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authority_n	act_n	parliament_n	power_n	4,990	5	5.0858	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A33627	Certain select cases in law reported by Sir Edward Coke, Knight, late Lord Chief Justice of England ... ; translated out of a manuscript written with his own hand, never before published ; with two exact tables, the one of the cases, and the other of the principal matters therein contained.; Reports. Part 13. English	Coke, Edward, Sir, 1552-1634.	1659 (1659)	Wing C4909; ESTC R1290	92,700	80

in the case of Modus Decimandi before and see Register fo 38. when Lands are given in satisfaction and discharge of Tythes 4. See the Statute of Circumspecte agatis Decimae debitae seu consuetae which proves that Tythes in kinde and a Modus by custom c. 5. 8 E. 4. 14. and Fitz. N. B. 41. g. A Prohibition lieth for Lands given in discharge of Tythes 28 E. 3. 97. a. There Suit was for Tythes and a Prohibition lieth and so abridged by the Book which of necessity ought to be upon matter De Modo Decimandi or discharge 7. 7 E. 6. 79. If Tythes are sold for mony by the sale the things spiritual are made temporal and so in the case De modo Decimandi 42 E. 3. 12. agrees 8. 22 E. 3. 2. Because an Appropriation is mixt with the Temporalty scil the Kings Letters Patents the same ought to be shewed how c. otherwise of that which is meer Temporal and so it is of real composition in which the Patron ought to joyn Vide 11 H. 4. 85. Composition by writing that the one shall have the Tythes and the other shall have mony the Suit shall be at the Common Law Secondly By Acts of Parliament 1. The said Act of Circumspecte agatis which giveth power to the Ecclesiastical Iudg to sue for Tythes due first in kinde or by custom i. e. Modus Decimandi so as by authority of that Act although that the yearly sum soundeth in the Temporalty which was payd by Custom in discharge of Tythes yet because the same cometh in the place of Tythes and by constitution the Tythes are changed into mony and the Parson hath not any remedy for the same which is the Modus Decimandi at the Common Law for that cause the Act is clear that the same was a doubt at the Common Law And the Statute of Articuli Cleri cap. 1. If corporal pennance be changed in poenam pecuniariam for that pain Suit lieth in the Spiritual Court For see Mich. 8 H. 3. Rot. 6. in Thesaur A Prohibition lieth pro eo quod Rector de Chesterton exigit de Hagone de Logis de certa portione pro Decimis Molendinarium so as it appeareth it was a doubt before the said Statute if Suit lay in the Spiritual Court de Modo Decimandi And by the Statute of 27 H. 8. cap. 20. it is provided and enacted That every of the subjects of this Realm according to the Ecclesiastical Laws of the Church and after the laudable usages and customs of the Parish c. shall yield and pay his Tythes Offerings and other duties and that for substraction of any of the said Tythes offerings or other duties the Parson c. may by due Proces of the Kings Ecclesiastical Laws convent the person offending before a competent Iudg having authority to hear and determine the Right of Tythes and also to compel him to yeild the Duties i. e. as well Modus Decimandi by laudable usage or Custom of the Parish as Tythes in kinde and with that in effect agrees the Statute of 32 H. 8. cap. 7. By the Statute of 2 E. 3. cap. 13. it is enacted That every of the Kings Subjects shall from henceforth truly and justly without fraud or guile divide c. and pay all manner of their predial Tythes in their proper kinde as they rise and happen in such manner and form as they have been of Right yielded and payd within forty years next before the making of this Act or of Right or Custom ought to have been payd And after in the same Act there is this clause and Proviso Provided always and be it enacted That no person shall be sued or otherwise compelled to yield give or pay any manner of Tythes for any Mannors Lands Tenements or Hereditaments which by the Laws and Statutes of this Realm or by any priviledg or prescription are not chargeable with the payment of any such Tythes or that be discharged by any compositions real And afterwards there is another Branch in the said Act And be it further enacted That if any person do substract or withdraw any manner of Tythes Obventions Profits Commodities or other Duties before mentioned which extends to Custom of Tything i. e. Modus Decimandi mentioned before in the Act c. that then the party so substracting c. may be convented and sued in the Kings Ecclesiastical Court c. And upon the said Branch which is in the Negative That no person shall be sued for any Tythes of any Lands which are not chargeable with the payment of such Tythes by any Law Statute Priviledg Prescription or Real Composition And always when an Act of Parliament commands or prohibits any Court be it Temporal or Spiritual to do any thing temporal or spiritual if the Statute be not obeyed a Prohibition lieth as upon the Statute de articulis super Cartas ca. 4. Quod Communia Placita non tenentur in Scaccario a Prohibition lieth to the Court of Exchequer if the Barons hold a Common-Plea there as appeareth in the Register 187. b. So upon the Statute of West 2. Quod inquisitiones quae magnae sunt examinationis non capiantur in patria a Prohibition lieth to the Iustices of Nisi Prius So upon the Statute of Articuli super Cartas cap. 7. Quod Constabularius Castr Dover non teneat Placitum forinsecum quod non tangit Custodiam Castri Register 185. So upon the same Statute cap. 3. Quod See Lib. Entr. 450. a Prohibition was upon the Statute that one shall not maintain and so upon every penal Law See F. N. B 39. b. Prohibition to the Common Pleas upon the Stat. of Magna Charta that they do not proceed in a Writ of Praecipe in Capite where the Land is not holden of the King 1 2 Eliz. Dy. 170 171. Prohibition upon the Statute of barrenes and pettit is onely prohibited by implication Senescallus Mariscallus non teneant Placita de libero tenemento de debito conventione c. a Prohibition lieth 185. And yet by none of these Statutes no Prohibition or Supersedeas is given by express words of the Statute So upon the Statutes 13 R. 2. cap. 3. 15 R. 2. cap. 2. 2 H. 4. cap. 11. by which it is provided That Admirals do not meddle with any thing done within the Realm but onely with things done upon the Seas c. a Prohibition lieth to the Court of Admiralty So upon the Statute of West 2. cap. 43. against Hospitalers and Templers if they do against the same Statute Regist 39. a. So upon the Statute de Prohibitione regia Ne laici ad citationem Episcopi conveniant ad recognitionem faciend vel Sacrament praestanda nisi in casubus matrimonialibus Testamentariis a Prohibition lieth Regist 36. b. And so upon the Statute of 2 H. 5. cap. 3. at what time the Libel is grantable by the Law that it be granted and

or Peculiar other then in such particular Cases only as are expresly excepted and reserved in and by a Statute Anno 23 H. 8. cap. 9. And the King by Letters Patents under the great Seal hath given his royall Assent to this Canon 1. Jac. at the Synod at London Vi. Linwood de excusationibus 200. Lit. m. 5. pag. 2. L. 2. amongst others from time to time to be observed fulfilled and kept as well by the Archbishop of Canterbury the Bishops and their Successors and the rest of the whole Clergy of the Province of Canterbury in their severall Callings Offices Functions Ministeries Degrees and Administrations as also by all and every Dean of the Arches and other Iudge of the said Archbishops Courts Guardians of Spiritualties Chancellors c. So the same is also expresly confirmed under the great Seal And although the Archbishoprick of Canterbury was then void yet the Guardian of the Spiritualties was there and the Archbishop of Canterbury that now is and then Bishop of London was by Letters Patents President of the said Councell in the place of the Archbishop then deceased And the King gave his royall Assent to the same and the said Canon is of as full force as if the said late Archbishop of Canterbury had been then alive And whereas it is said in the Preamble of the Act In the Arches Audience and other high Courts Archbishops were Legati nati and had Legatine power which is now abolished vi Linwood of the Archbishop of this Realm It is to be known That the Archbishops of this Realm before that Act had power Legatine from the Pope by which they pretended to have not only supereminent Authority over all but concurrent Authority with every Ordinary in his Dioces not as Archbishop of Canterbury c. but by his power and authority Legatine For Sunt tria genera Legatorum 1. quidam de latere Dom. Papae mittuntur ut Cardinales quos appellant fratres 2. Alii sunt Dativi non de latere qui simpliciter in Legatione mittantur c. 3. Sunt Nati sive Nativi qui suarum Ecclesiarum praetextu legatione fingantur Tales sunt quatuor scil Archepiscopus Cant. Eboracensis Remanensis Pisanis So as before that Act the Archbishop of Canterbury was Legatus Natus and by force of his authority Legatine usurped against the Canons upon all the Ordinaries in his Precinct and by colour thereof claimed currant authority with them which although they held in the Courts of the Archbishop the same was remedied by the Act of 23 H. 8. cap. 9. and all that which he usurped before was not as he was Archbishop for as to that he was restrained by the Canons but as he was Legatus Natus which authority is now taken away and abolished utterly Lastly If the said Act of 23 H. 8. cap. 9. should not be so expounded Vi lib. Arch. Cant. p. 39. that the Arch-Bishop of Cant. hath a Peculiar in many Dioces Then the Act which is principally made as it appeareth by the Preamble against the Courts of the Archbishopricks should be as to them illusory For if the Bishop of Canterbury in respect of his exempt Peculiar in London may draw to him all the Dioces in London So might he at Newington which is a Peculiar in Winchester Dioces draw to him the whole Dioces of Winchester And at Totteredge neer Bornet the whole Dioces of Lincoln and so of the like 3. It was resolved That when any Iudges are prohibited by any Act of Parliament that if they do proceed against the Act there a Prohibition lieth As against the Steward and Marshall of the Houshold Quod seneschallus Mariscallus non teneant Placit de libero tenem de Debito de Conventione c. So the Statute of Articuli super chartas cap. 3. Register fol. 185. inter Brevia super statuta So against the Constable of the Castle of Dover Quod non tangit Custodiam Castri So to Iustices of Assise upon the statute Quod Inquisitiones quae sunt magni exactionis non Capiantur in Patria Also to the Treasurer and Barons of the Exchequer upon the statute Vi. Pasc 42 Eliz Rot. 139. Rudds case a Prohibition for citing out of the Dioces Tr. 44 Eliz. Rot. 1073. the like in an information upon the Statute against Zachary Babington Vi. If any one in the Spirituall Court appeals contrary to the Statute of 24 H. 8. cap. 12. although the matter be meer Spiritual a Prohibition lyeth So upon the Statute of 2 H 5. cap. 2. De Articul super Cartas Cap. 4. The statute of Rutland Cap. ultimo Quod communia Placit non teneantur in Scaccario All which and many more you may see in the Register inter Brevia super Statuta See F. N. B. 45 46. c. 17 H. 6. 54. vi 13 E. 3. to Prohibition A Prohibition to the Chancellor and diversity of Courts in the Title of Chancery So against all Ecclesiasticall Iudges upon the statute of 2 H. 5. cap. 3. If the Iudges there will not give or deliver to the party a Copy of the Libell although that the matter be meer Ecclesiasticall and therewith agreeth 4 E. 4. 37. and F. N. B. 43. c. So the Case upon the Statute of 2 H. 5. cap. 15. If the Ecclesiasticall Iudges in case of Heresie and other matters of meer Spiritualty do not proceed according to the intention of the same statute as it appeareth by the President in 5 E. 4. Keysons Case 10 H. 7. 17. See the opinion of Paston 9 H. 6. 3. A man excommunicated by the Bishop of London for a Crime done in another Dioces shall not be grieved thereby so as the Common Law takes notice of the Canons in such case as Coram non Judice And although the statute of 23 H. 8. inflicts a penalty yet a Prohibition lyeth for the inflicting of the penalty doth not take away the Prohibition of the Law and therefore Cap. which inflicts punishment if the Sheriff doth not put his Name unto the Return yet the same is Error if he doth not put to his Name see 35 H. 6. 6. when any thing is prohibited by a Statute if the party be convicted he shall be fined for the contempt to the Law and 19 H. 6. 4. agrees in Maintenance And if every person should be put to his Action upon the Statute the same See 2 H. 4. 10 by Haukford and so affirmed by the Court when one who hath not authority holdeth plea in spirituall things whereof the Jurisdiction doth not belong to him yet no consultation shall be grāted because a consultation shall not be granted to one that hath not power c. should be cause of Suits and veration and the shortest and more easy is to have a Prohibition See the Statute of 21 H. 8. cap. 6. of Mortuaries by which it is enacted That no Parson Vicar Curat c. demand

seperatio quia seperat duas Jurisdictiones So Dioces signifies the Iurisdiction of one Ordinary seperated and divided from others And because the Archbishop of Canterbury hath a peculiar Iurisdiction in London exempt out of the Dioces or Iurisdiction of the Ordinary or Bishop of London For that cause it is fitly said in the Title Peramble and body of the Act That when the Archbishop sitting in his exempt Peculiar in London cites one dwelling in Essex he cites him out of the Dioces or Iurisdiction of the Bishop of London ergo he is cited out of the Dioces And in the clause of the penalty of ten pounds It is said out of the Dioces or other Iurisdiction where the party dwelleth which agreeth with the signification of Dioces before And as to the words Far off c. they were put in the Preamble to shew the great mischief which was before the Act As the Statute of 32 H. 8. cap. 33. in the Preamble it is Disseisins with strength and the body of the Act saith such Disseisor yet the same extendeth to all Disseisors but Disseisin with force was the greatest mischief as it is holden in 4. and 5 Eliz. Dyer 219. So the Preamble of the Statute of West 2. cap. 5. is Heirs in Ward and the body of the Act is Hujusmodi praesentat as it is adjudged in 44 E. 3. 18. That an Infant who hath an Advowson by discent and is out of Ward shall be within the remedy of the said Act but the Frauds of the Guardians was the greater mischief So the Preamble of the Act of 21 H. 8. cap. 15. which gives falsifying of Recoveries recites in the Preamble That divers Lessees have paid divers great Incomes c. Be it enacted That all such Termors c. and yet the same extends to all Termors and yet all these Cases are stronger then the Case at Bar for there that word such in the body of the Act referreth the same to the Preamble which is not in our Case 2. The body of the Act is No manner of person shall be henceforth cited before any Ordinary c. out of the Dioces or peculiar Iurisdiction where the person shall be dwelling And if he shall not be cited out of the Peculiar before any Ordinary a Fortiori the Court of Arches which sits in a Peculiar shal not cite others out of another Dioces And these words Out of the Dioces are to be meant out of the Dioces or Iurisdiction of the Ordinary where he dwelleth but the exempt Peculiar of the Archbishop is out of the Iurisdiction of the Bishop of London as S. Martins and other places in London are not part of London although they are within the circumference of it 3. It is to be observed That the Preamble reciting of the great mischief recites expresly That the Subjects were called by compulsary proces to appear in the Arches Audience and other high Courts of the Archbishoprick of this Realm So as the intention of the said Act was to reduce the Archbishop to his proper Dioces or peculiar Iurisdiction unlesse it were in five Cases 1. For any Spirituall Offence or cause committed or omitted contrary to the right and duty by the Bishop c. which word omitted proves that there ought to be a default in the Ordinary 2. Except it be in case of Appeal and other lawfull cause wherein the party shall find himselfe greived by the Ordinary after the matter or cause there first begun ergo the same ought to be first begun before the Ordinary 3. In case that the Bishop of the Dioces or other immediate Iudge or Ordinary dare not or will not convent the party to be sued before him where the Ordinary is called the immediate Iudge as in truth he is and the Archbishop unlesse it be in his own Dioces these speciall Cases excepted mediate Iudge scil by Appeal c. 4. Or in case that the Bishop of the Dioces or the Iudge of the place within whose Iurisdiction or before whom the Suit by this Act should be begun and prosecuted be party directly or indirectly to the matter or cause of the same suit Which clause in expresse words is a full exposition of the body of the Act scil That every suit others then those which are expressed ought to be begun and prosecuted before the Bishop of the Dioces or other Iudge of the same place 5. In case that any Bishop or any inferiour Iudge having under him Iurisdiction c. make request or instance to the Archbishop Bishop or other inferiour Ordinary or Iudge and that to be done in cases only where the Law Civill or Common doth affirm c. By which it fully appeareth That the Act intendeth That every Ordinary and Ecclesiasticall Iudge should have the Conusance of Causes within their Iurisdiction without any Concurrent Authority or Suit by way of prevention And by this the Subject hath great benefit as well by saving of travell and charges to have Iustice in his place of habitation as to be judged where he and the matter is best known As also that he shall have many Appeals as his Adversary in the highest Court at the first Also there are two Provisoes which explains it also scil That it shall be lawfull to every Archbishop to cite any person inhabiting in any Bishops Diocesse within his Province for matter of Heresie which were a vain Proviso If the Act did not extend to the Archbishop But by that speciall Proviso for Heresie it appeareth that for all causes not excepted is prohibited by the Act Then the words of the Proviso go further If the Bishop or other Ordinary immediatly hereunto consent or if the same Bishop or other immediate Ordinary or Iudge do not his duty in punishment of the same which words immediatly and immediate expound the intent of the makers of the Act. 2. There is a saving for the Archbishop the calling any person out of the Dioces where he shall be dwelling to the probate of any Testaments which Proviso should be also in vain if the Archbishop notwithstanding that Act should have concurrent Authority with every Ordinary through his whole Province Wherefore it was concluded that the Archbishop out of his Dioces unlesse in the Cases excepted is prohibited by the Act of 23 H. 8. to cite any man out of any other Dioces And in truth the Act of 23. of Henry the eighth is but a Law declaratory of the ancient Canons and of the true exposition of them The Act of 23 H. 8. is a Declaration of the old Canon Law And that appeareth by the Canon Cap. Romana in sexto de Appellationibus and Cap. de Competenti in sexto And the said Act is so expounded by all the Clergy of England at a Convocation in London An. 1 Jac. Regis 1603. Canon 94. Where it is decreed ordained and declared That none should be cited to the Arches or Audience but the Inhabitants within the Archbishops Dioces

any Mortuary but in such manner as is mentioned in the Act upon pain of forfeiture of so much in value as they take more then is limited by the Act and forty shillings over to the party grieved Yet it appeareth by Doctor and Student lib. 2. cap. 55. fol. 105. That if the Parson c. sueth for Mortuaries otherwise then the Act appointeth that a Prohibition lyeth yet there is a Penalty added which is an authority expresly in the Point And the Case at Bar is a more strong Case and that for three reasons 1. It was made in affirmance of the Canon Law 2. It was made for the ease of the People and Subjects and for the maintenance of the Iurisdiction of the Ordinary so as the Subjects have benefit by the Act and therefore although that the King may dispence with the penalty yet the Subject greived shall have a Prohibition And the Rule of the Court was Fiat Prohibitio Curiae Cantuar. de Arcub Inter partes praedict per Curiam And Sherly and Harris Iunior Serjeants at Law were of Councell in the Case III. Mich. 6 Jacobi Regis Edwards Case THe high Commissioners in Causes Ecclesiasticall objected divers High Commission Articles in English against Thomas Edwards dwelling in the City of Executer 1. That Mr. John Walton hath been many yeares trained up in Learning in the Vniversity of Oxford and there worthily admitted to severall degrees of Schools and deservedly took upon him the degree of Doctor of Physick 2. That he was a Reverend and well practised man in the Art of Physick 3. That you the said Thomas Edwards are no Graduate 4. That you knowing the Premisses notwithstanding you the said Edwards c. of purpose to disgrace the said Dr. Walton and to blemish his Reputation Learning and Skill with infamy and reproach did against the Rules of Charity write and send to the said Mr. Doctor Walton a lewd and ungoodly and uncharitable Letter and therein tared him of want of Civility and Honesty and want of Skill and Iudgment in his Art and Profession c. And you so far exceeded in your immoderate and uncivill Letter that you told him therein in plaine termes He may be crowned for an Asse as if he had no manner of skil in his Profession and were altogether unworthily admitted to the said Degrees and therein you purposely and advisedly taxed the whole Vniversity of rashnesse and indiscretion for admitting him to that Degree without sufficiency and desert 5. And further to disgrace the said Mr. Doctor Walton in the said Vniversity did publish a Copy of the said Letter to Sir William Courtney and others and in your Letter was contained Sipsilam lichenen mentegram Take that for your Inheritance and thank God you had a good Father And did not you thereby covertly mean and imply That the Father of the said Dr. Walton being late Bishop of Exeter and a Reverend Prelate of this Land was subject to the Diseases of the French Pox and Leprosie to the dislike of the Dignity and Calling of Bishops 6. That in another Letter you sent to Mr. Doctor Maders Doctor of Physick you named Mr. Doctor Walton and made a Horn in your Letter And we require you upon your Oath to set down whether you meant not that they were both Cuckoulds and what other meaning you had 7. You knowing that Dr. Walton was one of the high Commission in the Dioces of Exeter and having obtained a Sentence against him in the Star-Chamber for contriving and publishing of a Libell did triumphingly say That you had gotten on the hipp a Commissioner for Causes Ecclesiasticall in the Dioces of Exeter which you did to vilifie and disgrace him and in him the whole Commission Ecclesiasticall in those parts Lastly That after the Letter missive sent unto you you said arrogantly That you cared not for any thing that this Court can do unto you nor for their censure for that you can remove this matter at your pleasure And this Term it was moved to have a Prohibition in this Case And the matter was well argued And at last it was resolved by Coke chief Iustice Warberton Daniel and Foster Iustices That the first six Articles were meer Temporall concerning Doctor Walton in his Profession of Physick and so touched the Temporall person and a temporall matter and in truth It is in the nature of an Action upon See Book of Entries 444. 447. Non est Juri consentanium quod quis super iis quo rum cognitio ad nos pertinet in Curia Christianitatis trahatur in placita vi Stat. Circumspecte agatis An. 13. E. 1. Episcopus teneat plicita in Curia Christianitatis de his quae sunt mere Spiritualia Et vi Linwood f. 70. Lit. m. dicuntur mere Spiritualia quia non habent mixturam Temporalem vi 22 E. 4. l. Consultat vi 22 E. 4 the Abbot of Sion case the Case for Scandall in his Profession of Physick And yet the Commissioners themselves do proceed in the same Ex Officio And it was resolved that as for them a Prohibition doth lye for divers causes 1. Because that the matter and persons are Temporall 2. Secondly Because it is for Defamation which if any such shall be for the same it ought to begin before the Ordinary because it is not such an Enormous Offence which is to be determined by the high Commissioners And for the same reason Suit doth not lye before them for calling the Doctor Cuckould as it was objected in the seventh Article And it was said that the high Commissioners ought to incur the danger of Premunire 2. It was resolved That the Ecclesiasticall Iudge cannot examine any man upon his Oath upon the intention and thought of his Heart for Cogitationis penam nemo emoret And in cases where a man is to be examined upon his Oath he ought to be examined upon Acts or words and not of the intention and thought of his heart and if every man should be examined upon his Oath what opinion he holdeth concerning any point of Religion he is not bound to answer the same for in time of danger Quis modo tutus erit if every one should be examined of his thoughts And so long as a man doth not offend neither in act nor in word any Law established there is no reason that he should be examined upon his thought or Cogitation For as it hath been said in the Proverb Thought is free And therefore for the sixth and seventh Articles they were resolved as well for the matter as for the form in offering to examine the Defendant upon his Oath of his intention and meaning were such to which the Defendant was not to be compelled to answer Ergo It was resolved that as to the Article he might justifie the same because as it appeareth upon his own shewing that the Doctor was sentenced in the Star-Chamber Also the Libell is matter meer Temporall and if it