AN ARGVMENT DELIVERED BY PATRICKE DARCY ESQVIRE By the expresse order of the House of Commons in the Parliament of IRELAND 9. Iunii 1641. Printed at Waterford by Thomas Bourke Printer to the Confederate Catholicks of Ireland 1643. 5. Iunii 1641. By the Commons House of IRELAND in Parliament assembled FOrasmuch as M. PATRICKE DARCY by a former order of this House was appointed Prolocutor at the Conference with the Lords touching the Questions propounded to the Iudges and their pretended answers to the same It is hereby ordered and the said M. DARCY is required to declare and set forth at the said Conference the manifold grievances and other causes and grounds that moved this House to present the said Questions to the Lords House to be propounded as aforesaid and to give particular reasons for every of the said Questions Copia vera Extract per Phil. Fern Cleric Parl. Com. AN ARGVMENT DELIVERED BY PATRICKE DARCY ESQVIRE By the expresse orders of the Commons-House of the Parliament of Ireland at a conference with a Comittee of the Lords House in the dyning roome of the Castle of Dublin 9. Die Iunij 1641. upon certaine Questions propounded to the Iudges of Ireland in full Parliament and upon the answers of the said Iudges to the said Questions And in the conclusion a declaration of the Commons House upon the said Questions THE QVESTIONS Questions VVherein the House of Commons humbly desired that the House of the Lords would be pleased to require the Iudges to deliuer their resolutions IN asmuch as the Subjects of this kingdome are free loyall and dutifull Subjects to his most Excellent Majesty their naturall Liege Lord King And to be governed only by the Common Lawes of England Statutes of force in this kingdome in the same manner forme as his Majesties Subjects of the Kingdome of England are and ought to be governed by the said Common Lawes and Statutes of force in that kingdome which of right the Subjects of this kingdome doe challenge and make their protestation to be their birth-right and best inheritance yet in asmuch as the unlawfull actions and proceedings of some of his Majesties Subjects Ministers of Iustice of late yeares introduced and practised in this kingdome did tend to the infringing and violation of the lawes liberties and freedome of the said Subjects of this kingdome contrary to his Majesties Royall and pious intentions Therfore the Knights Citizens and Burgesses in Parliament assembled not for any doubt or ambiguity which may be conceived or thought of for or concerning the premisses nor of the ensueing questions but for manifestation and declaration of a cleere truth and of the said Lawes and Statutes already planted and for many ages past setled in this kingdome The said Knights Citizens and Burgesses doe therefore pray the House of the Lords may bee pleased to command the Iudges of this kingdom forthwith to declare in writing their resolutions of and unto the ensuing Questions and subscribe to the same 1. Whether the Subjects of this kingdome be a free people and to be governed only by the Common Lawes of England and Statutes of force in this kingdome 2. Whether the Iudges of this Land doe take the oath of Iudges and if so whether under pretext of any Act of State Proclamation Writ Letter or Direction under the great or privie Seale or privie Signet or Letter or other Commandment from the Lord Lieutenant Lord Deputy Iustice Iustices or other Chiefe Governor or Governors of this kingdome they may hinder stay or delay the suite of any Subject or his Iudgment or execution thereupon if so in what Case and whether if they doe hinder stay or delay such Suite Iudgement or Execution thereupon what punishment doe they incurre for their deviation and transgression therein 3. Whether the Kings Majesties privie Councell either with the Chiefe Governor or Governors of this kingdome or without him or them be a place of Iudicature by the Common Lawes and wherein Causes betweene partie and partie for debts trespasses accompts possession or title of land or any of them may be heard and determined and of what Civill Causes they have Iurisdiction and by what law and of what force is their order or decree in such Cases or any of them 4. The like of the chiefe Governors alone 5. Whether grants of Monopolies be warranted by the Law and of what and in what cases and how and where and by whom are the pretended transgressors against such grants punishable and whether by fine mutillation of members imprisonment losse and forfeiture of goods or otherwise and which of them 6. In what Cases the Lord Lieutenant Lord Deputy or other Chiefe Governor or Governors of this kingdome and Councell may punish by fine imprisonment mutillation of members pillorie or otherwise and whether they may sentence any to such the same or the like punishment for infringing the Comands of or concerning any Proclamations or Monopolies and what punishment doe they incurre that vote for the same 7. Of what force is an Act of State or proclamation in this kingdome to bind the libertie goods possession or inheritance of the Natives thereof whether they or any of them can alter the Cōmon Law or the infringers of them loose their goods chattells or leases or forfeite the same by infringing any such Act of State Proclamation or both and what punishment doe the sworne Iudges of the Law that are Privy Councellors incurre that vote for such Acts and execution thereof 8. Are the Subjects of this kingdome subject to the Marshall law and whether any man in time of peace no enemy being in the field with Banners displaied can be sentenced to death if so by whom and in what Cases if not what punishment doe they incurre that in time of peace execute Marshall law 9. Whether voluntary oathes taken freely before Arbitrators for affirmance or disaffirmance of any thing or the true performance of any thing be punishable in the Castle Chamber or in any other Court and why and wherefore 10. Why and by what law or by what rule of policie is it that none is admitted to reducement of fines and other penaltie in the Castle Chamber or Councell-Table untill he confesse the offence for which he is censured when as Revera he might be innocent thereof though suborned prooffes or circumstance might induce a censure 11. Whether the Iudges of the Kings Bench or any other Iudges of Gaole delivery or of any other Court and by what law doe or can deny the copies of Indictments of Felony or Treason to the parties accused contrary to the lawes 12. What power hath the Barons of the Court of Exchequer to raise the respite of homage arbitrarily to what rate they please to what value they may raise it by what law they may distinguish betweene the respite of homage upon the diversitie of the true value of the fees when as Escuadge is the same for great and small fees
from her And yet the constant practise is otherwise in England and other instances of that kind might be made so that the words onely must receive a benigne exposition before the first question can receive a generall answer in the affirmative Secondly many causes of great weight and consequence in this kingdome are to bee decreed and ordered by equitie in the proper Courts of equitie and in course of State at the Councell-board and by particular customes and contrary to law for which the Common-law and statutes of force in this kingdome give no remedie Thirdly there are severall other lawes of force in England and Ireland so farre as they have been received which though some would have to be part of the Common-law of England yet we find them particularly distinguished from it in our Printed Bookes in Parliament Rolles in England as Lex est consuetudo Parliamenti jura belli Ecclesiasticall or Canon law in certaine cases Civill law in some cases not onely in Ecclesiasticall Courts but in the Courts of Constable and Marshall and of the Admiralty and upon particular occasions in the other Courts lex Mercatoria c. 2. To the second They say that the Iudges of this kingdome doe take the Oath of Iudges which Oath is specified amongst the statutes in 18. Edw. 3. and is after explaned by the statute of 20. Edw. 3. and that they may not stay hinder or delay the suite of any subject or his judgement or execution thereupon otherwise then according to the law and course of the Court where they sit under pretence of any act of state proclamation writ letter or direction under the great or privy Seale or privie Signet or Letter or other Commandement from the Lord Lieutenant Lord Deputy Iustice Iustices or other chiefe Governor of this kingdome most of which doth appeare by their Oath expressed in the said statutes and the said statute of 2â— Edw. 3. cap. 8. and the statute of 28. Edw. 3. cap. 2. as to Barons of the Exchequer And that as they know no punishment due to Iudges for their deviations transgressions without other aggravation So they know no punishment layd downe by any law against them for their deviations and transgressions in hindering staying or delaying of Iustice contrary to their said Oath other then what is declared in their said Oath and the statute of 20. Edw. 3. 3. To the third they say that it is part of their said Oath as Iudges that they shall not counsell or assent to any thing that may turne to the damage or disherison of our Soveraigne Lord the Kings most Excellent Majestie by any manner of way or colour And that they shall give no advice or counsell to any man great or small in no cases wherein the King is a party And they shall doe and procure the profit of the King and his Crowne in all things where they may reasonably doe the same And that in the explanation of their said Oathes by the statute of 20. Edw. 3 cap. 1. It is declared that they shall give no counsell to great men nor small in case where the King is party or which doth or may touch the King in any point And as your Lordships have beene honorably pleased by an order of this honorable house bearing date the first of March Anno Dom. 1641. Annoque Regni Caroli decimo sexto to give way that they should not be compelled to answer any part of those questions which did concerne his Majesties prerogatives or were against their oathes so they humbly represent unto your Lordships that they conceive that the answering of the particulars of this question doth concerne both for that the Kings privie Counsell as the question tearmes it or the Councell-board is a Court of his Majesties high prerogative where all proceedings are before him and his Counsell or before his Governor who doth immediately to many purposes represent his Majesties person and the Counsell And where the great affaires of state concerning his Majesties honor government profit and of great persons and causes concerning the Common-wealth which may not conveniently be remedied by the ordinary rules of Common-law and many other causes have beene treated of and managed And as his Majesty is the fountayne of all Iustice with in his kingdomes and may grant Cognizance of pleas unto his subjects and Corporations and may by his Commission authorize whom he shall thinke fit to execute many branches of his authoritie so they humbly conceive it doth not stand with their Oathes or duties of their places who are but Iudges of the ordinary Courts of Iustice before his Majesties pleasure signified in that behalfe to search into the Commissions or instructions of the chiefe Governor and Counsell or to give any opinion concerning the limits jurisdiction orders decrees proceedings or members of that high Court and that the King hath a prerogative for the hearing some of the matters in this question specified before his chiefe Governor We beseech your Lordships to cast your eyes on the statute of 28. H. 6. cap. 2. in this kingdome where after mâ—â—ters are directed to be sent to the ordinary Courts yet the Kings prerogative is expressely saved notwithstanding all which his gracious Majesty for whom it is most proper hath of late beene pleased to limit the proceedings of that Board by his instructions in print 4. To the fourth they answer as to the Third 5. To the fift they say that generally all grants of Monopolies whereby trading manufacture or commerce is restrayned the profit which should goe to many hindred brought into a few hands are against law the liberty of the subject and the good of the Common-wealth though they carrie never so faire a pretence of reforming abuses and that the pretended transgressors against such grants are not at all punishable by any rule of law that they know of And yet they say that they conceive that his Majestie that is the head and father of the Common-wealth may restrayne the use and importation and exportation of certaine commodities or confine the same into a few hands for a time where there may be likelyhood of his Majesties profit which is the profit of the Common-wealth and no apparent prejudice to the Common-wealth doth appeare and that when time shall discover such prejudice then such restraints ought to cease So if a man by his owne invention at home or travell observation or charge abroade doth introduce a new profitable and usefull trade or profession into the Common-wealth in such cases his Majesty may lawfully grant licence the only making of such commoditie or teaching or using of such trade for a certayne time and the transgressors against such warrantable grants may be punished by payment of damages unto the Patentee in an ordinary course of Iustice or otherwise as the nature of the offence and matter doth deserve and as the consequence and importance of the matter may be to the King State or
The answer of the Iudges to the first part is that they confesse they take the Oath of Iudges which is specified amongst the statutes in 1â— Edw. 3. and 20. Edward 3 as I said before and that they may not stay hinder or delay the suite of any subject or his judgement or execution there upon otherwise then according to the law and course of the Court where they sit under pretence of any act of state proclamation writ letter or direction under the great Seale or privie Seale or privie Signet or Letter or other Commandement from the Lord Lieutenant Lord Deputy Iustice Iustices or other chiefe Governor of this kingdome most of which doth appeare by their Oath expressed expressed in the said statutes and the statute of 2. Edw. 3. c. 8. and the statute of 20. Edw. 3. as to the Barons of the Exchequer and as they know no punishments due to the Iudges for their deviations and transgressions without other aggravation so they know no punishment layd downe by any law against them for their deviations and transgressions in hindering staying or delaying of Iustice contrary to their said Oath other then what is declared in their said Oath and the statute of 20. Edw. 3. I conceive the answer is not a full and perfect answer to the Question For where the Question is whether the Iudges under pretext of any act of state proclamation writ Letter or direction under the great or privie Seale or privie Signet or Letter or other Commandement from the Lord Lieutenant Lord Deputie Iustice or Iustices or other chiefe Governor or Governors of this kingdome they may hinder stay or delay the suite of any subject or his judgement or execution thereupon if so in what cases and whether if they doe hinder stay or delay such suite judgement or execution thereupon what punishment doe they incurre for their deviations and transgressions therein To this they answer that they may not stay hinder or delay the suite of any subject or his judgement or execution therupon otherwise then according to the law course of the Court where they sit under pretence of any act of state proclamation writ letter or direction under the great or privie Seale or privie signet or letter or other commandement from the Lord Lieutenant Lord Deputy Iustice or Iustices or other chiefe Governor or Governors of this kingdome whereas they ought to have expressed the particular of this exception for by that clause it is supposed or may be strongly implyed that in some cases they may hinder stay or delay the suite of any subject or his judgement or execution therupon under pretext of any act of state proclamation letter or direction under the great or privie Seale or privie signet or other Commandement from the Lord Lieutenant Lord Deputy Iustice Iustices or other chiefe governor or governors of this kingdome which they ought to have expressely layd downe the question being if they may stay hinder or delay the suite of any subject upon any such pretext then to set forth in what Cases which ought to be particularly answered unto In the next place the Question is if they doe stay hinder or delay such suite judgement or execution therupon then to set forth what punishment they doe incurre for their deviation or transgression therein Vnto this they answer they know no punishment due to the Iudges for their deviation and transgressions without other aggravation This I conceive is an implication that there is a punishment where there is matter of aggravation and therefore it ought to be expressed what matter of aggravation they intend the same to be They further say they know no punishment layd downe by any law against them for their deviations or transgressions in hindering staying or delaying of Iustice contrary to their Oath other then what is declared in their said Oath and the statute of â—0 Edw. 3. This I conceive not to bee a full answer in respect the punishment layd downe in that Oath is in a generality viz. that the Iudges so offending contrary to their Oath are to be at the Kings will of body lands and goods which they should declare and expresse how farre that punishment extendeth in their bodies lands and goods Whether imprisonment of their bodies or in their lives and whether in forfeiture of their lands goods or how else The breach of an Oath is a very high offence and the higher it is that the matter it doth concerne is the greater and therefore it is much secundum subjectam materiam It is to be considered to whom the oath of a Iudge is made and what matter it doth concerne To the first the Oath is made to GOD the King and to the Common-wealth For the matter it is concerning the true and equall administration and distribution of Iustice to the people If the Iudge doe offend contrary to his Oath he commits breach of the trust reposed in him by the King besides the violation of his Oath Looke upon trust betweene Common persons A man makes a Lease for yeares the Lessee makes a scoffment this is a forfeyture of his estate by the Common-law by reason of the breach of trust Lessee for life in an action brought against him prayes in ayde of a stranger this is a forfeyture of his estate A quid Iuris clamat brought against Lessee for life he claymes a fee which is found against him this is a forfeyture of his estate So much for breach of trust To come unto a false verdict given by a Iurie which is a breach of their Oath they being sworne ad veritatem dicendam For this false verdict an attaynt lyeth at Common law against the petit Iury The judgement at the Common-law in an attaynt importeth eight grievous punishments 1. Quod amittat liberam legem in perpetuum 2. quod forisfaciat omnia bona Catalla sua 3. quod terrae tenementa in manus Domini Regis capiantur 4. quod uxores liberi extradomus suas eijoiantur 5. quod domus suae prostrentur 6. quod arbores suae extirpentur 7. quod prata sua arentur 8 quod corpora sua Carceri mancipentur So odious is perjurie in the eye of the Common-law It followeth therefore that the breach of the Oath of a Iudge materia considerata in regard it tends to the subversion of Iustice is an offence of an higher nature deserving a farre greater punishment in his body lands and goods as I conceive This question is very short and as plaine it is no more then whether the Councell-table be a Iudicatorie in Civill causes betweene subject and subject for lands goods or Chattels and by what law The answer is wholly ad aliud But it is answered fully by the great Charter capit 11. 9. Henr. 3. Communia placita non sequantur Curiam nostram Common-pleas which are the pleas in question shall not follow the Kings Court againe cap. 29.
with other proofes is not materiall for other proofe will doe the deede without this bad concurrence and so will a violent presumption as if two goe safe into a Roome one of them is found stabbed to death the other may suffer this presumption is inevitable the law of God the lawes and statutes of the Realme protect and preserve the life of man it were therefore hard to take away by circumstance such a reall and noble essence This concurrence marrs the evidence it helps it not If one gives false testimonie once by the ancient law his testimonie shall never be received againe Leges Canuti Regis Lamb Saxons lawss fol. 113. p. 34. much lesse where they are notorious ill doers this and the reason and ground of this question already opened will I hope give your Lordships satisfaction For this question I will state it without any tenure reserved by expresse words as the question is put whether the reservation of rent or Annuall summe will rayse this to bee a tenure in capite I conceive it will not for sundrie reasons First from the beginning there have beene Fayres and Markets and no president booke-case or Record to warrant the new opinion in this Case before Trinitie terme 1639. in the Court of wards Secondly the practise of that Court was alwayes before to the contrary in the same and the like Cases Thirdly it is a thing as the question is of new creation and never in esse before for this see the Bookes of 3. Henr. 7. 4. 12. Henr. 7. 19. 15. E. 4. 14. 46. E. 3. 12. 21. Henr. 6. 11. Stamford prerogative 8. Therefore there is no necessitie of a tenure thereof upon the Conquest it was necessarie that all lands should be held by some tenure for the defence of the kingdome 1. The statute of Quia emptores terrarum c. praerogativa Regis speake of Feoffator Feoffatores c. therefore a tenure I meane this tacite or implyed tenure was originally onely intended of Land 2. The King may reserve a tenure in all things not mainerable by expresse reservation or Covenant 44. Edw. 3. 45. Fitz. natur brevium 263. c. but that is not our Case 3. Heere it is left to construction of Law which is aequissimus Iudex and lookes upon the nature of things and therefore in Cases that include Land or where land may come in liew therof a tenure may be by implication as a mesnalty a reversion expectant upon an intayle the like 10. Edw. 44. a. 42. Edw 3. 7. Fitz. Grants 102. and divers other bookes 4. No tenure can be implyed by reason of a rent if the rent be not distreynable by some possibility of its owne nature upon the thing granted as appeares by 5. Henr. 7. 36. 33. Henr. 6. 35. 40. Ed. 3. 44. 1. Henr. 4. 1. 2. 3. Fitz-cessabit 17. 5. The distresse upon other land is the Kings meere prerogative like the case of Buts Co. 6. 25. a distresse may be for rent in other land by Covenant 6. This is no rent because it issueth not out of land 7. If the Patentee here had no land there can be no distresse in this case 8. This is a meere priviledge it issueth out of no lands and participates nothing of the nature of land all the cases of tenures in our bookes are eyther of land or things arising out of land or some way or other of the nature of land or that may result into land or that land by some possibilitie may result into it Therefore I humbly conceive that new opinion is not warranted by law or president These My Lords are in part the things which satisfied the house of Commons in all the matters aforesaid they are now left to the judgement and Iustice of your Lordships QVESTIONS PROPOVNDED IN PARLIAMENT AND Declarations of the Law thereupon in Parliament WHither the Subjects of this kingdome bee a free people and to be governed onely by the Common-lawes of England and statutes of force in this kingdome The subjects of this his Majesties kingdome of Ireland are a free people and to be governed onely according to the Common-law of England and Statutes made established by Parliament in this kingdome of Ireland and according to the lawfull customes used in the same VVhither the Iudges of this land doe take the Oath of Iudges and if so whether under pretext of any Act of State Proclamation writ letter or direction under the great or privie Seale or privie Signet or Letter or other Commandment from the Lord Lieutnant Lord Deputy Iustice or other chiefe Governor or Governors of this kingdome they may hinder stay or delay the suite of any subject or his Iudgement or execution thereupon if so in what cases and whether if they doe hinder stay or delay such suite judgement or execution thereupon what punishment doe they incurre for their deviation and transgression therein That Iudges in Ireland ought to take the Oath of the Iustices or Iudges declared and established in severall Parliaments of force in this kingdome and the said Iudges or any of them by colour or under pretext of any act of state or proclamation or under colour or pretext of any writ Letter or direction under the great Seale privie Seale or privie Signet from the Kings most Excellent Majestie or by colour or pretext of any Letter or Commandement from the chiefe Governor or Governors of this kingdome ought not to hinder or delay the suite of any subject or his judgement or execution thereupon and if any letters writs or commaunds come from his Majestie or any other or for any other cause to the Iustices or to other deputed to doe the law and right according to the usage of the Realme in disturbance of the law or of the execution of the same or of right to the parties the Iustices and other aforesaid ought to proceed and hold their Courts and processes where the pleas and matters bee depending before them as if no such letters writs or commaundments were come to them and in case any Iudge or Iudges Iustice or Iustices bee found in default therein he or they so found in default ought to incurre and undergoe due punishment according the law and the former declarations and provisions in Parliament in the case made and of force in this kingdome or as shall be ordered adjudged or declared in Parliament And the Barons of the Exchequer Iustices of assize and Goale-delivery if they be found in default as aforesaid it is hereby declared that they ought to undergoe the punishment aforesaid VVhether the Kings Majesties privie Councell eyther with the chiefe Governor or Governors of the kingdome or without him or them be a place of Iudicature by the Common-lawes and wherein causes betweene party and party for debts trespasses accompts possession or title of Lands or any of them and which of them may bee heard and determined and
to this positive question the answer is too generall viz the Parliament is concerned therein and so are two other Courts of Iustice and likewise the Kings prerogative is interested therein wherefore they cannot answer till the matter come in debate and be argued before them The consideration of the Court of Parliament will much conduce to the clearing of this question Co. preface to the fourth Reporte the exposition of Lawes ordinarily belongeth to the Iudges but in maximis difficillimisque causis ad supremum Parliament ' Iudicium Cooke preface to the ninth Report describes that supreame Court in this manner si vetustatem spectes est antiquissima si dignitatem est honoratissima si jurisdictionem est capacissima of this enough the learning is too manifest that it is the Supreame Court nay the primitive of all other Courts to that Court belongs the making altering or regulating of lawes and the correction of all Courts and ministers Looke upon the members of it first the King is the head who is never so great nor so strong as in Parliament where he sits insconced with the hearts of his people the second are all the Lords Spirituall Temporall the third the knights Citizens Burgesses these three doe represent the whole Common-wealth Looke upon the causes for which they are called Circa ardua urgentia negotia Regni looke upon the priviledges of it if any member or members servant thereof bee questioned or any thing ordered against him in any other Court sitting the Parliament or within forty dayes before or after all the proceedings are voyde by the lawes and statutes of this Realme The not clearing of this question is against the Kings prerogative which is never in greater splendor or Majestie then in Parliament and against the whole Common-wealth therein concerned as aforesaid the King hath foure Councels the first is commune concilium which is this Councell secondly Magnum Concilium which is the Councell of his Lords thirdly the privie Councell for matters of estate fourthly the Iudges of his law Co. institut 110. a. Then by what law or use can the inferiour of these foure Councels question the first Supreame and mother Councell I know not the state of the question considered which is of Burroughs who anciently and recently sent to the Parliament by the same law that one member may bee questioned forty eight members may bee questioned as was done in our case in one day six such dayes may take away the whole house of Commons and consequently Parliaments especially as this case was for upon the returne of the first summons foure and twenty Corporations were seized the learning therefore is new that it should rest in the discretion of the Sheriffes who might make unfaithfull returnes and of three Barons in the Exchequer who have no infallibilitie to overthrow Parliaments the best Constitutions in the world Search hath beene made in the two bookes of Entries in old Natura brevium and in all the yeare bookes that are printed there is not one president that in any time ever so badde such à Quo-warranto was brought in Co. entries 527. a à Quo-warranto was brought against Christopher Helden and others to shew cause why they claymed such a Borrough c. which is nothing to our purpose the quo-warrantoes in the question and those which were in the Exchequer did admit them Borroughs and yet required them to shew cause why they sent Burgesses to the Parliament this is oppositum in objecto to admit them Burgesses and to question their power to send Burgesses which were formerly both anciently and recently so admitted in Parliament Master Littleton the first booke we reade cleares this question sectione 164. There are ancient Townes called Borroughs the most ancient Townes of England all Cities were Borroughs in the beginning and from them come Burgesses to the Parliament so that in effect if an ancient Borrough ergo they sent Burgesses to the Parliament all these ancient Townes in England did remayne of Record in the Exchequer 40. ass plac 27. In Ireland they doe remayne of Record in the Parliament Rolles the tryall of them is by the Record it selfe and not otherwise If a Towne send Burgesses once or twice it is Title enough to send ever after 11. Henr. 4. 2. So if a Peere called once by writ and once sitting as a Peere Co. institut fol. 9. b. hee is a Baron ever after In the foure ordinary Courts they have priviledge for the meanest of their members or servants why not the Parliament It was the custome of the ancient grave Iudges to consult with parliaments in causes of difficultie weight a parliament was then to be at hand they did not stay to advise with them in a point which concerned the parliament so neerely and which was of the greatest weight of any cause that ever was agitated in the kingdome In our books all the entries it is true and cleare that Quo-warrantoes are brought and ought to bee brought against such as clayme priviledges Franchises Royalties or the like flowers of the Crowne but to question Burgesses in this nature is to question the Kings prerogative in an high degree priviledges take from the King parliaments adde and give unto him greatnesse and profit in parliaments he sits essentially in other Courts not altogether so but by representation what greater disservice could bee done the King then to overthrow parliaments how shall Subsidies bee granted or the kingdome defended how shall ardua Regni be considered Oh the Barons of the Exchequer I wot will salve all these doubts I may not forget My Lords how the law of the land the whole Common-wealth is herein concerned and upon that I will offer a Case or two If a statute be made wherein the private interest of a subject or the generall interest of the Common-wealth be enacted the King by his Letters-patents cannot dispence with this statute Co. 8. 29. a. Princes case though they be with à non obstaute nor make any grant Non obstante of the Common-law therefore I conclude this question First that it is against the Kings prerogative to issue such à Quo-warranto as is here stated Secondly it is against the Common-wealth as destructive of parliaments and consequently of government Thirdly this is no priviledge but a service done to the King whole Common-wealth which cannot receive so much as a debate but in parliament Fourthly all the proceedings in the Excheqver touching this parliament were Coram non judice as was already voted in both houses as for the punishment we come not to urge your Lordships to punish other then with reference to that which I said before viz. the Oath These two questions have so neere a relation the one to the other meeting in the Center of the Castle-chamber that I will speake to them at once or as to one question My Lords if that golden
or penaltie upon the libertie goods or lands of him that would bring an assize of Daren presentment for a prebendary I doe finde that a provision was made in haec verba Promissum est à Consilio Regis quod nullus de potestate Regis Franciae respondeat in Anglia antequam Anglici de jure suo in terra Regis Franciae c. Yet by that provision no forfeyture upon the lands or goods of him who sued a Frenchman in England at that time It is true that a Custome may bee contrary to the law and yet allowable because that it may have a lawfull commencement and continuall usage hath given it the force of a law Consuetudo ex certa rationabili causa vsitata privat communem legem but no proclamation or act of state may alter law For example sake at Common-law a Proclamation cannot make lands devisable which are not devisable by the law nor alter the course of descent The King by his Letters-patents cannot doe the same nor grant lands to bee ancient demesne at this day nor make lands to be descendible according the course of Gavelkind or Borrough English unlesse that the custome of the place doth warrant the same nor Gavelkind land to be descendible according the course of law à fortiori an act of state or proclamation which I hold to bee of lesse force then the Kings patent under the great Seale cannot doe it And in the case of Irish Gavelkind it is not the proclamation or act of state that did abolish or alter it but the very custome was held to be unreasonable and repugnant to law If an act of state bee made that none within the kingdome shall make Cards but Iohn at Stile this act is voyde for the King himselfe cannot grant a Patent under his great Seale to any one man for the sole feazance of Cards So it is of all proclamations or acts of state that are to the prejudice of Trafficke trade or Merchant affaires or for raysing of Monopolies or against the freedome and libertie of the subjects or the publicke good as I said before Also if proclamations or acts of state may alter the law or bind the libertie goods or lands of the subjects then will acts of Parliaments bee to no purpose which doe represent the whole body of the kingdome and are commonly for creating of good and wholesome lawes Therefore I conceive that all proclamations made against law are absolutely voyde and that the infringers thereof ought not to loose or forfeyte their liberty goods or lands And for the punishment of such Iudges that vote herein I referre to the sixt they deny to answer to this question This answer is generall and dangerous withall it is generall viz. they know no ordinary rule of law for it they ought to declare the law against it the right use of it here they commend and yet they doe not describe that right use therefore they commend two things the one the life of a subject to be left to Marshall law in time of peace the other they leave it likewise discretionary when they describe not the right use their last resort is to the Kings prerogative I have said before that Lawyers write the King can doe no wrong and sure I am our King meanes no wrong the Kings of England did never make use of their prerogative to the destruction of the subject nor to take away his life nor libertie but by lawfull meanes I conceive this advise should become the Iudges other advise they find not in their law Bookes The statute of Magna Charta cap. 29. and 5. Edw. 3. cap. 9. the petition of right the third of King Charles in full Parliament declared Tell them nay doe convince them that no man in time of peace can bee executed by Marshall law My Lords I could wish the Iudges had timely stood in the right opposition to the drawing of causes proper for the Kings Courts to an aliud examen the improper and unlawfull examen thereof on paper petitions whereby the Kings Iustice and Courts were most defrauded whereas an arbitrement being a principall meane to compose differences arising betweene neighbours and to settle amitie betweene them without expence of time or money was a course approved by law all our Bookes are full of this It is by consent of parties by arbitrators indifferently chosen bonds for performance thereof are not voyde in law and Iudgements given upon arbitrements and such bonds in our Bookes without question or contradiction to the lawfullnesse of an arbitrement or bond in proper Cases the principall good wrought by them was the hindering of suites debates at law therfore that exception fals of it selfe then I am to consider how far an Oath in the particular is punishable I will not speake of an Oath exacted or tendered that is not the question the question is of a voluntary Oath which the arbitrator cannot hinder I speake not to the commendation of any such Oath nor doe I approve of any Oath other then that which is taken before a Magistrate who derives his authoritie from the King the fountaine of Iustice but onely how farre this Oath is punishable by the late statute 10. Caroli fol. 109. a prophane Oath is punished by the payment of twelve pence no more vide stat of Marl. cap 23. 52. Hen. 3. viz. Nullus de caetero possit distringere liber ' tenentes suos c. nec jurare faciat libere tenentes suos contra voluntatem suam quia nullus facere potest sine praecepto Domini Regis which statute teacheth us that an exacted or compulsive Oath is by the Kings authority a voluntarie Oath is not reprehended 19. Edw. 4. 1. a. It was not reprehended in the case of an arbitrement this voluntarie Oath is punishable in the Star-chamber as the Iudges would affirme which I conceive to bee against the law First for that wee cannot learne any president in England for it It was but lately introduced here therefore the house of Commons is unsatisfied with the answer to this question in Boyton and Leonards case in the Star-chamber in Ireland Boyton was dismissed in a Case to this purpose about the yeare 1630. or 1631. It hath beene the late introduced course of the Castle-chamber and Councell-table not to admit the party censured to the reducement of his fine before hee acknowledged the justnesse of the sentence pronounced against him and that for divers reasons First the course of a Court being as ancient as the Court and standing with law is Curiae lex as appeareth by our bookes 2. Co. 16. b. Lanes case 17. Long 5. Edw. 4. 1. but if it be a course introduced de novo in mans memorie or a course that is against law it cannot be said to be lex Curiae for consuetudo licet sit magnae authoritatis nunquam tamen praejudicat manifestae veritati