word Districtionem for Destructionem altering the sense of the Statute of Gloucester although but by one letter adjudged it was matter of substance and the Writ could not be amended Cokes 5 Rep. 45. Freeman's Case The Acts of 7 Hen. 7. and 3 Hen. 8. are perpetual Acts for the word King doth include all his Successors Cokes 6 Rep. 27. Case of Soldiers Althô the Statutes speak only of the Party yet Executors and Administrators shall take advantage of it Cokes 6 Rep. 80. Sir Edw. Phitton's Case Resolved in Englefield's Case That by tender of the Ring according to the Condition the Uses were void and the Estate vested in the Queen by force of the Attainder and of the Act 33 H. 8. Cokes 7 Rep. 15. In the case of the Prince the King's Charter having the Force of Parliament is sufficient in it self without any other Act for it is affirmed by Parliament by Stat. 9 H. 5. That it was agreed at the Parliament 11 Ed. 3. That the eldest Sons of the Kings of England were Dukes of Cornwal and that Dutchy should remain to them without being given else where Cokes 8 Rep. Case of the Prince from 25 to 29. In many cases the Common Law doth comptrol Acts of Parliament and sometimes shall adjudge them void For when an Act of Parliament is against common Right and Reason or repugnant and impossible to be performed the Common Law shall adjudge it void Cokes 8 Rep. 118. Dr. Bonham's Case and 128 129 Case of the City of London When an Act of Parliament maketh any Coveyance good against the King or other Person certain it shall not take away the Right of any other althô there be not any saving in the Act Cokes 8 Rep. Sir Francis Barington's Case 138. In case of Sentence of Deprivation of one and Presentment Institution and Induction of another after by relation of a General Pardon all are restored without Appeal or new Presentation Admission or Institution Cokes 9 Rep. Lord Sanchar's Case In an Act of Parliament misnaming of a Corporation when the express meaning appeareth shall not avoid the Act no more than in a Will Cokes 10 Rep 54 to 57. Case of the Chancellor of Oxford If an Act of Parliament were intended to Repeal a former Act it could not be by general and doubtful words Cokes 10 Rep 138. the Case of Chester Mills It cannot be intended that a Statute made by Authority of the whole Realm should do any thing against Truth Cokes 11 Rep. 14. Priddle and Napper's Case The Title of the Act is no part of the Act as the preamble is and Penal Statutes shall be taken by intendment to remedy mischiefs and suppress Crimes Cokes 11 Rep. 34. Powlter's Case Penal Statutes are to be followed chiefly in Informations strictly and in terminis according to the purview of the Act Cokes 11 Rep. 56. Dr. Forster's Case Where the Rule is Leges Posteriores priores contrarias abrogant countrarium est duplex Vide Cokes 11 Rep. 63. Dr. Foster's Case Statut ' Praerogativa Regis saith The King shall have Annum Diem Vastum which is as much as to say he shall have the Trees c. to his own disposition Cokes 11 Rep. 83. Levis Bowles's Case By Stat. 4. Ed. 3.14 A Parliament shall be holden once a year and oftner if need be By Stat. 36 Ed. 3.10 A Parliament shall be holden every year By Stat. 5 R. 2. Stat. 2.4 Every Person and Comminalty having Summons of Parliament shall come thither in pain to be amerced or otherwise punished and if the Sheriff doth not Summon them he shall be likewise amerced or otherwise punished as hath been used in times past What persons are to be Elected Knights Citizens and Burgesses to serve in Parliament the manner of their Election and Levying of their Expences and the divers Acts of Parliament for regulating their Elections you may see in the Statutes at large By Stat. 6 Hen. 8.16 No Knight Citizen Burgess or Baron of any of the Cinque-Ports shall depart from the Parliament without License of the Speaker and Commons in Parliament assembled to be entred upon Record in the Clerk of the Parliaments Book on pain to lose their Wages By Stat. 33. H. 8.21 The Kings Royal Assent by his Letters Patents under the Great Seal and Signed by his Hand and notified in his absence to the Lords and Commons assembled in the upper House is and ever was of as good strength and force as if the King were personally present and had publickly assented thereunto By Stat. 12 Car. 2. cap. 1. It 's declared That the Parliament begun the 3d of November 16. Car. 1. is dissolved and that the Lords and Commons now sitting are the two Houses of Parliament notwithstanding any want of the Kings Writs of Summons or any other defect Stat. 16 Car. 2 cap. 1. The sitting and holding of Parliament shall not be intermitted above three years and now a new Parliament is to be called every Three years Stat. 6 W. M. Stat. 30 Car. 2. cap. 1. No Peer shall Vote make Proxy or Sit during any Debate in the House of Peers nor any Member of the House of Commons Vote or Sit there after their Speaker Chosen till they first take the Oaths of Allegiance and Supremacy and Subscribe and Repeat the Declaration in the Act mentioned between the hours of nine in the Morning and four in the afternoon at the Tables in the middle of the said Houses in a full House in such order as each House is called over for which Declaration and other Matters see the Statute at large But now those Oaths by late Acts are altered and others appointed in their stead Tbe Executive Power in Temporal Affairs A Brief account having been given of the Parliament in which is comprehended the Legislative power in Temporal Affairs We are next to consider the Executive power in the same and that is generally in the King he being the Fountain of Justice and Lord Chief Justice of Englaâ—d and because he is Caput Principium Finis Parliamenti by which the Laws are made and nothing can have the force of Law without his consent given in Parliament by Le Roy le veut therefore All the Laws of England are called the Kings Laws All the Courts of Judicature are called the Kings Courts And all the Judges of these Courts are called the Kings Judges And the High Court of Parliament being the Highest Court of Judicature all other Courts and Person in England are subject to it The Court of the High Steward of England HIs Stile is Seneschallus Angliae which word Seneschallus hath several Derivations yet as being applied to England it is properly derived from Sen that is Justice and Schale that is Governour or Officer that is Praefectus seu Officiarius Justitiae And this agreeth well with his Authority and Duty to proceed Secundum Leges Consuetudines Angliae This Office is very ancient and
and out of Sessions We shall only make some short and brief Remarks and Observations thereupon As First He that is named in the Commismission of the Peace under the Great Seal is certainly a Justice of Peace Such of these in whom the King more particularly confideth are called Justices of the Quorum Their Office and Duty is to be considered that some Things cannot be done without Two Justices and in some cases One or Two must be of the Quorum and when a Statute appointeth a thing to be done by Two Justices if the Offence be against the Peace one may grant a Warrant to bring the Offender before these Two Justices or may take Bail for his Appearance at the next Sessions or he may bind him to the Good Behaviour and so to appear at the next Sessions but he may not determine the Matter alone And whatever one Justice may do may ever be done by more And they may be punished for their Neglect Any Justice may require any number of Men to assist him in his Duty for apprehending all Felons Murderers and the like and such as are able must obey them or they may be bound to the Good Behaviour or Fined for their Disobedience But he cannot give Warrant to break open any mans House to Search for a Felon or stolen Goods upon a bare Surmise A Justice of Peace may do all that a Constable or Private person may do touching Keeping the Peace by Common Law They are in the Room of the Ancient Conservators of the Peace and have the same power they had Where a Statute giveth a power in general of any Offence and doth not mention where it is to be done it cannot be done out of the Sessions of the Peace but if it give power to do a Special thing it may be done out of any Sessions They must act cautiously in Execuing the power given them by Acts of Parliament and see that they strictly pursue it and therefore must observe the words of the Statutes which are penned diversly and consider if they are not Repealed The Justices have power in small Offences or Trespasses to appoint such Recompence as he shall think fit and if he judge him unable or if he do not make and pay such Satisfaction he may order him to be Whipp'd and for the second Offence he may order him to be bound to the Good Behaviour or send him to the House of Correction If the Offender be able he must bear the Charge of himself and those who convey him to Prison or otherwise the Justice may give Warrant to levy it upon his Goods Any one Justice may compel a Man to take Crack'd-Money and may determine all Defaults about Money 19 H. 7.15 17 E. 4.1 6 W. 3. There must be Two or more about dividing of a Wood being appointed thereunto by the Sessions upon the Lord's Complaint 35 H. 8.7 13 E. Any Justice of Peace may require such as are between 15 and 60 years of Age to be Sworn to Keep the Peace There must be Two Justices one Quorum to give the Sheriff and his Bayliffs and Deputies their Oaths and this Exì officio without Commission otherwise of a Special Bayliff See 27 Eliz. 12. Recognizances must be Certified next Assizes or Sessions 5 6 Ed. 6 25. A Supersedeas out of Chancery is to be certified at the Sessions together with the Recognizance A Certiorari brought before the Day will discharge the Recognizance and this Writ of Certiorari comes from the Chancery If any Officer have a Warrant from a Justice of Peace and shall have a Supersedeas from the Chancery or Kings-Bench or any Justice of Peace of the County and yet urge the party to find Sureties he may refuse to give it and if he arrest him he shall have False Imprisonment against him An Alias Capias or Exigent awarded against one Indicted of Trespass or the like upon Surety found in Chancery may be stayed from thence or the Sheriff commanded not to arrest him or if he be arrested to take Sureties and let him go So when he hath given Sureties Two Justices Quorum unus some say one Justice may grant a Supersedeas The Certiorari to remove the Record is in it self a Supersedeas but a Man may have a Supersedeas to the Sheriff also Supplicavit is a Command out of Chancery or Kings-Bench to bind some one to the Peace or Good Behaviour concerning which Seven things are observable Vide Shepherd's Justice 224. Mittimus is the Warrant to send the Prisoner to Gaol and it must be in Writing under Hand and Seal unless it be by Order of Sessions The Cause must be expressed otherwise it will not be the same Offence in him who suffers an Escape If it be without Bail or Mainprize and yet the Cause expressed is Bailable other Justices may Bail him The Conviction of Offenders by the Common Law is by Indictment and Jury For Trial by Examination and Witnesses is not allowed but where it is at the Discretion of the Justices or so directed by Statute Justices of Peace ought to be cautious for they may be Punished either in the Sessions or by Justices of Assize Their Reward is 4 s. per Diem for themselves and 2 s. per Diem for their Clerks to be paid with their Charges in some Cases out of Fines levied by the Sheriff besides several Fees and other Allowances Vide Shepherd's Justice They shall not be punished for Ignorance c. The Sessions is a Court where the Justices sit for Execution of their Office and there are Two kinds of Sessions The General or Quarter-Sessions for General Execution of their Commission over all their Limits and kept Quarterly viz. In the first Week after Epiphany The first Week after the Clause of Easter The first Week after Translation of St. Thomas the Martyr being the 7th of July And the first Week after St. Michael or more often if need be And in this Court the Justices are Judges of whom there may not be less than Two whereof one of the Quorum And they ought to sit at the most Principal and Chief Towns and where it hath been usually held And all things done before them are of Record against which no Averment lieth And for their several Powers and Jurisdictions besides what is mentioned before you may read the Statutes and Authors at large who treat thereupon To whom we refer and pass on to their Power in The Special Sessions which is of Special use for Ridding the Gaols and other purposes And herein they may take as much and as little business upon them as they please and have unless in some particular cases the same Power as in their Quarter-Sessions And this Special Sessions may be kept at any place and held at any time and as long as the Justices think fit and may be kept by One Justice or more who have like power in many cases with the Justices in or out of their
altho' that Judgment be given to recover the Land in the Common Pleas yet the Land is not Frank-see but remains Ancient Demesne because the beginning and foundation thereof was in Ancient Demesne They may Levy a Fine in Ancient Demesne which by Custom is said to be a Bar of an Estate Tail but certainly that will not hold If the Tenant remove the Plea for the cause mentioned in the Recordare he may come into the Kings Court and Assign other Cause And Twenty if he hath to maintain the Jurisdiction of the Kings Court Coke's 4 Inst cap. 58. All those Manors which were in the Hands of St. Edw. the Confessor were caused to be Written in Doomes-day Book Sub Titulo Regis and all the Lands holden of the said Manors are held by Tenure of Ancient Demesne And the Tenants shall not be Impleaded out of the said Manors and if they be they may shew the Matter and abate the Writ But if they Answer to the Writ and Judgment be given then the Lands become Frank-fee for ever And Tenants in Ancient Demesne which held their Lands by Soccage That is by Service with the Plow are called Sockmans That is Tenants or Men that hold by Service of the Plow or Plowmen for Sock signifies a Plow Terms del Ley. All the Lands that are in the Kings Hands are Frank-fee and Pleadable at the Common Law F. N. B. 35. The Manor it self and the Demesne Lands within the Manor is Pleadable at Common Law and a Man ought to Sue his Action for the Manor and for the Lands which are Parcel of the Manor at the Common Law and in the Common Pleas F. N. B. 24. But if a Man Sue for Lands holden of the Manor in the Hands of a Free Tenant he ought to Sue the Writ of Droit Close directed to the Lord of the Manor and there he shall make his Protestation to Sue in the same Court the same Writ in the nature of what Writ he will Declare And if false Judgment be given the Tenant or Demandant may Sue a Writ of false Judgment F. N. B. 24. But he who holdeth in Ancient Demesne by Copy of Court Roll at the Will of the Lord who is called Tenant by base Tenure and anciently Tenure in Villenage if he be ousted of his Lands he shall not have this Writ of Droit Close but ought to Sue by Bill in the Court of the Lord of the Manor and shall make Protestation to Sue there in nature of what Writ he will but he shall not have a Writ of false Judgment or other Remedy but to Sue to the Lord by way of Petition F. N. B. fo 26 27. And when the Writ of Droit Glose cometh to the Lord or his Bailiffs he ought to hold a Court and if he will not hold it The Demandant may Sue a Writ out of Chancery commanding him to hold it and thereupon an Attachment directed to the Bailiff returnable in the Kings Bench or Common-Pleas whereupon he shall recover Damages or the like against the Bailiff And if the Lord oust his Tenant that holds in Fee he may have a Writ of Droit Close or an Assize or other Writ at Common Law against the Lord for those Lands F. N. B. 26. No Lands are Ancient Demesne but Lands holden in Soccage And By this Tenure is intended that the Tenants shall do the Service of the Plowâ— viz. To Plow and Till the Lords Lands to Mow the Lords Meadows and such like Services as are for the maintaining of the Kings Sustenance or Victuals and his Subjects And for such Services the Tenants have divers Liberties and Priviledges in Law as to be quit of Toll and Taxes if not charged upon Ancient Demesne To be free from Charges of Knights of Parliament and not to be put on Enquests out of their Manors unless they have other Lands c. And if the Lord Distrein for other Service or Customs than they are used to do they may have a Monstraverunt F. N. B. fo 30 31. The Lord shall not answer to Attachment upon the Monstraverunt before the Court be certified by the Treasurer and Chamberlain of the Exchequer whether the Land be Ancient Demesne F. N. B. 35. The Lord shall have a Writ of Disceit against him who levieth a Fine of Demesne Lands and he who is Tenant shall avoid the Fine But if he Release to him in Possession it shall bind F. N. B. 216. Lands in Ancient Demesne may be extended by the Statute de Mercatoribus 13 E. 1. Coke's 2 Inst 397. And upon Statute Staple And general Statutes extend to it Coke's 4 Inst 270. Fine in Ancient Demesne by Custom Bars an Estate Tail Coke's 2 Inst 207 270. The Jurisdiction extends not to personal Actions Coke's 2 Inst 224 270. The Demandant in a Writ of Droit Close cannot remove the Plea out of the Lords Court for any cause c. nor can the Tenant remove the Plea out of the Ancient Demesne if not for Causes which prove the Land to be Frank-fee and not Ancient Demesne And when the Court is removed by Recordare he ought to shew some Special matter to prove the Land to be Frank fee and not Ancient Demesne otherwise the Plea shall be sent back unto the Lords Court But to shew a Fine levied in the Kings Court of the same Land or a Recovery had upon a Praecipe quod Reddat is a good cause to prove the Land to be Frank-fee c. Tenants in Ancient Demesne may make Attorneys Coke's 2 Institutes 700. Ancient Demesne Tryable by Book of Doomes-day Coke's 4 Inst 270. In a Replevin Writ of Mesne Writ of Ward in Accompt against Guardian in Soccage Ancient Demesne is a good Plea for the Appearance and Common Intendment that the Realty doth come in Debate so in Accompt against a Bailiff For it is brought for the Issue and Profits of the Land which is Ancient Demesne which ought to be determined in the Court of Ancient Demesne And in Assize brought by Tenant by Elegit Ancient Demesne is a good Plea For the manner of Proceeding and Tryal See Coke's 5 Rep. 105. Alden's Case 105. If Ancient Demesne be pleaded of a Manor and denied it shall be Tryed by the Record of the Book of Doomes-day in the Exchequer But if Issue be taken that certain Acres are parcel of the Manor which is Ancient Demesne it shall be Tryed by Jury for it cannot be Tryed by the same Book Coke's 9 Rep. 31. Case of the Abbot of Strata Marcella If a Man Levy a Fine of Land in Ancient Demesne to another at Common Law now the Lord shall have a Writ of Disceit against him who levied the Fine and him who is Tenant and thereby he shall make void the Fine and the Conusor shall be restored to the Possession which he hath given by the Fine But if the Conusor after the Fine Release to the Conusee by his Deed being in Possession or by
Court Barons Coke's 2 Inst. 123. Copyhold Lands cannot be transferred but by Surrender into the Hands of the Lord according to the Custom of the Manor Coke's 4 Rep. 25. Copy-hold Cases Severance by the Lord shall not destroy the Estate of the Freeholder ibidem The Grantee having but one single Copyhold cannot hold Court Coke's 5 Rep. 27. Copyhold Cases Underwood and Herbage may by Custom be granted by Copy And when a Copyholder shall alledge Custom and when and how he ought to prescribe See Coke's 4 Rep. 31 32. Copyhold Cases The Attorney in surrendring a Copyhold ought to pursue the Custom strictly Coke's 4 Rep. 76. Comb's Case No Steward or Deputy-Steward of any Leet or Court Baron shall make Benefit to the Value of 12 d. or more by colour of any Grant made of the Profits of such Court in Pain to be disabled to be Steward in any Court and to forfeit 40 l. between King and Prosecutor Stat. 1 Jac. 1.5 Of the Diversity of Customs of Manors and other Matters concerning this Court you may read at large in Coke's 4 Rep. Copyhold Cases Shepherd's Court-keeper's Guide and others If a customary Tenant who is out of the Realm shall not be bound by Nonclaim upon a Fine which is a matter of Record à fortiori he shall not be bound by Nonclaim upon a Descent which is a Matter in Fact Coke's 8 Rep. Sir Richard Letchford's Case See before in The Court Baron Page 235. To the Court of the Coroner STat. 3 H. 7. gives the Coroner a Fee of Thirteen Shillings and Four Pence super visum corporis of the Goods of the Murderer Coke's 2 Inst 176. See in County Court See before in Court of the Coroner Page 237. To the Court of Escheator BY Stat. W. 1. cap. 24. No Seisure can be made of Lands or Tenements into the King's Hands before Office found But if the Sheriff seise Lands by Commandment of the Justices then is the Sheriff excused tho' the Justices therein did Err and if he did of his own Head then had the Party Remedy by Assize against the Sheriff and therefore the Party was required to sue out a Writ to the Justices to certifie if the Seisure were by their Commandment If the Escheator taketh an Office virtute Officii he may seise the Land but if of his own Head he seise the Land without Office that Seisure is colore Officii and an Assise is maintainable against him sic de caeteris Coke's 2 Inst 206 207. Upon the Assise the Party shall recover the Land and double Damages and the Escheator shall be in the grievous Mercy of the King ibid. Where before Stat. 34. E. 3.36 E. 3. and 8 H. 6. the Party grieved by any Office might have had his Travers or Monstrans de droit by Common Law and where he was driven to his Petition and how relieved by those Statutes See Coke's 2 Inst 688. Coke's 4 Rep. 54 55. A Termer could not traverse an Office by the Common Law but if it were found in the Office he might have a Monstrans de droit and so of others that had but Chattels Real Where there is double matter of Record to intitle the King to a Chattel Personal as an Attainder and an Office that the Person attainted was possessed of a House the Office may be Traversed because Chattels Personal are Bona peritura and cannot abide the delay of a Petition Coke's 2 Inst 689. By Stat. Lincoln de Escheatoribus the Escheator cannot seise before Office ibidem Houses and Lands which lie in Livery and whereof there is Profit presently taken the Party by finding the Office is out of Possession But of Rents Commons Advowsons and other Inheritances incorporeal which lie in Grant it is otherwise Coke's 2 Inst. 694. Upon Attainder of Felony the King cannot be Entitled without Office but if a special Office were found that the Husband had nothing but in Right of his Wife there the Heir was not put to his Petition Coke's 1 Rep. 50. Alton Wood's Case Tenant for Life or Years of a Manor shall have an Escheat Coke's 2 Inst 146. See before in The Court of Escheator Page 239. To the Court of Admiralty THERE is a Felony punishable by the Civil Law because it is done upon the High Sea as Pyracy Robbery or Murder whereof the Common Law did take no notice because it could not be tryed by twelve Men. If this Piracy be tryed before the Lord Admiral in the Court of Admiralty according to the Civil Law and the Dilinquent there attainted yet shall it work no Corruption of Blood nor Forfeiture of his Lands otherwise it is if he be Attainted before Commissioners by force of the Stat. 28 Hen. 8. And Pirate cometh from the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifieth a Rover at Sea Vide Coke's 1 Inst 391. a. If any Injury Robbery Felony or other Offence be done upon the high Sea Lex terrae extendeth not to it therefore the Admiral hath Conusance thereof and may proceed according to the Marine Law by Imprisonment of the Body and other Proceedings as have been allowed by the Laws of the Realm Coke's 2 Inst 51. The like of things done in a Foreign Kingdom which shall be tryed before the Constable and Marshal ibid. Wreck are such Goods only which are cast and left upon the Land by the Sea Flotsam is when a Ship is sunk or otherwise perished and the Goods float upon the Sea Jetsam is when a Ship is in danger to sink and for lightning the Ship the Goods are cast into the Sea and afterwards notwithstanding the Ship perisheth Lagan or rather Ligan is when the Goods so cast into the Sea and afterwards the Ship perisheth and such Goods so cast are so heavy that they sink to the bottom and the Mariners to the intent to have them again tie to them a Buoy or Cork or such thing which will not sink And none of these are called Wrecks unless by the Sea put upon Land And so Flotsam Jetsam and Lagan being cast upon the Land shall pass by the Grant of Wreck Coke Part 5.106 Vid. Termes del Ley. Wreck of Sea therefore is when the Goods are by the Sea cast upon the Land and so infra Comitatum whereof the Common Law taketh Conusance but the other three are all upon the Sea and therefore of them the Admiral hath Jurisdiction Bracton lib. 3. cap. 3. When Wreck is claimed by Prescription as by Law it may be the Pleading is Bona Wreccata super mare ad terram project ' The Soil upon which the Sea floweth and ebbeth scil between the high Water and low-Water-Mark may be Parcel of the Manor belonging to a Subject and yet resolved in Lacy's Case Trin. 25 Eliz. That when the Sea floweth and hath plenitudinem maris the Admiral shall have Jurisdiction of every thing done upon the Sea between the High-Water-Mark and Low-Water-Mark by the ordinary Course of the Sea as