receive the Allegations and Matters given in Evidence for the Plaintiff as sufficient to maintain his Title whereas they were given in Evidence and considered and if it be meant as a sufficient Evidence to controul and over-rule all other that doth not belong to the Court in Trials to determine unless referred to them upon demurrer to Evidence but is the proper business of the Jury and if the Party be aggrieved the Remedy is an Attaint Nor can it be pretended that the Defendants Evidence was admitted to over-rule the Record produced because no Objection was made to the Defendants Evidence at the Trial and the same was all given before the Record of 15 Ed. 3. was produced and consequently the Jury must consider the force of it for Evidence on both sides being given by the Law of England the Decision of the Right belongs to the Jury and the Act of Edw. 3. being repealed 't is no Matter of Law but the most which could be made of it was that it was Evidence which must be left to the Jury together with the Defendants Evidence But no Bill of Exception will lye in such a Case by the Statute when the Evidence given is admitted as Evidence and left to a Jury and where no Opposition was made to the Defendants Evidence as here in this Case and therefore in this Case a Bill of Exception could not be warrantable because the Plaintiff's Evidence was not refused or over-ruled nor was the Defendant's Evidence fit to be rejected or so much as opposed by the Plaintiff And as to the Allegations made by the Counsel and not proved those never could be an Exception And for these and other Reasons the Judges refused to Seal their Bill Upon this a Writ of Error is brought and a Petition was exhibited to the Lords Spiritual and Temporal in Parliament assembled in the Name of the Lady Isabella Dutchess of Grafton and William Bridgman her Trustee showing that King Charles the Second granted the Office in question to W. B. for the Lives of Henry Earl of Arlington Henry Duke of Grafton and of the Petitioner the Lady Isabella in Trust for the Duke his Executors and Administrators to commence after the Death of Sir Robert Henly that upon the death of Sir Robert Henly the Petitioner by virtue of the said Grant was well intituled to the said Office but was interrupted in receiving the Profits by Rowland Holt Esq Brother to the Lord Chief Justice Holt and by Edward Coleman Gent. who pretended to be admitted thereto by some Grant from the Chief Justice that thereupon an Assize was brought for the said Office which came to Trial and the Petitioners Counsel insisted upon an Act of Parliament proving the King to have the Right of granting the said Office which the Judges would not admit to be sufficient to prove the King's Right to grant the same That the Petitioners Counsel did thereupon pray the benefit of a Bill therein to be allowed and sealed by the Judges according to Law And the Petitioner's Counsel relying upon the said Act of Parliament as sufficient proof of the King 's Right duly tendred a Bill of Exceptions before Judgment in the Assize which the Judges upon the Trial said they would Seal yet when tendred to them in Court before Judgment would not Seal the same Thereupon Judgment was entred against the Petitioners Title in the Assize by default of the Judges not allowing and sealing the said Bill according to the Duty of their Office by Law whereby they are hindred from making the Matter of the said Bill part of the Record of the said Judgment now brought and depending before your Lordships upon a Writ of Error in Parliament for reversing the said Judgment in the Assize and so are precluded from having the full benefit of the Law by the said Writ of Error to examine reverse and annul the said Judgment Wherefore the Petitioners prayed that their Lordships would be pleased to order the said Judges or some of them to Seal the said Bill of Exceptions to the end the said Case might as by Law it ought come intirely before their Lordships for Judgment c. Upon reading this Petition 't was ordered that the Lord Chief Justice and the rest of the Judges of the Court of King's Bench should have Copies of the Petition and put in their Answer thereunto in Writing on ..... next At the Day appointed there was deliver'd an Answer in these or the like words The Answer of William Dolben William Gregory and Giles Eyre Knights three of their Majesties Justices assigned to hold Pleas in their Court of King's Bench at Westminster to the Petition of the most noble Isabella Dutchess of Grafton and William Bridgman exhibited by them to your Lordships THese Respondents by Protestation not owning or allowing any of the Matters of the Petition to be true as they are therein alledged and saving to themselves the benefit of all the several Statutes herein after mentioned and all the Right they have as Members of the Body of the Commons of England to defend themselves upon any Trial that may be brought against them for any thing done contrary to their Duty as Judges according to the due Course of the Common Law which Right they hold themselves obliged to insist upon in answer to the said Petition think themselves bound to shew and offer to your Lordships consideration That the Petition is a Complaint against them for refusing to Seal a pretended Bill of Exceptions contrary to a Statute in that behalf as the Petition pretends without setting forth the tenour of the said Statute or what that pretended Bill was whereas that Statute is the Statute of Westminster 2. cap. 31. and doth enact That if any impleaded before any Justices doth offer an Exception and pray the Justices to allow the same and they refuse so to do the Party offering the Exception is thereby to write it and pray the Justices to Seal it which they or one of them are thereby enjoyned to do So that if the pretended Bill was duly tendred to these Respondents and was such as they were bound to Seal these Respondents are answerable only for it by the Course of the Common Law in an Action to be brought on that Statute which ought to be tried by a Jury of Twelve honest and lawful Men of England by the Course of the Common Law and not in any other manner And the Respondents further shew and humbly offer to your Lordships consideration That the Petition is a Complaint in the nature of an Original Suit charging those Respondents with a Crime of a very high Nature in acting contrary to the Duty of their Office and so altogether improper for your Lordships Examination or Consideration not being any more triable by your Lordships then every Information or Action for breach of any Statute Law is all which Matters are by the Common Law and Justice of the Land of Common Right to be
cum aggravatione pene corporalis somewhat more than Death Then this being a Common Law Punishment and not prescribed by any Statute the knowledge of it must be fetcht from our Law-Books and from Presidents for the General Practise of the Realm is the Common Law 't is describ'd with an ipso vivente in Smith's Republica Anglic. p. 28. lat Edit pag. 245. Stamf. 182. en son view which is tantamount and Stamford wrote 2 Eliz. In Coke's 3 Inst 210. 't is ipsoque vivente comburentur Pulton de Pace Regni 224. and many other Books were cited to the same effect And 't was affirmed that there was no Book which recited the Judgment at large but had this Particular in it Several Books do in short put it That for Treason the Party shall be Drawn and Hanged and Quartered but those are only Hints of the Chief Parts not Recitals of the Judgment it self In the English Book of Judgments printed 1655. pag. 292. 't is mentioned particularly as the Kings Bench have adjudged it should be The Duke of Buckingham's was so 13 Hen. 8. Stow's Chronicle 513. shews that he was the Person Then 't was said they have been thus in every Age without interruption 'till 26 Car. 2. Humfrey Stafford's Case 1 H. 7.24 which was per consensum omnium Justiciariorum tho' quoted on the other side as shortly stated in the Year-Book yet on the Roll which hath been seen and perused 't is with an ipso vivente Plowden 387. and Rastal's Entries 645. the same Case is thus Coke's Ent. 699. is so likewise John Littleton in 43 Eliz. Coke's Ent. 422 423 and 366. is so In the Lord Stafford's Case 33 Car. 2. by the Direction of this House and with the Advice of all the Judges was the Judgment so given by the Earl of Nottingham then Lord High Steward In the Lord Preston's Case 't is so which was drawn by Advice of the then Attorney and Sollicitor the present Keeper and Chief Justice of the Common Pleas. As to the Objection That vivens prosternatur doth imply it and that 's enough It was answered That ipso vivente comburentur implies both but not e contra and all the Presidents shew the latter to be requisite And as to the Case of David Prince of Wales mentioned in Fleta there 's only a Relation of what was the Execution not of what was the Judgment And Coke 2 Inst 195. says That the Judgment was in Parliament and therefore the same can be no President to this purpose and any one that runs over Cotton's Records will find the Judgments in Parliament to be different as the Nature of the Case required No Argument can be drawn from the Acts of the Legislature to govern Judiciary Proceedings however John Hall's Case 1 Hen. 4. Cott. 401. is as now contended for Before the 1 Hen. 7. there were some Erroneous Attainders and the 29 Eliz. takes notice of them as so errneous The Judgments against Benson and Sir Andrew Helsey cited below are plainly erroneous they dispose of the Quarters which they ought not but leave the same to the King's pleasure Sir Andrew's President is a monstrous arbitrary Command by Writ to Commissioners of Oyer and Terminer ordering them to Examine him and to give Judgment in manner as in the Writ is directed that therefore is not to be justified and 't was before 25 Edw. 3. Henry Ropers 21 Rich. 2. doth dispose of the Quarters and hath other Errors in it and so have William Bathurst's and Henry South's which were in 3 Hen. 4. But from that time to 26 Car. 2. there 's none which do omit it The four Presidents at the Old Baily were against Popish Priests and what private politick Reasons or Commands might occasion the omission is unknown and Hampden was not Executed but his Judgment was upon a Confession and his Life saved the reason of which is also unknown So that there have been none Executed upon such Erroneous Judgments And that there are no more Presidents with the Omission is a good Argument that those many which have this Particular in them are good and legal the constant Current having been this way proves the same to be the Common Law And this is the most severe part of the Punishment to have his Bowels cut out while alive and therefore not to be omitted As to the Earl of Essex's Case in Moore and Owen's Case in Roll's Rep. the first is only a Report of the Case and the last a descant upon the Judgment but neither do pretend to recite the whole Judgment Then to pretend that this Judgment cannot be Executed is to arraign the Wisdom and Knowledge of all the Judges and Kings Counsel in all Reigns And Tradition saith that Harrison one of the Regicides did mount himself and give the Executioner a Box on the Ear after his Body was opened c. Then 't was argued That if it be a necessary part of the Judgment and be omitted it is a fatal Error and doth undoubtedly in all Cases give a good reason for the Reversal of such Judgment as in the Common Case of Debt where dampna are omitted in the Judgment tho' for the Advantage of the Defendant as is Beecher's Case and Yelv. 107. Besides if this be legal then all those Attainders in which this Particular is inserted must be illegal for 't is impossible that both the Judgments should be right for either those are more severe than they should be or this is more remiss To say that 't is discretionary is to give the Judges a power which they themselves have disclaimed and to Reverse this Reversal is to tell the Court of Kings Bench that they are not obliged to follow the General Practise of their Predecessors that they are obliged to no form in their Judgment for Treason that nothing but Death and being Drawn to it are essential and according to that Doctrine a Woman might receive the Judgment of Quartering and a Man might be Burnt and both according to Law But the Constitution of this Kingdom hath prescribed and fixed Rules and Forms which the Executive Power is obliged and bound to follow that as nothing can be made or construed to be an Offence at the Pleasure of the Court so no Judgment can be given for any known Offence at Pleasure But the Law either Statute or Common hath established what is an Offence and what is its Punishment and there is nothing of Arbitrary Power allowed in respect of either Wherefore upon the whole it was prayed that the Reversal might be affirmed and it was affirmed accordingly Sir Evan Lloyd Baronet and Dame Mary his Wife and Sidney Godolphin Esq and Susan his Wife Appellants Versus Sir Richard Carew Baronet an Infant the Son and Heir of Sir John Carew Baronet deceased Respondent APpeal from a Decree of Dismission in Chancery The Case was thus Rice Tannott died seized in Fee of several Lands in the several Counties of Salop
the Earl of Pembroke's Case in Littleton's Rep. 181. and in Jones 215 223. the Court went upon the Reason that the Jury found him to be the same Person Latch 161. there they would intend him an Esq at the time of the Commission and a Knight at the time of the Return and it was for Necessity-sake for to prevent the avoiding of so many Trials as had been upon that Commission Lord Ewre's Case 2 Cro. 240. there 't was held well enough because sufficiently described so in a Grant if it cannot be intended otherwise than to the same Person there 't is well enough but here they can never be the same In Case of an Earl or Bishop there 't is understood who is meant by the Description there can be but one of that Title but here the Plea saith That he was not a Knight at the time and Sir Thomas Ormond was attainted by the Name of Thomas Ormond Esq and ill for that Reason 2 Rolls Abr. 43.198 Dyer 150.1 Leon. 159.160 the highest and lowest Dignity are universal and the same in every Kingdom 7 Rep. 16.20 Edw. 4.6 can any body say upon this Grant That the King intended to pass this Advowson to a Man that then was only an Esq Selden 682. the Addition of Esq is drowned and merged in that of Knight and Selden was a very competent and good Judge of this Matter Then 't was said that the only way to salve this which had not been urged for the Plaintiff was that he might be reputed a Knight and a Name of Reputation will be sufficient to take by and to this it was answered That he who is reputed a Knight and is none cannot take by that Name And besides if he could it should have been pleaded by a per Nomen in case of a Bastard the Reputative Name must be shewn to make the Grant good the Degree of Knight was formerly of Esteem in the Law as upon a Writ of Right if the Mise be joyned and if a Peer be Party to any Issue at Law triable by Jury c. As to the Objection that a Grant to one by a Name of Dignity which he really had not viz. The Eldest Son of a Duke as a Marquess and that a Grant to him by that Name is good 't was answered That there was a real Reputation he takes place after all real Marquesses as a Marquess by the Rules of Heraldry There 's a ground for it from the Precedency given him by the common Use and Custom of the Realm and they are named so now-a-days in Deeds but anciently Conveyancers were more Cautinos and named them Esquires commonly called Marquesses and even now careful Men call them eldest Sons of such Dukes c. If a Reputation would have done it the pleading should have been with a Cognit ' et Reputat ' per Nomen It is the name which intitles the Grantees to take and otherwise they have no pretence to claim by such Letters Patents no more than John or Thomas Theckston and if the Person hath any other Name of Reputation that ought to be shewn wherefore it was hoped That this was cause enough to affirm the Judgment Then it was argued That this Grant was void as a Grant of an Advowson appendant when upon the Record it appeared to be an Advowson in gross that the Defendant had admitted it an Advowson in gross in Queen Elizabeth that he hath not only admitted but confess'd it in almost direct terms by saying Bene Verum est that Car. 1. became and was seized in manner as in the Declaration this is a full Confession That the Queen was seized in gross 't was said to come to that King by Descent and so there is no room left for Presumption or Intendment that it was by any wrongful or other Seisin Then 't was urged That nothing passed to the Earl of Warwick because not appendant but in gross and for this was cited Moor 45. Hob. 322 323. and other Books so that it doth not appear that the King did intend to pass this Advowson for in the Grant to the Earl of Warwick there 's no Grant of it by any express Name which its probable would have been had the same been intended now to suppose it appendant is to suppose against the Record against both the Averment in the Count and the Confession in the Plea 't is in general Words una cum Advocationibus c. nor does it pass by the Letters Patents of Car. 1. because it did not pass to the Earl by those of Queen Eliz. this Grant is ushered in after all the Recitals and those suppose the Advowson to have passed by the first Igitur wherefore it must be upon Consideration of what is before alledged this is at least an illative Word and cannot begin an independent Substantive Clause of it self so is Vlterius 2 Browt 132. If this Granting Part should be taken to be Substantive and to have no Reference to what is precedent all those Recitals would be vain and insignificant and the King might as well have begun with the Words of the Grant The King's Grants are to be taken according to his Intentions and those are to be expounded by the Recitals then were quoted many Cases as 5 Rep. 93. Hob. 120.203 Hutt 7.2 Rolls Abr. 189.11 Rep. 93. and it was said That here are many false Recitals Sir Will Theckston claims that must be intended a lawful Claim whereas he could not lawfully challenge any Right to this Advowson That the King presented Wilson by lapse The King was deceived in thinking that this passed to the Earl The Agreement between Dr. Wickham and Sir William Theckston was only to deceive the King Here 's no notice taken of the Advowsons being in gross The Quality and Nature of the Advowson is totally concealed from the King the Words notwithstanding any Defect helps only want of Form Here was a plain Artifice in the Matter in Queen Elizabeth's Grant it was Advowsons in General c. but when Car. 1. is to confirm that Grant 't is of that Church by Name all the intermediate Recitals between that of the first Grant and the words of this new Grant are dependent on that first The King's Intention That Theckston should have it is not absolutely but secund ' Thenorem Intentionem of the former Patent the King meant only to restore to him his old Right which he had by that Patent notwithstanding the Presentations 10 Rep. 110. all Facts recited in the King's Grant shall be intended to be of the Suggestion of the Patentee If there be several Considerations and one false and the King deceived thereby it shall viciate the Grant 3 Leon. 249. Voers Case cited in Legates Case Fits Tit. Grant 58. 3 Leon. 119. If the Granting Words had stood alone the Case had been more doubtful but here they are all coupled In all the King's Grants there must be some Considerations for his Favour and abundance
and yet ' t is there in the power of the Ancestor by good Pleading to have supported the Patent and by bad pleading to destroy it and therefore when the Foundation which is the Patent fails the Honour and whatever it be that is erected upon it shall fail also Every Estate by the consent of all Persons interested and concerned in the thing may be taken away for the Law is so set against Perpetuities that a Clause intimating it is void and tho' an Honour is not Jones Rep. 109 123. assignable yet it may be extinguished It 's true if a Man hath but a part of an Estate as only an Estate for Life he can't alone pass away the whole Estate but none who hath the Inheritance in Tail or in Fee but he may destroy the whole and tho' any one have but part yet by the concurrence of all that are concerned the whole may be destroyed It is admitted if he commit Treason and is attainted thereof he loseth the Honour for himself and his Posterity now 't was in his power to do this act overt and if by an act unlawful he hath power to defeat the descent of the Intail upon his Issue there is the same reason that by a lawful act he should part with it there are two Acts of Parliament in force which fortifie the Fine it must be granted that those Honours are within the Statute de Donis and then there can be no reason they should not be within the Statutes of Fines 4 Hen. 7. 34 H. 8. which say that Tenant in Tail may levie a Fine of all things that are intailable within the Statute de Donis whatever therefore is within the one is within both and it is not sufficient to alledge that it is inconvenient that it should be within the Statute of Fines for there is an Act of Parliament and without an Act of Parliament to exempt it it can't be exempted It may be proved by great variety of Precedents to have been the practise in former times anciently nothing more frequent than to release Hoours See Selden's Titles of Honours 730. it was as frequent as to grant them In latter times Delaval's Case 11 Rep. 1. it hath been the Judgment of the Lords that Honours may be extinguished which in 1668. was certified by all the King's Counsel Learned in the Law to be good Authority But to go a little higher Andrew Gifford Baron Pomfret in Fee 4 Hen. 3. Rot. 100. surrendred to the King so 23 Hen. 3. Simon Mountford Esq Earl of Leicester having a Mind to take an Honour from his eldest Son and confer it upon his younger and so it was surrendred and regranted accordingly Selden seems to construe this to be by way of Transmission and not Surrender yet others of later Authority as Cambden's Britan. Title Earl of Leicester say expresly that he did Surrender it and Selden himself says it was by Concurrence of the King King Hen. 3. Rot. Cr. 24. men E. 1. created one Earl of Richmond and he surrendred to the King Cambden's Brit. Title Earl of Richmond Roger de Bigod surrendred not only the Office of Earl Marshal but also the Earldom of Norfolk William Duke of Juliers whose Father came in with Edw. 3. was created Earl of Cambridge 40 Edw. 3. m. 21. in Fee his Son surrenders to the King which Record we have here So Edward the Third made his Son John of Gaunt See Cambden's ubi supra Earl of Richmond who surrendred it to the King And lastly in the Years 1639 1679. Roger Stafford whom the King intended to make a Viscount by the Advice of the Learned Men levied a Fine thereof by which 't is now enjoy'd Lastly he argued ab inconvenienti for no Lord in the House will be in safety if it should be other ways there being many sitting in this House by virtue of Surrenders from other Lords in former days and perhaps some of their Heirs are alive and so if these Surrenders be adjudged invalid it would shake your Lordships own Possessions and make it dubitable whether Forreigners and Persons unknown may not come and thrust them out but if not so it may cause Confusion amongst themselves their former Honours having been surrendred to accept of others and perhaps some not thinking their Titles secure will stick to the former and so occasion Dispute and Confusion about Precedency and lastly it will put a great Disgrace upon your Ancestors proceedings who deemed this Course legal and those must show very good Precedents that it hath been disavowed if they will encounter such constant Practises In the next place 't was answered to their Arguments and Objections and as for that first Argument That an Honour is inherent in the Blood he answered That this Inherency in the Blood is not essential to Honours for an Honour may be created for Life and then none of the Posterity or Blood of the Peer is thereby enobled It may be limited to the Heirs Males of the Body so that an Honour may touch and enter far into the Blood and yet not run with it and farther it may be limited to the Heirs by such a Wife there the Issue by the second Venter shall never inherit the Dignity and yet is as near to the Father as those that are by the first so that 't is no true ground that they go upon that Nobility is inherent in the Blood and for what was alledged as to the Inconveniency of Surrendering Dignities he answered That there may be necessary Reasons for the extinguishment of an Honour and it may be for the benefit and advantage of the Party and his Posterity as if it do happen that the Family do fall into Poverty and be not able to support the Honour of Peerage with decency and so this Honour would perhaps be a Disgrace to the rest of the Lords and in a Child's Case it may happen to a Noble Family to have those Afflictions that to continue the Honour would expose the Family to Infamy and therefore some times to prevent the Son of Adultery from his succeeding to the Dignity it may be convenient to surrender it and yet this cannot be without the concurrence of the Prince who being the Source of Honour can best judge of the Reasons for stopping the Stream and it cannot seem an harder Case to disinherit him of the Honour then of the Estate which he may do and if he leave his Honour without his Estate it will be a Burden on his Shoulders which he will be unable to bear and seeing it 's necessary that there be a concurrence of the Prince it is undecent to suppose so vile a thing of the Crown as to comply with the Peevishness and Simplicity of the Parents where there is no reason for it And as for what hath been alledged for the Invalitity of those Precedents that they were in Cases of New Creations and were in nature of Transmissions he answered That when an
Honour is Surrendred and a new Honour granted the former is either extinguished or not before the other takes effect if not then the Party hath both together against the will of the Donor and perhaps the new Honour may be of that Name and Place and those Persons may be concerned in it that will not permit it to be effected and if it be in the power of the Ancestor for the advantage of his Posterity by the Surrender of one Honour to take a greater it may be also in his power to do it for his prejudice As to the Objection That by the same Reason an Honour may be extinguished it may also be Transferred he answered That there was a great disparity betwixt them for as to Alienations of Honours there 's a great reason they should be disallowed for they all flow from the Prince and therefore 't is not fit they should be conferred on any but by the Prince tho' the King 's of England have granted power to a General to give the Honour of Knighthood c. in the Field for the Reward and Incouragement of Valour yet this granting of Nobility is a Prerogative peculiar to the King's Person alone no Man else can ennoble another Time was indeed when the Earls of Chester having Counties Palatine by virtue of their Jura Regalia did create Barons yet they never sate in Parliament as Peers because Peerage being a thing of so high a nature cannot be given by any but a Soveraign and is given as a Trust and Obligation so that common Reason saith they are not transferrable It is said in our Law that where Offices are granted to a Man in Fee See Jones 122 123. he may grant it over yet in some Cases they are so near to the Crown that they cannot be transferred but must descend with the Blood upon the same Reason no Man can ever transfer an Honour for the near Relation which it hath to the Crown but in case of Extinguishment that Relation and Trust ceaseth and so they are different Cases Then lastly as to the great Objection of the Judgment of the House of Lords in Roger Stafford's Case Anno 1640. he answered That notwithstanding that Case their Lordships had given him leave to argue it and therefore they intended not that should be any Impediment 2. That is no Judgment for they being a Court of Judicature do as other Judges judge of the Matter before them only Then the Question was Whether an Honour could descend to the half Blood They refetred it to the Judges who were of Opinion that it should Thereupon ariseth another Question Whether a Man might Convey or Transfer his Honour to another 'T was resolved he might not This drew another Question whereupon they resolved that a Lord could not Surrender his Dignity the Original Cause was about a Descent to the half Blood the Resolution is he cannot Surrender how then can they pretend that to be a Judgment when the Question in point of Judgment was not before them Suppose it had been resolved and it 's a wonder it had not all that time that a Lord could not forfeit and that had been a third step to have made it a perfect Business for considering the times it had been a most convenient Resolution But besides all that the King's Counsel were never heard in the point and the rejecting the Opinions of Learned Men shows it was no Resolution of the whole House tho' entred upon the Journal and therefore he prayed Judgment against the Petitioner The Earl of Shaftsbury spoke in the House for the Petitioner The stress of the Argument for the King in this Case is founded upon these two Assertions 1 That Honours are taken to be within the Statute de Donis c. and the general Rules of that Statute 2. And then secondly That Honours are to be governed as other Inheritances by the Rule of the Common Law As for the first it hath not been proved for the Resolution in Nevil's Case 2 Jac. was Extrajudicial and no Judgment of any Cause before them and in such Cases the Judges do not hold themselves to be upon Oath and if there be two or more of another Opinion they do not refuse to sign the Resolution of the major part and so it goes under the denomination of all the Judges but if it were a Judgment of them altogether they could neither alter nor make new the Law neither could they make that intended within the Statute de Donis c. which was not in being till many Ages after Beauchamp in Richard the Second's time being the first Honour that was entailed by Patent 2. The second Assertion is contrary to the Opinion of the most Learned Men the Honour and Dignity of the House the constant practise of Westminster-hall and the direct Evidence of the thing it self Justice Berkley a very learned Judge declared his Opinion Febr. 6. 1640. as appears by the Records of this House That Honours descend from the first that was seized of them contrary to the Rules of other Inheritances and that Honours are not governed by the Rules of the Common Law Justice Dodderidge in Jones 207. is of opinion That Honours are Personal Dignities which are affixed to the Blood the Lords never yet suffered their Honours to be tried at any Court at Law or any other where save before themselves tho' their other Inheritances are tried there as well as other Mens So possessio fratris holds of Lands but not of a Dignity which is not disposed of as other Inheritances nor will it be guided by the strict Rules of Law The Lord Coke is of Opinion in Bedford's Case That an Honour could not be taken away but by Act of Parliament therefore it will be allowed that the concurrence of all Parties concerned may extinguish this as well as other Inheritances but the Concurrence of all can't be without Act of Parliament for the whole Kingdom have an Interest in the Peerage of every Lord It is a dangerous Doctrine to say our Judicature and Legislature is our own only The House of Lords is the next thing to the Crown tho' that be far above them yet those that reach at that must take them out of the way first they were voted useless and dangerous before the Crown was laid aside and as in Descent of the Crown the whole Kingdom hath such an Interest in it as the King cannot Surrender or alien it so in a proportionable degree tho' far less the King and Kingdom have an Interest in their Lordships and Dignities and Titles It is true they may be forfeited but it doth not follow that they may be extinguished by Surrender There be two Reasons for the Forfeiture 1. There is a Condition in Law that they shall be true and loyal to the Government 2. Honours are inherent in the Blood and when that is corrupted that which is inherent is taken away but in case of a Surrender these Reasons do
Witham deceased WRit of Error on a Judgment given in B. R. for Sir John Witham and Sir Richard Dutton and the Award of Execution thereof upon Scire Fac ' brought by the Defendants as Executors of Sir John Witham and affirmed in the Exchequer Chamber in Trespass and False Imprisonment The Case on the Record was thus The Plaintiff William did declare versus Dutton for that he with Sir Robert Davis Baronet Sir Timothy Thornhill Henry Walrond Thomas Walrond and Samuel Rayner did 14 Octob. 36 Car. 2. at L. in Par ' Ward ' c. assault beat and wound the Plaintiff and imprisoned him and his Goods then found did take and seize and the Plaintiff in Prison and the Goods and Chattels from the Plaintiff did detain and keep for three Months next following by which the Plaintiff lost the Profit he might have made of his Goods and was put to Charges c. Contra pac ' ad damp ' 13000 l. The Defendant pleads Not Guilty as to the Venir ' vi armis and all the Assault Imprisonment and Deteiner in Prison before the Sixth of November and after the Twentieth of December in the same Year and as to the beating and wounding and taking seizing and detaining his Goods and thereupon Issue is joyned and as to the assault taking and imprisoning the Plaintiff the Sixth of November and detaining him from thence until in and upon the Twentieth of December The Defendant doth justifie for that long before viz. the 28th of Octob. 32 Car. 2. by his Letters Patents shewn to the Court did constitute and appoint the Defendant his Captain General and Chief Governour in and upon the Islands of Barbadoes and c. and the rest of the Islands lying c. and thereby commanded him to do and execute all things that belonged to that Government and the Trust in him reposed according to the several powers and directions granted to the Defendant by the Letters Patents and Instructions with them given or by such other powers or instructions as at any time should be granted or appointed the Defendant under the King's Sign Manual and according to the reasonable Laws as then were or after should be made by the Defendant with advice and consent of the Councel and Assembly of the respective Islands appoints twelve Men by name viz. Sir P. L. H. D. H. W. S. N. T. W. J. Witham the Plaintiff J. P. J. S. R. H. E. S. T. W. and H. B. to be of the King's Counsel of the Island during the pleasure of the King to be assistant to the Defendant with their Counsel in the management of the Things and Concerns of the Government of the said Island in relation to the King's Service and good of his Subjects there and gives power to the Defendant after he himself had taken the Oath of Office to administer to every Member of the Councel and Deputy Governour the Oaths of Allegiance and Supremacy and the Oath of Office with further power to the Governour by advice and consent of Counsel to summon and hold a General Assembly of the Freeholders and Planters there and to make Laws Statutes and Ordinances for the good Government of the Island and to be as near and consonant as convenlently may to the Laws and Statutes of England which Laws were to be transmitted to be allowed by the King here with power also by advice and consent of Counsel to erect and establish such and so many Courts of Judicature as he shall think fit for hearing and determining all Causes as well Criminal as Civil according to Law and Equity and to appoint Judges Justices of Peace Sheriffs and other necessary Officers for administring of Justice and putting the Laws in execution provided Copies of such Establishments be transmitted to the King to be allowed and with further power to the Governour to constitute and appoint Deputy Governours in the respective Islands and Plantations which then were or should be under his Command to all and every which respective Governours the King by these Letters Patents gave power and authority to do and execute what should be commanded them by the Governour according to the power granted to him by this Commission And the Governor's Authority to continue during the good will and pleasure of the King The Defendant further pleads That after the making of the Letters Patents and before the time of the Assault and Imprisonment viz. 1 Mart. 33 Car. 2. he arrived at Barbadoes and by virtue of the Letters Patents aforementioned he took upon him and exercised the Government of that and the other Islands and continued to do so till the first of May 35 Car. 2. when he had license to return to England That he before his departure by virtue of the said Letters Patents by a certain Commission under his Hand and Seal did constitute the Plaintiff in his absence to be his Deputy Governour in the said Islands of Barbadoes to do and execute the Powers and Authorities granted to the Defendant by the said Letters Patents That the first of August following the Defendant arrived at London in England that the fourth of May 35 Car. 2. after the Defendants departure the Plaintiff took upon himself the Administration of the Government of the Island of Barbadoes that the Plaintiff not regarding the Trust reposed in him by the Defendant nor the Honour of that Supreme Place and Office did unlawfully and arbitrarily execute that Government and Office to the Oppression of the King's Subjects viz. apud Lond ' praed ' in Par ' Ward ' praed ' That after the Return of the Defendant to the Barbadoes viz. 6 Nov. 35 Car. 2. at a Councel holden for the Island of Barbadoes at St. Michael's Town before the Defendant H. W. J. P. E. S. T. W. F. B. which five are of the twelve named Councel in the Letters Patents and Sir Timothy Thornhill and Robert Dawes Counsel for the Island aforesaid the Plaintiff then and there was charged that he in the absence of the Defendant misbehaved himself in the Administration of the Government of the said Island Non tantum in not taking the usual Oath of Office and not observing the Act of Navigation And by his illegal assuming the Title of Lieutenant Governour and altering and changing Orders and Decrees made in Chancery of the said Island according to his own will and pleasure at his own Chamber and altering the Sense and Substance of them from what was ordered in Court by and with the consent of the Councel upon which it was then and there ordered in Councel by the Defendant and Councel that the Plaintiff Sir John Witham should be committed to c. until he should be discharged by due Course of Law by virtue of which Order the Plaintiff the said sixth of Nov. was taken and detained until the 20th of Dec. upon which day he was brought to the Court of the General Sessions of Oyer and Terminer and then by
Court recommitted which is the same Assault Taking and Imprisonment and Traverses absque hoc that he was guilty of the Assaulting Taking or Imprisoning him within the time last mentioned at London or elsewhere then in the Isle of Barbadees or otherwise or in other manner then as before The Plaintiff demurred and the Defendant joyn'd in Demurrer and Judgment was given for the Plaintiff and a Venire awarded tam ad triand ' exitum quam ad inquirend ' de dampnis c. and the Issue was found pro quaerent ' and 6 d. Damages and on the Demurrer 500 l. Damages and Judgment for Damages and Costs amounting in the whole to 590 l. The Plaintiff Sir J. Witham dying Trin. 2 Wil. Mar. the Judgment was revived by Scire Facias brought by Howel Gray and Chaplain Executors of Sir J. W. quoad omnia bona catalla sua except one Debt due by Bond from Henry Wakefield And at the Return of the Scire Fac ' the Defendant appears and demurs to the Scire Facias and there is an Award of Execution and thereupon a Writ of Error is brought in the Exchequer Chamber and the Judgment was affirmed Then a Writ of Error is brought in Parliament and the General Error assigned And here it was argued on the behalf of the Plaintiff in the Writ of Error that this Action did not lye against him because it was brought against him for that which he did as a Judge and so it appeared on the Record according to 12 Rep. 25. that the Rule seems the same for one sort of Judge as well as for another that this Person was lawfully made a Governour and so had all the Powers of a Governour that this was a Commitment only till he found Security tho' not so Expressed that this is not counsable here in Westminster-hall that he was only censurable by the King that the Charge is sufficient in that Sir J. W. had not taken the Oaths that male arbitrarie executus fuit is Charge enough to warrant a Commitment that this was a Charge before a Councel of State and there need not be all the Matters precisely alledged to justifie their Acts and by the same reason Actions may lye against the Privy Counsellors here and enforce them to set forth every particular which would be of dangerous Consequence the Plea might have been much shorter as only that he was committed by a Counsel of State and the addition of the other Matters shall not hurt and that the Charge was upon Oath shall be intended no Presumption shall be that the Supream Magistracy there did irregularly 't is a power incident to every Council of State to be able to commit This action cannot lye because the Fact is not triable here the Laws there may be different from ours Besides no Action lies unlefs 't were a malicious Commitment as well as causeless and that no Man will pretend that an Action can lye against the chief Governour or Lieutenant of Ireland or Scotland and by the same reason it ought not in this Case he had a power to make Judges and therefore he was more than a Judge and they have confessed all this Matter by the Demurrer The Statute of Car. 1. which restrains the power of our Councel of State supposes that they could Commit that in case of Crimes there they are punishable in that place and in Sir Ellis Ashburnham's Case there was a Remanding to be tried there and if so it can't be examinable here and if not this Action will not lye And further that what was done here was done in a Court for so is a Councel of State to receive Complaints against State Delinquents and to direct their Trials in proper Courts afterwards that there was never such an Action as this maintain'd and if it should it would be impossible for a Governour to defend himself First For that all the Records and Evidences are there 2. The Laws there differ from what they are here and Governments would be very weak and the Persons intrusted with them very uneasie if they are subject to be charged with Actions here for what they do in those Countries and therefore 't was prayed that the Judgment should be reversed On the other side 't was argued for the Plaintiff in the Original Action That this Action did lye and the Judgment on 't was legal That supposing the Fact done in England the Plea of such Authority so executed at Plymouth or Portsmouth or the like had been ill for that Liberty of Person by our Law is so sacred that every Restraint of it must be justified by some lawful Authority and that Authority must be expresly pursued That here was no Authority to commit for that must be either as a Court of Record or as Justices of Peace Constable or other Officer constituted for that purpose that the Letters Patents are the only Justification insisted on and that gives none 't is true the power of Committing is incident to the Office of a Court here 's only the Government of the Place committed to Sir Richard Dutton with a power to erect Courts and appoint Officers but none to himself He in Person is only authorized to manage and order the Affairs and the Law of England takes no notice of such an Officer or his Authority and therefore a Court of Law can take notice of it no further or otherwise then as it doth appear in pleading The Councel is not constituted a Court they are by the Letters Patents only to advise and assist the Governour and the Governour hath no power to commit or punish but to form and establish Courts to do so which imports the direct contrary that he had no such power The Ends of appointing the Councel as mentioned in the Letters Patents are quite different viz. to aid the Regent by their Advice not to act as of themselves and if neither the Governour of himself nor the Councel of it self had such a power neither can both together have it A Court of Justice is not to be intended unless the same be specially shewn Excepting the Case of the common known general Courts of Justice in Westminster-hall which are immemorial if any thing be justified by the Authority of other Courts the same must be precisely alledged and how their Commencement was either by Custom or Letters Patents Here it appears by the Plea it self that they had Justices of Oyer and Terminer appointed It doth not appear that he or the Councel were Judges of things of this kind Besides when a Councel is constituted as here was Twelve by Name that must be the Majority as is the Dean and Chapter of Femes Case Davis's Rep. 47. and that 's Seven at least which are not in this Case There must be a Majority unless the Erection did allow of a less Number The practise of the Courts of Westminster-hall do not contradict this for there 't is a Court whether more or less and so
it hath been time out of Mind But here 's a new Constitution and the Rule holds so in Commissions of Oyer and Terminer if the direction be so as is the Case in Plowden 384. the Earl of Leicester's Case If a Mayor and three Aldermen have Conusance of Pleas what a Mayor and two does is null and void And if there be no direction in particular for the number the Law requires the majority So that here was no Councel because but five of them present The Councel have not the power but the Governour with the Advice and Assent of the Councel and so ought their pleading to have been according to their Case That if a Man justifies as a Judge to excuse him from an Action he must set forth his Authority and the Cause must appear to be within his Conusance and so are multitudes of Cases 3 Cro. 130. 2 Leon. pl. 43. and 1 Cro. 153 557 579 593. 12 Rep. 23 25. Mod. Rep. 119. But taking it as a Councel neither Person nor Thing are within its Jurisdiction for if their Doctrine be true that by being Governour he is so absolute as to be subject only to the King then what Sir John Witham did being while and as Deputy Governour which is the true Governour to all purposes in absentia of the other is not examinable by a Successor But admitting for the present that by the Law one Magistrate may be punishable before his Successor for Miscarriages which were committed colore Officii yet here are no such Miscarriages sufficiently alledged to be charged on him 1. There 's no pretence of an Oath nor Circumstances shewing a reasonable Cause of Suspicion one of which ought to have been 2. In pleading no Allegation is sufficient if it be so general as the Party opponent can't in reason be supposed capable of making an Answer to it and that is the true Cause why our Law requires Certainty He did male arbitrarie execute the Office to the Oppression of the King's Subjects No Man living can defend himself on so general a Charge as this is for if Issue had been taken thereon all the Acts of his Government had been examinable which the Law never allows Then the Particulars are as general 1. That he did not take the usual Oath and it doth not appear what Oath or if any was requirable of a Deputy Governour nor who was to administer it so that non constat whether 't was his Fault or the Governours besides that 's no cause of Imprisonment for any thing which appears in the Plea 2. Assuming illegally the Title of Lieutanant Governour that is so trivial as it needs no Answer for Deputy Governour and Lieutenant Governour are all one locum tenens is a Deputy è contra 3. Altering of Orders at his Chamber ad libitum which were made in Court not said that there was any such Court or what Orders or where made non tantum without etiam or verum etiam is not a sufficient positive Allegation not said that he was guilty but only charged and not said how charged whether with or without Oath in writing or by parol nor said to be in any such manner as that the Councel ought or might receive it tho' Oath be not necessary to be mentioned in the Commitment yet it ought to be alledged in pleading because 't is necessary to warrant the Commitment as was held in the Lord Yarmouth's Case in B.R. It could not be to secure his answering the same for not so expressed and 't is not said that Sureties were demanded or denied or that he had notice of the Charge and surely this was bailable As to the Query If conusable here 't was argued That they had not pleaded to the Jur ' nor any Matter to oust the Court of its Jur ' If they intended by this Plea to have done that they should have given Jur ' to some other Court in some other place but this is not done for if an Injury 't is relievable somewhere in the King's Dominions and whether it be so or not is examinable somewhere Now here is a Wrong complain'd of as done by one English-man to another English-man and a Jur ' attacht in the King's Bench both of Cause and Person by the Bill filed and his Defence to it besides Jur ' could not be examined in the Exchequer Chamber because both the Statute and the Writ of Error expresly provide against it and. this Writ of Error is founded upon that Affirmance and therefore questionable whether that could be insisted on here But supposing it might 't was argued that the Action lies for that 't is a transitory Action and follows the Person wheresoever he comes under the power of the Common Law Process and that a Man may as well be sued in England for a Trespass done beyond Sea as in Barbadoes or the like place as for a Debt arising there by Specialty or other Contract that no Body but Prynne ever denied it and he did so only in case of Bonds dated there That many Actions have been maintained and tried here for Facts done in the Indies notwithstanding special Justifications to them and the Trials have been where the Actions were laid There was quoted Dowdale's Case 6 Rep. 47 48. and 7 Rep. 27. and if otherwise there would be a failure of Justice in the King's Dominions 32 Hen. 6.25 vide Jackson and Crispe's Case Sid. 462. 2 Keeble 391 397. 'T was then argued That whatsoever question might be made about the Trial of the Issue if one had been joyned yet now Demurrer being to the Plea if that Plea be naught then the Plaintiff is to have Judgment upon his Declaration and that is all right It was further said That the Justification of such a tort or wrong ought to be according to the Common Law of England for that Barbadoes is under the same Law as England and if 't were not upon his pleading it must be intended to be so and tho' they should be intended different yet the Defendant in the Action was obliged to the same Rules of Pleading for tho' the Matter may justifie him for an Act done there which would not justifie him for the same Act done here yet he must shew that he hath pursued the Rules of Law in that place or in case of no positive Laws the Rules of Natural Equity for either the Common Law or new instituted Laws or natural Equity must be the Rule in those places 'T was agreed That according to Calvin's Case 7 Rep. 17. upon the Conquest of an Infidel Country all the old Laws are abrogated ex instanti and the King imposes what he pleases and in case of the Conquest of a Christian Country he may change them at pleasure and appoint such as he thinks fit tho' Coke quotes no Authority for it yet 't was agreed that this might be consonant to reason But 't was denied that Barbadoes was a Conquest 't was
command them in Ireland to do Execution there St. John vers Cummin Yelv. 118 119. 4 Inst 72. If Writ be abated in C. B. and Error brought in B. R. and the Judgment be reversed shall proceed in B. R. and 1 Rolls 774. to the same effect Green vers Cole 2 Saund. 256. The Judges Commissioners gave the new Judgment 'T is true in Dyer 343. the opinion was that he was only restored to his Action and then Writs of Error were not so frequent The Judgment may be erroneous for the Defendant and yet no reason to give a Judgment for the Plaintiff as in Slocomb's Case 1 Cro. 442. the Court gave a new Judgment for the Defendant therefore it properly belongs to the Court which doth examine the Error to give the new Judgment the Record is removed as Fitzh Nat. Brev. 18 19. on false Judgment in ancient Demesne v. 38 Hen. 6.30 and Griffin's Case in Error on a quod ei deforceat in 2 Saunders 29 30. new Judgment given here In the Case of Robinson and Wolley in 3 Keeble 821. Ejectment Special Verdict Judgment reversed in the Exchequer Chamber and they could never get Judgment here the Court of Exchequer Chamber not having given it and in the principal Case after several Motions in the Court of King's Bench the Remittitur not being entred there a Motion was made in Parliament upon this Matter and a new Judgment was added to the Reversal that the Plaintiff should recover c. Dr. William Oldis Plaintiff Versus Charles Donmille Defendant WRit of Error to Reverse a Judgment in the Court of Exchequer affirmed upon a Writ of Error before the Lord Chancellor c. The Case upon the Record was thus Donmille declares in the Exchequer in placito transgr ' contempt ' c. for a Prosecution contra regiam prohibit ' and sets forth Magna Charta that nullus liber homo c. that the Plaintiff is a Freeman of this Kingdom and ought to enjoy the free Customs thereof c. that the Defendant not being ignorant of the Premisses but designing to vex and aggrieve the Plaintiff did in Curia militari Henrici Ducis Norfolk ' coram ipso Henrico Com' Mareschal ' Exhibit certain Articles against the Plaintiff c. that Sir Henry St. George Clarencieux King at Arms was and is King at Arms for the Southern Eastern and Western Parts of the Kingdom viz. from the River of Trent versus Austrum and that the Conusance Correction and Disposition of Arms and Coats of Arms and ordering of Funeral Pomps time out of mind did belong to him within that Province and that the Plaintiff having notice thereof did without any Licence in that behalf had and obtained paint and cause to be painted Arms and Escutcheons and caused them to be fixed to Herses that he provided and lent Velvet Palls for Funerals that he painted divers Arms for one Berkstead who had no right to their use at the Funeral and did lend a Pall for that Funeral and paint Arms for Elizabeth Godfrey and marshalled the Funeral and the like for Sprignall and that he had publickly hanging out at his Balcony Escutcheons painted and Coaches and Herses and other Publick Processions of Funerals to entice People to come to his House and Shop for Arms c. That the Defendant compelled the Plaintiff to appear and answer the Premisses c. The Defendant in propria persona sua venit dicit That the Court of the Constable and Marshal of England is an ancient Court time out of mind and accustomed to be held before the Constable of England and the Earl Marshal of England for the time being or before the Constable only when the Office of Earl Marshal is vacant or before the Earl Marshal only when the Office of Constable is vacant which Court hath time out of mind had Conusance of all Pleas and Causes concerning Arms Escutcheons Genealogies and Funerals within this Realm and that no other Person hath ever intermeddled in those Pleas or Affairs nor had or claimed Jurisdiction thereof and that the Suit complained of by the Plaintiff was prosecuted in the said ancient Court of and for Causes concerning Arms Escutcheons and Funerals That by the 13 Rich. 2. 't was enacted that if any Person should complain of any Plea begun before the Constable and Marshal which might be tried by the Common Law he should have a Privy Seal without difficulty to be directed to the Constable and Marshal to Supersede that Plea till discussed by the King's Counsel if it belongs to that Court or to the Common Law prout per Statut ' ill ' apparet and that the said Court time out of mind hath been tant ' honoris celsitudinis that it was never prohibited from holding any Pleas in the same Court aliter vel alio modo quam juxta formam Statut ' praed ' Et hoc parat ' est verificare unde non intendit quod Curia hic placitum praed ' ulterius cognoscere velit aut debeat c. The Plaintiff demurs and the Defendant joyns From the Exchequer Court this was adjourned propter difficultatem into the Exchequer Chamber and afterwards by advice of the Judges there the Court gave Judgment for the Plaintiff which was affirmed by the Chancellor and Treasurer c. And now it was argued on the behalf of the Plaintiff in the Writ of Error that this Judgment was erroneous and fit to be reversed And first to maintain the Court as set forth 't was insisted on 1. That when there was a Constable and Marshal the Marshal had equal Power of Judicature with the Constable as each Judge hath in other Courts 2. That the Constable had in that Court power of Judicature alone when there was no Marshal And 3. That the Marshal had the like when there was no Constable That they had both equal power of Judicature appeared by all their Proceedings by their Libels or Bills in the Case of John Keightley Esq against Stephen Scroop The Libel is In the Name of God Amen Before you my Lords the Constable and Marshal of England in your Court of Chivalry and prays that the said Stephen by their Sentence definitive may be punisht 1 pars Pat. 2 Hen. 4. m. 7. And the same Stephen libelled against Keightley to the thrice Honourable Lords the Constable and Marshal of England So the Libels were directed to both and both sate judicially The same appears by the Sentence or Judgment given in that Court Bulmer libelled against Bertram Vsau coram Constabulario Mareschallo qui duellum inter partes allocaverunt assignaverunt locum tempus Rot. Vascor ' 9 H. 4. m. 14. It doth likewise appear to be so by the Appeals from their Judgments to the King they are both sent to to return the Rolls of their Judgments Rot. Claus 20 Edw. 1. m. 4. In the Appeal brought by Sir Robert Grovesnor against Richard Scroop 't is upon
yet where it was good at Law and no Cheat or Imposition upon the Party but he meant as he had undertaken to pay this Money and was not deceived in his Expectation as to the Success of the Respondent's Endeavours 't would be hard in Equity to damn such a Security and therefore 't was prayed that the Decree should be affirmed It was replied That Marriages ought to be procured and promoted by the Mediation of Friends and Relations and not of Hirelings that the not vacating such Bonds when questioned in a Court of Equity would be of Evil Example to Executors Trustees Guardians Servants and other People having the Care of Children And therefore 't was prayed that the Decree might be reversed and it was reversed accordingly The Society of the Governour and Assistants London of the new Plantation of Ulster in the Kingdom of Ireland Versus William Lord Bishop of Derry APpeal from a Judgment by the Lords Spiritual and Temporal of Ireland in Parliament assembled upon the Bishop's Petition and Appeal to their Lordships form an Order in the Chancery touching certain Lands in the County and Liberties of London-Derry It sets forth amongst other things after a recital of the Proceedings in Chancery and the Merits of the Cause that the Appellants were advised that no Appeal lyes to the House of Lords in Ireland from the Court of Chancery there but that all Appeals from thence ought to be immediatly to their Lordships here the Supreme Judicature as well for Matters arising in Ireland as in this Kingdom and therefore in the Conclusion prays that an Order might be made for the said Bishop to appear and put in his Answer thereto that the Matter might be heard before their Lordships here when it should be thought fit and that the Petitioners might receive such relief as should be agreeable to their Lordships great Wisdom and Justice c. Upon presenting this Appeal to the Lords here the House appointed Lords Committees to consider the proper method of Appealing from the Decrees made in the Court of Chancery in Ireland and to report c. Then pursuant to an Order made by the Lords Committees and a Letter sent to the Lords Justices of Ireland by Order of the House of Lords here Some Precedents or Cases from Ireland relating to the method of appealing from the Chancery there were brought before the said Committee and reported to the House whereupon the House ordered that both Parties might have Copies of the same Then the Society took Copies and preferred a short Petition to the House setting forth the said matter and that they were ready by their Councel to offer several things in order to their Lordship's receiving and proceeding upon their said Appeal whereupon a day was appointed for the hearing of Councel on both sides with regard to Jurisdiction And It was accordingly argued on behalf of the said Society that the Judgments in Ireland whether in Law or Equity were not to be finally Determined there that Ireland was dependant upon England 't was urged to prove it that our Money was to be Current there that our Laws did oblige them that they were governed secundum leges consuetudines anglicanas Davis 21. in which Book 24. that the Easterlings in England who first made the Money of this Standard and from whose Name comes that of Sterling were the first Founders of the four Principal Cities of Ireland Dublin Waterford Corke and Limrick and the other Maritime Villes in that Country and were the sole Maintainers of Traffick and Commerce there which were all utterly neglected by the Irish These Cities and Villes were under the Protection of King Edgar and Edward the Confessor before the Norman Conquest and these Easterlings in Ancient Record are called Ostmanni and therefore when Hen. 2. Upon the first Conquest after their Apostacy thought fit to People those Cities and Villes with English Colonies drawn from Exeter Bristol and Chester c. he assigned to them a certain proportion of Land next adjoyning to each of those Cities which Portion is called in the Records in Ancient time Cantreda Ostmannorum Davis 25. says further that Ireland is a Member of England Inhabitantes ibidem legibus Angliae subjiciuntur utuntur In the Statute of Faculties 28 Hen. 8. cap. 19. 't is mentioned to be the King's Land of Ireland and that this the King's Land of Ireland is a Member Appendant and rightfully belonging to the Imperial Crown of the Realm of England and united to the same And in the 33 Hen. 8. cap. 1. by which the Stile and Title of King of Ireland was given to Hen. 8. his Heirs and Successors 't is further Enacted that the King shall enjoy this Stile and Title and all other Royal preeminences Prerogatives and Dignities as united and annexed to the Imperial Crown of England Nay It may be compared to a County-Palatine Created by the King of England for Davis 62. speaking of that he says that a County-Palatine hath in it jura regalia which consists in Royal Jurisdiction and Royal Seignory By the first it hath all its High Courts and Officers of Justice which the King hath and by the latter it hath Royal Services and Royal Escheates as the King hath and therefore in some respects 't is separated and disjoyned from the Crown as is Plowd 215. yet 't is subordinate and dependant though it be said that breve Dom ' Regis non Currit there yet the Writ of Error which is the dernier resort and in like manner an Appeal is excepted out of their Charters so is Dyer 321. and 345.34 Hen. 6.42 and it would be excepted if it were not so expressed for to have the ultimate Judgment is that which the King cannot grant for such grant would if allowed alter the fundamental constitution of the Realm So in Ireland which is a Realm of it self as Consisting of many Counties Erroneous Judgments given in the chief place there shall be reversed in the King's Bench in England Davis quotes Bracton lib. 3. tit ' coron ' cap. 8. that Comites Palatini habent regalem jurisdictionem in omnibus Salvo Dominio Regi sicut principi so that by his Opinion they are much the same and no Man will deny but that in all Proceedings in Law or Equity the last resort is to the Parliament of England there it is that the King 's supreme Authority is exercis'd It must not be said to be a Conquered Country for the Earl of Stassord's sake though Coke and Vaughan have affirmed it so But it may be called a Plantation or Colony dependant upon England and to many purposes parcel of it This hath not only the same person for their King but 't is under the Crown and Government of England there must be in all these Cases a Superiority or superintendency over inferiour Dominions for otherwise as Vaughan puts it 401. the Law appointed or permitted to such places might be insensibly changed within it self
after Judgment affirmed in the Exchequer Chamber Or if that proceeding in the Exchequer Chamber doth not come in lieu of Error in Parliament according to the Statute of Eliz. William Bridgman al' Versus Rowland Holt al' A Writ of Error and Petition in Parliament The Case below was thus William Bridgman brings an Assize for the Office of chief Clerk for inrolling of Pleas in the Court of King's Bench and the Plaintiff declares that the Office of chief Clerk for inrolling of Pleas in the Court of King's Bench was time out of mind granted and grantable by the Kings and Queens of this Realm and that King Charles the Second by Letters Patents under the Great Seal of England Dated the Second of June in the Five and twentieth Year of his Reign after a Recital that Robert Henley and Samuel Wightwick were duly admitted to this Office for their Lives granted this Office upon the Petition of Eliott to Silas Titus so soon as it should become void and that Wightwick was dead and Titus had surrendred his Patent did in consideration of Service done by the Earl of Arlington grant this Office to the Plaintiff and his Heirs for the Lives of the Earl of Arlington Duke of Grafton and Dutchess of Grafton and the longer liver of them from and after the Death Forfeiture or Surrender of Sir Robert Henley and that Sir Robert Henly was dead and that thereupon the Plaintiff became seized and was seized of the Office till the Defendants did disseize him c. The Defendants pleaded that they did not wrong or disseize the Plaintiff Upon the Trial of this General Issue at the Bar of the King's-Bench before the three puisne Judges the Chief Justice then sitting near the Defendant's Counsel upon a Chair uncovered the Plaintiff gave in Evidence the Letters Patents of 2 June 25 Car. 2. Then it was proposed by the Counsel for the Defendant That they would prove their Allegation that the Office was anciently granted by the Kings and Queens of England as was declared but no Evidence was given besides this Patent of Car. 2. Then the Counsel for the Defendant waving the just Exception which they might have taken to the Plaintiff's Grant as to him and his Heirs which ought not to be of such an Office for that by that means it might come to an Infant They insisted upon the meer right of Granting the said Office viz. that it was not grantable by the Crown but was an Office belonging to the Chief Justice of the King's Bench and grantable by him Then to prove this it was shewn That this Officer is to Inroll Pleas between Party and Party only and had nothing to do with any Pleas of the Crown or Criminal Matters that all the Rolls and Records in this Office were in the Custody of the Chief Justice that all the Writs to certifie or remove the Records in this Clerk's Office are directed to the Chief Justice and from the nature of the Imployment 't was insisted that in truth he was but the Chief Justices Clerk and that consequently the same must be granted by the Chief Justice And for further proof it was shown by the Records of the Court that for the space of Two hundred thirty five years past this Office when void had been granted by the Chief Justice and enjoy'd accordingly under such Grants In Trin. 36 Hen. 6. Rot. 36. inter placita Reg. Anno Dom. 1458. It is inrolled thus Be it remembred that the Tenth of July this Term in the Court of our Lord the King at Westminster came William Sond chief Clerk of our Lord the King for inrolling Pleas before the King himself in his proper Person and in the same Court of his Free-will did surrender his said Office into the hands of Sir John Fortescue Kt. Chief Justice of that Court to whom of right it doth belong to grant that Office to whomsoever he pleaseth whensoever that Office shall be void during the time that the said Sir John Fortescue shall be Chief Justice and that Office doth resign and relinquish to the use of William Brome and the said Chief Justice doth accept the said Surrender and doth the same day grant the said Office to the said William Brome who is presently admitted into the said Office for his Life and sworn accordingly Mich. 1. Edw. 4. Rot. 51. Upon Brome's Surrender to Sir John Markham then Chief Justice the Chief Justice grants it to Mr. Sonde who is admitted for Life and sworn Mich. 8 Edw. 4. Rot. 26. 1467. Upon the Surrender of William Sonde to the said Sir John Markham then Chief Justice he grants it to Reginald Sonde who is admitted and sworn Reginald Sonde enjoyed this Office till the time of Henry the Seventh and then Bray came in and was Clerk till the 13 H. 7. and then came in Roper Hill 9 Hon. 8. Rot. 3. Anno 1518. Upon the Surrender of this place to Sir John Fineux Chief Justice by John Roper the Chief Justice grants the Office to Sir John Roper and William Roper who are admitted for their Lives and sworn Hill 1 2 Edw. 6. Anno 1547. Upon the Surrender of William Roper Sir John being then dead to Sir Richard Lister then Chief Justice he grants the Office to William Roper and Rute Heywood and they are admitted and sworn Hill 15 Eliz. 1573. Upon the Surrender of William Roper Heywood being dead to Sir Robert Catlin then Chief Justice he granted this Office to John Roper and Thomas Roper for their Lives and they are admitted and sworn Mich. 14 Jac. 1 Rot. 2. Anno 1616. Upon the Surrender of John Roper Thomas being dead to Sir Henry Mountagne then Chief Justice he grants the Office to Robert Heath and Robert Shute for their Lives who are admitted and sworn thereupon Hill 18 Jac. 1. 1620. Shute being dead upon Sir Robert Heath's Surrender to Sir James Leigh then Chief Justice he grants the Office to Sir Robert Heath and George Paul for their Lives and they are sworn and admitted in Court Mich. 5 Car. 1. Upon the Surrender of Sir Robert Heath and Sir George Paul to Sir Nicholas Hide then Chief Justice he grants it to Robert Henley and Samuel Wightwick for their Lives and they are admitted and sworn Trin. 1654. Upon Wightwick's Surrender to H. Roll then Chief Justice Henly being then under Sequestration the Chief Justice grants it to Sam. Wightwick and to Robert Henly Junior for their Lives and they are admitted and sworn Mich. 12 Car. 2. Upon the Surrender of Samuel Wightwick and Robert Henly to Sir Robert Foster then Chief Justice he grants it to Henly and Wightwick for their Lives and they are sworn Wightwick died soon after and Sir Robert Henly enjoy'd it under that Grant 32 years And it was observed on behalf of the Defendant That in all these Records produced and read in Court after the mention of the Surrender to the Chief Justice there are these words To
whom of right it doth belong to grant that Office whensoever it shall be void It was then further insisted on and proved That there are in the nature of Clerks three considerable Officers of the Court of King's Bench The first and chiefest is the Clerk of the Crown called sometimes Coronator Attornat ' Domini Regis c. his Business is to draw all Indictments Informations c. in Pleas of the Crown This Officer being the chief Clerk in Court is always made by Patent under the Great Seal The second Officer is this the Prothonotary or chief Clerk for inrolling Pleas between Party and Party in Civil Matters He and his Under-Clerks do inroll all Declarations Pleadings c. in Civil Causes especially where the Proceedings are by Bill This Clerk files in his Office all Bills Declarations c. and all the Writs of this Court in Civil Matters are made by him and his Under-Clerks and tested by the Chief Justice And he hath the custody of all Returns of Elegits Executions Scire Facias's and the filing of all Villes every of which are in the Eye and Judgment of the Law in the hands of the Chief Justice whose Clerk this Officer is The third is the Custos Brevium who keeps all the Rolls and Records of Judgments in this Court which are also said to be in the custody of the Chief Justice And this Office when void is in his Gift and Disposal It was further shewn on the behalf of the Defendants That in the Statute of Edw. 6. against the Sale of Offices there is a Salvo to the two Chief Justices and Judges of Assize to dispose of the Offices in their disposition as they used formerly And ever since that Statute these two Offices of chief Clerk to inroll the Pleas c. and the Custos Brevium have without controul been disposed by the Chief Justice of the Court of King's Bench. And it is also observed That in the Grant of this Office to Mr. Bridgman the Plaintiff it is recited that Henly and Wightwick were debito modo admitted to this Office and yet they never had any Grant from the Crown nor any other Grant except that from the Chief Justice before mentioned Then to prove the Defendant's Title to the Office the Grant of the now Chief Justice to them for their Lives was produced and read and proved that they were admitted and sworn To answer all this Evidence there was produced the Copy of an Act of Parliament which was made in 15 Edw. 3. to this effect It is consented that if any of the Offices aforesaid which are other great Offices mentioned in the Act or the Controller or chief Clerk in the Common Bench or King's Bench by Death or other Case be ousted of their Office the King with the consent of the great Men c. shall put another fit person in such Office From whence the Plaintiff's Counsel would have inferred That the King had a right to grant this Office and that this Act was declaratory of such his Right and that all the Grants from the Chief Justices ever since that Act were but Usurpations on the Crown and that no Usage of granting it by the Chief Justices could prevail against the King's Right To this it was replied That the Act was repealed as did appear by the Record it self as well as by their own Copy produced And for a further Answer 't was said That the Office in question was not the Office mentioned in that Act for that Act mentions the chief Clerk of the King's Bench which is the Clerk of the Crown and so called in the 2 H. 4. the Statute against Extortion and he is in reality the chief Clerk in that Court and hath precedency of this Officer both in Court and elsewhere And that this Officer is not called chief Clerk in the King's Bench altho' he is the chief for inrolling of Pleas Civil in that Court And the constant Usage explains the meaning of that Act. And that the Officer called chief Clerk was meant to be the Clerk of the Crown for that that Office hath been always granted by Letters Patents according to that Act And the Office in question was never enjoyed one day by virtue of a Grant from the Crown The Defendants did further insist That it was a Scandalous Imputation upon all those chief Justices who were Persons of Probity and Virtue and had clear Reputations to surmise that they imposed and usurped upon the Crown as they must all have done if the right of granting this Place be in the King And Sir Robert Heath that was the King's Attorney took a Grant of the Office in question from the Chief Justice and upon his Admittance the right of the Chief Justice to grant it is affirmed upon Record Then all this Evidence on both sides being given and the same being strong on the Defendants behalf the Court proposed to the Plaintiff's Counsel to be Nonsuit which they would not but prayed the Court to direct the Jury some of them saying that they would take another Course And then the Court did briefly sum up the same and particularly the Evidence of the Act 15 Edw. 3. and what was urged from it by the Plaintiff and the Answers made thereto and left the Matter to the Jury upon the whole The Jury withdrew and after some time gave a Verdict for the Defendants Upon this Verdict the Counsel for the Plaintiff prayed leave to bring in a Bill of Exceptions and produced in Court and tendred to the three Judges to be sealed a Parchment Writing in form of such a Bill in which after a Recital of the Declaration and Issue in the Cause 't is alledged That the Plaintiff's Counsel produced in Evidence the Grant of the Office to the Plaintiff and that they shewed to the Court and Jury that the Office is of the Grant of the Crown And that to make out the Right of King Charles the Second to grant this Office to the Plaintiff they gave in Evidence the 15 Edw. 3. which in the Bill is set out at large and is in Substance as is before set forth And 't is further alledged in the Bill That the Justices refused to allow admit and receive the Allegations and Matters given in Evidence as sufficient to prove the Plaintiff's Title to this Office by reason whereof the Jury found That the Defendant did not disseize the Plaintiff and prays that the Justices would put their Seals to it according to the Statute of Westminster 2. cap. 31. The Justices upon reading this Bill did refuse to Seal it 1. Because 't is asserted therein That the Plaintiff's Counsel did show that this Office was of the Gift and Grant of the King whensoever it should be void whereas there was no such Evidence to show any such Right in the King offered or pretended to besides the Patent in question and the Act of Edw. 3. 2. That the Judges refused to allow admit and
Clerk who was inducted and afterwards died and the Church being so void the Defendant presented one Scroop his Clerk absque hoc quod praed ' nuper Rex Car. 1. obiit seisitus of the Advowson aforesaid in manner and form as the Attorney hath declared Et hoc paratus est c. unde petit jud ' et breve Episcopo c. Scroop pleads the same Plea mutatis mutandis The Attorney General craves Oyer of the Letters Patents produced in Court and they are read to him and are to this effect They recite That Queen Elizabeth had by her Letters Patents Anno 13. Regni sui granted to then Earl of Warwick all those Mannors of Bedall and Ascough c. and all Advowsons and Rights of Patronage thereunto belonging c. rendring a Rent and that Jac. 1. had granted the Rent to Sir Christopher Hatton et al' and that the said Mannors and Rents by good Conveyances in the Law had come to Sir William Theckston Knight and that he then had and held the same to him and his Heirs then 't is Know ye That we for divers good Causes and Considerations and of special Grace c. do ratifie and confirm to him the said William Theckston and his Heirs c. all those c. then it follows That whereas the said William Theckston by Virtue of the said Letters Patents made to the said Earl of Warwick and lawful Conveyance of the Premisses to himself made doth claim to have the Advowson of the Church of Bedall aforesaid according to the Tenour and Intent of the said Letters Patents and whereas he the said King Car. 1. upon the Death of one John Petty had by lapse presented Wilson and after his Death the said Theckston claiming the Right of Presentation the said King ad dictam Ecclestam sic vacantem ut ad presentatioâ—em snam pleno jure spectant had presented Dr. Wickham and that the said Theckston to recover his Right had brought his Writ of Quare Impedit upon which Issue was joyned That afterwards it was agreed between Theckston and Wickham that Wickham should enjoy it during his Life and that Theckston and his Heirs should have it quietly for ever after prout ex informatione dicti Wickham nostri Capellani in ordinario accepimus Nos igitur volentes That the said Presentations of the said Wilson and Wickham or either of them or their or either of their Institution and Induction should not hurt the said Theckston's lawful Right of presenting to the said Church for the future and it is our further Intention That the said William Theckston his Heirs and Assigns shall freely and peaceably have and enjoy the said Advowson of the said Church of Bedall according to the Tenour and true Intent of the said Letters Patents granted by the said Queen to the said Ambrose Earl of Warwick any Defect or Defects in the same Letters Patents notwithstanding And then follows the Grant it self in these Words Sciatis igitur quod nos ex uberiori et speciali gratia nostra c. Know ye therefore That we of our more abundant and special Grace and of our certain Knowledge and meet Motion have given and granted and do by these presents for our selves our Heirs and Successors give and grant to the aforesaid William Theckston the Advowson Donation free Disposition and Right of Patronage of the aforesaid Church of Bedall and all our Right Estate Title Interest and claim whatsoever of presenting to the said Church whensoever or howsoever it shall become void Quibus lectis anditis the Attorney General demurrs and the Defendant joyns and Judgment in C. B. pro Domino Rege upon this Reason only that this Grant was void the Advowson being in gross and nothing was intended to pass but an Advowson Appendant and so the King was deceived and upon a Writ of Error in B. R. the Judgment was affirmed upon another point viz. That the Grant pleaded was to William Theckston then Esq and afterwards Knight and the Grant set forth upon Oyer was to William Theckston Knight and there were Three Judges of Opinion with the Patent and one only against it and one Judge of Opinion with the Plaintiff in the Error as to both the Validity of the Patent it self and the Identity of the Person named in the Plea and Patent And now it was argued for the Plaintiffs in the Writ of Error That this Judgment was erroneous and first it was answered to the Objection of the Variance between Knight and Esq and it was said That in case of a Title of Worship the want of it could never viciate a Grant that even in Indictments upon the Statute of Additions a Gentleman may be called Esquire and so e ' contra and thus is 2 Iust that here constat de persono there 's nothing doth appear to shew them to be different that in case of Feoffments this Pretence will not hurt because the Person is ascertained and here 't is likewise the same it is William Theckston then Esq and afterwards Knight 't is but one Man they are two different Affirmations concerning the same Person that in the Case cited on the other side of the Earl of Pembroke in Jones's Rep. and in 1 Cro. 173. and Littlet 191.223 Richardson and Hutton are of Opinion That such Grant is good then 't was said That 't would be very hard to intend them several Persons in order to avoid a Grant that Veritas nominis tollit Erroreâ—â— demonstrationis Persone that he was William Theckston that if it had been said concessit Wilielmo Theckston generally that would have been sufficient and his being an Esq doth not exclude his being a Knight so that 't is not a false Description 25 Edw. 3.19 a Writ was abated because shewn that they were two Persons but held that if it had appeared that they had been but one 't would have been well Then was cited the Major of Lynnes Case 10 Rep. 126. 'T is true this is a Name or Title of Dignity to some purposes but not to all It must be agreed to be so upon Originals and Indictments and there is a very good reason for it because in that Case a greater Certainty is required that one Man may not suffer for or instead of another but in Case of Grants any Description of the Person is sufficient besides if a Name be mistaken in a Writ or Indictment another may be sued or preferred by the true Name but a Man cannot of common Right demand a new Grant tho' this be a Grant from the Crown 't is the same case for the King's Grant shall be taken most beneficially for the Support of his Honour 6 Rep. 6. that here 's no COlour to pretend two William Theckstons Then it was said That this at most was only an Addition of Enlargement to his Name not parcel of the Name it self for no more goes to that than Christian and Sirname then 't was said 't
is generally known That the use of Sirname was not settled amongst us till long after the Conquest that before then they were named by their Titles Offices Places of Birth or Residence or Employments as doth appear plainly by Dugdale 1. Monast 37. In those Days Miles was used instead of the Sirname immediately after the Christian Name as Ego Wolwardus Miles and many more such Selden's Tit. of Hon. 637 638. thus in 1 Monast 166. Domim Algari militis 2 Monast 173.853 thus it was in the time of Hen. 2. then after Sirnames came to be used this Title of Miles was also used as an Addition or Inlargement after the Sirname Cambden's Treatise of Sirnames in his Remains and Kennell's Parochial Antiquities lately Printed at Oxford in 4to do shew this That the Title of Knight came after the Sirname as an increase not in Reu of it as Merchant Mercer c. Professor of Divinity Law Musick Master of Arts c. for further Distinction sake Then it was said That this use of Sirnames holds not in case of Bishops Dukes or Earls for they add only the Place and therefore the Descent or Accession of the Honour comes instead of the Sirname so is 2 Inst 666. but now William Theckston when made a Knight he remains William Theckston still he loses no part of his former Name tho' the same be inlarged if it had been otherwise 't would have merged the Sirname but his Title makes no Alteration therein at all The Law doth require a Man to be named only by his Christian and Sirname unless somewhat comes in lieu of the last or the first be altered by Confirmation a Grant is good if the Party be so described as that he may be known tho' there be a Mistake in it yet 't is good as a Grant to an Earl or Bishop by a wrong Christian Name hath been held 2 Rolls Abr. Tit. Grants 44. Dyer 376. 't is the Identity of the Person which the Law doth most regard and value and therefore since there was no presence but that the same Person who granted it to Pierse was intended by and in the King's Patent it was hoped That such a Nicety should not lose the Subjects Inheritance in this Advowson which he had bought for a valuable Consideration Further it was said this could not hurt upon the Oyer of this Grant in this Record as this Case stood and should be further shewn anon Then it was argued That either take the Case upon the Declaration and Plea alone or take it as it stands upon the Letters Patents alone either of these two ways 't is with the Subject If the Patent be considered by it self there 's nothing appears to make it void the King had a Power to grant and there are Words sufficient to pass it Then consider the Declaration and Plea there 's a good barr to the Title laid in the Declaration so that the only Objection can be upon the Rules of pleading as it stands all together and the Query is If P. hath owned or confess'd any such thing as is pretended of a Seisin in gross in Eliz. anno 12. and if it be admitted whether the King can take an Advantage of the Variance between the Patent set forth on Oyer and that which is pleaded the same being only pleaded by way of Inducement whether the King can waive his own Title and question the Defendants in this Case As to the first it was said That this Grant was not void by reason of any such Admission the King declared his full Intention That Sir William should fully and freely enjoy this Advowson any Defects to the contrary notwithstanding that 't is not admitted in this Case to have been an Advowson in gross in the 12th of Q. Eliz. no such thing doth appear and then the Grant of Car. 1. is good and if it did so appear yet the Grant is good The Plea doth say that Car. 1. came to it by Descent but that doth not admit her seized in gross That Allegation in the Declaration is mear Surplusage and Immaterial and cannot hurt the Party which makes it tho' contradictory to or inconsistent with his Title Nor can it benefit the other side to deny it for if he had denied it it could have done him no good and consequently to admit it shall not hurt him Now 't is not necessary in a Quare Impedit to alledge a time of Seisin a Seisin generally in time of Peace is enough then the not denying admits only what is materially alledged Suppose the Defendant had pleaded absque hoc that Queen Elizabeth did present Tymmes modo et forma and it had appeared upon the Trial that he was presented in the 43d Year of her Reign it must have been against the Defendant Even where time is required to be alledged another time may be proved as in Trespass Battery c. The most that can be pretended to is that here is an Admission of her being seized in gross after the Grant to the Earl and it might be appendant then and afterwards got to the Crown by Presentations there 's no colour to suppose an admission of the time Hob. 71. The Case of Sherly and Wood and 2 Leon. 99. prove that neither alledging or confessing a thing immaterial shall hurt the Reason is the same for both There was a plain Artifice in this Pleading the Declaration mentions a Presentation prout per Inrolment which cannot be unless in the same Court otherwise you must plead an Exemplification Wymock's Case 5 Rep. If the Declaration had been in the common usual way setting out the Queen to have been seized generally or to have presented generally there had nothing appeared to have hurt this Grant for it might then have been appendant and if it might be so it shall be intended to be so for he is not bound to aver it to be appendant for upon Oyer every thing shall be intended to make a Grant good unless the contrary doth appear 2 Cro. 679. he need not plead that it was appendant at the time of the Grant to the Earl Concessit is enough and that tho' in general words 35 Hen. 8. Bro. Pleading 143. Kelway 43. 1 Rolls Abridg. 405. Then suppose it did appear that this Advowson was not appendant in the 13th Eliz. yet it doth pass There is but one supposed Falsity and that is Dr. Wilson's Presentation by Lapse which is admitted to be pleno jure First The Grant is full express and large enough Know ye therefore c. All our Right c. as full words as can be used without any restriction whatsoever And as to the Suggestions there 's not any Mistake in them 'T is not suggested that 't was ever appendant not suggested that it did pass by those Letters Patents nor that it came to Th. but only that he claimed it and the word claim doth not always import a lawful Claim for a Man is amerciable pro falso
clamore Here 's as much Caution and Care in the penning of these Letters Patents as was possible nothing but what is exact Suppose a Man doth claim an Advowson by a void Grant and he brings a Writ after the King hath presented and the King says Let my Clerk have it quietly for his Life and you shall have a Grant from me and shall be secure of all my Right for the future 't is not said that 't was Sir William's Presentation but he sued a Writ so describing it 'T is admitted by Car. 1. that this Patent might be void yet it was his Intention that Th. should have it for the future This Intent is as plain as words can make it that he and his Heirs should for ever enjoy it notwithstanding any defect in the Patent of Q. Eliz. 'T is not only to restore an old Title and make reparation for the wrong done by the King's Presentation but in Case the old Title were defective to make and give to him a good one If it appears that the King's Intention were for passing it it shall pass notwithstanding a Mis-recital Suppose the Grant had been recited at large and no more had been said but the King confirms it would not that have been good Then was cited the Earl of Cumberland's Case 8 Rep. 166. the word therefore is in that Case too yet because full words are superadded it shall not be qualified by the Deed recited and that is a much stronger Case than this Hill 22 23 Car. 2. Sir Robert Atkins versus Holton 't is in Ventris And the pleading in Vidian's Ent ' agreed that King John's Patent was void and King Edw. must have been deceived in his Grant and his Intention might be there said to be only to make a Restitution And a false Inquifition turns a Man as much out of possession of a Franchise as the King's Presentation doth out of a Patronage but held there that tho' King John's Grant was void yet that of Edward was good because the words were full and General and the King shewed his intent that the Party should have the thing But the other side have objected That this is a qualified Intention according to the tenor of the first Patent To which it was answered That the King did suppose that Patent to be defective and his true intent was that Th. should have the Advowson Besides tho' it were in gross yet it might have the reputation of being appendant and it was the King's meaning to pass it 6 Rep. 63. a small matter will make a reputation of an Appendancy If a Man mortgages his Mannor excepting the Advowson thereto belonging 't is become in gross but when the Condition is performed and the Deed avoided 't is appendant again therefore it might be thought appendant it might be some accident which did sever it from the Mannor yet if it had the reputation of being so it might be within the King's intent to pass it tho' it did not pass by the first 't was intended that some Advowson should pass and here are express words to pass this In Coke's Entries ... Quare Impedit it appears that this Advowson of Bedall was appendant It further appears by History That this Simon Digby had committed Treason before the Church was void and before Attainder the Queen presented that made it in gross then the Attainder makes it appendant again then tho' it might be possible that the Queen was seized in gross yet if it were so upon Digby's Attainder she was seized of it as appendant now if any thing might make it appendant 't will be hard to construe it void where for any thing that doth appear it might be good Such Declarations so subtle may ensnare any Defendant and take away any Man's Inheritance The Attorney should have taken Issue upon the Traverse and that would have brought the whole Matter in question As to the mistake about Wilson's Presentation that cannot vitiate against an express intent the King's design was to determine the difference between his Incumbent and another he would not have his Right in this Benefice to be questioned or disputed for otherwise there was no reason for Th. to take a Grant to avoid Controversie and yet that new Grant to leave him in as bad or worse Condition here 's both Confirmation and Grant and if so what matters it whether Wilson were presented one way or the other Th. could not have been in a worse Condition if he had miscarried in his Writ the King designed to him all the Right which he had and otherwise he was at the charge of procuring Letters Patents to no other purpose then to be deceived Besides here was a good Consideration tho' Th. had no right a Surrender of void Letters Patents is a good Consideration 1 Rep. 143. Altonwood's Case and 5 Rep. 65. Lord Chandois's Case the King there thought himself seized by virtue of the Surrender which he was not yet held good so that 't is not every Mistake that will avoid a Grant when the Intention appears 1 Rolls Rep. 23. Therefore if there may be any thing given in Evidence which might support these Letters Patents they shall not be adjudged void upon Oyer and to make these void of Car. 1. they must construe those of the Queen void and these cannot be adjudged void because they are not before the Court Letters Patents recited were never adjudged illegal for notwithstanding this recital there might be more words in them which might make them good 't is inter alia suppose it had been spectant ' or existent ' in Bedall that would have passed the Advowson in gross 'T is not inconsistent with any thing said in this Patent of Car. 1. to say that the other of Queen Elizabeth contained or passed more Mod. Rep. 194 195. Hardres 231. the igitur is only nota continuationis and doth not always suppose all that 's precedent to be the Consideration it can't well begin a Deed and that is all 't is Exuberiori gratia c. 3 Leon. 249. 'T is impossible to suppose or use more comprehensive words then in this Case and therefore it was inferred that these Letters Patents of Car. 1. were good Then it was argued further with the Plaintiff in the Writ of Error that in this Case Mr. Attorney can take no advantage of either of these Mistakes in the Defendant's Plea if they are such for that 't is only Matter of Inducement and the Letters Patents needed not have been pleaded with a profert hic in curia and therefore cannot hurt If the Inducement be good to maintain the Traverse or make it material that 's enough but still the Inducement is not traversable 'T is true that generally speaking a Deed or Grant after Oyer becomes part of the Plea but still 't is only Inducement If a Defendant confesses and avoids the Plaintiff shall not depend upon that which he confesses but answer that whereby he avoids
Feodary and Officiary as Earl Marshal of England which have a Relation to an Office or Land for such are Transferrable over and such Dignities as are only Personal Inherent in the Blood and only favour quasi of the Reality of which no Fine can be levied as 't is of an Annuity to a Man and his Heirs no Fine can be levied 2. A Dignity was neither subject to a Condition at the Common Law nor intailable by the Statute de Donis c. nor barrable by the Statute of Fines Indeed in Nevil's Case something which favours of the contrary Opinion is said but the Question there was Whether 't was forfeitable by Treason And therefore the present Question is very forreign to the Matter there debated A Dignity differs from other Inheritances being an Honour Personal affixed to the Blood cannot be forfeited by a Non-performance of a Condition except that Tacite Condition in Law and consequently cannot be intailed and tho' the Title of a Viscount be of a Place yet it is only Titular for it is often taken from the Sirnames of Families 3. The Title of Viscount c. is not so much a private Interest as a publick Right for Peers are born Counsellors of State and one part of a Senatory Body and therefore cannot be renounced without the Consent of all those who have interest in it they cannot without the Consent of the whole Body whereof they are so considerable Members cut themselves off from the Body and so the Objection of quilibet potest Juri suo renuntiare is easily answered 'T was further argued on the same side That 1. An Honour goes not according to the Rules of the Common Law nor is it governable by them it is not therefore pertinent to argue from those Rules which hold in Cases of other Inheritances for a Dignity descends to the Half-blood there is no Coparcinership of it but the Eldest takes the whole a Fee-simple will go to a Noble-man without the word Heirs 1 Inst 27. It differs from Estates in Land in the Intrinsick Matter as well as the Manner of the Limitation because it is given for two Reasons for Counsel and Defence and it is a Civil Interest appointed by the Civil Constitution of the Realm which goes with the Blood and is inherent in the Blood insomuch that it is agreed on all hands that it can't be transferred to a Stranger and till Nevil's Case 't was doubted whether forfeitable for Treason if a Lord die his Son shall be introduc'd without the Ceremony usual at the first Creation a Peer's eldest Son and all Minors sit behind the Chair of State to prepare them for the Sitting in the House as Members and because they have some Title to the Honour they are called Nobiles Nati for the first time they fetch breath they have Nobility in them So that he that Surrenders by Fine must not only extinguish his Estate in the Honour but also the Nobility of his Blood 2. Every Lord is not only a Lord for himself but also hath a Right of Peerage and is a Peer of the Realm and therefore a Peer for every one of the House and therefore hath the Priviledge to demand his Writ Ex debito Justitiae and is to be tried by his Peers in Capital Crimes and that appears farther from a Matter which happened in this House 16 Car. 2. There was an Order mentioning the Bishops to be Lords of Parliament not Peers at which the Lords wondering ordered a Committee to examine the reason of it which proves that Lord is not so high nor inclusive as Peers So that if the Fine have any Operation it takes away not only his Right but also the Right of the House of Lords 3. The trial of Baron or no Baron upon Issue in any Court of Judicature is by the Records of Parliament but if a Fine may be levied in the Common Pleas the Trial is drawn ad aliud Examen and must then be by the Records of that Court The Clerk of the Parliament always certifies if he be a Baron because he hath the Record before him but he cannot certifie he is no Baron because he hath not the Record thereof before him 4. No Fine can be levied of a thing Personal as an Annuity to a Man and his Heirs but a Dignity is a thing Personal and so he took notice of the difference betwixt the Honours of Peerage which are Personal and the Honours that are Feodary and Officiary which have reference to an Office or Land 5. He did argue ab inconvenienti that this Opinion can be no Inconveniency to the Crown but the contrary makes Nobility a meer Pageantry by putting it into the Hands of a weak and angry Father to dispossess an hopeful Son of that which is his Birth-right The Titles of Esquire and Gentleman are drowned in the greater Dignity of that of a Peer and when the greater are gone the other must go with it And then from being a Nobleman to day he and the rest of his Family must be below all Nobility and be called Yeomen or Goodman Villers to morrow which may bring great Confusion to a Noble Family and all its Relatives and surely this House will not put such a publick Disrespect on such a Family by agreeing to so unjust an act of one Man And that which was most relied upon was a Resolution of this House in Stafford's Case Anno 1640. which no Man without Indecency can question it passed not sub silentio or obiter but upon debate neither could it be any way invalid upon account of the Times for it was in the Infancy of that Parliament and that wherein a Peer's Case who sits now in this House was judicially before them and therefore there is no reason to shake that Judgment more than any other Judgment of that time My Lord Cooke in his 4 Inst Chapt. of Ireland is of Opinion that Honours cannot be extinguished but by Act of Parliament Then as to the Precedents that have been urg'd on the other side there are none directly to the Point for as to Nevil's Case there are very few Cases cited there aright and are not to be look'd upon as Law The Case of my Lord of Northumberland in 3 4 Phil. Mar. was by way of Creation and so was the Case of Dudley And Dugdale in his Baronage of England pag. 270. gives an account of it and the rest of the Precedents are above Two hundred years old which passed sub silentio and are not to be vouched unless they were disputed The first is Bigod's who in the time of Edw. 1. surrendred the Honour of Earl-Marshal of England to the King who granted it to him in Tail This Honour is Officiary and therefore nothing to the purpose and the Surrender was made thro' fear Walsingham 95. The next is the Earl of Pembroke's Case who in 8 Edw. 4. was made Earl in Tail and by this he had the
Grant of the Town of Haverfordue the King afterwards inclining to dignifie his Son with that Title procured him to Surrender by Deed and bestowed on him another Title and gave a greater Estate and an ancienter Honour Here was an Estate Tail surrendred by Deed it might work a kind of Discontinuance but no legal effectual Surrender And for the Case of Ch. Brandon who in the time of H. 8. was created Viscount Lisle afterwards he surrendred that and got a Dukedom now no Man ever questioned the efficacy of this Surrender for he himself had no reason to question it for 't was to his advantage and none other could question it for he died without Issue and his Honour with him And so in the Case of my Lord Stafford he surrendred and got a new Honour So that it appeared all these Cases were either Honours referring to Offices and Lands or else such as were for the re-granting of greater Dignities which they had no reason to question and so they passed sub silentio But here is not one Precedent that they did ever Surrender to the Prejudice of their Blood or move themselves quite out of the House by Fine or Deed. And further If Precedents be good for the Surrender of an Honour by Fine why not also for Transferring of it to another for of this we have some Precedents Daincourt's Case 4 Inst 126. One Branch of the Family sat in the House by virtue of a Grant from the other Branch from the Reign of Ed. 2. to Hen. 6. and the Case of the Earldom of Chester first granted 17 H. 3. n. 25. and transferred 39 H. 3. And there was an Attempt made in the Lord Fitzwater's Case to make a Baron by transferring of the Dignity but you will find all these Precedents disallowed And 't was said that no Man ever met with any Case where any Nobleman by Fine levied or other Conveyance became a Yeoman or Ignoble 'T was argued by another much to the same effect That Baronage and Peerage is to be determined by the Records of the Lords House and if any other way be given as there must be if a Fine be allow'd to barr then the old true way is gone This was not a Fine Conditional at the Common Law and therefore not within the Statute De donis Conditionalibus and an Honour being a Personal Dignity is not to be barred Jones Rep. 123. by Fine being inherent in the Blood c. The Duke of Bedford was by Authority of Parliament degraded and that was for Poverty and by Act of Parliament and not by Surrender Therefore Judgment was prayed for the Petitioner The Attorney General argued pro Domino Rege upon these Reasons 1. There is but a defective Proof of the Creation of this Honour no Letters Patents no Records of the Inrollment produced nor any Entry in any Office of such a Patent as is usual all that is pretended is That he sate in some Parliaments afterwards as Viscount Purbeck but that will not be accepted for proof for no Man can be created Viscount but by Letters Patents a Writ of Summons will be an Evidence of a Creation but will not amount to a Creation there is a Ceremony equal almost to that of an Earl there must be a Coronet all which must be performed or he must have Letters Patents to dispense with it which being Matter of Record must be produced 18 Hen. 6. Beaumont was the first created Viscount but there was never any since nor then without Letters Patents for he is to take place of some and therefore he must have something to show for his Precedency but a Baron is the lowest Dignity and therefore may be created by Writ Neither can it be presumed that they were lost for except it be produced it makes no Title except they be produced it shall not be intended there was any neither can it be help'd by any concurrent Evidence for if there were Page's Case 5 Rep. 53. a true Creation there would be some Evidence in some of the Offices but there is not in any of them the least vestigia of proof to ground a presumption 2. Dignities as well as other Inheritances must be limited according to the Rules of Law the Dukedom of Cornwal in 8 Rep. the 1. the Prince's Case was limited according to the strictest Rules of Law And whereas it hath been said that Dignities differ from other Inheritances that is where there is some particular reason for it as in the case of Transmission or Alienation which depends not upon the Manner of Creation as shall be shewn afterwards And for the Case of 1 Inst 27. which was that an Inheritance of a Dignity may be created by other words than other Inheritances are as an Estate Tail without the words of this body there 's not any such thing in the Book 'T is said indeed that if the King for reward of Services done do grant Armories to a Man and his Heirs Males 't is an entail of the Coat without saying of his body but I think that will not be taken for the Case of a Dignity the Statute De donis Conditionalibus extends to Honours the word terram would be thought an improper word to comprehend all things tailable yet said to extend to all and to Honours too 1 Inst 20. and if an Honour can't be entailed then no Remainder can be limited and yet there be many Lords that sit in this House by Remainder by good Title The Statute of 26 Hen. 8.17 saith That if a Man be Attainted of Treason he shall forfeit his Lands Tenements and Hereditaments Now 't is adjudged that the word Hereditaments comprehends Honours which show that they are subject to the same Rules of Law that govern other kind of Inheritances and are comprehended with other Particulars without general words This being premised it 's a known Maxim in all Laws Nihil rationi magis consentaneum quam rem eodem modo dissolvi quo constituitur which Rule is so general that the highest Authority i. e. the Parliament is not exempt from it for 't is not possible to establish any thing so firm by Statute which cannot by another Statute be annulled Now in the Creation of a Peer there are three things the Person that creates the Person that is created the Matter of Record whereby he is created Now if the King who is the Person that creates and his Successors agree with the Person that is created Peer and his Successors the one to undo their parts and the other to give away their parts and there is a Matter of Record of as high a nature concurring to effect this Dissiolution c. in some Cases 't is in the power of an Ancestor by his own act to destroy a Patent as if a Scire Facias in Chancery be brought against his Patent and Matter is suggested whereby to avoid it this shall Bro. tit Patent 37 97. vacate whatsoever was created by the Patent