as grievances as may appeare by the petition of Remonstrance the Iudges could not be ignorant of this and do take notice of the same in their preamble My Lords In the third place no man is more unwilling to discover the nakednesse of my Fathers if any be then I am yet the question being not whether the Arke should be rescued from the Philistines but whether it should be preserved against the negligence of some Ophni and Phines in their hands that have the custodie of it Therefore I must obey and as I am Commanded I will offer unto your Lordships how the preamble and answers of the Iudges might bee sufficient and wherein they are both defective and dangerous The Iudges in the first reason of their preamble insist much upon the want of president in this kinde onely one president in the raigne of King Richard the seconds time which they pray may not be drawne into example My Lords This reason requires a more cleere explanation which wee hope shall be demaunded in due time It urgeth us to this just protestation that before the best flower in his Majesties Royall garland should wither wee shall be ready to water the same with showers of our bloud even to the last drop in his Majesties service and with our lives and substance will mantayne the just prerogative of our gracious Lord King Charles and his posteritie whom wee pray God to flourish on earth over us and ours untill all flesh bee convoked before the last great Tribunall Yet My Lords that president might be spared by the Iudges of this no more for the present I will not exasperate had they pleased more naturall presidents might be stood upon and easily found and even in that ill remembred president if the Iudges in Richard the seconds time had made direct and lawfull answers they had escaped punishment and prevented many inconveniences which ensued My Lords if presidents be necessarie of many I will enumerate a few Deutronomy cap. 17 vers. 8. Si difficile ambiguum c. Almightie God directs us the way to truth Deutronom cap. 32. vers. 7. Interroga patrem tuum c. The Romanes sent to Greece for a declaration of their lawes in causes like to happen Tit. Liv. decad. 3. fol. 45. g. Lancelotus de Ecclesiasticis Constitutionibus tit. 3. Canonum alij sunt decreta Concjliorum alij statut ' îalij dicta sanctorum Rottoman de Iure Civili tit. 4. Praetorum dicta responsa prudentum which cannot bee without questions venerable Bede lib. 1. cap. 27. S. Augustine demaunded generall questions M. Sleiden super Eadmerum fol. 171. VVilliam the Conqueror did call to the Iudges to declare and compile Edgars lawes and S. Edwards lawes which were buried and forgotten by the interruption of the Danish governement In the time of King Henr. 3. certaine knights of Ireland desired resolutions in England concerning Coparcenerie and received resolutions according to the lawes of England and this in Parliament as appeares in the statute called statut de Hiber 14. Henr. 3. in the printed Booke Ordinationes factae de statut ' terr' Hiberniae at large in the Roll of 7. Edw. 2. parte prima memb. 3. 18. Rot ' Claus. anno 2. Edw. 3. membr. 17. Rex concedit quod ad primum Parliamentum omnes Hiberni qui volueâ—int legibus utantur Angliae sine Cartis inde fiendis Rot. Claus. anno 5. Edw. 3. parte prima membr. 25. The same law in Case of wardships Ordinationes pro Regimine Hiberniae 5. Edw. 3. Pat ' membr. 25. 35. Edw. 3. parte prima memb 9. which Consilium ought to bee understood of the Parliament as hereafter I will declare Ordinatio facta de ministris Regis in Hibernia Claus. 18. Edw. 3. parte secunda memb. 9. 17. ann. 20 Edw. 3. parte prima in dorso anno 25. Edward 3. membr. 30. My Lords I have not yet learned how Sillogismes can be made or answers Cathegoricall without propositions I am as ignorant after what manner Ordinances or reformation could bee made without questions or propositions It may be objected that the word Quere or Question is new that word was nothing strange in Edward the thirds time Rot. Parliament 21. Edw. 3. num 41. The Commons in Parliament prayed that it may be inquired how it comes to passe that the King hath no benefit of his land of Ireland considering hee had more there then any of his ancestors may it not be as lawfull to inquire in this Parliament wherefore the King is in debt and yet his people here gave him more supplies then to any of his ancestors or wherefore his lawes are not observed I find no difference In the printed yeare Booke 2. Rich. 3. fol. 9. the King propounded severall questions to the Iudges in the Star-chamber in Cases not then depending Their second reason is fully answered to the first and for more cleare satisfaction the words of the writ which bring them hither are viz. to give Counsell circa ardua urgentia negotia regni the matters now in agitation are maxime ardua maxime urgentia The yeare bookes of law doe prove Provisiones Ordinationes and no cause is said to bee depending f. N. B. 32. d. 39. Edw. 3. 7. b. Thorp The Lords being assembled can make Ordinances as strong as a statute by the opinion of that Iudge such Ordinances cannot be avoyded but in Parliament an act or statute may bee avoyded or repealed in Parliament Where they say that the Questions though in number but twenty two yet they include fifty two questions that all the affaires of Church Common-wealth may bee included in the resolution thereof and that they will not bee concluded by their answers to the same My Lords the house of Commons made the questions so many as they are for the more cleare explanation of their candid intentions and not for difficultie whereas they might reduce them to fewer but to the end the answers might be the more punctuall and satisfactorie unto positive points and knowne law and the custody of the law the great treasure of the Land being committed by his Sacred Majesty to their trust to the end they should declare how and after what manner they issued and dispensed that treasure and discharged that great trust and not to bee bound by their resolutions in Parliament For Iudges are and ought to bee bound by resolutions in Parliament and not Parliaments by them To their fourth reason what succeeding ages will doe we do well hope they will not do amisse that no occasion shall bee administred hereafter which may inforce the house of Commons to propound the like questions That by reason the Kings prerogative and the concernment of his other interests they cannot answer without his Majesties especiall direction considering the duties of their places and their Oathes My Lords It is
manifest that by their Oathes they are bound to interprete the lawes truely betweene the King and his people and betweene partie and partie and if in any Case granted it cannot be denyed when the Common-wealth desires a Declaration of the law in certaine points wherein they conceive their just liberties to have beene invaded least under colour of prerogative which the Parliament holds to be sacred some ministers may presume as of late they have endevored to destroy the peoples just liberties In the ordinarie Courts of Iustice the Iudges upon Oath are bound to afford the subject Iustice against the King and all others and are appointed by his Majesty for that purpose all writs are in his Majesties name in the Kings bench the pleas are styled Coram Rege Letters-patents and writs originall are Teste me ipso the King is therefore present in Parliament being the highest tribunall where in truely he sits in the exaltation of Royaltie and greatnesse Therefore the Commands of all his ordinary Courts are the commands of the King much more Commands in Parliament where his presence is more apparant and essentiall then in all other Courts of this kingdome It appeares copiously by the great Charter and by constant practise of all Parliaments since that time that all Courts and Iudges were regulated by Parliaments as for the Kings prerogative or revenue the Iudges cannot bee ignorant but the Parliament is and ever hath beene the best mantayner of his just prerogatives the best overseer of his revenue which if it fall short they onely are able and willing to supply It is true that the abuses of former times might be reformed for the future by Bils to bee past as statutes Yet that is away about and we may not loose the possession of our lawes and just liberties nor by new statutes admitt impunitie or give countenance to past offences statutes of this kind sufficient were already enacted and passed in former ages The declaration of a knowne law and the manifestation of wholesome statutes already established well may helpe the Common-wealth for the present but cannot in any probabilitie fall out hereafter to be prejudiciall to the state or Commonwealth and there is no president or example of any such prejudice It is confessed that most of the matters contayned in the Questions are alreadie voted for grievances in both houses and that very justly but how the law is therein remaynes yet to be declared as to this present Parliament which I hope in due time shall bee declared according to law and justice as in many Parliaments before the same or the like hath beene often done Where they doe againe insist upon the want of president and withall that in the preamble to the Questions the protestation cleares the law This word President strikes close unto us I have answered it before by presidents yet some more presidents I will offer as often as they speake the word president 7. 8. Elizabeth Dy. fol. 241. b. placit. 49. The Kings Atturney demanded the opinion of the Iudges 9. Elizab. Dy. 261. placit. 28 Casus Hiber where the Iudges of England signed their opinions to questions propounded by the Iudges of Ireland 11. Eliz. Dy. fol. 282. b plac 26. Casus Hiber 19. 20. Elizab. Dy. 360. The Case of arraignement of a Peere the like 13. CÃ roli by all the Iudges of England the Earle of Ormonds Case and yet in none of these Cases the matter was depending before them Notwithstanding the protestation may cleare the law yet in all precedent ages lawes cleare in themselves for their greater honor and countenance they have beene declared and enacted in Parliament The Law declared by Magna Charta was cleare before yet it was enacted 9. Henr. 3. and in thirty Parliaments since Cooke 8. 19. b. Primes Case the statute of praerog Regis And the statute of 25. Edw. 3. of treasons is declarative and so are many other statutes Adam eate the forbidden fruite Cain killed his brother God demaunded whether this was done yet he could not be ignorant of the fact The first article in the Civill and Canon law Courts is whether there is such a law all this is done for illustrations sake My Lords The ground of the Questions and the preamble to the writing styled an Answer kept me so long that I feare much to have trespassed upon your patience and yet the importance of the cause urgeth me to importune your Lordships favour a little further This Question is short and yet comprehensive that we are a free people is confessed to my hands to that part of the answer I doe not except the second part of the Question is whether wee are to be governed by the lawes of England and statutes of force in Ireland onely First though I need not prove it yet it is cleare we ought to bee so governed Matth. Paris historia maiori fol 121. Sir Iohn Davis discovery of Ireland fol. 100. King Henry the second held a Parliament at Lismore in Ireland in which Parliament Leges consuetudines Angliae fuerunt gratanter acceptae by the representative body of this whole Nation Magna Charta and other beneficiall statutes of England are here in the red Booke of the Exchequer in and since King Iohns time and so is Gervasius Tilberiensis of the Course and Officers of the Exchequer in the white booke of the Exchequer of Ireland leges consuetudines Angliae received in Ireland by Parliament otherwise this appeares 9. Iohn pat membr. 2. 1. Henr. 3. pat memb. 13. 10. Hen. 3. pat membr. 4. 12. Henr. 3. claus. membr. 8. by which words and by the constant practise of all ages since this kingdome was governed and ought to be so by the law of England as the law of the land which law as it was alwayes here received consists of three parts First the Common-law Secondly the generall customes of England Thirdly statutes here received The Common-law that is cleared already Customes as Tenant by the Curtesie Inne-keepers to be responsible for things within their houses or the like when we speake of a Custome in the law it must be intended a generall Custome over the Realme and no particular Custome And this appeares by the yeare bookes of 37. Henr. 6. fol. 5. 21. Henr. 7. 17. 18. Particular customes as Gavelkiâ—d Boreugh English-tenant right or the like are not to be intended when wee speake generally of Custome and these Customes are warranted by the Common-law of England being not contrary to the same but praeter legem so there may bee and are particular customes here praeter legem and yet not contrary to law as in many Corporations and Countries so the wives third of goods is good in England by the custome of many counties and places F. N. B. 122. 7. Edward 4. 21. 40. Edw. 3. 38. 17. Edw 2. f. detinue 58. Therefore it is not contrary to law that such a
custome is here over all the kingdome And yet if any man aske the question by what law wee are governed there is no proper answer other then by the law of England And for the statutes of England generall statutes were received in this kingdome some at one time some at another and all generall statutes by Poynings Act anno 10. Henr. 7. but no other statute or new introducting law untill the same be first received and enacted in Parliament in this kingdome and this may appeare by two declarative statutes the one 10. Henr. 4. the other 29. of Henr. 6. The law of England as it is the best humane law so it is a noble and sociable law and for the more cleere discerning of the truth and equall administration of Iustice it referres many causes to their genuyn and naturall proceedings as Maritime causes to the Court of Admiralty Co. Institutes 260. 361. Stamford 57. b. Co. 5. 106. 107 Constables Case and there the proceeding is by the Civill law Co 8 47. b. Matters beyond the Seas are determined in the Court of constable and Marshall Cookes institutes 391. b. matters of Latin the law referres to Grammarians Com. fol. 122. matters meerely Ecclesiasticall to bee tryed and determined in the proper Courts Coke 7. 43 b 8. Co. 68. 5. Co. 57. 1. R. 3. 4. matters of merchandize to Marchants 34. Henr. 8. Dy 52 54. Many other cases upon this learning are to be found Co. 9. fol. 30. 31. 32. Strat. Marclads case Yet in all these and the like Cases the tryall and determination thereof are bounded and controuled by the rules of the Common-law they are as Rivers which are necessary to run through the land to helpe the inhabitants thereof but if they overflow the bankes the bankes are made higher and stronger to suppresse their violent current so in all the cases aforesaid and the like The Common-law hath limitted the proceedings if they exceede their bounds witnesse the prohibitions in all our Bookes and the statutes of Provision and praemunire and cases there upon in many ages by which it is manifest that the Supreame and governing law are the Common-law Common-customes and statutes of the Realme and the rest but ministers and servants unto it brevia remediana are onely by the Common-law mandatoria may bee in the said other cases 7. Co. Calvins case Dy. 176. So that the answer as to the words in the generall is short and ought to be positive As to the Courtes of equitie they have beene ancient in England and the Courts of eqnity here ought to bee guided by the constant proceedings in England in ages past I meane not by this or that Chancellor but by that naturall and just equity in the Courts here observed This equitie is of absolute necessitie in many cases ipsae etenim leges capiunt ut jure regantur and therefore is included within the law of the Land and not to bee devided from it as out of this writing it may bee inferred As to the case of killing in rebellion to operate an Attaynder if this bee no law in England it cannot bee law here vide Dame-hales case com 263. a. 8. Edw. 3. 20. fitz Dower 106. Cromptons Iurisdiction fol. 84. a. by which it may be urged that it is an Attaynder for that hee prevented the judgement of law by fighting against the Crowne and by his killing therein which ensued his unlawfull and trayterous act but I observe to the contrary the books of 7. Henr. 4. 32 b. Cook 4. 57. Sadlers case I doe confesse that in England statutes may be obsolete as the statute of VVilliam Butler by which the heire may have an action of wast Rastall 5. 21. all the books are contrary and so is the statute of Merton of disparagment as to an action to bee brought for the same so are some antiquated lawes 40. Edw. 3. 42. 42. ass 8. 25. one present aiding to murder was accessary but now is principall 4. Hen. 7. 18. Com. 99. 100. a Vicar could not anciently have an action against a Parson 40. Edw. 3. 28. Finchden the law is now otherwise and so of an entry upon a feoffee with warranty sit fol. 23. 24. in the case of disparagement give the reason because that those statutes and lawes were never used therfore obsolete our case is nothing like for life liberty and propertie being in debate but an obsolete law is no law in force Therefore the answer as to that is defective As to the case of a fellon upon his keeping and terrifying of the people I conceive the answer is uncertaine and dangerous if such a fellon raise an armed power against the Crowne and terrifie that way no doubt this is treason within the statute of 25. Edw. 3. or the equity of it and by the statute of 10. Hen. 7. cap. 13. in Ireland statuto Hiberniae fol. 62. but if such terrifying be without raising armes or by committing the same or the like fellonies it is no more then the case of purse-takers by force in the high wayes of England many a man was terrified thereby in Salisbury-plaine and yet no treason and if there be no statute here which is not in England to make it treason certainly it cannot be treason since the Conquest writ of error have been brought for to reverse Iudgments given in the Kings Bench here in the Court of Kings Bench in England no course here which is contrary to law can alter the law of England therefore to what purpose is a declaration of Iudges here contrary to the law there This writ of error is a writ framed in the Register and appeares by common experience I will offer a notable case which I saw adjudged in the Kings Bench in England Pasc 18. Iacobi for Stafford against Stafford in a writ of error for to reverse a Iudgment given in the Kings Bench in Ireland when Sir VVilliam Iones was Chiefe Iustice here in an ejectione firme for that in the declaration there was contained among other things ducentas acras Montani Sir VVilliam Iones being in England affirmed the course here to have been so and vouched many notable Presidents thereupon an order was conceived that Sir Iames Ley Sir Humphry VVinch and Sir Iohn Denham knights who were formerly Chiefe Iustices here should certifie the course who made report that the course in Ireland was and ought to be in writts originall and Iudiciall to be directed by the Register in pleading to be guided by the books of entries and thereupon the Iudgement was reversed And the Chiefe Iustice Mountague said that if they did not proceed in Ireland according to law they should learne it And so I conclude that the answer to the first Question is insufficient As touching the second Question which is concerning the Oath which this Iudges doe take the question is whether the Iudges of the land doe take the Oath of Iudges And if so c.
processe of distringas out of the second remembrance Office to distrayne the tenants ad faciendum homagium or pro homagio suo respectuaÌ„do upon which processe the Shiriffes returneth issues And if the Tenant doe not therupon appeare and compound with the King to give a fine for respite of homage then the issues are forfeyted to the King for his contempt but if he appeare then the Court of Exchequer doth agree with him to respite his homage for a small fine wherein they regulate themselves under the rate expressed and set downe in England by vertue of a privie Scale in the 15. yeare of Queene Elizabeth whereby the rates are particularly set downe according to the yearely value of the Lands which rates are confirmed by act of Parliament in 1. Iacob Regis cap. 26. in England before which time there was not any such certayntie but the same rested in the discretion of the Court by the rule of Common-law and so it doth at this day in Ireland howbeit we conceive that the Court of Exchequer here doe well to regulate their discretions by those rates in England and rather to be under then to exceede the same which the Barons there doe as they doe informe us that are Iudges of the other Courts 13. To the 13. they say that they know no rule of Law or statute by which it should be ceÌ„surable in the subjects of this kingdome to repayre into England to appeale unto his Majesty for redresse of injuries or for other their lawfull occasions unles they be prohibited by his Majesties writ or proclamation or other his Command But they find that by the statute of 5. Rich. 2. the passage of the subject out of the Realme is prohibited without speciall licence excepting Noblemen others in the said statute specially excepted some inference to that purpose may be made upon the statute of 25. Hen 6 cap. 2. in this kingdome 14. To the 14. they say that some Deanries dignities not Deanes or dignitaries as the question propounds it are properly de mero jure donative by the King some Elective some Collative according to the first foundation usuage of such Churches they humbly desire that they may not be required to give any further answer to this question for that it may concerne many mens estates which may come judcially in question before them 15. To the 15. they say that they conceive that where priviledges are claymed by any body politicke or other the Kings Counsell may exhibite à quo-warranto to cause the parties clayming such priviledges to shew by what warrant they clayme the same that the Court cannot hinder the issuing of processe at the instance of the Kings Atturney or hinder the Kings Atturney to exhibite such informations But when the case shall upon the proceedings be brought to judgment then not before the Court is to take notice and give judgâ—ment upon the merite circuÌ„stances of the cause as upon due consideration shal be conceived to be according to law in which case the Iudges or the Kings Atturney as they conceive ought not to be punished by any ordinary rule of law or statute that they know But for the particular case of Quo-warranto for that it hath beene a great question in this present Parliament so concernes the highest Court of justice in this kingdome also concernes two other of his Majesties Courts of justice therin his Majesties prerogative in those Courts they say that they cannot safely deliver any opinion therein before it comes judicially before them and that they heare it argued and debated by learned Counsell on both sides 16. To the sixteenth they say that although the Iurors be sole Iudges of the matter of fact yet the Iudges of the Court are Iudges of the validitie of the evidence and of the matters of law arising out of the same wherein the Iury ought to be guided by them And if the Iury in any criminall cause betweene the King and party give their verdict contrary to cleere and apparent evidence delivered in Court they have beene constantly and still ought to be censured in the Star-chamber in England and Castle-chamber here for this misdemeanor in perverting the right course of justice in such fines and other punishment as the merites circumstances of the cause doth deserve according to the course of the said Courts for that their consciences ought to be directed by the evidence and not to bee misguided by their wills or affections And if the Iury know any matter of fact which may eyther better or blemish their evidence they may take advantage thereof but they ought to discover the same to the Iudges And they say that this proceeding in the Court of Castle-chamber is out of the same grounds that writs of attaint are against a Iury that gives a false verdict in a Court of Record at the Common-law betwixt partie and partie which false verdict being found by a Iury of twenty foure notwithstanding that the first Iurie were Iudges of the fact yet that infamous judgement was pronounced against the first Iury which is next or rather worse then judgment to death and did lay a perpetuall brand of perjury upon them for which reason it was anciently called the villanous judgement and they say that the law to direct the punishment for such offences is the course of the said Court which is a law as to that purpose the statute of 3. Henr. 7. cap. 1. and other statutes in force in this kingdome 17. To the seventeenth they say they can answer no otherwise then they have in their answer to the next precedent question 18. To the eighteenth they say that in a Legall construction the statute of Magna Charta in which the words Salvo contenemento are mentioned is only to be understood of amerciaments not of fines yet where great fines are imposed in terrorem upon the reducement of them regard is to be had to the abilitie of the persons 19. To the nineteenth they say that if one doth steale a sheepe or commit any other felony and after flyeth the course of justice or lyeth in woods or mountaynes upon his keeping yet doth he not thereby become a Traytor neyther doth a Proclamation make him so the chiefe use whereof in such a Case is to invite the partie so standing out to submit himselfe to justice or to forewarne others of the danger they may runne into by keeping him company or giving him mayntenance and reliefe whereby he may the rather submit to Iustice 20. To the twentieth they say that the testimony of Rebels or Traytors under protection of Theeves or other infamous persons is not to bee used or pressed as convincing evidence upon the tryall of any man for his life and so is his Majesties printed instructions as to persons condemned or under protectioÌ„ yet the testimony of such persons not condemned being fortified with other concurring
Court thus Recorded I know much of the petitioners Lands is waste and no part of it improved by any manner of husbandrie other then in grazing of Cattle and in sowing of little Oates And the proprietors of the Land to be for the most part very poore and needie and the two Children of Neale mac Hugh to be yet under age Wherefore I thinke it fit that the Court of Exchequer should consider thereof and rate the respite of homage accordingly for a time untill the Countie be better inhabited and these men made to understand that it is not an imposition but a lawfull duty and payment due to his Majestie This is my advise and opinion for the present xxx die April 1610. Arthur Chichester Vpon this the said Freeholders were admitted to pay but foure pence Irish every Twogh of Land it consisting of sixteene Towne-lands and according to this rate they still payed untill the yeare 1630. and then the Court taking notice of the unequalitie of it made this order 5. Febr. 1630. After this I finde that all his Majesties Tenants did conforme themselves to the said order of 1607. untill Easter Terme 1637. in which Terme this ensuing order was made which is the last that I can finde Recorded in my Office Henry VVarren I finde by the payments made in the late Queen Elizabeths time that the rates of homage payed was according to the said order of 1607. Henr. VVarren Divers were actually imprisoned and long kept in close restraint for none other cause then in dutifull manner be seeming termes to have made knowne their particular complaints to his sacred Majesty imprisonment of this kind was frequent therefore it is not improper to demaund by what law it was done Many have lost great estates and possessions by Orders of the Counsel-bord although the Deanes elected or actuall Deanes confirmed their estates if no donation from the Crown were found upon Record to the confirming Deane and this after that by verdict at the Common-law the Deanrie was found to be Elective this Question therefore is not improper After such time as this Parliament was agreed upon at Counsell-board to bee summoned some persons having prepared bloudy and destroying Bils to be past as lawes and intending to defeate by act of Parliament very many of his Majesties faithfull subjects of this kingdome of their estates and liberties and having obtayned some undue elections by threates or intreaties mistrusting that all should run cleere before them have caused twenty foure Corporations to bee seized upon the returne of the first summons in severall Quowarrantees procured by Sir Richard Osbalston late Atturney generall to shew cause why they sent Burgesses to the Parliament the said Corporations having formerly sent Burgesses to the Parliament even to the last Parliament by meanes whereof the said Corporations sent no Burgesses in the beginning of this Parliament from this act being done in a legall Court against the high Court of Parliament sprung this question which My Lords is of consequence if Parliaments be so as without question they are The faith which the Common-law giveth to verdicts the Iurors being Iudges of the fact the late usage of that great Court growing to the punishment of Iurors and others in greater numbers by heavier fines and more shamefull punishments without respect to estate age sex or qualitie then was or can be observed in all precedent times and the just sense thereof moved the house of Commons to propound these questions My Lords a poore fellow stole or was accused to have stolne a Sheepe feare or guilt or both brought him to the mountaynes another relieved him the reliever was executed as a Traytor and after the principall submits to tryall and judgment and was acquited this example My Lords I hope may warrant the question The testimony of such infamous persons have brought men of qualitie to their tryall for their lives and being acquited the Iurors being of very good ranke were heavily censured in the Castle-chamber aswell by fines surmounting their abilities as by most reprochfull punishments upon these acts the question is grounded There being no warrant in the Printed law or otherwise for ought yet appearing for to make this a Tenure in Capite the constant course of the Court of wards taking it to be no Tenure in capite since the erection of that Court untill Trinitie terme 1639. it was then and not before certified a tenure in capite by the then Atturney of that Court who said that the Iudges concurred with him in that opinion by which meanes Counsell did not then argue and the next terme after were denyed to be heard ne aliquid contra responsum prudentum this being done in the Court of wards the question did spring from thence The two and twentieth question was not yet agitated in the house of Commons nor brought thither therefore My Lords that may be deferred to a further conference By this which I have opened being the smaller part of those weighty reasons delivered unto mee by the house of Commons yet the best I can for the present remember I hope your Lordships are satisfied that those questions were not intrapping fayned or circumventing or phantazies as formerly I touched In the next place I will labour to give your Lordships a more cleere satisfaction that those questions grounded upon sufficient and apparant reasons and causes doe deserve cleare and satisfactorie answers and to remove all doubts The questions I will no more call Questions I will humbly style them Causes of weight and Consequence wherein the Lords and Commons of this Realme on the behalfe of themselves and their posteritie in after times are Plaintifes and only delinquents of an high nature are defendants in this high Court of Parliament It is not unworthy your Lordships consideration to whom the questions were put I answer unto the Iudges of the Land who are and sure I am ought to be first etate graves secondly eruditione praestantes thirdly usu rerum prudentes fourthly publica authoritate constituti The persons unto whom being thus qualified the place where is most considerable it is the high Court of Parliament the Iudges are called thither Circa ardua urgentia negotia regni of the whole kingdome what to doe Quod personaliter intersint cum Rege ac cum caeteris de consilio suo super dictis negotijs tractaturi consiliumque impensuri Therefore they are not called thither to bee ciphers in augurisme or tell clockes no those great causes are mentioned in their writ and upon that great Oath they are to give faithfull counsell and make direct answers to your Lordships in all things wherein ardua urgentia regni are concerned and whether that concernment doe comprehend the matters aforesaid I doe humbly offer to your Lordships great consideration most of the matters included in those questions are solemnely voted in both houses
No Freeman shall be taken imprisoned put off his freehold liberties free customes c. other then by the lawfull judgement of his Peeres as by the law of the land This great assurance in the 38. Chap. of the same statute was granted for the King and his successors to all his people and was confirmed in thirty Parliaments as I said before Cooke 8. the Princes Case by the statute of 5. Edw. 3. cap. 9. 25. Edw. 3. Cap. 4. 28. Edw. â— cap. â— 42. Edw. 3. cap. 1 â— The great Charter is againe confirmed and not onely so but proceedings contrary to the same before the King or his Counsell are declared voyde The King is to observe and mantayne the law the Iudge by his Oath 18. Edward â— is bound to doe right betweene the King and his people and that right strengthens the Kings prerogative presidents or practise contrary to so many statutes are of no use in many ages past encroachments were made upon these just liberties which were alwayes removed by Parliaments Yet I must confesse that of all antiquity some pleas have beene held in the Kings Royall house as in the Court held by the Marshall of the Kings houshold for things arising within the Verge Fleta lib. 2. cap. 2. but when that Court exceeds its due bounds declaratory statutes were alwayes made to meete them as mischiefes in the common-wealth when they medled with land or the like as appeares by the statute of Articule super Chartam 28. Edw. 1. 15. R. 2. cap. 12. all these statutes My Lords and many more to this purpose are undenyably of force in this kingdome and none of them can be with impunitie said to be obsolete or antiquated My Lords they raise another doubt viz that as the King may grant cognizance of pleas to Corporations or the like and therefore to the Councell-table if this neede an answer I will answer it thus that a grant of cognizance never was neyther can it be otherwise then to proceede per legem terrae or per judicium parium in the same manner as Courts doe proceede at Common-law and not upon paper petitions or summary hearings such cognizance was never granted the King is at losse by such proceedings he looseth fines upon originals he looseth amerciaments and fines incident to every judgement at Common-law as I said before I he subject undergoeth an inconvenience First the law will decline writs originall will by disuse be forgotten Clerks who should draw them discouraged to learne legall proceedings out of doores being the foundation of the law and in stead of regular and orderly proceeding rudenesse and barbarisme introduced the subject will loose the benefit of his attaynte and writ of error by which the law might relieve him against false verdicts or erroneous judgments he will loose the benefit of his warranty which might repaire a purchaser in case his acquired purchase were not good Whereas if a Iudge or Iuror doe wrong the remedy is at hand but against the Lord Deputy and Councell who will seeke for it therefore the countenance of this Iudicature in Common-pleas is against the Kings prerogative and the peoples just rights both which the Iudges ought to maintaine and likewise against the intent of your Lordships order My Lords as in England the said severall statutes were made to prevent the inconveniences aforesaid one good statute was made in Ireland 28. Henr. 6. cap. 2. Irish statut fol. 15. which directs matters of Interest to be determined in the Common-pleas matters of the Crowne in the Kings-bench matters of equity in the Chancery This law if there were no more regulates the proceedings in this kingdome The Iudges insist upon the words in the end of that statute viz. Saving the Kings prerogative My Lords this was stood upon at the late great tryall in England and easily answered for by the Common-law the King may by his prerogative sue in any of the foure Courts for his particular interest although it be contrary to the nature of that Court for he may sue à Quare impedit in the Kings Bench the like yet so as the said suite be bounded by the rules of law I will demaund a question whether the King may bring à Quare impedit in paper at the Councell-board the Kings now Atturney I am confident will answer me he cannot The word salvo or saving is in construction of law of a thing in esse or existente and no creative word 26. Ass pla 66. and cannot in the Kings Case be construed to overthrow the law nor many expresse and positive acts of Parliament My Lords in all humblenesse and dutie I will and must acknowledge his Majesties Sacred and lawfull prerogative whereof the King himselfe is the best expositor in his answer to the Petition of right Poltons stat fol. 1433. he declares that his prerogative is to defend the peoples libertie and the peoples libertie strenghtens the Kings prerogative the answer was a Kingly answer and More â—ajorum this is conformable to the great Charter and to all the statutes before recited The government of England being the best in the world was not onely Royall but also politicke some other princes like Cain Nemrod Esau and the like hunters of men subverted lawes The Kings of England maintayned them and did never assume the power to change or alter the lawes as appeares by Fortescue that grave and learned Lord Chancellor in King Henry the sixts time de laudibus legum Angliae cap. 9. fol. 25. and in the same Booke cap. 36. fol. 84. nor to take his peoples goods nor to lay taxe nor tallage upon them other then by their free consent in Parliament this appeares by the Booke Cases in 1â— Henr. 4. fol. 14. 15. 16. the great case of the Awlnage of London and in the Case of toll-travers and toll-through 14. Henr. 4. 9 37. Henr. 6. 27. 8. Henr. 6. 19 all agreeing nor to alter the nature of land as by converting land at Common-law to Gavelkind or Borrough English or e conuerso as to the estate otherwise as to the person of the King Ple. Com. the Lord Barclyes Case fol. 246. 247. Yet it is most true that the law of the land gives the King many naturall and great prerogatives farre beyond all other men as may appeare in the said Case fol. 243. but not to doe wrong to any subject Com. 246. The person of the King is too sacred to doe a wrong in the intention of Law if any wrongs bee done his ministerâ— are Authors and not the King And the Kings just prerogatives by the Kings Royall assent in Parliament were bounded limited and qualified by severall Acts of Parliament as if Tenant in cap. did alien at Common-law without licence this was a forfeyture of his estate Plo Com. case of mines fol. 332. the statutes of 2. Edw. 3. cap 14. makes this only finable the statute of Magna Charta cap. 21.
takes away the Kings prerogative for cutting woodes where he pleased many other cases there are upon this learning By this great Iustice and bounty of the Kings of England the Kings grew still greater and more permanent The people became free and wealthy no King so great as a King of rich free people If the Councell-table may retaine cognizance of causes coÌ„trary to the Law to so many Acts of Parliament why may they not avoyde all Acts of Parliament aswell This no man will affirme nor they intend My Lords two objections seeme to stand in my way First the multitude of presidents countenancing the cognizance of the Councell-board in the matter aforesaid some in ancient times and of late in great clusters throngs Secondly that in book Cases it appeares the Iudges of Law did take advice in their Iudgements with the Kings Counsell as 40 Ed. 3. fol. 34. 39. Ass placito primo 35. Edw. 3. fol. 35. 19. Edw. 3. fitz Iudgement 174. In answer to the first as for the multitude of presidents hinc illae lachrymae there is our griefe I find in our Bookes that presidents against Law doe never bind there is no downe right mischiefe But a president may be called upon to beare it up Iudicandum est legibus non exemplis Cooke 4. fol. 33. Mitâ—ons case Cooke 11. fol. 75. Magdalen Colledges case Cooke 4. fol. 94. Slades case multitudo errantium non parit errori patrocinium I answer to the second that in those yeare books of Edw. 3. It is true that the Iudges appealed to the Kings Councell for advice in law but who gave the Iudgment the Iudges and what Iudgement a legall Iudgement and no paper or arbitrary Iudgment If this objection were materiall I might answer further that the Councell here may bee understood the great Councell viz. the Parliament propter excellentiam vide Cooke 6. 19. 20. Gregories case By the stat of 4. Edw. cap. 3. 14. and 36. Edw. 3. c. 10. Rastall fol. 316. Parliaments were then to be held once a yeare the booke of 39. Edw. 3. fol. 35. in the case of a formedon may well warrant this explanation of those books the Bishops Abbots Earles and Barons mentioned in the said books may be well taken to be the Lords house which might sit by adjournements in those times of frequent Parliaments My Lords I kept you too long upon this Question I will be as short in the next And so I conclude the answer as to this point is no answer and whether the matters therein comprized be of dangerous consequence I submit to your Lordships If the Chiefe Governor and Councell of this kingdome cannot heare or determine the causes aforesaid surely the Chiefe Governor alone cannot doe it all I have said to the third I doe apply to this Question together with one president worthy your observation in 25. Edw. 1. Claus. m. 20. where I have an authenticke coppie viz. Claus. vicessimo quinto Eaw primi m. 20. Rex dilecto fideli suo Iohanni VVogan Iusticiario suo Hiberniae salutem cum intellexerimus quod vos comunia placita quae totis temporibus retroactis per brevia originalia de Cancellaria nostra Hiberniae placitari deberent consueverunt per billas petitiones vacuas jam de novo coram vobis deduci facitis etiam terminari per quod feodum sigilli nostri quo utimur in Hibernia fines pro breuibus dandis ad alia commoda quae nobis inde solent accrescere di versimode subtrabuntur in nostri incolarum partium illarum damnum non modicum gravamen nolentes igitur hujusmodi novitates fieri per quas nobis damna gravia poterunt evenire vobis mandamus quod si ita est tunc aliqua placita comunia quae per brevia originalia de Cancellaria nostra praedictâ— de jure consuetudine hucusque visitata habent terminari per petitiones billas coram vobis deduci placitari aut terminari de caetero nullatenus praesumatis per quod vobis imputari debeat aut possit novum incommodum in hac parte Teste Rege apud Shestoniam xxiij die Martij Convenit cum Recorda VVilliam Collet Your Lordships may see that in Edward the firsts time the King took notice First that the said petitions were void Secondly that his revenues were thereby impaired Thirdly that it was against the Custome of the land of Ireland Fourthly that it was to the grievance of the people of Ireland Fifthly he comanded Iohn VVogan then Chiefe Governor not to presume to deale in the like proceedings thereafter I marvaile not a little wherefore the Iudges in our time after so many acts of Parliament since 25. Edw. 1. should make any doubt or question to answer this cleerly My Lords I humbly desire not to be misconstrued in the debate of this Question my meaning is not to pry into his Majesties just prerogatives Qui enim majestatem scrutatur Principis corruet spelndore ejus the old saying in English is as good he that hewes a block above his head the chipps will fall into his eyes The Question warrants no such scrutinie I may not officiously search into it The Question is onely whether grants made of monopolies to a subject be good in law And whether by pretext of such grants the Kings free people may loose their goods by seisures or may be fined imprisoned pillored papered c. Those things have been done and acted in many cases where the Monopolites were Iudges and parties in which case if an act of Parliament did erect such a Iudicatorie it were void as against naturall Iustice Cooke 8. 118. a Doctor Bonhams case I speake to that thing that odious thing Monopolie which in law is detestable Cooke 11. 53. b. the Taylors of Ipswich case by which any subject is hindered to exercise his lawfull trade or lawfully to acquire his living and the Condition of a bond being to restraine any man from his trade the bond is void in law 2 Hen. 5. 5. b. In this case the Iudge Hull swoare par Dieu if hee who tooke this bond were present he would fine him to the King and commit him to prison by which case I observe that the consent of the partie cannot make it good That a Patent of any such Monopolies is a grievance against the Common wealth and consequently voyd in law the case was of Cards which is observable Cook 11. 85. 86. 87 c. Darcy Allens Case There is a Condition tacite or expresse in every grant of the Kings Ita quod patriamagis solito non gravetur vel oneretur vid. Fitz. N. br fol. 222. Cod. ad quod damnum This learning is so cleare as to Monopolies thus stated that I will dwell no longer upon them as I hope they may no longer reside among us The
or penaltie upon the libertie goods or lands of him that would bring an assize of Daren presentment for a prebendary I doe finde that a provision was made in haec verba Promissum est à Consilio Regis quod nullus de potestate Regis Franciae respondeat in Anglia antequam Anglici de jure suo in terra Regis Franciae c. Yet by that provision no forfeyture upon the lands or goods of him who sued a Frenchman in England at that time It is true that a Custome may bee contrary to the law and yet allowable because that it may have a lawfull commencement and continuall usage hath given it the force of a law Consuetudo ex certa rationabili causa vsitata privat communem legem but no proclamation or act of state may alter law For example sake at Common-law a Proclamation cannot make lands devisable which are not devisable by the law nor alter the course of descent The King by his Letters-patents cannot doe the same nor grant lands to bee ancient demesne at this day nor make lands to be descendible according the course of Gavelkind or Borrough English unlesse that the custome of the place doth warrant the same nor Gavelkind land to be descendible according the course of law à fortiori an act of state or proclamation which I hold to bee of lesse force then the Kings patent under the great Seale cannot doe it And in the case of Irish Gavelkind it is not the proclamation or act of state that did abolish or alter it but the very custome was held to be unreasonable and repugnant to law If an act of state bee made that none within the kingdome shall make Cards but Iohn at Stile this act is voyde for the King himselfe cannot grant a Patent under his great Seale to any one man for the sole feazance of Cards So it is of all proclamations or acts of state that are to the prejudice of Trafficke trade or Merchant affaires or for raysing of Monopolies or against the freedome and libertie of the subjects or the publicke good as I said before Also if proclamations or acts of state may alter the law or bind the libertie goods or lands of the subjects then will acts of Parliaments bee to no purpose which doe represent the whole body of the kingdome and are commonly for creating of good and wholesome lawes Therefore I conceive that all proclamations made against law are absolutely voyde and that the infringers thereof ought not to loose or forfeyte their liberty goods or lands And for the punishment of such Iudges that vote herein I referre to the sixt they deny to answer to this question This answer is generall and dangerous withall it is generall viz. they know no ordinary rule of law for it they ought to declare the law against it the right use of it here they commend and yet they doe not describe that right use therefore they commend two things the one the life of a subject to be left to Marshall law in time of peace the other they leave it likewise discretionary when they describe not the right use their last resort is to the Kings prerogative I have said before that Lawyers write the King can doe no wrong and sure I am our King meanes no wrong the Kings of England did never make use of their prerogative to the destruction of the subject nor to take away his life nor libertie but by lawfull meanes I conceive this advise should become the Iudges other advise they find not in their law Bookes The statute of Magna Charta cap. 29. and 5. Edw. 3. cap. 9. the petition of right the third of King Charles in full Parliament declared Tell them nay doe convince them that no man in time of peace can bee executed by Marshall law My Lords I could wish the Iudges had timely stood in the right opposition to the drawing of causes proper for the Kings Courts to an aliud examen the improper and unlawfull examen thereof on paper petitions whereby the Kings Iustice and Courts were most defrauded whereas an arbitrement being a principall meane to compose differences arising betweene neighbours and to settle amitie betweene them without expence of time or money was a course approved by law all our Bookes are full of this It is by consent of parties by arbitrators indifferently chosen bonds for performance thereof are not voyde in law and Iudgements given upon arbitrements and such bonds in our Bookes without question or contradiction to the lawfullnesse of an arbitrement or bond in proper Cases the principall good wrought by them was the hindering of suites debates at law therfore that exception fals of it selfe then I am to consider how far an Oath in the particular is punishable I will not speake of an Oath exacted or tendered that is not the question the question is of a voluntary Oath which the arbitrator cannot hinder I speake not to the commendation of any such Oath nor doe I approve of any Oath other then that which is taken before a Magistrate who derives his authoritie from the King the fountaine of Iustice but onely how farre this Oath is punishable by the late statute 10. Caroli fol. 109. a prophane Oath is punished by the payment of twelve pence no more vide stat of Marl. cap 23. 52. Hen. 3. viz. Nullus de caetero possit distringere liber ' tenentes suos c. nec jurare faciat libere tenentes suos contra voluntatem suam quia nullus facere potest sine praecepto Domini Regis which statute teacheth us that an exacted or compulsive Oath is by the Kings authority a voluntarie Oath is not reprehended 19. Edw. 4. 1. a. It was not reprehended in the case of an arbitrement this voluntarie Oath is punishable in the Star-chamber as the Iudges would affirme which I conceive to bee against the law First for that wee cannot learne any president in England for it It was but lately introduced here therefore the house of Commons is unsatisfied with the answer to this question in Boyton and Leonards case in the Star-chamber in Ireland Boyton was dismissed in a Case to this purpose about the yeare 1630. or 1631. It hath beene the late introduced course of the Castle-chamber and Councell-table not to admit the party censured to the reducement of his fine before hee acknowledged the justnesse of the sentence pronounced against him and that for divers reasons First the course of a Court being as ancient as the Court and standing with law is Curiae lex as appeareth by our bookes 2. Co. 16. b. Lanes case 17. Long 5. Edw. 4. 1. but if it be a course introduced de novo in mans memorie or a course that is against law it cannot be said to be lex Curiae for consuetudo licet sit magnae authoritatis nunquam tamen praejudicat manifestae veritati
sine licentia Domini Regis Fitz. Natur. br fol. 85 the words of this writ cleares the Common-law in the point it begins with a datum est nobis intelligi c. The King being informed that such person or persons in particular doe intend to goe whether ad partes exteras viz. foraigne Countries to what purpose to prosecute matters to the prejudice of the King his Crowne the King in such a case by his writ warrant or Command under the great Seale privie Seale privy Signet or by proclamation may command any subject not to depart the kingdome without the Kings licence this writ is worthy to be observed for the causes aforesaid therein expressed the writ extendeth only to particular person or persons not to all the subjects of the kingdome no man can affirme that England is pars extera as to us Ireland is annexed to the Crowne of England and governed by the lawes of England our question set forth the cause viz. to appeale to the King for Iustice or to goe to England for other lawfull causes whereas the said writ intends practises with foraigne Princes to the prejudice of the King and his Crowne At the Common-law if a subject in contempt of this Command went ad partes exteras his Lands and goods ought to be seized 2. 3. Philip Mary Dy. 128. b. and yet if the subject went to the parts beyond the Seas before any such speciall inhibition this was not punishable before the statute of 5. Rich. 2. cap. 2. as appeares 12. 13. Elizab. Dy. 296. a. So that before the inhibition the law was indifferent now the question is at Common-law whether the subject of Ireland having no Office can be hindered to appeale or goe to the King for Iustice The King is the fountaine of Iustice and as his power is great to command so the Scepter of his Iustice is as great nay the Scepter hath the priority if any be for at his Coronation his Scepter is on his right side his Sword on his left side to his Iustice he is sworne therefore if any writ Commandement or proclamation bee obtayned from him or published contrary to his Iustice it is not the act of the King but the act of him that misinformed him then will I adde the other words of the question viz. or other his lawfull occasions as I said before in the case of a writ of error in the Kings Bench of England or in the Parliament of England which are remedies given by the law therefore the Common-law doth not hinder any man to prosecute those remedies which are given to everie subject by the same A scire facias may be brought by the King in England to repeale a patent under the great Seale of Ireland of lands in Ireland 20. Henr. 6. fol. a. An exchange of lands in England for lands in Ireland is a good exchange in law 8. ass placit. 27. 10. Edw. 3. fol. 42. tempor Edw. 1. Fitz voucher 239. What law therefore can prohibit any subject for to attend this scire facias in England or to make use of his freehold got by exchange The law being thus then it was considered what alteration was wrought by one branch of the statute of 5 Rich. 2. cap. 2. by which the passage is stopped out of the kingdome Lords notable Marchants and the Kings souldiers excepted I conceive this statute doth not include Ireland I never heard any Irishman questioned upon this statute for going into England nor any Englishman for comming into Ireland untill the late proclamation by the statute 34. Edw. 3. c. 18. in England all persons which have their heritage or possessions in Ireland may come with their beasts corne c. to and fro paying the Kings dues The statute of 5. Rich. 2. did never intend by implication to avoyde the said expresse statute of Edw. 3. betweene the Kings two kingdomes being governed by one law in effect the same people the words of the statute of 5. Rich. 2. are observable the principall scope of it is against the exportation of Bullion in the later part there is a clause for licences to be had in particular Portes by which I conceive that the Customers of those Portes may grant a let passe in such Cases It is therefore to be considered whether that branch of the said statute of 5. Rich. 2. was received in Ireland I thinke it is cleare it was not for by the statute 10. Henr. 7. cap. 22. in Ireland all the generall statutes of England were received in Ireland with this qualification viz. such as were for the Common and publicke weale c. And surely it cannot be for the weale of this kingdome that the subjects here be stayed from obtayning of Iustice or following other lawfull causes in England The statute of 25. Henr. 6. cap. 2. in Ireland excuseth absentes by the Kings command and imposeth no other penaltie so that upon the whole matter this question is not answered For so much as they doe answer of this question the answer is good for there is no doubt to be made but Deaneries are some donative some elective and some may be presentative according to the respective foundations I will only speake of a Deane de facto if a Deane bee made a Bishop and hath a dispensation Decanatus dignitatem in commenda in the retinere the confirmation of such a Deane is good in law This was the case of Evans and Acough in the Kings Bench in England Ter. 3. Caroli where Doctor Thornbow Deane of Yorke was made Bishop of Limmericke with a dispensation to hold in the retinere after his patent and before consecration it was adjudged his confirmation was good and yet if a Deane be made a Bishop in any part of the world this is a Cession Co. 5. 102. a. VVindsors case Davis Rep. 42. 43. c. The Deane of Fernes his case 18. Elizab. Dy. 346. the confirmation of a meere Laicus being Deane is good though he be after deprived 10. Eliz. Dy. 273. 12. 13. Elizab. Dy. 293. although the Deane be after deprived by sentence declaratorie yet his precedent confirmations are good So I conceive that a Deane who hath stallum in Choro vocem in Capitulo during all the time of his life and never questioned and usually confirmed all Leases without interruption is good And to question all such acts 40. 50. 100. yeares after is without president especially in Ireland untill of late yeares and in this kingdome few or no foundations of Bishopricks or Deaneries can bee found upon any Record therefore I conceive the Iudges ought to answer this part of the question My Lords I know you cannot forget the grounds I layd before for this question nor the time nor the occasion of the issuing of Quo warrantoes nor what was done thereupon in the Court of Exchequer Now remayneth to consider of the answer
of what Civill causes they have jurisdiction and by what law and of what force is their order or decree in such cause or any of them That the Councell-table of this Realme eyther with the chiefe Governor or Governors is no Iudicatorie wherein any action reall personall popular or mixt or any suite in the nature of the said actions or any of them can or ought to bee commenced heard or determined and all proceedings at the Councell-table in any suite in the nature of any of the said actions are voyde especially causes particularly provided for by expresse acts of Parliament of force in this kingdome onely exempted The like of the chiefe Governor above The proceedings before the chiefe Governor or Governors alone in any action reall personall popular or mixt or in any suite in the nature of any of the said actions are Coram non Iudice and voyde VVhether grants of Monopolies be warranted by the law and of what and in what cases and how and where and by whome are the pretended transgressors against such grants punishable and whether by fine mutillation of members imprisonment losse and forfeyture of goods or otherwise and which of them All grants of Monopolies are contrary to the lawes of this Realme and therefore voyde and no subject of the said Realme ought to bee fined imprisoned or otherwise punished for exercising or using their lawfull liberty of a subject contrary to such grants In what cases the Lord Lieutenant Lord Deputie or other chiefe governor or governors of this kingdome and Councell may punish by fine imprisonment mutillation of members pillory or otherwise and whether they may sentence any to such the same or the like punishment for infringing the commaunds of or concerning any proclamation of and concerning Monopolies and what punishment doe they incurre that vote for the same The Lord Lieutenant Lord Deputy or other chiefe governor or governors and Councell of this Realme or any of them ought not to imprison any of his Majesties subjects but onely in Cases where the Common-lawes or statutes of the Realme doe enable and warrant them so to doe they ought not to fine or to censure any subjects in mutillation of members standing on the pillory or other shamefull punishment in any case at the Councell-table and no subject ought to be imprisoned fined or otherwise punished for infringing any commaunds or proclamation for the support or countenance of Monopolies And if in any case any person or persons shall bee committed by the commaund or warrant of the chiefe governor or governors and privie Councell of this Realme or any of them that in every such case every such person or persons so committed restrayned of his or their libertie or suffering imprisonment upon demaund or motion made by his or their Councell or other imployed by him or them for that purpose unto the Iudges of the Court of Kings-bench or Common-pleas in open Court shall without delay upon any pretence whatsoever for the ordinarie fees usually payed for the same have forthwith granted unto them or him a writ or writts of Habeas Corpus to be directed generally to all and every Sheriffe Gaoler-minister officer or other person in whose custody the party or parties so committed or restrayned shall be shall at the returne of the said writ or writs and according to the commaund thereof upon due and convenient notice thereof given unto him at the charge of the party or parties who requireth or procureth such writ or writs and upon securitie by his or their owne Bond or Bonds given to pay the charge of carrying backe the prisoner or prisoners if hee or they shall bee remanded by the Court to which he or they shal be brought as in like causes hath beene used such charges of bringing up and carrying backe the prisoner or prisoners to be alwayes ordered by the Court if any difference shall arise there about to bring or cause to be brought the body or bodies of the said partie or parties so committed or restrayned unto before the Iudges Iustices of the said Court from whence the same writ or writs shall issue in open Court shall then likewise certifie the true cause of such his or their detayner or imprisonment and thereupon the Court after such returne made and delivered in open Court shall proceed to examine and determine whether the cause of such commitment appearing upon the said returne be just and legall or not and shall thereupon doe what to justice shall appertayne eyther by delivering bayling or remanding the prisoner or prisoners Of what force is an act of state or proclamation in this kingdome to bind the libertie goods possessions or inheritance of the Natives thereof whether they or any of them can alter the Common law or the infringers of them loose their goods chattels or leases or forfeyte the same by infringing any such act of state proclamation or both and what punishment doe the sworne Iudges of the law that are privy Councellors incurre that vote for such acts and execution thereof An act of state or proclamation in this kingdom cannot bind the libertie inheritance possession or goods of the subjects of the said kingdome nor alter the Common-law and the infringers of any such act of state or proclamation ought not to forfeyte lands leases goods or chatels for the infringing of any such act of state or proclamation And the Iudges of the law who doe vote for such acts of state or proclamation are punishable as breakers and violaters of their Oathes of Iudges Are the subjects of this kingdome subject to the marshall law whether any man in time of peace no enemie being in the field with banner displaid can be sentenced to death if so by whom and in what causes if not what punishment doe they incurre that in time of peace execute marshall law No subject of this kingdome ought to bee sentenced to death or executed by Marshall-law in time of peace and if any subject be so sentenced or executed by marshall-law in time of peace the authors actors of any such sentence or execution are punishable by the law of the land for their so doing as doers of their owne wrong and contrarie to the said law of the land VVhether voluntary Oathes taken freely before arbitrators for affirmance or disaffirmance of any thing or for the true performance of any thing be punishable in the Castle-chamber or any other Court why or wherfore No man ought to bee punished in the Castle-chamber or in any other Court for taking a voluntary Oath before arbitrators for affirmance or disaffirmance of any thing or the true performance of any thing in civill causes nor are the arbitrators before whom such voluntary oathes shall be taken punishable VVhy and by what law or by what rule of policie is it that none is admitted to reducement of fines