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
the Trespass suppos'd that is the First of August 1606. King James was seis'd in right of the Crown of the said Pool and three Gardens with the Appurtenances in St. Margarets aforesaid in his Demesue as of Fee They find again That the same First Day of August 1606. A Water-work was built in the said Gardens and the said Pool was thence us'd with the said Water-work until the Twelfth Day of March in the Eleventh year of King James That King James so seis'd the said Twelfth of March by his Letters Patents under the Great Seal of England bearing Date the said Twelfth of May 11 Jac. in consideration of 70 l. 10 s. of lawful mony of England paid by Richard Prudde and for other considerations him moving at the nomination and request of the said Richard Et de gratia sua speciali ex certa scientia mero motu for him his Heirs and Successors granted to the said Richard Prudde and one Toby Mathews Gent. and to their Heirs and Assigns among other things the said Three Gardens and Water-work thereupon erected to convey water from the River of Thames to divers houses and places in Westminster and elsewhere with all and singular the Rights Members and Appurtenances of what nature and kind soever They further find That the said King James by his said Letters Patents for the consideration aforesaid for him his Heirs and Successors granted to the said Richard Prudde and Toby Mathew their Heirs and Assigns inter alia Omnia singula stagna gurgites aquas aquarum cursus aquaeductus to the said Premisses granted by the said Letters Patents or to any of them or to any parcel of them quoquo modo spectantia pertinentia incidentia vel appendentia or being as member part or parcel thereof at any time thentofore had known accepted occupied used or reputed or being together with the same or as part parcel or member thereof in accompt or charge with any of his Officers as fully and amply as the same were formerly held by any Grant or Charter Ac adeo plene libere integre ac in tam amplis modo forma prout idem nuper Rex aut aliquis progenitorum sive predecessorum fuorum premissa praedict per easdem Litteras Patent prae-concess quamlibet seu aliquam inde partem sive parcellam habuerunt habuissent vel gavisi fuissent habuissent vel habere uti gaudere debuiffent aut debuit They further find That the said Pool was necessary for the Water-work aforesaid and that it could not work without the said Pool They further find That the King who now is by his Letters Patents dated at Westminster the Fifteenth of February the Eighteenth of his Reign inroll'd in the Exchequer in consideration that Henry Alderidge Gent. a piece of Laud and other the Premisses granted by the said Letters Patents cover'd with water and hurtful mudd would fill up at his proper charges and perform the Covenants and Agreements in the Letters Patents contain'd for him his Heirs and Successors granted the aforesaid piece of Land containing as aforesaid in length and breadth by the name of All that piece of Land or broad Ditch lying and being in the Parish of St. Margarets Westminster with particular Boundaries thereto expressed To have and to hold from the Feast of the Annunciation last past for the term of One and twenty years thence next ensuing They find That the said Henry Alderidge entred into the Premisses then in the possession of the Defendants and so possess'd made the Lease to the Plaintiff Habendum to him and his Assigns as in the Declaration That the Plaintiff entred by virtue thereof into the said piece of Land and was possess'd till the Defendants Ejected him And if upon the whole matter the Defendants be Culpable they assess damages to 12 d. and costs to 40 s. And if they be not they find them not culpable The first Question is What can pass by the name of Stagnum or Gurges for if only the water and not the soyl passeth thereby the Question is determined for the piece of Land containing such length and breadth cannot then pass Fitzh N. Br. 191. b. Lett. H. By the name of Gurges water and soyl may be demanded in a precipe 34 Ass pl. 11. Coke Litt. f. 5 6. ad finem By the name of Stagnum the soyl and water is intended 1. Where a man had granted to an Abbot totam partem piscariae suae from such a Limit to such a Limit reservato mihi Stagno molendini mei And the Abbot for a long time after the grant had enjoyed the fishing of the Pool It was adjudg'd the Reservation extended to the water and soyl but the Abbot had the fishing by reason of long usage after the Grant which shewed the Intent 1606. 4 Jac. The next Question is When the soyl may pass by the word Stagnum whether it may as belonging and pertaining to the Water-work erected 6 Jac. and granted away with the Pool as pertaining to it in 11 Jac. as it is found or to the Gardens which seems a short time especially in the Case of the King to gain a Reputation as belonging and appertaining As to this Question things may be said pertaining in Relation only to the extent of the Grant As an antient Messuage being granted with the Lands thereto appertaining and if some Land newly occupied and not antiently with that Messuage shall pass as appertaining is a proper Question but that is a Question only of the extent of the Grant and what was intended to pass and not of the nature of the Grant Four Closes of Land part of the possessions of the Priory of Lanceston came to King Henry the Eighth and after to Queen Elizabeth usually call'd by the Name of Drocumbs or Northdrocumbs A House was built 21 Eliz. as the Book is by the Farmers and Occupiers of these Closes upon part In 24 Eliz. she granted Totum illud Messuagium vocat Drocumbs ac omnia terras tenementa dicto messuagio spectantia in Lanceston After King James made a Lease of the Four Closes call'd Northdrocumbs or Drocumbs Gennings versus Lake 5 Car. 1. Crook 168. and upon question between the Queens Patentee and the Kings Iudgment was given for the Queens Patentee Because though the House was newly erected before the Queens Grant yet the Land shall be said belonging to it and it shall pass by such name as it was known at the time of the Patent and that was a stronger Case than this there being but Three or Four years to give Reputation of belonging or appertaining Another meaning of the words belonging or appertaining is when they relate not to the extent or largeness of the Grant but to the nature of the thing granted As if a man newly erect a Mill in structure and hath no Water-course to it if he grants his Mill with the Appurtenances nothing passes but the structure
Mothers But if a fiction could make a natural Subject he hath two natural Princes one where he was born and the other where naturalized 3. If one naturalized in Ireland should in law make him naturally born there then one naturalized in Scotland after the Vnion should make him naturally born there consequently inheritable in England which is not contended 4. A naturalized person in a Dominion belonging to England is both the King 's Subject when he is King of England and inheritable in that his Dominion when naturaliz'd So the Antenati of Scotland are the King of England's Subjects when he is King of England and inheritable in that Dominion of his yet cannot inherit in England and being his Subjects before doth not make them less his Subjects when King of England Or if it did Nicholas Ramsey before he was naturalized in Ireland and became there a Subject to the King of England was a Subject in Scotland of the Kings There are four ways by which men born out of England may inherit in England besides by the Statute of Edward the Third De Natis ultra Mare 1. If they be born in any Dominion of the Kings when he is actually King of England 2. If they be made inheritable by Act of Parliament in England as by naturalization there 3. If they be born Subjects to a Prince holding his Kingdom or Territories as Homager and Liegeman to the King of England Calvins Case f. 21. b. during the time of his being Homager So the Welch were inheritable in England before 12 Ed. 1. though Subjects to the Princes of Wales who were Homagers to the King of England So were the Scotch in Edward the First 's time during the King of Scotlands Homage to him and to other Kings of England as long as it continued And that is the reason of the Case in 14. of Eliz. in the Lord Dyer Dyer 14 Eliz. f. 304. pl. 51. where a Scotch-man being arraign'd for a Rape of a Girl under Seven years of Age and praying his Tryal per medietatem Linguae because he was a Scot born it was denied him by the Opinion of the Iudges of both Benches for that among other reasons a Scot was never accounted an Alien here but rather a Subject So are the words of the Book But they did not consider that the Homage was determined then as it was consider'd after in Calvin's Case when only the Postnati of Scotland were admitted inheritable in England Vpon the same ground one Magdulph Subject to the King of Scots appeal'd from his Iudgment to Edward the First Pl. Parl. 21 E. 1. f. 152. 157. ut Superiori Domino Scotiae But this is to be understood where such Prince is Homager Subjectionis and not only Infeodationis for another King may hold of the King of England an Island or other Territory by Tenure and not be his Subject 4. If the King of England enter with his Army hostilly the Territories of another Prince and any be born within the places possessed by the Kings Army and consequently within his Protection such person is a Subject born to the King of England if from Parents Subjects and not Hostile 5 Eliz. Dyer f. 224. pl. 29. So was it resolved by the Iustices 5 Eliz. That one born in Tourney in France and conquered by Henry the Eighth being a Bastard between persons that were of the King's liegeance was enabled to purchase and implead within the Realm and was the same as if a French-man and French-woman should come into England and have a Son born there The like law if he had been born of French Parents in Tourney for it was part of the Dominions belonging to England pro tempore as Calice was Those under the King's Power as King of England in another Prince his Dominions are under his Laws Fleta l. 2. c. 3. 14 E. 1. King Edward the First being at Paris 14 E. 1. one Ingelram de Nogent stole silver Dishes in the King's House there and after dispute about his Tryal with the King of France and his Council he was convicted before the Steward of the King of England's House and executed though the Felony was done in France in Aliero Regno Fleta l. 2. c. 3. 12 E. 1. So Edmund de Murdak brought an Appeal in Gascoigne coram Seneschallo Hospitii Regis Angliae against one William de Lesnes of Robbery done to him 12 E. 1. infra metas Hospitii Regis infra quas invenit ipsum And the Defendant non potuit appellum illud per exceptionem alterius Regni declinare 1. Regularly who once was an Alien to England cannot be inheritable there but by Act of Parliament which is Common Experience But Ramsey was an Alien to England being Antenatus of Scotland and therefore cannot inherit here but by Act of Parliament If it be said there is an Exception to that viz. unless he be naturalized in Ireland that Exception must be well prov'd not suppos'd For the Question being Whether one naturalized in Ireland do thereby become as a Native of England must not be resolv'd by saying That he doth become as a Native of England otherwise it is prov'd only by begging the Question 2. The being no Alien in England belongs not to any made the King of Englands Subject by Act of Law when he is King of England but to such as are born so Natural legitimation respecteth actual Obedience to the Soveraign at the time of the birth Calvins Case f. 27. for the Antenati remain Aliens because they were born when there were several Kings of the several Kingdoms not because they are not by act of law afterwards become Subjects to the King of England by the Union of the Crowns But he that is naturaliz'd in Scotland or Ireland is not a Subject born to the King of England but made by a subsequent Act in law 3. And chiefly the manner of subjection of a Stranger naturaliz'd in Scotland or Ireland doth exactly agree with that of the Antenatus and not of the Postnatus For 1. The Antenatus was another Prince his Subject before he was the King of Englands 2. The Antenatus might have been an Enemy to England by a war between the several Kings before the Vnion So a Stranger naturalized in Scotland or Ireland was the natural Subject of some other Prince necessarily before he was naturaliz'd and then might have been an Enemy to the King of England by a war between his natural Soveraign and the King of England before he was naturalized But the Postnatus was never subject to any before he was the King of Englands nor ever in possibility of being an enemy to England both which are the properties of subjection in the native English Subject and is the reason why the Postnatus in England is as the Natives of England No fiction of Law can make a man a Natural Subject that is not for a Natural Subject and a Natural Prince are
under such unlawful marriage should be illegitimate And if any such marriages were in any the Kings Dominions without Separation that there should be a separation from the Bonds of such unlawful marriage Now we must observe the Act of 1 2 Phil. Mar. c. 8. doth not repeal this Act entirely of 28 H. 8. c. 7. but repeals only one Clause of it the words of which Clause of Repeal are before cited and manifest this second Clause of the Act of 28 H. 8. and not the first to be the Clause intended to be repeal'd For there was no reason to repeal the Clause declaratory of marriages prohibited by Gods Law which the Church of Rome always acknowledged nor do the words of Repeal import any thing concerning marriages within degrees prohibited by Gods Law But as the time then was there was reason to repeal a Clause enacting all Separations of such marriages with which the Pope had dispenc'd should remain good against his Authority and that such marriages with which he had dispenc'd not yet separated should be separate And the words of the Clause of Repeal manifest the second Clause to be intended viz. All that part of the Act made in the said Eight and twentieth year of King Henry the Eighth which concerneth a prohibition to marry within the degrees expressed in the said Act shall be repeal'd c. As it is true That if a marriage be declared by Act of Parliament to be against Gods Law we must admit it to be so for by a Law that is by an Act of Parliament it is so declared By the same reason if by a lawful Canon a marriage be declared to be against Gods Law we must admit it to be so for a lawful Canon is the Law of the Kingdom as well as an Act of Parliament And whatever is the Law of the Kingdom is as much the Law as any thing else that is so for what is Law doth not suscipere magis aut minus But by a lawful Canon of this Kingdom which is enough and not only so but by a Canon warranted by Act of Parliament the marriage in question is declared to be prohibited by Gods Law therefore we must admit it to be so In a Synod or Convocation holden at London in the year 1603. for the Province of Canterbury by the Kings Writ and with the Kings Licence under the Great Seal of England to treat consult and agree of such Canons and Constitutions Ecclesiastick as should be there thought fit Several Canons were concluded and agreed To which King James gave his Royal Assent and Approbation and by his Letters Patents ratified and confirmed them according to the form of the Statute made in 25 H. 8. c. 19. and commanded the due observance of them Among which the Ninety ninth Canon is No person shall marry within the degrees prohibited by Gods Law and expressed in a Table set forth by Authority in the year of our Lord 1563. and all marriages so made and contracted shall be adjudged incestuous and unlawful and the aforesaid Table shall be in every Church publickly set up and fixed at the charge of the Parish Which is the same as No person shall marry within the degrees prohibited by Gods Law and which degrees are expressed in the Table c. For to the Question What is expressed in the Table there can be no Answer but the degrees prohibited by Gods Law But by this Table this marriage in question is expressed to be in a degree prohibited by Gods Law therefore it must be admitted to be so Another consequent is this That by this Canon and consequently by the Law of this Kingdom All marriages prohibited by that Table are declared to be within the degrees prohibited by Gods Law Note That any marriage unlawful by holy Scripture is declared here to be against Gods Law Judicially no otherwise than because by the Law of the Land the Scripture it self is declared and approved to be the Law of God for the Scripture cannot judge it self to be Scripture without some Judicature Therefore by the sixth Canon tempore Ed. 6. at a Convocation in London Anno 1552. the Authority of the Old Testament was declared Can. 1552. At a Convocation of both Provinces in London Anno 1562. the Canonical and Apocryphal Books of the Old Testament were particularly enumerated Can. 1563. and the Books of the New declared Canonical as Receiv'd By the seventh Canon the Authority of the Old Testament Declared By the Act it is said That the Clergy of this Kingdom nor any of them shall henceforth enact promulgate or execute any Canons Constitutions or Ordinances Provincial by whatsoever name or names they may be called in their Convocations in time coming which shall always be assembled by Authority of the Kings Writ unless the same Clergy may have the Kings most Royal Assent and Licence to make promulge and execute such Canons Constitutions and Ordinances Provincial c. The Chief Justice delivered the Resolution of the Court And accordingly a Consultation was granted In Camera Scaccarii Edward Thomas Plaintiff Thomas Sorrell Defendant THE Plaintiff by Information in the Kings Bench tam pro Domino Rege quam pro seipso demands of the Defendant Four hundred and fifty pounds for selling Wine in the Parish of Stepney in the County of Middlesex by Retail Ninety several times between the Tenth day of June the Seventeenth of the King and the Two and twentieth day of May the Eighteenth of the King to several persons without licence contrary to the Statute of 12 Car. 2. whereby he forfeited Five pounds for every several offence which amounts to Four hundred and fifty pounds The Defendant pleads Nil debet and therefore puts himself upon the Country The Iury find That as to all the Debt except Fifty pounds the Defendant owes nothing And as to the Fifty pounds they find the Statute of 7 E. 6. c. 5. concerning retailing of Wines prout in the Statute They find Letters Patents under the Great Seal dated 2 Febr. 9 Jac. _____ prout in the Letters Patents whereby King James incorporated the Company of Vintners in the City of London by the Name of Master Warden Freemen and Commonalty of the Mystery of Vintners in the said City and thereby among other things granted for him his Heirs and Successors to the said Master Warden and Freemen of the said Company and their Successors that they might always after within the said City and Suburbs of the same and within three Miles from the Walls or Gates thereof and in all and every other City and Sea-ports called Port-towns within the Kingdom of England and in all other Cities and Towns known by the name of Thorough-fare-towns where Posts were set and laid between Dover and London and between London and Barwick where any of the Freemen of the said Mystery did or should happen to dwell and keep a Wine Tavern and by themselves or servants sell Wine by
in time is 11 Jac. in Debt upon a Bond the Action was laid in the County of Hereford upon Nil debet pleaded the Plaintiff had Judgment and Execution and a Writ to the Sheriff of the County of Radnor to levy Execution who did not but made his Retorn That breve Domini Regis non currit there Qu. How an Action of Debt could be laid in Hereford which must be by Original unless the party were in Custodia Mariscal and declared upon a Bond in the County of Hereford Coke the Chief Justice said before the Statute of 27 H. 8. c. 26. which annexed Wales and England doubt might have been in that Case but since the Statute 27 H. 8. it was clear and grounded himself upon a Case in 13 E. 3. of which more anon In this Case the Court did agree That the Writ of Execution did well go into Wales and amerced the Sheriff 10 l. for his had Retorn In this Case Dodridge agreed with Coke and said If the Law should be otherwise all the Executions in England would be defeated This was a Resolution upon some Debate among the Judges of the Court but upon no Argument at Barr for any thing appearing Per Doderidge If Debt be brought against one in London 16 Jac. B.R. Croke 484. and after the Defendant removes and inhabits in Wales a Capias ad satisfaciendum may be awarded against him into Wales or into any County Palatine and this was his Opinion exactly in the former Case But as the course of the Common Pleas was alledged to be contrary to what Mann said was used in the King Bench in the Case of Hall Rotheram 10 Jac. before cited so It was in the same year 11 Jac. wherein the Kings Bench resolved That Execution did well issue to the Sheriff of the County of Radnor of a Recovery in Debt in the Kings Bench and fin'd the Sheriff for his Retorn that breve Domini Regis non currit in Wallia Resolved otherwise in the Common Pleas 11 Jac. Godbolt f. 214. and that by the whole Court That a Fieri facias Capias ad Satisfaciendum or other Judicial Process did not run into Wales but that a Capias utlagatum did go into Wales and as Brownloe Pronotary then said that an Extent hath gone into Wales And it is undoubtedly true as to the Capias utlagatum and Extent but as to all other Judicial Process into Wales upon Judgments obtained here between party and party hitherto there is nothing to turn the Scale The Judgment of the Court of Common Pleas being directly contrary to that of the Kings Bench in the same age and time Vpon occasion of a Procedendo moved for to the Council of the Marches who had made a Decree Bendloes Rep. 2 Car. 1. Term. Mich. f. 192. Beatons Case That some persons living in the English Counties where they at least exercised Jurisdiction should pay monies recovered against him at a great Sessions in Wales he having neither Lands or Goods nor inhabiting in Wales having obtained a Prohibition to the Council of the Marches the Court of the Kings Bench was against the Procedendo No time is mentioned when this Resolution cited by Jones was so as i◠probably preceded the Resolutions of the Judges in Crooke And Justice Jones cited a Case where Judgment was given in the great Sessions of Cardigan against a Citizen of London who then inhabited there and after removed his Goods and Person thence that upon great deliberation it was resolved A Certiorari should issue out of the Chancery to remove the Record out of Wales and that then it should be sent by Mittimus into the Kings Bench and so Execution should be awarded in England of the Judgment had in Wales If this were so for which there is no other Authority but that Justice Jones cited such a Case not mentioning the time I agree it would seem strange that a Judgment obtained in Wales should by Law be executed in England and that a Judgment obtained in England could not be executed in Wales Cr. 2 Car. 1. f. 346. But in the same year in Easter Term before at an Assembly of all the Iustices and Barons it was resolved where Judgment was given in Debt at the great Sessions in Wales against a Defendant inhabiting there and the Defendant dying intestate one who inhabited in London taking Administration This Case is in the point for a Scire facias to have Lands in Wales must be against the Heir inhabiting in England but having Lands in Wales that Execution could not be in Wales because the Administrator inhabited not there nor a Certiorari granted out of the Chancery to remove the Record that so by Mittimus it might be sent to the Kings Bench or Common Pleas to take forth a Scire facias upon it to have Lands out of Wales or Goods in the Administrators hands liable to it there This was the Resolution of all the Justices and Barons for these Reasons First by this way all Judgments given in London or other inferior Jurisdictions would be removed and executed at large which would be of great inconvenience to make Lands or Goods liable to Execution in other manner than they were at the time of the Judgment given which was but within the Jurisdiction Secondly It would extend the Execution of Judgments given in private and limited Jurisdictions as amply as of Iudgment given at the Kings Courts at Westminster By this Resolution a Judgment given in Wales shall not be executed in England out of their Jurisdiction of Wales and à pari a Judgment given in England ought not to be executed in Wales which is out of the Jurisdiction of the English Courts more than a Judgment given in the Kings Bench or Common Pleas ought to be executed in Ireland or the Islands which are out of their Jurisdiction equally and upon the same grounds for any thing deducible from these Cases which was never pretended that it could be done And by that Case of Coke 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 Nor is it material to say the Judgments then given are of no effect no more than to say Judgments given in the Kings Courts are of no effect against an Irish-man Dutch-man or Scotch-man that hath no Lands or Goods in England liable to Execution by that Judgment For the Plaintiff commencing his Suit ought to be conuzant what benefit he might have from it Nor are Presidents of Fact which pass sub silentio in the Court of Kings Bench or Common Pleas in such Cases to be regarded For Processes issue out of the Offices regularly to the Sheriffs of the County whereupon the Testator the Person Goods or Lands are said to be without distinction of places within or without the Jurisdiction
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
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
Case the Executor opposed the Action by offering to demurr and for any thing appearing he did so in the first 41 E. 3. f. 13. The other Case is 41 E. 3. f. 13. where an Action upon the Testators simple Contract was brought against an Executor and the Executor of a Co-executor to him the Writ was abated for that Reason and said withal There was no Specialty shewed but the first reason abating the Writ necessarily it no waies appears the Iudges would ex officio have abated the Action for the last Cause if the Executor desired it not So as when the Executor or Administrator hath once pleaded to an Action of Debt upon a single Contract he is equally bound up for the event as in any Action wherein the Testator or Intestate could not have waged Law It is therefore an ill Consequence for the Plaintiff to say I have brought an Action upon a simple Contract wherein the Intestate could not have waged his Law Therefore I must be paid before another Creditor by simple Contract bringing an Action wherein the Intestate might wage his Law for it is in the Administrators power by omitting to abate the Writ at first to make the Debt demanded by Action in which the Intestate might have waged his Law to be as necessarily and coercively paid as the other Debt demanded by Action wherein he could not wage his Law And if the Executor believes the Debt by simple Contract demanded by Action of Debt to be a just Debt it is against honesty conscience and the duty of his Office to demurr whereby to delay or prevent the payment of it Besides though since that illegal Resolution of Slade's Case grounded upon Reasons not fit for a Declamation much less for a Decision of Law The natural and genuine Action of Debt upon a simple Contract be turned into an Action of the Case wherein a man is deprived of waging his Law It is an absurd Opinion to think that therefore Debt demanded by it ought to have precedency for payment of a Debt due by simple Contract but quite the contrary For Actions of the Case are all Actiones injuriarum contra pacem and it is not a Debt certain in reason of Law that can be recovered by those Actions but damage for the injury ensuing upon the breach of promise which cannot be known until a Iury ascertain what the damage is Therefore a man did never wage his Law for a demand incertain for he could not make Oath of paying that which he knew not what it was as consisting in damage Now although the Iury give in damages regularly the money promised to be paid yet that changeth not the reason of the Law nor the form for still it is recovered by way of damage and not as a Debt is recovered Which shew the Action much inferiour and ignobler than the Action of Debt which by the Register is an Action of property and no reason a damage uncertain in its own nature should be paid before a certain Debt by simple Contract which were the first Debts and will probably be the last of the World for Contracts by writing were much later and there are many Nations yet where Letters are unknown and perhaps ever will be And that which is so commonly now received That every Contract executory implies a promise is a false Gloss thereby to turn Actions of Debt into Actions on the Case For Contracts of Debt are reciprocal Grants A man may sell his black Horse for present mony at a day to come and the Buyer may the Day being come seize the Horse for he hath property then in him which is the reason in the Register that Actions in the Debet and also in the Detinet are Actions of Property but no man hath property by a breach of promise but must be repair'd in damages The last Exception was That a Recognizance in the nature of a Statute Staple of 2000 l. in the Chancery is pleaded in Barr. And it is not said That it was per scriptum Obligatorium or seal'd as the Statute of 23 H. 8. requires nor that it was secundum formam Statuti Cr. 10 Car. 1. f. 362. Goldsmiths Case versus Sydnor And Goldsmith and Sydnors Case was urg'd to be adjudg'd in the point which Case is so adjudg'd by the Major part of the Court. But in that Case it is pleaded that Sydnor before the Chief Justice of the Common Pleas concessit se teneri Ed. Hobert in 400 l. to be paid at Pentecost next ensuing si defecerit c. voluit concessit per idem scriptum quod incurreret super se haeredes Executores poena in Statuto Stapulae So as it appears The Recognizance was taken before the Chief Justice of the Common Pleas and that the Conuzor was to incurr the penalty of the Statute Staple and therefore a Recognizance in the nature of a Statute Staple was there intended to be pleaded but it was not pleaded that it was taken secundum formam Statuti in general nor specially per scriptum Obligatorium under Seal as it ought to be But here it is not pleaded That the Conuzor was to incurr the penalty of the Statute Staple nor that it was taken before any person authorized to take a Recognizance in the nature of a Statute Staple by the Statute of 23 H. 8. c. 6. for the Chancellor is not so authorized But that it was a bare Recognizance entred into in the Court of Chancery which all Courts of Westminster have power to take and that it remains there inroll'd And that the said Sum of Two thousand pounds should for default of payment be levied of the Conuzors Lands Goods and Chattels and Execution of such Recognizances are to be made by Elegit of the Lands as well as Goods And it appears by the Statute of Acton Burnell 13 E. 1. which is the Law for the Statute Merchant That such Recognizances for Debt were before the Statute Merchants taken by the Chancellor the Chief Justices and Judges Itinerant but the Execution of them not the same as of the Statute Merchant nor are they hindered by that Statute from being as before expresly And in 4 Mariae upon a great search of Presidents Br. Recognizance p. 20. Hill 4 Mar. It was resolv'd That every Iudge may take a Recognizance in any part of England both in Term and out of Term. The like Resolution was in the Lord Hobart's time Hob. f. 195. Hall Wingfields Case So as the Recognizance here pleaded is not a Recognizance in the nature of a Statute Staple nor so pleaded but a Recognizance entred into in the Court of Chancery as Recognizances are entred into in the Court of Common Pleas or Kings Bench and as they were entred before Recognizances by Statute Merchant or Staple But Such Recognizances are to be satisfied before Debts by simple Contracts and before Debts by Obligations also Rolls Executors f. 925.
ipso facto but after six Months after notice of such deprivation given by the Ordinary to the Patron By these Clauses immediately upon not reading the Articles according to the Statute the Incumbent is depriv'd ipso facto And the Patron may presently upon such Deprivation present if he will and his Clerk ought to be admitted and instituted but if he do not no lapse incurrs until after six months after notice of the Deprivation given to the Patron by the Ordinary who is to supply the Cure until the Patron present Another Clause of the Statute is No person shall hereafter be admitted to any Benefice with Cure except he then be of the Age of Three and twenty years at the least and a Deacon and shall first have subscribed the said Articles in the presence of the Ordinary c. And relative to this Clause there is a third That all Admissions to Benefices Institutions and Inductions of any person contrary to any provision of this Act shall be utterly void in Law as if they never were Now though the Church of Wringlington became void immediately of what value soever it were by admission and institution of the Defendant into the Church of Elme by the ancient Canon Law receiv'd in this Kingdom which is the Law of the Kingdom in such Cases if the Patron pleas'd to present And for that the Patron accordingly did within a month after the Defendants Admission and Institution into the Rectory of Elme present his Clerk Hugh Ivy to the Church of Wringlington who was thereto Admitted Instituted and Inducted within that time which was a month before the Defendant was depriv'd for not reading the Articles in the Church of Elme Whereby any Interest the Defendant had to Wringlington was wholly avoided as the Case is Yet if the Church of Wringlington had been under value and the Patron had not presented to it his Clerk before Higden's Deprivation of the Church of Elme he might not have still continued Parson of Wringlington as if never Admitted Instituted or Inducted to the Rectory of Elme But if he had not subscribed the Articles before the Ordinary upon his Admission and Institution to the Rectory of Elme he had never been Incumbent of Elme and consequently never accepted a second Benefice to disable him of holding the first And so it is resolv'd in the last Case of the Lord Dyer 23 of the Queen where a man having a Living with Cure under value accepted another under value also having no Qualification or Dispensation and was Admitted Instituted and Inducted into the Second but never subscribed the Articles before the Ordinary as the Statute of 13. requires Vpon question whether the first Living vacavit per mortem of him or not the Court resolv'd That the first Living became vacant by his death and not by accepting the second because he was never Incumbent of the second for not subscribing the Articles before the Ordinary whereby his Admission Institution and Induction into the second Living became void as if they had never been This Case was urg'd at the Barr for the Defendant as if his not reading the Articles within two months after his Induction into Elme had still as in the Lord Dyers Case left him Incumbent of the first Living But that was mistaken for not subscribing the Articles made that he never was Incumbent of the second Living and consequently then there was no cause to lose the first But the Defendant having subscribed the Articles upon his Admission and Institution was perfect Incumbent pro tempore of the second Living and thereby lost the first and afterwards lost the second for not reading the Articles within two months after his Induction so as he was compleat Incumbent by Admission Institution and Induction of the second Living full two months before he lost it It was upon this Clause of the Statute smartly urg'd by my Brother Baldwyn That if the Statute makes the Defendants Admission Institution and Induction to the second Living void as if they had never been For what reason doth he not still retain his first The Answer is as before 1. That his not retaining the first is no effect nor consequent of his losing the second But the first was lost because he accepted a second and the right Patron thereupon presented to the first so as he lost the first whilst he was and for being lawful Incumbent of the second And therefore could be no effect nor consequent at all proceeding from his loss of the second by not reading the Articles after more than if he had lost the second by Deprivation for Heresie or other cause 2. The Clause of 13. is not That all Admissions Institutions and Inductions to Benefices where any person is depriv'd by virtue of that Act shall be void as if they never were for so should the Clause have been to warrant the Objection made at the Barr. But the Clause is That all Admissions Institutions and Inductions made contrary to any provision of the Act shall be void as if they never were But Higden's Admission Institution and Induction to the Church of Elme was not contrary to any provision of the Act but every way legal but had he not subscribed the Articles before the Ordinary then his Admission Institution and Induction had been contrary to the provision of the Act and so void as if they never were The Chief Justice delivered the Opinion of the Court and Judgment was given for the Plaintiff Bushell's Case THE King 's Writ of Habeas Corpus Dat. 9 die Novembris 22 Car. 2. issued out of this Court directed to the then Sheriffs of London to have the Body of Edward Bushell by them detained in Prison together with the day and cause of his Caption and Detention on Friday then next following before this Court to do and receive as the Court should consider as also to have then the said Writ in Court Of which Writ Patient Ward and Dannet Foorth then Sheriffs of London made the Retorn following annex'd to the said Writ That at the Kings Court of a Session of Oyer and Terminer held for the City of London at Justice Hall in the Old Baily London in the Parish of St. Sepulchres in Farringdon Ward without London on Wednesday 31 die August 22 Car. 2. before Sir Samuel Sterling then Mayor of London and divers other his Majesties Justices by virtue of his Majesties Letters Patents under the Great Seal of England to them any four or more of them directed to enquire hear and determine according to the tenor of the said Letters Patents the Offences therein specified And amongst others the Offences of unlawful Congregating and Assemblies within the limits appointed by the said Commission within the said City as well within Liberties as without Edward Bushel the Prisoner at the Barr was committed to the Goal of Newgate to be there safely kept under the Custody of John Smith Knight and James Edwards then Sheriffs of the said City
by the party This difference is very material for if the Father could devise the Land in trust for him until his Son came to One and twenty as he can grant the Custody then as in other Cases of Leases for years the Land undoubtedly should go to the Executor or Administrator of him whom the Father named for the tuition and the trust should follow the Land as in other Cases where Lands are convey'd in trust But when he cannot ex directo devise the Land in trust then the Land follows the Custody and not the Custody the Land and the Land must go as the Custody can go and not the Custody as the Land can go Coke Litt. f. 49. a. 1 H. 7. 28. 8 H. 7. 4. As where a House or Land belongs to an Office or a Chamber to a Corody the Office or Corody being granted by Deed the House and Land follows as incident or belonging without Livery because the Office is the principal and the Land but pertaining to it A second Consideration is That by this Act no new custody is instituted but the office of Guardian as to the duty and power of the place is left the same as the Law before had prescrib'd and setled of Guardian in Soccage But the modus habendi of that office is alter'd by this Act in two Circumstances The first 1. It may be held for a longer time viz. to the Age of the Heir of One and twenty where before it was but to Fourteen 2. It may be by other persons held for before it was the next of Kindred not inheritable could have it now who the Father names shall have it So it is as if an Office grantable for life only before should be made grantable for years by Parliament or grantable before to any person should be made grantable but to some kind of persons only The Office as to the Duty of it and its essence is the same it was But the Modus habendi alter'd If therefore this new Guardian is the same in Office and Interest with the former Guardian in Soccage and varies from it only in the Modus habendi then the Ward hath the same legal Remedy against this Guardian as was against the old But if this be a new Office of Guardianship differing in its nature from the other the Heir hath no remedy against him at all in Law For though this new Guardian be enabled to have such Actions as the old might have yet this Act enables not the Heir to have like Actions or any other against him as he might against the Guardian in Soccage The Intent of this Statute is to priviledge the Father against common right to appoint the Guardian of his Heir and the time of his Wardship under One and twenty But leaves the Heirs of all other Ancestors Wards in Soccage as before Therefore I hold 1. That such a Special Guardian cannot transferr the Custody of the Ward by Deed or will to any other 2. That he hath no different Interest from a Guardian in Soccage but for the time of the Wardship 1. When an Act of Parliament alteâ—s the Common Law the meaning shall not be strained beyond the words except in Cases of publick Vtility when the end of the Act appears to be larger than the enacting words But by the words the Father only can appoint the Guardian therefore the Guardian so appointed cannot appoint another Guardian 2. The Mother hath the same concern for her Heir as the Father hath But she cannot by the Act name a Guardian therefore much less can the Guardian named by the Father 3. The Father cannot by the Act give the custody to a Papist but if it may be transferr'd over by him whom the Father names or by Act in Law go to his Executor or Administrator it may come to a Papist against the meaning of the Act. 4. Offices or Acts of personal Trust cannot be assign'd for the Trust is not personal which any man may have Dyer 2 3 Eliz. f. 189. b. 5. At the Common Law none could have the Custody and Marriage of a mans Son and Heir apparent from the Father yet the Father could not grant or sell the Custody and Marriage of his Heir apparent though the marriage was to his own benefit as was resolved by the greater number of the Iudges in the Lord Bray's Case who by Indenture had sold for Eight hundred pounds the Custody and Marriage of his Son and Heir apparent in the time of Henry the Eighth to the Lord Audley Chancellor of England Lord Cromwell Lord Privy Seal Sir William Paulett Treasurer of the Houshold The Marquis of Winchester Lord Treasurer Dyer supra f. 190. b. pl. 19. The Reason given is That the Father hath no Interest to be granted or sold to a Stranger in his eldest Son but it is inseparably annex'd to the person of the Father Two Judges differ'd because an Action of Trespass would lye for taking away a mans Heir apparent and marrying him whence they conclude he might be granted as a Chattel 11 H. 4. f. 23. a. Fitz. N. Br. Tresp f. 90. b. Lett. G. f. 89. Lett. O. But an Action of Trespass will lye for taking away ones Servant For taking away a Monk where he was cloyster'd in Castigationem Pro Uxore abducta cum bonis Viri yet none of these are assignable West 1. c. 48. By the Statute of Westminster the First If the Guardian in Chivalry made a Feoffment of the Wards Lands in his Custody during his Minority the Heir might forthwith have a Writ of Novel Disseisin against the Guardian and Tenant and the Land recover'd should be deliver'd to the next of kinn to the Heir to be kept and accompted for to him at his full Age. This was neither Guardian in Soccage nor Chivalry Coke 2. Inst f. 260. b. By 4 5 P.M. c. 8. No woman child under 16. can be taken against his will whom the Father hath made Guardian by Deed or Will yet this is no Lease of the Custody till 16. nor is it assignable Ratcliffs C. 3. Rep. Shoplands C. 3 Jac. Cr. f. 99. but a special Guardian appointed by the Statute and such a Guardian could not assign over nor should it go to his Executors by the Express Book This Case likewise and common Experience proves That Guardian in Soccage cannot assign nor shall the Custody go to his Executors though some ancient Books make some doubt therein For expresly by the Statute of 52 H. 3. the next of kin is to answer and be accomptable to the Heir in Soccage as this special Guardian is here by Westminster the First These several sorts of Guardians trusted for the Heir could neither assign their Custody nor did it go to their Executors because the Trust was personal and they had no Interest for themselves The Trust is as personal in this new Guardian nor hath he any Interest in it for himself and
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