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
upon grievous pain sometimes before the King himself sometimes before the King's Council sometimes to the Parliament to answer thereof anew to the grievance of the Parties and in Subversion of the common-Common-Law of the Land 't is Enacted that after Judgment the Parties shall be in Peace until the Judgment be undone by Attaint or Error this is agreed and amplified 3 Bulst 47.115 Here is mention even of the Parliaments Summoning persons to Answer in Subversion of the Laws There are other Statutes not Printed as 4 Edw. 3. numb 6. Cotton's Abridg. 7. and the same in 2 Inst 50. The Lords gave Judgment of Death without Indictment upon some who were not their Peers and agreed in full Parliament that they should be discharged of so doing for the future and that it should not be drawn in President that the like should not be done on any but their Peers 't is a Declaration of the Lords nay 't is an Act of Parliament and penned in the same manner as 29 Edw. 1. Statute del Estoppel at a Parliament agreed 33 Edw. 1. by common accord and 9 Edw. 2. the King in Parliament by Advice of his Council and these are held to be Statutes This was not only an acquittal from the trouble but a clear denial of the Power as appears by the words before that they had assumed upon themselves and the words subsequent that the like should not be done again The Complaint was because it was intermedling with Commoners after that manner Suppose this House should make an Order upon this matter which is a Law business and not of Equity no Execution can be made of it but Commitment There is the 15 Edw. 3. now insisted on Printed in the Old Statute Book but omitted in this 't is in Cotton 28.33 and 't is thus the Commons complained of breaches of Magna Charta c. and pray remedy with this Conclusion That every Man may stand to the Law according to his Condition and the Lords pray that Magna Charta may be observed and further that if any of what Condition soever should break it he should be adjudged by the Peers of the Realm in Parliament the next Parliament and so from Parliament to Parliament and it was Enacted accordingly This was Specious the same being only for the breakers of Magna Charta but in 17 Edw. 3. that whole Parliament i. e. all the Acts of it are Repealed which Repeal seems designed for the Petitioners for it Repeals the supposed Laws which make both their Title and this Jurisdiction which they would support 'T is observable what is said in the Repeal that the Act was contrary to the King's Oath in prejudice of his Crown and Royalty and against the Ancient Law And such is this for here 's no use of the King 's Writ no Address to or Command by the King for this Proceeding nor any mention of his name in the Petition By 1 Hen. 4. cap. 14. Appeals in Parliament for Offences are declared against as contrary to Reason and the Constitution this is such This is not incident to the Power of Hearing and Determining upon the Writ of Error because as was said before it belongs properly to the Chancery to Issue a Writ Commanding it to be done Si ita est as is Suggested By 12 Rep. 63. the King himself cannot take any Cause out of the Court where it depends and give Judgment on it himself And this House can make no Order upon this Petition that will be a Record as in Hob. 110. The Petition is in the name of a Person not party to the Record which seems very new for 't is by a Stranger in the eye of the Law to the Cause and consequently ought not to be joyned in any legal proceeding if this be such This is not incident to the Jurisdiction of the Error no more than Amendment of an Error in the Court from whence the Record comes or the filing of a Baile a Declaration or a Warrant of Attorney or the Sueing out another Process in Defect of one lost or the like These things are never Examinable in the Superior Court for in these Collateral things the other are intrusted Here 's no Hardship upon the Petitioner for he might have been Non-suite or have given this Repeal'd Act in Evidence at first and then have demurr'd on the Defendant's Evidence or might have Sued a Writ on the Statute of Westminster 2. But suppose this House should Examine this matter and find the Petition to be groundless will such Determination prevent the Judges from being troubled by Sueing of the Writ afterwards Suppose it E contra that this House should punish the Judges and commit them and award Damages or make other Order in favour of the Petitioners would such Order bar or stop the legal process afterwards can any Order made here be used below as a Recovery or Acquittal as an Auterfoits Convict or Auterfoits Acquitte If there be any thing in it 't is a breach of a Statute Law for which they are punishable at the King's Suit will the proceeding here save them from the trouble of answering to an Indictment or Information for the same thing Then since a Writ lies to Command them to Seal this Bill and since an Act of Parliament directs it if it were a true one perhaps it may be Questionable if they do not break their Oaths in case they Sign it in Obedience to any other direction If they did it in Obedience to the Royal Word Signet or Privy Seal of the King their Master 't would be a breach of their Oath Then as to presidents of the Exercise of such a Jurisdiction none come near this And abundance of particular Cases were put and answered but the considerable one was Jeffery Stanton's Case 14 Edw. 3.31 Cot. 30. The Case is odd 't is in Fits Abridgment tit voucher 119. there is a Writ directory to the Judges to proceed to Judgment or to bring the Record before the Parliament that they might receive an Averment c. To this Case it was Answered That the same was long before most of the Statutes aforementioned and in full Parliament and in that Case Stone would not agree to it but adhered to the Law according to his Opinion 't is true Shard in the absence of Stone gave Judgment according to that Advice but a Writ of Error was afterwards brought in the King 's Bench and the Judgment was Reversed 15 Edw. 3. B. R. even contrary to the Advice of Parliament to the other Judges As to the other Cases of Property Examined here either the Parties submitted to Answer or they were at the Suit or Complaint of the Commons or by Consent of the King and Commons but none of them carry any resemblance to this where the Judges insist upon it that there is another and a proper Remedy All the Cases in Ryley's Placita Parliamentaria are either Ordinances of Parliament or directions to follow
haberi decrevit and then he adjourns 't is no Argument to say that he was hindred for he might have proceeded in absentia and if the 16th of June be tacked to it 't is longer than the time There needed no formal adjournment for that he is Authorized to proceed in a Summary way 't is no such absurdity to call that a Visitation which was in some sort hindred since notwithstanding the obstruction some Acts were done and more might have been by adjourning to another place 3. Here was no such cause as could warrant a Deprivation it was not one of the causes mentioned in the Statutes which are not directions merely but they are the constituent Qualifications of the Power and Contumacy is none of the causes nay here is no Contumacy at all The Offence of the Suspended Fellows was only a mistake in their Opinions and the Doctors was no more and 't is not a Contumacy for refusing to answer to or for any Crime within the Statutes for there was none of the Crimes mentioned in the Statutes laid to the charge of the Rector if the Crime charged had incurred Deprivation perhaps a Contumacy might be Evidence of a Guilt of that Crime and so deserve the same Censure but Contumacy in not consenting to a Visitation can never be such especially when the consenting to a Visitation is not required under pain of Deprivation 4. Admitting the Visitor legally in the Exercise of his Office that here was cause of Censure that the Cause or Crime was deserving of that Punishment which was inflicted that Deprivation was a congruous Penalty for such an Offence yet t was argued That this Sentence was void for that the Visitor alone was in this Case minus competens judex because his Authority was particularly designed to be exercised with the consent of others which was wanting in this Case This was the same as if it had required the concurrence of some other Persons Extra Colleg ' then that such a concurrence was necessary appears from the words of the Statute his meaning seems plain upon the whole to require it A greater tenderness is all along shewn to the Rector then to the Scholars 't is sine quorum consensu irrita erit hujusmodi Expulsio vacua ipso facto and the Sentence it self shews it necessary because it affirms it self to be made with such consent and it cannot be thought that the Rector should be deprivable without their consent when the meanest Scholar could not Then here 's no such consent for 't is not of the four Seniors but of the four Seniors not Suspended now this doth not fulfil the Command of the Statute for the Suspension doth not make them to be no Fellows a Suspended Fellow is a Fellow though Suspended a Suspension makes no vacancy the taking off of the Suspension by Sentence or by Effluxion of time doth make them capable of acting still without the aid of any new Election and they are in upon their old choice and have all the priviledges of Seniority and Precedency as before If they ceased to be Fellows by the Suspension then they ought to undergo the Annum probationis again and to take the Oaths again In case of Benefices or Offices Religious or Civil Ecclesiastical or Temporal 't is so a Suspension in this Case is only a disabling them from taking the Profits during the time it continues And 't is no Argument to say That their Concurrence was not necessary for that they had withdrawn themselves and were guilty of Contumacy for that a Man guilty of Contumacy might be present if withdrawn from the Chapel he might be in the Colledge or in the University and 't is not found that they were absent and then their Consent not being had the Sentence was void and null and consequently no Title found for the Lessor of the Plaintiff in the Action below It was replied in behalf of the Plaintiff much to the same effect as 't was argued before and great weight laid upon the Contumacy which hindred the observance of the Statutes that by allowing such a Behaviour in a Colledge no Will of the Founder could be fulfilled no Visitation could ever be had and all the Statutes would be repealed or made void at once that tho' this Crime was not mentioned 't was as great or greater than any of the rest that here was an Authority and well executed and upon a just Cause and in a regular manner as far as the Rector's own Misbehaviour did not prevent it and therefore they prayed that the Judgment might be reversed And upon Debate the same was reversed accordingly Note That in this Case there was one Doubt conceived before and another after this hearing The first was If a Writ of Error lay in Parliament immediately upon a Judgment in the King's Bench without first resorting to the Exchequer Chamber but upon perusing the Statute which erects that Court for Examination of Errors it appeared plainly that that Act only gives the Election to the Party aggrieved to go thither that it did not take away the old Common Law method of Relief in Parliament and so hath the Practise been but upon Judgments in the Exchequer Court the Writ of Error must first be brought before the Lord Chancellor and cannot come per saltum into Parliament because the Statute in that case expresly ordains That Errors in the Court of Exchequer shall be examined there and so held in the Case of the Earl of Macclesfield and Grosvenor The other Doubt was raised by a Motion in B. R. for the Court to give a new Judgment upon the Reversal above and insisted on that it ought so to be as was done in the Case of Faldo and Ridge Yelv. 74. entred Trin. 2 Jac. 1. Rot. 267. Trespass and Special Plea and Judgment in B. R. for the Defendant and upon Writ of Error in the Exchequer Chamber the Judgment was Reversed and upon the Record returned into the King's Bench they gave Judgment that the Plaintiff should recover contrary to the first Judgment for otherwise they said the Law would prove defective and a Precedent was shewn in Winchcomb's Case 38 Eliz. where the same Course was taken and the like Rule was made Mich. 1 W. Mar. upon the Reversal of the Judgment inter Claxton vers Swift which is entred Mich 2 Jac. 2. B. R. Rot. 645. the like between Sarsfield vers Witherley 'T was argued on the other side That the Court which reverses the Judgment ought to give the new Judgment such as ought to have been given at first that in the Exchequer Chamber it may be otherwise because they have only power to affirm or reverse for yet in the Case of King and Seutin the Exchequer Chamber gave a new Judgment tho' they cannot inquire of Damages and that is a kind of Execution which must be in B.R. In Omulkery's Case 1 Cro. 512. and 2 Cro. 534. the Court here sends a Mandatory Writ to
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
upon the Livings becoming void by Cession viz. by the Incumbents being made a Bishop but never a word of the King's Title in all the Case or any such Prerogative as is now contended for And in Owen's Rep. 144. Walmesly cites a President which he had seen in Edward the Second's time adjudged that the King had no such Prerogative and all that was said for it was eight or nine Presidents in Tradition or History of a Patron being complemented out of his Right but not one Law-Book for it Coke 4 Inst 356 357. who wrote and published much he never mentions this Prerogative but says that the Law is otherwise for upon his Observation on a Record of 24 Edw. 3. Rot. 25. coram Rege Cornub ' Admittitur Episcopus Exon ' pro fine 200 merc ' pro contemptu in non admittendo presentatum Regis ad Ecclesiam de Southwel pro quo contempt ' omnia temporalia Seisita fuerunt in manus Regis tunc temporis ante finem fact ' vacavit Archidiaconat ' Cornubiae ratione quod Incumbens Electus fuit in Archiepiscopunâ— Dublin ' in Hibernia Temporalibus Episcopi Exon ' ad tunc in manibus Regis existent per quod Dominus Rex recuperavit versus Episcopum dict' Archidiaconat ' Upon this Record he makes two Conclusions 1. Tho' Ireland be a distinct Kingdom yet 't is governed by the same Law as England in these Matters 2. That when the Arch-Deacon was by the King preferred to an Archbishoprick he had the Presentation to the Arch-deaconry in respect of the Temporalties of the Bishop of Exeter Patron of the Arch-deaconry and not by any Prerogative Here 't is observable That my Lord Coke took it that the Patronage by reason of the Temporalties gave to the King this Right and not the Prerogative Then his next Paragraph is stronger If a Bishop in England be made a Cardinal the Bishoprick becomes void and the King shall name his Successor because the Bishoprick is of his Patronage All which implies That if 't were not of his Patronage 't would be otherwise else why is that reason added Obj. But then say they The Pope's Usurpation prevailed in all those times and the Pope had it when Provisions were in use But that can be no Argument to give the Crown a Prerogative for the Pope was a Tyrant over the English Church and by the same Reason the King may claim to be above all Laws because some Judges said as Hank did in Hen. 4. quod Papa potest omnia at that rate no Act of Parliament shall bind the King because the Pope thought himself bound by no Law of ours Besides There were several of our English Monarchs and English Parliaments that boldly withstood these Usurpations and there were divers Intervals of Liberty and Freedom from that Romish Yoke and we never read of any Exercise of this Prerogative in those Intervals 'T is questioned in 41 Eliz. and in Owen's Rep. 't is said that the Pope's practise was no Authority to warrant a Prerogative for they used to do strange things and the Clergy then made his Will a Law and our English Lawyers have always complained of it Obj. There 's no ancient Books that mention Title by Lapse But 't was answered That in Caudries Case 't is fetch'd from the Reign of Edw. 3. and that is no very late Reign and Lapse is so ancient as it appears by the close Roll 21 Hen. 3. in n. 12. that the Deâ— and Chapter pretended to it during a Vacancy of a See upon an Advowson of the King 's own but it appears there by a Writ to that purpose that no Lapse per tempus semestre accrued on the King which shews that 't was old Law for the Subjects Pryn 2.481 By a Writ 8 Hen. 3. num 4. Dorso Prynne 2 Vol. 389. it appears the Archbishop of York was to present si ultra tempus sex mensium vasari contigerint and 1 Inst. 2 Inst. and all the Booksare full of it and Doctor and Student which is no new Book treats of it cap. 31. Besides that and this are different Cases there is a necessity of such a Law for the Service of the Church the King is by the Constitution intrusted with the Supreme Care of his People both for Religion and Property and if a Patron will not do it in reasonable time 't is reasonable he should lose it and the King present But to make that a similar Case they should shew that these Prerogatives were of equal duration and that there 's as much reason for the one as for the other but because the King hath preferred the Patron 's Friend therefore the King shall have it that cannot hold upon a toties quoties when the Friend is dead and three or four more of the King 's presenting for by this means the Patron may never present to his Church 2. The next Query was Whether this Commendam for above the six Months with power to take the Profits to his own use shall be a fulfilling of this turn or otherwise prevent the Operation of the Prerogative on it by this he was a plenary Incumbent after Consecration and he had the Profits to his own use He was not meerly the Ordinary's Deputy to supply the Cure during six Months but hath it in his own right and this with the King's concurrence The Prerogative could only work upon an Avoidance by Promotion and that is upon Consecration this becomes void at the expiration of therein limited T is to be considered That this is none of the old Prerogatives of the Crown which in a Competition are to be preferred before the Subject's Right it is a Prerogative not to be favourably interpreted but stricto Jure for 't was only taken up as a Papal Right and so 't is plain from 2 Rolls Abridg. 358 359. As such a Papal Right it ought to be interpreted stricto Jure even by the Pope's Law being against the Patron 's ordinary Right and so 't is nature odiose there might be cited Suares and others to this purpose Perhaps the Pope's Right was not so much allowed here as to make it clear with him in this Point for Dr. and Student cap. 36. 37. says that the Pope's Collection of Benefices vacantium in Curia was held to be within the Statute concerning Provisions viz. 25 Edw. 3. This Prerogative hath been construed stricto Jure here 1. In the Case which the Lord Chief Justice Vaughan Reports where the Crown upon the promotion of an Incumbent to the Bishoprick of Oxford and who by Dispensation retained his Living till death would have presented to the Living when it fell vold by the Incumbent the Bishop's Death it was resolved that the King's Prerogative was not to present to the next Avoidance after the Promotion but to the next Avoidance by the promotion which in that Case was none for that the Avoidance was by Death 2. In the Case my Lord Chief
yet doth further agree That this Parish-Church was never presented to by any Person at all But he insists upon it That now it is void the King hath a Right to present to it by force of his Prerogative upon this Avoidance tho' the Act saith That the Bishop shall present after the Decease of Dr. Tennison or the next Avoidance The Query is whether the King's Prerogative can operate upon this Vacancy of this Benefice thus filled and thus avoided against the express Words of an Act of Parliament It will be necessary to repeat the Words of the Act and they are to this Effect That all that Precinct or District of Ground within the Bounds and Limits there mentioned from thenceforth should be a Parish of it self by the Name of the Parish of St. James's within the Liberties of Westminster and a Church thereupon built is dedicated by the Act to Divine Service and that there should be a Rector to have the Care of Souls inhabiting there and then after a full Commendation of the Merits and Services of Dr. Tennison in that Place the now Reverend the Bishop of Lincoln It doth Enact and Ordain him to be the first Rector of the same and that the said Doctor and his Successors Rectors of the said Parish should be incorporated and have a perpetual Capacity and Succession by the Name of the Rector of the said Parish Church and by Virtue of that Act should be enabled by the Name aforesaid to sue and be sued to plead and to be impleaded in all Courts and Places within this Kingdom and should have Capacity to hold and enjoy purchase and acquire Lands Tenements and Hereditaments to him and them Rectors thereof for ever over and above what is given and settled by that Act to any Value not exceeding 200 l. per Annum Then it Enacts That the Patronage Advowson or Presentation after the Decease of the said first Rector or Avoidance thereof shall or should belong and appertain and by that Act shall or should be vested in the said Bishop of London for the time being and his Successors and in Thomas Lord Jermyn and his Heirs for ever Then it Enacts That the first Rector after such Decease or Vacancy shall be presented or collated by the Bishop of London for the time being and the next to succeed him shall be presented by the Lord Jermyn and his Heirs and the two next succeeding turns by the Bishop and his Successors and the next turn to the Lord Jermyn and his Heirs and then the like Succession of two turns for one to the Bishop and his Succession and of one turn to the Lord Jermyn and his Heirs for ever after This is the Act. Now 't is to be considered That this Law doth bind the King and would bind him in point of Interest if he had been Patron of St. Martins in Right of his Crown and if a Right or Interest of the Crown shall be bound by an Act of Parliament a Prerogative shall be in no better plight It cannot be said That he shall not be obliged by it because not named for tho' and where he is not named he is bound by Multitudes of Statutes according to the 5 Rep. 14 and 11 Rep. 68. He is bound by all Acts generally speaking which are to prevent a Decay of Religion and so he is bound by Acts which are for further Relief or to give a more speedy Remedy against Wrong It is no Objection that this Law is in the Affirmative for that it is introductive of a new Law in the very Subject that is created de novo Then before this Act the King had no Right over this and if he hath now any over it he can only have it how when and as the Act gives it not contrary to it then the Bishop was Patron of the Place out of which the Parish is created And the Bishop can claim no other Right than what the Act gives him Bro. tit Remitter 49. 't is so agreed 1 Rep. 48. and in 2 Rep. 46. if Lands be given in Fee to one who was Tenant in Tayle his Issue shall not be remitted because the latter Act takes away the force of the Statute de donis Suppose he had been Enacted to be Patron of a Living to which he had a former Right there could be no Remitter because as to particulars the Act is like a Judgment and estops all Parties to claim any thing otherwise than according to the Act and yet Remitter is a Title favoured in the Law then if he have this only by force of this New Act and another Person should present in his turn so given 't would be an Injury if a Subject did it and consequently the King cannot do it for the Prerogative which this Act gives or which the Common Law gives is not yet come to take place Tho' this be an Affirmative Law yet according to the Rule taken and agreed in Slade's and Drake's Case Hob. 298. being introductive or creative of a new thing implies a Negative of all that is not in the purview and many Cases are there put to this purpose Then also it being particular and express it implies a Negative because this and the other are inconsistent But First 'T is observable all Prescriptions and Customs are fore-closed by a New Act of Parliament unless saved Suppose there was an Act of Parliament in Force before this viz. That the King should present yet another Statute Enacting somewhat new and inconsistent will carry a Negative and if so in Case of a former Act there 's almost as much Reason for a Prerogative It must be agreed That a Man may prescribe or alledge a Custom against an Act of Parliament when his Prescription or Custom is saved or preserved by that or another Act but regularly a Man cannot prescribe or alledge a Custom against any Act of Parliament because 't is matter of Record and the highest and greatest Record which we know of in the Law 1 Inst 115. Suppose Money were by the Law payable annually and an Act comes and says it shall be paid Quarterly by even and equal Portions at the four Feasts for the first Year this will certainly alter the Law 'T is true That a consistent Devife or Statute is no Repeal or Revocation but if a new Act gives a new Estate different from the former this amounts to a Repeal Fox and Harcourt's Case The same Rule holds even in Case of the King as in the Archbishop of Canterbury's Case 2 Rep. 46. and agreed to in Hob. 310. the Query was if the Lands came to the King by 31 H. 8. cap. 13. or by the Stat. of Edw. 6. and objected That the latter was in the Affirmative yet held That it came by the latter because tho' they were Affirmative Words yet they were differently penn'd and the last being of as high an Authority as the first and providing by express Words That by Authority of that Parliament
came in by Presentation or Collation and not otherwise It is not at present proper to argue when this Prerogative shall begin or commence upon this Church or if ever 't will be time enough to dispute that when another Occasion offers it self when the Doctor or any of his Successors happens to be preferred to the same state as his Predecessor is It suffices to maintain that this turn belongs to the Bishop of London This is not an Advowson created as others usually are First As was observed before no Advowson is fixed or vested or created but in futuro the same Person is made a Pluralist by Act of Parliament tho' the Act it self says the Parish was too great for one Cure Then 't was observed That this is not a Patronage turn it must be admitted that this Act vests the Fee-simple of this Advowson in the Lord Jermyn and the Bishop of London and in their respective Heirs and Successors by turns viz. to the Lord Jermyn one and to the Bishop two successively and so the Succession is enacted to be for ever now this is not one of those Patronage successive turns but it is a particular Presentation which is given to the Bishop of London by express Limitation and the penning is different The first about which the present Contest is is to be by the Bishop of London for the time being then the successive Presentations of one and two are to be one by the Lord and his Heirs and the two by the Bishop and his Successors so that there is no words in the first that looks like the Gift of an Estate but 't is only one first particular Presentation given to the Bishop more then ordinary It is not one of his turns which he is to have as Patron by two to one But first he is to present one before ever it comes into the form and manner of turns prescribed by this Act in perpetual Succession For if otherwise the Patronage would be to the Bishop three turns in four to one of the Lord Jermyns As to their Objection That a Patronage newly created shall be in the same plight and under the same Rules and Circumstances and Incumbrances as another that Objection can never take place before it becomes a Patronage which this was not And 2. with a stronger reason it can never take place till it hath been presented unto 3. It can never take place where a particular Presentation is at first given by express words The words are The first Rector shall be Collated by the Bishop for the time being and then the Succession and it is always to be remembred that 't is an Act of Parliament Now suppose the Act had said that the Patronage after an Avoidance should be vested in A. and B. but that the first Rector upon that Avoidance should be presented by J. S. a third Person this could never be reckoned a common ordinary turn subject to the like Prerogative as others The Bishop here claims not this particular Presentation in right of his Patronage whereby he is to have two turns to one but by express Gift of the Parliament Suppose the King had been Patron of St. Martyns in his own right no Man would say that this Act thus creating of a new Parish a new Rectory and a new Patron would not have bound him Surely the King's Assent as Supream or General Patron is as much implied in this Act as it would have been had he been a particular Patron of the Church of that Parish out of which the new one is taken Here the King himself gives the first Presentation to the Bishop of London for the King and People all together the whole Kingdom are Donors or Grantors of this first Presentation to my Lord of London Suppose such a Right as this is were in a Subject and he were able to prescribe for it he must then have set forth that time out of mind wheresoever any incumbent of anothers Presentation was preferr'd by him to another Living that he should have the Presentation ea vice this is the most that could be made of it Would any Man say That this Case would fall under that Prescription or the reason of it Now tho' a Prerogative be part of the Common Law and not like a Prescription yet every Prerogative hath its Boundaries and its Limits and a Reason for it too or else 't is no Prerogative that our Law allows of Besides there 's good Reason in Fact for this Provision of the first Presentation because the Act takes notice of the Parish of St. Martyns out of which this Parish is taken and the Bishop of London was Patron thereof and at first there 's the same Incumbent of both Dr. Tennison Now the Patronage being formerly in the Bishop and in the Successive Patronage created of this new Church by this Act there 's one turn in three given away from him to a third Person then this Presentation out of turn is at first given to the Bishop of London in Consideration of the third turn given to the Lord Jermyn afterwards Then there 's another thing deserving of notice in this Case and that 's this That one and the same Person being incumbent of both Parishes the King hath had the Effect of his Prerogative upon the promotion of this very Incumbent by presenting to that Church into which he came by Presentation and Induction viz. St. Martyns but here the Prerogative cannot operate because he came into this by Donation not of the Patron but of the Parliament and consequently as was said before of the King himself Besides here 's no Salvoe of the King's Prerogative or other Right and to what end in all private Acts for Sale of Estates paying of Debts docking of Settlements and the like do the King's Council take Care always to insert a saving if the same be not necessary Here 's a new Estate given and that to a particular Person and in a particular manner and no Person can claim a Right to in or over this but as the Parliament hath given it as for instance in an Act where two Churches are united as upon the Rebuilding of the City of London the first Presentation is ordered to be by the Patron of the Living of the greatest Value in the King's Books The King is Patron of the Living of the lesser Value as he is of several of them in London he shall not have his Common Prerogative of the first Presentation which he hath in all other Cases where his Interest is intermixed with others as in Case of Coparceners and the youngest is in Ward he shall present first tho' the eldest by the Common Law is to have the first turn and the King 's Right is in the Place of the youngest but yet in case where that an Act of Parliament gives a new Estate and prescribes a Method tho' in the Affirmative the Method limited shall take place against the King's Prerogative of being
preferr'd and the reason is because it is a new Right which the Act gave to present to the Church to which the Union was and consequently it must be taken as 't is given And so was it held by the Civilians at Doctors Commons before the Chancellour of London and several assistant Delegates upon a Caveat there against Institution and on Advice of the Lawyers the King 's Presentee acquiesced and never brought any Quare Impedit The Argument now is only as to this one first Presentation there 's no flat Contradiction between the use of the Prerogative and My being Patron for ever but 't is a Contradiction to say the King and I shall both have the same Presentation To say That he shall have a Prerogative here is to say That he shall do a wrong to his Subject for the Bishop can have no other than this one Presentation he can have no other in lieu of it and has no Advantage or Recompence antecedent or subsequent from this Prerogative First-Fruits and Tenths are not demandable from this Parish because no saving of them in the Act to the King upon passing the Act 't is known That in the Commons House the same was press'd to be inserted but denied and the Clause rejected the same Attempt was made in this House but to no purpose In other Acts for the Erecting of new Parishes there is generally such a saving as for St. Ann's and St. John's of Wapping and the Act for uniting of Parishes upon Rebuilding the City hath a Clause of saving to this Effect All which shews That such a saving is necessary tho' the First-Fruits and Tenths being formerly enjoyed by the Popes might have been pretended by Construction of Law to be a Profit annexed to the Crown by Stat. of 26 Hen. 8. cap. 1. all Payments to the Pope having been prohibited by 25 Hen. 8. cap. 21. and all Profits and Commodities enjoyed by the Popes thereby annexed to the Crown Yet neither that Act nor that other in the same Year whereby the First-Fruits and Tenths of all Ecclesiastical Livings that then or thereafter should belong from any Parsonage or Vicarage were granted to the Crown were ever intended to reach this Parish of St. James's it being a new Creation by Act of Parliament and because in the Act no First-Fruits or Tenths are given or saved and there 's as much Reason to argue in that case for an implied saving as there is for this Prerogative Suppose it should be admitted That a presentable Benefice created by Act of Parliament should be subject to the same Rules as others are yet that will not reach this because not like other Benefices till once presented to 't is a peculiar singular Case by 2 Roll. abr 342. and 1 Inst 344. If a Patron present to a Donative it becomes presentative ever after which shews That 't is the Presentation which makes it presentative in its Nature now here 't is plainly a Donative till once presented to Then it was said That it is not needful to engage in the Dispute whether this Prerogative shall prevail against the Grantee of the next Avoidance according to Woodley's Case 2 Cro. 695. or whether that case be Law for that the same is plainly distinguishable from our Case for there the Grantee comes in the place of the Grantor quoad that Avoidance and he can have no better or greater Right than his Grantor would have had if no such Grant had been made Here ours is a first Presentation granted by Act of Parliament Suppose the Donors of this Presentation to the Bishop had named a Person in Esse to have succeeded upon the Death or Avoidance of Dr. Tennison no Man will pretend that this Prerogative should have prevented him the reason given in the Books cited for that Case of the Grantee of the next Avoidance is That the Patron could not grant more or otherwise than under the Contingency of this Prerogative Surely they will not say That the King Lords and Commons were such feeble qualified restrained Donors then the Parliament being the Donors the Prerogative insisted upon and the express Gift to the Bishop are contradictory and repugnant and cannot both be fulfilled It is no Argument to say That if a Vacancy had been in the See and the Temporalties in the King's hands then the King must have presented and not the Bishop and that would have contradicted the Act as much as this for that had been the same as if the Bishop had presented himself for the King during that time was in loco ordinarij To say That the Bishop of London hath no more right by the Act of Parliament then a Grantee of the next Avoidance hath by the Common Law this surely is no very close reasoning for there is some difference between the one and the other Here the Act of Parliament which hath the King's Consent gives a particular and express Right and an Act of Parliament may as Coke saith alter change annul abridge diminish qualifie enlarge or transferr any Common Law nay it hath the Common Law and the Prerogative too under its Controul Upon the whole it was concluded That by this Judgment a new Prerogative is affirm'd to belong to the Crown and this is extended to a turn after a Commendam which may be a prejudice to all the Patrons in England 2. It destroys and makes useless the plain and express Words and Meaning of the Act of Parliament which gives the first Presentation to the Bishop of London and 3. It confirms the old Non obstante Doctrine of Commendams which hath always been acknowledged to be to the prejudice of the Church wherefore it was prayed That the said Judgment might be revers'd On the other side it was argued That this Judgment ought to be affirmed for that as to the first pont tho' it hath been said to be a new thing and grounded upon late Presidents yet it hath been so often adjudged that it doth not now deserve a Debate 't was solemnly settled in Wright's Case and upon Consideration 2 Rolls Abridg. 343 344. 3 Cro. 526. Moore 399. That tho' many ancient Authorities have been lost yet in Brooke Presentment al Esglise 61. there is the Opinion of the Bishop of Ely for it And as to the old Presidents there 's no need of Recourse to them because continual Usage hath been with the King in this matter a settled Opinion for an hundred years is surely enough to declare the Law as to this particular This is sufficient Evidence to prove this Right in the Crown there being no Judicial Opinion against it The reason for this Prerogative is because the King by the exercise of his prerogative in the promotion hath made the Avoidance and it is but changing one Life for another and possibly the Patron is as near the having another presentation as before It was agreed that this is none of the prerogatives mentioned in the Statute de Prerogativa Regis but
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
not hold there is no Breach of any Condition in Law nor any Corruption of the Blood for these Reasons Felony without Clergy forfeits Honours whereas other Inheritances tho' Fee-simple are lost but for a year and a day and so are Freeholds for Lives which is another clear Instance that Honours are not governed by the Rules of Law It is pressed as a known Law that Honours are grantable for Lives a Point of greater Consequence than the Thing in debate It 's not a fair way of arguing nor to be allowed of As for the Precedents that are Selden 730. is expresly against them for it saith that the Honour of Baronages were in Abbots only in right of their Abbies not inherent in them So that 't is plainly inferred that other Honours are Personal Dignities The Lord Delaware's Case 11 Rep. makes nothing for them for it doth not follow that because he could not Surrender that which was not in him therefore he might Surrender that which was in him As to the other Precedents he gave these three Reasons 1. They were bare Surrenders no Fines 2. All those were made by Persons that had advantage by them having greater Honours granted unto them or such whose Interest was beyond the Seas and therefore were willing to quit their Dependencies here upon good Considerations that pleased them Et volenti non sit Injuria 3. All these Surrenders passed sub silentio and never admitted of any Dispute But as for the sole melancholy Precedent of Roger Stafford 1638. which was condemned in Parliament 1640. 't is to be observed that Resolution can't be condemned because of the Times for the Affront to the Lords in taking such a Fine was in 1638. and when could it be more properly remedied then in 1640. except it be expected there were a Prophetical Spirit of Judgment against a thing not in being there were 94 Lords present and the Vote was Nemine Contradicente which gives it as great an Authority as any Resolution that ever was The King's Counsel were not heard in the Case of Ship-money nor Knighthood-money where they had more right to claim to be heard than in this Case To conclude a Fine is a Judgment in the Common Pleas and your Lordships Honours are not triable in that Court below in Westminster-hall but if this Fine be allowable they must be triable there as well as other Inheritances And as to what has been said That some of your Lordships sit here by Remainders and they are in danger if Honours be not allowed to be intailed it 's denied and if they be intailed it 's not of the same nature with other Inheritances neither doth any Lord sit here by Title of a Remainder but by Virtue of a new Grant in the same Patent 'T was afterwards declared That the Lords Spiritual and Temporal in Parliament assembled upon a very long Debate and having heard his Majesty's Attorney General are unanimously of Opinion and do resolve and adjudge that no fine levied or at any time hereafter to be levied to the King can bar a Peer's Title of Honour or the Right of any Person claiming such Title under him that levied or shall levie such Fine Duval versus Price WRit of Error on a Judgment in the Court of Exchequer affirmed on a Writ of Error before the Keeper of the Great Seal c. in an Action of the Case for Slander The Writ was to this Effect Gullelmus Maria c. Thes Baronibus de Scaccario suo salutem quia in recordo processu ac etiam in redditione judicij loquelae quae fuit in Cur ' nostra de Scaccar ' coram Baronibus nostris praed ' de Scaccar ' nostro praed ' per Billam inter Edward ' Price Arm ' debitor ' nostr ' Johan ' Duvall Arm ' de quadam transgression ' super casum eidem Edwardo per praefat ' Johannem illat ' super quo judicium in Curia nostra de Scaccar ' reddit ' fuit pro praefat ' Edwardo versus dict' Johann ' qua quidem record ' process ' causa Erroris intervenient ' in Camera Consilij juxta Scaccar ' vocat ' le Councel Chamber coram Domino Custod ' Magni Sigilli Angliae vobis praefat ' Thes venire facimus jud ' inde versus praefat ' Johann ' coram c. affirmatum est quia in affirmatione judicij praed ' versus praed ' Johannem coram c. Error ' intervenit manifestus ad grave dampn ' ipsius Johannis sicut ex quaerela sua accepimus quos Error ' si quis fuerit modo debito Corrigi eidem Johanni plenam Celarem justitiam fieri volentes in hac parte vobis Mandamus quod si judicium coram praefat ' c. affirmatum est tunc record ' process ' tam judicii quam affirmation ' praed ' cum omnibus ea tangentibus quae coram vobis jam resident ' ut dicitur nobis in Parliament ' nostro viz. 17 die Septembris prox ' futur ' distincte aperte mittatis hoc Breve ut inspectis record ' processu praedict ' ulterius inde de assensu Dominor ' Spiritualium Temporalium in eodem Parliamento Existent ' pro Errore illo Corrigend ' fieri faciamus quod de jure secundum legem consuetudinem Regni nostri Anglie fuerit faciend ' Teste nobis ipsis apud Westm ' 8 Maii Anno 6. Record ' Process ' de quibus in Brevi de Errore huic Schedule annex ' specificat ' fit mentio sequitur in haec verba Placita coram Baron ' de Scaccar ' c. Midd ' Memorand ' quod alias scilicet c. And by the Bill Price complains of Duvall praesent ' hic in Cur ' eodem die de placito transgr ' super casum pro eo viz. quod cum he was a good Subject and free from all Suspicion of Treason and was a Justice of Peace in Radnor and Montgomery-shire and well performed his Duty and well-affected to the King and Queens Government and ready to oppose all their Enemies c. the Defendant maliciously designing to prejudice the Plaintiff and to bring him into the Displeasure of his Prince c. did tali die anno apud Westm ' in Com' Midd ' habens colloquium of the said Plaintiff say these English words of him He meaning the Plaintiff is disaffected to the Government the Government of the King and Queen meaning and having other Discourse of the Plaintiff and of the Government of the King and Queen did say of the said Plaintiff these other words viz. He meaning the Plaintiff is disaffected to the Government the said Government of the King and Queen meaning By pretext of which said words he was injured in his Credit and fell into the Displeasure of their Majesties and his Office aforesaid by reason thereof did totally lose and remain'd hitherto daily
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
Inst 125. though the Statutes of Hen. VIII impower Commissions for trial of Treasons Committed beyond the Seas yet this Court doth and may still take Conusance of such Causes 4 Inst 124. Its Sentences are only reversable by and upon Appeal to the King no Writ of Error or false Judgment lies upon any of them which shews the greatness of the Court and the difference of its Jurisdiction from other Courts which may be some of thereasons why no Prohibition was ever granted to it and why the Parliament of Rich. II. gave the Remedy of a Privy Seal wherefore it was prayed that the Judgment should be Reversed On the other side it was argued by the Council in behalf of the Plaintiff in the Original Action that this Judgment ought to be affirmed and it was after this manner there seem three Queries in the Case 1. If any Prohibition lies to that Court 2. If any Cause here for a Prohibition and 3. If there be any such Court as that before the Earl Marshal but another doubt was raised whether any of these Questions could be such upon this plea which is concluded to the Jurisdiction for that seems to make only one doubt whether the Court of Exchequer could hold Plea of an Action for proceeding contrary to a Prohibition already granted but this was waved and then it was argued 1. That a Prohibition doth lie to this Court of Chivalry in case it exceeds the Jurisdiction proper to it and it was agreed that the Office of Constable is Ancient and by Cambden is held to have been in Ure in this Kingdom in the Saxon's time though the Office of Marshal is but of a puisne date but however Great and Noble the Office is however large and Extensive the Jurisdiction is yet 't is but limitted and Coke in 4 Inst 123. says that 't is declared so by the Statute of Rich. II. where 't is said that they incroached in great prejudice of the King's Courts and to the great grievance and oppression of his people and that their proper Business is to have conusance of Contracts and Deeds of Arms and of War out of the Realm which cannot be determined or discussed by the Common-Law which other Constables have heretofore duly and reasonably used in their time now by this Act 't is plain what the Jurisdiction is Contracts and Deeds of Arms and War out of the Realm are the subject matter of it and by Coke 't is called curia militaris or the Fountain of Marshal Law which shews it a Court that hath its boundaries a Court that may incroach nay which hath incroach'd in diverse instances belonging to the Common-Law And that 't is a Court that ought to meddle with nothing that may be Determined in Westminster-Hall then there must be some way of restraining this excess and these incroachments and if the Statute of Rich. II. had not been made it must be agreed that a Prohibition would have lain for else there had been no remedy which is absurd to affirm 'T is no Objection that Prohibitions are only grantable to Inferiour Courts and that this is one of the greatest Courts in the Realm for if a Court Marshal intermeddle with a Common-Law matter ea ratione it becomes inferior and may be controwled There needs no contest about the Superiority of Courts in this matter 't is the same here as among private Persons he that offends becomes inferior and subject to the Censure of his equal by offending though that Court should be reckoned so noble and great as hath been represented yet 't is only so while it keeps within its Jurisdiction Prohibitions are grantable to almost all sort of Courts which differ from the Common-Law in their proceeding to Courts Christian to the Admiralty nay to the Delegates and even to the Steward and Marshal upon the Statute of Articuli super Chartas Cap. 3. That they shall not hold Plea of Freehold or of Trespass Fits ' N.B. 241 242. is an express Writ of Prohibition though the Statute gave no such Writ but only did restrain the Jurisdiction of the Court which in truth is the Case in Question antecedent to the Statute pleaded No Argument can be raised from the subject matter of the Jurisdiction of this Court that 't is different from the Common-Law for so is the Admiralty and the Prerogative Courts nor is it any Objection that upon any Grievance in this Court the Appeal must be to the King for that holds in the other Courts with equal reason Nay Prohibitions lie from Westminster-Hall to hinder proceeding in Causes which the Courts that grant such Prohibitions cannot hold Plea of as to the Ecclesiastical Court which grants probate of a Will made within a Mannor to the Lord whereof such probate belongs 5 Rep. 73. to the Marches of Wales if hold Plea of what belongs to Court Christian 2 Roll's Abridg. 313. are several Cases to this purpose there were also Cited 1 Roll's Rep. 42. 2 Roll's Abridg. 317. Sid. 189. 1 Brownl 143 144. and Herne 543. 't was further urged that there neither was nor could be any reason assigned why a Prohibition should not be grantable to the Court of Chancery when by English Bill it meddles with the Common-Law in other manner than its Ancient and proper Jurisdiction doth allow and several Authorities were Cited to countenance that Assertion Then was considered the reason of Prohibitions in general that they were to preserve the right of the King's Crown and Courts and the ease and quiet of the Subject that 't was the Wisdom and Policy of the Law to suppose both best preserved when every thing runs in its right Channel according to the Original Jurisdiction of every Court that by the same reason one Court might be allowed to incroach another might which could produce nothing but confusion and disorder in the Administration of Justice that in all other Writs of Prohibition the suggestion is and with Truth in prejudicium corone Regis Gravamen partis and both these are declared to be the consequent of this Courts excess or incroachment of Jurisdiction even by their own Statutes and when the reason is the same the remedy ought to be so But it hath been pretended That the Statute appoints a Privy Seal for to supersede c. and therefore no Prohibition to this it was answered That this Act doth not take away the force of the 8 Rich. II. mentio ned in 4 Inst 125. which restrains the Constable and Marshal from medling with any Plea which concerns the Common Law and if it had a limitted Jurisdiction by the Common-Law or by that Statute the subsequent Statute which gave a further Remedy for to restrain them did not take away that which they had before and every Body must agree that where an Act of Parliament restrains a Jurisdiction such Act warrants a Prohibition in case that restraint be broken or exceeded 't is so in case of a limited Power at
the Common Law but much more so upon a Statute Besides the latter Statute which gives a Privy Seal doth not Repeal or alter the Law then in being 't is an Affirmative Law and that seldom or never works any change or alteration in what was before any otherwise then by Addition or Confirmation and in truth this is only a further remedy and is far from declaring a Prohibition not to lie the meaning might be to give a Privy Seal immediately even in vacation time the preamble complains so much of the Grievances that it cannot be supposed to Design any thing in favour of them or to prevent the restraint Suppose between the 8 and the 15 Rich. II. an excess of Jurisdiction had been usurped as in this Case will any Man say that a Prohibition would not then have lain and if it would can any Man say that the Statute pleaded doth take it away or Prohibit such Writ of Prohibition And the 11 Hen. IV. 24. ordains that all the Statutes concerning the Court of Constable and Marshal shall be duly observed and if so the 8 Rich. II. as well as the 15 Rich. II. are within that ordinance and if so a Prohibition lies as well as a Privy Seal and both are little enough to keep that Court within its due bounds and limits 2. It was argued That the proceeding upon these Articles was an intermedling with a subject matter properly determinable at Common-Law here 's no contract or deed of Arms no Mis-behaviour in War nothing of that nature which their own Statute says belongs to them Rushworth's II. Vol. 1054. he frequented the Court for four years together he observed no Cases there but for Words and one or two as Delaware's Case about abusing an Honourable Family by assuming to be a branch thereof here 's no such thing but express Articles for exercising of a lawful Trade 't is not causa armorum it doth neither concern Warlike matters nor Honour a Funeral Ceremony can never be within their Power this is a plain Accusation for a wrong to one of their Officers the Articles charge that Sir Henry S. George by his Office within his Province hath the ordering of these matters and the party hath medled therein without his License he says 't is lawful and the exercise of a lawful employment they say 't is otherwise because it belongs to another Man's Office then 't was admitted by the Council for the present to be so that Sir Henry was an Officer by Letters Patents under the Great Seal of England which by the way makes the Office and rights of it to be of Common-Law Conusance and the Patent is set forth at large in Prinne on 4 Inst 64 65. and that the King at Arms hath such a right yet if any Man intermeddles or incroaches upon that Office 't is not a breach of the rules of Honour and not relating to Arms but a plain injury at Common-Law and an Action lies for it as it doth for the disturbance of any other Office or Franchise In 4 Inst 126. 't is said that they do upon request Marshal Funerals but supposing they alone ought to do it then an Action lies This is merely a question whether the Letters Patents do carry such a sole priviledge suppose nul tiel record be Pleaded to them when Pleaded or Inrolled and without producing them suppose non concessit Pleaded to them when produced how shall these issues be tried Suppose they awarded a satisfaction to be made to Sir H. S. by the gift of a Summ of Money and he should afterwards bring an Action at Law for the same Cause will the proceeding in the Court of the Earl Marshal be a barr the Fact alledged in these Articles comes within none of those particulars supposed to be belonging to this Court in 1 Inst 391. It matters not whether these were publick Funerals as was questioned in Parker's Case Sid. 352. and in 2 Keble 316.322 but the Query here is if this be a point of Honour or whether it be not about the right of an Office and if it be the latter they have no Power to determine it The Heralds are Officers attendant upon that Court but it doth not follow that that Court can judge of the nature or extent validity or operation of their Letters Patents no more than the Court Christian can try the right or Freehold of a Chancellors or Registers Office The Earl Marshal cannot License the doing this in prejudice of the Heralds or acquit the party if does it for he still stands liable at Law the Herald hath a Freehold in it and may bring his Action notwithstanding Then 3. 'T was argued that admitting that no Prohibition did lie to the Court of Honour or that there was no cause for such Prohibition yet it ought to be granted to this pretended Court which is not within their Statute The true Court is before Constable and Marshal it is a Court by Prescription and cannot be altered but by Act of Parliament All our Books which describe the Court mention it to be before both 4 Inst 125. Crompt Jurisdiction 82. 1 Inst 74. Stamford 65. The Constable is the Chief and so are the Old Books and 37 Hen. 6.20 expresly before the Constable and Marshal The Statutes which mention the Court do all take notice of it as held before both the 8 Rich. 2. and that which they Plead do describe it so and the 1 Hen. 4. Cap. 14. the 13 Hen. 4.4.5 all Attainders are Pleaded to be before both Cambden who was an Herald in his Commentary de Etymologio antiquitate officio Comitis Mareschalli Angliae fol. 87. 't is published at the end of his Latin Epistles which are in 4to Printed for Chiswell 1691. he endeavours to advance the Office of Earl Marshal and searches for the Etymology and after all makes him but an Harbinger and tells us when the Title Mareschallus Angliae was first used and how it hath been enjoyed and by whom and of what Families and afterwards 91. lessens his Character much and derives the Office of Marshal of England from that of Marshal of the Houshold which he describes to disadvantage the same is likewise in Fleta lib. 2. cap. 5. But this is observable which Cambden says that the greatest increase of the Authority of this Office hath been since there were no Constables for the Kings since that time have referred many things to them which in former times were proper for the Constable neither had the Marshal any precedency in respect of his place until King Hen. 8. Anno 31. by Parliament Assigned him place next to the Lord Constable and before the Lord Admiral all which shews that the Earl Marshal never had that Authority time out of mind to hold this Court before himself alone as is pretended during the vacancy of the Office of Constable In November 1640. 't was Voted by the House of Commons upon a report from a Committee of some
without the assent of the Dominion Superiour And 2. Judgments or Decrees might be there made or given to the disadvantage or of lessening that Superiority which cannot be reasonable or to make the Superiority to be only in the King not in the Crown of England as King Jac. 1. would have had it and consulted Selden upon the point Now though the Writ of Error be only mentioned yet the same reason holds to both and the true cause why we have not so many Ancient precedents of Equity Cases as of Law ones is for that in Ancient time the Equity Courts were not so high meddled with few matters and in a Summary way but since their Authority is so advanced and their Jurisdiction so enlarged that most questions of property are become determinable there and almost every suit begins or ends with them to the entire subversion of the Old Common-Law It is and must now be reasonable to have the Examination of their final Sentences in the Parliament of England as well as of the other Suppose non-residence in Ireland should be pretended a Forfeiture of the Estate to the next remainder Man or to the King Can it be safe for to intrust them with a conclusive Opinion in this matter When Calais was in our hands Writs of Error lay thither 21 Hen. 7. fol. 3. As to the pretence that the orders of this House cannot be executed there 't is very vain for if the King's Bench Command their Judgments to be executed there this House may order theirs and in like manner as they do to the Chancery here In 15 Rich. 2. numb 17. in the Abbot of St. Osithe's Case the Lords here made an Order and charged the Lord Chancellor that he see it performed and this hath been constant practice It hath been imagined That the Jurisdiction of this House in matters of this kind is dated from the 21 Jac. 1. as to the proceedings in Chancery but that is not now to be disputed for the Commons in Parliament Assembled did agree it to be the Right of this House in the Case of Skinner and the East-India Company and in the Book about it supposed to be written by that Noble Lord the Lord Hollis 105. 't is said that where the King 's Sovereigntydoth not reach the Jurisdiction of this House cannot the contrary is implied that where the King of England's Sovereignty doth extend the Jurisdiction of this House doth so too and no Man will affirm That Ireland is out of or beyond the limits of the Sovereignty of the English Crown And as to the exercise of this Judicature by the Lords here nothing can be stronger for it then the 1 Hen. 4. numb 79. So 't is in the Record though in Cotton's Abridg 't is 80. the Commons declare that all Judgments Appertain to the King and Lords and not to them Skinner's Case 199 200. 4 Inst 349 353 354. It was further argued That Protection commands a due Subjection and that these people who insisted upon this independency had forgot the English Treasure and Bloud which had been spent for their preservation That they are part of England and subject to its Laws appears from the common Case of an incumbency here being made void by acceptance of a Bishoprick in that Colony Besides that in Ancient time the Arch-Bishop of Canterbury was Primate of Ireland and had the Confirmation and Consecration of Bishops there Cambden's Britt pag. 735. and 765. 4 Inst 360. then 't was urged that the Question now was whether it were a Dominion inferiour or equal to and independant upon the Realm of England That the constant practice had been for the Lords here to examine the Decrees in their Court of Chancery that the refusing of this Appeal would shake all those Cases thus determined that every Appeal-here from their Equity Sentences which have been very many was an Argument against the Order of their Lords and for the receiving of this Appeal here That this thing hath been acknowledged even by the Rebels there for in Sir John Temple's History of the first Progress of the Irish Rebellion written 1641. pag. 141. amongst the several propositions made by the Irish then in a general Rebellion these two are mentioned 1. That by several Acts of Parliament to be respectively passed in England and Ireland it should be declared that the Parliament of Ireland had no subordination to the Parliament of England but should have supreme Jurisdiction in that Kingdom as Absolute as the Parliament of England here hath 2. That the Act of 10 Hen. 7. called Poyning's Act and all other Acts expounding or explaining that Law should be Repealed both which with their other dangerous propositions were justly rejected however it shews their Opinion that at that time the Law was or was taken and deemed to be against them in this point and there is as much reason for keeping the final Judicature here as there is for maintaining the Superiority and Obligatory Power over them in the legislature 'T was farther urged That the with holding the Irish Lords from having the like Jurisdiction in their Parliament as the Lords in England have in Judging upon Appeals and Writs of Error was absolutely necessary for the preserving of the Possessions of the English in Ireland for those of that Country must be suppos'd to incline to their own interest and cannot be suppos'd so much inclined to love and affect the English amongst them And that this Power of Judging here is Co-eval with the very Constitution of the Government 'T was further urged That their Precedents returned did or concern the point in Question except the two or three Cases in 1661 and 1662. and two Appeals lately in 1695. that their Case of the Prior of Lauthony in 8 Hen. 6. Prynnes Animadversions 313 314 was against them the Prior having removed a Judgment in the King 's Bench in Ireland into the Parliament there which affirmed it did bring a Writ of Error in the King 's Bench in England and they refused to meddle with it the reason was because the Writ of Error before the Lords there did not lie and that it ought to have come hither immediately and all the rest of their Quotations in their Printed Case either prove nothing at all or too much for they are against the allowance of Writs of Error in the King 's Bench in England and against the Legislature of England's being able to oblige the people of Ireland both which have been approved by constant practice and therefore it was prayed that the Appeal here might be allowed and the Order of the Irish Lords might be vacated On the other side it was argued from 1 Inst 141. Prynne's Animadversions 286. and 4 Inst 12. that their Parliaments had the same Authority there in respect of making Laws for that Country as the Parliaments have for England that they have ever since 10 Hen. 7. Re-enacted there such subsequent Acts of England as they thought
Justice Dyer reports 228. the promoted Incumbent was dispensed with to retain for a term of years within which term he resigned and there upon the Avoidance the Prerogative was not admitted to take place because the Avoidance was by the Resignation and not by the Promotion Now if this Prerogative is to be interpreted stricto Jure it will have no place in this Case where the Incumbent promoted is dispensed with to retain for a term of time which is elapsed For The King's Prerogative will have a very Natural Construction by admitting his Title to present to all such Avoidances as commence immediately from and by the promotion This is the Avoidance which the Law intends and which the Law would always cause if not hindred to operate by Dispensation and this Avoidance is that therefore which the Prerogative must most principally respect and only that if it be to be strictly taken insomuch that were it in the sole power of the Archbishop to grant this Dispensation it seems the King's Title would clearly be set aside by it much more therefore should it be so when what the Law designs is prevented by the Act of the King himself For tho ' the Lord Vaughan saith That the King's Concurrence to the Dispensation is only for formality yet 't is plain that the King may force the Archbishop to grant it Now this Interpretation of the Prerogative seems to be already made in the Case cited upon a Resignation of the Incumbent dispensed with for as it is there intimated if the King's Title was not supposed to be gone by the defeating of the immediate Avoidance which the Law intended but the King would not permit It would be very strange that it should be eluded by the Resignation of the Incumbent to which the King was no Party for if the King had a Prerogative to present to this new this deferred this adjourned Avoidance it would be more reasonable to allow it to be hastened then defeated by such a Resignation before the time This Prerogative ought to admit such a Restriction from the reason of the thing and from the consideration of the Inconveniencies which may otherwise follow To the Subject A Patron might be content to let the King exchange a single Life and put in a Clerk in the place of one removed much rather then that the Living should be held on by one in Commendam that from thenceforth would be sure to leave it and be absent for a better Residence in a Palace yet they may as they have reason think it too hard that the King should as it were let a Lease of it first and afterwards put in his Clerk for Life and tho' the King doth commend here but for a small time yet he may for a longer He may perhaps as the Pope did often dispence with the Bishop to hold durante beneplacito and when the Incumbent is in danger of Death then present another so as the Patron may have his own Clerk not removed as was first intended but dispensed with to wear out his Life in the Benefice and yet after all have another put in The Crown may have Inconvenience by the straining of it further than this for all strains weaken if not break the thing it self This Opinion of theirs arises from the Principle my Lord Vaughan lays down That a Commendam neither gives nor takes away Right but only is a Dispensation to hold and he continues Incumbent still and it prevents an Avoidance and if so why should it not also prevent the operation of the Prerogative too As to the Case of Woodley 2 Cro. 691. they say 't is Law to prove the other Point for them If it be Law for them in that Point 't is Law against them in this That a Dispensation ad retinend ' prevents the Grantee of the next Avoidance The Case was thus A Man hath a Grant of the next Avoidance the Incumbent is promoted but with a Commendam Retinere for six years and dies the Grantee shall not present because he is to have the next Avoidance only and no other 'T is the words of the Book that when the Incumbent is created a Bishop and the King presents or grants that he shall hold it in Commendam which is quasi a Presentation and he is thereby full Incumbent and may plead as an Incumbent if the Grantee of the next Avoidance do not then present he hath lost his Presentation for he ought to have the next and he cannot have any other Now if this be so that a Commendam Retinere hath so much of a Grant in it and is so equivalent to a Commendam ad recipiend ' that it will set aside and frustrate a Grant of the next Avoidance and be it self taken for a presentation to the next Avoidance against the Grantee by the same reason it must be taken so against the King as a Presentation to an Avoidance and consequently his turn is served by it Much might be said against those Commendams as promotive of Pluralities and tending to the ruine of the Church and this out of our own Law-Books but it is not material at present 't is however to be observed that this is not a Commendatory for six Months during the time that the Patron may forbear to present such Person continued then is only commendatorius under the Bishop to provide for the Church as 't is his Duty to take care of it during that time 3. Admitting that the King hath such a Prerogative and that this Commendam tho' it gives the full perception of the Profits is not a fulfilling of the King's turn nor doth any way distinguish the Case or exempt it from the Prerogative yet this is a Case not within it and this doth appear of Mr. Attorney's own shewing in his Declaration upon the King's behalf He hath set it forth to be a Parish newly created by Act of Parliament a thing not in esse before It appears by the Declaration what that Act is it must be taken as 't is there set forth To this Declaration the Bishop hath demurred Now if by that Declaration it appears that the Bishop and not the King is rightfully intituled to present upon this Avoidance the Judgment will and must be accordingly for the Defendants Mr. Attorney by his Count doth agree an Avoidance within this Act of Parliament by the Promotion of Dr. Tennison and Mr. Attorney doth likewise admit and agree That the King is not Patron of this Benefice called St. James's he doth agree too That the King hath no Right given to have any Turn or Presentment by this Act for he saith 't is to be by the Bishop of London and the Lord Jermyn he doth also admit by this Declaration That Dr. Tennison was never presented to this Living that he came not into it by Virtue of any Presentation from any particular Patron nay That he did not come into it by any sort of Presentation whatever nay he
they should be in actual Possession of the King held that they should be in him by force of that last Act and Reason will warrant these Differences because if otherwise Inconsistencies and Contradictions must be allowed Then this is a new Law in the whole 't is a new Parish 't is a new Advowson and in truth 't is no Advowson till the Avoidance nay by the words of the Act if any difference can be in an instant between at and after as our Law in several Cases allows it as per mortem post mortem Devise by Jointenant c. there 's no Patronage fixed 't is no Advowson until after the Avoidance for so are the words after the Avoidance the Advowson Patronage and Presentation shall be vested foret vestit ' in Episcopo Lond ' Domino Jermyn and till then 't is vested in no Body and that which is in no Body is not at all unless it be as some times for necessity sake we say in nubibus or in abeyance but to say that an Advowson shall be in abeyance before 't is created or ordained to exist or be at all must favour somewhat of Absurdity Now the King can have no Prerogative turn upon an Avoidance by a Promotion but when the Patron 's Clerk was promoted and preferred and here is no Patron till that Avoidance happen They say 't is vested immediately tho' to take possession hereafter as a Reversion granted cum acciderit according to 3 Cro. 323. and 1 Saund. 147. But that 's not this Case for there is a present Grant here the words are After the Avoidance shall be vested and not before and being a new thing it may be so as a Rent-charge de novo may be granted to take effect de futuro but cannot be so of an old Rent 2. Dr. Tennison comes not in by the Patron 's Presentation but by Donation of the Parliament and there is not any President for a Prerogative to present to a Donative upon a Promotion The King cannot present to that which the Patron could not have presented to and the Patron could not present to a Donative quatenus a Donative and for the King to present to a Donative is to injure the Patron for 't is to make that Presentative which was never intended by the Patron to be so And yet in Case of a Donative with Cure of Souls as it may be of a Parochial Church tho' exempt from Ordinary's Jurisdiction according to Yelverton 61. 2 Roll. Abridg. 341. the Ordinary may compel the Patron to Collate some body as was held in Case of the Rectory Parochial Donative of St. Burian's in Cornwall and the Tower of London is with Cure of Souls 1 Cro. 330. 2 Roll. Abridg. 331. 1 Inst 144. The same will be void by a Promotion of the Incumbent for 't is not meerly the change of Inferiour into Superiour that makes the Avoidance for then an Incumbent made Bishop of another Diocess or in Ireland would not avoid the Benefice but 't is the Doubleness of the Charge contrary to the Council of Lateran which hath been received here This is more different from the pretended Notion and Reason of this Prerogative then that Case of a Common Donative for in Case of a Donative there 's an Incumbent of the Patron 's own preferring who is further promoted by the King and still in being and the same Patron claiming a Right to fill the same Here 't is an Incumbency by Gift of the King Lords and Commons And then if it be considered what this new Prerogative is for so it must be termed since there 's no footsteps for it in the old times and the Statute of Prerogativa Regis which enumerates most of them and is rather a Collection of old Prerogatives then a new Statute mentions it not 't is a Prerogative to present upon the Promotion of the Patron 's Presentee or incumbent presented in his Right here is no such thing 't is as their Books say when the Patron 's Presentee is advanced to a greater Dignity in the Church and the pretended Reason given for it to avoid the Objection That no Prerogative is to be injurious or to import a Wrong done to the Subject is this That here 's no Injury to the Patron but a Kindness to his Friend because the Person which he chose and preferred is bettered and further preferred to an higher Degree of Honour and State in the Church all this fails here so that there doth not seem to be the same Colour why the King should have it in this Case It is a good Argument according to Mr. Littleton That because no such ever was before that therefore of right it ought not to be And if no Practise hath been to warrant it in Case of a Gift by Act of Parliament there 's no reason it should be allowed in this Case for a Prerogative never used can never be with Propriety called a Prerogative much less reason have they for it if they have no Practise or presidents to warrant their Claim in case of any Donative Prima facie the patron hath the right to evade that right of his Mr. Attorney pretends to a Prerogative then it being of common right with him they ought to demonstrate that there is such a Prerogative to controul that right in this particular Case and the Arguments brought for it ought to be clear convincing and undoubted Now because where a Patron 's Presentee is preferred by being consecrated a Bishop the King shall present that therefore where the Parliament's Presentee is preferred the Patron shall lose the benefit of his Presentation is a non sequitur because the Cases are not the same for the supposed Recompence or Consideration in the one holds not in the other This is not the Case of a Prerogative incident to the Crown from the Necessity of Government nor is it a Prerogative which respects the Continuance or Improvement of the Revenue so as for the benefit of the Kingdom an Extent or Enlargement of it beyond former Practise may seem absolutely needful and therefore the common pretences of Intendment and Presumption are no more on their side then upon this nay 't is rather otherwise because that common right is with the Patron It is no Objection to say That there never was such a Promotion or Avoidance before whether there were or not is not material but that rather turns upon them for that Evinces beyond dispute that there never was such a Prerogative presentation in Fact as they now contend for Argument ' Ã simili is the weakest but they have no Case like this nay they have no Opinion in the Books declaring on their side nay the Book Definition of this Prerogative as was said before is only to present to a Benefice vacant by promotion that was antecedently presentable here the whole Kingdom is Patron and all that they can pretend to is when a Man is dignified by promotion who
then 't was said That the prerogative to present by Lapse is not in the Statute and yet that is admitted so that the omission of it there can be no objection this is a prerogative that follows a Vacancy occasioned by the exercise of the prerogative for such it is to make Bishops The King first made them by the donation of a Ring and Staff then by a Conge d'Eslier the King gave licence to choose and approved the person chosen tho' not by absolute donation as before By the 25 Hen. 8. the Crown is restored to its ancient Prerogatives and there are Letters Missive directing the choice of such a person In Wright's Case in 3 Cro. and Moore then was the first time it came in question and it was debated and considered and the Judgment upon deliberation settled it with the King And as to the Objection that in Dyer 228. 't is said That he and the rest of his Brethren thought otherwise that point was nothing to the Case then in question But however 't is observable that the Queen presented Anno 6. and the Patron did not dispute it as appears in Woodly's Case And in Owen's Rep. 't is said that several Presidents in Henry the Eighth's time were searched 'T is true that in 11 Hen. 4.67 and 21 Edw. 4.33 the King did not intitle himself by virtue of his Prerogative but by reason of the Temporalties being in his hands those Cases can influence nothing in this matter because the King's Prerogative consists not in ousting of himself but of a Stranger it is to present in the turn of another upon such a Vacancy but not where he is intituled himself there he presents by virtue of his own Interest As to the Objection That the Old Books are silent about this Prerogative 't was answer'd That before the Statute of Provisors 25 Edw. 3. the King was defeated of his Prerogative by reason of the Pope's Provisions and therefore the King could not have it whereas 't is the Exercise of his Prerogative of Promotion that gives him this Prerogative of presenting upon this Vacancy by such Promotion and therefore that Statute was made to prevent all Incroachments and tho' it was made to that very purpose yet the Clergy being then so strongly united to the Pope's Interest the Kings of England could not use that Prerogative and frequent Usurpations were made upon the Crown till the Pope's Supremacy was denied The 41 Edw. 3.5 shews that there were such Usurpations 7 Hen. 4. cap. 8. complaint is made of them and 5 Hen. 4. num 95. Cotton 458. And thus it continued till the Statute about the Supremacy 28 Hen. 8. the Kings are to make the Bishops and then consequently in point of Law the right of presenting was restored Then 't was urged That none of the old Books do mention the King 's right to present by Lapse except in Cawdries Case where notice is taken of a Case in the time of Edw. 3. but that is not to be found Bro. tit Presentment 61. is as much Authority for this as that in Cawdries Case is for the Prerogative to present upon Lapse And this right in question having been enjoyed so long should not now have been questioned In 5 Edw. 2. Maynard 148 198. there is one Instance of the Patron 's presenting again but then Provisions were common and usual Walsingham 1313. so that supposing the Patron did in those times present the King was not concerned because 't was then only the Pope's right as was thought and the Pope might be ignorant of the matter And from thence 't was argued that the practise of those Times cannot be urged as Arguments in the present Case Then 2. it was urged That the King having this Prerogative he is not debarred of it by the Dispensation to hold it c. nor by the Act of Parliament nor by the King's Confirmation of it The King by that did transfer no Right to the Incumbent but meerly did continue him in and there was no Avoidance but the same is suspended and had the Incumbent died or resigned during this time the Church had been void by such Death or Resignation and had debarred the King of his Prerogative The Incumbent still remains Incumbent for the time by force of his first presentation and so the Dispensation doth prevent the Avoidance He is not in by force of any Title which the Dispensation gives him but of his old Title Jones 91. 161. Vaughan 18. 3. Then 't was argued that the Act of Parliament for making this new Parish did not alter the Case 'T was said that the making of this a Rectory in this manner doth make it subject to this prerogative and that it was by no means the intent of the Act to debar the prerogative It is made a Parish and Rectory such as others are subject to the EcclesiasticalLaws as well as any other Benefice under the obligation to Residence and liable to the Common Jurisdiction and Censure of the Ordinary and 't is to be made vacant by the same ways and means as other livings are the words Death or any other Avoidance prove it to be so Lapse will prevail upon this Rectory and that cannot be but because 't is made a Rectory and presentative It cannot be doubted but that the next Avoidance might have been granted over by the Bishop of London before any Avoidance was Suppose the Bishop of London had died and this Promotion had happened should not the King have presented by reason of the Temporalties and yet that is as much out of the Words of the Act as this is As to its being a Donative 't was said That the present Rector doth not come in by Donation and tho' 't is true That the King cannot present to a Donative upon such an occasion the reason is because the Promotion doth not make a Vacancy of the Donative it doth not make a Cession the Parson is not subject to Censures as other Rectors are he is still in by reason of the Institution of the Founder so that nothing can be inferr'd from thence Suppose the Incumbency of a Donative had been immediately turned into a Rectory would not that have subjected it to this Prerogative 'T is admitted That the promotion of the Rector did make an Avoidance then was cited Princes Case 8 Rep. Then suppose it a Donative as to Dr. Tennison at the same time that the Church becomes vacant the Patronage vests and then the King's Prerogative shall take place either codem Instanti or before But here the Right of Patronage did vest immediately by the Act he that is to present when the Rectory becomes void he is Patron 'T is like a Reversion granted cum acciderit there is a present Interest vested and there 's no reason why it should not be so in Case of this Act of Parliament The Stat. of 12 Car. 2. for confirming of Livings makes the then Possessors full and perfect Incumbents as this
doth were not these Benefices void if the Parties were advanced to Bishopricks and upon such promotions did not the King present undoubtedly he did Then 't was argued That 't was never the Intent of this Act to oust the King of this Prerogative the first Intent was to make a Parish and establish a Rectory that was the true design Suppose the Act had only vested the Advowson in my Lord of London and had not mentioned the Lord Jermyn would not this Prerogative have been consistent with the Right of Patronage As to the pretence that the Bishop is to present first that is only to make a Partition 't is an Explanation That they should not have it in common but by turns The holding of Dr. Tennison was reckoned as one turn and the Bishop was to have the next besides every Act of Parliament is to be construed according to the Subject Matter and not further than the Act designs and intends 't is plain from the Nature of the thing That nothing was designed but to settle the Rectory and establish the manner of Presentation according to the Agreement of the parties General Words shall not oust the King of his Prerogative since he is not named 3 Cor. 542. Moor 540.7 Rep. 32. Plowd 240. Hob. 146. Here are no Words which do import any Intention to restrain the King of that Right with respect to this as he hath with respect to other Rectories The King's Prerogative doth not interfere with their being two Parishes this Prerogative must operate upon all presentative Livings so soon as they are made so This can never be pretended to be partly presentative and partly donative for Dr. Tennison was in by Act of Parliament as one presented Then it being a Cession of a presentative Rectory whether old or new 't is the King's Right to present Vernon's Case 4 Rep. 4. Plowd 127. The Dr. came in not by Donation but was rather placed in by Parliament which implies in it the Consent and all the necessary Acts of the Patron and Ordinary Suppose the King should grant away his own Advowson during a Plenarty and afterwards such a Cession should happen by promotion surely that would not deprive the King of his prerogative and by the same Reason it ought not in this Case Wherefore upon the whole Matter it was prayed That the Judgment should be affirmed and it was affirmed accordingly Dominus Rex Versus Reginald Tucker WRit of Error to reverse a Judgment given in B. R. for Reversal of a Judgment against T. before Commissioners of Oyer and Terminer upon an Indictment for High Treason The Record is to the Effect following Ad Gen ' Session ' de Oyer et Terminer tent ' pro Com' Somerset apud Civitat ' Wellen ' in dict Com' Somerset corum Francisco Wythens mil ' un ' c. Richardo Heath un ' c. Georgio Strode mil ' un ' Servient ' c. et aliis Sociis suis Justiciariis dicti Domini Regis per Liter as Patentes ipsius Dom ' Regis sub magno sigillo Anglie confect eisdem Francisco Wythens Richardo Heath Georgio Strode et aliis aliquibus tribus vel pluribus eorum direct ' quorum alter ' eorum praefat ' F. W. vel Richardum Heath Dictus Dominus Rex unum esse voluit ad inquirend ' per Sacramentum proborum et legalium Hominum Com' praed ' ac aliis viis modis et mediis c. assignat ' per Sacrament ' Francisci Warre Baronett ' c. proborum et legalium hominum Com' Somerset praed ' adtunc et ibid impannellat ' jurat ' et onerat ' ad inquirend ' pro Domino Rege pro Corpore Com' praed ' presentat ' existit quod Reginald Tucker nuper de Long Sutton in Com' praed ' Gen ' et Thomas Place nuper de Eddington in Com' praed ' Yeoman timorem Dei in cordibus suis non habentes nec debitum ligeantie sue ponderantes sed Instigatione diabolica mot ' et seduct ' dilection ' ac veram et debit ' obedientiam quas veri et Fideles subditi Domini Jacobi secundi nuper Regis Anglie c. erga ipsum Dominum Regem gererent et de jure gerere tenentur subtrahent ' et machinant ' et totis viribus suis intendent ' pacem et Communem tranquilitatem c. proditoris compassaverint imaginat ' fuer ' et intendebant dictum Dominum Regem supremum et naturalem Dominum suum ad mortem adducere et contra dictum Dominum Regem supremum verum naturalem et indubitatum Dominum suum prodotorie levaverunt guerram c. contra pacem dicti Domini Regis nunc Coron ' et Dignitat ' suas ac contra formam Statut ' in hujusmodi casu edit ' et provis ' Et statim de premissis in Indictament ' praed ' specificat ' superius eis imposit ' per cur ' hic allocut ' qualiter se vellent inde acquietari iidem Reginald Tucker et Thomas Place separatim dicunt c. The Judgment is per cur ' hic quod praed ' Reginald Tucker et Thomas Place ducantur eteorum uterque ducatur usque ad Gaolam dicti Domini Regis Com' praed ' unde venerunt et abinde usque ad locum Executionis trahantur et uterque eorum trahatur et super furcas ibidem per collum suspendantur et viventes ad terram prosternantur et uterque eorum prosternatur et interiora sua extra ventres eorum et utriusque eorum capiantur ipsisque viventibus ibidem comburantur et quod capita eorum et utriusque eorum amputentur quodque corpora eorum et utriusque eorum in quatuor partes dividantur et quod capita et quarteria illa ponantur ubi Dominus Rex ea assignare voluit c. And now it was argued on the behalf of the King That this Reversal was not justifiable that the Exceptions taken below were many and as to the Pretence that secreta membra amputentur was omitted the same was not allowed as Error below by reason of the many Precedents which in the Entries did omit it That tho' the Practice be common to pronounce it yet few or no ancient Records do mention it that in 3 Inst. 210. where the Judgment is taken notice of this is not part In Plowd 387. 't is omitted that Interiora includes it In Bro coron ' 128. 't is not inserted That this was never entred as part of the Judgment till 12 Car. 2. Then as to the separatim allocut ' upon the Arraignment that was likewise over-rul'd below for it must be intended a several Demand or Question And the same is implied in this Entry as much as if it had been express'd and the Precedents are both ways But the main and only Exception for which the Court revers'd the Judgment was That in the Indictment 't is not said to be a Fact done
contra ligeantie sue debitum and as to this it was argued That it was not necessary to use those very Words That they are not Terms of Art such as are absolutely necessary they are not like to the Words Burglariter Felonice Murdravit and the like That proditorie implies it that 't is plainly apparent to be contrary to his Allegiance That all the whole Indictment shews it to be so 't is not weighing his Allegiance 't is against his true natural Liege Lord and Sovereign That it appears he was a natural born Subject That the very Words themselves are only of Aggravation That they may as well be laid precedent to the Fact as in the Conclusion That here is that which is Tantamount That Sir Henry Vane's Indictment was thus Cotton and Messingers Sid. 328. The Scotch Officers in Suffolk Lamberts Hackshams Titchburns and many more That 't is true the Fact in the Indictment ought not to be made good by Intendment or Inference but if there be Words which shew that the Party owed Allegiance it s enough An alien Enemy is not indictable in this manner but here 't is shewn That he is a Person capable of committing Treason and that the Act done was against his Duty and Obedience which he owed as a Subject That many Precedents have been thus That nimia subtilitas in jure reprobatur That a Certainty to a common Intent is sufficient Longs case That in 2 Rolls abr 82. contra coron ' et dignitat ' suas is held not necessary wherefore and for other Reasons then urged 't was prayed That the Reversal might be reversed and the King restored c. On the other side it was argued That this Reversal was just That this Arraignment being Joint for want of separatim makes the Proceeding Erroneous That the Precedents do use the Word separatim and abundance of Entries were mentioned as Leach and Ruthford et al' 28 Hen. 8. Dudely Gates and Palmer 1 and 2 Phil. and Mar ' Throgmorton and Weddall 2 and 3 Ph. and M. Peckham and Daniel eodem Anno. Blunt and Danverse 44. Eliz. Earl of Ess and S. eodem Anno. Guy Fawks and Sir Everard Digby 3 Jac. 1. Harrison Scot and the other Regicides 12 Car. 2. 1660. Green Berry and Hill for the Murder of Sir E. Godfrey 1678. Ireland Pickering and Grove 31 Car. 2. rot ' 242. Whitebread Fenwick et al' 32 Car. 2. rot ' 224. Johnson et al' 2 Will. et Mar. num ' 57. and Lord Preston and Ashton Trin. 3 Will. et Mar. n. 16. separatim allocut ' and many more Besides the Nature of the thing is such as requires a several Arraignment because they may plead several Pleas and they are several Offences and tho' they plead in this Case severally that 's not enough for they ought to be askt severally But this was not so much insisted on as the next Error the Omission of secreta in the Judgment 't is part of the Judgment upon the 25 Edw. 3. for compassing c. tho' for coining 't is only to be drawn and hanged according to Morgan's Case Cro. Car. 383 Stamp 182. 3. Inst 15 17. Finch's Law lib. 2. cap. Treason they are all secreta membra abscindant ' as well as interiora all common Books have it as Bolton's Justice of the Peace tit Prefidents of Indictments for High Treason 38 42. Dalton's Justice p. 335. Sheppard's Epitome tit Crown and all those common Abridgments c. Lord Preston and Ashton's was drawn by good Advice Harrison and al' 12 Car. 2. Ireland Pickering and Grove 1678. Whitehread's 1679. Walcott's 1683. Langhorn's 31. Car. 2. Colonel Sidney's 1683. The Earl of Stafford's in 1680. was thus upon Debate and Consultation with all the Judges Dominus Rex versus Owen 1 Rolls Rep 185 186. there 't is mentioned But then it was chiefly insisted on That the Reversal was to be maintained for the Error in the Indictment that contra ligeantie sue debitum was the general Form that all the great Men in all Ages who had been of Counsel for the Crown had inserted it That all the Indictments the first Assizes after Monmouth's Rebellion which were drawn or perused by Sir H. Poll ' had this Conclusion That Ashtons Crosses Gaunts Cornishes Earl of Staffords Batemans Ayliffs Goodenoughs Hone Blague Rowse Armstrong Sir Robert Peyton Langhornes Lord Bellasis Venner Harrisons Faukes Sir Everard Digbyes Patricius Dolphie Pasch 41 Eliz. John Tipping 34 Eliz. are all thus and the Prints are so likewise 3 Inst 214. Fitzh Justiee pag. 218. Plowd 387. Coke's Entries 361. Cro. Car. 120 122 123. and a great number of Particulars more which might be cited Then 't was urged that Reason doth require this for that Treason is punishable as a Breach of Allegiance that that is the very Essence of Treason that if the Fact be not alledged to be against his Allegiance 't is not Treason that 't is by reason of his Allegiance that he can commit Treason and therefore 't is that an Alien Enemy who was never protected can't commit Treason because he owed no Allegiance and there may be many Acts done which look like a levying of War without any Breach of Allegiance and for that was quoted King John's Charter made at Rumney Mead 18 die Junii Anno Regni 17 Rot. Pat. 17. m. 13. a Transcript whereof is in Matthew Paris 245. Anno 1215. which Charter was ratified four times within nine years after The first Confirmation was granted 1 Hen. 3. and probably at his Coronation for there was a Charter dated at Glocester 6 Febr. Rot. Pat. 1 Hen. 3. m. 13. that they should enjoy Libertatibus Regno nostro Anglie a Patre nostro et nobis concessis In the second year of his Reign he sends a Mandate to the several Sheriffs to proclaim this Charter amongst others Rex c. Salutem Mittimus tibi Chartas de Libertatibus c. Mandantes quatenus eas legi facias in pleno comitatu tuo Dat' 22 Febr. Rot. Claus 2 Hen. 3. Then was cited Fox's Acts and Monuments ad Ann. 1218. That after Michaelmas this King held a Parliament at Westminster wherein he confirmed and ratified by his Charter all the Franchises and Liberties which were made and given by King John his Father In the seventh year of his Reign viz. the Sixteenth of his Age he took the Government into his own Hands and then the Archbishop of Canterbury in open Parliament doth mind him of the Oath sworn in his Name by the Earl of Pembroke Rectore Regis Regni and others at the Pacification between him and the Dauphin that he would restore and confirm those Liberties to his Subjects for which the War broke out between his Father and the Barons Then was quoted what Henry the Third promised when he invited Henry de Lucy to come in to him 1 Hen. 3. m. 16. which is in very strange language if his Allegiance had been broken Then was cited Sadler
be true and duly tendered then this Writ and if it be returned quod non ita est then an Action for a false return and thereupon the surmise will be tried and if found to be so Damages and upon such a Recovery a peremptory Writ Commanding the same that the Law is thus seems plain tho' no precedent can be shewn of such a Writ 't is only for this Reason because no Judge did ever refuse to Seal a Bill of Exceptions and none was ever refused because none was ever tendred like to this so artificial and groundless But that such Actions lie upon this Statute were Cited Regist 174. Nat. Br. 10. and they are called Attachments and Damages shall be to the Party and a Fine to the King so it is in all Cases of Statute Laws which do either prohibit or Command the doing of a thing for the advantage of any person such person if injured by a disobedience to that Law is intitled to an Action tho' the Statute doth not in express words give one 2 Inst 55.74.118.131 and the same holds in judicial proceedings the Case of the Marshalseas 10 Rep. 75. 4 Edw. 4.37 and the same Reason warrants the Action for a Scandal ' Magnat ' But perhaps 't will be said that tho' an Action lies for a disobedience to this Writ yet the Writ not being returnable no Action lies for a false return and consequently no peremptory Writ and by consequence there 's no adequate remedy in case of an unjust Refusal but to this it may be answered That the Writ being Conditional 't is a good Answer to it that the Fact was not as is surmised and that return will justifie the Refusal And certainly such return may be made and if not when the first Writ is proved to be true in all its Suggestions by Judgment in an Action for not obeying it the same Reason will warrant a peremptory Writ But whether this be thus or not it only argues an imperfection in the Law proper for the notice of the Legislature and will not justifie the method of proceeding now attempted here in this place It hath been Objected That such Proceedings are not like to be successful because Judges still are to try those matters but these are Reflections not Arguments and our Constitution is founded on a Notion that parity of Condition is the best Qualification of a trier and here must be a Jury to try the Fact and they are subject to an Attaint if their Verdict contradict the Evidence And no direction of a Judge can excuse them for if it be a point of Law they are not oblig'd to find a special Verdict but may find a general one upon their own peril of an Attaint Then Either this is designed as a Criminal proceeding against the Judges in order to Punishment or as a Civil proceeding for to gain Damages to the Party or else neither one nor the other but to have an Order Commanding the thing to be done which if refused then to have them compelled by Imprisonment quousque c. neither of the first are pretended and the last is not a Warrantble method when the Law hath prescribed a Writ in Chancery and that 's not prosecuted Here cannot be tried the particular requisites to ground such an Order as they desire as whether the Evidence or Exception as stated was offered at the Trial or if offered whether 't was over-ruled nor whether the matter offered were believed for if not believed it makes no Evidence and so can raise no point in Law There can be no Jury impanelled to try this nor can an Issue be directed hence for the trial of it By this means the Judges lose the benefit of that legal Trial by a Jury of their Peers which is their fence and protection against Power Art or Surprize the best for indifference and discovery of Truth The Institution of the Law is cautions and wise in its provision for both Challenges are admitted below 't is derogatory to the Honour of this Court to suppose it necessary here but to have it in Westminster-Hall is however reckoned a Commoner's priviledge and Birth-right there the Law is determined by one and the Fact is ascertained by another here both are in the same hands Not that any Jealousie can be supposed of mischief by it in this House but the practice of it now may give president to future Reigns and Ages in which there may be danger of a partiality Below there are by the Law appointed and provided particular Terms and days for doing Justice and they are certain the distances between them are known according to the nature of the Suit which capacitates the parties concerned their Agents and Witnesses to be ready and there can be no surprize It must not be presumed That this House may err but if any Error be possible 't is impossible for the Judges to be relieved for these Reasons in respect of the Court for no Address can be made in such case but to the same persons who did the wrong which is always with some prejudice or disadvantage because the party Erring is to Judge if he himself hath Erred Then the Proceedings here being in English and Summary it cannot well be made appear what was the proof in the first instance no Record being kept thereof Then suppose Evidence be allowed which is none the person against whom the same is given is remediless these Evils may happen in the repeating of this practise in the next Reign tho' they cannot in the present Then this method is not only against the general tenor and frame of the Common-Law but against divers Acts of Parliament and Declarations of this House Magna Charta 9 Hen. 3. cap. 29. is express per judicium parium vel per legem terre now the latter only refers to such cases which are not Triable per jud ' par ' besides to make it the lex terre there must be Ancient and continual usage 22 Edw. 3. numb 30. shews that no new practice can make a Law By 25 Ed. 3. cap. 4. 't is Enacted That no Man shall be taken by Petition or Suggestion to the King or to his Counsel without Presentment or by process or Writ Original at Common-Law and that none shall be put out of his Franchise or Freehold but by due course of Law before used here the one explains the other by Writ or due course of Law are taken for the same thing and both used in contradistinction to Petition the 28 Ed. 3. cap. 3. is the same Then the 42 Edw. 3. cap. 3. 't is by due process and Original Writ according to the Old Law of the Land the 1 Rich. 2. numb 87. Cott. 162. no Suit to be determined before the Lords or before the Counsel but before the Justices only But the 4 Hen. 4. cap. 23. is fuller it recites That in Pleas as well real as personal in the King's Courts the parties be made to come