Authority given them by that Statute that they shall go and seek the parties Then I moved if in such case the Constables may break the Houses of the Parties named in their Warrants and it seemed to Us all that they cannot because they are not Offenders till they refuse to take the Oath before them or commit some Contempt to the King Note If the person be fugitive in another County he evades the Statute for the present but he may be indicted for Recusancy and the Indictment be removed into the Kings-Bench and they may make Process against them into any County of England Also if they are in their Houses the Door being shut c. they may be indicted before the Justices of Assize or Quarter-Sâ—ssions and then after a Venire Facias c. by force of a Capias their Houses may be broken by the Sheriff 10 Eliz. cap. 2. to which the 23 Eliz. refers Memorandum Hill 9 Jac. All the Justices of England by the Kings Command were assembled to consider of these two Statutes And in the beginning of this Term they were recited and debated and after good consideration and Conference together It was Resolved by all That if one be indicted for Recusancy the Court may proceed by Process upon the Stat. 23 Eliz. or by Proclamation according to 28 Eliz. And that the Process upon the Indictment and Venire Facias and Capias c. and upon the Capias the Sheriff upon Request made to open the Door as in Seymans Case and when by the Sheriff brought into Court he may upon refusal of taking his Oath be generally indicted c. But the Justices upon the second day of Conference did not speak to the other Point And this Resolution being reported to the Lords of the Councel aâ— Whitehall all the Judges being present 7 Feb. Hill 9 Jacob. Regis We were desired to put our Resolution into Writing I answered The Judges never used so to do But if the Attorney or Sollicitor came to us we will deliver our Opinions to them ore tenus but not in Writing At thâ— third day upon the Conference in this Term it seemed upon the Statute 3 Jac. If Justices of Peace upon Refusal before them commit any person to Gaol with Bayâ— and mention in their Warrant the Tender and Refusal then the Oath ought to be tendred again But if the Mittimus do not comprehend the Tender and Refusal then they may be generally indicted as upon Refusal in â—pon Court And it was Resolved That the major number of Justices of Peace who commit the Parties have Election to commit to the next Assizes or the next Sâ—ssions And observe that two Justices whereof one of the Quorum by the Stat. 7 Jac. may commit any person above the Age of 18. and under the Degree of Nobility altâ—ough he be not indicted or convict And it was Resolved by all That if the Indictment be commenced upon the Stat. 3 Jac. upon Refusal in open Court then the Indictment may be short and general c. Not so if the Indictment be upon the Commitment made by two Justices of the Peace This is good of any person whatsoever Mich. 10 Jac. Regis The Earl of Northampton's Case 1. The Attorney-General informed against Thomas Goodrick Gent. Sir Richard Cox Kt. Henry Vernon Gent. Henry Minors Thomas Lake Gent. and James Ingrum Merchant ore tâ—nus in the Star-Chamber and charged Goodrick that he had spoken and published of the E. of Northampton a Peer of the Realm c. divers false and horrible Scandals scil That more Jesuits Papists c. have come into England since the Earl of Northampton was Guardian of the Cinque-Ports then before 2. That the said Earl had writ a Book openly against Garnet c. but secretly had writ a Letter to Bellarmine intimating that he writ the said Book ad placandum regem sive ad faciendum populum and requested that his Book â—ight not be answered and that the Archbishop of Canterbury had told it the King and that the said Goodrick told it to one Deusbery who acquainted the Earl with it Goodrick being examined vouches Sir Richard Cox for Author Sir Richard Cox vouched the said Vernon Vernon cited Lake Lake that he heard it from Sergeant Nichols Nichols said one Speaket related it to him and that he heard it from James Ingrum and James Ingrum said that in October he heard the said words of two English Fugitives at Ligorn but never published them till the Earl of Salisbury's death in May last And all the Defendants confâ—ssed at Bar all that they were charged with and at the Hearing of this Case were 11 Judges Fleming being absenâ— propter aegritudinem And so it was Resolved That the publishing of false Rumours concerning the King or the Peers was in some Cases punishable by the Common-Law But of this were divers Opinions 1. And first as to Rumors themselves 1. They ought to be fase and horrible 2. Such of which Discord may arise betwixt the King and his People c. West 2. c. 24. 2 R. 2. cap. 53. 3. The Subversion and Destruction of the Realm ibidem 2. As to Persons they declared to be Prelates Dukes Earls Barons c. Justice of the one Bench or other or any great Officers c. 2 R. 2. c. 5. And the King is contained within West 1. c. 34. as appears in Dyer 5 Mary 155. 3. As to the third Point it was Resolved That if one hear such false and horrible Rumors it is not lawful to relate them to others And this appears by the Stat. viz. That the Party shall be imprisoned until he find out the party who spoke them Which proves it was an Offence else he should not be punish'd by Fine and Imprisonment It was also Resolved That the Offenders at the Bar if against them the Proceedings had been by Indictment upon these Statutes no Judgment could be had against them that they should be imprisoned till they found their Author for Goodrick did not relate to Deusbery that he heard from Sir Richard Cox but he related the same as of himself
or Demise of his Lands Wards c. these are Contracts concerning the Kings Revenues and there it cannot be said that the Subjects sponte se obligant as to purchase any the Revenues of the King 3. It ought to be sponte super considerationem non ex mera gratia benevolentia subditi Hil. 4. Ed. 1. in Scaccario c. 4. It ought to be sponte super considerationem quae non loâ—ge reventionem seu interesse Coronae in any thing which the King hath As if a Subject give the King a Summe of Money for Licence in Mortmain or to create a Tenure of himself to have a Fair Market Park Chase or Warren in his Mannor there the Queen shall have it for the Subject did this sponte And this Resolution was reported to the King by Popham in the Gallery at White-Hall Pasch 5 Jac. Regis The Case of Forests This Term it was informed to the King that great wrongs were done in the Forest of Leicester in the County of Leicester and in his Forest of Bowland in the County of Warwick parcel of his Dutchy of Lancaster And upon this by Warrant from the King under his Signet all the Justices were assembled to resolve certain Questions to be moved concerning Forests by the Attorney of the Dutchy and the Councel of the other part which were Forests and Chases Which being matter in Fact the Judges could not give their Resolutions but by way of Directions And it was Resolved 1. That if these are Forests it will appear by matter of Record as by Eyres of Justices of Forests Swannimotes Regardors c. But the calling it a Forest in Grants c. proveth it not a Forest in Law 2. Resolved by all the Justices That if there be no Forests in Law but Free-Chases then who hath any Free-hold in them may cut his Wood growing upon it without view or Licence leaving sufficient for Covert to maintain the Kings Games so a common person having Chace in another Soil the Owner may not destroy the Covert nor Browse-wood 3. Resolved That in such a Chase the Owner by Prescription may have Common for his Sheep and Warren for his Coneys by Grant or Prescription but he must not surcharge or make Burrows in other places than hath been used from the time of which nor may he erect a new Warren without Charter 4. Resolved That who hath such a Warren may lawfully build a Lodge upon his Inheritance for preservation of his Game 5. Popham Chief Justice said That in the time of Chief Baron Bett It was adjudged in the Exchequer That a man may prescribe to cut his Wood upon his own Inheritance within a Forest though it was against the Act in the 43 Ed. 1. See the Abridgement Title Forest 21. And this was the Case of Sellenger vide 2 Ed. 2. Title Trespass fol. 9. in the time of Ed. 1. Trespass 239. â—low Com. Dyer 72. 32. 2 Ed. 4. cap. 7. that the Subject may have a Forest Consuetudo ex rationebili causa usitata privat communem Legem And it was held by some that this was but an Ordinance not an Act of Parliament Pasch 5 Jacobi Regis Case of Conspiracy This Term in the Case between Rice ap Evan ap Floyd Plaintiff and Richard Barker one of the Justices of the Grand Sessions in the County of Anglesey and others Defendants 1. Resolved by Popham and Coke Chief Justices the Chief Baron and Egerton Lord Chancellor and all the Court of Star-Chamber That when a Grand Inquest indicts one of Murder or Felony though the Party be acquitted yet no Conspiracy lyes for him against the Inâ—ictors for they are returned by the Sheriff by Law to make Inquiry of Offences upon their Oath for service of the King and Country and are compellable to serve the Law 10 Eliz. 265. And their Indictment or Verdict is matter of Record and called Verum dictum and shall not be avoided by Surmise and no Attaint lyes And with this agrees the Books in 22 Assise 77. 27 Ass 12. 21 Ed. 3. 17. 16 H. 6. 19. 47 Ed. 3. 17. 27 H. 8. 2. F. N. B. 115. a. But otherwise of a Witness for if he conspire out of the Court and after swear in Court his Oath shall not excuse his Conspiracy before for he is a private person 2. Resolved That when the party indicted is convictd of Felony by another Jury upon Not Guilty pleaded there he shall never have a Writ of Conspiracy But when he is upon his Arraignment Lâ—gitimo modo acquietatus But in the Case at Bar the Grand Jury who Indicted one William Price for the Murther of Hugh ap William the Jury who upon Not Guilty pleaded convicted him were Charged Indicted and Convict in the Star-Chamber which was never seen before For if the party shall not have a Conspiracy against the Indictors when Acquitted a multo fortiori when he is lawful Convict he shall neither charge the Grand Inquest nor Jury that convicted him But when a Jury acquits a Felon or Traytor against manifest Proof there they may be charged in the Star-Chamber ne maleficia remanerent impunita But if such Supposals shall be admitted after ordinary Judicial Proceedings it will be a means ad detrahendos Juratores deterrendos a servitio Regis 3. Resolved That Barker who was Judge of Assize and gave Judgement upon the Verdict of Death against the said W. P. and the Sheriff that executed him nor the Justices of Peace that examined the offender and the Witnesses for proof of the murther before the Indictment were not to be drawn in question in the Star-Chamber for any conspiracy nor ought to be charged there with any conspiracy or elsewhere when the party indicted is convicted or Attaint of murther or Felony And though such person were acquitted yet the Judge c. being by Commission and of Record and sworn to do Justice cannot be charged for conspiracy for that he openly did in Court as Judge Justice of Peace c. but if he hath conspired before out of Court this is extrajudiciall but subordinations of Witnesses and false malicious prosecutions out of Court c. amounts to an unlawfull conspiracy And if Judicial matters of Record which are of so high a nature that for their sublimity they import verity in themselves should be drawn in question by partiall and sinister supposall and averments of offenders there will never be an end of Causes but Controversies will be infinite Et infinitum in jure repâ—obatur 47 Ed. 3. 15. 25. Ed. 4 67. and 27 Ass pl. 12. But in a Hundred Court or other Court which is not of Record there averment may be taken against their proceedings 47 Ed. 3. 15. Also one shall never assign for Error that the Jury gave Verdict for the Defendant and the Court entred it for the Plaintiff c. Vide 1 H. 6 4. 39 H. 6. 52. 7 H. 7. 4. 11 H. 7. 28. 1 Mar. Dyer
89. But in a Writ of false Judgement the Plaintiff shall have direct averment against what the Judges in the inferior Court have done as Judges Quia Recordum non habent 21 H. 6. 34. Neither shall a Judge in the Cases aforesaid be charged before any other Judge at the Suit of the King 27 Ass pl. 18. 23. 2. R. 3. 9. 28 Ass pl. 21. 9 H. 6. 60. Catlyn and Dyer chief Justices Resolved That what a Judge doth as a Judge of Record ought not to be drawn in Question in this Court Nota bene that the said matters at the Bar were not examinable in the Star-Chamber and therefore it was Decreed by all the Court That the said Bill without any Answer to it by Barker shall be taken off the File and utterly cancelled And it was agreed That the Judges of the Realm ought not to be drawn into question for any supposed Corruption which extends to the annihilating of a Record or tending to the slander of the Justice of the King except it be before the King himself for they are only to make an account to God and the King otherwise this would tend to the subversion of all Justice for which reason the Orator said well Invigilandum est semper multae invidiae sunt bonis And the reason hereof is the King himself being de jure to deliver Justice to all his Subjects and because himself cannot do it to all Persons he delegates his Power to his Judges who have the Custody and Guard of the Kings Oath Thorpe being drawn into question for Corruption before Commissioners was held against Law and he pardoned Vide the conclusion of the Oath of a Judge Stowes châ—oi 18 Ed. 3. 312. Weyland chieâ— Justice of the Common Bench and Hengham Justice of the Kings Bench and other Justices were accused of Bribery and their Causes were determined in Parliament Vide 2 Ed. 3. fol. 27. The Justices of Trayl-Baston their Authority was grounded upon the Statute of Ragman which you may see in old Magna Charta Vide the form of the Commission of Trayle-Baston Hollingshead Chron. fol. 312. whereby it appears That the Corruption of his Judges the King himself examined in Parliamentâ— and not by Commission Absurdum est affirmare recredendum esse non judici Pasch 4 Jacob. Regis Case concerning the Oath ex officio The Lords of the Council at Whitehall sedente Parliamento demanded of Popham chief Justice and my self upon motion of the Commons in Parliament In what cases the Ordinary may examine any person ex Officio upon Oath and upon Consideration and View of our Books we answered the said Lords at another day in the Council Chamber 1. That the Ordinary cannot constrain any man to swear generally to Answer to such Interrogatories as shall be administred unto them but ought to deliver them a Copy of the Articles in writings that they may know whether they ought to answer them by Law or no according to the Course of the Chancery and Star-Chamber 2. No man shall be examined upon the secret thoughts of his Heart or of his secret Opinion but of what he hath spoken or done No Lay-man may be examined ex officio nisi in causis matrimonialibus et Testamentariis as appears by an Ordinance of Ed. 1. Title Prohibition Rastal See also the Register fol. 366. the force of a Prohibition and an Attachment upon it by which it appears That such Examination was not only against the said Ordinance but also against the Custome of the Realm which hath been time of which c. but also in prejudice of the Crown and Dignity of the King and with this agrees F. N. B. fol. 41. And so the Case reported by my Lord Dyer not printed Trin. 10 Eliz. One Leigh an Attorney of the Common Pleas was committed to the Fleet because he had been at Mass and refused to swear to certain Articles and in regard they ought in such case to examine upon his Oath and hereupon he was delivered by all the Court of Common-Pleas The like in Mich. 18 Eliz. Dyer fol. 175. in Hinds Case Also vide de Statute 25 H. 8. cap. 14. which is declaratory as to this point It stands not with the right order of Justice that any person should be convict and put to the losse of his Life good Name and Goods unless by due Accusation and Witnesses or by Presentment Verdict precess of Outlawry c. And this was the Judgment of all the said Parliament See F. N. B. Justice of Peace 72 Lam. 6. in his Justice of Peace 338. Crompton in his Justice of Peace 36. 6. In all which it appears That if any be compelled to Answer upon his Oath where he ought not by Law this is oppression and punishable before a Justice of Peace c. But if a Person Ecclesiastical be charged with any thing punishable by our Law as for Usury there he shall not be examined upon Oath because his Oath is Evidence against him at the Common Law but Witnesses may be cited Register title Consult F. N. B. 53. d. 2 H. 4. cap. 15. In H. 8. nor Ed. 6. time no Lay-man was examined upon his Oath except in the said two Cases But in Queen Maries Reign 2 H. 4. was revived but afterwards repealed 10 Eliz. Note King John in the time of his Troubles granted by his Charter 13 Maii Anno Regni 140. submitted himself to the Obedience of the Pope And after in the same year by another Charter he resigned his Crown and Realm to Pope Innocent and his Successors by the hands of Pandulph his Legate and took it of him again to hold of the Pope which was utterly voyd because the Dignity is an inherent inseparable to the Royal Blood of the King and descendable and cannot be transferred Also the Pope was an Alien born and therefore not capable of Inheritance in England By colour of which Resignation the Pope and his Successors exacted great Sums of the Clergy and Layety of England pro commutandis paenitentiis And to fill his Coffers Pope Gregory the 9th sent Otho Cardinalis de Carcere Tulliano into this Realm to Collect Money who did Collect infinite Sums so that it was said of him Quod Legatus saginatur bonis Angliae which Legate held a Councel at London Anno Dom. 1237. 22 H. 3. and for finding out Offences which should be redeemed with Money with the assent of the English Bishops he made certain Canons among which one was Jusjurandi Calumniae in causis Ecclesiasticis cujus libet de veritate dicendi in spiritualibus quoque ut veritas facilius aperiatur c. Statuimus de Caetero praestari in regâ—o Angliae secundum Canonicas legitimas Sanctiones obtenta in contrarium consuetudine non obstante c. By which Cannon it appears That the Law and Custom of England was against such Examinations so that this was a new Law and took its effect de
assigned in the Ve Fa which was certified by Writ of Certiorari and upon this Writ no Return was made upon the Back of the Writ which is called Returnum Album And for that Cause this Easter Term the Judgment was reversed Trin. 7 Jac. Regis In Cur. Wardorum It was found by Writ of Diem clausit extremum after Roger Westcots death that the said Roger the day that he dyed was seized of and in the moiety of the Mannor of Trewalliard in his Demesne as of Fee and so dyed seized and that the moiety of the said Mannor 19 E. 3. was holden of the then Prince as of his Castle of Trematon parcel of his Dutchy of Cornwall by Knight-Service as appears by a certain Exemplification of Trematon for the said Prince made 9 Martii 19 E. 3. And the Words of the Extent were Willielmus de Torr tenet duo feoda et dimid Milit. apud Picke Stricklestombe Trewalliard per servitium militare reddit inde per annum 8 d. And it was Resolved by the two Chief Justices and Chief Baron That the Office concerning the Tenure was insufficient and void for the Verdict of a Jury ought to be full and direct and not with a prout patet for now the force of the Verdict lyes upon the Extentâ— which if it be false he who is grieved shall have no remedy by any Traverse for they have not found the Tenure indefinite which may be Traversed but with a prout patet which makes the Office in that Point insufficient And upon that a melius inquirendum shall issue And herewith agrees F. N. B. 255. FINIS THE TABLE A. AUrum Reginae what and what right the Queen hath to it 19 Alienations by Bishops when voidable by their Successors and when the King or Queen may void them 75 76 Admiralty Jurisdiction thereof is no Court of Record 82 83 84 85. 88 89. 109. 199. 200 201 Absence takes not away a Title of Honour and why 111 112 113 Affidavits false when how and from whom punishable 134 135 Arches Court its Jurisdiction 147 Arch-Bishop of Canterbury his power to act and in what cases 148 149 150 151 Apprentice none may keep a shop c. or set up a Trade c. unless he have served seven years 154 155 Apples whether within the Act for ingrossing and what within that Act 160 B. Bishops when lawfull and their Authority what and whence derived 8 9 Buggery what and how punishable 36 37 Baron who shall be said to be a Baron of Parliament and in what cases 73 74 Benevolence the nature thereof and how may be imposed 124 125 Burgage Tenure what and if tenant in Burgage shall pay aid to the King to make his Eldest Son Knight 169 170 171 172 Bridges who ought to repair them 176 177 C. Custome whence to be paid and of what 16 17. 33 Commissioners High Commissioners their power 17 18. 47 48 49 50 51 52. 72 73. 87 88 89 90 Conspiracy where such action lies for what and against whom 22 23 24. 95 96 97 Commissions what of them are against Law e contra 29 30 31 32. 93 94 Consultation where grantable 43. 46. 67 68 69 70 71 Court Christian their Power 44 Court of Common-Pleas their Power and Antiquity 60 61. 113 114 Convocation authority thereof 76 Contempt what shall be said a high contempt of the King and how punishable 100 101 Chester Chamberlain there his power 118 119 Court what judgement shall be given when the Court is divided in opinion 123 124 Contract what shall be said an intire Contract 205 206 Common when suspended or discharged e contra 214 215 Custome where and how available 216 217 218 219 D. Dignity the King may erect any name of Dignity that was not before or transfer it 85 86. 116 117 Deed obtained by Covin shall not bind 95 Duresse per Gaoler 133 Dower what a barre thereto e contra 161 162 163 164 165 F. Forrests what so properly and what may be done therein 20 21 First-Fruits and Tenths given to the Crown 46 47 Ferry-man when he may throw goods over boord 65 Felony while an Attainder in force no Felony before to be answered for 105 Forgery where punishable and how 108 177 178 Felon when his goods are forfeit 127 Fine levied how avoidable and for what 127 128 129 130 131 132 133. 202 Fine to the Lord of a Manor in Copy-hold ought to be reasonable 143 144 145 146 G. Grants antient not to be drawn in question 6 Grants of the Kings when void e contra 91 92 What shall be a good Grant to elect Burgesses to Parliament 126 H. Heresie what how and by whom punishable 58 59 60 Hand when the right hand shall be cut off and for what 74 75 Habeas Corpus 89 90 Haeretico comburendo the Writ therein lyeth 98 I. Impropriations not examinable and why 4 5 Confirmed by time though defective 5 6 Impositions when they may be laid by the King 32 33 34 Justices of Peace when they may award Processe of Outlawry 107 108 Their Power as to making Warrants 136 137 138 L. Libells what shall be judged a Libell and how and where to be punished 35 35 Law of England to be expounded by the Judges of it and none other 147 Lease for Lives when determinable 216 M. Marriages Priests Marriages not void 9 Marches Courts there when erected and why as also the power of Lords President there 51 53 54 55 56 57 58 Man-slaughter what so adjudged 92 93 Modus Decimandi what where suable 155 156 157 158 159 160. 181 182 183 184 185 186 ad 193 Meane profits when to be answered to the King 196 N. Nobility Priviledge thereof what 100 101 102 O. Oath Ex Officio in what cases the Ordinary may examine Ex Officio upon Oath 25 26 27 28 Office where traversable 106 107 Offices new where and upon what cause they may be erected 121 122 123 Office found where void and why 195 196 197. 222 Where an Estoppell 210 211 P. Procedendo in Loquela not allowable 4 Pardons what offences the King may pardon 28 29 Premunire where it lies and where not and against whom 37 38 39 40 41 42. 98 99 Prohibitions in what cases grantable and against whom and by what Courts 43 44 45 46. 52. 60 61 62 63. 66 67. 80 81. 89. 90. 150 151 152 153 Piracy who shall have Pyrates goods 77 Proclamations what may be prohibited thereby and the validity thereof 78 79 80 Priests may not be arrested in Holy Church c. 104 105 Perjury where punishable 106 Poynings Law how it shall be expounded 114 115 116 117 Portion what shall be said a sufficient Childs Portion 117 Palatine County its Jurisdiction 119 Parliament Forms and Orders of Parliament 119 120 Prohibition where it lies and for what and in what not 155 156 157 158 159 160. 172 173 174 175 176. 181 ad 193 Primer seisin where the King shall have it 198 199 Priviledge of Parliament to be determined by the Court of Parliament 212 213 Processe not to be made out of the Star-Chamben neither for damages nor costs 213 Parish Clerke who shall chuse 219 220 R. Recognizances when forfeited and for what 1 2 3 Rent when determinable by the Lessors death e contra 35 36 Robbery where the Hundred may be sued 64 65 Return when insufficient e contra 135 136 Returnum Album 222 S. Stannaries the Kings Prerogative therein 9 10 11 Salt-petre the Kings Prerogative therein in several points 12 13 14 Simony what it is and the penalty thereof 78 Statute what Officers shall be within the Stat. 5 E. 6. 16. for avoiding corruption 82 83 What is an offence within 11 H. 4. 9. 102 103 Slander fined in the Star-Chamber and why 108 Seat in the Church right thereto 109 110 Scandalum Magnatum what and how punishable 138 139 Sewers the Commissiones therein their power and how antient 179 180 T. Tayle Tenant in Tail may forfeit his Estate and when and for what 6 7 Treason what shall so be accounted e contra 14 15 16 Accessary in Treason who 86 Tenure what shall be said a Tenure in Capite c. 140 141 142 Tithes substracted where to be sued for 165 166 167 Tithes to be paid and for what and the neglect thereof how punishable 193 194 Timber-trees Oakes and Ash who may cut e contra 208 209. 216 217 V. Vowes of what validity in Common Law 99 W. Women Maids c. to take and marry against their Wills is Felony 18 19. 104 Wales Justices there not to be constituted by Commission 50 51 Witnesses Testis singularis not allowable 68 Parties to be no witnesses 72 Widow when and how her election shall determine 117 Winding-sheets felony to steal them 118 Wills and Testaments fees for writing thereof and extortion therein how punishable 177 202 Ward who shall be a ward to the King 203 204 205 Words action for words where it lies 207 208. 221 The End
Justices of Nisi Prius power in all Cases of Felony and Treason to give Judgment 28 Ed. 1. De appellatis gives Justices of Assize power to try Appeals of Approvers They may also by the 34 and 35 H. 8. cap. 14. write to the Clerk of the Crown de Banco R. to certifie the first Conviction in their own Name otherwise the best Form is in the King 's Nanâ—e 2 and 3 Ed. 6. cap. 24. By Articuli super chartas cap. 10. 4 Ed. 3. cap. 11. 7 R. 2. they may hear and determine Conspiracies false Informations c. By the Statute of Northampton 2 Ed. 3. cap. 3. they may hear and determine the Statute of Armor and punish Justices of Peace and others c. They ought twice a year to proclaim the Statute 32 H. 8. and other Statutes against Champerâ—y Imbracery and unlawful Retainers By 3 H. 7. cap. 1. they may take Bail of one acquitted of Murther within the year to answer the Appeal of the Party By 33 H. 8. they must proclaim in their Circuit the Statute against unlawful Games They make Execution of the Statute 13 H. 4. cap. 7. of Ryoâ—s c. And by 2 H. 5. cap. 8. Commission shall be awarded to enquire of the Defaults of Justices of Assize and of the Peace By Westminster 2 cap. 37. and 2 Ed. 3. c. 5. they ought also to enquire of the 23 H. 6. cap. 10. concerning Sheriffs c. Bayliffs c. and Guardians of Prisons for their Extortion and delivering who are not Bailable and detaining who are 2 Mariae Dyer 99. they held Plea in Assize of Murther by W. 2 and 3 H. 7. and of Robbery by Commission of Gaol Delivery By 23 Ed. 3. they may inquire of Default c. punishment of Victuallers c. Note Justices of Oyer and Terminer can only enquire of such who are endicted before themselves But Justices of Goal-delivery may arraign a Prisoner indicted before others the words of their Commission are Ad Gaolas Gaolam de B. de peâ—sonaribus in ea existeâ—t hac vice deliberand secund leges c. Brook tiâ— Commission 3. Maii 24. 4 Ed. 3. cap. 2. Justices of Gaol-delivery deliver Prisoners indiâ—ted before Guardians of the Peace And by 1 Ed. 6. cap. 7. new Commissioners of Gaol-delivery This extends not to Indictments c. before Commissioners of Oyer and Termiâ—er because the proceedings before Justices of Oâ—er and Terminer after the Oyer determined ought to remain in the Kings Bench But the Records before Justices of Gaol-delivery remain with the Custos Rotulorum vide Brook tit Commission 12. 38 H. 8. Title Oyer and Terminer 44 Ed. 2. 31. Case of Customes Subsidies and Impositions Upon Conference between Popham chief Justice and my self upon a judgment lately given in the Exchequer and upon Consideration of our Books and Statutes It appeared That the Rule of the Common-Law is the the Register Title ad quod dampnum F. N. B. 222. a. quod patria magis solito non oâ—eretur nec gravetur Also another Rule That the King may Charge his People to a thing which may be to their Profit without assent of the Commons but not to their Charge As is held in 13 H. 4. 16. Statutum de Tallagio non concedendo Mag. Chart. cap. 30. which hath been confirmed above 30 times Vide le Stat. 25 Ed. 1. 3 Ed. 1. in turri 9 Ed. 3. cap. 1. 2. 14 Ed. 3. 2. 25 Ed. 3. cap. 2. Queen May put an Imposition upon Cloaths which 1 â—liz Dyer 165. was moved but not Resolved Vide 31 H. 8. Dyer fol. 43. 1 Eliz. Dyer 165. Magna Custuma Parva Custuma Vide 9 H. 12. 35. Upon all which and divers Records by us seen it appeared to us That the King cannot at his Pleasure put any Imposition upon any Merchandize to be Imported or Exported unless for advancement of Trade the life of the Island Pro bono publico As if in Forâ—aign Parts any Imposition is put upon the Merchandize of our Merchants non pro bono publico to make equality and advance Trade the King may put an Imposition upon their Merchandizâ—s for this is not against any of the said Statutes which was the Case of Currants lately adjudge in the Exchequer And also of Customer Smith in Queen Elizabeth's time And it was clearly Resolved That such Imposition so put cannot be demised or granted to any Subject because it is to augment and decrease or be quite taken away upon occasion And though the King may prohibite any person in some Cases with some Commodities to pass out of the Realm yet this cannot be where the end is Private but where it is publick because Quam plurima nobis et Coronae prejudicialia in partibus exteris prosequi intendit and to restrain in time of Dearth or War for Necessitas est lex temporis It appeared to us also That at Common Law no Custom was paid but only for Woolls Woollfells and Leather which is called in Magna Charta Recta consuetudo all others are called Mala Tolneta which in the Statute de Tallagio non concedendo is called Male. And it hath of long time been used by Parliament to Grant to the Kings at the beginnings of their Reigns certain Subsidies of Tunnage and Poundage for term of Life which began 2 3 H. 5. 31 H. 6. cap. 8. and 12 Ed. 4. cap. 3. which proves the King by his own Power cannot impose it and this may be granted by the King but the other noâ— Vide 31 H. 8. Dyer 43. 1 Ma. D. 92. 1. Eliz. D. 165. 2 and 3 P. and M. D. 128. 12 Eliz. D 296. 23 Eliz. D. 375. 45 Ed. 3. cap. 4. 27 Ass pl. 44. Register 192 c. Vide magna Charta cap. 10. They are called Consuetudines Et per vocabulum artis they are called Cuâ—uma Vide Lestat 51 H. 3. Titl Exchequer in Rastall and 9 Ed. 3. cap. 2. Vide Fortescue de laud. leg Ang. cap. 36. fol. 48. fol. 13. cap. 9. And note for the benefit of the Subject the King may lay Imposition within the Realm â—o repair High-wayes Bridges and Walls for defence But the sum must be proportioned to the benefit And this appears 13 H. 4. 16. See also Charta mercatoria ex Rot. mercator 31 Ed. 1. n. 42. Patents 3 Ed. 1. n. 1. 9. de sacco lanae dim marcae lasta Coriorum 1 Marke c. Fines 3 Ed. 1. n. 24. intus et non in dorso Vide Rot. Parl. an 13 Ed. 3. And 22 Ed. â— n. 8. And 8 H. 6. n. 29. 28 H. 6. n. 35. 9 R. 2. n. 30. 29 Ed. 3. 11. n. ex Rot. Parliam 5 Ed. 3. n. 17 18 19. 22 Ed. 3. n. 31. 5 Ed. 3. n. 163. 5 Ed. 3 n. 191. 38 Ed. 3. n. 26 Rot. Parl. 7 R. 2. n. 35. 36. 9 R. 2. n. 30. 2 R. 2. Parl. apud Glocestriam Act. 25. 1 R.
Kings Bench because no Writ of Error lyes but in Plaint Robert Bankes Case Mich. 6 Jac. Regis Mich. 6 Jac. Rot. 639. Robert Bankes Gent. brought an Action upon the Statute of Winton 13 Ed. 1. against the Inhabitants of the Hundred of Burnham in the County of Bucks and counted that certain misdoers to the Plaintiff unknown at Hitcham the 22d of Nov. 5 Jac. assaulted the Plaintiff and robbed him of 25 l. 3 5. 2 d. ob and that he immediately after the robbery the same 22d of Nov. at Joplow and Maalow the next Towns to Hitcham in the said County made Hâ—e-and Cry c. and after the said Robbery and within 20 dayes before the purchase of the Writ viz. the 19 of Fâ—br Aâ— 5. at Dorney in Com. praed the Plaintiff before Sir William Gâ—rrard Knight then Justice of Peace in the said County and living next the said Hundred being examined upon Oath according to the Statute 27 Elâ—z the Plaintiff upon his Oath said He knew not the Parties who robbed him and since the said Robbery 40 dayes are past and the said Inhabitants of Burnham have not made him any amends nor the Bodies of the Felons or any of them have taken but suffered them to escape to which the Defendants plead Not Guiley and Vâ— fa. was awarded de vicineto c. And the Jury gave a special Verdict and found that the Plaintiff was robbed and made Hue-and-Cry as aforesaid and found over That the Plaintiff was sworn before Sir William Gerrard as aforesaid and said upon his Oath in these English words viz. That he on Thursday the 22 d. of Nov. 1604. riding under Hitcham wood c. was then and there set upoâ— by Horsemen which he knew not and robbed of 25 l. 3 s. 2 d. ob but whether the said Oath so taken be true according to the said Statute 27 Eliz. the Jurors pray the direction of the Court. Mouses Case Mich. 6 Jac. Regis In an Action of Trespass brought by Mouse for a Casket and 113 l. taken and carryed away the Case was the Ferryman of Gravesend took 47 Passengers into his Barge to pass to London and Mouse was one of them the Barge being upon the Water a great Tempest happened so that the Barge and all the Passengers were in danger to be drowned if a Hogshead of Wine and other pouderous things were not cast out And it was Resolved per totam Curiam That in a case of necessity for saving the Lives of the Passengers it was lawful to the Defendant being a Passenger to cast the Plaintiff's Casket out of the Barge with what was in it for quod quis ob tutelam corporis sui fecerit jure id fecissâ— videtur Upon the special matter pleaded and Reply De injuria sua propria absque tali causa the first day of this Term the Issue being tryed and it was proved directly That the Men had been drowned if the things had not been cast out The Plaintiff was Non-sult Resolved also That though when the Ferry-man surcharge the Barge yet to save the Passengers Lives in such a Necessity it is lawful for the Passengers to cast the things out of the Barge yet the Owners shall have their Remedy upon the surchage against the Ferry-man but if there was no surcharge but the danger came by the Act of God then every one must bear his own losse for Interest Râ—ipub quod homines conserventur â— Ed. 4. 23. Bull. c. 12 H. 8. 15. 28 H. 8. Dyer 36. Mich. 5. Jac. Regis Prohibitions del Roy. Noâ—e On Sunday the 10. of Nov. in this Term the King upon Complaint made by Bancroft Arch-Bishop of Canterbury concerning Prohibitions the King was informed That when Question was made of what matters the Ecclesiastical Judges have Cognâ—zance c. in any Case in which there is not express Authority in Law the King himself may decide in his Royal Person the Judges being but his Delegates c. And the Arch-Bishop said this was clear in Divinity To which it was answered by Mee in the presence and with the clear Consent of all the Justices of England and Barons of the Exchequer that the King in his own person cannot adjudge any Case either Criminal as Treason c. or betwixt party and party concerning Inheritance Goods c. But it ought to be determined in some Court of Justice according to the Law and Custome of England and all Judgments are given Ideo consideratum est per Curium And the King hath his Court in the Upper House of Parliament in which he with his Lords is the Supream Judge over all Judges And in this respect the King is called Chief Justice 20 H. 7. 7. a. by â—rudnel and it appears in our Bookes 2 R. 3. 9. 21 H. 7. 8. that that the King may sit in the Star-Chamber but this was onely to consult not in judicio So in the Kings-Bench but the Court gives Judgment And 't is commonly said in our Books the King is alwayes present in Court and therefore he cannot be Non-suit And it appears by the Acts of Parliament 2 Ed. 3. c. 9. 2 Ed. 3. c. 1. That neither by the Great Seal nor by the little Seal Justice shall be delayed ergo The King cannot take any Cause out of any of his Courts and give Judgment upon it but in his own Cause he may stay it as appears 11 H. 4. 8. And the Judges informed the King that no King after the Conquest ever assumed to himself to give Judgment in any Cause whatsoever which concerned the Administration of Justice within the Realm 17 H. 6. 14. 39 Ed. 3. 14. the King cannot Arrest any man 1 H. 7. 4. Hussey chief Justice Reports being Attorney to Ed. 4. That Sir John Markham chief Justice said to Ed. 4. That the King cannot Arrest a man for suspition of Treason or Felony as his other Leiges may And it was greatly marvailed That the Archbishop durst inform the King that such absolute Power as aforesaid belonged to him by the Word of God Vide 4 H. 4. cap. 22. Westm 2. cap. 5. vide le stat de Marlbridge cap. 1. stat de Magn. Chart. cap. 29. 25 Ed. 3. c. 5. 43 Ed. 3. c. 3. 28 Ed. 3. c. 3. 37 Ed. 3. c. 18. vide 17 R. 2. ex Rotulis Parliamenti in Turri act 10. A controversy of Land between Parties was heard by the King and Sentence given which was repealed because it did belong to the Common Law Then the King said That the Law was grounded upon Reason and that He and Others had reason as well as the Judges To which it was answered by Me That true it was God had endued his Majesty with excellent Science but his Majesty was not learned in the Laws of England and Causes which concern the Life or Inheritance or Goods of his Subjects which are not to be decided by natural Reason but artificial Reason and Judgment of Law which
Mulier Vide 29 Ass pl. 14. b. Eliz. Dyer 226. 228. If the issue be Quod vacavit pâ—r resignationem part of which is Spiritual part Temporal this shall be tryed per paiis vide 9 H. 7. But admission and in iâ—ution though it be alledged in a stranger to the Writ yet this shall be tryed by the Ordinary as appears 7 Ed. 6. 78. 6. in Dyer similia 2. To the second answered and resolved That if upon Consultation with men learned in the Law they give Sentence according to Law this is well done and no Prohibition ought to granted but if they draw the interest of any man ad alîud examen there Prohibition lyes And in the Case at the Barr they well resolved the Law for by the said Livery of the Charter the Tythes do not pass as in gross because the intention of Parties was to pass the entire Rectory by the Feoffment and to pass the Tythes and so dismember the Rectory 3. As to the third Resolved That by the Ecclesiastical Law a stranger may come in pro interesse suo and when they have Jurisdiction of the Original cause of a Suite we ought not to question their proceeding unless they proceed inverso ordine and this ought to be redressed by appeal 4. As to the fourth Resolved That such a surmise That he hath but one Witness is not sufficient to have a Prohibition because the Court Ecclesiastical hath jurisdiction of the Principle And if such surmise shall be sufficient all Suits in the Ecclesiastical Court shall be delayed or quite taken away for such surmise may be made in every Case It was Resolved upon Evidence by Coke chief Justice de Banco inter J. S. who informed upon the Statute of Usury and Smith that the Parties to the supposed Usurious Contract shall not be admitted Witnesses because upon the matter they were Testes in propria causa High-Commissioners Trin. 8 Jacobi Regis Upon a Ha. Cor. by Eliz. Lady Throgmorton Prisoner in the Fleet the Return was The Lady Throgmorton was committed by George Bishop of London and other Ecclesiastical Commissioners till further Order should be taken for her enlargement And the Cause of Commitment was That she had done many evil Offices between Sir James Scudamore and her Daughter the Lady Scudamore Sir James his Wife to make separation between them and detained her from her Husband and upon her Departure after Sentence for Contemptuous words against the Court saying She had neither Law nor Justice And it was Resolved 1. That for detaining the Wife and endeavouring to make separation no Suit can be before the High-Commissioners 2. For detaining the Wife there is remedy by the Common Law 3. That for such an Offence they cannot imprison the Wife 4. It doth not appear that the words were spoken in Court Secondly It is no Court of Record because they proceed according to the Civil Law so the Admiralty Courte and none can be committed for misdemeanor in Court unless the Court be of Record 5. It doth not appear by the Return what that Court was which is uncertain and upon this upon good Consideration she was Bayled But Randall and Hickins were this Term committed by the High-Commissioners because they were vehemently suspected for Brownists And they obtained a Hâ—beas Corpus and were remanded for this that the High-Commissioners have Power to commit for Heresy See my Treatise of the High-Commissioners Power The Lord Aburgavennye's Case In the Parliament a Question was moved by the Lord of Northampton Lord Privy-Seal in the Upper-House That one Edward Nevill Father of Edward Nevill Lord of Aburgavenny which now is in the 2 and 3 of Queen Mary was called by Writ to Parliament and died before the Parliament If he was a Baron or no and so ought to be named was the Question And it was Resolved by the Lord Chancellor the two chief Justices chief Baron and divers other Justices there present That the direction and delivery of the Writ did not make a Baron or Noble untill he did come to the Parliament and then sit according to the Commandment of the Writ for untill that the Writ did not take its effect And in the 35 H. 6. and other Books he is called a Peer of Parliament which he cannot be untill he sit in Parliament which cannot be before the Parliament begin And the Command of the King by such his Writ may by his Supersedeas be countermanded or else the said Edward might have excused himself or waved it or submitted to his Fines And when one is called by Writ to Parliament the Order is That he be apparelled in his Parliament Robes and his Writ is openly read in the Upper-House and he brought into his place by Two Lords of Parliament and then he is adjudged in Law Inter pares Regni ut cum olim Senatores censâ— eligebantur sic Barones apud nos habiti fuerint qui per integram Baroniam terras suas tenebant sive 13. feoda militum et tertiâ—m partem unius Feodi militis quolibet Feodo computo ad 20 l. c. So that by this appears That every one who hath an entire Barony may have of right a Writ to be summoned to Parliament and with this agree our Books una voce That none can siâ— in Parliament as Peer of the Realm without matter of Record 35 H. 6. 46. 48 Ed. 3. 30. b. 48 Ass pl. 6. 22 Ass pl 2 4. Register 287. but now none can be summoned to Parliament by Writ without the Kings Warrant under the Privy-Seal at least But if the King create any Baron by Letters Patents under the Great-Seal to him and his Heirs or to him and to his Heirs of his Body or for life c. there he is a Nobleman presently and he ought to have a Writ of Summons to Parliament of Course and shall be tryed by his Peers if c. Richard the Second created John Beauchampe of Holt Baron of Kidderminster by Letters Patents dated 10. Octob. eleventh year of his Reign where all others before him were created by Writ Trin. 8 Jac. Regis Oldfield and Gerlins Case In this Term Thomas Oldfield came out of the Dutchy Court and before he came into Westminster-Hall with a Knife stabbed one Ferraâ— a Justice of Peace of which he dyed And if Oldfield should have his right hand cut off was the question before the two Chief Justices chief Baron Walmesly Warberton Foster and divers other Justices And it was Resolved No for it ought to be in Westminster-Hall Sedentibus Curiis as appears 3 Eliz. Dyer 188. 41 Ed. 3. Title Coron 280. And a President was shewn An. 9 Eliz. in Banke le Roy where one Robert Gerlin smote one in White-hall sitting in the Court of Requests and was Fined and Ransomed But if one smite another before the Justices of Assize there his right hand shall be cut off as appears 22 Ed. 3. fol. 13. 19 Ed. 3. Title Judgment And
understood of Treasons Misprision of Treason Petit Treason and Felony and their Accessaries c. But Premunire is but a contempt and Pardon of all Contempts pardons it Whereupon the Lord Vaux confessed the Indictment Vide Lamb Justice dâ—l Peace 520 Dallisons Report accordingly Vide Stamford c. Trin. 10 Jacob. Regis Countess of Shrewsbury's Case In this Term before a select Councel at York-house the Countess of Shrewsbury Wife of Gilbert Earl of Shrewsbury then Prisoner in the Tower was brought and by the Kings Attorney and Sollicitor was charged with a high Contempt of dangerous consequence declaring That the Lady Arbella being of the Blood-Royal had marryed Seymor the Earl of Hertford's second Son without the King's Consent for which he was committed to the Tower and had escaped and fled beyond the Seas And the Lady Arbella being under restraint escaped also and embarked her self on the Sea but was taken ere she got over of which flight of the Lady Arbella the said Countess well knew as is directly proved by Crompton and not denied by the Lady Arbella And admitting the Lady Arbella had no evil intent against the King yet when she fled and should be inviron'd with Evil Spirits cum perversis perverti possit Now the Charge was in two Parts 1. That the Countess of Shrewsbury being by the King's Command called to the Councel-Table and being required by the Lords to declare her knowledge touching the said Points she answered she would not answer particularly and being again by the King's Commands asked by the Councel at Lambeth she refused for two Causes 1. Because she had made a Vow that she would not declare any thing in particular touching the said Points and she said it was better to obey God than Man 2. She stood upon her Priviledge of Nobility viz. to answer when Judicially called before her Peers such Priviledge having been allowed to William Earl of Pembroke and the Lord Lumly 2. The second Point of the Charge was That when the Answer she had made was put in Writing and read to her yet she refused to subscribe the same Which Denial was urged by the King's Councel as a high contempt c. And the Countess hearing the Charge yet persisted in her obstinate Refusal for the same Reasons the insisted on as before And the Lord Chancellor began and the Archbishop and the other Lords adjudged it a great and high Contempt And that no such allowance was to the Earl of Pembroke or Lord Lumly as was supposed And the Archbishop and Earl of Northampton proved by Scripture that the said Case now was against the Law of God All that the Justices said was That they might well be silent but that silentium in Senatu est vitium and therefore they briefly speak of three things 1. Whâ—ther the Refusals aforesaid were Offences in Law against the King his Crown and Dignity 2. What Proceeding this is and if justifiable by President or Reason 3. What the Offences are and how punishable 1. As to the first It was resolved by the Justices and Master of the Rolls that the denying to be examined was a high Contempt against the King his Crown and Dignity and upon hope of Impunity it will be an encouragement to Offenders as Fleming Chief Justice said to enterprize dangerous Attempts The Master of the Rolls said the Nobility in this Case had no more priviledge to deny to be examined than any other Subject Also if one Noble be sued and a Peer be sued in Star-Chamber or Chancery they must answer upon their Oaths And if produced as a Witness they ought to be sworn And therefore for maintaining of Order the Chief Justice said he would recite some of those Honourable Priviledges which the Law of England attributes to Nobility 1. If a Baron Viscount Earl c. be Plaintiff in any Action and the Defendant will plead that the Plaintiff is not a Baron c. this shall be tryed onely by the Record in Chancery which imports by its self solid truth 2. Their Persons have many Priviledges in Law 1. At a Subjects Suit they shall not be arrested 2. Their Bodies are not subject to Torture in causa criminis â—aesae Majestatis 3. They are not to be sworn in Assizâ—s Juries or Inquests 4. It is Felony in any Servant of the King named in the Checquer Roll to compass or intend to kill any Lord of Parliament or of the King's Councel 5. In the Common-Pleas a Lord shall have Knights returned of his Jury 6. He shall have Day of Grace 7. Shall not be Tryed in case of Treason Felony or Miâ—prison of them but by those that are Nobles and Peers 8. In Tryal of a Peer the Lords of Parliament shall not swear but give their Judgment Super Fidem Ligeantiam Domino Regi debitam And the King honours with Nobility for two Causes 1. Ad consulendum and therefore he gives them a Robe 2. Ad Defendendum Regem Regnum and therefore he gives them a Sword And therefore as they derive their Dignities with those Honourable Priviledges from the King to deny to answer being required by the King is a high Contempt accompanied with great Ingratitude This Denial is contra Ligeantiam suam as appears by the Antient Oath of Allegeance And the Law hath greater account to a Noble-mans Allegeance then one of the Commons because the breach of their Allegeance is more dangerous for Corruptio optimorum est pessima 2. As to the second Point viz. concerning the manner of Proceedings 1. Privative It is not to fine imprison or inflict corporal punishment for that ought to be assessed in some Court Judicially 2. Positive The Fine is ad monendum or at most ad minandum it is ad instruendum non ad destruendum This selected Councel is to express what punishment this Offence justly deserved if judicially proceeded against in the Star-Chamber Therefore this Proceeding is out of the King's Mercy to this Lady that seeing her Offence she might submit to the King without any Judicial Proceedings against her And though the Law puts Limits to the King's Justice it doth not so to his Mercy Et ideo processus iste est regalis plane rege dignus And this manner of Proceeding is fortified by the President of the Earl of Essex against whom such Proceedings were in this very place 42 43 Eliz. As to the last Point It was resolved by all quasi una voce that if a Sentence should be given in the Star Chamber she should be fined 20000 l. and imprisoned during the Kings pleasure Trin. 10 Jacobi Regis Robert Scarlet 's Case Note That at the Sessions of Peace lately holden at Woodbridge in Suffolk the Sheriff returned a Grand Inquest of which one Robert Scarlet desired to be one But the Sheriff knowing the malice of the man refused to return him Yet by Confederacy with the Clark who read the Pannel he was sworn of the Grand Inquest
of the Perjury by all the Lords in the Star-Chamber and it was Resolved by all That it was by the Common-Law punishable before any Statute Hayes Case in Cur-Wardorum By Inquisition in the County of Middlesex Anno 6 Jac. by vertue of a diem clausit extremum after the death of Humphry Willward it was found that the said Humphry died seized of a Messuage and 26 Acres of Land in Stepney and that John Willward was his Heir being 14 years and 9 days old and that the Land was held of the King in capite by Knights Service John Willward died within age and by Inquisition in Middlesex 8 Jun. Anno Jac. by vertue of a Writ of Deveneront after the said John's death it was found that John dyed seized in Ward to the King and that the said Messuage and Lands at the time of the said John's death were holden of the Dean of Pauls as of his Mannor of Shadwel All the mean Rates incurred in John's life-time are paid to the King 1. The Questions are 1. Whether by John's death and finding of the mean Tenure in the Deveneront the fiâ—st Office granted to Points be determined 2. Whether the Tenure found by the first Office may be traversed And as to these Questions it was Resolved by the two Chief Justices and chief Baron That where the said John dyed the Office found by force of the Diem clausit extremum after Humphries death whereby the King was entituled to the Guardianship of John hath taken its effect and is executed and does remain as Evidence for the King after Johns death but yet is not traversable for it is traversable during the time it remains in force onely and the Jurors upon the Deveneront after the death of the said John are at liberty to find the certainty of the Tenure and they are not concluded by the first Inquisition and with this agrees 1 H. 4. 68. And this appears by the diversity between the Writ of Diem clausit extremum and the Deveneront which is but in one Point to wit the Diem clausit extremum is general And the Deveneront is not general but does restrain onely the Lands and Tenements quod deveneront c. And thus it was Resolved nono Jacobi in the Court of Wards in the Case of Dune Lewis Award of Capias Uâ—lagatum by Justices of the Peace In this same Term the Opinion of all the Court of Common-Pleus was That if one be out-lawed before Justices of Assize or Justices of Peace upon an Indictment of Felony that they may award a Capias Utlagatum and so was the Opinion of Pâ—riam Chief Baron and all the Court of Exchequer as to Justices of Peace for they that have power to award process of Outlawry have also power to award a Capias utlagatum See 34 H. 8. c. 14. See Lamb. Justice of Peace fol. 503. contra But see 1 Ed. 6. cap. 1. Justices of Peace in case of Profanation of the Sacrament shall award a Capias Utlagatum throughout all England Hersey's Case Star-Chamber John Hersey Gent exhibited his Bill in the Star-chamber against Anthony Barker Knight Thomas Barker Councellor at Law Robert Wright Doctor of Divinity Ravenscroft Clerk and John Hai is and thereby charged the Defendants with forging the Will of one Margery Pain and the Cause came to Hearing ad requisitionem defendentium and upon hearing the Plaintiffs Councel there appeared no Presumption against any of the Defendants but that the Testament was duly proved in the Ecclesiastical Court and upon an Appeal was also affirmed before Commissioners Delegates and Decreed also in Chancery So that it appeared to the Court that the said Bill was preferred of meer malice to slander the Defendants Now because the Defendants had no Remedy at Law for the said Slander and if it should pass unpunished it may encourage men It was Resolved by the Court That by the course of the Court and according to former Presidents the Court may give Damages to the Defendants and so it was done viz. 200 l. to the Doctor of Divinity 200 Marks to the Knight 40 l. to the Clerk 120 l. to the Woman And it was said that Creare ex ihilo quando bonum est est divinum sed creare aliquid ex nihilo quando est malum est diabolicum et plus Maledicite nocâ—nt quam Benedicite docent Hill 2 Jac. Regis Theodore Tomlinson brought an Action of account for Goods against one Philips in the Common Pleas and thereupon Philips sued Tomlinson in the Admiralty supposing the Goods to have been received in Forraign Parts beyond Sea and Tomlinson being committed for refusing to answer upon his Oath to some Interrogatories brought his Habeas Corpus Upon which it was resolved by the Court of Common plea in thrâ—e Points viz. 1. That the Court of Admiralty hath no Cognizance of things done beyond Sea and this appears plainly by the Statute 13 R. 2. cap. 5. and the 19 H 6. fol. 7. 2. That the Proceedings in the Court of Admiralty are according to the Civil Law and therefore the Court is not of Record and so cannot assess a Fine as the Judges of a Court of Record may 3. It doth appear that the Interrogatories were of such things as were within their Jurisdiction and the Parry ought by Law to answer This Case was intended by my Lord Coke to be inserted into his 7th Report but that the King commanded it should not be Printed but the Judges resolved ut supra Corven's Case Right to Sâ—ats in the Church Corven did Libel against Pym for a Seat in a Church in Dâ—vonshire And Pym by Sergeant Hutton moved for a Prohibition upon this Reason that himself is seized of a House in the said Parish and that he and all whose Estates he hath in the House have had a Seat in an Isle of the Church And it was Resolved by the Court that if a Lord of a Mannor or other Person who hath his House and Land in the Parish time out of mind and had a Seat in an Isle of the same Church so that the Isle is proper to his Family and have maintained it at their Charges that if the Bishop would dispossess him he shall have a Prohibition But for a Seat in the Body of the Church iâ— a Question ariseth it is to be decided by the Ordinary because the Freehold is to the Parson and is common to all the Inhabitants And it is to be presumed that the Ordinary who hath Cure of Soules will take Order in such Cases according to right and conveniency and with this agrees 8 H. 7. 12. And the Chief Justice Dame Wick her Case 9 H. 4. 14. which was The Lady brought a Bill in the Kings-Bench against a Parson Quare Tunicam unam vocatam A Coat Armor and Pennons with her Husband Sir Hugh Wick his Arms and a Sword in a Chappel where he was buried and the Parson claimed them as Oblations And it is there
Law of what nature soever Therefore when one Captain Lee made suit to the King to have an Office to inventory the Goods of those that dyed Testate or Intestate It was Resolved by my Lord Chancellor and my Self That such Grant shall be utterly void being both against the Common-Law and the Statute 21 H. 8. In like manner when another sued to have the Registring of Birth-dayes and the time of death c. So Mich. 19 Jac. To make a New Office in the Kings-Bench onely for making Lattitats was resolved void So Littletons Suit to name an Officer to be a Gen. Reg. c. But the Suit was rejected notwithstanding the fair Pretences of it by the two Chief Justices and others See Hill 12 Jac. Regis 2. Secondly It was Resolved That it was inconvenient for divers Causes 1. For a private man to have private ends 2. The numbring of Strangers by a private man would inâ—er a Terrour and other Kings and Princes will take offence at it 3. It is to be considered what breach it will be to former Treaties 3. As to the third It may be performed without any Inconvenience and so it was divided by the Lord Burleigh and other Lords of the Councel 37 Eliz. To write Letters to the Mayors Bayliffs c. of every City Borough c. where any strangers are resident to certifie how many and of what quality c. which they are to know in respect of their Inhabitants c. and this may be done without any Writing which being shewn to the Lords was by them well approved and the Suits utterly disallowed Decemb. 3. Anno 3 H. 8. Commission was granted to divers to certifie the number of Strangers Artificers c. within London and Suburbs according to the Statutes See Candish Case 29 Eliz. 13 Eliz. A Grant of an Office to Thomas Knivâ—t to examine his Majesties Auditors and Clerks of the Pipe c. Resolved by the Court to be against Law for it belongs to the Barons who are Judges 25 Eliz. A Grant of an Office to Thomas Lichfield to examine all Deceits c. of the Queens Officers for 8 years Resolved to be void Sub-poena's in Chancery belonged antiently to the Six Clerks Queen Elizabeth granted the same to a particular man Affidavits Filing and keeping belonged to the Register King James granted them to a particular man So the erecting and putting down Innes did belong to the Justice of Peace the same King granted it to a particular man So likewise the taking of Depositions c. The Office of Alneger granted by the King to Simon Darlington and the Fees limited The Drawing Ingrossing and Writing all Licences and Pardons granted to Edward Bacon with former Fees and a Restraint to all others The Spa Office granted to Thomas George and others during life with the Fee of 2 s. and a restraint to others The Office of making and Registring all manner of Assurances and Policies c. granted to Richard Gandler Gent. with such Fees as the Lord Mayor and others should rate and a Restraint to others c. The Office of writing Tallies and Counter-Tallies granted to Sir Vincent Skinner The Office of ingrossing Patents to the Great Seal with encrease of Fees granted to Sir Richard Young and Mr. Pye Sed de hoc quaere Sir Stephen Proctor's Case In an Information in the Star-Chamber against Stephen Proctor Berkenhead and others for Scandall and Conspiracy against the Earl of Northampton and the Lord Wooton At the Hearing of the Case were present eight Lords viz. the Chief Baron the two Chief Justices two Bishops one Baron Chancellor of the Exchequer and the Lord Chancellor And the three Chief Justices and the Temporal Baron condemned Sir Stephen Proctor and fined and imprisoned him But the Lord Chancellor the two Bishops and the Chancellor of the Exchequer acquiâ—ted him And the Question was if Sir Stephen Proctor shall be condemned or acquitted And the matter was referred to the two Chief Justices calling to their assistance the Kings Learned Councel And first they Resolved That this Question must be determined by the Presidents of the Court of Star-Chamber that Court being against the Rule and Order of all Courts For in all other Courts if the Justices are equally divided no Judgment can be given So also is it in the Parliament and therefore this course must be warranted by the Custom of the Court. And as to that two Presidents onely were produced viz. One in Hillary Term 39 Eliz. Gibson Plaintiff and Griffith and others Defendants for a Ryot where at Hearing 8 being present 4 gave Judgment that the Defendants were guilty and 4 â— contra and no Sentence of Condemnation was ever entred because the Lord Chancellor was one of the 4 that acquitted them The other was in Hillary 45 Eliz. in an Information against Katherine and others for Forging a Will c. where 4 finding the Defendants guilty of Forgery and 4 onely of Misdemeanour whereof the Lord Chancellor was one Sentence was entred according to the Chancellors Voyce and no other President could be found in this Case as I reported this Term. Concerning Benevolence Note The Exaction under the good Name of Benevolence began thus When King Edw. the 4th had a Subsidy granted him by Parl. in the 12th year of his Reign because he could have no more by Parl and with a Parl. he could not have a Subsidy he invented this Devise wherein observe 3 Things 1. The Cause 2. The Invention 3. The Success 1. The Duke of Burgundy who marryed Edw. the 4th Sister sollicited the King to joyn in War with him against the French King whereto he easily consented to be revenged of him for aiding the Earl of Warwick c. And this was the cause 2. The Invention was The King called before him several times many of his wealthiest Subjects to declare to them his Necessity and Purpose to levy War and demanded of each of them a Sum of Money which by the King 's extraordinary courtesie to them they very freely yielded to Amongst the rest there was a Rich Widow of whom the King merily asked what she would give him for maintenance of his Wars By my Faith quoth she for your lovely Countenance sake you shall have 20 l. which being more than the King expected he thanked her and vouchsafed to kiss her Upon which she presently swore he should have 20 l. more 3. The Success was That where the King called this a Benevolence yet many of the People did much grudge at it and called it a Malevolince Primo Ed. 5. The Duke of Buckingham in Guild-Hall London among other Things inveighed in his Speech against this Taxation and 1 R. 3. c. 2 a Statute is made against it 6 H. 7. The King declaring in Parl that he had just cause of War against the French King desired a Benevolence according to the Example of Edw. 4. and publish'd That he would by their open Hands measure their
The words whereof are Saving c. to the King c. all his Right c. of primer seizin and relief c. for Tenure in Socage or of the nature of Tenure in Socage in chief as heretofore hath bin used But there was no Custom before the Act for the King to have primer seizin c. Another President was in Pasch 37 Eliz. in the Book of Orders fol. 444. where the Case was That William Allet was seized of certain Lands in Pitsey called Lundsey holden of the Queen in Socage Tenure in chief and by Deed covenanted to stand seized to the use of his wife for life and afterwards to the use of Richard his younger Son in Fee and dyed and all was found by Office and it was Resolved ut supra But the Doubt oâ— the Case at Bar was because Henry the Feoffor had a Reversion in Fee which descended to the said William his eldest Son Trin. 7 Jacobi Regis The Case of the Admiralty A Bâ—ll was preferred in the Star-Chamber against Sir Richard Hawkins Vice-Admiral of the County of Devon and was charged that one William Hull and others were notorious Pyrates upon the High Seas and shewed in certain what Pyracy they had committed That the said Sir Richard Hawkins knowing the same did receive them and abet comfort them and for Bribes suffered them to be discharged And what Offence that was the Court referred to the consideration of the two Chief Justices and Chief Baron who heard Councel of both sides divers days at Sergeants Inne And it was Resolved by them 1. That the Admirals by the Common-Law ought not to meddle with any thing done within the Realm but onely with things done upon the Sea and that appeareth fully by the 13 R. 2. cap. 5. and therewith agrees 2 H. 4. c. 11. and 15 H. 2. c. 3. So also 2 H. 5. c. 6. 5 Eliz. c. 5. and this agrees with Stamf. fol. 51. 8 Ed. 2. Coron 399. See Plo. Com. 37 b. 2 R. 3. 12. 30 H. 6. 6. by Prisoit 2. It was Resolved That the Statutes are to be intended of a Power to hold Plea not of a Power to award Execution for notwithstanding the said Statutes the Judge of the Admiralty may do Execution within the Body of the County And therefore 19 H. 6. 7. the Case was W. T. at Southwark affirmed a Plaint of Trespass in the Admiralty against J. B. of a Trespass done upon the High-Sea Whereupon J. B. was cited to appear at the common day next ensuing at which day the said J. B. made default And according to the usage of the Court the said J. B. was amerced to 20 Marks Whereupon Command was made to P. as Minister of the said Court to take the Goods of the said J. B. to make agreement with the aforesaid W. T. by force of which he for the said 20 Marks took 5 Cowes and 100 Sheep in Execution for the said Money in the County of Ieicester And there it is holden by Newton and the whole Court That the Statutes restrain the power of the Court of Admiralty to hold Plea of a thing done within the body of the County but they do not restrain the Execution of the same Court to be served upon the Lands In which Case these Points were Resolved 1. Though the Court of Admiralty is not a Court of Record see Brooks Error 77. acc yet by Custom of the Court they may amerce the Defendant for his default by their discretion 2. That they may make Execution for the same of the Goods of the Defendant in corpore Comitatus and if he have not Goods may arrest his Body But the great question between them was If a man commit Pyracy upon the Sea and one knowing thereof receive and comfort the Defendant in the Body of the County if the Admiral and other the Commissioners by the Act 28 H. 8. cap. 16. may proceed by Indictment and Conviction against the Receiver and Abetter the Offence of the Accessary having his beginning within the Body of the County And it was Resolved by them That such a Receiver and an Abetter by the Common-Law could not be indicted and convicted because the Common-Law cannot take Cognizance of the Original Offence being done out of the Jurisdiction of the Common-Law and where it cannot punish the Principal it cannot punish the Accessary And therefore Coke Chief Justice reported to them a Case which was in Suffolk 28 Eliz. where Butler and others upon the Sea next to the Town of Iaystoff robbed divers of the Queens Subjects of their Goods which they brought into Norfolk and there were apprehended and brought before Me then a Justice of Peace in the same County and upon Examination they confessed a cruel and barbarous Pyracy and that the Goods then in their Custody were part of the Goods which they had so robbed And I was of Opinion that in that Case it could not be Felony punishable by the Common-Law because the Original Act was not offence whereof the Common-Law taketh knowledge and then the bringing them into the County could not make the same Felony punishable by our Law Yet I committed them to the Gaol untill the coming of the Justices of the Assizes And at the next Assizes the Opinion of Wray Chief Justice and Perian Justices of Assize was agreeing with Me ut supra and thereupon they were committed to Sir Robert Southwel then Vice-Admiral for those Countieâ— and this in effect agrees with Lacies Case which see in my Reports cited in Bingham's Case 2 Rep. 93. and in Constables Case C. 5. Rep. 107. See Pyracy was Fâ—lony 40 Ass 25. by Schard where a Captain of a Ship with some English-men robb'd the Kings Subjects upon the High Seas and the saith 't was Felony in the Norman Captain and Treason in the English-men which is to be understood of Petit-Treason and therefore in that Case the Pyrates being taken the Norman Captain was hang'd and the English drawn c. hang'd as appears by the same Book See Stamford 10. Trin. 7 Jac. Regis In the Common-Pleas Pettus and Godsalve's Case In a Fine levyed Trinity Term Anno quinto of this King between John Pettus Esq Plaintiff and Richard Godsalve and others Deforceants of the Mannor of Castre c. in Norfolk where in the â—hird Proclamation upon the Foot of the Fine the said Proclamation is said to be made in the sixth year of the King that now is which ought to have been Anno quinto And the fourth Proclamation is altogether left out because upon view of the Proclamations upon Dorsis upon Record not Finis ejusdem Termini per Justiciarios remaining with the Chirographer c. it appeareth the said Proclamations were duly made therefore it was adjudged that the Errours aforesaid should be amended and made to agree as well with the Prâ—clamation upon Record of the Fine and Entry of the Book as with the other Proclamations in Dorsis c. And