Ne Exeat Regnum de Leproso amovendo de Apostata Capiendo ad quod damnum and Writs to call persons thence as hath been done before they had Burgesses to the Parliament of England And Writs of Error into all Dominions belonging to England lye upon the ultimate Iudgments there given into the Kings Courts of England to reverse Judgments or affirm which is the only Writ which concerns Right and Property between the Subjects that lies The Reasons are First for that without such Writ the Law appointed or permitted to such inferiour Dominion might be insensibly changed within it self without the assent of the Dominion Superiour Secondly Judgments might be then given to the disadvantage or lessening of the Superiority which cannot be reasonable or to make the Superiority to be only of the King not of the Crown of England as King James once would have it in the Case of Ireland ex relatione J. Selden mihi whom King James consulted in this Question The practice hath always been accordingly as is familiarly known by reversal or affirmance of Judgments given in the Kings Bench in Ireland in the Kings Bench here which is enough alone to prove the Law to be so to other subordinate Dominions 21 H. 7. f. 3. And it is as clear That Writs of Error did lye in the Kings Bench to reverse Judgments in Calais and the reason is alike per Curiam for which were divers Presidents This being the state of Wales when it first became an Accession to the Dominion of England under E. 1. and when it was far from the Jurisdiction of the Courts of Justice in England as before it was added to the Dominion of the Crown of England And as other Dominions added to it were 7 H. 4. f. 14. it was questioned only Whether a Protection quia moratur in obsequio nostro in Wallia were good because saith the Book it is within the Realm of England it may be as in the Case of Bastardy the Husband being infra quatuor maria which doubtless was the Isle of Brittain so the Primacy of Bishops in Scotland and Wales was that of England Qu. about this but that gives no Jurisdiction to the Courts There were two ways by which alteration might be wrought The first by Act of Parliament in England making Laws to change either the Laws or Jurisdictions of Wales or both The second by Alterations made in the Laws formerly by him established by E. 1. himself and perhaps by his Successors Kings of England without Parliament by a Clause contained in the Close of that Statute or Ordinance called Statutum Walliae in these words Et ideo vobis Mandamus quod premissa de caetero in omnibus observetis ita tantum quod quotiescunque quandocunque ubicunque nobis placuerit possimus predicta Statuta eorum partes singulas declarare interpretari addere sive diminuere pro nostrae libito voluntatis prout securitati nostrae terrae nostrae predictae viderimus expediri This seems to extend but to the person of E. 1. and not to his Successors and however no such change was made by Him or his Successors But the first remarkable Alteration made seems to have been by Act of Parliament and probably in the time of E. 1. who reigned long after the Statute of Wales but the Act it self is no where extant that I could learn But great Evidence that such there was which in some measure gave a Jurisdiction to the Kings Courts of England in Wales not generally but over the Lordships Marchers there This appears clearly by a Case Fitz. Ass 18 E. 2. pl. 382. not much noted nor cited by any that I know to this purpose being out of the printed Year-Books but printed by Fitz-herbert out of the Reports he had of E. 2. as he had of E. 1. and H. 3. all which we want wholly though some Copies are extant of E. 2. which Case is the only light that I know to clear the Question in hand An Assise of Novel Disseisin was brought against C. de libero tenemento in Gowre and the Writ was directed to the Sheriff of Glocester and the Plaint was made of two Commots which is mis-printed Commons and comprehends all Gouers-land now part of the County of Glamorgan by 27 H. 8. but was not so then the Assise past against the Tenant before the Iustice assigned to take Assises in the Marches of Wales The Tenant brought his Writ of Error and Assignes for Error 1. That the Writ was directed to the Sheriff of Glocester and the Land put in view was in Wales 2 That the Land was out of the Power and Bayliwick of the Sheriff of Glocester 3 That the Assise ought to be taken in the County where the Land lies and that Goures-land was in no County 4 That the Writ was de libero tenemento in villa sive Hamletto de Gouerse and Gouer was no Village or Hamlet but an entire Country consisting of two Commots To these Errors assigned Scroope then Chief Justice made Answer 1. That Gower is a great Barony in the Marches of Wales and That every Barony of the Marches hath a Chancellor and its own Writs whereby one Tenant wronged by another may be righted But when the Lord is outed of his intire Barony he can have no remedy by his own Writ for he is outed of all his Jurisdiction And it is repugnant to demand Iustice of him whose Iurisdiction is questioned that is to give it ut mihi videtur That therefore it was ordained by Parliament when the Baron or Marcher is outed of his Barony in the Marches of Wales he ought to go to the King for Remedy and have a Writ in the Kings Chancery directed to the Sheriff of the next English County and the Sheriff of Glocester served the Writ as being the next English Sheriff This being the most material the other Errors were also answered and the Judgment was affirmed From this Case we may learn and from no other as I believe at least with so much clearness That the Summons of Inhabitants in Wales and the tryal of an Issue there arising should be by the Sheriff of and in the next adjoyning English County was first ordained by Parliament though the Act be not extant now nor is it conceived how it should be otherwise it being an empty Opinion that it was by the Common Law as is touched in several Books who knew the practice but were strangers to the reasons of it For if the Law had been that an Issue arising out of the Jurisdiction of the Courts of England should be tryed in that County of England next to the place where the Issue did arise not only any Issue arising in any the Dominions of England out of the Realm might be tryed in England by that rule but any Issue arising in any Forreign parts as France Holland Scotland or elsewhere that were not of the Dominions of England might pari
but for Churches only within the Lordships Marchers whether of the Kings Patronage or others for there it is certain according to the reason given in the Books that the Stewards of the Lordships Marchers to whomsoever they belonged could not write to the Bishops And Newton was right 19 H. 6. That if Action of Dower once brought in the Court of any Signiory real it should be Royal in Wales and there issue should be upon usque accouple in loyal Matrimony which must be tryed by the Bishop but the Court had no power to write to the Bishop but therefore saith he The King shall write to the Marshal to remove the Record hither and then we shall make Process to the Bishop But this is against the Resolution of all the Judges in Cr. 2 Car. 1. f. 34. So as either of Necessity this was a provision in the same Act That as well Quare Impedits should be brought in England of Churches in the Lordships Marchers of Wales as that Writs should be brought in England of Lordships Marchers or any part of them in question because Justice could not be had in Wales either concerning such Lordships or Churches or else Churches within Lordships Marchers being in the same Case for a failer of Justice they were comprehended and ought to be so within the equity of that Act of Parliament for Iustice to be had touching the Lordships themselves and that the Law was such appears 1. That only Quare Impedits for Churches in Lordships Marchers in Wales and not for Churches in the ancient Shires or of the Principality of Wales whereof submission and render was made to E. 1. were to be brought and tryed in England 2. That Tryals and Writs in England for Land in Wales were only for Lordships Marchers and not for any Land in Wales which was of the ancient Principality for the Lordships Marchers were or most of them of the Dominion of England and held of the King in chief as appears by the Statute 28 E. 3. c. 2. and by the Title of the Earl of March before the rendition of the Principality to E. 1. That the Law was so for the Quare Impedits appears in the first place by the Book before cited 11 H. 6. f. 3. where Danby Martin and Newton were of Opinion argued about a Church in Garnsey for the Case before them was not of a Church in Wales That Quare Impedits for Churches in Wales were to be brought in England which was true but not for Churches which were not in any Lordships Marchers Strange affirms positively in the same Case in these words It is frequent to have Quare Impedits in Wales Per Strange 11 H. 6. f. 3. and the Bishops there do serve the Writs directed to them which I my self have often seen And what he said was most true for Churches within the Principality as what the other Judges said was also true concerning Churches within the Lordships Marchers for those Courts had no power to write to the Bishops But this is most manifest by the Statute of Wales 12 E. 1. That the Kings Justiciar there had power within the County where he was Justiciar to write to the Bishops which the Lords Marchers could not do The words of the Law are upon demand of Dower in Wales before the Kings Justiciar Stat. Walliae f. 17. Si forte objiciat quare non debet dotem habere eo quod nunquam fuit tali quem ipsa vocat virum legitimo matrimonio copulata tunc mandabitur Episcopo quod super hoc inquirat veritatem inquisita veritate certificet Justitiarios Walliae secundum certificationem Episcopi procedatur ad judicium It is clear also 10 H. 4. f. 6. That the Bishops of Wales were originally of the Foundation of the Princes of Wales as is the Book of 10 H. 4. and their Courts did write to their own Bishops as the Courts in England did to the Kings Bishops And when the Dominion of Wales was lawfully vested in the King of England his Justices there must have the same power as to the Bishops that the Justices of the Courts of the Prince of Wales had before How the same stands in this point since the Statute of 27 of the Vnion of Wales with England shall be shewed after Besides what hath been already shewed That the Writs out of the Chancery in England issued not into Wales for Tryals of Land other than the Land of Lordships Marchers and by a special Law that was provided but neither for other Lands nor for other Issues arising in Wales Tryals were not to be in the English Counties 11 H. 6. f. 3. A B. In 11 H. 6. Danby saith That if a Church in Wales which is out of the Jurisdiction of the Common Law and a Franchise of the Prince cannot award a Writ to the Bishop and for this cause it must be brought here But other Actions are not maintainable here of a thing done in Wales which was true of a thing done within the Principality and of a Church within the Principality also a Quare Impedit was not to be brought in England 19 H. 6. f. 12. A. In 19 H. 6. Fortescue takes a difference between Wales which was once a Kingdom of it self and the Counties Palatine which were parcels of England and therefore saith The King may send a Record to be tryed in the Counties Palatine because he might do so at Common Law but could not into Wales because he could not at Common Law And then he saith That is the cause that the Statute wills that of things pleaded there as of a Release bearing date there it shall be tryed in the next adjoyning County What this Statute should be he means unless it be the same mentioned in the Case 18 E. 2. is not intelligible for the Statute of 9 E. 3. which speaks of Releases pleaded in Franchises within the Realm That they should be tryed in the County where the Action was brought he cannot intend for that Wales was no Franches nor Franchis of the Realm and Tryals where the Action is brought is not a Tryal in the next adjoyning County to the place where the Issue arises And by Ascue expresly in that Case that Statute proves in it self it doth not extend to a Deed bearing date in Wales but all such Deeds and all other things alledged in Wales shall be tryed in the County next adjoyning by the Common Law for so he adds which could not be So as an Action brought upon a Bond or Deed made in Wales Ireland Normandy Dutchland or upon a matter there alledged cannot possibly be for want of Tryal but a Plea in Barr to an Action brought arising there some question hath been Whether such a Plea shall not be tryed where the Action is brought and in such a Case if the Plea in Barr arise wholly out of the Realm of England the better Opinion is that such Plea
wants a Tryal See for this 32 H. 6 25. B. 8 Ass pl. 27. d. Dowdales Case Co. l. 6. Thus bringing Actions in England and trying them in Counties adjoyning to Wales without knowing the true reason of it also bringing Quare Impedits in like manner for Churches in Wales without distinguishing they were for Lands of Lordships Marchers held of the King and for Churches within such Lordships Marchers hath occasioned that great diversity and contrariety of Opinions in our Book and at length that common Error That matters in Wales of what nature soever are impleadable in England and to be tryed in the next adjoyning County When no such Law was ever pretended to be concerning other the Kings Dominions out of the Realm belonging to the English Crown of the same nature with Wales as Ireland the Isles of Garnsey and Jersey Calais Gascoign Guyen anciently Nor could it be pretended of Scotland if it should become a Dominion of the Crown of England it being at present but of the King of England though it was otherwise when the King came to the Crown And to say that Dominions contiguous with the Realm of England as Wales was and Scotland would be is a thing so simple to make a difference as it is not worth the answering for no such difference was assignable before Wales became of the Dominions of England and since the Common Law cannot make the difference as is observed before It remains to examine what other Alterations have been by Act of Parliament whereby Jurisdiction hath been given to the Courts of England in Wales without which it seems clear they could have none 1. And first by Parliament 26 H. 8. power was given to the Kings President and Council in the Marches of Wales in several Cases 2. Power was given to indict outlaw and proceed against Traytors Clippers of Mony Murtherers and other Felons within the Lordships Marchers of Wales so indicted in the adjoyning Counties by the same Statute but not against such Offenders within the Principality of Wales which was not Lordships Marchers 3. Some other Laws are of this nature about the same time to punish the perjury of Jurors in Wales generally before the Council of the Marchers 1 E 6. c. 10. â—1 Eliz. c. 3. That Proclamations upon Exigents should issue into Wales was ordained by the Statute of 1 E. 6. for by a Statute before in 6 H. 8. c. 4. such Proclamations went but to the adjoyning Counties Rastall Exigent but the Capias utlagatum went always as I take it being a Mandatory Writ for the King but by 1 E. 6. c. 10. That if any persons dwelling in Wales shall after the time limited by the Act be outlawed that then Writs of special Capias utlagatum single Capias utlagatum Non molestando and all other Process for or against any person outlawed shall issue to the Sheriffs of Wales as immediate Officers of the King's Bench and Common Pleas. Capias Utlagâ—tum So as the issuing of a Capias utlagatum into Wales is clear by Parliament 34 H. 8. Persons having Lands in Wales and bound in Statute Staples or Recognizances in England Process to be made against them out of the Chancery in England to the Sheriffs of Wales and for Recognizances acknowledged before either of the Chief Justices by them Process to be immediately pursued from the said Justices 34 H. 8. c. 26. All Process for urgent Causes to be directed into Wales by command of the Chancellor of England or any of the King's Council as hath been used The next is the Alteration made by the Statute of 27 H. 8. which was very great and by which it is commonly taken that Wales was to all purposes united with England and that since all Process may issue out of the Courts here to Wales It is said that the Dominion and Principality of Wales is and always hath been incorporated to the Realm of England that is ut per Stat. Walliae 12 E. 1. jure feodali non proprietatis and so it is expounded in Calvin's Case Cal. C. 7 Rep. f. 21. B. But there it is said by 12 E. 1. which is there taken for an Act of Parliament Wales was united and incorporated unto England and made parcel of England in possession and the Case of 7 H. 4. f. 14. there cited but this is clearly otherwise for unless that Stat. Walliae were an Act of Parliament it could not make Wales part of England which is much questioned for no such Parliament is found summoned nor Law made in it nor is it likely at that time a Parliament of England should be summoned there for Rutland is doubtless in Wales which had it been part of England then made all Laws made or to be made in England without naming Wales had extended to it which they did not before 27 H. 8. The Incorporation of Wales with England by that Act consists in these particulars generally 1. That all persons in Wales should enjoy all Liberties Priviledges and Laws in England as the natural born Subjects of England 2. That all persons inheritable to Land should inherit the same according to the Laws of England thereby inheriting in Gavel kind was abrogated 3. That Laws and Statutes of England and no other should for ever be practised and executed in Wales as they have been and shall be in England And as by this Act hereafter shall be further ordained By this Clause not only all the present Laws of England were induced into Wales but all future Statutes of England to be made were also for the future in like manner induced into Wales which was more than ever was done in Ireland though Ireland before and by Parning's Act had the present Laws then and Statutes of England introduced into Ireland but not the future Laws and Statutes to be made as in this Case was for Wales But this gave no Jurisdiction in general to the Courts of England over Wales more than before nor otherwise than if a Law were made in England That the Laws and Statutes of England now and for the future always to be made should be Laws in Ireland the Courts in England would not thereby have other Jurisdiction in Ireland than they already have in any respect The Vniting of Wales to England and Incorporating Note doth not thereby make the Laws used in England to extend to Wales without more express words Pl. Com. 129. B. 130. A. By this Act it appears That the Lordships Marchers in the Dominions of Wales did lye between the Shires of England and the Shires of Wales and were not in any Shire most of which Lordships were then in the King's possession and some in the possession of other Lords And that divers of them are by the Act united and joyned to the County of Glocester others to the County of Hereford and others to the County of Salop others respectively to the Shires of Glamorgan Carmarthen Pembrook
and Merioneth The residue of the said Lordships Marchers were thereby framed and divided into five particular Counties erected and created by the Act namely the County of 1 Monmouth 2 of Breenock 3 of Montgomery 4 of Radnor 5 of Denbigh The respective Lordships Marchers annexed to the respective English Counties of Salop Hereford and Glocester are now to all intents under the Jurisdiction of the Courts at Westminster in like manner as the Counties to which they were annexed formerly were and yet are So is one of the new erected Counties framed out of the said Lordships Marchers namely the County of Monmouth which by the said Act is to all purposes under the Jurisdiction of the Kings Courts at Westminster as any English Country is All the Lordships Marchers annexed to the ancient Shires of Wales are now since the Statute under the same Jurisdiction for Administration of Justice as those ancient Shires were before the Statute of the 27. and yet are so as the Lordships Marchers annexed to those ancient Shires of Wales are now such parts of them as the Lordships Marchers annexed to the English Shires are parts of them And the four new Shires in Wales excluding Monmouth shire are by the said Act under the same Administration of Justice by the King's Justices to that purpose there Commissioned as the other ancient Shires of Wales formerly were and are and consequently wholly out of the Jurisdiction of the King's Courts at Westminster And the reason appears in the Statute forasmuch as the Counties or Shires of Brecnock Radnor Montgomery and Denbigh be far distant from the City of London and the Inhabitants of the said Shires not of substance to travel out of their Counties to have the Administration of Justice It is therefore enacted that there shall be respective Chanceries and Exchequers in these Counties and that the Sheriffs of those Counties shall make their Accompts before the Chamberlain and Barons there appointed And that Justice shall be used and ministred in the said new Shires according to the Laws and Statutes of England by such Justiciar or Justicers as shall be thereto appointed by the King and after such form and fashion as Justice is used and ministred to the King's Subjects within the three Shires of North-wales which is according to the ancient Administration of Justice by the Statute of Wales 12 E. 1. So as since this Statute the Courts of Westminster have less Jurisdiction in Wales than before for before they had some in all their Lordships Marchers which were in no County as by this Act and since they being all reduced into Counties either of England or Wales their Jurisdiction is absolute over such of them as are annexed to English Counties but none over the rest And accordingly it hath been still practised since the Statute for before Lordships Marchers and Quare Impedits of Churches within them were impleadable in the Kings Courts by Originals out of the Chancery directed to the adjoyning Sheriffs and the Issue tryed in the Counties adjoyning But since no such Original hath issued for real Actions nor any such Tryal been And what hath been in personal Actions of that kind began upon mistake because they found some Originals issued into some part of Wales and knew not the true reason of it that it was by Act of Parliament they then concluded Originals might issue for any cause arising into any part of Wales and the Tryals to be in the adjacent Counties of England generally And though that practise hath been deserted since the Statute of 27 H. 8. as to real Actions because the subject matter of the Lordships Marchers was taken away which in some sense was lawful as is opened before the Statute yet they have retained it still in personal Actions which was never lawful nor found in any Case anciently practised as real Actions were as appears in the Case of Stradling and Morgan in the Commentaries yet that was upon a quo minus out of the Exchequer which I do not see how it can change the Law If Judgments be obtained in the King's Courts against persons Obj. 1 inhabiting in Wales and that Process of Execution cannot be awarded thither the Judgments will be ineffectual The same may be said of Judgments obtained against a Frenchman Answ 1 Scotch man or Dutch-man whose usual Residence Lands and Goods are in those Territories he that sues ought to foresee what benefit he shall have by it and must not expect it but where the Courts have Jurisdiction The same may be said of Judgments obtained here against Irish-men Garnsey or Jersey Inhabitants or formerly against those of Calais Gascoign Guyen which were equally and some are still of the Dominions of England as Wales is subject to the Parliament of England but not under the Jurisdiction of the Courts at Westminster though subject to Mandatory Writs of the King Obj. 2 That of Judgments obtained in the King's Courts Execution is had in Franchises and also in Counties Palatine where the King 's Writ runneth not and by the same reason ought to be had in Wales though the King's Writ runneth not there Answ 1 Franchises inferiour are deriv'd out of Counties by the King's Grant where the King's Writ did run and so were Counties Palatine part of the Realm anciently where the Subjects of the Realm had right to have Execution of the Lands and Goods of those against whom they recovered in the King's Courts whereof they are no more to be deprived than of their Actions by the King's Grant for he may make what Counties he pleases Counties Palatine but in Dominions out of the Realm the Subject had no such Right in the other they have it because they had it at Common Law but in others not because they had it not at Common Law When the Question is of the Jurisdiction in a Dominion or Territory belonging to England the way to determine it is by examining the Law in Dominions the same in Specie with that concerning which the Question is and not to examine the Law in Franchises or Dominions of another kind Therefore to determine what Jurisdiction the King's Courts have in Wales ought to be by examining their Jurisdiction in Ireland the Islands of Garnsey Jersey Calais Gascoign Guyen in former times some part of Scotland and the Western Islands and many others might be named which are Dominions in Specie the same with Wales and belonging to England where the King 's Writ runneth not and not this power in Franchises within the Realm part of English Counties before they were Franchises and continuing so after or in entire Counties Palatine which sometimes were under the Jurisdiction of the King's Courts and in which the Subjects had a right of their Tryals upon Pleas pleaded and of Execution and which cannot be taken from them where the King 's Writ runneth not The Cases are full in this point in 19 H. 6. f. 12. 32 H. 6. f. 25. and many
more Books Obj. 3 That by the Statute of 9 E. 3. Pleas of Releases or Deeds dated in Franchises within the Realm shall be tryed where the Action is brought Answ Wales is no Franchise or if it were not within the Realm for the questions concerning a Deed pleaded bearing date there but of Original Process for Causes arising and Tryals of them in the next County adjoyning and not in the County where the Action of a Deed dated in a Franchise of the Realm which do toto coelo differ and concerning Executions and Judgments here to be made in another Dominion The same may be said concerning the Statute of 12 E. 2. when Witnesses to Deeds in Forreign Franchises are to be summoned with the Iury and the Tryal notwithstanding their absence to proceed when the Writ is brought Obj. 4 Presidents of Process issued to the Sheriffs of Wales without a Judicial decision upon Argument are of no moment Many things may be done several ways as Bonds though they have regularly one common form yet they may be in other forms as well Presidents are useful to decide questions but in such Cases as these which depend upon Fundamental Principles from which Demonstrations may be drawn millions of Presidents are to no purpose Besides it is known that Officers grant such Process to one Sheriff or County as they use to another nor is it in them to distinguish between the power of the Court over a Sheriff in Wales from a Sheriff in England especially when they find some Writs of Execution going which are warranted by Acts of Parliament which they know not though they do know Process of Execution in fact runs thither as Capias utlagatum Extents upon Statute which are by Acts of Parliament And that other Mandatory Writs issue thither as well at Common Law as by a particular Clause concerning the Chancellor in the Act of 34 H. 8. c. 26. By the Register upon a Judgment had in the Common Pleas against a Clerk Regist f. 43. B Brevium Judicialium who was after made Archbishop of Dublin in Ireland upon a Fieri Facias issued to execute the Judgment to the Sheriff of Middlesex and his Retorn that he had no Lands or Goods in his Bayliwick but was Archbishop in Ireland upon a Testatum of it in the Common Pleas that he had Lands and Goods in Ireland a Fieri Facias issued in the King's name Justiciario suo Hiberniae to make Execution but it appears not whether this Writ issued from the Common Pleas or especially by the King's Direction out of the Chancery which possibly may be as a special Mandatory Writ of the Kings locum tenens there which varies in stile at the Kings pleasure anciently Justiciario suo Hiberniae at other times Locum tenenti nostro at other times Deputat or Capitaneo generali nostro which stiles are not regularly known to the Officers of the Courts at Westminster And perhaps by special Writs to the chief Officer and the King Execution may be made of Judgments given at Westminster in any of his Dominions which would be enquired of FINIS An Exact and Perfect TABLE TO THE REPORTS and ARGUMENTS OF Sir JOHN VAVGHAN Lord Chief Justice of the Court of Common Pleas. Abatement of Writs See Writs 1. WHere a Writ is brought against an Executor in Debt upon a simple Contract he may abate it 94 2. Judges ought not Ex officio to abate Writs but it must come before them by Demurrer 95 Act of the Party 1. Every act a man is naturally enabled to do is in it self equally good as any other act he is so enabled to do 333 Actions and Actions upon the Case 1. Actions upon the Case are more inferior and ignobler than Actions of Debt 101 2. Actions of the Case are all Actiones Injuriarum contra Pacem and it is not a Debt certain but damages for the breach of the promise that must be recovered in it 101 3. Wheresoever the Debt grew due yet the Debtor is indebted to the Creditor in any place where he is as long as the Debt is unpaid 92 4. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 5. If you will recover any thing against any man it is not enough for you to destroy his Title but you must prove your own better than his 60 6. In life liberty and estate every man who hath not forfeited them hath a property and a right which the Law allows him to defend and if it be violated it gives an Action to redress the wrong and punish the wrong-doer 337 7. There are several penal Laws by transgressing of which the Subject can have no particular damage and therefore no particular Action 341 8. All Actions brought against Officers within the Statute of the One and twentieth of K. James must be laid in the proper County 115 116 117 9. Case and not Debt lies for a Solicitor for Soliciting Fees 99 Ad quod dampnum 1. When the King can license without a Writ of Ad quod dampnum he may license if he will whatever the Return of the Writ be 341 345 2. Where the Writ of Ad quod dampnum informs the King better then a Non obstante 356 3. Though there be a Return upon an Ad quod dampnum that it is not ad dampnum yet there must be the Kings license afterwards 341 Administration and Administrator 1. How they are to administer the Intestates Estate 96 2 An Administrator hath a private office of trust he cannot assign nor leave it to his Executor 182 3. An Administrator must take an Oath to make a true accompt 96 4. An Action will not lye against them upon a Tally because it is no good Specialty 100 5. In an Action of Debt upon Bond or Contract brought against him he may confess Judgment if there is no fraud although he hath notice of a former Suit depending 95 100 6. If an Administrator durante minore Aetate brings an Action he must averr the Administrator or Executor to be under the Age of Seventeen years 93 7. The manner of pleading Plene administravit praeter ultra 154 Advowson See Quare Impedit 1. The rights of an Advowson 7 2. Where the Plaintiff and Defendant must alledge Seisin in an Advowson by a former Presentation 8 Agent and Patient 1. In a Quare Impedit both Plaintiff and Defendant are Actors and may have a Writ to the Bishop 6 7 58 Age See Infant Alien 1. The time of the birth is of the Essence of a Subject born for he cannot be a Subject unless at the time of his birth he was under the Kings Liegeance 286 287 2. Regularly who once was an Alien to England cannot be inheritable there but by Act of Parliament 274 282 3. He that is priviledged by the Law of England to inherit must be a Subject of the Kings 268 in loco 278 286 4. He must be more
said William Paul dyed at Oxford That after his death the Defendant was elected Bishop of Oxford and after and before the Writ purchased viz. the 27. of November 1665. Gilbert now Archbishop of Canterbury and Primate of all England by his Letters of Dispensation according to the said Act and directed to the said Walter the Defendant now Bishop under his Seal then elect and upon the Bishops petition of the means of his Bishoprick Graciously dispensed with him together with his Bishoprick the Rectory of Whitney in the Diocess and County of Oxford which he then enjoyed and the Rectory of Chymer aforesaid which he by the Kings favour hoped shortly to have to receive hold retain and possess in Commendam as long as he lived and continued Bishop of Oxford with or without Institution and Induction or other solemnity Canonical and to take and receive the profits to his own use without Residence Quantum in eodem Archiepiscopo fuit jura regni paterentur The Letters of Dispensation not to be effectual without the Kings Confirmation That the King after the 28 of Novemb. 17. of his Reign under the great Seal to the said Church so void by Cession presented the Defendant then as aforesaid Bishop Elect and after that is the 28. of Novemb. 17. Car. 2. the King by his Letters Patents under the great Seal dated the same day and year and duly inrolled in the Chancery according to 25 H. 8. did confirm the Letters of Dispensation and that the said Bishop might enjoy all things contained in them according to the form and effect thereof with clauses of non obstante aliquo Statuto or other matter Then averrs that the cause of Dispensation was not contrary to the word of God and that the Pope in H. 8. time did use to grant the like Dispensations to the Kings Subjects which he is ready to averr c. The Plaintiff replys That true it is William Paul Praedict was elected Bishop of Oxford being Incumbent of Chymer but that after his election and before his creation he 2 Decemb. 1663. obtained Letters of the Archbishop under his seal of Faculties for causes therein mentioned of Dispensation to hold the Church of Brightwell and the Rectory of Chymer both which he then lawfully had and to retain the same with his Bishoprick after his consecration c. durant vita sua natural Incumbentiâ suâ in Episcopatu praedict quamdiu eidem Episcopatui praeesset The King 9. Decemb. 15. of his reign confirmed the Letters Patents under the great Seal with non obstante according to the Ordinary form 30. Decemb. 15. Car. 2. was created Bishop Vpon this Replication the Defendant demurs and the Plaintiff joyns in Demurrer Note the Defendant doth not shew to whom he was presented He doth not say that he enter'd by vertue of the Presentation of the King in Chymer In discussing the Case as it appears upon this Record I take it granted 1. If a person Incumbent of one or more Benefices with Cure be consecrated Bishop all his benefices are ipso facto void 2. Vpon such voidance the King and not the Patron is to present to the benefices so void by Cession 3. That any Dispensation after the Consecration comes too late to prevent the Voidance 4. That the Pope could formerly and the Arch-bishop now can sufficiently dispense for a Plurality by 25 H. 8. I shall therefore first make one general Question upon the Case as it appears Whither William Paul Rector of Chymer and elected Bishop of Oxford and before his Consecration dispensed with by the Archbishop to retain his said Rectory with the Bishoprick and having the said Letters of Dispensation confirmed by the King and inroll'd Modo forma prout by the Record did not by virtue of the said Dispensation and Confirmation prevent the voidance of his said Rectory by Cession upon his Consecration For if he did the Rectory became not void until his death and by his death the Plaintiff being Patron hath right to present To determine the General Question I shall make these Questions as arising out of it 1. Whether any Dispensation as this Case is be effectual to prevent an avoidance after Consecration 2. Whether the Archbishop hath power with the King's Confirmation to grant such a Dispensation 3. Whether this Dispensation in particular be sufficient to prevent a voidance of Chymer after Consecration of the late William Paul 1. This Case differs from the Bishop of Ossory's Case in Sir J. Davies's Reports who had a faculty accipere in Commendam with odd power and executed it by collating himself into a Living void by Lapse 2. It varies from the Case of Colt and Glover in the Lord Hobarts Reports and the Dispensation there to the Bishop elect of Lichfield and Coventry which was to retain one Benefice which he had and propria authoritate capere apprendere as many as he could under a certain value The defects of that Dispensation are numerous and excellently handled by the Lord Hobart in that Case of Colt and Glover But in our Case there is no affinity with the defects of those Dispensations but is barely to retain what legally was had before Obj. 1 Per Thyrning The Bp. of St. Davids Case 11 H. 4. f. 37. b. 38. a. Rolls f. 358. ob 1. 11 H. 4. f. 60. B. per Hill An Incumbent of a Church with cure being consecrated Bishop his Living was void by the Law of the Land therefore the Pope could not prevent the voidance after consecration for then the Pope could change the Law of the Land and if the Pope could not the Archbishop cannot The better opinion of that Book 11 H. 4. is contrary and Answ 1 so agreed to be in the Irish Case of Commendams and Rolls his opinion is grounded only upon 11 H. 4. If an Incumbent with cure take another Benefice with cure the first is void by the Law of the Land and the Patron hath right to present therefore the Pope could not grant a Dispensation nor the Arch-bishop now can to hold a Plurality for that were to alter the Law of the Land and to prejudice the Patron But the Law was and is otherwise therefore that reason concludes not in the case of a Bishop A second reason in that case of 11 H. 4. is that such a Dispensation Obj. 2 cannot prevent the avoidance 11 H. 4. f. 59. bi per Skreen because there is no use of it until Consecration for before the Incumbent retains his Living without any Dispensation and when consecrated his Benefices are void and then it is too late to dispense as is agreed This reason is as effectual against a Dispensation for a Plurality Answ 2 for before a man takes a second Living there can be no use of it and after by this reason it comes too late for the Patron hath right to present It was in that great Case endeavoured to avoid the pressure of
this Argument by saying the Dispensations in cases of Plurality were not alike with that of retaining the former Benefice when the Incumbent was created Bishop because in the case of Plurality there was no actual voidance and consequently no title to the Patron to present before Deprivation and that the Dispensation prevented the Deprivation which was a Spiritual Act wherewith the Patron had not to do and by a Consequent only prevented the voidance It is resolv'd in Holland's Case Digby's Case Hollands Case 4. Rep. Digby's Case 4. Rep. and many others that the Patron may present assoon as the Incumbent is Instituted in a second Living without deprivation and that the Law was anciently so therefore that evasion is not material Another answer hath been likewise offered and passeth in the New Books for current that in the case of Pluralities the voidance is by the Canon Law and therefore may be dispensed with by the same Law but in the case of a Bishop made the voidance is by the Common Law If Canon Law be made part of the Law of this Land then is it as much the Law of the Land and as well and by the same Authority as any other part of the Law of the Land And if it be not made the Law of the Land then hath it no more effect than a Law of Utopia therefore the Canon Law in force here is Law of the Land Besides their meaning is to be learn'd who say an Incumbents Benefice made a Bishop is void by the Common Law and not by the Canon Law The words of Thyrning in that case 11 H. 4. are who was then Chief Iustice 11 H. 4. f. 60. b. Da. Rep. f. 81. a. f. 68. b. I suppose that when a man Benefic'd is made a Bishop it is by the Law of holy Church that his Benefice becomes void and the same Law which gives the voidance may cause that it shall not be void and that concerns the power of the Apostle The Common Law doth not prohibit Pluralities nor make a voidance of his Benefice when the Incumbent is Bishop but the ancient Ecclesiastical Law of England Obj. 3 11 H. 4. f. 77. a. per Hill It is a Contradiction that the Incumbent being the Bishops Subject and the Bishop his Soveraign should be united the Servant qua Servant may as well be Master the Tenant qua Tenant Lord the Deputy the Deputor the Delegator the Delagated which is impossible Answ It is a Contradiction that a person Subject being so should not be Subject but no contradiction that a person Subject should cease to be so the subjection of the Incumbent ceaseth when the Rectory is in the Bishop the Deputy is not when the principal Officer executes the office in person and relation of Lord and Tenant destroy'd when the Lord occupies the Land himself If an Act of Parliament should enable every Bishop to hold his former Benefices no contradiction would follow nor doth now by the Dispensation And note all these Reasons deny the Popes power formerly the Arch-bishops now and the King 's also for they are not Reasons against the power of the party dispensing but that the Subject matter is capable of no dispensation There is no inconsistence for a Bishop to be an Incumbent for he is a Spiritual Corporation and being Patron of a Living might and may have it appropriate that is to be for him and his Successors perpetual Incumbents Da. Rep. f. 80. b. The Rectories of Eastmeane and Hambleden are appropriate ad Mensam of the Bishop of Winchester and many others in England and Ireland so appropriated Selden Hist of Tithes â— 6. par 3. f. 8â— b. c. 9. par 2. f. 253. Every Bishop many hundreds of years after Christ was universal Incumbent of his Diocess received all the profits which were but Offerings of Devotion out of which he paid the Salaries of such as officiated under him as Deacons or Curates in places appointed Quest 2 Second Question Whether the Pope formerly used to dispense in such a case and consequently the Arch-bishop now can by the Stat. of 25 H. 8. c. 21 1. Bishop of St. Davies Case The particular dispensation granted to the Bishop of St. Davies in 11 H. 4. is a full instance nor was it in the Argument of that case insisted that the Pope could not dispense with a Bishop to retain or receive a Benefice But the sole Question was Whether in that particular case because the Benefice to be retain'd belong'd to the presentation of a Church-man viz. the Bishop of Salisbury the Dispensation did not amount to a provision and so was within the Statute of Provisions 25 E. 3. 2. By the Statute of 28 H. 8. it appears the Bishop of Rome did grant Faculties and Dispensations to the King's Subjects 28 H. 8. c. 16. as Pluralities Unions Tryalities Appropriations Commendams Exemptions where Commendams are enumerated and by that Act all granted by the Pope are made void but to be renew'd in the Chancery 3. Procuring Commendams were so frequent in Ireland 7 E. 4. c. 2. that a special Act of Parliament was there made 7 E. 4. against all such as should purchase Bulls for any Commendam to put them out of the Kings protection 4. A Bastard instituted and inducted before Deprivation 11 H. 4. f. 78. a. f. 60. a. 11 H. 4. f. 76. b. a Secular Priest before he became regular whereof many were in England and Thyrning saith he knew that Edmond Monk of Berry who was with Edward the Third held many Benefices though a Monk and Pluralities were ordinarily dispensed with by the Pope 5. 11 H. 4. f. 38. a. Hankford saith he hath seen that the same man was Abbot of Glastenbury and Bishop of another Church simul semel Horton 11 H. 4. f. 76. a. The Pope may grant that one man may hold three Bishopricks at a time which Hankford agreed if with consent of the Patrons For if without their consent it was not dispensing to hold them but granting away the property of the Patrons which a Dispensation could not Henry Beaufort Vncle to Henry the Sixth Da. Rep. f. 80. 77. b. had a Dispensation to retain the Bishoprick of Winchester being Cardinal but it was ineffectual because obtained after he was Cardinal Cardinal Woolsey obtained before he was Cardinal a Dispensation to hold the Arch-bishoprick of York and the Abbey of St. Albans together with his Cardinalship Lindwood Titulo de Praebendis cap. Audistis Lindwood f. 100. b. Potestas quae secundum antiqua jura dabatur Episcopis ad dispensandum super pluralitate Beneficiorum restricta est saltem in dignitatibus Beneficiis curatis sed circa beneficia simplicia bene poterunt Episcopi dispensare And in the same Gloss In dignitatibus curatis solus Papa dispensat Authority in the point that a Rector of a Church dispens'd with according to 25 H.
determine Whether the marriages mentioned within Leviticus 18. be only prohibited or marriages within the degrees there mentioned The Talmudists hold the first the Karaits the second strongly who in most concurr with our Parochial Table 5. This marriage not prohibited by the Canons 1 Jac. Can. 99. nor contained in the Parochial Table 6. Marriages between the Children and Parents in the ascending line intermediately prohibited and for what Reasons 7. How the words Gods Law except in the Act of 32 H. 8. and the words or otherwise by Holy Scripture in the Act of 28 H. 8. c. 16. are to be intended 8. The Defendant doth not Article That the Vncle Bartholomew Abbot did carnally know Jane his wife and then the marriage is not against Gods Law by 28 H. 8. c. 7 The mischief by the Act of 32 H. 8. was That the Bishop of Rome had always troubled the meer Iurisdiction and Regal Power of the Realm of England and unquieted the Subject by making that unlawful which by Gods word is lawful both in marriages and other things Therefore it is thought convenient for this time that two things be with diligence provided for The first was against dissolution of marriages consummate with bodily knowledge upon pretence of Pre-contracts The other by reason of other prohibitions to marry than Gods Law admitteth As in Kindred or Affinity between Cosen Germans and so to the fourth and fifth Degree which else were lawful and be not prohibited by Gods Law Again that freedom in them was given by Gods Law To remedy these two mischiefs All marriages consummate with bodily knowledge between lawful persons and all persons are declared to be lawful to marry which be not prohibited by Gods Law are made lawful by Authority of Parliament notwithstanding any Prae-contract c. But this part of the Clause to make good marriages notwithstanding pre-contracts is repeal'd 2 E. 6. c. 23. 1 El. c. 1. The other Clause remains which declares all persons lawful to marry who are not prohibited by Gods Law but is of no use to remedy the second mischief For if the Pope shall expound what persons of Consanguinity or Affinity are prohibited by Gods Law to marry he will expound Gods Law as the Canons and Popes formerly did That by the Word of God no man is to uncover the nakedness of the Kindred of his Flesh and therefore marriage is prohibited as farr as there are names of Kindred and memory which is the reason of the Old Canon Law to prohibit to the Seventh Degree for further they had not names of Kindred And if it would have remedied the Inconvenience to say in the Act That all marriages were lawful not prohibited by Gods Law and leave the Pope then to resolve what was prohibited by Gods Law it was to no purpose to have added more words to the Act but to have ended ther and the inconvenience of prohibiting marriages for Consanguinity or Affinity when God did not prohibit had still remain'd But the Act goes on And that no Prohibition or Reservation Gods Law except should impeach any marriage for Consanguinity or Affinity for so it must be understood without the Levitical Degrees for that was the second thing specially to be provided for as the Act saith Not that no marriage should be impeached without the Levitical Degrees which the Act intended not at all nor was it the thing to be provided for but not to be impeached for Kindred or Affinity without the Levitical Degrees as in Cosen Germans and so forth For who will say That by those words no marriage shall be impeached without the Levitical Degrees the Act intended that no marriage for natural Impotency for plurality of Husbands or Wives for Adultery and the like should not be impeached though it were out of the Levitical Degrees For the Act had no aspect upon such marriages but to hinder impeaching marriages for Consanguinity or Affinity without the Levitical Degrees which was the second thing by the Act to be at that time diligently provided for Therefore those words Gods Law except must referr to such other marriages as by Gods Law might be impeach'd and not to any for Consanguinity or Affinity for had not those words been the generality of the Expression No marriage shall be impeach'd without the Levitical Degrees had excluded the impeaching marriages for plurality of Wives or Husbands at a time for Impotency and for Adultery as Sir Edward Coke observes at the end of his Comment upon this Statute in his Second Institutes But if those words No marriage shall be impeach'd Gods Law except shall be understood That no marriage should be impeach'd not prohibited by the Scripture viz. Gods Law Then 1. There was no use of naming the Levitical Degrees at all 2. The Pope would have interpreted the Scripture which belong'd to him to have prohibited all marriages between Kindred as anciently and then the end of the Act had been frustrate 3. Wherein was the Kings Iurisdiction and Regal Power righted if prohibiting of marriage for Consanguinity or Affinity were to be proceeded in as formerly But all marriages without the Levitical Degrees being made lawful because the Secular Iudges by the Act of 28 H. 8. c. 7. had certain Conizance of them both expresly and in Consequence they were no more of Ecclesiastical Conizance than Contracts concerning Land or Lay Chattels were and therefore the questioning of them to be prohibited as the other This was to complain of the Pope as a wrong doer against the Law of God viz. Holy Scripture and diligently to provide remedy for it according to the Scripture whereof the wrong doer was the only decisive and infallible Interpreter as the Church then believed which is redressing a wrong by the Iudgment of the wrong doer Anciently before any Act of Parliament alter'd the Law the lawfulness or unlawfulness of marriages and which were incestuous which not were only of Ecclesiastical Conuzance and the Temporal Courts medled not to ratifie or prohibit any marriage The Statute de Circumspecte agatis 13 E. 1. Circumspecte agatis de Negotiis tangentibus Episcopum Norwic ejus Clerum non puniendo eos si placitum tenuerint in Curia Christianitatis de his quae mere sunt spiritualia viz. de Correctionibus quas faciant pro mortali peccato viz. pro fornicatione adulterio hujusmodi Mag. Chart. Cok. f. 488. upon that Statute Sir Edward Coke in his Comment upon this Statute and those words viz. pro fornicatione adulterio hujusmodi which by the express words of the Statute are said to be mere Spiritualia saith and truly That the word hujusmodi must be understood of offences of like nature with Fornication and Adultery as for solicitation of a womans Chastity which is less than Fornication or Adultery and for Incest which is greater So as the Conuzance of Incest was meerly Spiritual and concern'd not the lay Law at all originally 2. There was no time
Relatives and if an Act of Naturalization should thereby make a man a natural Subject the same Subject would have two natural Soveraigns one when he was born the other when naturalized which he can never have more then two Natural Fathers or two Natural Mothers except the Soveraigns be subordinate the Inferior holding his Kingdome as Liege Homager from the Superiour And perhaps in the Case of Severing the Kingdoms Calvins Case 27. as Sir Edward Coke saith Nor can an Act of Parliament in one place take away the natural subjection due to another Prince for want of power And the Law of England being That an Antenatus shall not inherit because an Alien without an Act of Parliament making him none The fiction of an Act in another Kingdom to which England never consented shall not alter the law here because he is made in Ireland as if born there If there were an Act of Parliament in England That persons naturalized in Ireland or Scotland should be no Aliens in England no man thinks that thereby Scotland or Ireland could naturalize a man in terminis in England But a man naturalized there would by consequent be naturalized in England because the law of England did warrant that consequent But to say That a man naturalized in Ireland is not directly naturalized in England but by consequent when the question is Whether one naturalized in Ireland be thereby naturalized in England is to beg for a proof that which is the question Therefore it must be first proved That there is a Law of England to warrant that consequent Inconveniences The Law of England is That no Alien can be naturalized but by Act of Parliament with the assent of the whole Nation 1. Now if this naturalization in Ireland should be effectual for England then a whole Nation should become Natives in England without Act of Parliament of what Country Religion or Manners soever they be by an Act of Ireland 2. If the Parliament of England should refuse to naturalize a number of men or Nation as dangerous or incommodious to the Kingdom yet they might be naturalized whether the Houses of Parliament would or not by an Act of Ireland 3. By this invention the King may naturalize in England without an Act of Parliament as well as he may Denizen for if the Parliament of Ireland enact That the King by Letters Patents shall naturalize in Ireland then they so naturalized in Ireland by Patent will be naturalized in England by consequent so they may enact the Deputy or Council of Ireland to naturalize 4. If an Alien hath Issue an Alien Son and the Father be denizen'd in England and after hath a Son born in England the Law hath been taken That the youngest Son shall inherit the Fathers Land Co. Litr. f. 8. a. Doct Stud. l. 1. Cr. 17 Jac. f. 539. Godfrey Dixons C. So is Sir Edward Coke Litr. f. 8. a. and other Books yet if the elder be naturaliz'd in Ireland the Estate which the youngest hath by the Law of England will be plucked from him Having thus opened the Inconveniences consequent to this Irish Naturalization the next is That Judges must judge according as the Law is not as it ought to be But then the Premisses must be clear out of the established Law and the Conclusion well deduc'd before great Inconveniences be admitted for Law But if Inconveniences necessarily follow out of the Law only the Parliament can cure them 1. I shall begin with the admitted Doctrine of Calvin's Case By that Case He that is born a Subject of the King of England in another Dominion than England is no Alien in England So the Scots born when the King of Scots was King of England are no Aliens those born before in Scotland are Therefore Nicholas Ramsey who is not born the Kings Subject of Ireland must be an Alien in England whose Law by the Rule of that Case makes only Subjects born and not made of another Dominion not to be Aliens in England 2. It is agreed to my hand That an Alien naturalized at this day in Scotland remains an Alien in England notwithstanding 3. By the Doctrine of Calvin's Case a natural born Subject to the Kings person of a Forraign Dominion is not priviledg'd in England from being an Alien else the Antenati of Scotland were priviledg'd for they are natural born Subjects to the Kings person as well as the Postnati 4. It stands not with the Resolution of that Case That the natural born Subjects of the Dominions belonging to the Crown of England qua such should be no Aliens in England which was the principal matter to have been discuss'd but was not in Calvin's Case and chiefly concerns the point in question The Case relied on to justifie the Iudgment in Calvins Case are several Authorities That the King of England's Subjects formerly were never accounted Aliens in England though they were all out of the Realm of England and many within the Realm of France But all these are admitted in that Case as most of them were Dominions belonging to the Crown of England and if so Of Normandy Brittain Aquitain Anjou Gascoigne Guien Calais Jersey and Gernsey Isle of Man Berwick and other Parts of Scotland Ireland Tourney c. What Inference could be made for the Resolution of Calvin's Case That because the Kings natural Subjects of Dominions belonging to the Crown of England as these did were no Aliens in England Therefore that Subjects of a Dominion not belonging to the Crown as the Postnati of Scotland are should be no Aliens in England Non sequitur Therefore it is for other reason then because natural Subjects of Dominions belonging to the Crown of England they were no Aliens by the meaning of that Resolution And the Adequate Reason being found out why they are not Aliens will determine the point in question 1. It was not because they were natural Subjects to him that was King of England for then the Antenati of Scotland would be no Aliens they being natural Subjects to him that is King of England as well as the Postnati 2. It was not because they were natural Subjects of Dominions belonging to the Crown of England for then the Postnati would be Aliens in England for they are not Subjects of a Dominion belonging to the Crown of England 3. It remains then the Reason can be no other but because they were born under the same Liegeance with the Subjects of England which is the direct reason of that Resolution in Calvins Case Calvins Case f. 18. b. a. The words are The time of the birth is of the essence of a Subject born for he cannot be a Subject to the King of England that is to be no Alien unless at the time of his birth he was under the Liegeance and Obedience of the King that is of England And that is the reason that Antenati in Scotland for that at the time of their birth they were not under the
Act of Parliament of England no more than Wales Gernsey Jersey Barwick the English Plantations all which are Dominions belonging to the Realm of England though not within the Territorial Dominion or Realm of England but follow it and are a part of its Royalty Thirdly That distinct Kingdoms cannot be united but by mutual Acts of Parliament True if they be Kingdoms sui Juris and independent upon each other as England and Scotland cannot be united but by reciprocal Acts of Parliament So upon the Peace made after Edward the Third's war with France Gascoign Guien Calais were united and annext to the Crown of England by the Parliaments of both Nations which is a secret piece of Story and mistaken by Sir Edward Coke who took it as a part of the Conquest of France and by no other Title But Wales after the Conquest of it by Edward the First was annext to England Jure Proprietatis 12 Ed. 1. by the Statute of Ruthland only and after more really by 27 H. 8. 34. but at first received Laws from England as Ireland did but not proceeded by Writs out of the English Chancery but had a Chancery of his own as Ireland hath was not bound by the Laws of England unnamed until 27 H. 8. no more than Ireland now is Ireland in nothing differs from it but in having a Parliament Gratiâ Regis subject to the Parliament of England it might have had so if the King pleas'd but it was annext to England None doubts Ireland as conquer'd as it and as much subject to the Parliament of England if it please The Court was divided viz. The Chief Justice and Tyrrell for the Plaintiff Wylde and Archer for the Defendant Trin. 25 Car. II. C. B. Rot. 1488. Thomas Hill and Sarah his Wife are Plaintiffs Thomas Good Surrogat of Sir Timothy Baldwyn Knight Doctor of Laws and Official of the Reverend Father in God Herbert Bishop of Hereford is Defendant In a Prohibition THE Plaintiffs who prosecute as well for the King as themselves set forth That all Pleas and Civil Transactions and the Exposition and Construction of all Statutes and all Penalties for the breach of them pertain only to the King and his Crown Then set forth the time of making the Act of 32 H. 8. c. 38. and the Act it self at large and that thereby it was enacted That from the time limited by the Act no Reservation or Prohibition Gods Law excepted should trouble or impeach any marriage without the Levitical Degrees And that no person shall be admitted after the time limited by the Act in any the Spiritual Courts within this Kingdom to any Process Plea or Allegation contrary to the Act. They set forth That after the making of the said Act and the time thereby limited the Plaintiffs being lawful persons to contract marriage and not prohibited by Gods Law and being persons without the Levitical Degrees the Twentieth day of September in the Four and twentieth year of the King at Lemster in the County of Hereford contracted matrimony in the face of the Church and the same consummated and solemninized with carnal knowledge and fruit of Children at Lemster aforesaid That by reason thereof the said Marriage is good and lawful and ought not to be null'd in Court Christian That notwithstanding the Defendant praemissorum non ignarus fraudulently intending to grieve and oppress the Plaintiffs unduly draws them into question before him in the Court Christian for an unlawful marriage as made within the Degrees prohibited by Gods Laws and there falso caute subdole libelling and supposing that whereas by the Laws and Canons Ecclesiastical of this Kingdom it is ordained That none should contract matrimony within the Degrees prohibited by Gods Law and expressed in a certain Table set forth by Publique Authority Anno 1563. and that all marriages so contracted should be esteemed incestuous and unlawful and therefore should be dissolved as void from the beginning And also That whereas by a certain Act of Parliament made and published in the Eight and twentieth year of King Henry the Eighth It is enacted That no person or persons subject or residing within the Realm of England or within the Kings Dominions should marry within the Degrees recited in the said Act upon any pretence whatsoever And That whereas the said Thomas Hill had taken to wife one Elizabeth Clark and for several years cohabited with her as man and wife and had carnal kdowledge of her He the said Thomas notwithstanding after the death of the said Elizabeth had married with and took to wife the said Sarah being the natural and lawful Sister of the said Elizabeth against the form of the said last mentioned Statute and them the said Thomas and Sarah had caus'd unjustly to appear before him in Court Christian to Answer touching the Premisses although the said marriage be lawful and according to Gods Law and without the Levitical Degrees And That although the Plaintiffs have for their discharge in the said Court Christian pleaded the said first recited Act yet the Defendant refuseth to admit the same but proceeds against them as for an incestuous marriage against the form of the Statute And that notwithstanding he was served with the Kings Writ of Prohibition to desist in that behalf in contempt of the King and to the Plaintiffs damage of One hundred pounds The Defendant denies any prosecution of the Plaintiffs contrary to the Kings Writ of Prohibition and thereupon Issue is joyn'd and demurrs upon the matter of the Declaration and prays a Consultation and the Plaintiffs joyn in Demurrer In the Argument upon Harrisons Case I said and still say That if granting Prohibitions to the Spiritual Courts in Cases of Matrimony were res integra now I saw no reason why we should grant them in any Case The matter being wholly of Ecclesiastick Conizance my Reasons were and are 1. Because in all times some marriages were lawful and others prohibited by Divine and Ecclesiastick Laws or Canons yet the Temporal Courts could not prohibit the impeaching of any marriage how lawful soever nor take notice of it 2. If by Act of Parliament anciently all marriages not prohibited by Gods Law or Canons of the Church had been declared lawful the Temporal Courts thereby had no power to prohibit the questioning of any marriage more than before for it had said no more than what the Law was and did say before such Act. So had it been enacted That all marriages should be lawful not prohibited by the Levitical Law the Church had retain'd the judging which were against the Levitical Law as they did when the unlawfulness was not confin'd only to the Levitical Law And the Question now concerning what are the Levitical Degrees whereof we assume the Conizance is but the same as the question would be concerning what marriages were prohibited in the Eighteenth of Leviticus For though such Acts of Parliaments had been yet they had given no new Iurisdiction or
the Lords of Wales if it be not of Lands between the Lords themselves There is an ancient Book remarkable to the same purpose 8 E. 3. Term. Mich. 59. speaking of the Common Pleas This Court hath more Conuzance of Pleas of the Welch Shires than it hath of Pleas of the County of Chester for the Pleas of Quare Impedits and of Lands and Tenements held of the King in chief in Wales shall be pleaded here and they shall not be so of the County of Chester Fitz. Jurisdiction p. 34. 6 H. 5. Land in Wales immediately held of the King is pleadable in England per Haukford 6 H. 5. no such Book at large The Law and doubtless the Ordinance made by Parliament mentioned in 18 E. 2. concerning Lordships Marchers was the same concerning Land held in chief of the King and are mentioned in the Books as synonimous and were so for all Lordships Marchers were held from the Crown in chief nor could the King probably have other Lands in chief in Wales beside the Lordships Marchers for all was either of Lordships Marchers or Lands belonging to the Principality and held from it and not from the Crown in chief To this purpose there is an ancient Statute 28 E. 3. very convincing 28 E. 3. c. 2. All the Lords of the Marches of Wales shall be perpetually Attendants and annexed to the Crown of England as they and their Ancestors have been at all times before this in whose hands soever the same principality be or shall come And they being no part of the Principality and consequently not under the Statute and Ordinance of Wales 12 E. 1. It was provided by a Law That they should be impleaded in England and the Summons and Tryal to be by the Sheriff of and in the next adjoyning County Accordingly you find the practice was by many ancient Cases remembred but the Year-Books of E. 2 being never printed wherein only that Statute is mentioned otherwise than in Fitz-herbert's Abridgment and the Statute it self not extant gave occasion to men obiter in the time of H. 6. H. 7. long after to say that such impleading for matters arising in Wales in the Courts of England and the Tryals to be in the adjacent Counties because they knew not it came to pass by Act of Parliament was by the Common Law on which had they reflected with seriousness they had found it impossible For that Tryals concerning Lands in Wales quatenus particularly Wales after it became of the Dominion of England should by the Common Law be differing from other Tryals in England and in the adjacent Counties could not possibly be for Wales was made of the Dominion of England within time of memory viz. 12 E. 1. and whatever Tryal was at Common Law must be beyond all memory Therefore no such Tryal for Land in Wales particularly could be by the Common Law It remains then That if such were at Common Law it must be for Lands in all Dominions of the Acquisition of England consequently for Ireland Garnsey and Jersey Gascoign Guyen Calais Tournay as well as Wales but it was never in practice or pretence that any such Tryals should be for any Land in these places Therefore it is evident That it was and it could be no otherwise than by Act of Parliament that Wales differed from the other Dominions belonging to England in these Tryals Nor was it by any new Law made by E. 1. or any his Successors by the Clause in the end of the Statute of Rutland which hath nevâ—r been pretended For by that Clause power was given to change Laws simply for Wales but this way of Tryals changes the Law of England in order to Tryals for Land in Wales which that Clause neither doth nor could warrant Besides this new way of Tryals concerning Lordships Marchers held in chief from the King the Books are full that in Quare Impedits for disturbance to Churches in Wales the Summons and Tryal must be by the Sheriff of and in the adjacent Counties which is often affirmed and agitated in the Books but with as much confusion and as little clearness as the other concerning Land To this purpose is the Case before 8 E. 3. the Pleas of Quare Impedits 8 E. 3. 59. and of Land and Tenements held in chief of the King in Wales shall be pleaded there A Quare Impedit brought by the King against an Abbot 15 E. 3. Fitz. Jurisdiction p. 24. exception taken that the Church was in Wales where the Kings Writ runs not non allocatur for the King was party by the Book as a reason A Quare impedit cannot be brought in Wales 11 H. 6. f. 3. A B. because a Writ to the Bishop cannot be awarded for they will not obey it and so was the Opinion in that Case of Danby Morton and Newton that Quare Impedits for Churches in Wales must be brought only in the Kings Courts and the Opinion is there that the Prince could not direct a Writ to the Bishops in Wales upon Quare Impedits there brought So is the Book of 30 H. 6. of Churches in Wales 30 H. 6. f. 6. B. a Quare Impedit shall be brought in England the Case was cited before concerning Tryals of Lands in Wales A Quare Impedit was brought in the County of Hereford of a disturbance in Wales to present to a Church 35 H. 6. f. 30. A B. exception was taken by Littleton only to this that the Plaintiff did not shew in his Count or Writ that Hereford was the next adjoyning County but by the Book it was well enough for if Hereford were not the next adjoyning County the Defendant might shew it but no exception was taken to the bringing of the Writ into the County of Hereford if it were the next County 36 H 6. f. 33. A B. Quare Impedits shall be brought here of Churches in Wales and shall be sued in the Counties adjoyning for that the Justices read it Bishops will not obey any man there If a Quare Impedit be brought here of a Church in Wales it shall be tryed in the County adjoyning The reason there given is the same as in many other Books Car nous avomus power ad escrier al Evesque mes ils voylont parront ceo disobeyer It is manifestly mis-printed Car nous navomus power ad escrier al Evesque mes ils voylont parront ceo disobeyer which is not sense By these Books and many other it is clear Quare Impedits were formerly brought in England for Churches in Wales as real Writs were for Land and the Tryal was in the next adjoyning English County But as those Tryals for Land were only for Lordships Marchers held of the King in chief or part of them and that by special Act of Parliament as hath been opened So the Quare Impedits brought in England and Tryals there had upon them were not for all Churches in Wales
the Kings license must be without any limitation to him that hath it to exercise his Trade as before it was prohibited otherwise it is no license 346 17. Where the King may dispense generally he is not bound to it but may limit his Dispensation 346 18. Where the King can dispense with particular persons he is not confined to number or place but may license as many and in such places as he thinks fit 347 19. A Corporation is capable of a Dispensation 347 348 20. A Dispensation to a person to keep an Office which person is not capable of such Office is void 355 21. Where a license Ex speciali gratia is good to dispense with a penal Law without a Non obstante 356 Distress 1. A privity is necessary by the common Law between the Distrainer and Distrained 39 2. Attornment and power to Distrain follows the possession and not the Use 43 3. Where a Rent is well vested and there is an Attornment when ever the Rent is arrear a Distress is lawful unless the power is lost 39 4. Where Rent is arrear and afterwards the Rent is granted over in Fee and an Attornment thereunto here the Grantor hath lost his arrears and cannot Distrain 40 5. If a Fine is levied of the Reversion of Land or of Rent to Uses the Cestuy que use may Distrain without attornment 50 51 Dominion 1. Dominions belonging to the Crown of England cannot be separated from it but by Act of Parliament made in England 300 2. What are Dominions belonging to the Realm of England though not in the Territorial Dominions of England ibid. 3. By what Title the Crown of England held Gascoign Guyen and Calais 401 Dower 1. The wife of a Conizee of a Fine shall not be thereof endowed because it is but a fictitious Seisin 41 2. The wife is dowable of a Rent in Fee 40 Droit d'Advowson 1. Where the Writ lies and for whom 11 16 2. In a Droit d'Advowson the King may alledge Seisin without alledging any time 56 Ecclesiastical Court See Archbishop Prohibition THe Secular Judges are most conuzant of Acts of Parliament 213 2. The Temporal Judges have conuzance of what marriages are within the Levitical Degrees and what not and what are incestuous 207 3. The Clergy of this Kingdom shall not enact or execute any Canon Constitution or Ordinance Provincial unless they have the Kings license 329 Elegit 1. It lies upon a Recognizance taken in any of the Courts at Westminster or before any Judge out of Term 102 Error See Presidents Iudgment 1. An erroneous Judgment is a good Judgment to all intents whatsoever until reversed 94 2. If an inferiour or superiour Court gives an erroneous Judgment it is reversible by Writ of Error 139 3. Where the matter concerns the Jurisdiction of the Court a Writ of Error lies no where but in Parliament 396 4. A Writ of Error lies to reverse a Judgment in any Dominion belonging to England 290 402 5. A Writ of Error lay to reverse a Judgment in Calais 402 6. It lies to reverse a Judgment in Ireland 290 291 298 402 Escheat 1. Where the Heir at Law dies without heir the Land escheats and the Lord's Title will precede any future Devise 270 Esplees 1. The profits of a Mine is no Esplees for the Land but only the Esplees for the Mine it self 255 2. So likewise for a Wood the profits of it is no Esplees but only for the Land only upon which the Wood grows ibid. Estates See Grant 1. The Law doth not in Conveyances of Estates admit Estates to pass by Implication as being a way of passing Estates not agreeable to the plainness required by Law in the transferring of Estates 261 262 c. 2. But in Devises they are admitted with due restrictions 261 262 263 c. 3. What Executory Devises and contingent Remainders are good and what not 272 273 4. When a new Estate is granted the privity to the old Estate is destroyed 43 5. The Estate may be changed and yet the possession not changed but remain as formerly 42 6. An Estate in a Rent-charge may may be enlarged diminished or altered and no new Attornment or privity requisite 44 45 46 7. The Seisin of the Conizee of a Fine is but a meer fiction and an invented form of Conveyance only 41 8. His wife shall not be endowed neither shall his heir inherit 41 Estoppel or Conclusion 1. A Demise by Indenture of a Term habendum from the expiration of another term therein recited when really there is no such term in esse is no Estoppel to the Lessor or Lessee but the Lessee may presently enter and the Lessor grant the Reversion 82 Evidence 1. No evidence can be given to a Jury of what is Law 143 2. A witness may be admitted to prove the Contents of a Deed or Will 77 3. The Jury may go upon evidence from their own personal knowledge 147 Execution See Elegit 1. Lands Persons or Goods ought not to be lyable to Judgments in other manner than they were at the time of the Judgment given which was where the Court had Jurisdiction which gave the Judgment 398 2. What Execution shall be sued out upon a Recognizance acknowledged in any of the Courts at Westminster or before a Judge 103 3. What Execution shall be sued out upon a Statute 102 4. Upon a Recovery in England an Execution doth not lye into Wales 397 398 5. Perhaps by special Writs to the chief Officer of the King Execution may be made of Judgments given at Westminster in any of his Dominions 420 Executor See Title Statute 10 20. 1. How they are to administer the Testators estate 96 2. An Executor may refuse but cannot assign over his Executorship 182 3. It is no Devastavit in an Executor to satisfie a Judgment obtained upon a simple Covenant before a debt due by Obligation 94 95 97 4. Where an Action of Debt upon Bond or Judgment is brought against him he may confess the Action if there be no fraud in the Case although he hath notice of a former Suit 95 100 5. The Executor may plead an erroneous Judgment in Barr 94 97 6. A Recognizance in Chancery must be paid before Debts upon simple Contracts and Debts by Bond 103 7. It is a Devastavit in an Executor to pay voluntarily a Debt by simple Contract before a Debt by Bond whereof he had notice and not otherwise 94 95 8. It is a Devastavit to satisfie a later Judgment if there are not Assets left to satisfie a former Judgment 95 9. An Action will not lye against Executors upon a Tally because it is no good Specialty 100 10. The pleading of Plene administravit praeter plene administravit ultra and in what Cases it may be pleaded and how 104 Exposition of Words Quam diu 32 Dum ibid. Dummodo ibid. Usually letten 33 34 At any time 34 Or more 35 More or less ibid. Gurges
Courts upon the insufficiency of the Return only and not for priviledge 154 5. Where a man is brought by Habeas Corpus and upon the Return it appears that he was imprisoned illegally though there is no cause of priviledge for him in the Court yet he shall not be remanded to his unlawful Imprisonment 156 6. The Kings Bench may bayl if they please in all Cases but the Common Bench must remand if the cause of the imprisonment returned is just 157 Heir 1. Children shall inherit their Ancestors without limitation in the right ascending Line and are not inherited by them 244 2. In the collateral Lines of Uncle and Nephew the Uncle as well inherits the Nephew as the Nephew the Uncle ibid. 3. The Heir shall never be disinherited by an Estate given by Implication in a Will if such Implication be only constructive and possible but nor a necessary Implication viz. such an Implication that the Devisee must have the thing devised or none else can have it 262 263 268 4. He that is priviledged by the Law of England to inherit there must be a Subject of the Kings 268 5. The four several ways that a man born out of England may inherit in England 281 6. How long the Heir shall continue in Ward upon the Devise of his Father and a full Exposition of the Statute of 12 Car. 2. 178 7. The Heir of the Conizee of a Fine only shall take nothing by Discent 41 Husband and Wife See Baron Feme  Imprisonment See Title Habeas Corpus  Incest 1. INcest was formerly of Spiritual Conuzance 212 2. The primitive Christian Church could punish incestuous marriages no other way than only by forbidding them communion with them 313 3. The Judges have now full conuzance of what Marriages are incestuous and what not 207 209 210 4. Among the Hebrews there was no Divorce for Incest but the Marriage was void and the Incest punished as in persons unmarried ibid. Incumbent 1. One Incumbent may sue a Writ of Spoliation against the other where the Patrons right comes in question 24 2. If an Incumbent with Cure take another Benefice with Cure the first is void and the Patron may present 21 3. A Bishop may be an Incumbent after Consecration 24 4. The Kings Confirmation of the Commendam transfers no right into the Incumbent 26 5. Where the Incumbent doth not read the Articles according to the Statute he stands ipso facto deprived 131 132 6. And if he had not subscribed the Articles he had been never Incumbent 133 Infant 1. Where the Gardianship of an Infant is devised since the Statute of 12 Car. 2. what passes thereby together with a full Exposition of that Statute from 177 to 186 2. He is capable at Seventeen years of Age of taking Administration in his own name 93 Institution and Induction 1. By Induction into the Rectory the Parson is seised of all the possessions belonging to his Rectory 198 2. Institution and Induction is a good Title until a better appears 7 8 3. Where after Institution and Induction the party inducted may bring his Ejectment and shall not be put to his Quare Impedit 129 130 131 Iointenants 1. There can be no Jointenants in Occupancy 189 2. They may release or confirm to each other and thereupon those priviledges which did belong to both shall pass to one of them 45 Ireland See Alien Error 1. Ireland is a conquer'd Kingdom and appears so by the express words of an Act of Parliament there 292 2. Though Ireland hath its own Parliament yet it is not absolute sui Juris ibid. 3. What things the Parliament of Ireland cannot do ibid. 4. When Ireland received the Laws of England 293 298 5. What Laws made in the Parliament of England are binding in Ireland 293 Issue 1. No Issue can be joyned of matter in Law 143 Iudges of Iustices 1. Where the Law is known and clear although it is unequitable and inconvenient yet Judges must adjudge it as it is 37 285 2. But where it is doubtful and not clear there they must Interpret it to be as is most consonant to equity 38 3. Defects in the Law can only be remedied in Parliament 38 285 4. Judges must judge according as the Law is not as it ought to be but if inconveniences necessarily follow out of the Law the Parliament only can cure them 285 5. An Opinion given in Court if not necessary to the Judgment given upon Record is no Judicial Opinion no more than a gratis dictum 382 6. But an Opinion though erroneous concluding to the Judgment is a Judicial Opinion because delivered under the Sanction of the Judges Oath upon deliberation which assures it is or was when delivered the Opinion of the Deliverer 382 7. When the King hath constituted any man a Judge his Ability Parts and Fitness for the place are not to be reflected upon or censured by any other person being allowed by the King who only is to judge of the fitness of his Ministers 138 8. We must not upon supposition only admit Judges deficient in their Office for so they should never do right Nor on the other side must we admit them unerring in their places for so they should never do any thing wrong 139 9. Judges have in all Ages been complained of and punished for giving dishonest and corrupt judgments 139 10. A Judge cannot Fine and Imprison a Jury for giving a Verdict contrary to his Directions 146 147 148 149 11. Judges ought not to abate Writs ex officio 95 97 12. The Judges direction to the Jury ought to be upon Supposition and not Positive viz. if you find the Fact thus then it is for the Plaintiff if you find it thus then for the Defendant 144 13. The Judge can never direct what the Law is in any controverted matter until he first knows the Fact 147 Iudgment See Error 1. A Judgment is the Act of the Court and compulsory to the Defendant 94 95 2. Where the Plaintiff makes it appear to the Court that the Defendants Title is not good but doth not set forth a good Title for himself the Court shall never give Judgment for him 60 3. An ill Declaration will not avoid the Judgment it only makes it erroneous 93 94 4. An erroneous Judgment is a good barr for an Executor in an Action brought against him 94 5. A Judgment given in England ought not to be executed in Wales 398 6. In a Quare Impedit where the Bishop disclaims and the Parson loseth by Default there shall go a Writ to the Bishop Non obstante Reclamatione to remove the Incumbent but with a Cessat Executio until the Plea is determined between the Plaintiff and Patron 6 Iurisdiction See Courts Prohibition 1. When the Question is of a Jurisdiction in a Dominion belonging to England how to be determined 418 2. Where ever a Debt grows due yet the Debtor is indebted to the Creditor
recover any thing from me it is not sufficient for you to destroy my Title but you must prove your own to be better than mine 58 60 2. In a Quare Impedit if the Defendant will leave the general Issue and controvert the Plaintiffs Title he must do it by his own Title 58 3. The Plaintiff must recover by his own strength and not by the Defendants weakness 8 58 4. Priority of possession is a good Title against him who hath no Title at all 299 5. No man can Traverse an Office except he can make himself a good Title 64 Trade 1. The Law permits not persons who have served Seven years to have a way of livelyhood to be hindred in the Exercise of their Trades in any Town or part of the Kingdom 356 Traverse 1. No person shall Traverse an Office unless he can make himself a good Title 64 2. When in a Quare Impedit the Defendant Traverseth any part of the Plaintiffs Count it ought to be such part as is inconsistent with his Title and being found against the Plaintiff destroys his Title 8 9 10 3. Where the presentation and not the seisin of the Advowson is to be traversed 9 10 11 12 4. Where the Presentation and not the Appendancy is traversable 10 11 15 5. Where the Seisin in Gross or Appendancy is Traversable 12 13 6. The Appendancy is well Traversed when it is all the Plaintiffs Title to present and inconsistent with the Defendants 13 15 7. Where either the Appendancy or Presentation may be Traversed 15 8. Where neither the Seisin in Gross nor Appendancy shall be Traversed but only the Vacancy 16 9. Where the King may take a Traverse upon a Traverse which regularly a common person cannot do but where the first Traverse tendred by the Defendant is not material to the Action brought 62 10. Where the King may refuse to maintain his own Title which is Traversed by the Defendant and take a Traverse to the Title made by the Defendant 62 64 Trespass 1. By the ancient Law it was adjudged in Parliament no man ought to be condemned in a Trespass de praecepto or auxilio if no man were convicted of the Fact done 115 116 2. Action of Trespass against Officers within the Statute as Constables c. and their Assistants must be laid in the proper County 111 112 113 114 115 116 117 Tryal 1. Actions upon Bond or Deed made in Wales Ireland Normandy c. where to be brought 413 2. How Dominions Leagues and Truces are to be tryed 288 3. An Issue arising out of the Jurisdiction of the Courts of England although it arise within the Dominions of England out of the Realm shall not be tryed in England 404 4. If a Signiory in Wales that is not part of the Principality be to be tryed it must be tryed by the Common Law but if Land within the Signiory is to be tryed it must be tryed within the Mannor there 407 5. A person naturalized in Ireland commits Treason beyond the Seas where no local Allegiance is due to the King how and where he shall be tryed 291 292 Tythes 1. Though Tythes pass by Deed only yet where a Rectory and the Tythes de D. are granted if there is not Livery neither the Rectory nor Tythes will pass because they were intended to be granted together 197 2. There can be no primary and immediate Occupancy of Tythes 191 194 3. A Rent cannot be reserved out of a bare Tythe only to make the Lease good within the 13 Eliz. cap. 10. because neither a Distress nor Assise can be brought thereof 204 Verdict See Evidence Issue 1. THE Jury may find a Deed or a Will the Contents thereof being proved by witnesses 77 2. But if they will collect the Contents of the Deed and by the same Verdict find the Deed in haec Verba the Court is not to adjudge upon their Collection but the Deed it self ibid. 3. A Deed or Will must not be found in part because the Court cannot but adjudge upon the whole matter and not upon part only 84 4. The legal Verdict of the Jury is finding for the Plaintiff or the Defendant and what they answer if asked concerning some particular Fact is no part of their Verdict 150 5. In a general Verdict finding the point in Issue by way of Argument although never so concluding is not good 75 187 6. In a Special Verdict the Case in Fact must be found clear to a common intent without Equivocation 75 78 87 7. The Issue was Whether a Copyhold was grantable to three for the lives of two The Jury find that it is grantable for Three Lives this was argumentative only and therefore a void Verdict 87 8. Where a man by Lease reciting a former Lease to have been made doth Demise for Forty years after the Expiration of that Lease paying the same Rent as is mentioned in the recited Lease and only the Lease for Forty years and not the recited Lease is found in the Verdict This Verdict is a void Verdict and findeth neither the one or other Lease 74 75 76 81 82 Vintners See Title Statute 21. 1. The King could not better answer the end of the Act of 7 E. 6. than to restrain the Sellers of Wine to Freemen of London 2. To the Corporation of Vintners men bred up in that Trade and serving Apprenticeships to it 355 3. And that such should be licensed without restraint is most agreeable to the Law of the Kingdom which permits not persons who have served Seven years to have a way of livelyhood to be hindred in the Exercise of their Trades 356 Voucher Vouchee 1. No man shall Vouch who is not privy to the Estate that is who hath not the same Estate as well as the Land to which the warranty was annexed 384 2. When a man will be warranted by Voucher he must make it appear how the warranty extends to him 385 Vse See Title Statutes 19. 1. The Statute brings the new Uses raised out of a feigned possession and for no time in the Conizee to the real possession and for all times in the Conizors which operates according to their Intents to change their Estates but not possessions 42 2. By the Statue of 27 H. 8. the Use and Possession come instantly together 50 3. The principal use of the Statute of Uses is to introduce a general form of Conveyance by which the Conizors of the Fine may execute their purposes at pleasure 50 4. An old Use may be revoked and a new Use raised at the same time 42 5. Uses declared by Indenture made a year after the Recovery 51 6. If a Fine be levied of the Reversion of Land or of a Rent to Uses the Cestuy que use may Distrain without Attornment 50 51 7. A Rent may arise out of the Estate of Cestuy que use upon a Recovery which was to arise out of the Recoverers Estate 52 Vsurpation 1. A void
the Plaintiff entitle himself to an Advowson as appendant to a Mannor and sheweth a presentment as appendant for so are the words and the Defendant shews another Presentment without that that the Advowson is appendant this Traverse is good for if it be not appendant as the Plaintiff declares it is sufficient to destroy his Declaration and so there both are traversable but otherwise as the Case is here viz. the principal Case first cited I conceive the meaning clearly to be that in the principal case the Seisin in gross of the Advowson alledged in the Declaration was not traversable but the presentation which might be by Vsurpation and made a good Title though the Plaintiff were not seised in gross of the Advowson But if the Plaintiff declare the Advowson to be appendant to a Mannor and withal sets forth in his Declaration the Letters of Presentation to the Church as appendant there the Defendant may traverse either the appendency or the Presentation for though the Advowson were appendant yet if the Plaintiff presented not he had no Title Whence I infer that if the Plaintiff had only counted a Seisin of the Mannor to which the Advowson was appendant without shewing the presentment to be to the Church by vertue of the appendency the traverse of the appendency had not been good but it must have been of the Presentation which might have been by Usurpation notwithstanding the alledging barely of the appendency as is resolved before in the point in the Lord Buckhursts Case in Anderson and in the principal Case of 10 H. 7. But when the Count is of the appendency of the Advowson and also of the Presentation to it as appendant there there could be no Usurpation according to the Resolutions in Sir Henry Gaudies Case in the Lord Hobart before cited and in Greens Case in the 6th Report of the Lord Cook And the not observing of this difference made the Reporter at the end of thâ— L. Buckhursts Case deny this latter part of the Case in 0 H. 7. because it was clearly against the reason of the principal Case in 10 H. 7. and against the Resolution of the L. Buckhursts Case if the words of shewing the presentment to have been as appendant had been omitted in the Case But those words make the latter Case in 10 H. 7. exactly to agree with the Judgments both in Sir Henry Gaudies Case in Hob. and Greens Case in the 6th Rep. 15 H. 6. Fitzh Quare Imped num 77. To the 4 first Cases may be added the Case of 15. H. 6. where the Plaintiff counts in a Quare Impedit that his Ancestor was seised of a Mannor to which the Advowson is appendant and presented and dyed and that the Mannor descended to the Plaintiff and the Church became void whereby he ought to present the Defendant pleads that long after the Presentation alledged by the Plaintiff the Defendant was seised of the Advowson in Fee and presented such a one and after the Church became void and he presented the present Incumbent and this Plea was allowed a good plea by the Court without answering to the appendency alledged by the Plaintiff which was in effect avoided by the Defendants Presentation after And in this Case the Plaintiff was without remedy unless he could traverse the Presentation alledged by the Defendant otherwise than by his Writ of Droit d'Advowson Crook 2. Car. f. 61. Sir Greg. Fenner vers Nicholson Pasfield As also the Case in Crook If the Plaintiff make Title to present as being seised of an Advowson in gross or as appendant and the Defendant make Title as presented by reason of a Simoniacal presentation made by the Plaintiff and thereby a Devolution to present to the King under whom the Defendant claims because the Defendant doth admit the Advowson to be in gross or appendant in the plaintiff and that neither of them is inconsistent with the Title made by the Defendant he shall not traverse the Seisin in gross nor the appendency but because somewhat else is necessary to give the plaintiff right to present that is the vacancy of the Church either by death or resignation or deprivation which the plaintiff must alledg and which are inconsistent with the Defendants Title who claims not by vacancy by death resignation or deprivation but by the Simony therefore he shall traverse the vacancy alledged either by death resignation or deprivation as the Case falls out without one of which the plaintiff makes no Title and if the present vacancy be by either of them the Defendant hath no Title Now to apply these Cases to the question before us whether the Defendant should have traversed the Presentation of the Lord Wootton alledg'd by the plaintiff or the appendency which he hath done to the third Part of the Mannor and third Part of the Rectory of Burton Basset It seems clear That in all Cases of Quare Impedits the Defendant may safely traverse the Presentation alledged in the Plaintiffs Count if the matter of fact will admit him so to do for the Plaintiff hath no Title without alledging a Presentation in himself his Ancestor or those from whom he claims the Advowson but the Defendant must not traverse that is deny the Presentation alledged when there was a Presentation for then the issue must be found against him The Lord Wootton therefore having presented by what right soever it was there was no traversing his Presentation But by what right soever the Lord Wootton presented the Plaintiff hath no right to present unless the Lord Woottons Presentation were by the appendency to the third part of the mannor for he deriving no title to the Advowson as in gross nor any other way but as belonging to the third part of the Mannor which he derives from the Lord Wootton Therefore nothing is traversable by the Defendant but the appendency which if found against the Plaintiff he hath no colour of Title Pasc 19. Car. 2. Rot. 484. C. B. Henry Edes Plaintiff in a Quare Impedit against Walter Bishop of Oxford THat he was and is seised of the Advowson of the Church of Chymer in gross in Fee and thereto presented Will. Paul his Clerk who was instituted and inducted accordingly That after the Church becoming void and so remaining by the death of the said William Paul and it belongs to him to present he is hindred by the Defendant The said Bishop by Protestation saying the Church did not become void by death of the said William Paul pleads that the said Church was full of the said Paul The said W. Paul was created Bishop of Oxford whereby the said Church became void and the right of presentation devolv'd to the King by Prerogative 25 H. 8. c. 21. Then pleads the clause of the Act of 25 H. 8. which impowrs the Archbishop of Canterbury to give faculties and dispensations as the Pope did at large That after and before the Writ purchased Decimo of the King the
eas in omnibus sequantur In cujus c. T. R. apud Wadestocks ix die Septembris Out of the Close Rolls of King Henry the Third his Time Clause 1 H. 3. dorso 14. The Kings thanks to G. de Mariscis Justice of Ireland The King signifies that himself and other his Lieges of Ireland should enjoy the Liberties which he had granted to his Lieges of England and that he will grant and confirm the same to them Clause 3. H. 3. m. 8. part 2. The King writes singly to Nicholas Son of Leonard Steward of Meth and to Nicholas de Verdenz and to Walter Purcell Steward of Lagenia and to Thomas the son of Adam and to the King of Connage and to Richard de Burgh and to J. Saint John Treasurer and to the other Barons of the Exchequer of Dublin That they be intendant and answerable to H. Lord Arch-bishop of Dublin as to the Lord the King's Keeper and Bailiff of the Kingdome of Ireland as the King had writ concerning the same matter to G. de Mariscis Justice of Ireland Clause 5. H. 3. m. 14. The King writes to his Justice of Ireland That whereas there is but a single Justice itinerant in Ireland which is said to be dissonant from the more approved custome in England for Reasons there specified two more Justices should be associated to him the one a Knight the other a Clerk and to make their Circuits together according to the Custome of the Kingdom of England Witness c. The Close Roll. 5 H. 3. m. 6. Dorso The King makes a Recital That though he had covenanted with Geoffrey de Mariscis That all Fines and other Profits of Ireland should be paid unto the Treasure and to other Bailiffs of the Kings Exchequer of Dublin yet he receiv'd all in his own Chamber and therefore is removed by the King from his Office Whereupon the King by advise of his Council of England establisheth that H. Arch-bishop of Ireland be Keeper of that Land till further order And writes to Thomas the son of Anthony to be answerable and intendant to him After the same manner it is written to sundry Irish Kings and Nobles there specially nominated Clause 7. H. 3. m. 9. The King writes to the Arch-bishop of Dublin his Justice of Ireland to reverse a Judgment there given in a Case concerning Lands in Dalkera between Geoffrey de Mariscis and Eve his wife Plaintiffs and Reignald Talbott Tenant By the Record of the same Plea returned into England the Judgment is reversed upon these two Errors The first because upon Reignald's shewing the Charter of King John the King's Father concerning the same Land in regard thereof desiring peace it was denyed him The second Because the Seisin was adjudged to the said Geoffrey and Eve because Reynald calling us to warranty had us not to warranty at the day set him by the Court which was a thing impossible for either Geoffrey or the Court themselves to do our Court not being above us to summon us or compel us against our will Therefore the King writes to the Justice of Ireland to re-seise Reynald because he was disseised by Erroneous Judgment Clause 28. H. 3. m. 7. The King writes to M. Donenald King of Tirchonill to aid him against the King of Scots Witness c. The like Letters to other Kings and Nobles of Ireland Clause 40. E. 3. m. 12. Dorso The King takes notice of an illegal proceeding to Judgment in Ireland Ordered to send the Record and Process into England It was objected by one of my Brothers That Ireland received not the Laws of England by Act of Parliament of England but at the Common Law by King John's Charter If his meaning be that the Fact was so I agree it but if he mean they could not receive them by Act of Parliament of England as my Brother Maynard did conjecturally inferr for his purpose then I deny my Brothers Assertion for doubtless they might have received them by Act of Parliament And I must clear my Brother Maynard from any mention of an Union as was discoursed of England and Ireland Nor was it at all to his purpose If any Union other than that of a Provincial Government under England had been Ireland had made no Laws more than Wales but England had made them for Ireland as it doth for Wales As for the Judgment Obj. One of my Brothers made a Question Whether George Ramsey the younger Brother inheriting John Earl of Holdernes before the naturalization of Nicholas Whether Nicholas as elder Brother being naturalized should have it from him Doubtless he should if his Naturalizing were good He saith the Plaintiff cannot have Iudgment because a third person by this Verdict hath the Title Answ If a Title appear for the King the Court ex Officio ought to give Iudgment for him though no party But if a man have a prior Possession and another enters upon him without Title I conceive the priority of Possession is a good Title against such an Entry equally when a Title appears for a third that is no party as if no Title appear'd for a third But who is this third party For any thing appears in the Verdict George Ramsey died before the Earl 2. It appears not that his Son John or the Defendant his Grand-child were born within the Kings Liegeance Patient appears to be born at Kingston and so the Daughters of Robert by the Verdict The Acts of Ireland except all Land whereof Office was found before the Act to entitle the King but that is in Ireland for the Act extends not to England If Nicholas have Title it is by the Law of England as a consequent of Naturalization So it may be for the Act of 7 Jac. cap. 2. he that is Naturalized in England since the Act must receive the Sacrament but if no Alien by consequent then he must no more receive the Sacrament than a Postnatus of Scotland Obj. Ireland is a distinct Kingdom from England and therefore cannot make any Law Obligative to England Answ That is no adequate Reason for by that Reason England being a distinct Kingdom should make no Law to bind Ireland which is not so England can naturalize if it please nominally a person in Ireland and not in England But he recover'd by saying That Ireland was subordinate to England and therefore could not make a Law Obligatory to England True for every Law is coactive and it is a contradiction that the Inferior which is civilly the lesser power should compel the Superior which is greater power Secondly He said England and Ireland were two distinct Kingdoms and no otherwise united than because they had one Soveraign Had this been said of Scotland and England it had been right for they are both absolute Kingdoms and each of them Sui Juris But Ireland far otherwise For it is a Dominion belonging to the Crown of England and follows that it cannot be separate from it but by