The resolutions of the judges upon the several statutes of bankrupts as also, the like resolutions upon 13 Eliz. and 27 Eliz. touching fraudulent conveyances / by T.B., Esq.

Pasch. 4. Jacobi Regis.

Ford and Sheldon's Case, upon Information in the Exchequer for the King.

THomas Ford, a known Recusant b••fore the 23 of Eliz. for money lent to Sheldon; some before, and some after the said 23 Eliz. took Recognizance in the Names of others, and also a Rent-charge to them in Fee, with a Clause of Redemption by Deed; the Condition of the Recognizance, being for performance of the Covenanss in the Deeds; and afterward was made the Statute of the 28 Eliz. which was, That as often as any Failer was made, in the payment of 20 l. a Month, that so often the Queen, by Process out of the Exchequer, might take and enjoy all the Goods, and two Parts &c. And after the said Act, Ford lent the several Sums of Money, and took the Securities as aforesaid, amounting in all to 21000 l. which being to Ford's use, were all forfeited. Afterwards, 41 Eliz. was Convict of Recusancy, and did not pay the 20 l. a Month: If the King should have the B••nefit of these Recognizances and Securities, was the Q••estion.

1. Upon Debate, it was objected by Ford's Councel, That the Recognizances had not been Forfeited, though they had been made in Ford's Name; the Statute speak∣ing onely of Goods, which doth not include Debts. As if the King grant all the Goods of J. S. coming to him by Attainder, the Patentee shall not have Debts: And

a Penal Law shall not be extended by Equity.

Obj. 2. That three Recognizances are not with∣in the Intention of the Act, being Savers of the Realty, and acknowledged to perform Covenants, as to the Rent-charge.

Ob. 3. No Fraud was in the Case: And then no Statute being in this Case, the Common-Law gives no benefit to the King. As if Cestuy que use had been Attaint of Treason, the Use being but a Trust could not be for∣feited to the King: And it not a Use, A multo fortiori, a meer Trust.

Ob. 4. What Forfeiture accrues to the King in this Case, must be by force of the words (Goods) in the Sta∣tute, which cannot be, Ford having no Goods but a meer Trust. Also, one Recognizance was taken in the Names of others before the Stature, and therefore cannot be thought to defeat the King of a Forfeiture which was not then in use.

Resolved 1. By all the Barons, and Popham Chief Ju∣stice of England, and divers other Justices, that Personal Actions are as well included within this Word (Goods) in an Act of Parliament, as Goods in Possession: But because by Law, things in Action cannot be granted o∣ver; therefore by General Grant, without special words, can never pass. And where the Statute saith, Shall take, seize, and enjoy all the Goods, and two parts, &c. the King may well enjoy a Debt due to a Recusant, and by Pro∣cess out of the Exchequer Levy it: and so take and seize, refers to Goods, and two Parts of Lands in Possessi∣on.

Resolved 2. That it was Originally for the Loan of Money, and both the Recognizance and Annuity were to secure the said Money. And Recognizances fotfeited, are but Chattels Personal.

Resolved 3. There was Covin apparent; for he being a Recusant always as aforesaid, and so chargeable to the King, his taking the Recognizances in the Name of o∣thers,

shall be Construed with an Intent to prevent the King of his Forfeiture: And so shall all Recognizan∣ces taken in others Names, after the said Act, be presumed to be taken. As to Ce••••uy que use, who neither hath Jus in Re, nor Jus ad Rem, true it is, he cannot Forfeit; but an Act done, to defraud the King of his lawful Duty, the King shall not be barred thereof per obliquum, if the Act was made, de directo. And for this, If a man out∣lawed buy Goods in the Names of others, the King shall have them notwithstanding. So if an Accountant to the King purchase Lands in others Names, yet the King shall s••ze those Lands for Money due to him. And this appears by Walter Cherton's Case, Trin. 24. Ed. 3. Rot. 4. in Scaccario; for Re•• fallere non vult, falli autem non po∣test. See another President, Trin. 24. Ed. 3. Pot. 11.

Resolved 4. No••resert, Whether the Duty do acc••ue to the King, by the Common-Law, or by the Statute: And though one of the Recognizances was taken before the Statute of the 28 of Eliz. yet that was to his use: And though Ford was not Convict till the 41 of Eliz. that is not material; for he was subject to a Forfeiture before.

Pasch. 4 Jac. In Chancery, 27 Junii, 29 Eliz.

The Case between the Lord St. John of Bletso, and the Dean of Gloucester.

The Lord St. John brought a Quare Impedit in the Common-Pleas against the Defendant, for the Church of Penmark, in the County of Glamorgan, which Suit was staid by Aid prayer, and the Record removed into the Chancery: The Plaintiff moved for a Procedendo and up∣on Oyer of Cause, before Sir Thomas Bromley Lord Chan∣cellor, in the presence of Sir Gilbert Gerrard, Master of he Rolls, and Shute and Windham Justices; and Popham

Attorney, and Egerton Sollicitor of the Queen; the Plaintif•• shewed a Gift in Tail of the said Advowson made to his Anc stor in 18 R. 2. and a Verdict for the same in 12 H. 8. and a presentation by his Grandfa∣ther to the said Church, of a Clerk that was admitted, instituted, inducted, and had possession divers years, with other matters to prove the Plaintiffs T••tle, yet for that the Defendant, and those from whom he claimes, had time out of mind possessed the said Parsonage as Impro∣priate; And for that it will be a dangerous President to all Owners of Impropriations. It was Resolved by the Court of Chancery, by the advice of the Justices and Councel Learned by the Queen aforesaid, That no Procedendo in loquela be granted. Vide Ridley, fol. 153, 154. the beginning of Appropriations and Annuities to be discharged of Tythes, Vide ibid. 155. That the Saxon Kings appropriated eight Churches to the Mo∣nastery of Croyland.

Trin. 37 Eliz. In the Exchequer Chamber;

Crimes and Smith.

The Abbot of Sulby held the Parsonage of Iubbenh••m in Leicestershire to his proper use, which as impropriate came to H. 8. by the dissolution of Monasteries, 31 H. 8. who in the 37th. year of his Reign granted it in Fee-Farm; under which Grant the Plaintiff claimed: The Defendant obtained a Presentation of the Queen, and to destroy the said Impropriation, shewed the Original Instrument of it, 22 Ed. 4. with Condition in it, That a Vicaridge should be competently endowed, which was alledged never to be done.

But for that the Rectory was reputed and taken to be appropriate, and a Vicar presented, admitted, instituted and inducted as a Vicar, lawfully endowed, and paid his first Fruits and Tenths.

Resolved by all the Court, that it shall be presumed that the Vicaridge was lawfully endowed. And that it is a dangerous President to examine Originalls of Impro∣priations and Endowments of Vicaridges: for that they may perish. And so it was decreed for the Plaintiff.

Hill. 4. Jac. Regis.

Bedle and Beard.

Anno 31. Ed. 1. The King being seized of the Man∣nor of K••mbolton, to which the Advowson of the said Church was appendant by Letters Patents, granted the said Mannor, wish the App••••tenances, to Humphry de Bohun, Earl of Hereford, in tayl generall. Humphry de Bohun the Issue in tayl by his Deed. 4 Ed. 3. granted the said Advowson, then full of an Incumbent, to the Prior of Stonely, and his Successors. And at next avoydance they held In proprios usus: Upon this Appropriation, Concur∣rentibus his quae in jure requiruntur, the Prior and his Successors held the same till the dissolution of the Mo∣nastery. 27. H. 8. The said Mannor descended to Edward Duke of Buckingham, as Issue to the Estate Tayl. And the Reversion descended to H. 8. The Duke 13 H. 8. was at∣taint of High Treason. 14 H. 8. The King granted the said Mannor, &c. with all Advousons appendant &c. to Richard Wingfield, and his Heirs Males. 16 H. 8. It was Enacted, that the said Duke forfeit all Mannors, &c. Advousons, &c. which he had, &c. in 4 H. 8. The King 37 H. 8. granted and sold the said Rectory of Kimbolton, as impropriate in Fee, which by mean conveyance came to the Plaintiff for 1200 li. 37 Eliz. Beard the Defen∣dant got a Presentation of the Queen by Lapse, pre∣tending the said Church was not lawfully impropriate to the Prior.

1. For that Humphry, who granted to the Prior, had nothing in it, nothing passing to his Ancestor by

these words, Man••rium cum pertinentiis.

2. Or for that having no more but an Estate Tayl by his death, his Grant was void.

But Resolved by the Lord Chancellor Ellesmere, with the principal Judges, and upon consideration of Presi∣dents, that the Plaintiff shall enjoy the Rectory: for though by any thing which can now be shewn, the Im∣propriation is defective, yet it shall be now intended, in regard of the antient and continual possession, that there was a lawfull grant of the King to the said Humphry who granted in Fee, so that he might lawfully grant it to the said Priory: Omnia p••••sumitur Sol••mniter esse acta. And all shall be presumed to be done, which might make the antient Impropriation good; And antient Grants and Acts shall not be drawn in question, though they cannot be shewn: for Tempus ed••x rerum. Letters Patents and Writings may consume, be lost or imbezilled. And there∣fore the Church was allowed to be rightfully impro∣priate, and the rather, in regard of the antient and long possession of the Owners of the said Rectory.

Mich. 4. Jac. Regis.

Case of Forfeiture by Treason.

Hill 43 Eliz. A Case was moved to all the Justices: Tenant in Tayl before the Statute of 27 H. 8. made a Feoffment in Fee to the use of himself, and his Wife in Tayl. And after the said Statute, the Husband was at∣taint of High Treason, 31 H. 8. and dyed. The Wife continued in possession and dyed, their Issue enter and die, and this descends to his Issue, and all this found by Office.

The Question was, if the Issue in Tayl or the King shall have the Land.

1. And it was objected, that the antient Estate Tayl cannot be forfeited, because it was discontinued, and such right of Action cannot be forfeited. As was agreed in the Marquess of Winchesters Case.

2. The Feoffor himself in this Case had not any right to the antient Estate Tayl, (it being extinguish∣ed by his Feoffment) and therefore by his Attaint, could not forfeit what he had not.

3. The Issue in Tayl in remitted to that antient right which cannot be forfeited; And the new Estate Tayl de∣rived under the discontinuance, which may be forfeited by the Statute 26 H. 8. cap. 13. is continued, and by Act in Law, viz. the discent and remitter avoided. And the Kings Estate may be divested out of the King by re∣mitter. As if Tenant in Tail grant Land to the King, &c. and the King grant the Land to the Tenant in Tail for life, the remainder to his Son and Heirs for life: Te∣nant for life dies, the Issue by and in Law is remitted, and the Kings Estate is divested out of him. This accords with Plow. Com. 489. Nicols Case.

1. Resolved that in this Case the Issue in Tail is bar∣red: for though right of Action cannot be given to the King, by the 26 H. 8. yet when Tenant in Tail discon∣tinues his Estate to the use of himself in Tail, and after is attaint of Treason, now by that Statute he doth not onely forfeit the new Estate in Tail, but by this, the right of the antient Estate is barred for ever. And so note, out of the said Statute, a diversity between a naked right of Action not forfeitable, and an Estate of In∣heritance forfei••able, coupled with an antient right, for which the Forfeiture of the possession is barred by the said Act: And i•• is not like the Case in Plow. Com. of Remitter, for this is no barre of an antient right.

Pasch. 4 Jac. Regis.

Case at a Committee aoncerning Bishops.

At this Parliament held Pasch. 4 Jac. Regis, It was strongly urged at a Grand Committee of Lords and Commons in the Painted-Chamber, that such Bishops as were made after the first day of the Session, were not lawful Bishops.

1. Admitting them Bishops, yet the manner and form of their Seals, Stiles, Process, and Proceeding, in their Ecclesiastical Courts, were not consonant to Law: Be∣cause by the Statute, 1 Ed. 6. cap. 2. it is provided, That thenceforth Bishops should not be Elective, but Dona∣tive, by Letters-Patents of the King. And for that at this day all Bishops were made by Election, not Dona∣tion of the King; therefore the sa••d Bishops are not law∣ful.

2. By the same Act it is provided, That all Summons &c. and Process in Ecclesiastical Courts, shall be made in the King's Name and Stile, and their Seals Engraven with the Kings Arms, and Certificates made in the Kings Name: It was therefore concluded, Th••t the said Sta∣tute being still in force, by Consequence all Bishops made after the Act, 1 Jac. were not lawful Bishops. And the Proceedings being in the Name of the Bishop, makes them unlawful. Quia non obser••ata forma infer∣tur ad••ullatio actus. Upon Consideration had of these Objections by the Kings Commandment, it was Resol∣ved by Popham, Chief Justice of England, ••nd Coke Attor∣ney of the King; and after affirmed b•• the Chief Ba∣ron, and the other Justices Attendant to ••he Parliament, that the said Act of the 1 Ed. 6. cap. 2. is not now in force, being repealed, annulled, and annihlated, by three several Acts of Parliament: Any whereof being in force, it makes that Act of 1 Ed. 6. that it cannot stand,

Quia Leges Posteriores, Priores contrarias abrogant. And by the Act of the 25 H. 8. cap. 20. Is set forth the manner of Election and Consecration of Archbishops and Bishops. And also for the making and execution of all things which belongs to their Authority: within which words, the Stile and Seal of their Courts, and the manner of their Proceedings, are included. Which Act of 25 H. 8. is revived by 1 El. cap. 1. and consequently, that of 1 Ed. 6. cap. 2. is repealed.

It appears by our Books, if a Deacon or Priest take a Wife, their Marriage is voidable not void, for they had not vowed Chastity. Otherwise, of a Monk or a Nun. And this appears 5 Ed 3. Title Nonability, 26. 19 H. ••. Title Bastardy, 33. 21 H. 7. 39. 6.

Mich. 4. Jac. Regis.

Case of the Stannaries.

It was Resolved this Term in the Star-Chamber, That the King had not the Emption of Tin in Cornwal by his Prerogative; for Stanni nec plumbi fodina, &c. or other sase Mineb, belong not to the King by his Prerogative, but to the Subject Owner of the Land. But the Empti∣on of Tin in Cornwal belongs to the King, as an antient Right and Inheritance: for though now a Reason can∣not easily be rendred of things done time out of mind; yet it may well be, that all the Land in that County was the King Demesne; and upon Grant of the Land, the King reserved the Mines to himself. These Tin Mines being of great Antiquity; as appears, Ex Diodoro Siculo, Et certo certius est. That all the Land in England, is de∣rived mediately or immediately from the Crown; and therefore such a Profit may have a reasonable Com∣mencement; Usage also allowing it to the King: for all Cornwal was within the King's Forest, which by King

John was disafforested; as by Cambden appears. And it is evident, that before 33 Ed. 1. all the Tin in Cornwal, and Devon also, was the Kings, whoever owned the Land. And this is proved by divers Records, and by an antient Charter of King John, among the Bishop of Exeters Re∣cords, In haec verba. Johannes Dei Gratia Rex Angliae, &c. Omnibus B••llivis salutem. Sciatis quod intuitu Dei, & pro salute animae nostrae, &c. dedimus &c. Deo & Eccle∣siae Beati Petri Exon, & venerabili Patri Simoni Exon. E∣piscopo & successoribus, &c. decimam de antiqua firma Stanni in Com. Devon. & Cornub. Habendum sibi & succes∣soribus, &c. cum omnibus libertatibus & liberis consuetu∣dinibus ad eam pertinentibus, per manus illius vel illorum qui stannaria habuerint in custod. &c.

Rex, Roberto de Courtney salutem, Mand••mus vobis quod sine dilatione & difficultate aliqua, habere facietis Do∣minae Johannae Reginae matri nostrae stannaria Com. Devon. &c. Paten. 1 H. 3. H. 4.

Rex concessit Johanni filio Richardi stannaria in Cornubia reddendo 1000 marks. 4 H. 3. Fines. 5 H. 3.

Rex, &c. Sciatis quod concessimus Richardo dilecto fra∣tri n••stro stannariam nostram Cornubiae cum pertinen. Prohi∣biting Tin to be transported without the said Richards Licence, 10 H. 3 M. 9.

See also 10 Ed. 2. Inqui. 2. Nu. 29.

There are two several Charters, both dated 10 April 33 Ed. 1. One, ad emendationem stannariarum nostrarum in Cornub. The other, Ad emendationem stannariarum nostra∣rum in Devon. That of Cornwall hath these word, Concessimus eisdem stannatoribus quod fodere possint stannum, et turbus ad stannum fundendum ubis{que} in terris nostris et vastis nostris, et aliorum quorumcun{que} in Com. praedict. et Aquas, et aqua∣rum cursus divertere, ubi et quoties opus fuerit, &c. ad sundaturam stanni sicut Antiquitus co••su••vit, sine impedi∣mento nostro seu aliorum quorumcun{que} Ac quod omnes stan∣natores nostri praed. totum stannum suum ponderatum, &c. licitè vendere possint cuicun{que} voluerint, faciendo nobis et hae∣redibus

nostris Cunageum, et alias Consuetudines debitas, nisi nos vel haerede nostri stannum illum emere volumus.

This was confirmed 4 Ed. 2. And also 1 & 17 Ed. 3. De Advisamento consilii nostri ordinavimus, quod stannum in Com. Cornub. et Devon. ad opus nostrum capiatur pro de∣fensione regni nostri, &c. Et ad partes marinas celeriter mittatur, &c. Ita quod hominibus quibus stannum illum ca∣pi contigerit de pretio ejusdem stami ad certos terminos sol∣vend. sufficiens securitas per nos fiat, Assignavimus vos, &c. ad capiend. ad opus nostrum totum stannum in Com. praed. Cunitum et etiam Cuniend. cum cunitum fuerit: with Au∣thority to take Carriages and Commandment to the Sheriff to pay for the same. Rot. Aml••yne An. 12. R. 2. part 1.

Edward the black Prince grant, and the King, (21 E. 3.) confirmed to Tydman of Lymberge, Cunageum Stannariae, &c. nec non emptionem totius Stanni, &c. in∣fra, &c. pro fine mille marcarum, et reddendo 3500 mar∣cas. The like done to one Brockhouse, 7 Ed. 6. The Char∣ter of 33 Ed. 1. was confirmed, 8 R. 2. 1 Ed. 4. 3 H. 7. The 11 H. 7. a certain weight and measure was or∣dained to be used through England; yet the weights be∣longing to the Carriage of Tin, were excepted in that Statute.

The Stile of the Court of Stannaries is, Magna Curia Domini Regis Ducatus sui Cornub. apud Cockerenton in Com. Devon. Johanne Comite Bedford Custode stannar. dicti Domini Regis aut Reginae in dicto Com. Devon. By which it ap∣pears, that all the Tin belonged to the King.

For the Antiquity of Tin Mines in Cornwall, see Cam∣d••n in Cornwell 121. And Diodorus Siculus, L. 5. c. 8. fo. 142. 6.

Upon which it was res••lved, 1. That the King hath all the Tin, as well in the Subjects Lands as his own.

2. It is absurd for the King to reserve Emption of his own Tin.

3. The King grants Stannatoribus divers liberties which are enjoyed by the Tinners, as well in the Subjects Lands, as the Kings own.

In the Session of Parliament h••ld in Decemb, An. 4. Jac. Regis.

Case of the Kings Prerogative in Saltpeter.

All the Justices, viz. Popham Chief Justice of England, Coke, Chief Justice of the Common Pleas. Fleming, Chief Baron. Fenner, Searle, Yelverton, Williams and Tanfield. Justices met at Sergeants Inne, to consult what Preroga∣tive the King had in digging and taking of Saltpeter to make, Gunpowder by the Law. And upon conference be∣tween them, these points were resolved by them all, 〈◊〉〈◊〉 voce.

1. That in as much as Gunpowder concerns the de∣fence of the Realm, and insomuch as Saltpeter (whereof Gunpowder is made) is within the Realm: the King shall not be driven to buy it, but may take it according to the Limitations following.

2. That, though the King cannot take the Trees of his Subject growing upon his Freehold; nor Gravel in the Inheritance of his Subject for reparation of his houses: as 11 H. 4. 28. Yet 'tis resolved, that he may dig for Saltpeter, because the Kings Ministers who dig for the same, are bound to leave the Inheritance of the Subject, in as good plight as they found it, which they could not do, if they should cut the Timber growing, which would be to the Subjects disinherison.

The Case of Gravel for reparation of the Kings Hou∣ses, may not be compared to this: for Saltpeter extends to the defence of the whole Realm, not so the reparati∣on on of the Kings Houses, 13 H. 4. The King may charge for Murage of a Town: And so for Portage; but not

for making a Wall about his own House: When Ene∣mies invade the Realm, it is lawful to come upon any Land adjoyning to the invaded Coast, to make Trenches or Bulworks, 8 Ed. 4. 23. And in such Cases they may dig for Gravel. 3 H. 8. fo. 15. And in this Case the Rule is true: Princeps et republica ex justa causa possunt rem mean auferre.

3. Resolved, That the taking of Saltpeter is a pur∣veyance of it, for the making of Gunpowder, for the ne∣cessary defence of the Realm. And therefore is an inci∣dent inseparable from the Crown, and ought to be taken onely by the Kings Ministers, and not converted to any other use then the defence of the Realm: And 'tis not like Silver or Gold Mines; for there the King hath In∣terest in the Mettall, and may dig, Quia quando lex ali∣cui concedit aliquid, Concedere videtur id sine quo res ipsa esse non potest: Vide: Plow. Com. in le Case de Mynes: so the King may dig for Treasure Trove eadem ratione.

4. The Ministers of the King cannot undermine, weaken, or impair any the Walls of Foundations of any Houses or Buildings whatsoever. Nor dig in the Flore of a Mansion-house, which serves for the Habitation of a man: because it is his place of refuge and defence.

There are two notable Presidents: that the King by his Prerogative, had power to prohibit Depopulation, and provide for Habitation.

The one in the 43 Ed. 3. Rot. claus. in turri: num. 23. provillade Southampton.

The other An. 21. R. 2. in dorso claus. par. 1. N. 15.

Neither may the Kings Ministers dig in any Barn∣floore used for Corn, Hay, &c. but they may dig in the floores of Stables and Oxehouses, so that they leave room for the Horses and other Cattel of the Owner, and put it in convenient time into as good plight as they found it. Also they may dig in Cellars and Vaults: and and Mud-walls, being not Walls of a Mansion-house, and in the ruines and decayes of any Houses or Buildings.

5. They ought to make the places where they dig, as commodious to the Owner as before.

6. They may work in the possession of the Subject, but betwixt Sun-rising, and Sun setting.

7. They may not place any Furnace or other Vessels in any Subjects House, without consent, nor so near it, as to prejudice the same.

8. They are not to stay over long in a place, nor to return thither again in a long time.

9. Resolved, That the owner of the Land cannot be restrained from digging, and making Saltpeter, for the King hath no Interest in it, the property is in the owner of the Land. Before the 31 Eliz. no King or Queen of this Realm granted any Licence for taking Saltpeter; but in that 31 year, there were two, the one to George Con∣stable Es{que} and the other generall to George Evelin, Rich∣ard Hills, and John Evelin: And after Scilicet 18 Octob. 2. Jacob. Commission was granted to Evelin, and others, to take Saltpeter, &c. So that there were but three Li∣cences ever made.

Case of Treason.

In this very Term, one George Leake, a Chancery Clark, had upon an ordinary piece of Parchment, by great deceit fixed with a kind of Glew, another Parchment so thin, that it appear but one piece. And upon the thin piece he writ by good Warrant a Li ense, which brought to the Chancellor, was sealed with the Great Seal. Af∣ter the George took the thin piece upon which the writing was, from the other to which the Seal was fixed, and then all was blank, with the Great Seal annext; upon which blank, the said George writ a Grant of the King of certain Lands; and what Offence this was, was the Question. And after a long debate upon the 25 Ed. 3. 2 H. 4. 25. Stamford l. 1. fol. 3. 40 Ass. pla. 33. 37 H.

8. Title Treason, 2 H. 4. Claus. 42 Ed. 3. memb. 8. in dorso, where the Case was, That King Richard the First by his Charter, granted divers Lands and Liberties, Abbati de Bruera, in which the Abbot rased out this word Fittetrida, and instead of it writ est leigh, and upon shewing it, obtained a confirmation of it from King Ed. 3. And an allowance of it in Banco R. And for this Offence, the Abbot was called before the King and Council in the Star-Chamber, where the Abbot being Convict, it was part of the Sentence, That the Charter, confirmation, and allowance of it, should be brought in to be cancelled; where note,

1. The Antiquity of the Star-Chamber being then a Court.

2. That the rasure was not any Counterfeit of the Great Seal; for if the Offence had been High Treason, it should not have been determined before the King and Council.

3. That Spiritual Persons were then punishable before Temporal Judges.

4. That if there be a rasure of a Deed between Sub∣ject and Subject in a place material, all the Deed be∣comes naught; so if a Patentee rase his Heirs Patents in a place material.

Thence concluded, That if the rasing of a word in the Kings Patent be not Treason, then the rasing of two or three, or all the words of the Patent, and writing a new Grant is not Treason.

By the Statute of the 25 Ed. 3. it is provided, That because many other Cases of like Treason might happen in time to come, which men cannot think or declare at present. That if another Case suffered Treason, and not specified in the Act, shall come before any of the Justices, they shall stay without going to Judgment of Treason, untill the Case be shewen before the King in Parliament.

1. That though a Case happen like to the Cases of Treason mentioned in the said Act; yet that the Judges ought not to judge it Treason, but it ought to be declared in Parliament.

2. That when a particular Case was adjudged High Treason, (as the Case of murdring an Embassador of a King) Et Legatos violare contra jus Gentium est.

Afterwards George Leake, upon Examination before the chief Justice of England, made a clear Confession of of all the manner and circumstances of the Fact as afore∣said; whereupon Two Questions were moved,

1. Whether this Offence were High Treason or no: And in this the Justices were divided; my self and divers others holding, That this Act was not Treason; but the chief Justice and divers others were against us.

2. If it be High Treason, then whether he may be indicted generally for the Counterfeiting of the Great Seal, or else the special Fact must be expressed.

By reason of diversity of Opinions, R••spectuatur, vid. Fleta lib. 1. cap. 22. Item crimen falsi dicitur, cum quis illicitus cui non fuerit ad haec data authoritas de sigillo Regis rapto vel invento et brevia Carteria: vide le Attainder de Elizabeth Barton, Edw. Bocking. by Parliament, &c. 25. H. 8. c. 12.

Hill. 24 Eliz. In the Exchequer.

A Merchant brought eighty weigh of Bay-Salt by Sea to a Haven in England, and out of the Ship sold 20 weighs, and discharged them to another Ship, wherein they were transported, being never actually put on shore: and for the residue, viz. 60 weigh, he agreed for the Custome, and put them upon Land; and now the d••nbt was, 1 Eliz. cap. 12. for the words of the Statute con∣cerning Exportation, sent from the Wharfe, Key, or other place on the Land, and concerning Importation taken up, discharge, and lay on Land. If in this Case

the said 20 weighs, which alwayes were waterborn, and never touched the Land, ought to pay Custome as well inwards as outwards: And it was Resolved,

That in both the Cases Custome ought to be paid; and forasmuch as no Custome was paid, It was Resolved, That the Goods were forfeited.

Note, No Act of Parliament can bind the King from any Prerogative which is sole and inseperable to his per∣son, but that he may dispence with it by a non obstante, (as his Soveraign Power of Commandines) his Subjects to serve him for the publick Weal. See 23 H. 6. cap. 8. 2 H. 7. 66. 13 R. 2. Parl. 2. cap. 1. See also 4 H. 4. cap. 31. Coke l. 2. fol. 69.

But in things which are not incident solely and inse∣parably to the person of the King, but belongs to every Subject, and may be severed there an Act of Parliament, may absolutely bind the King. As if an Act of Parlia∣ment do disable any Subjects of the King to take any Land of his Grant, or any of his Subjects (as Bishops) as it is done by the Statute, 1 Jac. cap. 3. to Grant to the King, this is good; for to grant or take Lands or Tene∣ments, is common to every Subject.

Hill. 4. Jac. Regis,

Care of High Commissioners, If they have Power to Imprison.

Mich. 4 Jac. post prand. There was moved a Question amongst the Judges and Sergeants at Sergeants Inn; If the High Commissioners in Ecclesiastical Causes, may by force of their Commission imprison any man or not?

First, Resolved by all, That before the Statute of the first of Eliz. the King might have granted a Commission to hear and determine Ecclesiastical Causes; yet the Commissioners ought to proceed according to the Eccle∣siastical Law allowed within the Realm. Vide Caudrye's

Case. 5 Report. Then all the Question rests upon the Act, 1 Eliz. which hath three Branches;

1. Such Commissioners have power to exercise Juris∣diction Spiritual and Ecclesiastical.

2. By force of Letters-Patents, they have power to visit, reform, &c. all Heresies, &c. which by any manner of Spiritual or Ecclesiastical Power, &c. can or lawfully may be Reformed, &c. So that these Branches limit the Jurisdiction.

3. That after such Commission delivered to them, shall have power by vertue of this Act, and the said Let∣ters-Patents, to exercise, &c. all the Premisses, &c. ac∣cording to the Tenor, &c. This Branch gives them Power to execute their Commission.

But it was Objected, That this Branch gave no power to the Queen, to alter the Proceedings of the Ecclesiasti∣cal Law; or to prescribe what manner of proceedings or punishment, concerning the Lands, Goods, or Bodies of the Subject. And this appears by the Title of the Act (Restoring) the intent being to make Restitution, not any Innovation.

Vide, a notable Case adjudged in this Point, Hill. 42. El. ••o. 389. as to Imprisonment, Smith's Case: for at the last Consultation was granted: And at last, by the better Opinion, as to things committed to them by Commission, they may put Fine and Imprison∣ment.

By the 3 H. 7. cap. 14. 'tis Ordained, where Women, as well Maids, as Widows and Wives, having substance, &c. for the lucre of such substance, be taken by Misdoers, contrary to their Wills, and after marryed, &c. or defi∣led.

That what person henceforth so taketh, &c. against her will, &c. such taking, &c. to be Felony: And the Misd••ers, &c. to be reputed as Felons. Upon this, great

question was moved, 4 & 5 Phil. & Mar. in the Star-Chamber, If the Eloym ent against her without Mariage, or Carnal Copulation, be Felony or no: And the Opi∣nion of Brook, and some other of the Justices was, that It was Felony. But Sanders, Lord Chief Justice, was against it; and afterwards, as Peryam chief Baron did Report, It was Resolved by all the Justices, That such Eloynment onely, is not Felony, by the intent of the Sta∣tute, without Marriage, or Carnal Copulation.

Note, By the express purview of the Act, the Accessary both before and after is made Principal.

Pasch. 4 Jac. Regis.

By the Commandement of the King, it was referred to Popham Chief Baron, and my self, what Right the Queen, which now is, hath; and in what Cases to a Right claim'd by her, called Aurum Reginae: that is to say, Pro centum marcis argenti, una marca Auri solvendum per illum qui se sponte obligat. And upon consideration had thereof, and view of Records and Presidents, viz. Librum Rubrum in Scaccario, fol. 56. de Auro Reginae; where it is said, that this is to be taken, De iis qui sponte se obligant Regi, &c. which is the Foundation of this Claim: And of a Record in the Tower, 52 H. 3. And a Record in the Exchequer, 4 Ed. 1. And a Record in the Exchequer, Hill. 12 Ed. 3. And in the Tower in the same year, in Rot. Claus. And of Acts of Parliament, 15 Ed. 3. cap. 6. and 31 Ed. 3. cap. 13. and 13 R. 2. in Turri: And divers other Presidents and Process out of the Exchequer, in the time of R. 2. H. 4. and other Kings, till H. 7.

It was Resolved, that the Queen hath Right to it, but with these Limitations.

1. It ought to be sponte, by the Subject, sine coactione: And for this, all Fines upon Judgments, or by Offer or

Fine for Alienation, or any other Case, where the Sub∣ject doth it not sponte, sine aliqui coactione: That the King of Right ought to have it, there the Queen shall have nothing.

2. It ought to be sponte, sine consideration alicujus re∣ventionis seu interesse: That the King hath in esse, in jure Coronae: As upon Sale 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 Scac∣cario, &c.

4. It ought to be sponte, super considerationem quae non lo••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 Te∣nure 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 Coun∣ty 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 Questi∣ons, 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, Swanni∣motes, 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 ha∣ving 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 War∣ren 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 preser∣vation 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 In∣heritance 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. ••low. Com. Dyer 72. 32. 2 Ed. 4. cap. 7. that the Subject may have a Forest. Consuetudo ex rationebili causa usitata pri∣vat communem Legem. And it was held by some, that this was but an Ordinance, not an Act of Parlia∣ment.

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 ac∣quitted; yet no Conspiracy lyes for him against the In∣••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, L••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 Ac∣quitted, 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 charg∣ed 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 Indict∣ment, 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 extraju∣diciall, but subordinations of Witnesses, and false mali∣cious prosecutions out of Court, &c. amounts to an un∣lawfull 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 rep••o∣batur, 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 Re∣cord, there averment may be taken against their proceed∣ings, 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, a∣gainst

what the Judges in the inferior Court have done as Judges, Quia Recordum non habent, 21 H. 6. 34. Nei∣ther 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. Cat∣lyn 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 anni∣hilating of a Record, or tending to the slander of the Justice of the King, except it be before the King him∣self; 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, Invi∣gilandum est semper, multae invidiae sunt bonis; And the rea∣son 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 pardon∣ed: Vide the conclusion of the Oath of a Judge, Stowes ch••oi 18 Ed. 3. 312.

Weyland, chie•• Justice of the Common Bench, and Hengham, Justice of the Kings Bench, and other Justices were accused of Bribery, and their Causes were determi∣ned 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 Parliament•• and not by Commission. Absurdum est affirmare, recre∣dendum esse non judici.

Pasch. 4 Jacob. Regis,

Case concerning the Oath ex officio.

The Lords of the Council at Whitehall, sedente Parlia∣mento, 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, accor∣ding to the Course of the Chancery and Star-Cham∣ber.

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 Testa∣mentariis, 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 Cu∣stome 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 Com∣mon-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, un∣less by due Accusation and Witnesses, or by Presentment, Verdict, precess of Outlawry, &c. And this was the Judg∣ment of all the said Parliament. See F. N. B. Justice of Peace, 72 Lam. 6. in his Justice of Peace 338. Cromp∣ton 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 Wit∣nesses 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 revi∣ved, 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 Tulli∣ano 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. Sta∣tuimus de Caetero praestari in reg••o Angliae secundum Canoni∣cas & legitimas Sanctiones obtenta in contrarium, consuetudine non obstante, &c. By which Cannon it appears, That the Law and Custom of England was against such Exa∣minations; so that this was a new Law, and took its effect de caetero.

2. Ob••enta in contrarium, consuetudine non obstante: And this agrees with the Register and Treaties, de Regia pro∣hibitione, and the other Authorities. And it appears in Linwood, cap. jurejurandi, fol. 8. 9. That Boniface, Archbishop of Canterbury, 1272. & 57 H. 3. made this Cannon, Statuimus quod Laici de subditorum peccatis, &c. per praelatos & judices Ecclesiaslicos inquiratur ad praestan∣dum de veritate dicenda Sa ramentum per excommunicationis sententias, si opusfuerit, compellantur impedientes; vero ne hujusmodi juramentum praestetur per interdict. est excommu∣nicatio, &c. In which Cannon it is to be noted, That it extends to Lay-People: And note, Linwood saith, cap. Jurejurandi, fol. 6. litera, E. Hic dicitur causa editionis hujus, &c. Praelati, &c. procedebant ad inquirendum de criminibus, &c. & Laici (nota hic) suffult potestate domi∣norum in hujusmodi inquisitionibus noluerint jurare de veri∣tate dicenda.

1. Note, Why Lay-people refused to be examined for Crimes and Excess.

2. The Judges of the Common-Law, by their Prohi∣bition, did interdict, &c. as appears by their Register and other Authorities in Ed. 1. time, &c.

3. That where by the Law they may examine Lay-people upon Oath, in causis matrimonialibus & testamen∣tariis; Here Boniface makes the Canon to extend to Peccata & excessus, which Canon was utterly against the Law and Custom of England. See another at the same time in Linwood: Cap. de Benef. fo. 231. And this is declared by Act of Parliament, made 9 Ed. 2. called, Articuli Cleri; si Praelati imponant poenam pecuniariam alicui pro peccato, &c. Regis prohibitio locum habet.

Trin. 5 Jac. Regis.

Case concerning Pardons.

The Law so regards the Weal-publike, that though the King shall have the Suit solely in his Name for the redress of it; yet by his Pardon he cannot discharge the Offender, because it is not onely in prejudice of the King, but in damage of the Subjects: If a man ought to repair a Bridge, and for default of Reparation, it fall to decay; in this Case, the Suit ought to be in the King's Name, and he is sole Party to it, but for the benefit of his Subjects: And if the King pardon it, yet the Offence remains; but peradventure the Pardon shall discharge the Fine for the time past. And with this agrees 37 H. 6. 4. 6 Plow. Con. in Nichol's Case 487. A multo fortiori in case of Depopulation: for this is not onely an Offenc: against the King, but against all the Realm; for by this the Realm is infeebled, and therefore Depopulation and Diminution of Subjects, is a greater Nusance than the hindrance of Subjects, in their good and easie passage by any Bridge or High-way. And for this, notwithstand∣ing the King's Pardon, he shall be bound to re-edifie the

Houses of Husbandry which he depopulated; and though for the time before the Pardon, perchance he shall not be Fined, yet without doubt he shall for the time after: For the Offence it self cannot be pardoned, as in Case of a Bridge or High-way, because it is malum in se. But this continues as to the Fine and Imprisonment, at all times after the Pardon: But the Penalty insl••cted by the Statute may be discharged, Quia prohibitum, Vide 3 Ed. 3. Tit. Ass. 443. But when the King chargeth his Sub∣jects for the making of a Bridge, or Cawsie, or Wall, &c. there the King may discharge the Pontage, Murage, &c.

Note, If one be bound to the King in a Recognizance to keep the Peace, in this Case, the King, before the Peace broken, cannot pardon and release the Recogni∣zance, as 'tis agreed 11 H. 4. 43. 37 H. 6. 4. 1 H. 7. 10. because it is made for the Safety of the King's Sub∣jects.

Note, No Licence can be made to do any thing that is Malum in se, but Malum prohibitum, 11 H. 7. 11. 3 H. 7. 39 H. 6. 39.

Trin. 5 Jacobi Regis,

Case of Commissions.

Note, Commissions in English, under the Great Seal, were directed to divers Commissioners in the Counties of Bedford, ••ucks. Huntington, Northampton, Leicester, and Warwick, to inquire of divers Articles annexed, which were also in English; to inquire of depopulation of Hou∣ses, converting Arable Land into Pasture, &c. the Com∣missioners onely to have power to enquire, not to hear and determine: By colour whereof, many Presentments wiere taken in English, and returned into the Chancery; and after, viz. Trin. 5 Jac. It was Resolved by the two Chief Justices, Walmesly, Fenner, Yelverton, Williams, Snig,

Althum, and Foster, that the said Commissions were a∣gainst Law, for three Reasons.

1. Because they were in English.

2. Because the Offences inquirable, were not certain in the Commission, but in a Sc••edule annexed.

3. Because, that it was onely to enquire, which is a∣gainst Law; for so a man may be unjustly accused or defamed, and shall have no Remedy nor Traverse to it; for it is not within the Statute of the 5 Eliz. At Com∣mon-Law Assizes were not taken, but before Justices in Eyre (who sit virtute brevis, every seventh year, Vid. Britton. fo. 1. and Bracton, lib. 5. and 11. or in the Com∣mon-Pleas: And because this was a great trouble, it was provided by Magna Charta, cap. 30. Quod requisitiones de nova disseizina, & de mort' d'an cester non capientur nisi in propriis Comitatibus, &c. And after by the Statute of Westminster 2. cap. 30. it was provided, Quod assignen∣tur duo Justiciarii jurati coram quibus et non aliis capiantur assiz. ad plus ter per annum. By which Act, justices of Nisi Prius were constituted of other Pleas, as well of one Bench as the other, Coram quibus, &c. And by the same Act, Justices of Nisi Prius may give Judgment in Assi∣zes of Darreine presentment, and quare Impedit. Then came the Statute 21 Ed. 3. de fl••ibus, cap. 4. and provided, that inquisitio••es et recognitiones capiantnr tempore vaca∣tionis, generally before aliquo Justiciario de utro{que} Banco, coram quibus, &c. And after by the Statute of York, cap. 3. It is provided, That in Plea of Land, Nisi Prius shall be taken before one of the Justices, &c. and Cap. 4. That no other Pleas moved by Attachment or Distress, shall be taken before any Justice, &c. By the 14 Ed. 3 cap. 15. Nisi Prius may be taken in any Plea before two; so one be Justice of one Bench, or Chief Justice, or Serjeant sworn.

By the Statute de finibus cap. 3. Justiciarii ad assizas capiend. assignati deliberant Gaolas in Com. illis, &c. vide de recitat. del Stat. 28 Ed. 1. de appellat. which recites

the Statute def••lonia: Felony formerly included Tres∣pass, vide Stamf. 57. 3 H. 3. cap. 7. gives power to Ju∣stices of Assize, to hear and determine Treason, concern∣ing false Money, 14 H. 6. cap. 1. gives Justices of Nisi Prius power in all Cases of Felony and Treason to give Judgment. 28 Ed. 1. De appellatis, gives Justices of As∣size 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 Nan••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 Sta∣tute 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 Champer••y, Imbra∣cery, and unlawful Retainers.

By 3 H. 7. cap. 1. they may take Bail of one acquit∣ted 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 Ryo••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 She∣riffs, &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 pe••sonaribus in ea existe••t. hac vice delibe∣rand secund. leges, &c. Brook ti••. Commission, 3. Maii 24. 4 Ed. 3. cap. 2. Justices of Gaol-delivery deliver Prisoners indi••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 Commissi∣oners of Oyer and Termi••er, because the proceedings be∣fore Justices of O••er and Terminer, after the Oyer deter∣mined, 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 o••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 conce∣dendo, & Mag. Chart. cap. 30. which hath been con∣firmed 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 ••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 Impor∣ted or Exported, unless for advancement of Trade, the life of the Island, Pro bono publico. As if in For••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 Merchandiz••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, be∣cause 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 Co∣ronae 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 consue∣tudo, 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 no••. 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 Consuetu∣dines; Et per vocabulum artis; they are called, Cu••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, ••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. ••. 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 Glocestri∣am. Act. 25. 1 R. 2. Parl. accord. 1 R. 3. against Bene∣volence. Vide Claus. 4 Ed. 3. n. 22. bis.

Case of Libells between Edwards and Wooton.

In Cam. Stellat.

The Case was, That Doctor Wooton writ to Edmunds an infamous, malicious, scandalous, and obscene Letter, with his Name subscribed. And this he Sealed and di∣rected to his Loving Friend, Mr. Edward Speed, this, and after the said Doctor dispersed to others a great number of Copies of the said Letter.

And it was Resolved by the Lord Chancellor Egerton, the two chief Justices, et per totam curiam, That this was a subtle and a dangerous kind of Libell: For though the writing of a private Letter, without other Publicati∣or, the Party to whom it is directed cannot have an

Action Sur le Case, but where it is published to others' to the Plaintiffs Scandal, Action lyeth.

The Doctor thought this could not in any manner have been punish't; but 'twas Resolved, That the infa∣mous Letter, which in Law is a Libell, shall be punished in the Star-Chamber, being an Offence to the King, and a motive to breach of the Peace: And in the Case at Bar, the dispersing of Copies of it, aggravates the Offence, for which also the Party may have an Action Sur le Case.

Note, By the Civil Law, a Person disabling himself to bear Office, or making a Libell against himself, shall be punished: And though the Doctor subscribed his Name to the said Letter, yet it importing matter Scan∣dalous is in the Law a Libell.

The Law of the Lydians is, That who slanders another, shall be let Blood in the Tongue; who hears it, and ascents to it in the Ear, &c.

Mich. 5 Jac. Regis,

Wooton and Edwins Case.

In Replevin, the Defendant avowed, and the Plain∣tiff demurred, and the Case was thus;

William Hawes was seized in Fee of a Messuage and 55 Acres of Land, five Acres of Meadow, and six Acres of Pasture, in Formanton in Com. Hereford. and 27. Junii, 28 H. 8. by Indenture, demised the Tenement aforesaid to N. Traheron for 79 years, Reddendo inde annuatim praefat. Gulielm. Hawes et assign. suis 26 s. 8 d. at the Feasts of the Annunciation, and St. Michael, by equal portions. And after the Lessor dyed, and the Reversion descended to William his Son, under whom the said John Edwin Claimed. And the sole Point was, If the Rent reserved in this Case shall go to the Heir, or be determined by the death of the Lessor.

If the Lessor had reserved the Rent to him without more, this shall determine by the death of the Lessor. And the addition of the word Assignes shall not enlarge the reservation; for the Assignes cannot have the Rent longer than the Lessor himself should have it. Vide 18 Ed. 3. tit. Ass. 86. 10 Ed. 4. 18. 27 H. 8. 19. per Audl••y, et vide H••ll. 33 Eliz. Rot. 1341. In a Replevin, enter Richmond and Butcher; Butcher avowed for Rent as Heir to his Father; upon a Demise made by his Fa∣ther of certain Lands, for 21 years, by these words, Red∣dendo proinde durant. termin. 21 annos praefat. (Patri) exe∣cutor et assignat. suis 10 l. legalis, &c. ad festa, &c. And it was adjudged, That by this Reservation the Heir should not have the Rent, because the Reservation was to the Father, and his Executors, &c. not to his Heirs.

Mich. 5 Jac. Regis,

Case concerning Buggary.

The Letter of the Statute, 25 H. 8. cap. 6. If any Person shall commit the detestable sin of Buggary with Mankind or Beast, &c. it is Felony; which Act being Repealed 1 Mar. is revived and made perpetual 5 Eliz. cap. 17. and he lose his Clergy.

It appears by antient Authorities of the Law, That this was Felony, but they vary in the punishment. For Britton, who writ 5 Ed. 1. cap. 17. saith, That Sorcerers, Sodomers, and Hereticks, shall be burned: F. N. B. 269. agrees with it. But Fleta lib. 1. cap. 35. Christiani Apostati, &c. debent cumburi, (this agrees with Britton) but Pecorantes et Sodomitae terra vivis••ffodiantur. But in the Mirror of Justice, vouched in Plow. Com. in Fogosses Case; the Crime is more high, for there it is called Crimen laesae majestatis, a horrible Sin against the King, either Celestial or Terrestial in three manners: 1. By Heresy, 2. By Buggary, 3. By Sodomy. Note, So∣domy

is with mankind, and is Felony, and to make that Offence, Opertet rem penetrate et semen naturae emittere et effundere; for the Indictment is, Contra ordinationem Crea∣toris et naturae ordinem rem habuit veneream dictum{que} puerum carnaliter cognovit; and so it was held in the Case of Stafford, Paederastes ••mator puerorum, Vide Rot. Parl. 50 Ed. 3. 58. So in a Rape there must be penetration, and emission of Seed, Vide Stamf. fol. 44. which Sta∣tute makes the Accessary Guilty of Felony.

West. 1. cap. 34. If a Man ravish a Woman, 11 H. 4. 18. If one Ayd another in a Rape, or be present, he is principle in the Buggary, Vide Levit. 18. 22. et cap. 10. 13. 1 Cor. 6.

Case of Premunire.

In Doctor Cosines Book, intituled, An Answer, &c. and publisht 1584. And a Pamphlet lately publisht by Doctor Ridley, they would obtrude upon the World, That in regard by the Act 10 Eliz. cap. 1. all Spiritual and Ecclesiastical Power within the Realm is annexed to the Crown, and the Law thereof is the Kings Ecclesi∣astical Law; That therefore no Premunire lyes against any Spiritual Judge for any cause whatsoever; And the Reasons some of their Profession give to confirm it are,

1. That when the Statute of Premunire was made, the Pope usurped Ecclesiastical Jurisdiction, though de jure it belonged to the King: But now since the King as well de facto as de jure is Supream Head of all; The cause being changed, the Law is changed also.

2. ••T conclusion of the Writ of Premunire is in Domini Regis contemptum et prejudicium et dictae Coronae et dignita∣tum suarum Laesionem et exhaeredationem manifestam et contra forman statuti, &c. which proves the Jurisdictions united to the Crown; and what is united to, and derived from

the Crown, cannot be said contra Coronam et dignitatem Regis.

3. The High Commission Court is the Kings Court, and therefore though it may be said, The Consistory Courts are Curiae Episcoporum, yet that Court, by force of the High Commission, is the Kings, and so their Pro∣ceeding•• shall not be lyable to the Premunire.

4. This new Court is erected by Act of Parliament, &c. And because the S••atute of R. 2. speaks de curia Romana seu alibi, &c. This (alibi) cannot extend to a Court erected by Act of Parliament, 10 Eliz. But to these Ob∣jections it was answered and resolved by divers Justices in this Term, That without Question the•• Statutes of 27 Ed. 3. 16 R. 2. &c. de Premunire, are yet in force. And all proceedings before any Ecclesiastical Judge, that were in danger of Premunire before 1 Eliz. are now in case of Premunire after the said Act, the said Acts of Premunire not being repealed by 1 Eliz.

1. 2. And as to first and second Objections, it was answered, That true it is, The Crown of England hath as well Ecclesiastical as Temporal Jurisdiction annex'd to it, as appears by the Resolution in Cawdryes Case from Age to Age. And though this was de jure, yet where the Pope became so Potent, he usurped upon the Kings Ecclesiastical Power in this Realm, but this was meer Usurpation. And therefore all the Kings of this Realm, Totis viribus proinde, for establishing of their Temporal Law, by which they inherit their Crown, and by which, &c. were alwayes jealous in any part or point it should be incroached upon; And if the Ecclesiastical Law did usurp upon the Temporal, it was severely punished, and the Offender judged an Enemy to the King by the anci∣ent Statutes; and every one might have killed him be∣fore the Statute of 5 Eliz. And this is the Reason, the Crown it self is directed descendable by the Common Law, and Treason against the Crown is punished by this Law. And therefore usurpation by an Ecclesiasti∣call

Judge upon it, is said to be contra Coronam et digni∣tatem Regis: And all Prohibitions since 1 Eliz. do con∣clude contra Coronam et dignitatem Regiam; for as 'twas resolved by all the Justices, Pasch. 4 Jac. Regis, est contra Coronam, &c. when any Ecclesiastical Judge doth usurpe upon the Temporal Law, for the cause of the Subject is drawn ad aliud examen, when his Cause is not ended by the Common Law, whereto by Birth-right he is inheritable.

3. As to the Third, though the Court by force of High-Commission is the Court of the King, yet their proceedings are Ecclesiastical: And therefore if they usurpe upon the Temporal Law, this is the same offence which was before the Act, 10 Eliz.

4. As to the Fourth, though it be a new Court, yet the antient Statutes extend to it, in this word (Alibi) and in H. 8. times several new Bishopricks were erected; yet never any question, but the old Acts of Premuri did ex∣tend to them. But to answer all Objections at once, whereas the Act 1 Eliz. repealed the Statute 1 & 2 P. & M. cap. 8. yet there is an express Proviso in the said Act 1 Eliz. That it shall not extend to Repeal any Clause or Matter contained in the 1 et 2 P. M. which in any sort concerneth any matter or cause of Premunire, but that all of that stand in force. See the said two Acts, and also 16 R. 2. Also the Act of 1 Eliz. revives the Act 25 H. 8. cap. 10. which makes a Premunire in a Dean and Chapter, &c. for not electing, certifying, or admitting a Bishop elected; by all which, it appears the said Act of 1 Eliz. never intended to take away the offence of Premunire.

But note in what Cases a Premunire lyes, and in what not.

1. In all Causes, when the Cause originally belongs to the Cognizance of the Ecclesiastical Court and Suit is prosecuted there, as belonging to their Cognizance, (though in truth (if rightly examined) it ought to be

determined ••t Common Law) yet no Premunire lyes there, but a Prohibition. As if Tythes are severed from the nine parts, and are carried away; if the Parson sue for the Substraction of these Tythes in the Spiritual Court, this is not in the case of Premunire, Vide 10 H. 4. 2. agreeing with this Opinion. So if a Parson sue for Tythes of surmising that they were Sylvae Caduae, under the age of 20 years, where in truth they were above; yet a Prohibition lyeth, and no Premunire.

2. But though the Cause originally may appertain to the Cognizance of the Ecclesiastical Judge, yet if he sue for it in the nature of a Suit, which doth not belong to the Ecclesiastical Court, but to the Common Law, there a Premunire lyeth: As in the former Case, If the Parson after severing of Tythes, will in any Ecclesiasti∣cal Court sue for carrying away his Tythes from the 9 parts, which Action pertains to the Common Law: In such case both the Actor and Judge incurr the danger of Premunire. And so it was adjudged 17 H. 8. as Spillm••n Reports it: One Turb••rvile sued a Premunire against a Parson, that convened him into the Ecclesiasti∣cal Court, and there libell'd against him for taking of Ty hes which were sever from the nine parts, and the Parson was condemned to be out of the protection of the King, to forfeit all his Lands, Goods, and Chattels, and his Body to perpetual Imprisonment, and damages to the Party. So of a Mortuary delivered and re-taken; if the Parson sue for this as for a Mortuary to him delive∣red, he is in case of Premunire, 10 H. 4. 2. So in the case put for tythe of Wood, if it appear by the Libell that the Cognizance of the Case doth not belong to Court Christian, the Premunire lyes, as you may see in the Book of Entries▪ tit. Dismes, fol. 221. But the tit. Prohibition, fol. 449. Divisione Dismes, Ps. 2, 3, 4, 5, & 6. If the suit be pro Sylva caedua, &c. and the Suit be framed so as the Cognizance belongs to Court Christian, though the truth be otherwise; no Premunire, but a Prohibition lyes.

3. When the cause originally belongs to the Cogni∣zance of the Common Law, and not to the Ecclesiasti∣cal Court; there though they Libel for it according to the course of the Ecclesiastical Law, yet the Premunire lyeth, because that this draws the cause which is deter∣minable at Common Law ad aliud examen, viz. to be decided by the Civil Law, and so deprives the Subject of the Common Law, his Birth-right; and wi••h this agrees the Book of Entries, tit. Premunire, fol. 229. b. & 430. a. So that if the Original cause be Temporal, though that they proceed by Citation, Libel, &c. in Ecclesi∣astical manner, yet this is in danger of Premunire. And the reason of this is, because he endeavours to draw Cog∣nitionem quae ad Curiam domini Regis pertinet ad aliud exa∣men; that is, that the Debt, the Cognizance whereof belongs to the Court of the King; he intends by the Original Suit to draw it to be determined by the Eccle∣siastical Court.

And note, In the Indictment of Premunire against Cardinal Wools••y, Mich. 21 H. 8. 14. it is said, Quod Praedictus Cardinalis intend. finaliter antiquissimas leges Angliae penitus subvertere et enervare, univer sumque hoc Regnum Angliae et ejusdem Angliae populum, legibus imperia∣libus, vuilgo dict. legibus Civilibus, et ••orum legum Canonibus isperpetuum subjurare, &c. And this included within these words, Ad aliud examen trahere, viz. to decide that by the Civil Law, which is determinable by the Common Law. And upon this was a notable Case in Hill. an. 25 H. 8. of Nicholas, Bishop of Norwich, against whom, he then being in the Custody of the Marshall, the Kings Attorney did prefer a Bill of Premunire, the matter whereof was this, In Thetford in Com. Norfolke hath been de tempore cujus, &c. such Custom that all Ecclesiastical Causes rising in that Town should be de∣termined before the Dean of that Town, who hath parti∣cular Jurisdiction there, and that none in that Town shall be drawn in Plea in any other Court-Christian,

unless before the same Dean: And if it ought to be done against the same Custom, this to be presented before the Mayor of the same Town, and the Party to forfeit 6 s. 8 d. That One such sued in the Consistory of the Bishop for a thing arising within the said Town, which was presented before the Mayor, for which he forfeited 6 s. 8 d. The Bishop cited the Mayor to appear before him at his House at Hoxin in Suffolk, generally pro salute animae, but upon appearance••, 〈◊〉〈◊〉 upon all the Matter, and enjoyn'd him on pain of Excommunication, to annul the said Presentment: The Bishop had Council assigned him, who objected, That as well the Present∣ment as Custom was void, and therefore not contra Co∣ronam, &c. nor drawn by the Bishop ad aliud exa∣men.

2. They objected, That the Bishop's Court was not intended within the Act of 16 R. 2. but in Cur. Romana aut alibi, and this (alibi) ought not to be out of the Realm; but it was,

Resolved by Fitz James, chief Justice, Et. per to∣tam Curiam, that be the Custom or Presentment good or bad, this is a Temporal thing, determinable at Common Law, and not in Spiritual Court; and therefore the Bishop hath incurred the Premunire.

3. That alibi extends as well to the Bishop's Courts, &c. as well within the Realm, as else-where; and so the Court said it had been often adjudged: whereupon the Bishop confessed the Indictment. And Judgment was given, That he shall be out of the King's Protection, and that his Lands, Goods, and Chattels, should be for∣feited, and his Body to be imprisoned ad voluntatem Regis; &c.

Nicholas Fuller's Case.

In the great Case of Nicholas Fuller of Grays-Inn, these Points were Resolved by all the Justices and Barons of the Exchequer.

1. Resolved, That no Consultation can be granted out of Term, because it is a final award of the Court; and can neither be granted in Term nor out of Term by all the Judges, except in Court; the name of the Writ signifying the same.

2. Resolved, That the Construction of the Statute 1 Eliz. cap. 1. and of the Letters Patents of High-Com∣mission, in Ecclesiastical Causes, founded upon the said Act, belongs to the Judges of the Common Law: And therefore the Consultation which was granted with this restraint, Quatenus non agat de authoritate et validitate Literarum Patentium pro causis Ecclesiasticis, vobis vel ali∣quibus vestrum direct. aut de expesitione et interpretatione Statuti de anno primo nuper Reginae, &c. As if the King hath a Benefice donative, by Letters Patents; this shall not be visitable, nor deprivable by any Ecclesiastical Authority, but by the Chancellor of the King, or Com∣missioners under the Great Seal.

3. Resolved, When there is any Question concerning what Power or Jurisdiction belongs to Ecclesiastical Judges in any such Case, the determination of this be∣longs to the Judges of the Common Law, in what cases they have Cognizance, and in what not; And accor∣ding to this Resolution, Bracton, lib. 5. tract. de except. cap. 15. fol. 412. Vide also Entries, fol. 445. There was a Question, whether Court-Christian should have Cogni∣zance of a Lamp, and a Prohibition was granted, Quod non procedant in Curia Christianitatis, quousque in Curiae ••ostra discussum fuerit utram cognitio placiti illius ad Curiam nostram, vel ad forum Ecclesiasticum pertineat. And all

this appears in our Books, that the Judges of the Com∣mon Law shall determ••ne in what Cases the Ecclesi∣astical Judges have Power to punish any pro Laesioae fidei, 2 H. 4. fol. 10. 11 H. 4. 88. 22 Ed. 4. 20. or of the bounds of Parishes, 5 Ed. 3 8 8 Ed. 3. 69. 70. 18 Ed. 3. 58. 12 Ed. 4. 9 H. 7. 1. 10 H. 7. 9. And there∣fore in this Case of Fuller, one other Restraint was ad∣ded in the Consultation, Et quatenus non agat de aliqui∣bus scandalis, contemptibus s••u aliis rebus quae ad communen legem, aut Statuta Regni nostri Angliae suat pu••ienda et determinanda.

4. Resolved, That if a Councellor at Law, in his Argument, shall scandal the King, or his Government, Temporal or Ecclesiastical, this is a misdemeanor, and and contempt to the Court; for which he shall be in∣dicted, fined, and imprisoned, but not in Court Christian; but if he publish any Heresy, Schisme, or erroneous Opinion in Religion, he may for this be punished by the Ecclesiastical Judges; for the Rule is, Quod non est juri consonum, quod quis pro aliis quae in Curiis nostris act a sunt, quorum cognitio ad nos pertinet, trahatur in placitum in Curia Christianitatis. See the Book of Entries, fol. 448. And for this cause a Consultation was granted, Quoad Schis∣mata, Hereses, &c. Vide M••ch. 18 H. 8. Rot. 78. in Banco Regis. The Case was, a Leet was ••eld Jovis post Festum Sancti Mich. Arch. 17 H. 8. of the Prior of the House of St. John de Bethelehem de Shrine of this Mannor of Levi∣sham in Com. Surrey before John Beare, Steward there; a Grand Jury was charged to inquire for the King of all Offences inquirable within the said Leet, where one Phillip Aldwin, who was a resident within the said Leet, appeared, Idem{que}, Phillippus sciens quandam Margaretam ux∣orem Johannis Aldwin apud East-Greenwich infra jurisdicti∣onem Letae proed. pluries per antea corpus suum in adulterio viciose exercuissse, &c. eisdem sic juratis de dicta, &c. infor∣mationem veraciter dedit. Upon which the said Margaret drew the said Phillip into the Archbishop of Canterbury

his Court, and there libelled against him for defama∣tion of Adultery; and that the Phillip said in hisce Angl. verbis, [Margaret Allen is a Whore and a Bawde, and it is not yet three weeks agone since a man might take a Priest betwixt her Legs,] which words were parcel of the words by which he informed the Jury at the Leet: And upon this he had a Prohibition; and by this Record it appears, and by the Statute, 10 Ed. 3. c. 11. that In∣dictors of Lay-People, or Clerks, in Turneys, and after delivering them before Justices, shall not be sued for Defamation in Court-Christian, but that the Plaintiff grieved shall have a Prohibition, Vide Pasch. 6 Eliz. In the Lord Dyers Reports (which Case is not Printed); John Halles in the Case of Marriage between the Earl of Hereford, and the Lady Katharine Gray, declared his Opinion against the Sentence given by Commissioners of the Queen in a Cause Ecclesiasticall, under the Great Seal, [That the said Sentence was unjust and wicked, and that he thought the Delegates had done against their Conscience;] and what offence this was, was referred to divers Judges to consider, by whom it was Resolved, That this Offence was a contemp•• as well against the Queen as to the Judges, and punishable by the Common-Law, by Fine and Imprisonment.

5. Resolved, When any Libell in Ecclesiastical Court, contains many Articles; if any of them do not belong to Court-Christian, a Prohibition may be generally granted, and upon motion, Consultation may be made as to things which belong to Spiritual Juris∣diction: And for these Reasons, it was Resolved by all, That the Prohibition in the case at Bar was well gran∣ted, which in truth was granted by Fenner and Crooke, Justices, in the Vacation.

Note these general Rules concerning Prohibitions, Quaesparsim inveniantur in libris nostris.

Non debet dici tendere in praejudicinm Ecclesiasticae liber∣tatis quod rege et repub. necessarium videtur, Artic. Cleri. c. 8.

(2.) Non est juri consonum, quod quis, super iis quorum cogni∣tio ad nos pertinet, in Curia Christianitatis trahetur in placi∣tum, Entries 444. 447.

(3.) Episcopus teneat placitum in Curia Christianita∣tis de iis quae mere sunt Spiritualia: Circumsp••cte agatis, &c.

(4.) Prohibeatur de caetero Hospitalariis et Templariis, ne de caetero trahunt aliquem in plac••tum coram conservatoribus privilegiorum de aliquare cujus cognitio ad Forum spectat Regium. West. 2. cap. 43.

(5.) Non concedantur citationes priusquam exprimatur super quare fieri debet citatio. Ibidem.

6. Resolved, That this special Consultation being on∣ly of Heresy, Schisme, and erroneous Opinions, &c. that if they convict Fuller, and if he recant the same, &c. that he shall never be punished by Ecclesiastical Law: After the Consultation granted, the Commissioners pro∣ceeded, and convicted Fuller of Schisme and erroneous Opinions, and imprisoned and fined him 200 l. And after in the same Term Fuller moved the Court of Kings Bench, to have a Habeas Corpus, et ei conceditur; upon which Writ the Goaler did return the cause of his deten∣tion.

Mich. 5 Jac. Regis.

The Case of First-Fruits and Tenths.

Note, Annates, Primitiae and First-Fruits are all one: It was the value of every Spiritual Liv••ng by the year, which the Pope, claiming the disposition of all Ecclesi∣astical Livings, reserved. And those, and Impropria∣tions began about the time that Polidore Virgil, lib. 8. cap 2. saith, Vide Concilium Viennense quod Clemens quintus indixit pro annatibus.

These First-Fruits were given to the Crown, 26 H. 8. cap. 3.

Note, Hill. 34 Ed. 1. An. 1307. At a Parliament held at Carlisle, great Complaint was made of Oppressi∣ons of Churches, &c. by William Testa (called Mala Testa) and Legate of the Pope; in which Parliament, the King, with his Barons assent, denied payment of First-Fruits; And to this effect he writ to the Pope: whereupon the Pope relinquished his Demand, and the First-Fruits for Two years were by that Parliament given to the King.

Decimae, id est, Tenths of Spiritualties were perpetual, and paid to the Pope, till Pope Urban gave them to R. 2. to aid him against Charles, King of France, and others who supported Clement the 7th. against him.

5 H. 3. By the Popes Bulls all Tenths were paid to H. 3. for years: These were given to the King, 26 H. 8. cap. 6.

Vide Dambert de prist Anglor. &c. fol. 128. cap. 10. et ibidem inter leges Juae, fol. 78. cap. 4.

Sir Anthony Roper's Case.

In the Case of Sir Anthony Roper, drawn before the High Commissioners, at the Suit of one Bullbrook, Vicar of Bently, for a Pension out of a Rectory Impropriate, whereof Sir Anthony was seized in Fee: And the High-Commissioners sentenced the said Sir Anthony to pay it, which he refused; whereupon they committed him to Prison, who appeared in Court this Term by Habeas Corpus; upon the return of which Writ, the matter did appear: And it was well debated by the Justices, and Resolved:

1. That the said Commissioners had not Authority in the said Case; for when the Acts of the 27 H. 8. and 31 H. 8. of Monasteries, had made Parsonages Impro∣priate, &c. although that Pensions were saved, yet by the Preamble of the Act, 34 H. 8. cap. 16. those to

whom the Pensions appertain, had not remedy for the said Pensions, &c. And if the King covenanted to dis∣charge the Patentee, &c. of Pensions, the Suit shall be made for the same in the Court of Augmentations, and not else-where: And if High-Commissioners will de∣termine of Pensions, they must do it by that Act, 34 H. 8. which expresly gives it to Ordinaries, and their Offi∣cials; the High-Commissioners Power being granted long after by the Act, 1 Eliz.

But it was Object••d, That that Act of 1 Eliz. gave the Queen and her Successors Power to assign Commissi∣oners, &c. And it was said, That such Spiritual Juris∣diction which the Bishop should have, is transferred to the High Commissioners.

But it was unanimously resolved by Coke, Walmesly, Warberton, Daniel, and Foster, Justices, That the Act 1 Eliz. extends not to this Case for divers Causes.

1. Because the Act of the 1 Eliz. doth not take away nor alter any Act of Parliament; but those onely which are expresly named therein: And it was R••solved, That the High-Commissioners cannot hold Plea for the double value of Tythes carried away before severance.

2. Because the words in the 1 Eliz. are [which by any manner of Spiritual Jurisdiction can or lawfully may be reformed.] And it appears, That these words extend to Crime only, and not to Cases of Interest be∣twixt Party and Party.

3. Because this Jurisdiction was given to the Bishops by Act of Parliament, viz. 34 H. 8. which is more Temporal than Spiritual, as all of Parliament are.

4. It was not the intent of the Act 1 Eliz. which re∣vived the Statute, 23 H. 8. cap. 9. That the High-Commissioners, for private Causes, shall send for Sub∣jects out of any part of the Realm; and so in effect con∣found the jurisdiction of the Ordinary, an Officer so ne∣cessary, that the Kings Courts cannot be without him in divers Cases.

5. If that Act 1 Eliz. had extended to give High-Commissioners power to determine meum et tuum, as Pensions, Tythes, &c. the Party thereby also should have benefit to appeal, otherwise this should be dissolve the Court of the Ordinary, which is so antient and ne∣cessary in many Cases, that without it Justice cannot be administred.

6. The High-Commissioners cannot extend themselves but only to Crime.

Mich. 5 Jac. Regis, Rot. 2254.

Praecept. fuit Guardiano prison. Domini Regis de Flecte, quod haberet qpud ••estm. immediate, &c. Co••pus Anthonii Roper Mil. inprison. praed. sub custodia sua detent. quocun∣que nomin•• cens reretur una cum die & causa, &c. Et iidem Justiciarii hic visa causa illa, ulterius fieri fecerint quod &c. Et modo hic ad hunc diem, viz. diem Sab. prox. Oct. Sanct. Mich. isto eo••um termino venit praed. Anthonius in propria persona sua•• sub custod. praed. Guard. ad Barr. hic. praed & idem Guardianus tunc hic mand. Quod ante advent. brevis praed. v••z. 9. die Oct. ult. praeter. praed. Anthonii Roper mil. reducit se prison. praed. perantea Commissus virtute cu∣jusdam ••arranti dat. 30 die Junii ult. praeter. quod sequitur in haec verba, viz.

These are in his Maj••sties Name to require and charge you by Vertute of his High-Commission, for causes Ec∣clesiastical, under the Great Seal of England to us and others directed, that herewith you receive and take into your Custody the Body of Sir Anthony Roper Knight, and him safely detain, &c. signifying unto you, That the cause of his Commitment, for that there being a certain cause, &c. betwixt him the said Sir Anthony Roper and John Bullbrooke Vicar of Bently, for that he detained wrongfully from him the said Vicar, a certain yearly

Pension, &c. Given at Lambeth, this thirtieth of June, 1607.

Et quod haec suit causa captionis et detentionis praed. An∣thonii in prison. praed. corpus tamen praed. Anthonii modo hic paratus h••bet prout &••▪ super quo visis praemissis & per Justiciurios hic plenius examinatis, videtur iisdem Justiciari∣is hic quod praed. causa Commissionis praed. Anthonii prison. de Fleet prae••, in retorn. sp••cificat. minus sufficiens in lege existit, &c. Idco prad. Anthonius a prisona prad. per-Cur. hic dimittitur, ac idem Guardianus de hujusmodi Custo∣dia per eand. Cur. hic plene exoneretur. And this was re∣solved una voce by Coke, chief Justice, Walmesly, Warberton, Daniel, and Foster, Justices.

And in the same Term in I am's Case, A Parson in No••folk, that sued one of his Parishioners before the High-Commissioners for Scandal, in saying only in the Church on a Sabbath day, That he was a wicked man, and an arrant Knave. Prohibition lyes for this, That it was not so enormous as the Sta••••te intended.

Hill. 5 Jac. Regis.

Note, It was moved to the Justices this Term, upon consideration of the Acts of 34 H. 8. and 18 Eliz. If the Justices in Wales may be Constituted by Commis∣sion, and it was conceived they could not, but that it ought to be by Patent, as hath been ever used since 34 H. 8. Then it was moved, If the King by force of a Clause there in might do it; which Clause is, That the King's most Royal Majesty shall and may at all times hereafter change, adde, alter, minish, and reform all manner, &c. And it seemed to divers of the Justices, that this Power given to the King, determin'd by his Death for divers Causes.

1. Because it wants these Words, His Successors; and to draw it in Succession, by Construction, would be a∣gainst the Intention of the Maker of the Act: For they gave this high Power of Alteration, &c. of Laws, to the King, as to his most Excellent Wisdom shall be thought most meet; which words want His Successors: For they well knew, his Wisdom did not go in Succession, so the Power went not in Succession: And for this that Eorum progressus ostendent multa quae ab initio provideri non pos∣sunt: And what ensues upon this, concerning this uniting of Wales and England none could divine. But it was ne∣ver the Intention of the said Act, to give Power to the King and his Successors for ever to alter, &c.

2. Power of Alteration of Laws, &c. is a Point of Confidence, concerning the Administration of Justice; which the Act, by omitting of his Successors, intended to unite this Confidence to the Person of H. 8. and not to extend it without Limitation of time to his Successors, 1 Ed. 5. 1. 1 H. 7. 1. 14 Ed. 4. 44. All Commissions concerning Administration of Justice, determine by the King's Death: Not so, if he make a Lease durante bene pla∣cito, or present one to a Church; these are not void by his Death, untill revoked by his Successor. And upon Certificate of the Justices Opinion, That the Justices of Wales cannot be Constituted by Commission, Baron Snig had a Patent for the Circuit of Wales, as others before him had.

Trin. 6 Jac. Regis.

This Term it was Resolved, per totam Curiam in Com∣muni Banco, viz. Coke Chief Justice, Walmesly, Warberton, Daniel, and Foster, in the Case of Allan Ball, That the High-Commissions cannot be force of the Act, 1 Eliz. cap. 1. send a Pursivant to Arrest any Person subj••ct to their Jurisdiction, to answer to any matter before them:

But they ought to proceed according to Ecclesiasticall Law by Citation: And in the Circuit of Northampton, when the Lord Anderson and Glanvile were Justices of Assize, a Pursivant was sent by the Commissioners to Arrest the Body of a Man to appear before them; and in resistance of the Arrest, and striving among them, the Pursivant was killed. And if this was Murther, or not, was doubted: and it was Resolved, that the Arrest was tortious, and by consequence, that this was not Murther, (though the killing of an Officer of Justice (whose Au∣thority is lawful) in Execution of his Office is Murther. But they may send Citation by a Puisivant, and upon de∣fault proceed to Excommunication, and then to have a Capias Excommunicatum; which Writ, de excommunicato capiendo, is preserved and returnable by the Statute 5 Eliz. See Magna Charta, and all the antient Statutes: Vid. Rast. Title Accusation.

Marmaduke Langdale's Case.

In the Case of Marmaduke Langdale of Leventhorp, in the County of York, by Joan his Wife, being sued for maintenance before the Bishop of Canterbury, and others High-Commissioners: It was Resolved, per totam Curiam, praeter Walmesly, that a Prohibition before granted, was well maintainable; because it was not any Enormity nor Offence within the Statute, but a neglect of his du∣ty, and a Breach of his Vow of maintenance: And the Rule of the Court was, That the Plaintiff shall count against the High-Commissioners, and upon Demurrer joyned the Case to be argued and adjudged; and the Party grieved, to have a Writ of Errour, si sibi viderit expedire, &c. Upon Complaint made to the King and Councel, by the Lord President of Wales, and the Lord President of York, against the Judges of the Realm; and the King's Pleasure signified to them: Upon Conside∣ration

had of the parts of the Complaint, they Resolved upon these Answers: And because of the Lord President of York first opened the Cause of his Grief more amply, they first answered those Objections, made on the behalf of that Councel: And first, as to the Institution of that Court.

1. After the Suppression of all Religious Houses, Anno 27. H. 8. in October 28. H. 8. there was an Insurre∣ction of the Lord Hussey, and 20000 Men in Lincolnshire, about Religion, which was appeased by the Duke of Suffolk.

This was no sooner over, but 40000 Men under Sir Robert Aske, made a Commotion in Yorkshire. Soon af∣ter was a great Rebellion in Lancashire, Westmerland; Cumberland, and Northumberland, which the Earl of Der∣by quieted. Then Musgrave, Tilby, and others, assaulted Carlisle Castle, and were overthrown by the Duke of Nor∣folk: Soon after, Sir Francis Pigot Rebelled at Setring∣ton in Yorkshire. Soon after, the Lord Darcy, &c. began a Commotion about Hull, appeased by the Duke of Nor∣folk. And all these Rebellions were between the 28. of and 30. of H. 8. in which time, many of the Rebels were Executed. And the King having effected in the 31 year of his Reign, the Suppression of the greater Houses of Religion, he establisht a Councel there for the quiet of the Counties of Yorkshire, Northumberland, Westmerland, Cumberland, Durham, the Counties of the City of York, Kingston upon Hull, and Newcastle upon Ty••e, for preven∣tions of Ryots, &c. And in this time of Necessity, the King Armed the President and Councel with two Autho∣rities in one Commission. The one, A Commission of Oyer and Terminer, de quibuscun{que} Congregationibus & conventiculis illicitis coadjutoribus, Lolardiis, &c. per quae pax & tranquilitas subditorum nostrorum Comitatibus, &c. praedict. gravat. &c. secundum legem & co••suetudinem regni nostri Angliae, &c.

The other Authority was, Nec non quascun{que} actiones∣reales seu de libero tenemento, & personales, causasque de, bitorum & demandorum quorumcun{que} in Com. &c. praed. quando ambae partes vel altera pars sic gravata paupertate fuerit quod commode Jus suum secundum legem Regni nostri aliter prosequi non possit, &c. And this was the Authori∣ty that the President and Councel had at first, without any private Instructions, as appears by the Commission under the Great Seal, 31 H. 8. 6 pars Roberto Landa∣vensi Episcopo Presidenti Consilii & aliis: out of which these things were observed.

1. That the intention of the Commission was, Quod pax subditorum & tranquilitas preserventur.

2. That they hear and determine Riots, Routs, &c. ac∣cording to Law, or their Discretions; which without question was no otherwise intended, but that they should proceed according to Law; for that is summa discretio, and not according to private Conceits for talis discretio discretionem confundit: so the other Clause concerning reall and personal Actions, in all the Counties and Pla∣ces aforesaid, was onely ad faciendum populum, for it was utterly void in Law.

1. Because no such general Authority granted, may be made by the Commission of the King, to hear and de∣termine all reall Actions within such a County accord∣ing to Law, as he may be Charter in a particular Coun∣ty or place: As it was Resolved in Scrogges Case, An. 2 Eliz. so. 175. in Dyer: Vid. Dyer 236. But the King by Letters-Patents may grant to a Corporation in such a Town, Tenere placita realia, personalia & mixta. And none can by this be prejudiced; for the proceeding ought to be according to Law; and if they erre, a Writ of Errour lies. See Magna Charta, cap. 12. and Westm. 2. cap. 30. which Acts give Authority to Justices of As∣size in their proper Counties; whereby it appears, that without an Act of Parliament, the King by Letters Pa∣tents cannot authorize Justices De Assize capiend. to take

them in another County. As a Justice of one Bench, or other, ought to be made by Commission, not by Writ, yet he may be discharged by Writ, 5 Ed. 4. 32. But Ju∣stices in Eyre are by Writ, Bracton, lib. 3. cap. 11. & Brit∣ton, fo. 1. Also, Westm. 2. cap. 30. and of York, cap. 4. & sic de ceteris.

Also it was observed, that at first the Commission ex∣tended onely when one or both Parties were so poor, as they were not able to prosecute at Law. Also they had no power to grant Injunctions: and lastly, their Com∣mission was a Patent under the Great Seal, and enrolled in Chancery. And thus much was said concerning the first Institution of the Court:

2. That our Proceedings in granting Prohibitions, is for matter justifiable by Law.

As to this, whereas at first their Authority was Patent, it is now private; for the Letters-Patent refer to pri∣vate Instructions, which are no where of Record, Et de non apparentibus & non existentibus eadam est ratio: be∣sides, the danger to the Subject is great; for if they lose their Instructions (which hath and may happen) all is Coram non Judice. The second Reason is drawn from the contumacy of the Party, supposed to be grieved by the Prohibition, and against whom it is granted: for if the Authority of the Councel be never so good, yet being a late Jurisdiction, the Party must of necessity plead it, so as it may appear judicially; for as we are Judges of Record, so must we be informed of Record: And no party prohibited, ever yet moved in Court to have a con∣sultation, by which might be set forth the Jurisdiction of that Court and Councel; so as the granting of Pro∣hibitions hath been just. The third Reason is drawn from the great Injury offered to the Defendants, for it is a true Rule, Misera servitus ubi jus est vagum aut in∣certum. The Defendants by Law may in all Courts plead to the Jurisdiction of the Court: but how can they do so, when no man can possibly know what Jurisdiction they

have: And the keeping of them in such Secrecy be∣wrayeth that the Councel are afraid, that they would not be justified if they were known.

3. That the manner of our Proceedings was respect∣ful: for a Jury of Officers and Attorneys of our Court being according to an antient Custome, time out of mind used, sworn to present, among other things, all Defaults of Officers and Ministers, in not executing the Process of this Cou••t, and all Impediments of the due Proceedings thereof: And finding upon their Oaths, divers unjust Impediments of the said Proceedings by the said Councel in particular, thereupon a motion being made in open Court in Michaelmas Term last, by the King's Serjeant Philips, of many Grievances done there∣by, prayed the Court, according to Law and Justice, to grant several Prohibitions, in all those several Causes, which we could not deny. Yet first we conferred with Sir Cuthbert Pepper, Attorney of the Wards, and one of that Councel, to let him understand the part••cular G••ievan∣ces; who, upon Motion, came to us to Se••geants Inne, with whom we conferred, who would not take upon him to justifie the same in no sort, but said he would acquaint the President and Councel therewith, and return their Answer. Which for that it was neglected, upon further Motion in Court, we granted Prohibition, as in Justice we ought.

4. Now to answer all Objections: And first, where it was objected, more Prohibitions had been granted of late, than in many years before: To this a Sixfold An∣swer was made.

1. That they had exceedingly multiplyed the number of Causes; they in five Counties, and three Towns, ha∣ving at one sitting 450 Causes at Hearing: whereas the Chancery that extends into all England and Wales, had in Easter Term, but 95. and in Trinity Term but 72. to be heard. So that it is no wonder, it in such a Multiplica∣tion of Causes, the number of Prohibitions be increased.

2. Besides the Multiplication they have innovated and taken upon them, to deal in Causes which we know ne∣ver any President could, and we think, never any Presi∣dent and Councel did usurp: As first, Suits upon Penal Laws; As between H••rison and Thurston, upon the 39 of Eliz. of Tillage. 2. In H••rtley's Case, after Indict∣ment of Forcible Entry, and Restitution according to the Statute upon English Bill, dispossessed by the President. 3. After a Recovery in Ejectione Firmae, and Habere facias possessionem, out of our Court, they upon English Bill dis∣possessed the Plaintiff; this was Hart's Case. So in o∣ther Cases; as between Jackso•• and Philips, Stanton and Child, and Binns and Coll••t. 4. They admit Eng∣lish Bills, in nature of Writs of Errour & Formedons, and other reall Actions. 5. They wi••l ••dmit no Plea of Out∣lary, in disability of the Plaintiff. 6. They usually granted Injunctions to stay the Common-Law, which is utterly against Law; and som times to stay Suits in Chancery, and in the Exch••quer Chamb••r: for which, in respect as well of the Multiplications of Suits, as Innova∣tions of others, it may very well be, that more Prohibiti∣ons, and Habeas Corpus have been granted of late, than in time past. And yet there hath been more granted, and more antient than is supposed: For which, see Mich. 7 Eliz. Rot. 31. and Mich. 7. and 8 Eliz. in libro de Habeas Corpus. Also, Trin. 20 Eliz. ibid.

3. The Judges never grant either Prohibition, or Ha∣beas Corpus, but upon Motion or Complaint by the Par∣ty grieved; and therefore as the Subject hath more cause to complain, there must needs be more Prohibitions, and Habeas Corpus, than heretofore.

4. The Proceedings there are by absolute Power, and their Decrees uncontrollable and finall, more than in a Judgment in a Writ of Right, which makes them pre∣sume too much upon their Authority.

5. These Suits grow more prejudicial to the King than ever, because thereby the King loseth his Fines, &c.

6. Remedy for the time past; if the Common-Bench erre, Writ of Errour lies in Banco Regis; if the Kings-Bench erre, a Writ of Errour lyes in the Upper-House of Par∣liament.

7. For the time to come: 1. That the Instructions be inrolled in Chancery, that the Subject may see and know their Jurisdiction. 2. That the Presidents and Councels, have some Councel Learned in the Court, to inform us judicially of their true Jurisdiction, and we will give them a day to shew cause, that Justice may be done on both sides; and if we erre, the Law hath provided a Remedy by Writ of Errour: And we are sworn to do Justice to all, according to the Laws.

Upon this Answer of the Judges, the Lords of the Coun∣cel, upon Conference among themselves, gave (by the Earl of Salisbury, then Lord Treasurer) this Resoluti∣on.

1. That the Instructions should be Recorded, as far as they concerned Criminal Causes, or Causes between Party and Party: But as to State-Matters, not to be pub∣lished.

2. That both Councels should be within the Survey of Westminster Hall, viz. the Courts of Westminster.

3. The Motion was well allowed, that the Presidents and Councels should have Councel learned in every Court, that day might be given, &c.

And concerning the remotenesse of the place, the Counties of Cornwall and Devon, are more remote then York: And this was the end of that Dayes Work.

Case of Heresy.

Note, 2 Ma. title Heresy, Brook, per omnes Justiciarios et

Baker et Hare. The Archbishop in his Province, in the Convocation, may and doth use to convict Heresy by the Common-Law, and then to put them convicted into Lay-hands, and then by the Writ de Heretico comburendo, they were burnt; but because it was troublesome to call a Convocation, It was ordained by the Statute, 2 H. 4. cap. 15. That every Bishop in his Diocesse might convict Hereticks. And if the Sheriff was present, he might deliver such to be burnt without the Writ afore∣said; but if the Sheriff were absent, or he were ••o be burnt in another County, then the said Writ ought to be had: And that the Common-Law was such, Vide lib. intra, title Indictment, pl. 11. Who are Hereticks, See 11 H. 7. Book of Entries, fol. 319. See Doct. & Stud. lib. 2. cap. 29. Cosin. 48. 2. 1 & 2 P. & M. cap. 6. Also 3 F. N. B. fol. 269. And the Writ in the Register proves this directly, 4 Bracton l. 3. cap. 9. fol. 123, 124. And true it is, That every Ordinary may convent any Heretick or Schismatick before him pro salute animae, and may degrade him, and enjoyn him penance according to Ec∣clesiastical Law; but upon such Conviction, the Party shall not be burnt.

Nota, The makers of the Act of 1 Eliz. were in doubt what shall be deemed Heresy or Schisme, &c. and therefore the Statute of 10 Eliz. provides, That nothing shall be deemed Heresy, but what had been so determined by one of the four general Councels, the Word of God, or Parlia∣ment. See Fox in Ed. 6. and Britton. 5 Ed. 1. lib. 1. cap. 17. and with this agrees the Statute, 2 H. 5. cap. 7. 23 H. 7. 9. 25 H. 8. cap. 14. or that the procee∣dings in the Commencement and end was altered by the Statute, 25 H. 8. then came the Satute 1 Ed. 6. cap. 12. and that repealed 5 R. 2. 2 H. 5. & 26 H. 8. and the 2 H. 4. and by general words all Statutes concerning matter of Religion, then the 1 & 2 P. & M. c. 6. revived the 2 H. 4. by which the 25 H. 8. lost its force,

but by the Act 1 & 2 P. & M. cap. 8. expresly repeal∣ing. 21 H. 8. 23 H. 8. 24 H. 8. 27 H. 8. but the 25 H. 8. cap. 14. was not rep••aled, being repealed be∣fore by 〈◊〉〈◊〉 1 Ed. 6. yet in the end of that long Act, there is a general Clause sufficient of it self to repeal the Act 25 H. 8. cap. 14. without more: then the 1 Eliz. cap. 1. repeals the 1 and 2 P. and M. is repealed, except some Branches; and in the same Act it is enacted, That all other Statutes repealed by the said Act of Repeal, 1 and 2 P. and M. and not in this Act specially revived, shall re∣main repealed. But the 25 H. 8. cap. 14. was not particularly revived, and therefore remains repealed. And after the said Statute 1 Eliz. repeals the Act 1 and 2 P. and M. of reviving of three Acts for punish∣ment of Heresyes; so that now at Common-Law none can be burnt for Heresy, but by Conviction at a Convo∣cation.

Note, The High Commission may punish Heresies, and upon their Conviction, a Writ de Haeretico cumburen∣do. See 6 R. 2. by which the Commons disavowed their assent to the Act of the 5 R. 2. which was contrived by the Prelates in the Name of the Commons, whereas they never assented.

Mich. 6 Jac. Regis,

Langdale's Case.

In Langdales Case this Term, in a Prohibition to the High Commissioners, two Points were moved: 1. If a Feme Covert may sue for Alimony before the High-Commissioners. 2. If the Court of Common Pleas may grant a Prohibition when there is no Plea pendant there: This concerning the Jurisdiction of the Court was first debated, and divers Objections were made against it.

1. That this Court hath not Jurisdiction to hold Plea, without an Original, unless by Priviledge of an Attor∣ney,

Officer, or Clerk of the Court, and unless it be in a special Case, viz. when there is an Action there de∣pending for the same Cause; then it was agreed, that a Prohibition ought to recite, Quod cum tale Placitum pendet, &c. And it was said, That F. N. B. 43. g. agrees with this. But a man ought to have his Prohibition out of Chancery, or the Kings Bench, upon surmise that he is sued in Court Christian for a Temporal Cause, and the 2 Ed. 4. 11. 6. was cited.

To this it was answered and Resolved by Coke, chief Justice, Warberton, Daniell, and Foster, Justices, That the Common Pleas may award a Prohibition, though no Suit be there pendent; for it is the principal Court of Common Law for Common Pleas, Quia Communia Pla∣cita non sequantur Curiam nostram, as it is Enacted by Magna Charta, thirty times confirmed by Parliam••••••; then if the Ecclesiastical Judges incroach upon the Juris∣diction of the Common Pleas, there the Court shall Grant a Prohibition, and that without Original Writ, for divers Causes:

1. Because no Original Writ issuing out of Chance∣ry is retornable into the King Bench or Common Pleas, but is directed to a Judge, or Party, or both, and is not retornable. And upon contempt of the Prohibition, the Chancellor may award an Attachment, retornable either in the Kings Bench, or Common Pleas, which in such case is but a Judicial Writ. And if such Attachment be retornable in the Common Pleas, &c. the Plaintiff in the Declaration shall make mention of an Original in Chancery, and of the contempt, &c. as appears in a no∣table President.

2. There was great reason that no Original Writ of Prohibition shall be retornable, for the Common-Law was a Prohibition in it self, and incroachment up∣on it incurred a contempt, and with this agrees our Books, 9 H. 6. 56. And there 'tis held, That the Statute of the 45 Ed. 3. and the Common Law also was a Pro∣hibition

in it self: and thus the Rule of the Book, 19 H. 6. 54. so is it held in 8 R. 2. Title Attachment Sur Pro∣hibition 15.

Note, By Clopton a Sergeant, at the Common Pleas, That if a Plea be held in Court-Christian, which belongs to the Court of the King, without a Prohibition in facto, the Plaintiff shall have an Attachment upon a Prohibi∣tion; Quod fuit concessum, &c. Register 77. Estrepement, Praecipimus quod inhibeas, &c. F. N. B. 259. Register 112. A Consultation is as much an Original, as a Pro∣hibition: And the Court hath granted a Consultati∣on, ergo Prohibitions. Qui habet jurisdictionem absol∣vendi, habet juris dictionem Ligandi.

There are several sorts of Prohibitions; one sort with this word, Probibemus vobis, and Letters in nature thereof, as Supersedeas. And Injunction is a Prohibition; and Prohibition of Wast out of Chancery &c.

Express Prohibition are in two manners; the one, founded upon a Suggestion; the other, upon Record: Upon Suggestion, where Plea is pendent, and yet the Sug∣gestion is the Foundation; but it is founded upon Re∣cord, where no Plea is pendent: for Prohibitions found∣ed upon Record, Ne admittas, ought to recite the Plea pendent. So a Writ to the Bishop, to admit a Clerk, is a Judicial Latitat, as Dyer defends it. As to the pen∣dency of a Plea, or not pendency, it is not material for divers causes.

1. The pendency of the Plea may give a priviledge to the party, but no Jurisdiction to the Court in a Collate∣ral Suit; between which there is great diversity.

2. The Prohibition, where Plea is pendent, is no pro∣cess Judicial upon Record, for it is a Collateral Suit.

3. If the Common-Pleas cannot grant a Prohibition, without a Plea pendent, then the Kings which onely holds Plea of Common-Pleas by second means cannot. But inasmuch as the Common-Law is instead of an Ori∣ginal, as hath been said, both Courts may grant it.

4. Infinite Presidents may be shewn of Prohibition out of the Common Pleas, without recital of any Plea pendent: And true it is, That it ought to be, if the Court hath not Jurisdiction to grant any without Plea-pendant; every petty-Clerk of the Common-Pleas shall have by his Priviledge a Prohibition without Plea-pen∣dent. A fortiori, the Common Law it self may prohi∣bite any one, 4 Ed. 4. 37. 37 H. 8. 4.

5. A President is in the 22 Ed. 4. where a Prohibi∣tion was granted, for that the Plaintiff might have a Writ of false Judgment at the Common Law. The Record and Report agree, the words of the Record are:

6. That Officers and Clerks as well in the Common-Pleas as in the Exchequer, &c. may have by Privileng of Court a Prohibition without Original; a fortiori, the Law it self shall have greater Priviledge than an Officer or Clerk, and to enforce the party to bring an Action, will be a means to multiply Suits to no end, 4 Ed. 4. fol. 37. every Prohibition is as well at the Kings Suit, as at the Parties, 28 Ed. 3. 97. false Latin shall not abate, nor excommunication in the Plaint is no Plea, 15 Ed. 3. Title Corrody 4.

Note, Though the Original cause was in the Kings Bench, for Corrody Excommunication is no Plea in dis∣ability of the Plaintiff: Vide 21 H. 7. 71 Kelway 6. quare non admissit, 4 Ed. 4. 37. for not delivery of a Libel in the Common Pleas, he shall have a Prohibition by all the Justices. So upon 2 Ed. 6. cap. 13. See 38 H. 6. 14. 22. Ed. 6. 20. 13 Ed. 3. Title Prohibition 11.

32 H. 6. 34. An Attorney in the Palace assaulted and menaced, the Court shall take a Bill and inquire of it, 4 Ed. 4. 36, 37. Statham Prohibition 3.

Prohibition super articulos, title Prohibition, pl. 5. gives a Prohibition before, Scil. coram Justicia••iis nostris apud Westm. Vide F. N. P. fol. 69. b. in a Writ of Pone:

Register. indic. coram Justicia iis nost is apud Westm. is the Common Pleas, F. N. B. 64. d. 38 Ed. 3. 14. Statute 2 Ed. 6. cap. 13. Hales Case in my Reports. Many Prohibitions were granted in the 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 Coun∣ty 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 H••e-and Cry, &c. and after the said Robbery, and within 20 dayes before the purchase of the Writ, viz. the 19 of F••br. A••. 5. at Dorney in Com. praed. the Plaintiff before Sir William G••r∣rard Knight, then Justice of Peace in the said County, and living next the said Hundred, being examined upon Oath, according to the Statute 27 El••z. the Plaintiff upon his Oath said, He knew not the Parties who rob∣bed 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 V••. 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 22d. of Nov. 1604. riding under Hitcham wood, &c. was then and there set upo•• by Horsemen, which

he knew not, and robbed of 25 l. 3 s. 2 d. ob. but whe¦ther 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 Tem∣pest 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 feciss•• 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 sur∣charge 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 R••ipub. quod homines conserventur, •• Ed. 4. 23. Bull. &c. 12 H. 8. 15. 28 H. 8. Dyer 36.

Mich. 5. Jac. Regis.

Prohibitions del Roy.

No••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 in∣formed, That when Question was made of what matters the Ecclesiastical Judges have Cogn••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 ad∣judge any Case either Criminal, as Treason, &c. or be∣twixt 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 Cu∣rium. And the King hath his Court in the Upper House of Parliament, in which he with his Lords is the Su∣pream Judge over all Judges. And in this respect, the King is called Chief Justice, 20 H. 7. 7. a. by ••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 'tis 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 nei∣ther 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 Admini∣stration 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 Sen∣tence 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 an∣swered by Me, That true it was, God had endued his Ma∣jesty 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 Judgment requires long Study and Experience. With which his Majesty was greatly Offended, and said, Then he should be under the Law, which was Treason to be said; To which I said, that Bracton saith, Quod Rex non debet esse sub homine, sed sub Deo et Iege.

Mich. 8 Jacob. Regis.

Robert's Case.

In this Term, in the Case of one Roberts, a Prohibiti∣on had been granted in a Case upon Substraction of

Tythes, upon surmise that the Plaintiff being Defen∣dant in the Spiritual Court, had but one Witness there to prove his Demise: to which the Court said, That singu∣garis Testis is not allowable: And upon sight of a Pro∣hibition in the same Case in Hill. 3 Eliz. in Ban••o Regis. It was Resolved by Coke, chief Justice, Et totam Curiam in Communi Banco, that Consultation should be granted for divers Reasons.

1. It appears by the Register, fol. 5. that it is put for a Rule, Quod non est consonum rationi, quod cognitio ac∣cessorii in Curia Christianitatis impediatur, ubi cognitio cau∣sae principalis ad forum Ecclesiasticum ••••scitur pertinere; and with this agr••es 1 R. 3. 4.

2. If such a surmise shall be allowed, then in every Case, for meer delay, such a surmise may be made. And when the spiritual Court hath Jurisdiction of the prin∣cipal Cause, they determine the accessory: But it was objected, That if A. claiming a Lease by B. of a Recto∣ry, Libels for substraction of Tythes, and the Defendant pleads a former Lease made by B. and C. and the De∣fendant hath but one Witness in the Case to prove the former Lease; if no Prohibition shall be granted, the Defendant shall be charged. And if C. sue him upon the Statute 2 Ed. 6. the testimony of one only shall be then sufficient, and so he shall he twice charged.

To which it was answered, That first the fault was the Defendants, that he would not set forth his Tythes, and then he shall be charged whosoever takes them. But in such the Ecclesiastical Court will upon one good Witness, and any concurrent v••hement presumption, al∣low of such a proof. But if a question arise upon con∣struction of a Statute, and the Ecclesiastical Court will Judge of it against the Rule of Law, there upon speci∣al surmise of it, a Prohibition lies.

And Coke, chief Justice, cited a notable Judgment, Pasch. 35 Eliz. in Banke le Roy. Fuller brought a Pro∣hibition against Clements, and Wiskard; and Fuller

counted that himself was Owner of the Rectory of Long∣ham in the County of Norfolk, and libelled against Cle∣ments before the Bishop of Norwiches Official, for sub∣straction of Tythes, scil. Wheat pendent; which Suit Wis∣kard intervening pro intercesse suo, made there allegations against Fuller:

1. That the said Rectory was impropriate to the Mo∣nastery of Windling, and by dissolution thereof, came to H. 8. and conveyed it by mean Discent to Queen Elizab. who by Letters Patents granted it to Min and Hall, who enfeof••ed Bozome, who let it to Wiskard for four years; and upon proof of his allegations; in fine, Sen∣tence was given against Full••r, and several Costs given to Clements and Wiskard: Fuller appeals to the Court of the Arches, and there Claims the said Rectory from Halls being seized of it, who by his Deed granted the same to Sir Edward Clere, (before Bozomes Feoffment,) and that Sir Edward did enfeoff Fuller, and offered to prove the Deed made to Sir Edward by one sole Witness, which the Ecclesiastical Court would not allow of. And Fuller further said, That though he had alledged these matters were determinable at Common Law, yet they gave Sentence: The Defendants to have a Consultation pleaded, That Fuller proved the delivery of the Deed by Clere and Mouse, but could not prove Livery and Seisin according to the Deed; and that therefore Sen∣tence was given without that, that the Judges would not admit the proof without other Witnesses; upon this Fuller demurred, and his Council objected.

1. That Wiskard pleads matter determinable meerly at Common Law, viz Letters Patents, &c. and on the other part Fuller Claims an Estate in the Rectory, by conveyance at Common Law: And the Question in the Court Ecclesiastical being? Who hath the best Estate in the Rectory; this ought to be tryed by the Common Law, for this is the Birth-right of the Subject.

2. It was Objected, That all matters in Law ought to be determined by the Judges of the Law: And in this Case matters of Law arising, as if a Rectory be gran∣ted by Deed with all Tythes, &c. and no Livery is made. If the Tythes may pass with any Livery; this is a questi∣on to be decided by the Judges of the Common Law: Quod quisque novit in hoc se exerceat.

3. It was objected, That Wiskard was a meer stranger to the Suit, and all his Allegation is Temporal; and for that it is a stronger Case to maintain a Prohibiti∣on.

4. It was Objected, That Fuller had but one Witness to prove the delivery of the Deed, and in the Ecclesiasticall Law Unus Testis et nullus Testis, for which causes it was prayed the Prohibition might stand.

To which it was answered by Sir Christopher Wray, chief Justice, Et per totam Curiam, to the first Objection, That;

1. Where the original belongs to the Ecclesiastical Court, the determination of all that depends on it be∣longs to the same Court, though the matter be tryable at Law; but where the Original matter belongs to the Common Law, and there commenced, and issue taken upon matter tryable by the Ecclesiastical Law, there the Judges of our Law shall write to the Judges of the Eccle∣siastical Court to try it, and to certify. As in action Ancestral, if Bastardy▪ be pleaded in the Demandant, and upon this Issue is joyned, this shall be tryed by the Bishop, and his Certificate shall bind; So in a Quare Impedit: But though such issues are in their nature Trya∣ble by the Law Ecclesiastical, yet if the Case was such, that the Ecclesiastical Court could not try it, then (that Justice be not want••ng) such Ecclesiastical matter shall be tryed by the Common Law, as 4 Ed. 3. 26. But against this was objected the Statute de Articulis Cleri, cap. 13. Quod de Idoneitate person•• perso••atae ad bene∣ficium Ecclesiasticum pertineat examinatio ad Judicom Eccle∣siasticum;

upon which it was concluded, That the Try∣all de idomeitate personae in all Cases belong to Court-Christian: To which it was answered and resolved. That the Tryal of ability belongs to them; but this Tryal must be by examination of the Party. 〈◊〉〈◊〉 39 Ed 3. 2. That Earl of Arund••ll'•• Case, and 4 Ed. 3. 25. 16 Eliz. Dyer 327. So if Bastardy be alledg••d in one who is dead, Vide 17 Ed. 3. 5. where Bastardy is alledged in the Tenant, and one who is a stranger to the Writ, who are S••sters. Vide 32 Ed. 3. Trial 59. where the Tenant doth alledge Bastardy in himself, and the Demandant doth aver him Mulier, Vide 29 Ass. pl. 14. b. Eliz. Dyer 226. 228. If the issue be Quod vacavit p••r resignationem, part of which is Spiritual, part Temporal; this shall be tryed per paiis, vide 9 H. 7. But admission and in i••u∣tion, 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 up∣on 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 Recto∣ry.

3. As to the third, Resolved, That by the Ecclesiasti∣cal 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, un∣less they proceed inverso ordine, and this ought to be▪ re∣dressed 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 ju∣risdiction 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 Usuri∣ous 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 Eccle∣siastical Commissioners, till further Order should be ta∣ken for her enlargement. And the Cause of Commit∣ment was, That she had done many evil Offices between Sir James Scudamore, and her Daughter the Lady Scuda∣more, 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-Com∣missioners.

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 pro∣ceed 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 H••beas Corpus, and were remanded for this, that the High-Com∣missioners 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 Justi∣ces, chief Baron, and divers other Justices there pre∣sent, 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 Command∣ment 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 Parlia∣ment 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 cens•• eligebantur, sic Barones apud nos habiti fuerint, qui per integram Baroniam terras suas tenebant, sive 13. feoda militum et terti••m partem unius Feodi militis, quolibet Feodo computo ad 20 l. &c. So that by this appears, That eve∣ry 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 si•• in Parlia∣ment 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 Parlia∣ment 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 be∣fore 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 Ferra••, 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 Ba∣ron 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 ano∣ther 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 one Bellingham, 2 Jac. in West∣minster-Hall, Sedentibus Curiis, with his Elbow and Shoul∣der, out of malice justled Anthony Dyer of the Temple, that he overthrew him, and spurned him with his Feet upon the Legs; but smote him not in any other manner: And yet it was held, That his right hand should be cut off, &c. upon which Bellingham was indicted in Banke le Roy, and after got his Pardon.

A Case was put to all the Justices of England, viz. The Bishopricks of Waterford and Lismore, originally two Bishopricks by lawful Authority, in the time of H. 3. were united, but the Chapters yet remain several. After which Union, the Bishop aliened Lands of the Sea of Waterford, and also of the Sea of Lismore, with confirma∣tion of the Chapter of Lismore.

1. The Question was, Whether such Alienations are not voydable by the Successor, being with the Confirma∣tions of both the Deans and Chapters.

2. The second Question was, Whether the Queen might avoid such alienations by seizure, or otherwise.

The Justices demanded a View of the Union, to which it was answered, That it was not extant; then was it Resolved by the Justices, That inasmuch as the Usage hath been after the Union, that the several Deans and Chapters have severally made Confirmations ut supra; it shall be intended, that the Union notwithstanding, yet for avoiding Confusion, and in respect of the remote∣ness of the Deans and Chapters, that Estates made shall be severally confirmed as before the Union, and then such Confirmations shall be good, for in such Case, Modus & conventiovincunt Legem, 50 Ed. 3. Title Assize. Statham, Ri. 2. Title Grant, 27 H. 8. Dyer 58. 11 Eliz. Dyer, 33 H. 8.

2. It was Resolved, That upon a lawful Alienation made, with Confirmation of the Dean and Chapter, no contraformam collationis lyes upon the Statute of Westm. ••. See my 7th. Reports.

Trin. 8 Jacobi Regis.

Convocation Case.

It was Resolved by the two Chief Justices, and divers other Justices, at a Committee before the Lords of Parlia∣ment, concerning the Authority of a Convocation.

1. That a Convocation cannot assemble, without the assent of the King.

2. That after their Assembly, they cannot confer to Constitute any Cannons, without Licence d l Roy.

3. When upon Conference they conclude any Can∣nons, yet they cannot ex••cute any of them without Royal assent.

4. They cannot execute any after Royal assent, but with these Limitations.

1. That they be not against the Kings Proroga∣tive.

2. Nor against the Common Law.

3. Nor against Statute Law.

4. Nor against any Custom of the Realm: And all this appears by 25 H. 8. cap. 19. 19 Ed. 3. Title Quare non admisit 7. 10 H. 7. 17. Merton, cap. 9.

2 H. 6. 13. A Convocation may make Constitutions to bind the Spiritualty, because they all in person, or by representation, are present, but not the Temporali∣ty.

21 Ed. 4. 47. The Convocation is Spiritual, and so are all their Constitutions: Vide the Records in Turri, 18 H. 8. 8 Ed. 1. 25 Ed. 1. 11 Ed. 2. 15 Ed. 2. Pro∣hibitio Regis ne Clerus in Congregatione sua, &c. attemptet contra jus seu Coronam, &c. by which it appears, they can do nothing against the Law of the Land, or the Kings Prerogative.

Case of Piracy,

Trin. 8 Jacobi Regis.

In this Term the King referred the Consideration of Letters Patents of the Lord Admiral of England, to the two Chief Justices, and the Chief Baron: whether by the said Letters Patents the Goods which Pirates should take from Others by Robbery and Piracy, did pass to the Lord Admiral or no. And upon Consideration thereof, it appeared to us, That he had Bona et Catalla Piratorum, and also Bono et Catalla depraedata; Goods robb••d from others, which did not pass for two Causes.

1. If the King Grant Bona et Catalla Felonum, the Pa∣tentee shall have the Goods and Chattels of the Felon himself, but not the Goods and Chattels which the Fe∣lon stealeth from others.

2. The Goods taken from Others, the King cannot Grant; for it appears by the Statute, 27 Ed. 3. cap. 8. St. 2. That the Merchant &c. so robbed shall be recei∣ved to prove that the Goods and Chattels belong to him by his Cock••••, or other lawful Proof, &c. the said Goods shall be delivered without any Suit at Common Law. But it was Resolved, That till such proof be made, the King may seize the Goods; for Goods, of which the pro∣perty is unknown, the King may seize: And if they are bona peritura, the King may sell them, and upon proof, &c. restore the value. And the Owner is not limited to any time by the Statute 31 H. 6. cap. 4. 2 R. 2. cap. 2. 13 Ed. 4. 9, 10. a good resolution of the Justices, and the Register 179. F. N. B. 114. when a Subject of the King spoiled beyond Sea shall have a Writ, &c. for to take Goods within England, &c.

Case of Simony.

Trin. 8 Jacob. Regis.

It was agreed ad mensam, by all the Justices and Ba∣rons in Fleet-street, That if the Patron for any Money present any Parson to a Benefice with Cure, &c. then every such Presentation &c. thereupon are void, though the Presence be not party not privy to it; for the Statute intends to punish such wicked avarice, and gives the Pre∣sentation to the Queen: And this per verba Statuti pen∣ned strongly enough against corrupt Patrons.

Proclamations.

Mich. 8 Jacobi Regis.

On Thursday the 20th. of Sept. 8 Regis Jacobi, I was sent for to attend the Lord Chancellor, the Lord Trea∣surer, Lord Privy-Seal, and Chancellor of the Dutchy; the Attorney, Sollicitor, and Recorder being present. And two Questions were moved to me by the Lord Trea∣surer;

1. If the King by his Proclamation may prohibite new Buildings in and about London?

2. If the King may prohibite the making of Starch of Wheat?

The Treasurer said, These were preferred to the King as Grievances, and against the Law and Justice; To which the King Answered; That he will conferr with his Privy-Council and Judges, and then he will do them right. To which I answered, That these Questions be∣ing of great Importance, I did desire, that I might have Conference with my Brethren the Judges; To which the Chancellor said, Every President had first a Com∣mencement, and that he would advise the Judges to maintain the Kings Prerogative, and where there was no President, to leave it to the King; and all concluded it

should be necessary to confirm the Kings Prerogative with our Opinions.

To which I answered, True it is, every President hath a Commencement, but when Authority and President is wanting, there needs great Considerations before any Novelty be established; For I said, The King cannot change any part of the Common-Law, nor create any offence by his Proclamation: But I desired to Confer with my Brethren, for Deliberandum est diu, quod Statu∣endum est semel; To which Mr. Sollicitor said, D••vers Sentences were given in the Star-Chamber upon the Pro∣clamation against Building, and that I had given Sen∣tence against the said Proclamation: To which I an∣swered, That Presidents were to be seen, and Conside∣rations to be had upon Conference with my Brethren, for Melius est recurrere quam male currere, and Indictments conclude, contra leges & statuta, never contra regiam Pro∣clamationem. At last my motion was allowed, and the Lords appointed the two Chief Justices, Chief Baron, and Baron Altham to consider of it.

Note, the King by his Proclamation, or otherwise, can∣not change any part of the Common-Law, Statute-Law, or Customs of the Realm, 11 H. 4. 37. Fortescue in laudibus legum Ang. cap. 9. 18 Ed. 4. 35, 36, &c. 31 H. 8. cap. 8. ubi non est lex, ubi non est transgressio; ergo, That which cannot be punished without Proclamation, cannot be punished with it. Vide le Stat. 31 H. 8. cap. 8. But if a man be indicted upon a Contempt against a Proclama∣tion, he shall be Fined an•• imprisoned. Vide Fortescue, cap. 9. 18, 34, 36, 37, &c.

In all Cases, the King out of his Providence, and to prevent dangers, may prohibite them before, which will aggravate the Offence, if it be afterwards committed: And as it is a Grand Prerogative of the King to make Proclamations, 22 H. 8. Procl. B. yet we find Presi∣dents of Proclamations utterly against Law and Reason, and therefore void: For Quae contra rationem Juris in∣troducta

sunt, non debent trahi in sequentiam. An Act made to License Forreiners to Merchandize in London, H. 4. by Proclamation prohibited the Execution of it, usque ad prox. Parliament. which was against Law. Vide do••s. claus. 8 H. 4. Proc. in London; but 9 H. 4. An Act was made, That all Irish should depart the Realm be∣fore the Feast of the Nativity; this only was in terrorem, being utterly against Law.

Hollingshead, 772. Anno Dom. 1546. 37 H. 8. The Whor••-houses, vulgo Stews, were suppressed by Procla∣mation, and found of Trumpet.

In the same Term R••solved by the two Chief Justices, Chief Baron, and Baron Altham, upon Conference be∣tween the Lords of the Privy-Council and them, That the King by his Proclamation cannot create any Offence, which was not an Offence before, for then he may alter the Law. And the Law of England is divided into three parts: 1. Common-Law. 2. Statute-Law. 3. Custom: But the Kings Proclamation is none of them.

Resolved also, That he hath no Prerogative, but what the Law of the Land allows him; but he mry by Pro∣clamation admonish his Subjects, that they keep the Laws, upon pain to be inflicted by Law, &c.

Lastly, If the Offence be not punishable in the Star-Chamber, Prohibition by Proclamation cannot make it punishable there. And after this Resolution, no Pro∣clamation imposing Fine and Imprisonment was made, &c.

Mich. 8 Jac. Regis.

Prohibitions.

It was Resolved in this Term, That if a man be ex∣communicated by the Ordinary, where he ought not, as after a general Pardon, &c. and the Defendant being Negligent, doth not sue a Prohibition, but remains

excommunicate by 40 dayes, and upon Certificate in Canc▪ is taken by the Kings Writ de excommunicato capi∣endo; no Prohibition lies in this Case, because he is taken by the Kings Writ. Then it was moved what re∣medy the Party hath, who is wrongfully excommuni∣cate; to which it was answered, he hath three Reme∣dies.

1. He may have a Writ out of Chancery to absolve him, 14 H. 4. fol. 14. and with this agrees 7 Ed. 4. 14.

2. When he is excommunicate against the Law of this Realm, so that he cannot have a Writ de Cau••fone admittenda, then he ought Parere mandatis Ecclesiae in sor∣ma Juris, i. e. Ecclesiastici, where in truth it's Excommuni∣catio contra jus & forman Juris, i. e. Communis Juris: But if he shew his Cause to the Bishop, and Request him to assoyl him, either because he was excommunicate after the Offence pardoned, or that the Cause did not appear in Ecclesiastical Cognizance, and he refuse, he may have an Action Sur le Case against the Ordinary; and with this agrees Dr. & St. lib. 2. cap. 32. fol. 119.

3. If the Party be excommunicate for non••e of the Causes mentioned in the Act, 5 Eliz. cap. 23. then he may plead this in the Kings Bench, and so avoid the Penalties in the Act.

Note, It was Resolved by the Court, &c. That where one is cited before the Dean of the Articles in cause of defamation, for calling the Plaintiff Where, out of the Diocess of London, against the Statute of 23 H. 8. And the Plaintiff hath Sentence, and the Defendant is ex∣communicated, and so continues 80 dayes; And upon Certificate into the Chancery, a Writ of Excommunicato capiendo is granted, and the Defendant taken and impri∣soned thereby, that he shall not have a Prohibition up∣on the Statute 23 H. 8. for no Writ in the Register ex∣tends to it; but there is a Writ there called de cautione admittenda, when the Defendant is taken by the Kings

Writ de excommunicato capiendo de parendo mandatis Ec∣clesiae, and to assoyl and deliver the Defendant. But in the Case at Bar, it does not appear to us judicially, with∣out Information, that the Citation is against the forme of the Statute: And the Information comes too late in this Case, after the Defendant hath persisted so long in his Contumacy, and is taken by the Kings Writ, and imprisoned.

Admiralty.

It was Resolved per totam Curiam, That if One be sued in the Admiralty-Court, for a thing alledged to be done upon the High-Sea, within the Admirals Juris∣diction, and the Defendant plead and confess the thing done; and after Sentence, the Court will be advised to Grant a Prohibition, upon surmise, That it was done infra corpus comitatus, against their own confession, unless it can be made appear to the Court by matter in Writing, or other good matter, that this was done upon the Land; for otherwise every one will stay till after Sen∣tence, and then for vexation only sue out a Prohibition. And admonition was given to them that sue out Prohi∣bitions, That they should not keep them long in their Hands, or untill they perceive they cannot prevail in the Ecclesiastical Court, then to cast in their Prohibition; for if they abuse that liberty to the vexation of the Par∣ty, we will take such order, as in case of a Writ of Pri∣viledge, if the Defendant keep it till the Jurors are ready, &c. it shall not be allowed.

Hill. 8 Jacob. Regis.

In this Term, in Doctor Trevor's Case, who was Chan∣cellor of a Bishop in Wales; It was Resolved,

That the Office of a Chancellor and Register, &c. in Ecclesiastical Courts, are within the Statute 5 Ed. 6. cap. 16. which Act, being made for avoiding corruption of Officers, &c. and advancement of worthy Persons, shall be expounded most beneficially to suppress Corrup∣tion. And because the Law allows Ecclesiastical Courts to proceed in Blasphemy, Heresy, Schisme, &c. loyalty of Matrimonies, probate of Wills, &c. and that from these proceedings depends not only the Salvation of Souls, but the legitimation of Issues, &c. and other thing•• of great Consequence. It is most reason that such Officers shall be within the Statute, then Officers which concern Temporal ma••ters, the Temporal Judge committing the Convict only to the Gaoler, but the Spi∣ritual Judge, by excommunication, to the Devil: And there is a Proviso in ••he Statute for them.

It was Resolved, That such Offices were within the Purview of the said Statute.

Hill. 8 Jac. Regis.

Admiralty.

It is to be understood, That the Jurisdiction of the Admiralty is more antient than Mr. Lambert, in his Jurisdiction of Courts, doth affirm, which was the time of Edward the Third. But without question, the Juris∣diction of the Admiralty is more antient; for I find a notable Book in the time of Ed. 1. Title Avowry, 192. which proves it more antient than Mr. Lambert speaks: The Case was, One brought a Replevin of his Ship taken on the Coast of Scarbrough upon the Sea, and carryed into Norfolk, and there detained; the plaint of taking in the Coast of S. which is no Town nor Place certain by which the Paiis m••y be taken, for the Coast contains four Leagues. And also a thing done at Sea, this Court cannot have Cogni∣zance; for this Judgment is given to Mariners. Beres∣ford, who gave the Rule in this Case; The King W••lls,

That the Peace be kept as well upon the Sea as the Land-And we find, that you come by due Process, and we see nothing why you ought not to answer; upon which Book I observe five things:

1. That of things done upon the Sea, Judgment is given to Mariners, id est, to Admirals, as shall appear, and belongeth not to the King's Court, because no Paiis may be taken there; for where the Paiis or Jury may come, the Admiral hath no Jurisdiction.

2. This proves directly, That there the Admiral hath Jurisdiction to adjudge things done upon the Sea, from whence no Paiis may come. And this did nor begin then, for questionless ever since there was Trade or Traffick (which is the Life of every Island) there was Marine Jurisdiction, to redresse Depraedations, Piracies, Mur∣thers, and other Offences upon the Sea.

3. The third thing is, That if part of the matter be done on the Sea, and part in the Country, that the Com∣mon-Law shall have all the Jurisdiction.

4. The Sea within the Jurisdiction of the Admiral, is described to be out of every County.

5. If a thing be done upon the Sea, hors del County, the Party may plead it to the Jurisdiction of the Court.

And it is to wit, that in antient time the Jurisdiction of Admiral was called Maritina Angliae, and sometimes Marina Angliae, which signifies the Admiralship or Ma∣rinship of England; for Marinus is the same with 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that is of the Sea, and 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 is the Admiral or General of the Fleet; and Almarath is corruptly Admirall. And antiently, sometimes one was Admiral of all England, and sometime the Office was di∣vided. And for this, see ex Rot. Patentium de An. 6 H. 3. de Maritina Custodiend. 29 Aug. ex Rot. Pat. An. 9 H. 3. 3. Octob. Charta 15 H. 3. 28 Junii, 25 Ed. in. 14. Claus. in Dorso in 18. William teyborne Capitaneus Marinario∣rum.

At this time there were two Admirals, the one had the Government of all the Fleet from the Thames mouth versus Boream, the other from the Thames mouth versus occidentem, 1 Pars. Patent. 25 Ed. 1. 25 Martii in 9. & 1 Pars. Patent. 10 Ed. 2. 8. Decem. And so in the time of R. 2. H. 4. H. 5. H. 6. during whose Reigns there was like unus qui fuit Admirallus Angliae.

3 Ed. 2. Coron 399. where a man may see what is done of one part, and the other of the Water, &c. in that place the County may have Cognizance, and it may be tryed by a Jury. And Stamfords Pleas of the Crown, lib. 1. fol. 51. citing this Book, saies thus: So this proves, That by the Common-Law, before the Statute, &c. the Admiral shall not have Jurisdiction, unless up∣on the High-Sea; which proves his Jurisdiction by the Common-Law upon the High-Sea. Ex quo sequitur, that his Jurisdiction was by the Common-Law, and then 'tis so antient, that the Commencement cannot be known. Whence I conclude, that this Authority did not begin of King Edw. 3. as Monsieur Lambert upon uncertain Conjectures supposeth.

Pasch. 9 Jac. Regis.

It was Resolved by the two Chief Justices, Chief Baron, the Attorney and Sollicitor, That the King may erect any Name of Dignity which was not before; and for that Reason the King may Create a Baronet, to him and his Heirs-males of his Body issuing.

It was Resolved, That if he Create him not of some Place, he shall not have an Estate Tail, but Fee-sim∣ple conditional, forfeitable for Felony; but if he Create him Baronet of a Place, then he shall have an Estate-Tail within the Statute, West. 2. And the King may Grant to such Precedency before Knights Bannerets,

Knights of the Bath, and Kinghts-Batchelors: And also he may Grant Precedency to their Wives, Sons, and Daughters, &c.

The King cannot Create any Dignity above the Dig∣nity of a Baronet, and under the Dignity of a Baron: And the creation of this Dignity of a Baronet shall not discharge the Heir to be in Guard.

Pasch. 9 Jacobi Regis.

Accessary in Treason, &c.

Note, That in Trespass and Treason, there are no Ac∣cessaries, but all are Principles: But in Felony, above the sum of 12 d. there, and in case of death, &c. there may be Accessary as well before as after. In Petit larceny there can be no Accessaries, for the smallness of the Fe∣lony: Then the Case is, A. Counterfeits the Great Seal of England, and B. knowing that he did Counterfeit it, receives, abets, and comforts him. If B. in this Case be Guilty of Treason, is the Question: And it seems he is not; for though A. by the Counterfeiting be a Traytor, yet the abetting, &c. cannot make B. an Accessary, be∣cause at the time of Counterfeiting it, he did not know it; but if one before the Act be done, procure another to Conterfeit the Great-Seal, there it is High-Treason; and in the Indictment he may be charged with the Fact. And this appears to me very evident in Reason, and agrees with our Books; as 19 H. 6. 47. 6. he who is consenting to the making of false Money, commits High-Treason, for he is Particeps Criminis before the Fact: But it is held in Conyers Case, Mich. 13 & 14 Eliz. Dyer 296. that in the same Case, if one after the Fact done know thereof, and receive the Party, this is but Mis∣prision of Treason; and with this accords 3 H. 7. 10. which diversity Stam. Pleas of the Crown, fol. 3. hath well observed. Vide Dyer 298. vide le Stat. 27 Eliz.

Pasch. 9 Jacobi Regis.

Sir William Chanc••ys Case.

In this Term Sir William Chancy having the priviledg of this Court, and being a Prisoner in the Fleet, was brought to ••he Bar by Habeas Corpus, by the Guardian of the Fleet; who returned, That the said Sir William was committed to the Fleet by Warrant from the High-Com∣missioners in Ecclesiastical Causes, which Warrant fol∣lows in these words, viz.

These are to Will and Require you in his Majesties Name, by Vertue of his H••gh-Commission &c. to Us and others directed, &c. That herewithal you take and receive into your Custody the Body of Sir William Chancy Knight, whom we will that you keep, &c. untill further Order, &c. letting you know the cause of his Committment to be, for that being at the Suit of his Lady convented b••fore &c. for Adultery, and ex∣pelling her from his Company, and Co-habiting with another Woman, without allowing her any competent Maintenance; and by his own Confession convict thereof, he was thereupon enjoyned to allow his Wife a competent Maintenance, &c. and to perform such Submission and other order for his Adultery as by Law should be enjoyned him, which he expresly refused to do in contempt, &c. Given at London 19 Martii, 1611. subscribed Henry Mountague, George Overall, Thomas Morton, Zach. Pa••field.

And it was moved by Nicholas Serjeant, a Councel with Sir William, that this return was insufficient.

1. Because Adultery ought to be punished by the Or∣dinary, and not by the High-Comm••ssioners, on which the Offender is remediless, and can have no appeal; Quod fuit concessum per Coke, Warberton and Foster, but Walmesly doubted of Adultery.

2. That by force of the Act of the 1. of Eliz. the High-Commissioners cannot imprison Sir William for Adultery, nor for denying Alimony to his Wife: And

Doderidge, the Kings S••rjeant, of Council on the other side, did not defend the Imprisonment to be law∣ful.

And it was clearly agreed by Coke, Walmesly, Warberton, and Foster, That the Commissioners had not power to imprison in this Case. And Walm••sly said. That though they have used this Power for twenty years without any exception; yet when it comes before them judicially, they ought to Judge according to Law; and upon this Sir William Chancy was Bailed.

And it was resolved per totam Curiam, That when it appears upon the Return, that the Imprisonment is not lawful, the Court may discharge him of Imprison∣ment.

Also it was Resolved, That the Return was insuffici∣ent in form.

1. It is not shewn when the Adultery was commit∣ted.

2. He was enjoyned to allow his Wife a competent Maintenance without any certainty, and to perform such submission, &c. as by Law shall be enjoyned, which is all infuturo, and uncertain. Vide in my Treatise at large the Reasons and Causes why the High-Commissioners may sue and imprison, Vide Pasch. 42 Eliz. Rot. 1209.

Pasch. 9 Jacobi Regis.

Empringham's Case.

In this Term a Case was moved in Star-Chamber upon a Bill exhibited by the Attorney-General against Robert Empringham Vice-Admiral in the County of York, Mar∣maduke Ketthewell, one of the Marshals of the Admiralty, and Thomas Ha••rison, an Informer in the same Court for Oppression and Extortion, in Fining and Imprisoning divers of the Kings Subjects in the said County, which no Judge of the Admiralty can justifie, because it is not

a Court of Record; but they proceed according to the Civil Law, and upon their Sentence no Writ of Error lyeth, but an Appeal. Also the said Empringham hath caused divers to be cited, to appear before him for things done in the Body of the County, which were determina∣ble by the Common Law, and not before the Admiralty, whose authority is limited to the High Sea. And for these and other Oppressions they were fined and impri∣soned, and sentenced beside to make Restitution, &c.

Trin. 9 Jacobi Regis.

Memorandum, That upon the Thursday before this Term, all the Justices of England, by the Kings Com∣mand, were assembled in the Council-Chamber at Whitehall, where was, Abbot, Archbishop of Canterbury, and with him two Bishops, and divers Civillians; the Archbishop complained of Prohibitions out of the Com∣mon-Pleas, and delivery of Persons by Haheas Corpus, but chiefly of Sir William Chancy. I defended our proceedings according to my Treatise thereof, which I delivered be∣fore the High-Commissioners: And after great dispute between the Archbishop and Me, at last he said, He had a Point not yet touched upon in my Treatise, which would give satisfaction to the Lords and Us also, and up∣on which he would rely; And that the Clause of Resti∣tution and Annexation, viz. And that all such Jurisdicti∣ons, &c. Spiritual and Ecclesiastical, as by any power Spiri∣tual hath heretofore, or hereafter lawfully may be used, &c. for visitation of the Ecclesiastical State and Persons, and for Reformation, Order, and Correction of the same, and of all Errors, Heresies, Schismes, &c. sh••ll for ever by authority of this present Parliament, be united and annexed to the Imperial Crown of this Realm. And it was said, That H. 8. and Ed. 6. did give Power by their Commissions to divers,

to impose Mulcts, &c. in Ecclesiasticall Causes, &c. and upon this he concludes, That this having been used before 1 Eliz. this is given to Queen Eliz. and her Successors. Also inasmuch as by 2 H. 4. and 2 H. 7. the Jurisdiction Ecclesiastical may Fine and Imprison in particular Causes, therefore Power to Fine and Imprison in all Ecclesiastical Causes is given to the King: And this he said he uttered, that it might be answered.

1. To which, I for a time gave this Answer, That it was good for the Weal-publick that the Judges at the Common-Law should interpret the Statutes within this Realm.

2. It was said by me, That before the Statute of 1 Eliz. no Ecclesiastical Judge may impose a Fine, or Imprison for any Ecclesiastical or Spiritual Offence, unless there be Authority by Act of Parliament: And this was so affirmed by all the Justices.

Vide my Book of Presidents, the Commission at large to Cromwel to be Vicegerent.

Afterwards in this very Term the Privy-Council sent for the Justices of the Common-Pleas only, and there the Reasons of the said Resolution were largely debated, and strong Opposition made hy Egerton Lord Chancellor, but the Justices of the Common-Pleas remained constant in their Resolution: Afterward the Council sent for the chief Justice of the Kings Bench, Justice Williams, Justice Crook, Chief Baron Ta••field, Snig, Althan, and Bromly, who were not acquainted with the Reasons of the said Rule of the Common-Pleas, nor knew why they came before the Council; And hearing the Lord Chan∣cellor affirm, That the High-Commissioners have al∣wayes by the Act 1 Eliz. imposed Fines and Imprison∣ments for exorbitant Crimes, (without any Conference with us, or among then selves, or hearing the matter de∣bated,) were of Opinion with us: And after at another day this same Term, the said Judges of the Kings Bench, Barons of the Exchequer, and Justice Fenner and Yelver∣ton,

who were omitted before, and We the Justices of the Common-Bench were commanded to attend the Council. And being all assembled, We of the Com∣mon-Pleas were commanded to retire, and then the King demanded their Opinions in certain Points touching the High-Commission, wherein they unanimously agreeing, We, viz. Coke, Walmesly, Warberton, and Foster, were cal∣led before the King, Prince and Council, where the King declared, That hy the Advice of his Council, and the Justices of the Kings Bench and Barons, he will re∣form the High-Commission in divers Points, which after he will have to be obeyed in all Points.

Whereupon I said to the King, That it was grievous to Us, his Majesties Justices of the Bench, to be severed from our Brethren, but more grievous, that they diffe∣red from us in Opinion, without hearing one another, especially since in what we have done in Sir VVilliam Chancys Case, aud others the like concerning the Power of the High-Commissioners, was done judicially in open Court, upon argument at the Bar and Bench. And fur∣ther I said to the King, that when we the Justices of the Common-Pleas see the Commission newly reformed, We will, as to that which is of Right, seek to satisfie the Kings expectation; and so We departed, &c.

Trin. 9 Jac. Regis.

Stockdale's Case in the Court of VVards.

The King by Letters Patents dated 9. April, the ninth year of his Reign, did Grant to VVilliam Stockdale in these words.

Such, and so many of the Debts, Duties, Arrearages, and Sums of Money being of Record in our Court of Ex∣chequer, Court of Wards, Dutchy-Court, or within any Court or Courts, &c. in any year, or several years, from the last year of the Reign of H. 8. to the 13th.

year of Our Dear Sister, as shall amount to the sum of 1000 l. To have, tak••, levy, &c. the said Debts, &c. to the said VVilliam Stockdale his Executors, &c.

And in this Case divers Points were resolved:

1. That the said Grant of the King is void for ••he in∣certainty, for thereby no Debt in certain can pass: As if the King have an 100 Acres of Land in D. and he Grants to a Man 20 Acres of the Lands in D. without descri∣bing them by the Rent, Occupation, or Name, &c. this Grant is void.

2. When the Patentee Claims by force of this word Arreragia.

It was resolved clearly, That he shall not have Arrear∣ages of Rents, Reliefs, and mean Rates of Lands, &c. in the Court of Wards, &c. if the Patent go not fur∣ther.

But the Proviso in the end of the Patent, viz. Provi∣ded, that the said VVilliam Stockdale shall take no benefit by any means of Arrearages of any Rents, &c. untill Sir Patrick Murrey and others be paid the sum of 1000 l. &c. hath well explained what Arrearages the King intended: But clearly mean Rates are not within the words, for they are the Profits of Demesne Land.

Trin. 9 Jacobi Regis.

Divers men playing at Bowles at great Marlow in Kent, two of them fell out; and a third man, who had not any quarrel, in revenge of his Friend, struck the other with a Bowl, of which he dyed: This was held Manslaugh∣ter, because it happened upon a suddain motion.

In the same Term a special Verdict divers years past found in the County of Hertford, which was, That two Boyes fighting together, one was seratched in the Face, and bled very much at the Nose, and so he run three quarters of a Mile to his Father, who seeing his Son so

abused, he took a Cudgel and run to the place where the other Boy was, and stroke him upon the Head, upon which he dyed. And this was held but Man-slaughter, for the Passion of the Father was continued, and no time to judge it in Law Malice prepense: And this Case was moved ad mensam, &c.

Mich. 9 Jac. Regis.

Memorandum upon Thursday in this Term, a High Commission in Causes Ecclesiastical was published in the Archbishops great Chamber at Lambeth, in which I, with the Chief Justice, Chief Baron, Justice VVilliams, Justice Crooke, Baron Altham, and Baron Bromly were na∣med Comm••ssioners among all the Lord of the Council, divers Bishops, Attorney and Sollicitor, and divers Deans and Doctors in the Cannon and Civil Laws: And I was commanded to sit by force of the said Commission, which I refused for three Causes.

1. Because neither I nor any of my Brethren of the Common-Pleas, were acquainted with it.

2. Because I did not know what was contained in the new Commission; and no Judge can execute any Com∣mission with a good Conscience, without knowledg; for Tantum sibi est permissum, quantum est Commissum.

3. That there was not any necessity of my sitting, who understood nothing of it, so long as the other Judges, whose advise had been had in this new Commission, were there.

4. That I have endeavoured to inform my self of it, by a Copy from the Rolls, but it was not enrolled.

5. None can sit by force of any Commission, till he hath taken the Oath of Supremacy according to 1 Eliz. and if I may hear the Commission read, and have a Co∣py to advise upon, I will either sit, or shew cause to the contrary. The Lord Treasurer perswaded me to si••, but

I utterly refused it, and the rest seemed to incline. Then the Commission was openly read, containing divers Points against the Laws and Statutes of England: At hearing of which, all the Judges rejoyced they sate not by it. Then the Archbishop made an Oration; during all which, as the reading of the Commission, I stood, and would not sit; and so by my Example, did the rest of the Judges. And so the Archbishop appointed the great Chamber at Lambeth in Winter, and the Hall in Sum∣mer; and every Thursday in the Term at two a clock Af∣noon, and in the Forenoon one Sermon.

Mich. 9 Jacob. Regis.

In this Term, the Issue, in an Information upon the 〈◊〉〈◊〉 2 H. 6. 15. was tryed at the Bar; and upon E∣videnc•• upon the words of the Statute, which are, That ev••••y person that sets or fastens in the Thames, any Nets or En••i••••s called Trincks, or any other N••ts, to any ••••sts, &c. to stand continually day and night, forfeits to ••he King 100 s. for every time, &c. And the Defen∣dants having set and fastned Nets called Trincks in the Thames, &c. to Boats, day and night, as long as the Tide served, and nor continually.

The Question was, If this was within the Statute; and it was clearly Resolved, That it was within the Statute; for the Nets called Trinks cannot stand longer than the Tyde serve; and for this the word continually shall be taken for so long as they may stand to take Fish; for lex non intendit aliquid impossibile.

Mich. 9 Jacob. Regis.

Shulters Case in the Star-Chamber.

The Case was such; John Shulter of Wisbich, of the age of 115 years, had Issue John his eldest Son, and others, viz. Christopher, Richard, &c. and being seized of Land in Fee o•• 100 Marks, per annum, value, his eldest Son being dead, and his Grandchild John with••n age, he gave direction for a Lease to be made of a Fa••m called Rou∣shal, to Christopher during the minority of his Grand-child, rendring the antient Rent, with power of Revoca∣tion, and of Lands in Yatesbury to Richard in the same manner; and the same time Chr••stopher and Richard, by the Covin of one Woodruff a Serivener, 25 Eliz. drew two Leases to Christopher and Richard for 51 years, ren∣dring 4 d. per annum, and without any power of Revoca∣tion; John Shulter the Grandfather being blind with age, and Woodruff telling him they were according to his direction. And thereupon John Shulter th•• Grandfather sealed and delivered them. And it was resolved by the Lord Ellesmere Chancellor, and two Chief Justies, That the said Indentures could not bind the said John Shulter, because he was blind: and the effect was declared to him other than in truth it was. I•• fully agreed with Man∣sers Case, in the second part of my Reports, fol. 4.

Mich. 9 Jacobi Regis.

Sir Anthony Ashley's Case.

The Case was this; Sir James Creyton had bought a pretended Right of and in the Mannor of ••yddy and Millisent, and divers o••her Lands, of which Sir Anthony had long possession: Upon which, divers Motions were made concerning Fines, acknowledged to be staid, &c. in

the Common-Bench; and Sir James not prevailing in it, en∣tred into a wicked Conspiracy, with several other Defen∣dants in the Cause, to accuse the said Sir Anthony of some Capital Crimes, whereby he should forfeit all his Lands, Goods, and Chattels, which they should share amongst them; and in the end Henry Smith, formerly a Servant to Sir Anthony, was suborned to accuse the said Sir Anthony, of the Mu••ther of William Rice, late Husband of Mary Rice, one of the Defendants, which William was dead 18 years before; and Smith was to have 500 l. for his pains, to have a place procured him in the Kings Guard in Or∣dinary, a Prote••tion also from the King against his Cre∣ditors, and a General Pardon. Of all which, Smith would have assurance, before he would make any Accusation of the said Sir Anthony: Whereupon Articles in Writing were drawn, ingrossed and sealed between Sir James Crey∣ton of the one part, and John Cantrel, Servant to Hunnings, by Smith's Consent, and to his use, on the other part: By which Sir Ja••es Covenanted, that the said Cantrel, and his Heirs, after the Conviction and Attainder of Sir Anthony, shall have a sixth part of his Mannors, &c. In consideration whereof, Cantrel Covenanted, that he should procure Witnesses, to Convict the Plaintiff of Murther, or other Capital Crimes, &c. Which Articles were sealed 16 of Feb. 7 Jac. And for the performance of the said Articles, Sir James gave Bond of 8000 l. to Cantrel. Within two dayes after, Smith counterfeits him∣self sick, and then pretending to disburthen his Consci∣ence, reveales the said Murther, and accused himself for poysoning the said William Rice, by the said Sir Anthonies Command; so that he himself was Principal. Upon this Sir James procures Mary Rice, the Widow of the said Wil∣liam Rice, to prefer a Petition to the King, importing the Accusation aforesaid: Which Petition, the King refer∣red to the Chief Justice of the Kings-Bench, who, after full Examination, certified the King, that he found a false Conspiracy, to indict Sir Anthony, without any just

ground, and certified also the effect of the Articles: Up∣on which the King, by Advice of the Privy-Councel, thought the matter fit to be sentenced in the Star-Cham∣ber; Which in the same Term, upon ordinary proceed∣ing, was heard by six dayes: And it was objected by the Defendants Councel, That the Bill, upon the said Conspiracy, did not lye; and that it would be dangerous to maintain it; for it will deter men to prosecute against great Offenders, whereby they will pass unpunished: And by the Law, Conspiracy lyes where a man is indicted, and legitimo modo acquietus; but here he was never indicted, &c.

But to this, it was Answered, and Resolved, by the Lord Chancellor, the two Chief Justices, and all the Court, That in this Case, the Bill was maintainable, though the Party accused was not indicted and acquitted before, as it was Resolved in this Court, Hill. 8. Jac. in Poulter's Case. Besides, be Sir Anthony guilty or no, the Defendants are punishable, for promising Bribes and Rewards to Smith, to accuse the Plaintiff, and the Ar∣ticles to share Sir A••thonies Estate after Attainder: And there is a great Indignity offered to the King, in assu∣ming to Covenant, that the King shall protect or pardon, or that any man's Estate may be shared before Attain∣der.

And it appeared by many Witnesses, that William Rice dyed not of any poysoning, but of a horrible Disease got by his dissolute life, which with Reverence cannot be spo∣ken.

And in this Case, it was Resolved, That if Felony be done, and one hath suspition upon probable matter, that another is guilty of it, he may arrest the party so suspect∣ed, to bring him to Justice. But in this Case, three things are to be observed:

1. That a Felony be done.

2. That he that doth arrest, hath suspition upon pro∣bable cause.

3. That he himself, who hath the suspition, arrest the party.

Resolved also, That if Felony be done, and common fame and noise is, that one hath committed it, this is good cause for him that knowes of it to arrest the party: and with this agrees the Book, 2 H. 5. 15, 16. 15 H. 7. 5. 20 H. 7. 12. 21 H. 7. 28. 7 Ed. 4. 20. 8 Ed. 4. 27. 11 Ed. 4. 4. 6. 17 Ed. 4. 5. 6. 20 Ed. 4 6. B. 7 H. 4. 25. 27 H. 8. 23. 26 H. 8 9. 7 Eliz. Dy. 226.

Hill. 9 Jac. Regis.

In this Term, the Attorney and Sollicitor consulted▪ with me, if at this day, upon Conviction of an Heretick before the Ordinary, the Writ de Haeretico combunendo ly∣eth; and it seems to be clear that it doth not: for the Reasons and Authorities that I have reported, Trin. 9 Ja∣cob. before: But after, they consulting with Fleming Chief Justice, Tanfield Chief Baron, and Williams and Crook: And they, upon the Report of Dr. Cosins, men∣tioned in my said Report, and some Pr••sidents in Queen Elizabeth's time, they certified the King, that the said Writ lyeth; but that the most sure way was to convict the Heretick before the High Commissioners.

Pasch. 10 Jac. Regis.

The Lord Vaux his Case.

In this Term, the Lord Vaux was indicted of a Pre∣munire in the Kings-Bench, upon the New Statute, for re∣fusing the Oath of Allegeance: upon his Arraignment, he prayed he might be tryed per Pares. But i•• was Resol∣ved, That he shall not; for that Magna Charta, cap. 29. Nec super cum ibimus, nec super eum mittemus, nisi per le∣gale judicium parium suorum, is onely to be understood of Treasons, Misprision of Treason, Petit Treason, and Felo∣ny,

and their Accessaries, &c. But Premunire is but a con∣tempt, and Pardon of all Contempts pardons it. Where∣upon the Lord Vaux confessed the Indictment, Vide Lamb, Justice d••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, with∣out 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 o∣ver: of which flight of the Lady Arbella, the said Coun∣tess 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 be∣ing required by the Lords, to declare her knowledge touching the said Points; she answered, she would not an∣swer particularly; and being again by the King's Com∣mands 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 Pem∣broke, 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 con∣tempt, &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 be∣gan, and the Archbishop and the other Lords adjudged it a great and high Contempt: And that no such allow∣ance 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. Wh••ther the Refusals aforesaid were Offences in Law, against the King, his Crown, and Dignity.

2. What Proceeding this is; and if justifiable by Pre∣sident 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 en∣couragement 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 Honou∣rable 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 Plain∣tiff 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 ••aesae Majestatis.

3. They are not to be sworn in Assiz••s, Juries, or In∣quests.

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 Mi••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 & Lige∣antiam 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 Con∣tempt, 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 man∣ner of Proceedings.

1. Privative: It is not to fine, imprison, or inflict cor∣poral 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 a∣gainst 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 dig∣nus. And this manner of Proceeding, is fortified by the President of the Earl of Essex, against whom such Pro∣ceedings 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 Cham∣ber, 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 In∣quest, of which one Robert Scarlet desired to be one: But the Sheriff knowing the malice of the man, refused to re∣turn him: Yet by Confederacy with the Clark, who read the Pannel, he was sworn of the Grand Inquest; and being amongst them of the Grand Inquest (though not

returned) as one of them, of his malice, and upon his own knowledge, as he pretended, indicted 17 honest men upon divers penal Laws: Some of the Justices looking over the Bills, and seeing so many honest men indicted, as they supposed, malitiously, demanded what Evidence they had to find the said Bills; and they answered, By the Te∣stimony and Cognizance of one of themselves, viz. Ro∣bert Scarlet: And upon Examination it appeared, that the said Robert Scarlet was not returned, but had procu∣red himself to be sworn by Confederacy, as aforesaid: For which Offence, he was indicted at the Summer Assizes following, 10 J c. held at Bu••y, upon the Statute 11 H. 4. c. 9. And he pleaded not guilty: All the especiall Matter aforesaid being proved, he was found guilty by a substantial Jury. And in this Case, divers Points were considered;

1. Whether Justices of Assize have power to punish this offence or no? And it was held affirmatively, scil. by force of their Commission of Oyer and Terminer. And if the Act be indefinite, or general, and doth not give Jurisdi∣ction to any Courts in special, the general words of Com∣mission of Oyer and Terminer extends to it.

Vide 7 Eliz. Dyer. Commissioners of Oyer and Termi∣ner, may inquire of Offences against Penal Statutes, un∣less the Statute appoint them to be determined in any Court of Record. And the Opinion there, that in any Courts of Record, are restrained to the four ordinary Courts at Westminster, is not held for Law; as the Sta∣tute 5 Ed. 6. 14. against Forestallers, &c. gives the Penal∣ty to be recovered in any Court of Record: And Justi∣ces of Assize, in regard of their Commission of Oyer and Terminer, have always enquired thereof: So the 33 H. 8. 9. of unlawful Games: And of Woods, 35 H. 8. c. 17. and many others.

2. The second consideration was upon the Statute, 11 H. 4. cap. 9. and it was held, that Robert Scarlet was an Offender within that Statute; because knowing he

was not returned of the Grand Inquest, procured himself, by false Conspiracy, to be sworn as aforesaid.

3. The third Consideration was had of 3 H. 8. 10. which alters the Act of the 11 H. 4. in part, as to deno∣mination: But in regard, that still by that Act none can be of any Grand Inquest, but by Return of the Sheriff: And for this the Act 3 H. 8. 10. hath not altered the Law, as to the Offence of Robert Scarlet.

4. The said Act 11 H. 4. hath made a new Law, viz. That any Indictment found against the said Act shall be void: So that this may draw in Question, all the In∣dictments found at the same S••ssions. And for this Judg∣ment was given, that he should be fined and imprisoned.

Trin. 10 Jac. Regis.

Baker and Hall's Case.

Note, Upon Consideration of the Statute, 3 H. 7. c. 14. It was Resolved by Coke, Chief Justice of the Common-Pleas; Yelverton, Williams, Snig, and others, That where∣as it is provided, that what person soever takes a Woman so against her Will, &c. in respect of this Word (So) which hath relation to the Preamble: It was agreed by all, that if the Wife hath nothing, nor is Heir appa∣rent, it is out of the Statute: for i•• would not have been so curious in describing the Person, and all in vain. And Clergy is taken away by the 38 Eliz. cap. 9. for Princi∣pals or Procurers before. Vide Stamf. so. 37. b. and so was the Law taken, 3 & 4 P. & M. Vide Lamb 252. Note, Receivers of the Woman are Principals; but not the Receivers of them who took the Woman. Vide Lamb. bid.

Note, I saw a Report in Queen Mary's time, upon the 50 Ed. 3. cap. 5. and 1 R. 2. cap. 15. concerning arrest∣ing Priests in Holy Church, that the said Statutes are but in affirmance of the Common-Law; and 'tis there held, that eundo, redeundo, morando, for to celebrate Divine

Service, the Priest ought not to be arrested, nor any who aid him in it; and that the Party grieved, may have an Action upon the Statute, 50 Ed. 3. For though an Act doth not give an Action, yet Action lyeth upon it, 7 H. 6. 30. &c. 2 H. 5. and 4 Ed. 4. 37. Vide Register in breve super Stat.

Note, If a man be convicted, or hath Judgment of Death for Felony, he shall never answer by the Common Law, to any Felony done before the Attainder, so long as the Attainder remains in force: Vide 8 Eliz. c. 4. 18 E∣liz. 7. And at this day, if a man be adjudg'd to be hang'd, and hath his Pardon he shall never answer to any Felony before; for he cannot have two Judgments to be hang'd. Aliter, If the first Attainder by Errour be reversed. Vide 10 H. 4. Coro••. 227. Case, del Appeal, &c.

A man seized of a Mannor, to which he hath stray appendant by Prescription, &c. by his Bayley he seizeth an Ox as a Stray in the Mannor, and makes Proclama∣tion according to Law, and within the Year and Day, lets the Mannor with all Royalties, &c. And Dy••r Ser∣geant moved the Court, who should have the Stray: And Brown Justice, was of Opinion, that the L••ssor should have it. But all the Justices were against him, that the Lessee shall have it, because the property of the Stray is not altered before the Year and Day; and till then, the Lord or the Mannor hath but the custody of it. In Dr. Hutchinson's Case, Parson of Kenn in Devonshire, It was Resolved, per totam Curiam, That if any shall receive or take Money, Fee, Reward, or other Profit, for any Pre∣sentation to a Benefice with Cure; although in truth, he which is presented be not knowing of it: yet the Presen∣tation, Admission, and Induction, are void, per expressa verba Statuti, 31 H. 8. cap. 6. and the King shall have the Presentation hac vice: But if the Presence be not cognizant of the Corruption, then he shall not be within the Clause of Disability in the same Statute: and so it was Resolved by all the Justices in Fleetstreet, Mich. 8. Jac. so. 7. vide verba statuti.

Hugh Manneyes Case.

In an Information in the Exchequer against Hugh Man∣ney Es{que} the Father, and Hugh Manney the Son, for In∣trusion and cutting a great number of Trees in Merio∣n••th shire, the Defendants plead not guilty; and one Row∣land ap Eliza produced as a Witness for the King, depo∣sed upon his Oath, that Hugh the Father and Son joyn∣ed in sale of the said Trees, and commanded the Vendees to cut them down: The Jury found upon this great Da∣mages for the King: and Judgment was given, and Exe∣cution had of a great part.

Hugh Manney the Father exhibited a Bill in the Star-Chamber at Common-Law, against Rowland ap Eliza, and assigns the Perjury in this; That the said Hugh the Fa∣ther, did never joyn in Sale, nor command the Vendees to cut the Trees; and Rowland ap Eliza was convict of the Perjury, by all the Lords in the Star-Chamber; and it was Resolved by all, That it was by the Common-Law pu∣nishable 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 ver∣tue 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 fi••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 extre∣mum, after Humphries death, whereby the King was enti∣tuled 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 Inquisi∣tion: and with this agrees, 1 H. 4. 68. And this appears by the diversity between the Writ of Diem clausit extre∣mum, and the Deveneront, which is but in one Point; to wit, the Diem clausit extremum is general, And the Devene∣ront is not general, but does restrain onely the Lands and Tenements, quod deveneront, &c. And thus it was Resol∣ved nono Jacobi, in the Court of Wards, in the Case of Dune Lewis

Award of Capias U••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 Justi∣ces of Assize, or Justices of Peace, upon an Indictment of Felony, that they may award a Capias Utlagatum; and so was the Opinion of P••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-cham∣ber, against Anthony Barker Knight, Thomas Barker Coun∣cellor at Law, Robert Wright Doctor of Divinity, Ravens∣croft 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 defen∣dentium: and upon hearing the Plaintiffs Councel, there appeared no Presumption against any of the Defendants, but that the Testament was duly proved in the Ecclesia∣stical Court: and upon an Appeal was also affirmed be∣fore Commissioners Delegates, and Decreed also in Chan∣cery. So that it appeared to the Court, that the said Bill was preferred of meer malice to slander the Defen∣dants. Now because the Defendants had no Remedy at Law for the said Slander, and if it should pass unpunish∣ed, it may encourage men, It was Resolved by the Court, That by the course of the Court, and according to for∣mer Presidents, the Court may give Damages to the De∣fendants; 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 Maledi∣cite noc••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 there∣upon Philips sued Tomlinson in the Admiralty, supposing the Goods to have been received in Forraign Parts be∣yond 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 thr••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 in∣serted 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 S••ats in the Church.

Corven did Libel against Pym for a Seat in a Church in D••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, i•• 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 pre∣sumed, that the Ordinary who hath Cure of Soules, will take Order in such Cases, according to right and conve∣niency; 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 Par∣son, 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 hol∣den, That if one were to sit in the Chancel, and hath there a place, his Carpet, Livery, and Cushion, the Par∣son cannot claim them as Oblations, for that they were hanged there in honour of the Deceased: the same Rea∣son of a Coat-Armour, &c. And the Chief Justice said, the Lady might have a good Action, during her Life, in the Case aforesaid; because she caused the things to he set up there; and after her death, the Heir shall have his Action, they being in the nature of Hire-looms which belong to the Heir. And with this agrees the Laws of o∣ther Nations, Bartho. Cassan••us, sol. 13. Co••cl. 29. Actio•• dat si aliquis arma in aliquo loco posita deleat aut abrasit, &c. and in 21 Ed. 3. 48. in the Bishop of Carlisle's Case.

Note, That in Easter Term, 10 Jacob. it was Resolved in the Star-Chamber, in the Case between Huss••y, and Katharine Leyton, that if a man have a house in any Pa∣rish and that he, and all those whose Estate he hath, have used to have a certain Pew in the Church; that if the Ordinary will displace him, he shall have a Prohibition; but where there is no such Prescription, the Ordinary shall dispose of common and vulgar Seats.

Earl of Shrewes buryes Case.

Sir Humphry Winch, Sir James Ley, Sir Anthony St. Leger, and Sir James Hulles••on, certified the Lords of the Coun∣cel, by Command from them, by Letters dated 28. Martii, 1612. of the Claim of Gilbert Earl of Shrewes∣bury to the Earldome of Waterford, and Barony of Dungar∣van in Ireland, as followeth.

King Henry the Sixth, by Letters-Patents in the 20th. year of his Reign, did Grant to his Cosin, John Earl of Shrewsbury, in consideration of his Loyal Services in the City and County of Waterford, pro se, &c. ipsum in Co∣mitem Waterford, una cum stilo et titulo ac nomine ac honore eisdem debitis ordinamus & creamus, habendum to the said Earl, and his Heirs-males of his Body; and further, did Grant the Castles, Lordships, &c. of Dungarvan to the said Earl and the Heirs-males of his Body, To hold, &c. of the King and his Heirs by Homage and Fealty, and by the Service of being his Majesties Seneschal in Ireland. After in the Parliament, called Des Absentees, holden at Dublin in Ireland 10. Maii, 28 H. 8. It was enacted by reason of the long absence of George, Earl of Shrewesbury out of the said Realm, That the King, his Heirs, &c. shall enjoy in right of his Crown of England, all Honors, Mannors, Castles, &c. and all and singular possessions, &c. as well Spiritual as Temporal, which the said George Earl of Shrewesbury and VVaterford, or any other Persons had to his Use, &c. King Henry the 8th. by his Letters Patents dated 29th. of his Reign, re∣citing the said Statute, Nos praemissa Considerantes, &c. did Grant to the said Earl and his Heirs the Abbey of Rufford with the Lands thereunto, &c. in the County of Nottingham, and the Lordship of Rotheram in the County of York, the Abbeys of Chestersteld, Shirbrook, and Glossa••∣dale in Derbyshire, with divers other Lands, &c. to be

holden in Capite: And the Questions were as follow∣eth.

1. Whether by the long absence of the Earl of Shrewsbury out of Ireland, the Title of the Honor be lost and forfeited, he being a Peer of both Realms, and re∣fiding here in England.

2. Whether by the Act Des absent••es, 28 H. 8. the Ti∣tle of Dignity of Earl of VVaterford be taken from the said Earl as well as the Land, &c.

Afterwards by other Letters Patents dated 27th. of Sept. 1612. the two Chief Justices and Chief Baron were required to consider of the Case, and to certifie their Opinions; which Case being argued by Councel learned in the Law in behalf the said Earl, and they hav∣ing taken great advisement; It was unanimously Resolved by them all as followeth:

1. As to the fi••st, Resolved, That since it does not ap∣pear what defence was requisite; and that the Consi∣deration Executory was not found by Office to be broken in that Point, the said Earl of Shrewsbury notwithstanding does remain Earl of Waterford.

2. As to the second, It was Resolved, That the said Act 28 H. 8. Des Absente••s, does not onely take away the Possessions given him at his Creation, but also the Dig∣nity it self: for though one may have a Dignity with∣out Possession, yet is it very inconvenient, that Dignity should be cloathed with Poverty: and so it was resolved in the Lord Ogles Case, in Edw. 6. Reign; as the Ba∣ron of Burleigh 35 El••z. did report.

The cause of Degradation of George Nevil Duke of Bed∣ford is worth observation, which was done by Act of Par∣liament 16 June, 17 Ed. 4. which Act reciting the ma∣king the said George Duke, sets forth the cause of his De∣gradation in these words: And for so much, as it is openly known, that the said George hath not, or by Inheritance may have, any livelyhood to support the said Name, Estate, and Dignity, &c. Therefore the King, by Advice of his Lords

Spiritual and Temporal, and Commons, &c. Enacteth, &c. That from henceforth the same Creation of the said Duke, and all Names of Dignity given to the said George, or to John Nevil his Father, be void and of none effect. Wherein are to be observed;

1. That though the Duke had not Possessions to main∣tain his Dignity, yet it could not be taken from him but by Act of Parliament.

2. Great Inconveniencies follow, where there is great State and Dignity, and no means to maintain it.

3. It is good reason to take away such Dignity by Act of Parliament; and then the Act shall be expounded, to take away such Inconvenience. And though the Earl of Shrewsbury be of great Honour, Vertue, and Possessions in England; yet it was not the Intention of the Act to con∣tinue him Earl in Ireland, when his Possessions there were taken away.

And where it was objected, that the general words Ho∣nours and Hereditaments, are explained and qualified by the said Relative subsequent, which the said George, or any to his use hath: Now in regard no man can be sei∣zed of the said Digni••y, therefore the Act doth not extend to it. 'Tis answered, that is to be understood, Reddendo singula singulis; and these words which the said G. E. hath, are sufficient to pass the Dignity: and with this agrees all the Judges Opinions in England in Nevils Case upon the like in the Statute 28 H. 8. in 7th Part of my Re∣ports, sol. 33, and 34.

Hill. 2 Jacob. Regis.

Jurisdiction of the Court of Common-Pleas.

In the last Term, by the King's Commands, the Justi∣ces of the Kings Bench, and Barons of the Exchequer, were assembled before the Lord Chancellor Ellesmere, at York-house, to deliver their Opinion, Whether there was any Authority in our Books, that the Justices of the Common-Bench

may grant Prohibitions; or whether every Plea ought to be pending in the Court for such cause: And the King would know their Opinions. The Judges took time till this Term; and then Fleming Chief Justice, Tanfield Chief Baron, Saig, Altham, Crook, Bromley, and Dodderidge: (Yelverton and Williams Justices, being dead since last Term) did deliver their Opinions to the Lord Chancellor; That the Presidents of each Court are sufficient Warrant for their Proceedings in the same Court; and for a long time, and in many Successions of Reverend Judges, Prohibitions upon Information, with∣out any other. Plea pending, have been granted, Issues tryed, Verdicts and Judgments given upon Demurrer: All which being in force, they unanimously agreed to give no Opinion against the Jurisdiction of the Common-Bench in this Case. See my Treatise of the Jurisdiction of the Common-Bench in this Point.

Hill. 10 Jac. Regis,

Parliament in Ireland.

The Lords of the Councel did write to the two Chief Justices, and Chief Baron, to look into Poynings Act made 10 H. 7. in Ireland, and to consider thereof, and certifie what shall be fit to be held concerning the same; their Letter bore date, Ultimo Janii 1612. Upon which, in this Term, the said Chief Justices, Chief Baron, Attorney and Sollicitor General, were assembled two days at Ser∣geants Inne: And they considered not onely of the said Act 10 H. 7. c. 4. called Poynings Act; but also of an Act made in Ireland, 3 & 4 P. & M. c. 4. Entituled, An Act declaring how Poynings Act shall be expounded and ta∣ken; for by the said Act 10 H. 7. it is provided, That no Parliament be hereafter holden in Ireland, but when the Kings Lieutenant and Councell there first certifie the King, under the Great Seal of that Land, the causes, &c. and such causes, &c. affirmed by the King and his Coun∣cel, to be good and expedient for the Land, and his Li∣cence thereupon, &c. A Parliament to be holden after

the former before, &c. And any Parliament holden con∣trary &c. to be void in Law. Upon which Act, divers Doubts were conceived.

1. And first, Whether the said Act 10 H. 7. does ex∣tend to the Successors of H. 7. the Act speaking onely of the King generally, and not his Successors.

2. If the Queen Mary were within the word King, and both were held affirmatively: for the word King being spoke indefinitely, does extend in Law to all his Succes∣sors: And this is so expounded by the Act 3 and 4 P. and M. viz. That the said Act 10 H. 7. shall extend to the King and Queens Majesty, her Heirs and Successors. Secondly, where Povnings Act sayes the Kings Lieutenant and Councel, the said Act 3 and 4 P. and M. explains it to extend to all other Officers the King shall Depute, by what Name soever.

3. The greatest Doubt was upon these words of Poy∣nings Act; And such Causes, Considerations, and Acts, affirm∣ed by the King and his Councel, to be good and expedient for the Land, &c. Whether the King may make any change or alteration of the Causes, &c. which shall be transmit∣ted hither from the Lieutenant and Councel of Ireland: for that it is not affirmative, but correction and altera∣tion of them: and therefore it was necessary to explain, that the Act 3 and 4 P. and M. was in these words; Ei∣ther for the passing of the said Acts, and in such form and te∣nor as they should be sent into England; or else for the change or alteration of them, or any part of them.

4. Another Doubt arose from these words; That d••ne, a Parliament to be had: If at the same Parl. other Acts, which have been affirmed or altered here, may be Enacted there, which is explained by the said last Act in these words, viz. For passing and agreeing upon such Acts, and no others, as shall be returned, &c.

5. A fifth Doubt arose from the same words; Whe∣ther the Lieutenant and Councel of Ireland, after the Parliament begun, and pendente Parliamento, may upon

debate there transmit any other Considerations, &c. the which said Act 3 and 4 P. and M. is by express words ex∣plained, they may.

And it was unanimously Resolved, That the Causes, Considerations, and Acts, transmitted hither under the Great Seal of Ireland, ought to be kept in the Chancery in England, and not be remanded.

2. I•• they be affirmed, they must be transcribed under the Great Se••l, and so returned into Ireland.

3. If the Acts transmitted hither be in any part alter∣ed or changed here, the Act so altered must forthwith be returned under the Great Seal of England, for the Tran∣script under the Irish Great Seal, to remain in Chancery here shall not be amended; but the Amendment shall be under the English Great Seal. See 10 H. 6. 8. which be∣gins, Mich. 18 H. 6. Rot. 46. coram Rege: how a Parlia∣ment was holden there before Poynings Act. See also ano∣ther Act made in Ireland the same 10 H. 7. c. 22. vide R. 3. 12. Hibernia habet Parliamenta & faciunt leges & no∣stra statuta non ligant ••os, quia non mittunt milites ad Par∣liamentum: sed personae co••um sunt subjecti Regis, sicut in∣habitant••s Calinae, Gascogniae, & Guienae.

But question is made of this in some of our Books; vid. 20 H. 6. 8. 32 H 6 25. 1 H. 7. 3. 8 H. 7. 10. 8 R. 2. Precess 204. 13 Ed. 2. Tit. Bastard, 11 H. 47. 7 Ed. 4. 27. Plow. Comment. 368. 13 Eliz. Dyer 35. 2 Eliz. Dyer 366. Calvins Case, 7th of my Reports 226. 14 Ed. 3. 184. A Pr••bend in England, made Bishop of Dublin in Ireland, his Prebendary is vo••d. See the S••atute of Ireland, &c. That the Acts of Parliament made in England, since the 10 H. 7. do not hind them in Ireland; but all made in Eng∣land before the 10 H. 7. by the Act made in Ireland, 10 H. 7. c. 22. do bind them in Ireland.

Note, Cambden King at Arms told me, that some held, if a Baron dyes, having Issue divers Daughters, the King confer the Dignity to him who marryes any of them, as hath been done in divers Cases, viz. In the case of the

Lord Cromwel, who had Issue divers Daughters: And the King did confer the Dignity upon Burchier, who marryed the youngest Daughter, and he was called Cromwel; and so in other Cases.

Note, (by Linwood) it appears by the Canons Ecclesi∣astick, none may exercise Ecclesiastick Jurisdiction, un∣less he be within the Orders of the Church; because none may pronounce Excommunication, but a Spiritual Person: But now by the 37 H. 8. c. 17. a Doctor of Law or Register, though a Lay-man, may execute Eccle∣siastical Jurisdiction.

No Ecclesiastical may cite a Church-Warden to the Court, but so as he may return home the same day. Also the Canons limit how many Courts, Ex Officio, they may have in a year.

Mich. 11 Jac. Regis.

Note, If a man give to one of his Children a certain sum in his life, and after dyes; though this is not given as a Childs full Portion, yet it shall be sufficient for him: But if the Father by Writing declare, that it is but part of a Childs portion, then he shall have a full Childs part, otherwise not.

Note, It was holden by the Judges in the Kings-Bench, That if a man be possessed of a House and Term for years, doth devise for years, does demise this to his Wife for Life, the remainder over the dyes, all his Debts be∣ing paid; If the Widow enters generally, and converts the profi••s to her own use, and not to pious Works, this is a Determination of her Election. And this is the general case; and therefore it is good that it be specially found.

H••yn's Case.

In the Lent Assize holden at Leicester, 11 and 12 Jac. the Case was, One William Haynes had digged up the se∣veral Graves of three men and one Woman in the Night, and had taken their Winding-Sheets from their Bodies, and buryed them again: And it was Resolved by the Ju∣stices at Sergeants Inne in Fleetstreet, that the property of the Sheets remains in the Owners, that is, of him that had the property therein, when the dead body was wrap∣ped therewith; as in 11 H. 4. If Apparel be put upon a Boy, this is a Gift in Law, for the Boy hath Capacity to take it; but a dead Body, being but a Lump of Earth, hath no capacity: Also, it is not a Gift to the Person, but bestowed on the Body, for the Reverence towards it, to express the hope of Resurrection. And therefore at the second Assizes he was severally Indicted for taking these Sheets: The first Indictment was of Petty-Larceny, for which he was whipped: And at the same Assizes he was Indicted for the Felonious taking the other three Sheets, for which he had his Clergy, and escaped Death.

Hill. 11 Jacobi Regis.

Earl of Derby's Case.

In Chancery between Sir John Egerton Plaintiff, and Wil∣liam Earl of Dirby, Chamberlain of Chester, and others, Defendants; It was Resolved by the Lord Chancellor, the Chief Justice of England, the Master of the Rolls, Dod∣deridge and Winch Justices,

1. That the Chamberlain of Chester, being sole Judge of Equity, cannot Decree any thing wherein himself is party: but in such Case, the Suit shall be heard here in Chancery, coram Domino Rege.

2. If the Defendants dwell out of the County Pala∣tine, he who hath to complain in Equity, may complain here in Chancery: And therefore the Suit shall be here in Chancery, Ne Curia Domini Regis deficient in justitia ex∣hibenda: Else the Subject shall have good Right, and yet have no Remedy. And this pursues the Reason of the Common-Law, 13 Ed. 3. Tit. Jurisdiction, 8 Ed. 2. Ass. 382. 5 Ed. 3. 30. 30 H. 6. 6. 7 H. 6. 37. For where the particular Courts cannot do Justice to the Parties, they shall sue in the Kings general Courts at Westminster, 11 H. 4. 27. 8 Ed. 4. 8.

3. It was Resolved, That the King cannot grant a Commission to any to determine any matter of Equity, but it ought to be determined in Chancery, which hath had Jurisdiction in such case time out of mind, and had allowance by Law: whereas such new Commissions have been resolved to be against Law, as was agreed in Pott's Case.

4. Upon Consideration of the Lord Dyer, and other Justices in Queen Elizabeth's time, concerning the Ju∣risdiction of the County Palatine; It was Resolved, That for things Transitory, though in truth they be in the County Palatine, the Plaintiff may alleadge them to be done in any place of England, and the Defendant may not plead to the Jurisdiction of the Court, See Dyer, 13 Eliz. sol. 202, 716.

Forms and Orders of Parliament.

In the House of Commons, when the Speaker is cho∣sen, he in his place where he shall first sit down, shall dis∣able himself, and pray them to proceed a new Election: But after he is put into the Chair, then he shall pray them that he may disable himself to the King.

Note, The King, the first day of the Parliament, shall sit in the Upper-House; and there the King, or Chan∣cellor

by his Command, shall shew the Causes of Cal∣ling the Parliament; and in Conclusion of the Oration, the Commons are commanded to chuse a Speaker; which after 2 or 3 dayes they present, where He makes an Ora∣tion, disabling himself, &c.

In the Lower House when a Bill is read, the Speaker opens the parts of it, so that each Member may under∣stand the intent thereof; and the like is done by the Lord Chancellor in the Upper House: Then upon the second Reading, sometimes it is Engrossed without Com∣mitment: Then it is put to the Question; and so in the Upper House: But neither in the Upper or Lower House, the Chancellor or Speaker, shall not repeat a Bill, or an Amendment but once.

When a Bill is committed to the second Reading, then if Committees do amend it in any Point, they shall write their Amendments in a Paper, and shall direct to a Line; and what Words shall be interlined, and where; and then all shall be ingrossed in a Bill.

And if a Bill pass the Commons House, and the Lords amend it, they do as before shew the Line, &c. and after the Amendments are ingrossed, with particular Referen∣ces, and the Bill sent down to the Commons, the Amend∣ments are road three times; and so e••converso, of a Bill passing the Upper House.

No Lord, Knight, Citizen, or Burgess, may speak above once to one Bill in one day.

No private Bill ought to be read before publike Bills.

In the Commons House, those that are for the New Bill (if there be a Question of Voyces) shall go out of the House; and who are against the Bill, or for the Com∣mon-Law, or any former, shall fit still, for they are in possession of the Old Law.

In the Upper House, two Lords are appointed to num∣ber the Voyces.

In both Houses, he that stands up first to speak, shall speak first without difference of Persons.

When a Bill is ingrossed at the third Reading, it may be amended in the same House in matter of substance, •• fortiori, the Errour of the Clerk in the ingrossing may be amended, &c.

P••sch. 12. Jac. Regis.

Walter Chute's Case.

Walter Chute Sewer to the King, exhibited a Petition to the King, That for safety of the Realm, &c. that he would erect a new Office to Register all Strangers with∣in the Realm, except Merchant-Strangers, to be kept at London, and to grant it to the Petitioner, with a Fee, or without. And all Strangers, except Merchant-stran∣gers, to depart the Realm in a certain time, unless they take a Billet under the said Registers Hand. Which Pe∣tition, the Lords of the Councel referred to Me, by their Letters of the 13 Novemb. 1613. to consider what the Law is in that behalf, &c. And upon Conference with the Ju∣stices of the Common-Pleas, and other Justices and Ba∣rons at Sergeants Inne in Fleetstreet, It was Resolved,

That the Erection of such New Offices, for the bene∣fit of a private man, was against all 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 re∣solved void. So Littletons Suit, to name an Officer to be a Gen. Reg. &c. But the Suit was rejected (notwithstand∣ing

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 inconve∣nient for divers Causes: 1. For a private man to have private ends. 2. The numbring of Strangers by a pri∣vate man, would in••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 Bur∣leigh, and other Lords of the Councel, 37 Eliz. To write Letters to the Mayors, Bayliffs, &c. of every City, Bo∣rough, &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 Kniv••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 parti∣cular man.

Affidavits Filing and keeping, belonged to the Regi∣ster; 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 parti∣cular 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, Ingros∣sing, 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 man∣ner 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 Pa∣tents 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 Ste∣phen 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 Chancel∣lor, the two Bishops, and the Chancellor of the Exche∣quer, acqui••ted him. And the Question was, if Sir Ste∣phen 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-Cham∣ber, that Court being against the Rule and Order of all Courts: For in all other Courts, if the Justices are e∣qually 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 pre∣sent, 4 gave Judgment, that the Defendants were guilty, and 4 •• 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 accor∣ding 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 Benevo∣lence began thus: When King Edw. the 4th had a Subsi∣dy 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 Suc∣cess.

1. The Duke of Burgundy, who marryed Edw. the 4th Sister, sollicited the King to joyn in War with him a∣gainst 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 de∣manded 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 Benevo∣lence, according to the Example of Edw. 4. and publish'd, That he would by their open Hands, measure their Bene∣volent Hearts. By this means he collected great S••ms of Money, but with some grudge, 11 H. 7. ca. 20. An Act was made for levying that Benevolence. 20 H. 7. A Com∣mission to levy what was granted, 11 H. 7.

15 H 8. A Commission under the Great Seal, called A Commission of Anticipation. 16 H. 8. For Warre with Fra••ce, a Benevolence levyed, with great Curses against the Councel; for it was for a sixth part of the value in Money or Plate, against the Subjects good-will. 26 H. 8. Another Benevolence levyed by Commission against the Subjects Will▪ But if the Subjects will of their free Will give the King any Moneys, this is not prohibited by any Stature: This is proved by the 11 H. 7. c. 18.

Feb. Anno 40 Eliz. Resolved by all the Justices and Barons, That a free Grant to the Queen, without coer∣tion, is lawful, and accordingly they granted the Queen. Quod not a hene; Quia, &c.

Pasch. 12 Jac. Regis.

The Case of Dungannon in Ireland, being a New Cor∣poration, was thus: The King Constituted the Town of Dungannon to be a Free Borough; Et ulterius volumus, &c. quod Inhabitant••s Villae praedictae sint unum corpus cor∣poratum per nomen Praepositio, 12 Burgensium & Communi∣••atis Dungannon, &c. Et quod ipsi praedicti Praepositi & Burgenses & successores sui habeant potestaten eligendi duos Burgenses, &c. ad Parl. &c. And the Doubt was, If this Grant of Election of Burgesses of Parliament were good, because it was granted but to parcel of the body, viz. the Provost and Burgesses, and not to the Commonalty. And the Chief Baron thought this being but a Nomi∣nation, it was sufficient to make the Provost and Bur∣gesses onely to have it; but this was denyed by all Ju∣stices and Barons: For the power to Elect Burgesses, is an Inheritance which the Provost and Burgesses are not capable of, and ought to be vested in the entire Cor∣poration. And so it was Resolved by all, That such a Grant made by the King should be void; for the Inhabi∣tants have not Capacity to take an Inheritance; as in 15 Ed. 4. to have Common. And Littleton saith in his Chapter of Burgage, That the Burroughs which send Burgesses to Parliament, were the most antient and chief Cities, &c. So that it shall be intended, that at first they were incorporate. Also, Plus valet saepenumero vulgaris consuetudo, quam regalis concessio.

But it was Resolved, by H••bbard, Tanfield, Altham, Wi••th, Nicols, and Haughton, that Quod Volumus was a good word of Grant, as Pigot was of Opinion, 21. Edw. 4. and this shall be implyed a Grant to all the Corpora∣tion, that the Provost and Burgesses shall Elect, &c. And regularly, when the Grant is indefinite, viz. First, Con∣cedimus, an incertain thing, & ulterius volumus quod

Praepositus & Burgenses & Successores sui eligerint. This shall be within the first Concedimus to all the Body. But the Chief Justice of England and Dodderidge thought the contrary.

Note, All the New Corporations were of the same Form, and in none of them is any Clause to Elect New Burgesses; so that when the modern Burgesses dye, the power to Elect Burgesses is gone.

Mich. 12 Jacobi Regis.

A Question was moved to the Chief Baron and Justi∣ces of Sergeants Inn in Chancery-Lane; That if a Felon be convict, either by Verdict or Confession, if immediat∣ly by his Conviction his Goods and Chattels be forfoit∣ed: And it was said, That if the Felon, after Convicti∣on, pray his Clergy, he then shall clearly forfeit his Goods and Chattels; for Quodam modo, this is a Flight; because refusing the Common-Law, he flyes to Privi∣ledge of Holy Church. But it was Resolved by the chief Baron and Justices, That immediatly by his Conviction, his Goods and Chattels are forfeited, and the praying of his Clergy is not any Forfeiture: and with this agrees Stamf. sol. 192. a. and also 1 R. 3. And of the same Opinion was the Chief Justice and Justices of Sergeants Inne in Fleetstreet. Vid. Trin. 41 Eliz. 332.

Mich. 12 Jacobi Regis.

Anne Hungate's Case, in Cam. Stell.

In this Term a great Case was heard and determined in the Star-Chamber, between Sir Henry Day, (who dyed pendent the Bill) and Anne his Wife, and Nicholas Be∣dingfield Es{que} and Elizabeth his Wife Plaintiffs: And Anne Hungate Widow, Sir Robert Winde, Henry Branthwait

Es{que} Thomas Townesend Esq Thomas Blomfield Gent. and George Min Gent, Defendants. The Case was thus: Henry Hoogan Esq; being seized of the Mannor of Ha∣monds, and of divers Lands of East-Bradenham, &c. in Nor∣folk in Fee; by Deed enfeoffed them in the use of the said Anne, who took Hungate to Husband, and had Issue by him a Son and a Daughter, and he dyed. Anne obtained the Wardship of the Son; and after, when the Son was of the Age of 21 years, wanting onely 6 Weeks, by Dedimus potestatem, directed to Sir Robert Win••e, Henry Branthwayt then Feo••ary, and Thomas Townesend, they took Cogni∣zance of a Fine of the said Son, being of the Age afore∣said, and sick: And the Bill charged them all with Pra∣ctice, in procu••ing the said Son to acknowledge the said Fine, they knowing him under Age, and in Wardship as aforesaid; but there was no practice used by any of the Defendants, but the Son of his own good-will levyed it: And by Ind••nture, the use was limited to his Mother the said Anne and her Heirs, with power of Revocation by the Son, upon tender of 10 s. And this was in consideration, that the Mother had paid the Debts of his Father, which were very great, and had obtained the Wardship of him, and to confirm her Joynture: And that his Mother, if she pleased, might give it to his Brother, by Hungate, who was but of half-bloud. And it appeared, the Mother knew the Son to be within Age, but the Commissionars were ig∣norant of it; nor did they send for the Church-Book, in which his Age did appear, being in the same Parish. And the Plaintiffs Councel prayed, that the Defendants should be punished for their Misdemeanour; And that the Wo∣men Plaintiffs, who were Cosins, &c. Heirs to the said Son of the entire bloud, should be dis-inherited by the said Fine.

To which it was Resolved, by the two Chief Justices, and chief Baron, That there was not any Crime punish∣able by the Law in this Case; for the Judges of the Law, and of this Court, may punish Offences, &c. but

they cannot create Offences: nor do as Hannibal did, to make his Way over the Alps, when he could find none: for Judicandum enim legibus, & ubi non est lex ibi nec est transgressio: And therefore if a Fine levyed by an Infant, be not Reversed during his Minority, 'tis unavoidable in Law, because the Infants Age is to be tryed, Non testium testimonio, non juratorum veredicto, sed Judicis inspectione solummodo. F. N. B. sol. 21. And for this it was Resol∣ved by the said Justices, That forasmuch as no Corrupti∣on and Circumvention was proved in any of the Parties, of which they may be Indicted at the Suit of the King, or punished in this Court, that the Fine shall stand: And it was not apparent to the Commissioners he was within Age, seeing he wanted but six Weeks; but if they had known it, it had been a Misdemeanour in them.

And for this, in this Court, Mich. 24. & 25 Elliz. 15. Between William Cavendish, and Anne his Wife, one of the Co-Heirs of Henry Knightly, against Robert Worsley, and Katharine, another Co-Heir, and Trafford, and others, Defendants; The Case was, That Robert Worsely, and Ka∣tharine his Wife, being within Age, acknowledged a Note of a Fine, before Trafford and another of the Defendants, by Dedimus Potestatem; And by the Decree, the Commis∣sioners knew Katharine was within Age; and therefore every one of them was Fined, but the Fine stands.

Mich. 38 and 39 Eliz. In this Court one Alexander Gilderbrand seized of Lands in Windham, in the County of Norfolk, in Fee: one Hubbard procured one Roger to take upon him the Name of Alexander Gilderbrand, who was then beyond Sea, to acknowledge a Fine to the said Hub∣bard, of the said Lands; and they were Fined in this Court, and the Lands ordered to be re-assured to Alexander, on pain of a greater Fine: But the Fine was not drawn off the File, nor Damages awarded to the party grieved.

Mich. 12 Jac. Regis.

Mansfield's Case.

23 Eliz. In the Court of Wards the Case was this: Henry Bushly seized in Fee of Lands in Northmims, in the County of Hartford, by his Will in writing, demised the said Lands to Henry Bushly his Son in Tail, the remainder to William Bushly. And because his Son was within Age, he demised the Education of him to Thomas Harrison, whom he made his Executor. Afterward it hapned, that Henry the Son became a deformed Cripple, and proved an Ideot, a Nativitate: which Ideot, by the practice of Nichols, and others, was ravished from his Guardian, and carryed upon mens shoulders to an unknown place, and there kept in secret, till he had acknowledged a Fine of his Lands to one Bothome, before Justice Southcot, 9 Eliz. and by Indenture, the use of the Fine was declared to be to the use of the Cognizee and his Heirs: which Bothome 12 Eliz. conveyd the said Land to one Henry Mansfield. And 22 Eliz. the said Henry Bushly the Son, was by Inqui∣sition found an Ideot, a Nativitate: And upon this, 33 Eliz. the Court of Wards took order for possession of the Lands. And it was moved, That though the Fine binds the Ideot; yet the Indentures are not sufficient to direct the Uses. But it war Resolved, That forasmuch as he was enabled by the Fine as to the Principle, he shall not be disabled to limit the Uses, which are but as accessory: The same is the Law of an Infant, and a Feme-Court. And the said Mansfield brought an Action of Trespass in the Common-Pleas against one Trott, Farmer of the said Lands, and the Issue was tryed at the Bar; and the De∣formed Ideot brought out of the Court of Wards, to be shewn to the Judges of the Common-Pleas, and to the Jurors: And the Judges hearing that Mansfields Title was under the Fine levyed by that Ideot, the Lord Dy••r and Court caused a Juror, by consent, to be withdrawn;

and the Lord Dyer said, That the Judge who took the Fine was never worthy to take another: yet notwithstanding: all the Fine stood good.

Mich. 12 Jac. Regis.

Warcombe and Carrel's Case.

20 Octob. 6 Eliz. In the Star Chamber the Case was, Edward Carrel an Apprentice of the Laws, for a great sum of money bought the Wardship of Joan, the Daughter and Heir of Warcomb, in the County of Hereford, and mar∣ryed her to Edw. Car••el his youngest Son: And after Hill. 5 Eliz. the said Joan fell sick; and being of the Age of 19 years, and having no Issue, Edward her Husband per∣swaded her, to acknowledge a Fine of her Inheritance, by which should be conveyed an Estate to the Husband and Wife in Tail, the remainder to the right Heirs of the Wife; and Cognizance was taken by Ded. Potest. dire∣cted to Sir Thomas Sanders, and one Ch••snel of Grays-Inne before Easter, divers Judges being here who might have examined her, and on Friday in Easter Week she dyed; but the Fine, & l'argent du Reigne, was entred, as of the last Term, viz. H••llary Term 4 days before the Wives death. The Original Writ of Covenant bore Test 15 Jan. ret. Crastin. Pur. and the Ded. Potest. 18 Jan. And James Warcombe, Cosin and Heir of Joan, complained by Bill against Edw. Carrel, for getting the said Fine by in∣direct Pract••ces; and thereupon the Sentence of the Court was as followeth:

This day a right honourable Assembly being in this Court, the matter depending in the same, between James Warcombe Es{que} Plaintiff, and Edw. Carrel of London Gent. Defen∣dan••, as well concerning the validity of a Fine, levyed by the said Edward, and Joan his wife: which ••oan, as the Plain∣tiff alle••dges, was under age at the time of the F•••••• levyed; and also for certain undue means committed by the said Edw.

Carrel, in the suing out and getting the said Fine; and upon hearing all that could be alleadged on both parts, the said Fine was by the Opinion of the whole Conrt, adjudged good and ef∣fectual in Law. And also no fault judged to be in the said Edward Carrel, in suing out the said Fine; but that the s••me was sued out in du•• form and order of the Laws of this Realm•• and this is within the Rule, Facta tenent multa quae fieri prohibentur.

And as Carrel was not punished, though he knew his Wife within Age; so nor Hungate shall be punished, though she knew her Son so; and the rather, by reason of that antient Verse,

I••ges Communes sinescit Faemina, iles, M Clericus ••t Cultor, Judix sibi parcet et ultor.

And by Sentence all were dismissed, &c.

Among the Records in ••he Treasury, Inter placita &c. de Term. Sanct. Mich. 42 Ed. 3. Rot. 27. •• Cornubi••: Helena filia Hugonis Allo••, brought an Appeal of Robbery against I aw••ence Boskosleak, Rich. C••horta, Jo. Gilmin, and Joan his Wife, and others; and the Defen∣dants plead not guilty, and were found not guilty, Nec unquamse subtraxerunte Iden praedictus Laurentius, & omnes alii, &c. cant inde quieti. El praedicta Elena pro falso appello suo committitur, &c. et super hoc praed. Laurentius & alii petunt juxta forman Stat. quod Ju••atores inquirant quae damna, &c. Et super hoc quaesitum est à praefatis Juratori∣bus, &c. Quidicunt quod praed. Laurentius sustinuit ad valentiam 10 l. &c. et sic singulatim de caeteris &c. di∣cunt etiam quod Helena praed. non est sufficient, &c. et quod Johannes Riddel sen. & Jo. Riddel jun. &c. abettaverunt praed. Helenam, ideo ipsi &c. Out of which Record, these things are to be observed:

1. Though it is Enacted by the Stat. West. 2. cap. 21. That in this Case Justiciarii, &c. puniant appellatorem per prisonam unius Anni, &c. so that they were not Bail∣able: yet quia eadem Helena praegnans fuit & in periculo mortis, she was let to Bayl, to have her Body 15 Mich. ad

satisfaciendum praedicto Laurentio et aliis, &c. And the Reason of this is, because the Common-Law requires in every Case conveniency; and it is inconvenient a Woman with Child should remain in Common-Gaol: And the Judges of the Common-Law ought to know what the Moral Poet spoke, Red••ere personae sit convenientia cui{que} and agrees with Advice of Bracton, lib. 2. cap. 2.

2. That the Defendants recover their Damages, either wholly against the Principle, or wholly against the Abet∣tors: and with this agrees Ed. 4. 3.

3. Though the Statute saith, Restituant Appellatores damna, &c. yet the Damages shall be singulatim assessed; for as the Defamation of one may be greater than ano∣ther; so the Damages of one may be greater than ano∣ther.

4. Though the Appellor be not sufficient to pay; yet his body shall be taken ad satisfaciendum, Quia qui non habet in aere, luat in corpore.

5. Though the Jurors in the Appeal, have found the Defendants Abettors; yet insomuch as they are stran∣gers to the Original, they shal not be concluded, Quia res inter alios actae alteri nocere non debent.

Vide the Book of Entries, Title Appeal Divisione Da∣mages, 1 & 2. Vide Placita coram rege apud Ebor. in Crast. Sancti Trin. 7 Ed. 3. 44. Divisione. Indictments are very well worth observing.

Duresse per Gaoler.

See there divers sorts of Presentments; as of Wollingo∣ver, John Alnner, Thomas Ballivus de Flaxwel & Laugh∣ton. Thomas de Mandon Ballivus de Boby of Grafton, Thomas Carleton Under-Sheriff of the County of Lincoln, and Hugo de Baxter, &c.

False Affidavits.

In an Action su••le case, it was Resolved, per totam Cu∣riam, That i•• a Sumner return one certified upon his Oath in Court-Christian, where in truth he was not, and thereon he is pronounced contumax, and so becometh ex∣communicate, he shall have his Action sur le case; for here is damaum et injuria.

And it was Resolved, That Perjury, by which Dama∣ges do accrew, may be punished as a Misuemeanour, at the Suit of the King; and also the Party may have his Action upon the Case; for Perjury may not be com∣mitted with Impunity: And for that Reason, If Jurors themselves use Perjury, an Attaint ••yes by the Common-Law: as appears by Glanvil, lib. 2. cap. 29. 15 H. 8. Title Attaint, 75. 6 H. 3. ibid. 73 & 75. and in the time of Ed. 1. ••ttaint. 70. West. 1▪ cap. 38. Vide F. N. B. 109 Vid. 27 H. 6. 25.

In like manner it was agreed, That if one make a false Affidavit, by which the Party is Arrested with Process of Contempt, he may have an Actio•• sur le case, and recover Damage: And though the Court-Christian may pu∣nish, pro salute animae; yet they cannot award Damages to he party. And though the matter be meerly Eccle∣siastical; yet if the Party grieved hath Damages, either by wrongful Proceedings of the Judge, or M••sfeasans, or Nonfeasans, or falsity of any Minister, &c. the Party grieved may have an Action sur le c••se, and recover Da∣mages.

Doctor and Stud. 118, 119. Action sur le Case, lyes against the Ordinary, for a wrongful Excommunication, touching any thing out of his Jurisdiction, &c. So in Fitz. 47 H. 6. 8. If an Arch-Deacon refuse to induct the Clerk, &c. he shall have Action sur le case: Which was affirmed for good Law by all the Court: with which

agrees 26 H. 8. 3. a. If a man proceed against a Pro∣hibition, the Party may have an Action upon the Case against him, for prosecuting in Court-Christian. Vid. Trin. 20 Ed. 3. Rot. 46. in the Treasury, Richard Tresil's Case. So the like, Pasch. 13 Ed. 3. Rot. 78. Philip de Har••eshals Case. Hill. 32 Ed. 3. Rot. 78. and Trin. 37 Ed. 1. and Mich. 29 Ed. 3. Rot. 19. similiter: and di∣vers other Records you may have. See in my Book of Presidents.

Pasch. 14 Jac. Regis.

An Habeas Corpus to the Marshal of the Admiralty, granted in Hillary Term last past for Haukridge, Prisoner in the custody of the said Marshal, who did return, Quae∣d••m causa spolii, &c. contra Haukridge pendet indecisa pro judicio & sententia paratus, &c. Qui quidem Will: Haukridge remanet donec antedict. causa per praefat. Daniel Dun suerit & hoc est causa. And also upon another Ha∣beas Corpus, he made such a Return; and otherwise, Pa∣rata sit, &c. Which the Court took to be very insuffi∣cient, and gave divers days to amend the Return, and to shew the cause of Delay, and why Sentence was not gi∣ven; and the Marshal would not amend his Return. Up∣on which, the Party being in Prison 16 or 18 Weekes, always the Return was est parata, &c. And after in ano∣ther Writ returnable, Crast. Ascentionis was another Re∣turn of Parata, &c. without shewing cause of Delay. The Return also was insufficient, because Quaedam causa spolii civilis & maritima quae coram, &c. which is too general, for two Causes;

1. Because (spolii) is uncertain, and ought to be specified in some more certainty: besides, it shews not the value of the Goods.

2. That Maritima est super littus; or, in portu maris: and yet the Admiral hath not Jurisdiction, Super littus

maris, or in portu; because they are infra corpus comitat. And so it was adjudged in Lacies Case, Dyer 15 Eliz. the Abbot of Ransey's Case, 15 Eliz. Dyer, fol. 236. Pasch. 17 Eliz. in Scaccar. ac contra Digges; for which cause he ought to have said, Super altum mare intra Jurisdictio∣nem Admiralli. See the Stat. 13 R. 2. c. 5. 2 H. 4. c. 11 19 H. 6. 7.

For the first, all the Court Resolved, that it was insuf∣ficient; also there was shewn no time of the spoyl: And for this, in the same Term, the said Haukridge was bailed in open Court till the next Term, according to the Books, 6 H. 6. 44. 28 H. 8. c. 15.

Note, It was said by some, That when Judgment is gi∣ven, that one shall be hanged till he be dead; the King cannot alter the Judgment, and command that he shall be beheaded: for the Execution ought to be conform to the Judgment: and with this accords 35 H. 6. fol, 58. and Stamf. lib. 1. fol. 13. Vide 27 Ass. pl. 41. F. N. B. 144. 22 Ass. pl. 49. Duke of Somersets Case; and the Lord Sturtons Case in Queen Mary's time; and the Lord Da∣tres his Case in H. 8. both which were hanged for Fe∣lony.

It was Resolved also, That King H. 8. could not by the Law behead his Wives for Treason: for judicandum est legibus, non exemplis.

T••i••. 9 Jacob. Regis.

In this Term, I moved the Justices in Sergeants Inne in Fleetstreet, upon the Stat. 27 Jac. cap. 6. If the Ju∣stices of Peace may make a special Warrant to Consta∣bles, &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 Au∣thority 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 indict∣ed 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 Hou∣ses, the Door being shut, &c. they may be indicted be∣fore the Justices of Assize, or Quarter-S••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 conside∣ration 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 Procla∣mation, according to 28 Eliz. And that the Process up∣on the Indictment, and Venire Facias, and Capias, &c. and upon the Capias, the Sheriff, upon Request made to o∣pen the Door, (as in Seymans Case) and when by the Sheriff brought into Court, he may, upon refusal of ta∣king his Oath, be generally indicted, &c. But the Ju∣stices, upon the second day of Conference, did not speak to the other Point. And this Resolution being reported

to the Lords of the Councel a•• Whitehall, (all the Judges being present, 7 Feb. Hill. 9 Jacob. Regis. We were de∣sired 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 th•• 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 Bay••, 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 Re∣fusal, then they may be generally indicted, as upon Refu∣sal in ••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 S••ssions: And observe, that two Justices (whereof one of the Quorum) by the Stat. 7 Jac. may commit any per∣son above the Age of 18. and under the Degree of Nobi∣lity, alt••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 whatso∣ever.

Mich. 10 Jac. Regis.

The Earl of Northampton's Case.

1. The Attorney-General informed against Thomas Good∣rick Gent. Sir Richard Cox Kt. Henry Vernon Gent. Henry Minors, Thomas Lake Gent. and James Ingrum Merchant, ore t••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 Scan∣dals, 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 re∣gem sive ad faciendum populum; and requested, that his Book ••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 Ver∣non; 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 conf••ssed at Bar, all that they were charged with; and at the Hearing of this Case were 11 Judges, Fleming being absen•• 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 con∣tained 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 Of∣fence, else he should not be punish'd by Fine and Impri∣sonment.

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: and for this he ought to be indicted for the words which he himself spake: and then De non appa∣rentibus & non existentibus eadem ratio.

And it was Resolved, That if A. say to B. Did you not hear that C. is guilty of Treason, &c. This is tanta∣mount to a Scandalous Publication. If J. S. publish, that he hath heard generally, without a certain Author, that J. G. was a Traytor or Thief; there an Action, Sur le case, lyeth against J. S. And a Record was vouched, Mich. 33 and 34 Ed. 3. and in the 30 Ass. pl. 10. and in the Exchequer, Mi••h. 18. Ed. 1. Rot. 4.

The Defendants, in the Case at Bar, for publication of the said words, all the Defendants were punish'd by all the presence, una voce, nullo contradicente, by Fines and Imprisonment; Goodrick and Ingrum were Fined the most, because one could find no Author for the Words, con∣cerning the Cinque-Ports; nor the other, any other than unknown persons of Ligorn; and therefore 'twas taken as a Fiction of his own.

Trin. 10 Jac. Regis.

Eastwick's Case i•• Curia Wardorum.

King Philip and Queen Mary, by their Letters-Patents de gratia speciali, &c. granted to Aringal Wade in Fee, th••

Farm called Milton Grange, in the County of Bedford; parcel of the Possessions of the late dissolved Monastery of Wooburn. Tenendum praed. firmam de nobis & successoribus nostris ut de Manerio nostro de East-Greenwich in Com. Kent, in capite, per servitium vicessimae partis unius Feodi Militis pro omnibus redditibus, &c. quibusc••nque: Which Grange, by mean Conveyance, came to Christopher East∣wick; after whose death, the Tenure was found verbatim, according to the words of the Patents: And the Questi∣on was, If the Tenure was by a mean, as of the said Ho∣nour, or in Capite. And their principal Reason was, That the Letters-Patents shall be construed to the Kings Intention expressed; and in this Case, some Words ought to be rejected, scil. these words (in Capite) or these words, (De mancrio nostro de East-Greenwich) for both together cannot stand; and then the better shall be ta∣ken for the King: as 5 Mary, Dyer 162. 15 H. 7. 7. 14 Ed. 4. 5. 3 H. 7. 12. 9 H. 7. 9. 6. per Huffey. 13 H. 7. 4. per Fineaux, 19 H. 8. Title Office. Brooks 58. Action.

But it was Answered, and Resolved, That the said Grange was held of the King, as of the Honor, and not in Capite: And the Reason was, because that Tenure of the King in Capite, is as much as to say, Tenure in gross, or of the Person of the King. And it appears by antient Re∣cords, that in Old Time, all Tenures in Gross, or of the Person of a Subject, were called Tenures in Capite; as in Claus. 9 H. 3. membr. 28. and many other Records; but of late time, Dicitur de rege solummodo terras teneri in Capite: And therefore when it is said, Tenendum de no∣bis in Capite ut de manerio nostro de East-Greenwich, &c. Inasmuch, as it is limited to hold of the King who is Chief, it may be vulgarly said, That the Tenure is in Chief; inasmuch as it is of the King, as of a Mannor.

Secondly, It was Resolved, That the abundant Words shall be extended in Construction of the Law; and not the Words subsequent, which limit the Term in cer∣tainty: And with this Resolution agrees Mich. 17 and

18 Eliz. 345. Nota, That a Tenure of any antient Ho∣nors; as of Rawl••igh, Hagenet, and Peverel, are, by way of Usage and Allowance in all Ages, taken to have the ef∣fect of a Tenure in Cap••te, viz. To have all the Lands in Guard, &c. Et non valet ratio contra experimentum. See Mag. Chart. cap. 31. and 11 H. 7. in Rot. Parliam. not Printed: and 1 H. 6. c. 4. Bracton, lib. 2. fol. 87. 30 H. 8. Dyer 8. 58. 29 H. 8. Brook, Title Livery, 28. 57. 5 Ed. 3. 5.

Finis Libri Duodecimi.