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A66669 Maximes of reason, or, The reason of the common law of England by Edmond Wingate ... Wingate, Edmund, 1596-1656. 1658 (1658) Wing W3021; ESTC R10401 1,156,030 747

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the sonne is not remitted for the Statute makes the possession in him as the use was before Howbeit it seemeth also that his issue shall be remitted because he claimes paramount the Statute viz. per formam doni for the estate tail is still in being and was not extinct by the Statute And in this case it is not material whether the sonne when he entred was at full age Dyer 54. b. 22. 34 H 8. or under age for it seems he is not remitted albeit he were then under age for if Tenant in taile make a feofment to the use of himselfe and his heires and the Feoffor dies his issue within age and then comes the Statute here the heire shall not be remitted but it seemes his issue may causa qua suprà Vide suprà 5. Dyer 54 b. 1. 34 and 35 H. 8 33 The Kings Tenant of lands holden in Capite before the Statute of Uses suffers a common recovery to the use of his sonne and heire apparant and his wife and of the heires of the bodie of the sonne Wardship after which Statute the sonne hath issue and dies the issue within age In this case the issue shall not be in ward during the life of the Feme for the ancient use of the Fee simple which was paramuont the Statute remaines still in the father albeit he expressed not any use in Fee simple and then by the Statute the possession was vested in the sonne and the feme as the use was and the Fee simple in the father as he was Donor of the use and not as one in remainder of a new Fee simple for that would have altered the case And in the same case if the father had covenanted that the sonne immediately after his decease should have had in possession or in use all his land according to the same course of Inheritance as they then stood and that all men seised or to be seised should stand seised to the uses and intents aforesaid yet the sonne should not be in ward for it had been but a Covenant which changeth not the estate of the Fee simple which was paramount the Statute as afore is said Emblements sown 34 If Tenant pur auter vie sow the land and Cestuy que vie die Dyer 316. 2. 15. Eliz. the Tenant pur auter vie shall have the crop So if the Baron sow the Femes land and the Feme die the Baron shall reap the crop Likewise if the Baron make feofment in fée to the use of himselfe for life the remainder to the use of the Feme for life with remainders over and the Baron sow the land and die his executors shall have the crop and not the Feme or Heire because death being the Act of God it could not be fore-séen or prevented Howbeit if the Baron make feofment in fée to the use of himselfe and his Feme for their lives with remainders over and the Baron sow the land and die the Feme shall have the crop because she was Ioyn-tenant with her husband and hath it by Title paramount the executor So if the Baron sow the land and die and the third part is assigned to the Feme for Dower she shall have the emblements therewithall because she is in of her husbands estate paramount the Title of the executor and likewise shall be endowed de optima possessione of her husband 31 Things are to be construed Secundam subiectam materiam Account by the Guardian 1 It hath béen a question much controverted in the books of the Law at what age of the heir Co. Inst pars 1 89. a. 1. Stat. of Marlebridge 52 H. 3. 17. a Guardian in Soccage was compellable to render an accompt whether at 14 or at 21. And the causes of that doubt have béen both upon the words of the Statute of Marlebridge cap. 17. and likewise upon the original writ of accompt against such a Guardian The words of the Statute are these Cum ad legitimam aetatem pervenerit sibi respondeat c. a 16 E. 3. Wast 100. c And legitima aetas is 21 yeares Also the writ of accompt reciting the said Statute saith Quare cum de communi concilio c. provisum sit quòd custodes c. in Soccagio haeredibus c. cum ad plenam aetatem pervenerint reddant rationabilem compotum c. c 16 E. 2. account 120. 17 E. 2. ibid. 121. c 2 E. 2. account 14 E. 3. ibid. 3 Mar. 137. Kelway 131. Pl. 16 El. Rot. 436. Littl. § 123. Whereupon it was gathered that no action of accompt did lie against the Guardian in Soccage at the Common Law untill the heire were of his lawfull and full age of 21 yeares But legitima aetas as the Statute hath it or plena aetas as the writ doth render it are to be understood secundam subjectam materiam viz. of the heire of Soccage land whose lawfull or full age as to the Custodie or Wardship is 14 and therefore upon consideration had of the said Statute and of all the Books it was adjudged in the Court of Common Pleas P. 16. El. rot 436. that the heire after the age of 14 yeares shall have an Action of accompt against the Guardian in Soccage when he will at his pleasure and with this agrées Littleton Sect. 123. Age of Infant to make a wil. 2 Because Littleton saith Sect. 123 that the Guardian in Soccage shall render an accompt of the mariage money to the heire or his executors some have inferred Co. Inst pars 1 89. b. 2. that an infant of the age of 14 may make a will but the meaning of Littleton in that place is that if after his mariage he accomplish his age of 18 yeares he may then make a will and constitute executors for his goods and chattells for at that age he hath power by the Law to make a Will and the words are to be understood Secundam subjectam materiam and as they may stand with Law and Reason Vide suprà 15. 21. The Kings Councils 3 The King of England is armed with divers Councils Co. Inst pars 1 110. a. 2. viz. Commune Concilium which is the Court of Parliament Another is called Magnum Concilium and this is sometimes applied to the House of Péeres alone and sometimes out of Parliament to the Péeres of the Realme being Lords of Parliament who are called Magnum Concilium Regis Thirdly the King hath a Privy Council for matters of State Fourthly the King hath another Councel for matters of Law and they are his Iudges of the Law Now therefore when it is spoken generally of the Kings Councel it is to be understood secundum subjectam materiam as if matter of Law be concerned then his Councel at Law viz. his Iudges are to be understood if matter of State his Privy Councel c. Co. Inst pars 1 302. b. 1. 4 If the
juridicus Co. Inst pats 1 135. a. for that ought to be consecrated to divine service Pleas. 2 No plea shall be holden Quindena Paschae F. N. B. 17. f. because it is alwayes the Lords day but it shall be crastino quindenae Paschae Fin●● 3. Vpon a fine levied with proclamations according to the Statute of 4 H. 7. 24. if any of the proclamations be made on the Lords day Finches Ley pag. 7. all the proclamations are erroneous for the Iustices may not sit upon that day being a day exempt from such businesses by the Common Law for the solemnitie of it to the intent that all people may apply themselves that day to prayer and serving of God 1 El. Dyer 168 12 E. 4. 8. 3 If a writ of Scire facias out of the Common place beare Teste upon the Lords day it is errour because it is not dies dominicus in Banco Errour 4 No sale upon the Lords day shall be said a sale in Market overt to alter the propertie Sale 6 Gravius est divinam quam Temporalem laedere majestatem Co. l. 11. 29. b. Poulters case 1 Regularly Clergy a man shall by the Common law have the benefit of Clergie for any felonie Howbeit if a felon be also an Heretique Iew Sarazen or Infidel he shall not have it F. N. B. 269. b. Br. Heresie 1. Co. l. ● 58. a. Specots case 2 Heresie is an offence committed against the Majestie of God by a presumptuous oppugning of an Article of Faith or the like Heresie And therefore at the Common law this offence was punished by a more terrible and grievous mulct than any other felony whatsoever and indeed than Treason it selfe viz. by fire and faggot Howbeit to determine what is Heresie falls not within the Conusance of temporal Courts but is wholly left to the Ecclesiastical Iurisdiction for it appears by the writ de haeretico comburendo that at the Common law before an heretique could be committed to the Lay-power to be burnt he was to be convicted in a Provincial Synod before the Archbishop and his Clergie and then if he did either refuse to abjure the heresie or having abjured it upon a relapse were convicted again by such a Synod of that or any other heresie he was then delivered to the secular power to be punished by fire and faggot and no Sanctuarie could priviledge him Frowick Lect. Howbeit by the Statute of 2 H. 4. 15. any Bishop had power to do as much within his Diocesse and if the Sheriffe were present at his conviction the Bishop might deliver him to the Sheriffe to be burnt and that without the Kings writ but that Statute was repealed by 25 H. 8. cap. 14. and thereby that offence made presentable at Sheriffes Turnes and Léets and from th●nce to be certified to the Ordinarie which Statute the 25 H. 8. was also repealed by 1 E. 6. 12. from which time until 1 2 P. M. 6. which revived 2 H. 4. 15. an heretique was punishable at the Common Law as above is expressed but by 1 El. 1. the Statute of 1 2 P. M. was repealed and then by 1 El. the Quéenes Commissioners heretofore called the High Commission Court had power to judge of heresie but they were thereby also restrained to adjudge nothing Heresie but what was so adjudged by the holy Scriptures the four first General Councils or the Parliament with the assent of the Clergie in their Convocation Howbeit at this day the Iurisdiction of Bishops being taken away and that clause of 1 El. repealed by a later Act it séemes at present there is no law to punish that offence See more concerning heresies in the Statutes of 5 R. 2. 5. 2 H. 5. 7. 31 H. 8. 14. and 34 H. 8. 1. being all repealed by 1 E. 6. 12. See also Li. Intr. 264 and 340. Rast Ph. 319. 10. H. 7. fol. 17. and Doct. and Stud. L. 2. cap. 29. Howbeit observe that the said Statutes made in the raignes of H. 4. and H. 5. were chiefly intended against such as did then begin to discover the Pride Lucre and errors of the Church of Rome and in dirision were termed Lollards as you may read at large in the Book of Martyrs and elsewhere in divers other authors as Sleiden Brightman c. The Kings command against Law not to be obeyed by the Judges Stat. 18. E. 3. Stat. 3. 8. 3 One part of the Iudges oath is that they shall not deny right though it be by command from the King which if they breake they will be found guilty Laesae Majestatis divinae And therefore in such case they ought rather to disobey the Kings commands then thereby incurre the high displeasure of Almighty God for Gravius est divinam c. And to the end that the Iudges might be the better protected from this danger Stat. 2. E. 3. 8. the prudence of former times hath ordained divers Lawes whereby the Iustices have power to procéed Stat. 20. E. 3. 1. notwithstanding any command from the King to the contrarie no though it be under the Great or Privie Seal And therefore if the King write to the Iustices to prorogue an Assize because the defendant is in his service F. N. B. 153. h. yet the Iustices ought to procéed and not to cease for any such letter so likewise in an Assize the Bishop certifies Bastardie 29 E. 3. 14. Judgment 117 and the Kings letter is sent to the Iustices to cease because the certificate was suspicious notwithstanding which letter they tooke the Assize and afterwards albeit the Chancellor reversed the taking of the Assize in the Council because they obeyed not the letter yet notwithstanding that the Iustices gave Iudgement upon the Assize 22 F. 3. 12. Judgment 185 Also in dower the tenant was essoined and had farther day given at which the King sends a letter to excuse the tenants apperance alleadging that he was at Callis in his service Howbeit the Iustices gave no regard to it but proceeded notwithstanding that letter Nor by the Sheriff 4 The Sheriffe also 14 E. 3. Returns del Viscont 8● who is but an Officer or Minister to the superiour Courts of Iustice ought not to desist from the due execution and return of writs directed unto him notwithstanding any command to the contrary from the King least he likewise incurre the like danger by breaking his oath And therefore we read in 14 E. 3. that N. de B. being attainted of disseisin with force An Exigi facias went forth against him to the Sheriff who returned that the King had certified him by writ that he had pardoned the trespasse and imprisonment commanding him that he should desist and that therefore he had not executed the writ whereupon saith Wilby the writ ought first to have béene sent to us that we might have commanded the Sheriffe to cease for the Sheriffe